Abstract
The first part of this work presents an overview of the sea carrier’s duties and liabilities during the centuries before the enactment of the Hague/Hague Visby rules, and addresses the historical origin of the current sea carrier duties to practice due diligence in making the ship seaworthy and to care the cargo. Maritime transportation, as a cornerstone of the commerce, development and civilization, has been subject of regulations since ancient times. Rules governing the carrier’s duties are found back in history. A review from the ancient sources of regulation for carriage of goods by sea law, including those during the middle ages and in the modern era, reveals a constant application of an absolute liability standard on sea carriers. Such standard changed during the XIX century under English law, when the global trade increased, along with the advent of new philosophical ideas that prompted some carrier’s practices that required later urgent attention from the international community. Such efforts ended on the existing standards contained in the Hague/Hague-Visby Rules. After that, attempts for more modern regulation have been tried, but without success. From the standards of liability demanded to maritime carriers for centuries before the current era, this part provides and aid to a better understanding of the duties required to them, in what we now call the technological era.
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Notes
- 1.
Schoenbaum, 3.
- 2.
S. S. Jados, Consulate of the sea, and related documents (University, Ala: University of Alabama Press 1975), vii.
- 3.
Schoenbaum, 3.
- 4.
H. E. Anderson, III, ‘Risk, Shipping, and Roman Law’ (2009) 34, Tulane Maritime Law Journal, 183–210, at 183: “Of course, since there are modern legal equivalents to the well established procedure for general average, some courts have argued they need not actually rely on Roman law. In reality, many U.S. courts have mentioned the Rhodian maritime laws in their opinions. Still, in the English case of Taylor et al. v. Curtis (The Hibernia), Chief Justice Gibbs remarked: ‘It seems totally unnecessary to go to the Rhodian or Roman law for what common sense and common justice must suggest to everyone; and though it be pleasing to learned curiosity to perceive the custom of our own times confirmed by such ancient precedents, we should be satisfied with finding the analogy, without grounding ourselves upon it as the reason.’ With deference to the learned judge, the real relevance of the Roman law, or any historical legal device for that matter, is not so much the actual rules established, but that such law informs us of the historical legal and customary practices and guides us with respect to the prevailing commercial or political situations that were the origins of such rule… Furthermore, it is important to understand and realize the context of the origins of these maritime legal principles in order to assess the relevance of modern practices. Only through a careful review of the historical context can future improvements be made to the current law, which originated from older law that contemplated similar physical risks through different commercial and legal arrangements.”
- 5.
Jados, vii.
- 6.
Ibid., viii.
- 7.
Ibid., x. It seems to have happened especially after the 15th century.
- 8.
Ibid., at x: “By the beginning of the thirteenth century in all large commercial cities there appeared a new class of people eager to share in the profits of trade. The concentration of money in commercial cities provided new opportunities for investment of surplus capital in new industries producing a variety of merchandise for new and expanding markets. New trade routes were opened, better merchandising methods were devised, and the first sign of modern capitalism appeared. The rise of nationalistic feeling became associated with commercialism.”
- 9.
Ibid., at xi: “Religious convictions appeared to have no restraining influence in the merchant class…When commerce developed to the level of controlling national economies, whatever position the Church might have taken on the moral and ethical aspects of commercialism was completely ignored by the merchant princes, and the papacy no longer had the military to enforce its dicta.”
- 10.
Ibid., xii.
- 11.
E.C. Benedict and A.W. Knauth, Benedict on admiralty, 7th edn. (New York, NY: Matthew Bender, 1969, i.e. 1958]; v. 1, 1974), vol. 1 Chapter 1. E.g. The Maritime Laws of the Kingdom of Jerusalem; Le Guidon de la Mer; The Laws of Hansa Towns; Ordinnance de la Marine of 1681; etc.; Jados., at xiii: “Customs of the city of Amalfi, Ordinances of Trani…”
- 12.
F. R. Sanborn, Origins of the early English maritime and commercial law (New York: The Century Co., 1930), 63. See Holdsworth; G.J. Mangone, United States admiralty law (The Hague; Boston: Kluwer Law International, 1997), 7
- 13.
Jados, xiii.
- 14.
Ibid., at vii: “On the seas the merchants were exposed to pirates, and privateers, to shipwreck and death. Meager knowledge of navigation, lack of proper navigational instruments, the nonexistence of lighthouses and beacon lights, dependence upon favorable winds, and the inability of vessels to withstand severe storms often ended in aimless sailing until the depletions of water and food resulted in the death of all aboard.”
- 15.
Schoenbaum, 3.
- 16.
Benedict and Knauth, Vol. 1, at § 1: “In adverting to the precedents and rules of practice of a bygone age, it should be our task to take account of the times and circumstances in which they were set and to use them not as shackles to bind but as guides to lead us in our attempts to find a solution for our legal problems. History will also teach us a certain humility; for, in this field of maritime law, we shall find that the forces of nature which our ancestor had to contend with and to provide legal solution for their ravages, have scant respect for the sophisticated handiwork of our times, that we rely much on the systems devised in the past to alleviate the hardships wrought by maritime casualties and disasters, that to this day we have not been able to make a reasonable codification of our laws and private litigants have to bear a enormous legal cost of establishing legal principles which ought to be the responsibility of the lawgivers to establish.”
- 17.
D. Ibbetson, ‘The Challenges of Comparative Legal History’ (2013) 1, Comparative Legal History, 1–11., 11; O. W. Holmes, The common law (London: MacMillan, 1968), Ed. by Mark De Wolfe Howe, at 5: “The Law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation.”
- 18.
Ibbetson, 11.
- 19.
J. Kent, Commentaries on American Law, 14. ed. by John M. Gould (Boston: Little, Brown, and Company, 1896); Sanborn; Mangone; Schoenbaum, among others.
- 20.
E.G.M. Fletcher, The Carrier's Liability (London: Stevens, 1932); K.F. Krieger, Ursprung und Wurzeln der Rôles d'Oléron, Quellen und Darstellungen zur Hansischen Geschichte, n. F. (Köln: Böhlau, 1970), vol. 15; A. J. M. Meyer-Termeer, ‘Die Haftung der Schiffer im griechischen und römischen Recht’.
- 21.
A.W. Knauth, The American Law of ocean bills of lading, 4th edn. (Baltimore: American Maritime Cases, 1953); M.A. Clarke, Aspects of the Hague Rules: A comparative study in English and French law (The Hague: Nijhoff, 1976); M. F. Sturley, The Legislative History of the Carriage of Good by Sea Act and the Travaux préparatoires of the Hague Rules, 3 vols. (Littleton, Colorado: Rothman, 1990).
