Abstract
This quotation originates in the preface to the Report from the International Law Association’s Hague Conference in autumn 1921, at the end of which most of the substantial provisions of the Rules had been agreed upon. Indeed, the Hague Rules, signed in Brussels 1924, did receive the international recognition that was hoped for. Much has changed however, over the approximate 80 years that the Hague Rules have been in force, and several provisions have long since been criticised for being out of date, despite an update of the Rules through the 1968 Visby Protocol. Two later attempts to modernise the international law relating to sea borne trade have been made through the 1978 Hamburg Rules and the 2009 Rotterdam Rules. So far, however, neither of those Conventions has achieved the international acceptance required to take the place of the Hague and the Hague-Visby Rules as the governing treaty. Therefore, while the Hague Rules regime remains as the central regulation, more and more jurisdictions are taking the matter in their own hands, introducing national law on legal matters which have arisen along with the technical and commercial developments in shipping or even abolishing outdated provisions (which, however, obviously requires a denunciation of the Hague Rules regime).
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Notes
- 1.
CMI (1990), p. 92.
- 2.
Ibid., p. 87.
- 3.
Shah (1978), pp. 4–5.
- 4.
In the text which follows when referring collectively to the Hague Rules, i.e. in their original form and as later amended by the 1968 Visby Protocol, the author shall refer merely to the Hague Rules regime.
- 5.
Ramberg (1993), p. 172.
- 6.
Sturley (1990), p. 3.
- 7.
For a more comprehensive account of the process leading up to the Hague Rules – see: Ibid., pp. 8–13.
- 8.
Baughen (2012), p. 95.
- 9.
Sturley (1990), pp. 13–14.
- 10.
UNCTAD (1991), p. 9.
- 11.
Sturley (1990), p. 23.
- 12.
Sturley (2009), p. 6.
- 13.
UNCTAD (1991), p. 11.
- 14.
And usually also by the 1979 SDR Protocol, changing the Hague-Visby Rules limitation to 666.67 SDRs per package or 2 SDR’s per kilogram from figures previously stated under the gold-based Poincaré franc unit. Sturley (2009), p. 8.
- 15.
The Rules apply only to contracts covered by a bill of lading (Art. I(b)) which are issued in a contracting state (Art. X). They exclude certain types of goods (Art. I(c)) and they are limited in time to the “tackle-to-tackle” period (Art. I(e)). The amended Hague Rules (Hague-Visby Rules) expand their scope of application to comprise also carriages (covered by a bill of lading) where the carriage is from a port of a contracting state or the parties have agreed that the Rules are to govern the contract of carriage.
- 16.
Baughen (2012), p. 131.
- 17.
Frederick (1991), pp. 101–106.
- 18.
Sturley (2009), pp. 9–11.
- 19.
UNCTAD (1991), p. 2.
- 20.
The Rules apply to all contracts of carriage and, thus, are no longer limited to contracts covered by a bill of lading (Art. 1.6). They extend the liability period to comprise also the terminal periods (Art. 4), and they are applicable in a number of situations in comparison with the Hague-Visby Rules, e.g. also when the port of discharge is located in a member state (Art. 2). Unlike the Hague Rules regime, the Hamburg Rules encompass also living animals and deck cargo (Art. 1.5) and in doing so provide special liability regimes for these (Art. 5.5 and Art. 9).
- 21.
Baughen (2012), p. 137.
- 22.
See Sect. 3.2.2 below.
- 23.
- 24.
Sturley (2009), p. 24.
- 25.
Baughen (2012), pp. 137–138; Sturley (2009), p. 10. Indeed, the 1980 MT Convention was drafted by UNCITRAL alongside the Hamburg Rules to govern contracts of carriage covered by a multimodal transport document. The Convention has, however, never entered into force, leaving a gap in global sea carriage law: Tetley (2008), p. xvi.
- 26.
Treitel et al. (2011), p. 774.
- 27.
This was the year in which the Rules became the “UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea” through the passage of Resolution 63/122 by the UN General Assembly.
- 28.
Treitel et al. (2011), p. 771.
- 29.
See Arts. 1.1, 5 and 12(1). The Convention’s multimodal character has given rise to a large number of new provisions regarding the relationship between different actors and the relationship between the Rotterdam Rules and the international unimodal transport Conventions: Thomas (2009), p. 53.
- 30.
Treitel et al. (2011), p. 776.
- 31.
- 32.
