INTRODUCTION
In ancient times, ship owners had extensive powers over the
shippers and cargo owners. Ship owners managed to escape their liabilities by
using these powers and the principle of freedom of contract during cargo
damages. Therefore, The cargo owners were disappointed and the reliability of
bills of lading was greatly affected. [1]This was the main reason to
develop the Hague Rules 1924. Most of the maritime nations ratified Hague rules
and still this is in force. These rules apportioned responsibility for the safe
delivery of the cargo between shipper, carrier and receiver and denied these
parties, particularly the carrier, and the ability to contract out minimum
levels of responsibilities.
The international traders were under impression that Hague rules
are more ship owner friendly and therefore, in 1968 amendments to the Hague rules
were brought up and these are known as Hague-Visby rules.
[2]Again, in response to
shipper’s complaints that the Hague-Visby rules (HVR) were unfavourably
weighted in the favour of carrier, the Hamburg rules, properly called United
Nations Convention on the Carriage of Goods by Sea 1978, were drafted under the
auspices of UN agency UNCITRAL and introduced in 1992. Although there are
already 34 parties to the convention it has so far had no major impact on world
trade.
Now, we will analyze how the following matters have been regulated
in Hague, Hague-Visby and Hamburg rules.
1. Definition of contract of carriage
[3]The Hague and HVR
defines by connecting the notion of contract of carriage to the document issued
thereunder, the B/L, while Hamburg Rules defines as the carriage of goods by
sea from one port to another.
2. Types
of Cargo
[4]Hague and HVR provide
that the rules are applicable to all goods, ware, merchandise and articles of
every kind of whatsoever, except live animals and cargo which by contract of
carriage is stated as being carried on deck and is so carried.
But Hamburg Rules cover
all kinds of cargo including live animals. But the carrier is entitled to carry
the goods on deck only if it is in accordance with an agreement/undertaking
with the shipper or is in accordance with the usage, rules or regulations.
3. Period of application.
[5]Under Hague and HVR, the period of application
is from the beginning of loading of the goods on the ship to the completion of
their discharge from the ship, i.e. [6]tackle to tackle. But the
period of custody of good by carrier might sometimes begin even before loading
operation and extend after unloading, which is not covered by these rules.
[7]Under Hamburg
Rules, their period of application has been extended to the whole period during
which the carrier is in charge of the goods.
4.
Carrier
While Hague and HVR do not differentiate the terms of ‘carrier’ and ‘actual
carrier’, [8]the Hamburg Rules clearly
defines these two terms such as the ‘carrier’ is the person who enters into a
contract of carriage of the goods with the shipper and the ‘actual carrier’ is
the person to whom the actual carriage of the goods has been entrusted.
5. Obligations of the carrier
[9]Provisions are made
in the Hague & HVR regarding the obligations of the carrier to exercise due
diligence to make the ship seaworthy (extends to manning, equipment and cargo
worthiness) before and at the beginning of the voyage and to properly and
carefully load, handle, stow, keep, care and discharge goods, while no
reference to them is made in the Hamburg Rules, since it has been provided in
article 5(1) that the carrier is liable unless he proves that he and his
servants or agents took all measures that could reasonably be required to avoid
the occurrence and its consequences.
6. Liability of the carrier and allocation of the burden of
proof
The Hague and HVR provide a wide list of exceptions in favour of the carrier for
loss or damage resulting from Article 4(2) (a) – (q) which includes the
following navigation fault exception as well.
a)
act,neglect, default of the master, mariner, pilot, or the
servants of the carrier in the
navigation or in the management of the ship.
Thus, the carrier may escape liability by claiming defense of
navigational fault.
But Hamburg rules do not have an extensive list of exception
clauses except for the following main three which operate in the carrier’s
favour.
(i) Live Animals
(ii) Deviation (iii) Fire
Regarding Live Animals, [10]the carrier is not liable
if he can show that the loss or damage was caused by special risks inherent in
the kind of cargo carried.
About Deviation, [11]the
carrier is not liable, except in general average, where loss, damage or delay
in delivery resulted from measures to save life or from reasonable measure to save property at sea. However, in the event
of deviations, the carrier will still be liable for all loss, damage or delays
in deliver that results after deviation.