- 22.
A. v. Ziegler, Haftungsgrundlage im internationalen Seefrachtrecht: Evolution der Haftungsgrundlage von den Haager Regeln zu den Hamburger Regeln unter Berücksichtigung des nationalen und internationalen Seerechts von Grossbritannien, den Vereinigten Staaten von Amerika, Kanada, Frankreich, Deutschland und der Schweiz (Zürich, Baden-Baden: Schulthess; Nomos, 2002); H. Karan, The carrier's liability under international maritime conventions: The Hague, Hague-Visby, and Hamburg rules (Lewiston, NY [u.a.]: E. Mellen Press, 2004).
- 23.
W. Tetley, ‘Interpretation and Construction of the Hague, Hague/Visby and Hamburg Rules’ (2004) 10. The Journal of International Maritime Law, 30–70, 58. Viscount Simonds on this regard stated in The Muncaster Castle [1961] AC 807 at 836, [1961] 1 Lloyd’s Rep. 57, at 67: “To ascertain [the] meaning [of the Hague Rules] it is, in my opinion, necessary to pay particular regard to their history, origin and context, and, as I think the courts below have not paid sufficient regard to this aspect of the case, I must deal with it at some length.”
- 24.
Benedict and Knauth, Vol. 1. §2.; Jados, xii.
- 25.
Schoenbaum, 3.
- 26.
C. Edwards, The Hammurabi Code: and the Sinaitic Legislation (London: Watts & Co., 1904), 66–67. Also on boatman liability: “Rule 236. If a man has given his boat on hire to a boatman, and the boatman is careless, and the boat is sunk and lost; then the boatman shall replace the boat to the boat owner.”
- 27.
Ibid., 66.
- 28.
G. R. Driver and J. C. Miles, The Babylonian Laws, 2 vols. (Oxford: Clarendon Press, 1952), Vol. 1, 465.
- 29.
Ibid., 462.
- 30.
Ibid., 462.
- 31.
Ibid, 465.
- 32.
Ibid, 464.
- 33.
Ibid, 466.
- 34.
Ibid, 464.
- 35.
Schoenbaum, 5.
- 36.
Anderson, III, 195.
- 37.
T. E. Dönges, The Liablility for Safe Carriage of Good in Roman-Dutch Law (Cape Town: Juta & Co. Ltd., 1928), 4.
- 38.
A. C. Schomberg, A treatise on the maritime laws of Rhodes: By Alexander C. Schomberg (Oxford: sold by D. Prince and J. Cooke. J. F. and C. Rivington, P. Elmsly, and T. Payne and Son, London, 1786), 7; Kent, Vol. III, 5.
- 39.
Anderson, III, 195.
- 40.
Meyer-Termeer, 147.
- 41.
Schomberg, 15; Kent, Vol. III, 5–6; Dönges, 2. An example of this is a law introduced by the Emperor Claudius forbidding men of noble or illustrious families and members of the Senate to own ships larger than necessary to carry their own corn and fruits.
- 42.
Sanborn, 7; Anderson, III, 184.
- 43.
Meyer-Termeer, 147; R. Zimmermann, The law of obligations: Roman foundations of the civilian tradition, 1st edn. (Cape Town: Juta & Co. Ltd., 1990), 406.
- 44.
Anderson, III, 184–185. See Lionel Casson, “Ships and Seamanship in the Ancient World 369” (1971).
- 45.
Schoenbaum, 4.
- 46.
Anderson, III, 196.
- 47.
Schoenbaum, 5.
- 48.
A. Torrent, Manual de derecho privado romano (Madrid: Edisofer, 2002), 360; M. J. García Garrido, Derecho privado romano: Casos, acciones, instituciones, Derecho/ ediciones académicas, 13th edn. (Madrid: Ediciones académicas, DL 2004), 419.
- 49.
W. L. Burdick, The Principles of Roman law and their relation to modern law, (Repr.) (Holmes Beach, Florida: Gaunt & Sons, Inc., 1989), 415–416.
- 50.
García Garrido, 419.
- 51.
H. Hausmaninger, ‘Diligentia Quam In Suis: A Standard of Contractual Liability from Ancient Roman to Modern Soviet Law’ (1985) 18, Cornell Int'l L.J., 179–202, 185.
- 52.
García Garrido, 418.
- 53.
Ibid., 418–419.
- 54.
Ibid., 419.
- 55.
Note, ‘Three Degrees of Negligence, The’ (1873) 8, Am. L. Rev., 649–68, at 665: “Since the publication of Sir William Jones essay, and within the present century, it has been demonstrated, almost beyond cavil, that there does not exist in the Roman law a uniform division of negligence into degrees. It is generally admitted that the Florentine manuscript of the Digest is the oldest and the most valuable of the manuscripts; that its reading of the text of the law Contractus is the correct reading; … that Pothier was wrong; and that the symmetrical scheme of a threefold division of negligence is not supported by the texts of the Roman law, but was the work of the commentators”. Zimmermann at, 192 suggest also that it was the medieval lawyer who came to distinguish different degrees of negligence. Torrent, 361.
- 56.
García Garrido, 420; Dig. 50.16.213; Dig. 16.3.32.
- 57.
Torrent, 361; García Garrido, 420.
- 58.
Torrent, 361; García Garrido, 420.
- 59.
Notwithstanding, it has been argued that the Romans described these different types of negligence, but did not clearly define the associated degrees of diligence needed. See W. W. Buckland, A Manual of Roman private law (Cambrige: University Press, 1925), 337.
- 60.
Zimmermann, 192, at 193, on the reason for this high standard Zimermann says that: “[T]he answer to this question lies in Justinian’s tendency, originating in Greek philosophy and reinforced by Christian religion, to make fault the central element of the law relating to liability.”
- 61.
Torrent, 361; García Garrido, 420.
- 62.
Zimmermann, 192.
- 63.
Dig. 44.7.1.4: “[The debtor] is obliged to observe the most exact diligence in guarding the property, and it is no sufficient for him to practice the diligence which applies to his own affairs, if someone could have guarded the property in a more diligent manner.”
- 64.
Note, ‘Three Degrees of Negligence’, at 667: “…the pledgor and the pledgee; the vendor and the vendee.”
- 65.
Zimmermann, 210.
- 66.
Torrent, 361.
- 67.
Ibid., 361.
- 68.
Hausmaninger, 183.
- 69.
Dig. 16.3.32: “The statement made by Nerva that gross fault is equivalent to fraud was not accepted by Proculus but seems to me to be very true. For even if a person is not careful in the degree required by the nature of man, still, unless he shows in the deposit the care customary with him, he is not free from fraud; for good faith is not maintained if he shows less care than in relation to his own affairs.”