Some countries, such as Australia, have enacted the Rules into national legislation without ratifying the actual Convention: Sturley (2009), p. 9. The US it should be emphasised, adhere to the 1924 Hague Rules in their unamended form.
- 33.
See e.g. the conflicting Nordic and English interpretations of Art. IV.5 of the Hague-Visby Rules, summarised in Sect. 6.3.1.2 of this study.
- 34.
Tetley (2008), p. xvi.
- 35.
Thomas (2009), p. 80.
- 36.
The carrier needs to have an initial right to stow the cargo on deck, since deck cargo as a rule is prohibited. The situations in which the carrier has such a right (read: is authorised) to stow cargo on deck are dealt with in Chap. 5.
- 37.
Falkanger et al. (2011), p. 300.
- 38.
CMI (1990), pp. 184–186.
- 39.
Berlingieri (1990), p. 523.
- 40.
UNCITRAL (1972), p. 272.
- 41.
See Sect. 4.2.1.
- 42.
See Sect. 4.1.2.3.1.
- 43.
See Sect. 4.1.4.
- 44.
Art. III.8 of the Hague and the Hague-Visby Rules.
- 45.
Art. V of the Hague and the Hague-Visby Rules.
- 46.
There is no restriction under the Hague Rules of the right in Art. IV.5(a) to limit liability. Under the Hague-Visby Rules, the carrier is deprived of the right to limit liability where the damage or loss was caused intentionally or recklessly and with knowledge that damage would probably occur pursuant to Art. IV.5(e).
- 47.
This is the case under Nordic and English law – see Sect. 5.2.1.3 (Nordic law) and Sect. 5.2.2.4 (English law). However, different jurisdictions take different standpoints on this matter. In the US, France and Belgium, for example, a liberty clause is considered merely an option not exercised: St Johns NF Shipping Corp v Companhia Geral Commercial do Rio de Janerio, 1923 AMC 1131 (United States Supreme Court 1923); Encyclopaedia Britannica Inc v Hong Kong Producer, 1969 AMC 1741 (United States Court of Appeals, Second Circuit 1969); “Atlantic Island” DMF 826 (Cour de Cassation (French Supreme Court), 07 July 1998); Ganger Rolf and Fred Olsen and Co v Boelwerf NV MS RCJB 465 (Hof van Cassatie (Belgian Supreme Court) (1st Chamber), 25 May 1979); South Loyal Shipping Inc v DF Young Inc ea “OOCL Europe V” ETL 185 (Hof van Cassatie (Belgian Supreme Court) (1st Chamber), 01 December 2000).
- 48.
See Sect. 6.2.3.4.
- 49.
Thomas (2010), pp. 197–198.
- 50.
UNCITRAL (1972), pp. 271–272.
- 51.
UNCTAD (1991), pp. 118–119.
- 52.
- 53.
Art. 23 of the Hamburg Rules.
- 54.
See Art. 9.2: “shall or may be carried on deck” (emphasis added).
- 55.
It may be noticed that a fourth authorisation ground for containerised cargo was discussed, but with a majority against the suggestion, the proposal was withdrawn: UNCITRAL (1978), pp. 258–260.
- 56.
Berlingieri (2008), p. 296.
- 57.
While at the 1978 Hamburg Conference it was the case that Canada and the US each submitted a suggestion for an amendment of Art. 9.2 in order to make it more clear that a general clause was not sufficient, no state objected toward this perception of the provision. To the contrary, the matter was dismissed by the Chairman as a matter for the drafting committee and held to be a matter of drafting nature (presumably as opposed to one of a substantive legal nature): UNCITRAL (1978), pp. 89 and 260–262.
- 58.
UNCTAD (1991), p. 119.
- 59.
This means among other things that the carrier will not be liable for damages originating out of the special risks involved in deck carriage, which are defined by the absence of culpa – see Sect. 2.1.
- 60.
UNCITRAL (1972), pp. 289–290.
- 61.
The meaning of this phraseology and its effect shall be further developed in connection with the liability under the Rotterdam Rules below as the wording is presumed to have the same meaning as “exclusively the consequence of their carriage on deck” in Art. 25.3 of the Rotterdam Rules: Hodges and Glass (2010), pp. 259–260; UNCITRAL (2002), p. 26.
- 62.
That is, unless the carrier has caused the damage through intent or recklessness and with the knowledge that such damage would probably result (Art. 8).
- 63.
The issue has been answered differently in different countries under the Hague Rules regime – see footnote 47.
- 64.
Although in so doing the Rules merely clarify and do not change the legal perception under the Hague Rules regime – see Chap. 5.