In contrast Article IV(4) of HVR carrier will not be liable for loss resulting from any
deviation in saving or attempting to
save life or property at sea or
any reasonable deviation.
Regarding Fire, [12]
a carrier is liable, if a claimant can prove that the fire arose from the fault
or negligent on the part of the carrier, his servants or agents. The carrier
must prove that he, his servants or agent took all measures that could
reasonably be required to avoid the occurrence and its consequences.
7. Limitation of liability
[13]The Hague Rules
limits the liability of the carriers to 100 pound sterling (to be taken as gold
value) per package or unit. [14]The limits that
under the HVR are 666,67 SDR per
package or unit and 2 SDR per
kilogram, have been increased in the [15]Hamburg Rules to 835 SDR and 2.5 SDR respectively.
8. Liability limit for delay
While no applicable provisions exist under Hague and HVR,
under [16]Hamburg Rules, it is 2.5
times freight payable for goods delayed but not exceeding the total freight
payable under the contract of carriage.
9. Loss
of right to limit responsibility
While no special provisions exist in Hague rules about this, both HVR (Article 4(5) e) and
the Hamburg rules (Article 8) provide that the carrier can not benefit the
limitation liability if the carrier intends to cause loss or is reckless
knowing that loss would probably result.
10. Liability of the carrier for other persons
Under Hague and HVR, except for the exonerations mentioned in article 4(1)(a) and
(b), the carrier is liable for the faults of his servants or agents; by
implication from article 4(2)(q). The category of the agents appears to be
limited, because article 4bis(2) provides that they do not include independent
contractors.
Also in [17]Hamburg Rules reference is
made to the servants or agents of the carrier but, since the exclusion of
independent contractors does not result from other provisions, agents may
include also independent contractors.
11. Obligations and liability of the shipper
Regarding obligations and liability of the shipper, the Hague
and HVR in article 3(5)
they provide that the shipper is deemed to have guaranteed to the carrier the
accuracy at the time of shipment of the marks, number, quantity and weight
furnished by him. Secondly in article 4(3) they provide that the shipper is not
responsible for loss or damage sustained by the carrier or the ship arising or
resulting from any cause without its act, fault or neglect. Thirdly, article
4(6) provides that the shipper is liable for all damages and expenses directly
and indirectly arising out of or resulting from the shipment of dangerous goods
the shipment whereof the carrier has not consented with knowledge of their character.
The Hamburg Rules mainly regulate the liability of the shipper
in Part III, consisting of two articles, 12 and 13. Article 12 corresponds to
article 4(3) of the HVR and article 13 corresponds to article 4(6) but expressly states
that the shipper must inform the carrier of the dangerous nature of the goods.
One aspect of the liability of the shipper – liability for
incorrect description of the goods – is, however, dealt with in the subsequent
Part IV that deals with transport documents: article 17 in fact contains a
provision similar to that in article 3(5) of the HVR.
[18]Under the HVR the shipper is
liable for damages caused by dangerous goods shipped without the knowledge by
the carrier of their dangerous nature. [19]Under the Hamburg Rules
the shipper is bound to inform the carrier of the dangerous nature of the goods
and if necessary of the precautions to be taken and is liable to the carrier
for the loss resulting from their shipment if the carrier does not otherwise
have knowledge of their dangerous character.
12. Notice of loss, damage or delay
[20]Under Hague and HVR the notice must be
given before or at the time of delivery and, if the loss or damage is not
apparent, within three days of delivery. [21]Under the Hamburg Rules
the notice must be given not later than the working day after delivery or, when
the loss or damage is not apparent, within fifteen days after delivery.
13. Time
for suit
[22]Under Hague and HVR,
a civil suit must be brought within one year of the date of delivery of the goods,
or the date when the good should have been delivered.
[23]But as per Hamburg
Rules, a civil action or arbitration proceeding related to the carriage of
goods must be commenced within two years of the date delivery of the goods, or
where no delivery, on the last day on which the goods should have been
delivered.