- 70.
Ibid., 200.
- 71.
Note, ‘Three Degrees of Negligence’, 667–668.
- 72.
Ibid., 665.
- 73.
Karan, 8.
- 74.
Torrent, 363.
- 75.
Zimmermann, 194.
- 76.
Torrent, 362.
- 77.
Dönges, 20.
- 78.
Ibid, 29.
- 79.
Ibid, 30.
- 80.
Meyer-Termeer, 177.
- 81.
Sanborn, 10; Meyer-Termeer, 150.
- 82.
Meyer-Termeer, 177.
- 83.
Ibid., 177.
- 84.
Dig. 4.9.3.1.
- 85.
Meyer-Termeer, 177.
- 86.
Ibid., 185, at 177: „Daraus ist zu schliessen, dass es die location conductio schon in der ersten Hälfte des 2. Jahrhunderts v. Chr. gab.”
- 87.
Ibid., 185.
- 88.
Ibid., at 185–186: “Sehr viele Autoren sind der Ansich, das receptum nautarum sei vor oder spätestens im 1. Jahrhundert v. Chr. enstanden; als argumentführen sie vor allen an, dass in dem Edikt das Wort “nautae” und nicht “exercitores” verwendet wird, woraus sie schliessen, dass das Edikt über das receptum nautarum in einer Zeit erlassen worden sei, in der das Wort exercitor noch nicht bestanden habe, so dass es älteren Ursprung sei als die actio exercitoria”.
- 89.
Zimmermann, 515.
- 90.
Ibid., 515.
- 91.
Dönges, 28.
- 92.
Dig. 4.9.1.
- 93.
Dönges, 9.
- 94.
Ibid., 9: “In Dig. IV, 9.1. 1–4, where Ulpian treats of such important matters as the reason for the introduction of the Edict (§1), the person liable under the Edict (§§2 and 3), and the extension, in practice, of this liability to “exercitores ratium et lintrarii,” (§ 4), he always speaks of, or at any rate, implies ‘nautae.’ In §5 ‘caupones et stabularii’ are mentioned for the first time. Just as in §4 I suggest, he is here referring to an extension, beyond nautae, of the person to whom the Edict applied”.
- 95.
Ibid., 9, 22.
- 96.
Meyer-Termeer, 197.
- 97.
Dönges, 24; Zimmermann, 515; Dig. 4.9.5.
- 98.
Dönges, 32.
- 99.
Dig. 4.9.5.1; 4.9.6.4.
- 100.
Dönges, 31.
- 101.
Ibid., 32; Zimmermann, 515.
- 102.
Zimmermann, 1121.
- 103.
G. C. J. J. van Den Bergh, ‘Custodiam Praestare: Custodia-Liability or Liability for Failing Custodia?’ (1975) 43, Tijdschrift voor rechtsgeschiedenis - The Legal History Review, 61–72, 62; Torrent, 362.
- 104.
Zimmermann, 515.
- 105.
Dig. 4.9.1.1.
- 106.
Fletcher, 96.
- 107.
T. M. Mackenzie and J. Kirkpatrick, Studies in Roman law: With comparative views of the laws of France, England and Scotland, 7th edn. (Holmes Beach, Fl: Wm. W. Gaunt, 1991), 222–223; Dig. 4.9.1.1.
- 108.
Dig. 4.9.1, Ulpian further says: “Let no one think that the obligation placed on them is too strict; for it is in their own discretion whether to receive anyone; and unless this provision were laid down, there would be given the means for conspiring with thieves against those whom they receive, since even now they do not refrain from mischief of this kind.”
- 109.
Fletcher, 96.
- 110.
Zimmermann, 516. Dig. 4. 9. 3. 1.
- 111.
Ibid., 517.
- 112.
Ibid., 517.
- 113.
Ibid., 517.
- 114.
Fletcher, at 96, Fletcher quotes the explanation provided by J.B.C. Stephen in (1896) L.Q.R. XII. 119: “It was, therefore, better that the carrier should be held liable for all loss or damage (since he could best take precautions against such loss) than that the freighter should be deprived of his remedy”.
- 115.
Dig. 4.9.2.
- 116.
Dig. 44.7.5.6.
- 117.
Dig. 4.9.6. Ulpian further states in Dig. 4.9.7.4, that the person in charge of the ship is liable for losses caused by another’s slaves because when employing them on the ship “he ought to investigate their reliability and integrity.”
- 118.
Dig. 4.9.3.
- 119.
Dig. 4.9.8.
- 120.
Zimmermann, at 1121: “Again we are dealing with vicarious liability stricto sensu, albeit in a contractual context” See Dig. 19. 2. 25. 7.
- 121.
Dig. 4.9.1.3.
- 122.
Dig. 4.9.1.2; Dig. 4.9.1.3.
- 123.
Dig. 4.9.1.6.
- 124.
Sanborn, 11; Dig. 4. 9.1.7.
- 125.
Dig. 4.9.7.
- 126.
Meyer-Termeer, 190.
- 127.
Zimmermann, 515.
- 128.
Ibid. 515; Introduced by Labeo in Digest 4.9.3.1.
- 129.
Dönges, 33.
- 130.
Ibid., at 102: “…Ulpian, in his eighteenth book on the Edict, where he enumerates the circumstances under which the carrier will not be liable, distinctly affirms this right in the following words: ‘Item si praedixerit, ut unusquisque vectorum res suas servet neque damnun se praestaturum, et consenserint vectores praedictione, non convenitur’. …This right of modifying the strictness of the liability under the Edict is affirmed by Lauterbach, Glück, Windscheid and Heineccius.”
- 131.
Dig. 4.9.7.
- 132.
Mangone, 5.
- 133.
Sanborn, 19.
- 134.
Ibid., 19. See Desjarding, Arthur, “Introduction Historique à l’Etude du Droit Commercial Maritime” (Paris, 1890), 2; Mangone, 5.
- 135.
Mangone, 5.
- 136.
Ibid., 5.
- 137.
Sanborn, 35. E.g. Trani, Amalfi, etc., at 26: “We need not wonder, therefore, nor consider it to be the flowering of some incomprehensible seed, when we see codes of maritime law and commercial courts springing up in Italy in the XI and XII Centuries almost immediately, as historical time goes after the official of the Empire had left the peninsula forever.”
- 138.
Ibid., 35, 39.
- 139.
Ibid., 27, 41.
- 140.
Burdick, 76.
- 141.
Mangone, 6.
- 142.
C. P. Sherman, Roman Law in the modern world, 2nd edn., 3 vols. (New York: Baker, Voorhis & Co., 1924), Vol. 1, 321.
- 143.