- 65.
UNCITRAL (1972), p. 271.
- 66.
UNCTAD, in a study on the economic and commercial implications of the Hamburg Rules, somewhat contradictorily states: “In modern container trades it is certainly the ‘custom of the trade to’ carry containers on deck”, only to later state in the same study: “The Hamburg Rules greatly contribute to clarifying when the carrier will be able to carry goods – in particular, containers – on deck. Clauses in the contract of carriage by sea permitting him to do so will be sufficient.”: UNCTAD (1991), pp. 67 and 119.
- 67.
Astle (1981), p. 113.
- 68.
Richter-Hannes (1982), p. 66.
- 69.
UNCITRAL (2002), p. 25.
- 70.
See Art. 25.4: “state that the goods may be carried on deck” (emphasis added).
- 71.
Arts. 13 and 14. It should be pointed out that the carrier’s duty to make the ship seaworthy in Art. 14 has been made continuous – cf. Art. IV.1 of the Hague and the Hague-Visby Rules.
- 72.
Art. 17.3.
- 73.
- 74.
See Sect. 2.1.
- 75.
Sturley et al. (who were involved in the drafting work) as a matter of fact recognise that Art. 25.2 is an extension of the presumed fault regime in Art. 17.2 but provide no explanation for the exclusion of containerised cargo: Sturley et al. (2010), p. 129.
- 76.
Hodges and Glass (2010), p. 265. Nevertheless, this seems to have been the drafters’ intention. The following passage appeared during the drafting work as a part of Art. 25.2 but was ultimately deleted: “If the goods are carried on or above deck pursuant to article 6.6.1 (ii) [corresponding to Art. 25.1(b) in the final version], the carrier is liable for loss of or damage to such goods, or for delay in delivery, under the terms of this instrument without regard to whether they are carried on or above deck.”: UNCITRAL (2002), p. 11. What, if anything can be inferred from the deletion is unclear.
- 77.
Art. 25.4.
- 78.
- 79.
Hodges and Glass (2010), p. 259.
- 80.
See Sect. 2.1.
- 81.
Whereas a broader definition of “damage caused by the special risks involved in the stowage on deck” would excuse the carrier also for damage involving negligence on his part pursuant to Art. 25.2, a more narrow definition of “damage exclusively caused by the stowage on deck” would lead to the irrational result that the carrier is ascribed a strict liability for damage arising without his fault under 25.3 but is attributed only a presumed fault liability with possibility to exculpate himself for damage caused or contributed to by his negligence (although it is unlikely that the carrier would successfully be able to do so as deck stowage without authorisation will generally be deemed negligent). It is another thing to say as Sturley however, that the risks at issue under Art. 25.3 are the special risks involved in the stowage on deck, because these are the risks for which the carrier would not be held liable should the cargo have been stowed on deck with authorisation: Sturley et al. (2010), p. 130.
- 82.
The recognition was made that a damage or loss rarely has one cause: UNCITRAL (2002), p. 26.
- 83.
Hodges and Glass (2010), p. 260.
- 84.
Sturley et al. (2010), p. 130.
- 85.
The only actual difference ought to be in a case where the carrier cannot be held negligent for stowing the cargo on deck without authorisation and this, as shall be seen in what follows, is an absolute exception – see Sect. 6.2.3.4.
- 86.
The divergence from the wording in Art. 25.3 (“damage exclusively caused by”) has been presumed not to be of substantial difference: Thomas (2010), p. 201. If anything, “exclusively” might have been removed in an attempt to emphasise the seriousness of deck carriage contrary to an agreement to carry under deck. By removing exclusively, it has been suggested that the carrier’s potential liability might be somewhat broadened: UNCITRAL (2004), p. 27.
- 87.
Tetley (2008), p. 171.
- 88.
Sinclair (1984), p. 142. It should be noticed also that ICJ has used has used the travaux préparatoires to confirm the interpretation of the terms also where Art. 31 did not produce an ambiguous result: Territorial Dispute (Libyan Arab Jamahiriya/Chad) ICJ Reports 1994 6 (ICJ, 03 February 1994), para 55.
- 89.
JI MacWilliam Co Inc v Mediterranean Shipping Co SA “Rafaela S”, [2003] 2 Lloyd’s Rep. 113 (Court of Appeal), pp. 126–127.
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Wiedenbach, L. (2015). Treaty Law. In: The Carrier's Liability for Deck Cargo. Hamburg Studies on Maritime Affairs, vol 33. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-46851-7_3
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