Steps towards redrafting

The major step taken in the draft was the deletion of Article 5 of the Hague Visby Rules exceptions for negligence in navigation.

It was recognized early on the Hamburg convention contained at least five critical reforms of The Hague Visby regime that would determine its future success and effectiveness if it was to do justice to the concerns that had emerged over the past 50 years. They were;

-the basic rule on liability

-sustaining carrier liability throughout the contract of carriage;

-monetary limitation of liability -invalid clauses

-jurisdiction clauses

3.2 Salient features of the Hamburg Rules,

(1) A distinction between “carrier” and “actual carrier”; one of the main features of the Hamburg Rules is to draw a distinction between a

“carrier “and an “actual carrier”. The “carrier “is the person who enters into a contract of carriage with the shipper. The “actual carrier”

is the person to whom the actual carriage of the goods has been entrusted.

By virtue of Article 10, the carrier remains primarily responsible for the entire carriage, notwithstanding any delegation, while the actual carrier is jointly and severally liable for part of the carriage which he undertakes.

(2) wider definition of “contract of carriage”; the Hamburg Rules are not restricted to contracts of carriage “covered by a bill of lading or other similar document of title .the Hamburg Rules are not restricted to negotiable bills of lading and may be applicable to non-negotiable bills of lading, sea way bills and electronic document.

(3) period of carrier’s responsibility is extended; the responsibility of the

of the goods at the port of loading, during the carriage, and at the port absorbed from liability if he, his agents or servants have taken all

which could reasonably be required of them to avoid the loss, damage Hague-Visby rules, impose liability on the carrier for delayed delivery of goods unless he has taken all measures which could reasonably have been taken to avoid the delay and its consequences.

(7) Higher limitation of liability; in respect of the carrier’s right to limit his liability, the Hamburg Rules impose higher limits than those imposed under the Hague and Hague-Visby Rules. The liability of the carrier for loss of damage to goods is limited to 835 SDRs per package or other shipping unit or 2.5 SDRs per kilo of gross weight of the goods.

(8) Jurisdiction; wider choice of courts; under the Hamburg Rules, the plaintiff is given a wide choice of courts in which to initiate judicial or arbitral proceedings. Provided that the court selected is competent in terms of its own domestic law, the plaintiff has an option of instituting proceedings in any court situated in one of the following places;

(a) The principal place of business or, in the absence thereof, the habitual residence of the defendant; or

(b) The place where the contract was made provided that the defendant has there a place of business, branch or agency through which the contract was made; or

(c) The port of loading or the port of discharge; or

(d) Any additional place designated for that purpose in the contract of carriage by sea.

3.3 Comparison of the Hague Visby and the Hamburg Rules.

The Hamburg Rules have been given a relatively wide scope of application-substantially wider than that of the Hague Rules. The Hamburg Rules are applicable to all contracts for the carriage of goods by sea between two different states if, according to the contract, either the port of loading or the port of discharge is located in a contracting state, if the goods are discharged at an optional port of discharge stipulated in the contract and that ports is located in a contracting state, or if the bill of lading or other document evidencing the contract is issued in a contracting state.

3.3.2

Unlike the Hague Rules, which apply only when a bill of lading is issued by the carrier, the Hamburg Rules govern the rights and obligations of the parties to a

3.3.3

The Hague Rules cover only the period from the time the goods are loaded onto the ship until the time they are discharged from it. They do not cover loss or damage occurring while the goods are in the custody of the carrier prior to loading or after discharge. The Hamburg Rules apply to the entire period the carrier is in charge of the goods at the port of loading, during the carriage and at the port of discharge.

3.3.4

The Hamburg Rules effect a more balanced and equitable allocation of risks and responsibilities between carriers and shippers. Liability is based on the principle of presumed fault or neglect. That is, the carrier is liable if the occurrence that caused the loss, damage or delay took place while the goods were in his charge.

This principle replaces the itemization of the carrier’s obligations and the exemption from liability under the Hague Rules, and eliminates the exemption from liability for loss or damage caused by the faulty navigation or management of the ship.

3.3.5

The Hague Rules do not cover goods carried on deck by agreement of the parties, permitting the carrier to disclaim all liability for such cargo. The Hamburg Rules take these developments into account. Firstly, they expressly permit the carrier to carry goods on deck not only if the shipper so agrees, but also when such carriage is in accordance with the usage of the particular trade or if it is required by law.

3.3.6

Hague Rules do not cover the liability of the carrier for delay in delivery.

The Hamburg Rules govern the liability of the carrier for delay in delivery in the same manner as liability for loss of or damage to the goods, in accordance with the principle of presumed fault or neglect. The Hamburg Rules limit the liability of the carrier for loss or damage to the goods to an amount equal to 835 units of

account per package or other shipping unit, or 2.5 units of account per kilogram of gross weight of the goods lost or damaged, whichever is the higher. The limits of liability under the Hamburg Rules are 25 percent higher than those established under the 1979 additional protocol, which also uses the SDR as the unit of account. In The Hague Rules and the Visby protocol the limits of liability are expressed in units of account based upon a certain quantity of gold because national currencies no longer have a fixed values in relation to gold, the values of those limits in national currencies vary.

4.0 CONCLUSION

From a pure legalistic view, the Hamburg rules appear to be much more comprehensive and much better in terms of giving solutions to the defects or shortcomings of the two other regimes. At the same time, when compared to either The Hague Rules or The Hague Visby Rules, the Hamburg Rules are clearly in favour of the shipper. It is therefore not surprising that the Rules have not been warmly received by ship owners and their insurers.

5.0 SUMMARY

We have studied the Hamburg Rules and also discussed the liability of the carrier under the Rules; we also considered the differences between the Hamburg Rules and the old rules.

6.0 TUTOR MARKED ASSIGNMENT

Distinguish between the Hamburg Rules on the one hand , and the Hague and the Visby Rules on the other. What improvements did the new rule bring on the existing structure in the carriage of goods as regards the following:

a. Liability of carrier

b. The measurement of package

7.0. FURTHER READING

M.J. Shuah The Revision of the Hague Rules on Bills of Lading within the UN System, published in the Hamburg Rules on the Carriage of Goods by Sea, Mankabady (Ed.)1972 Sijthoff-Leydon

2. UN Document E. 72 11.D.2 New York, 1972 report of UNCTAD Secretariat on Bills of Lading.