Kent, Vol. III, 7–8, note (a). Papinian, Paul, Julian, Labeo, Ulpian and Scaevola.
- 144.
J. Gordley, The philosophical origins of modern contract doctrine, Clarendon law series (Oxford [England], New York: Clarendon Press; Oxford University Press, 1991), 30.
- 145.
Zimmermann, 520.
- 146.
Mackenzie and Kirkpatrick, 222.
- 147.
Anderson, III, 195; B. Farthing, International shipping: An introduction to the policies politics and institutions of the maritime world, 2nd edn. (London [etc.]: Lloyd's of London Press, 1993), 2.
- 148.
Kent, Vol. III, 4. However, it is also said that they have adopted many of the previous Phoenician statutes. See Jados, at xii: “The Phoenicians, a great seafaring people, promulgated other laws that governed sea commerce in the Mediterranean, about 2000 B.C….The island of Rhodes, a commercial center, adopted many of these Phoenician statutes, later referred to erroneously as the Rhodian Laws.”
- 149.
Sanborn, 5.
- 150.
Zimmermann, 407–408.
- 151.
Sanborn, 5.
- 152.
Schomberg, 37–38.
- 153.
Sanborn, 5.
- 154.
Ibid., 7; Meyer-Termeer, 147–148; Anderson, III, 184.
- 155.
R. D. Benedict, ‘The Historical Position of the Rhodian Law’ (1909) 18, The Yale Law Journal, 223–42, at 230: “The maritime power of Rhodes is stated to have been prominent during the three or four centuries preceding the Christian Era, and this, therefore, would naturally be the period during which the Rhodian Maritime Law, if any existed, would have taken form and substance. But these two references by Cicero and Strabo, both made not far from the time the Christian Era, seem to be the only references to Rhodian Law which either Greek or Roman literature can furnish us.”
- 156.
Jados, at xii: “It is claimed that the Byzantine emperor, Leo the Isaurian (714–741), issued a code of laws called in Greek, Nomos Rodion Nautikos, named after the Rhodian Laws. However, upon close examination, the Isaurian statutes have actually no relation to the earlier Rhodian Laws.”
- 157.
Sanborn, 35.
- 158.
Schoenbaum, 7.
- 159.
W. Ashburner, Homos Rodion Nautikos, The Rhodian Sea-Law, Repr. of the ed. Oxford 1909 (Aalen: Scintia, 1976)., 112–113.
- 160.
Schoenbaum, 7.
- 161.
Sanborn, 37. See Wagner, Dr. Rudolf and Pappenheim, Dr. Max: “Handbuch des Seerechts“ (Leibzig, 1884, 1906) Systematischen Handbuch der deutschen Rechtwissencahft, edige by K. Binding, 60.
- 162.
Schoenbaum, 7.
- 163.
Ashburner, civ, cxcviii.
- 164.
Ibid., cv.
- 165.
Ibid., at cxcviii. He cites some statutes such as: “St. Ragus. VII, 6; St. Phara, V, 1; St. Pera, V, 14; St. Massil. IV, 26,, 127; C. Tortosaq, IX, 27, 9. The Ordin. Trani, 16, speak as if the scrivano was personally liable.”
- 166.
Ibid, cc.
- 167.
Ibid., clxxxii.
- 168.
Ibid, cc.
- 169.
Ibid., cc.
- 170.
Ibid., at 92. “Chapter 11: The merchant and the passengers are not to load heavy and valuable cargoes on an old ship. If they load them, if while the ship is on its voyage it is damaged or destroyed, he who loaded an old ship has himself to thank for what has happened. When merchants are hiring ships, let them make precise inquiry from the other merchants who sailed before them putting in their cargoes, if the ship is completely prepared, with a strong sail yard, sails, skins, anchors, ropes of hemp of the first quality, boats in perfect order, suitable tillers, sailors fit for their work, good seamen, brisk and smart, the ship’s side staunch. In a word let the merchant make inquiry into everything and then proceed to load.”
- 171.
Sanborn, 38; Ashburner, cxiii.
- 172.
Ibid., lxxvi.
- 173.
Ibid., clxxxiii.
- 174.
Ibid, 109.
- 175.
Ibid., cxcix.
- 176.
Ibid, 112.
- 177.
Ibid, cxcix.
- 178.
Ibid., 112.
- 179.
Ibid., cxcix, at 117: “…But if the cargo is hurt more from the bilge and not from the gale, let the captain take the freight and hand the goods dry in quantity as he took them”.
- 180.
Schoenbaum and Yiannopoulos, 7.
- 181.
Sherman, Vol.1, 353.
- 182.
Benedict and Knauth, Vol. 1. §6; Schoenbaum, 10.
- 183.
Mangone, 7.
- 184.
Schoenbaum, 10, at note 10.
- 185.
G. Miller, The legal and economic basis of international trade (Westport, Conn: Quorum Books, 1996), 100; Schoenbaum, 10.
- 186.
Schoenbaum, 11.
- 187.
Fletcher, 43; Schoenbaum, 11.
- 188.
Miller, 100.
- 189.
Ibid., 46.
- 190.
Schomberg, 88, 90.
- 191.
Benedict and Knauth, Vol. 1. §6; Schoenbaum, 10; Schomberg, 88.
- 192.
See New Jersey Steam Navigation Co. v. Merchants' Bank of Boston, 47 U.S. 6 How. 344, 12 L.Ed. 465 (1848).
- 193.
Miller, 100.
- 194.
Fletcher, 45.
- 195.
Ibid., 45.
- 196.
Schoenbaum, 10, at note 11.
- 197.
Introduced by Labe in Digest 4.9.3.1.
- 198.
E. Cleirac, The ancient sea-laws of Oleron, Wisby, and the Hanse-towns, still in force. Taken out of a French book, intitled, Les us & coutumes de la mer, 31686th edn. (Abingdon, Oxon: Professional Books, 1981), 6. “Rule X. When the master fraight [sic] a ship, he ought to shew his merchant the cordage that belong to her. And, if they see any Thing [sic] amiss or wanting, he must rectifie [sic] it. For, if for want of good cordage any pipe, hogshead, or other vessel, should happen to be spoiled or lost, the master and mariners ought to make it good to the merchants. So also, if the ropes or sling break, the master not having shewed to the merchants, he must make satisfaction for the damage. But if the merchant say, that the cordage is good & sufficient, and rest satisfied therewith, and afterwards it happens that they break; in that case each of them shall share the damage, viz. the merchant to whom the goods belongs, and the said master with his mariners.