14. Freedom of contract
[24]Hague and HVR provide
that any clause relieving the carrier from liability otherwise than provided by
the Rules is null and void and then in article 6 that the carrier may enter
into any agreement in respect of its obligations and its liability if no B/L
has been or will be issued and the goods carried are not ordinary commercial
shipments; they further in article 7
that freedom of contract is permitted prior to loading and after discharge.
[25]The Hamburg Rules
instead provide that any stipulation is null and void to the extent that it
derogates from the provisions of the Convention but that the carrier may
increase his responsibilities and obligations under the Convention. They
further increase the protection of the shipper or consignee by providing that
if it has incurred loss as a result of a stipulation, which is null and void by
virtue of that article the carrier must pay compensation.
SUMMARY
The main differences between Hamburg and Hague and Hague- Visby
are, rapidly summarized, as follows.
The principal feature of the Hamburg Rules is the new basic rule
of liability that carrier is liable in certain circumstances defined unless he
proves that he, his servants or agents took all measures that could reasonably
be required to avoid the occurrence and its consequences.
There are provisions that extend the carriers' responsibility
before unloading and after unloading.
The long list of defences under the Hague-Visby Rules have been
narrowed down to such degree that carrier may find it extremely difficult to
succeed in avoiding liability.
The categories of persons for whom the carrier is liable
gradually increase from the Hague-Visby Rules to the Hamburg Rules.
The Hamburg Rules apply to deck cargo and it is specified when
cargo can be carried on deck; and to live animals.
While no special provisions exist in Hague and HVR on Jurisdiction
and Arbitration, Hamburg rules provides on both respects.
There is a new joint and several liabilities of carriers and
actual carriers, which certainly potentially makes it easier to sue the actual
carrier.
The package or unit limitation is defined in the special drawing
rights and is raised - which is done by Visby anyway.
The time for suit is extended to two years and the time for giving
notice of non-apparent damage has been extended from three days to fifteen.
There are provisions about liability for delay in the Hamburg
Rules, with special limits on damages for it.
CONCLUSION
Though the Hague-Visby rules were brought up following the
international traders’ impression that the Hague rules are too much carrier-friendly
and still
constitute the rules that govern the vast majority of contracts globally, there are serious
shortcomings in their scope of application. There are inconsistencies in
interpretation that can leave huge amounts of uncertainty. This uncertainty is
all to often abused by the stronger bargaining partners and many weaker parties
cannot afford the speculative litigation that would be required to safeguard
their rights.
There is an imbalance in the interests, rights and liabilities
which are in favour of carriers.
From the foregoing analysis, it is the conclusion of this paper that the Hague and
the Hague-Visby Rules are too much
Carrier-friendly. And though Hamburg rules provide significant improvements in
terms of certainty of law, clarity of contracts, they are in favour of Shippers in many respects
including the allocation of liabilities.
BIBLIOGRAPHY
LEGISLATIVE
INSTRUMENTS
1. HAGUE RULES, 1924.
2. HAGUE-VISBY RULES, 1968
3. HAMBURG RULES, 1978
ARTICLES.
1. A
COMPARATIVE ANALYSIS OF THE HAGUE-VISBY RULES, THE
HAMBURG RULES AND THE ROTTERDAM RULES-FRANCESC BERLINGIERI
2. THE
HAGUE RULES, THE HAGUE-VISBY RULES, AND THE HAMBURG
RULES-FRANCIS REYNOLDS
3. COMPARISON
OF HAGUE-VISBY AND HAMBURG RULES.
MS
ANOMI WANIGASEKERA, ATTORNEY-AT-LAW, PARTNER, MESSRS JULIUS & CREASY
WEBSITES
2. UNITED NATIONS CONFERENCE ON
TRADE AND DEVELOPMENT (UNCTAD) WWW.UNCTAD.ORG
3. HTTP://INTERLEGAL.COM.UA/RU/PRESS/7_OZKAN.PDF
Foot Notes
[1]
[3] Article 1(b) of Hague and Hague- Visby and Article
1(6) of Hamburg Rules.
[7] Article 4 (1 & 2)
[8] Articles 1 (1& 2)
[9] Article 3 (1 & 2)
[13] Article 4 ( 5 )
[14] Article IV (5 ) a
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