Rule XI. A vessel being laden with wines, or other goods, and hoysing [sic] sail at Bourdeaux, or any other place, if the master and his marines have not trimmed their sails as they ought to have done, and it happens that ill weather overtakes them at sea, so that the main yard shakes, or breaks one of the pipes or hogsheads; the ship being arrived at her port of discharge, the merchant says to the master, that by reason of his yard his wine was lost. In that case, if the master replies, it was not so, both he and his marines (be it four or six, or such of them as the merchant shall think best) must take their Oath, that the wine was not destroyed by them, nor by the main yard, or thought their default, as the merchant charge them: and then the said master and his mariners shall be acquitted thereof. But, if they refuse to make oath to that effect, they are then obliged to make satisfaction for the same. For they ought to have ordered their sails aright, before they sailed from the port where they took in their lading.”
- 199.
Krieger, Vol. 15, 79.
- 200.
HR Article 4(q).
- 201.
Schoenbaum, 10, note10.
- 202.
Krieger, Vol. 15, at 80: “Es handelt sich hierbei um nicht anderes als um die Anwendung des germanischen Rechtsgrundsatzes:,,Wer Schaden tut, muβ Schaden besern“, wonach die Haftung für nicht vorsätzlich zugefüge Schäden allein danach beurteilt wird, wer den Schaden verursacht hat, ohne das Merkaml der,,culpa“ im Sinne einer moderner Fahrlässigkeit zu berücksichtigen. In diesem Sinne ist auch die komplizierte Regelung des Kapitels X der Rôles d’Oléron zu verstehen. Ausgehend von dem genannten Grundsatz gibt sie dem Kapitän die Möglichkeit, die Kaufleute zur Mitwirkung und damit zur Mitverantwortung für die Auswahlt des Arbeitsgerätes heranzuziehen und somit die Härte dieser Erfolgshaftung zu mildern”.
- 203.
Knauth, 115.
- 204.
Miller, 100.
- 205.
Jados, xv.
- 206.
Kent, Vol. III, at 9: “… it was a collection made in the time of the crusades, from the maritime ordinances of the Greek emperors, of the emperors of Germany, the kings of France, Spain, Syria, Cyprus, the Baleares, and from those of the republics of Venice and Genoa.”
- 207.
Jados, v, at xv: “Pardessus, refuting Azuni’s contention, ascribed it to a collection made in Barcelona, written in a Romance dialect, under the title Consulat de la Mar, and published in the fourteenth century”. See Pardessus, Collection, Vol. V, 367.
- 208.
Ibid., v; Mangone, 10.
- 209.
Mangone, 10.
- 210.
Ibid.
- 211.
Dönges, 14.
- 212.
Ibid., 11.
- 213.
Ibid; Mangone, 11.
- 214.
Dönges, 14.
- 215.
Jados, xiii. See D. A. Azuni, Droit Maritime de L’Europe (Paris, 1805) Vol. I, 392.
- 216.
Mangone, 11.
- 217.
Jados, at xvi: “This often leads into confusion since a patron may have been an able-bodied seaman who merely leased the vessel from its owner in order to engage in trade, or he may have been hired by the owner of the vessel to command it for a predetermined fee or a share on the profit the vessel would earn.”
- 218.
Ibid., 36.
- 219.
Ibid, Ch. 65.
- 220.
Ibid, 37, Ch. 66.
- 221.
Ibid.
- 222.
Ibid., 37.
- 223.
Ibid., Ch. 67.
- 224.
Ibid., 38, Ch. 68.
- 225.
De Capmany y de Monpalau, D. Antonio. Translator of “Código de las Costumbres Marítimas de Barcelona, hasta aquí vulgarmente llamado Libro del Consulado.” Vo. 1. Madrid, 1791, 130, Ch. 62.
- 226.
Ibid., 134–135, Chapters 68–70.
- 227.
Ibid., 134, Ch. 69.
- 228.
Ibid., 135, Ch. 70.
- 229.
Ibid., 138, Ch. 185.
- 230.
Ibid., 136, Ch. 72. The merchant could make such an arrangement directly with the sailors.
- 231.
Ibid., 136, Ch. 71.
- 232.
Ibid., 133, Ch. 66.
- 233.
Ibid., 136, Ch. 71.
- 234.
Ibid., 130 and 138, Ch. 62 and 185.
- 235.
The doctoral thesis of E.G.M. Fletcher, see supra note 20, challenges the historical continuity of an absolute liability for common carrier under English law.
- 236.
G. a. J. C. F. Bruce, A treatise on the jurisdiction and practice of the English Courts in Admiralty actions and appeals, 3rd edn. (London: Maxwell, 1902), 4.
- 237.
Ibid., 4.
- 238.
Ibid., at 3: “Whether judicial functions were originally conferred upon him or not may be matter of doubt, but as soon as maritime affairs began to assume importance, matters happening at sea, and not within any county from whence a jury could be summoned, requiring judicial investigation, were referred to him for adjudication.”
- 239.
Ibid., 3.
- 240.
Sherman, Vol. 1, 3.
- 241.
R. C. Fitzgerald, ‘Admiralty and prize jurisdiction in the British commonwealth of nations’ (1948) 60, The Juridical Review, 106–22, 106.
- 242.
Sherman, Vol. 1, at 364–365: “The Court of Admiralty, established in the 14th century during the reign of Edward III, owing to its necessary relations with foreign countries gradually adopted procedure and rules based on the roman civil law, the Court of Admiralty came to observe the partially Romanized rules of Oléron. The Court of Admiralty retained its importance, name jurisdiction, and roman law tendencies until very modern times, when in the 19th century it became a part of he consolidated English High Court of Judicature”.
- 243.
Burdick, 76.
- 244.
Ibid., at 65–67, 70–71. Burdick lists some of the other sources: 1) the designation by King William of the Italian scholar very well versed in Roman Law, Lanfranc as prime minister, chief adviser and in 1070, Archbishop of Canterbury; 2) The existence of the ecclesiastical courts applying the Canon Law of the Continent, highly influenced by Roman law; and, 3) The designation of Vacarius, circa 1143, a learned teacher of Roman Law at Bologna, as first professor and founder of the school of law at the University of Oxford. Furthermore, two books on the law and customs of England, one of the jurists Ranulph de Glanville between 1180 and 1190, and the other of Bracton, between 1250 and 1258, show the influence of Roman law in the legal reasoning of English jurists.
- 245.
Ibid., 74.
- 246.
Ibid., 76.
- 247.
E. Gold, Maritime transport: The evolution of international marine policy and shipping law (Lexington, Mass: Lexington Books, 1981), 39, citing C. John Colombos, Internatinal Law of the Sea, 6th ed. (London: Longmans, 1960) pp. 34–35.
- 248.
Fletcher, 1.
- 249.
T. A. Street, The Foundation of legal liability, A presentation of the theory and development of the common law, 3 vols. (Northport, Long Island, N.Y.: Thompson, 1906), Vol. 2, 255.
- 250.
Holmes, Ed. by Mark De Wolfe Howe, 133, 138; Gorton, vol. 43, at 62 says that Holdsworth shares Holme´s opinion on the German origin.
- 251.
Fletcher, xi. He also suggests that the absolute liability of the carrier could have been an Elizabethan innovation applicable to carrier by land or due to application of the Praetor Edict.
- 252.
Ibid., 2.
- 253.
Gorton, vol. 43, 62. See Holmes, Ed. by Mark De Wolfe Howe, 138; Holdsworth, A History of, vol. 3, 337; J. Basedow, ‘Common Carriers Continuity and Disintegration in U.S transportation law’ (1983) 13, Transportation Law Journal, 1–42, 5.
- 254.
Ibid., 63.
- 255.
Fletcher, xiii, 11; Gorton, Vol. 43, 63.
- 256.
Street, Vol. 2, 254.
- 257.
Ibid., 256.
- 258.
Ibid., 259. He refers to the Bonion’s Case (1315).
- 259.
Fletcher, 18.
- 260.
Holmes, Ed. by Mark De Wolfe Howe, 140. Jailers were hold as bailees in charge of cattle (the prisoners). A prisoner escaped by the action of subjects of the king who broke the prison and released the prisoner. The court stated that if the prisoner were released by king’s enemies, then it would be a cause of exclusion of liability as there were not any to claim, but as the Marshal had an action against the subjects of the king, then he was answerable to the bailor.
- 261.
Ibid., 140.
- 262.
J. Story, Commentaries on the law of Bailments: with illustrations, 9th edn. (Boston: Little, Brown, 1878), 460. See Jones on Bailm. 103; Saint Germain Doctor and Student, Dial. 2 ch. 38.
- 263.
Ibid.; Fletcher, at xi also points that the strict standard may have been an innovation in the time of Elizabeth applicable to land carriers, then extended to sea carriers.
- 264.
Holmes, Ed. by Mark De Wolfe Howe, 143.
- 265.
(1596) Moore 462.
- 266.
As cited by Street, Vol. 2, 263.
- 267.
Street, Vol. 2, 299.
- 268.
Gorton, Vol. 43, 53.
- 269.
Ibid.
- 270.
(1601) 4 Co. Rep. 83b; 76 E.R. 1061.
- 271.
Street, Vol. 2, 263; Gorton, vol. 43, 65.
- 272.
Holmes, Ed. by Mark De Wolfe Howe, 142. But in the gratuitous bailment, the bailee could evade liability if prior to taking possession of the goods, he had expressly rejected responsibility for them; Fletcher, 27.
- 273.
Fletcher, 32.
- 274.
Holmes, Ed. by Mark De Wolfe Howe, 142.
- 275.
Street, Vol. 2, 265–266. In two cases in 17th century robbery was accepted as a good plea: Williams v. Hide (1628) and Vere v. Smith (1661).
- 276.
86 E.R. 129.
- 277.
Street, Vol. 2, 269.
- 278.
A. D. Hughes, Casebook on carriage of goods by sea, 2nd edn. (London: Blackstone, 1999), at 4: “In the Bukton v Tounesende (the Humber Ferryman) YB 22 Liber Assisarum No. 41, f.94 (1348), there were some rules protecting the customers and would-be customers of those who performed the ‘common callings’, including innkeepers and common carriers.”
- 279.
(1703) 2 Lord Raymond 909, 92 E.R. 107, 90 E.R. 971 (1703).
- 280.
Gorton, vol. 43, 59.
- 281.
Ibid., 66.
- 282.
Holmes, Ed. by Mark De Wolfe Howe, 149.
- 283.
90 E.R. 971 (1703).
- 284.
J. H. Beale, JR., ‘The Carrier's Liability: Its History’ (1897) 11, Harvard Law Review, 158–68, 163.
- 285.
Story, 465.
- 286.
Basedow, at 5: “Perhaps the better view is that the special obligations of the common callings were worked out during and not before the development of assumpsit, subsequent to the introduction of the action sur le case in 1285.”
- 287.
Story, 461 See Jones on Bailment at 103–104.
- 288.
Holmes, Ed. by Mark De Wolfe Howe, 155, 157.
- 289.
R. Zimmermann, ‘Europa und das römische Recht’ (2002) 202, Archiv für die civilistische Praxis, 243–316., 291–292; Gorton, Vol. 43, 60.
- 290.
Nugent v. Smith (1875) 1 C.P.D. 19, Brett J., at 28–29.
- 291.
Dig. 4.9.1.1, See supra bb) The reason for the Edict.
- 292.
12 Modern 472(1706); 88 ER 1458.
- 293.
Ibid., 481–481.
- 294.
See Gibbon v. Paynton 98 E.R. 199; (1769) 4 Burrow 2298. “…a common carrier, in respect of the premium he is to receive, runs the risk of them, and must make good the loss, though it happen without any fault in him; the reward making him answerable for their safe delivery.”
- 295.
Street, Vol. 2, 301.
- 296.
99 E.R. 953, (1785) 1 Term Reports 27.
- 297.
Street, Vol. 2, 302.
- 298.
J. C. B. Campbell, The lives of the chief justices of England: from the Norman conquest till the death of Mansfield, 2 vols. (Philadelphia, 1851), vol. 2, at 258: “While at Oxford he attended lectures on the Pandects of Justinian, and during his working life he maintained that Roman civil law to be the foundation of jurisprudence.”; Street, Vol. 2., 141; Burdick., at 76–77: “Mansfield was accused by his enemies of introducing into English Law principles unknown to its courts. ‘The Roman code, the law of nations, and the opinions of foreign civilians are your perpetual theme,’ said one of the letters of ‘Junius’.”
- 299.
Kent, II, 1–2.
- 300.
(1759) 2 Burr. 882, 889–890.
- 301.
Kent, Vol. III, at 17: “…the treatises of Roccus, the laws of Wisby the maritime ordinances of Louis XIV, and the commentary of Valin.”; Campbell, Vol. 2., at 258: “He thoroughly grounded himself in ancient and modern history by a perusal of the most eminent original historians.”
- 302.
(1759) 2 Burr 887; Kent, II. Vol. III, 1; Street, Vol. 2, 331; Campbell, Vol. 2, at 249: “Cicero indeed was his favorite, whose work Lord Mansfield translated into English while studying at Oxford.”
- 303.
See supra note 296, at 956 or 33.
- 304.
Custom of the realm was used as a synonym of common law. See Nugent v. Smith (1875) 1 C.P.D. 19, at 23; Gorton, vol. 43, 101.
- 305.
130 E.R. 1044; (1828) 5 Bingham 217. Best C.J. said at 220: “When goods are delivered to a carrier, they are usually no longer under the eye of the owner; he seldom follows, or sends any servants with them, to the place of their destinations. If they should be lost or injured by the grossest negligence of the carrier or his servants, or stolen by them, or by thieves in collusion with them, the owner would be unable to prove either of these causes of loss. His witnesses must be the carrier’s servants; and they, knowing that they could not be contradicted, would excuse their masters and themselves. To give due security to property, the law has added to that responsibility of a carrier which immediately arises out of his contract to carry for a reward, namely, that of taking all reasonable care of it, the responsibility of an insurer. From his liability as an insurer, the carrier is only to be relieved by two things both so well known to all the country, when they happen, that no person would be so rash as to attempt to prove that they had happened when they had not, namely, the act of God, and the King´s enemies.”
- 306.
Beale, JR., 168.
- 307.
Kent, Vol. II, 600. Boucher v. Lawson (1815) Cas T H 194; Story, 482.
- 308.
(1793) 5 T.R. 389, at 399 judge Grose said: “The law, which makes carriers answerable as insurers, is indeed a hard law: but it is founded on wisdom, and was established to prevent fraud. But it seems to me, that it would be of little importance to determine that carriers were liable as insurers, unless they were also bound to see that the goods were carried home to their place of destination; since as many frauds may be practised [sic] in the delivery as in the carriage of them.”
- 309.
Kent, Vol. III, 350.
- 310.
Ibid. Vol. III, 351–353; also in Story, 496.
- 311.
Story, 462. See Jones on Bailm., at 107; Amies v. Stevens, 1 Str. 128.
- 312.
Ibid., 463.
- 313.
Ibid., 463.
- 314.
Kent, Vol. II, 598, 604.
- 315.
Ibid.
- 316.
(1875) 1 C.P.D. 19, at 24: “The reason of the implied promise, given by Lord Holt in Coggs v. Bernard, and by Best, C. J., in Riley v. Horne, founded on the reason on which the Prætor allowed the exceptional liability of ship-masters, inn-keepers, &c., applies at least quite as strongly to the part of the carriage by sea beyond the realm as to the part within it.”; See also Story, 461; Gorton, vol. 43., 64.
- 317.
Ibid., at 29–30: “…but the exception [of common carriers liability], both in the Roman Empire and in England, was no natural exception, but one depending entirely on public policy, arising from the manner in which some particular kinds of business were carried on in both places… The two trades, therefore, carried on in England under the same conditions as the three enumerated in the edict, were, the ship-masters and innkeepers. The conditions which had induced the Prætor as matter of policy to hold them to a strict liability in Rome were the same conditions as existed in the mode of carrying on the same business in England.”
- 318.
Fletcher, 3.
- 319.
W. Holdsworth, A History of English Law, 4th. reprint. (London: Mathuen & Co. Ltd., 1936), vol. 2, 468.
- 320.
Basedow, 6, note 20, See. Holdsworth, Vol. 2, 468–69.
- 321.
Holdsworth, Vol. 2, 469.
- 322.
R. H. Graveson, ‘The Spirit of English Law’ (1948) Vol. 60, The Juridical Review, 83–105, 100.
- 323.
Ibid., 89.
- 324.
Ibid., 89–90.
- 325.
Gordley, 69–70. The works of the scholastics in unifying the Greek philosophy, Thomistic morality and Roman law, started at the beginning of the sixteenth century with the founder of the Spanish natural law school, the Dominican Francisco de Vitoria and his pupils Diego Covarruvias (1512–1577) and Domingo de Soto (1494–1560), and were completed by the end of the same century with the work of the Jesuits Francisco Suarez (1548–1617), Luis de Molina (1535–1600) and Leonard Lessius (1554–1623).
- 326.
Ibid., 71.
- 327.
Ibid., at 71: “Indeed, the doctrines remained much the same in the work of his successors, Samuel Pufendorf (1632–1694) and Jean Barbeyrac (1674–1744), and in that of the French jurists Jean Domat (1625–1695) and Robert Pothier (1699–1772), who were to have a great influence both on the drafters of the French Civil Code and on the nineteenth-century common lawyers.”
- 328.
Campbell, Vol. 2, 235, 253, 254, 258. He is remembered for applying ethics diligently and recommending the philosophical works of Cicero. On international law, he gave full recognition to the ideas of Hugo Grotius. Besides knowing his legal theories, he had a special interest in reading the juridical writers of France, probably Domat and Pothier, successors of Grotius in the northern school of law; Street, Vol. 2. 143–44. He even observed moral obligation as a source of consideration, giving origin to the theory of moral consideration, which he held as enough in itself to support a promise. Though this theory did not last longer, it was recognized for many years after his death, but apparently not exactly in maritime cases.
- 329.
Kent, Vol. III, 17.
- 330.
Ibid.
- 331.
Ibid., Vol. II, 602.
- 332.
Basedow, 6.
- 333.
Ibid., 7. See Asterburn, The Origin and First Test of Public Callings, 75 U. Pa. L. Rev. 411, 420 (1926).
- 334.
Ibid., at 5: “The special duties of the common callings were based on an implied assumpsit on their part. The ‘holding out’ to the general public was regarded as a general or universal assumpsit of both serving the public without discrimination and carrying out this service carefully.”
- 335.
Ibid., 7.
- 336.
Ibid., 7.
- 337.
Ibid., 8.
- 338.
Ibid., 8. See Holmes, Common Carriers and the Common Law, 13 Am. L. Rev. 611 (1879).
- 339.
Ibid., at 8: “The English feudal society, during the 17th and 18th centuries, spent only part of the year on the land from which it derived its income. For much of the year the nobility lived in towns supported by income from the surrounding estates. Hence, the aristocracy depended heavily upon both the availability and the safety of the carriage for passenger and goods. The movement of commodities could not be entrusted to the arbitrary, profit-oriented decisions of those engaged in the industry. The liability of the carrier had to be tightened to forestall collusion with thieves. Although the same danger existed with respect to other bailees, they were less important to the nobility. The professions which survived as common callings into the 19th century can be easily linked to the infrastructure of transportation.”
- 340.
See supra note 317.
- 341.
See supra note 88 and accompanying text.
- 342.
Kent, Vol. II, 602.
- 343.
Graveson, 100.
- 344.
Gordley, 214.
- 345.
Graveson, at 84: “It was that Austin’s analytical approach was in itself restricted to concrete rules an principles or law rather than the deeper cohesive and synthetic force lying equally behind the legislative command and its judicial execution. Austin’s strong, beneficial and lasting influence on the development of jurisprudential thought in England lay within the bounds of his self-imposed limitations.”
- 346.
Ibid., 85–86.
- 347.
Gordley, 214. See Williston, ‘Freedom of Contract’, Cornell Law Quarterly, 6 (1921), 365, at 366–369.
- 348.
Ibid., 214.
- 349.
Graveson, 92.
- 350.
Gold, 119.
- 351.
Ibid., 119.
- 352.
Ibid., 95.
- 353.
Ibid., 91–92.
- 354.
Ibid., 91–92.
- 355.
E. P. Wheeler, The modern law of carriers: The limitation of the common-law liability of common carriers under the law merchant, statutes and special contracts. (New York: Baker, Voorhis & Co., 1890), 2.
- 356.
Ibid., 2.
- 357.
D. Rabe, Seehandelsrecht: Fünftes Buch des Handelsgesetzbuches: mit Nebenvorschriften und Internationalen Übereinkommen, 4th edn. (München: C. H. Beck, 2000), 299.
- 358.
Gold, 118.
- 359.
Ibid., 118–119.
- 360.
Story, 489; Fletcher, 52.
- 361.
Fletcher, 52, at 86: “The earliest reference to an exception expressly exempting the master from liability occurs in 1545 in the record of Holderness v. Elderness.”
- 362.
Ibid. Concretely about carriers, Fletcher mentions two cases from the 17th Century where these clauses were accepted, at 179: “…such a right was recognized by Lord Coke as available to any bailee; it was judicially confirmed in Kenrig v. Eggleston, (1648) and later by Sir Matthew Hale in Morse v. Slue, (1671)”; Colinvaux., at 627 also cites Paradine v. Jane (1647).
- 363.
Kent, Vol. II, 607.
- 364.
Basedow, 18; Also Wheeler, 75, See Covington v. Willan, Gow 115 (1819) and Peek v. North Staffordshire R. Co., 10 House of Lords Ca. 473 (1863).
- 365.
Kent, Vol. II, 607.
- 366.
Ibid. It is concluded from the language of the courts in the cases Bodenham v. Bennet 4 Price Exch. 31, and Garnett v. Willan, 5 B. & Ald. 53.
- 367.
Riley v. Horne 130 E.R. 1044; (1828) 5 Bingham 217, 225.
- 368.
Report of the Imperial Shipping Committee on the Limitation of Shipowner’s Liability by Clauses in Bills of Lading and on Certain Other Matters Relating to Bill of Ladings (1921), 7, reprinted by Sturley in The Legislative History…, Vol. 2, 135.
- 369.
R. P. Colinvaux, The Carriage of Goods by Sea Act, 1924 (London: Stevens & Sons Limited, 1954), 1.
- 370.
Knauth, 116.
- 371.
Ibid., 120.
- 372.
As cited by Colinvaux, 1.
- 373.
M. F. Sturley, ‘The History of COGSA and the Hague Rules”’ (1991) 22, Journal of Maritime Law and Commerce, 1–57, 5.
- 374.
Ibid., 5; Knauth, 119.
- 375.
Kent, Vol. II, 607–608. Smith v. Horne, 8 Taunt. 144.
- 376.
Gold, 119, at 121: “For some reason, the shipping industry has always taken an almost perverse pride in maintaining that cruel discipline, inhuman conditions, and inadequate compensation provided the only environment in which sailors could adequately perform their work. It was in a time when there was not international safety regulation, and few national rules, where only some tacit rules stated mostly for the benefit of by underwriters that seek to reduce their risks.” See Fayle, History of World´s Shipping Industry, pp. 286–287.
- 377.
The International Law Association was founded in 1873 with the original name of Association for the Reform and Codification of the Law of Nations. In 1895, it changed to the present name.
- 378.
Knauth, 119.
- 379.
Sturley, The History of COGSA…, 7.
- 380.
Ibid., 7.
- 381.
Int´l Law Association, Report of the Tenth Annual Conference held at Liverpool August 8th–11th, 1882, at 104, reprinted in The Legislative History…, Vol. 2, 62. The Conference form stated: “…Ship not answerable for losses through Explosion, bursting of Boilers, breakage of Shafts, or any latent defect in the Machinery or Hull, not resulting from want of due diligence by the Owner of the Ship, or any of them, or by the Ship’s Husband or Manager;…”.
- 382.
Ibid., 77 reprinted in The Legislative History…, Vol. 2, 35.
- 383.
Ibid., 104, reprinted in The Legislative History…, Vol. 2, 62.
- 384.
Ibid, 77 reprinted in The Legislative History…, Vol. 2, 35. Mr. Richard Lownders, President of the Liverpool Chamber of Commerce and Deputy-Chairman of the Committee and Chairman of the Liverpool Committee, presented an interesting exposition on this issue: “…Every year harbours and roadsteads and particular ocean-tracks are more and more crowded, the pace of steamship is more rapid, and, perhaps not least formidable, Board of Trade inquiries grow more penetrating and ingenious. If an unfortunate captain or officer, however well certificated, in the course of a long voyage makes one mistake, the chances of its doing damage, and the chances of its being found out, are vastly more that they used to be; and, what a shipowner naturally does not like, the chances of his being called upon to pay for a valuable cargo are in the same proportion more that they ever used to be. Nor can it even be said that a shipowner has had time in the course of centuries to get to this infliction, and hardened against it, for, in truth, it is only of late years –only since two decisions of our Courts not more that twenty years old –that this liability for sea perils, occasioned by the faults of seaman, has been brought home to the shipowners.”
- 385.
Sturley, The History of COGSA…, 7.
- 386.
Ibid., 7–8.
- 387.
International Law Association, Report of the Tenth Annual Conference held at Hamburg August 18th–21th, 1885, reprinted in The Legislative History…, Vol. 2, 73.
- 388.
Ibid., 165, reprinted in The Legislative History…, Vol. 2, 122.
- 389.
Ibid., 76, reprinted in The Legislative History…,Vol. 2, at 90. In this regard, the proposal of the chairman of the committee gives some reasoning for such an amendment: “Dr. Wendt proposed that the words ‘the act, neglect, or default’, in the phrase “act, neglect, or default of the master or crew in navigating the vessels,” be omitted, and replaced by the words “error of judgment.” Although he did not think it necessary to give all his reasons for doing so, he might state that the experience he had gained by his investigations into maritime casualties for many years past, enabled him to assure the Conference that at least nine-tenth of all such disasters as stranding, collisions at sea, and so forth, were due to some neglect or other of the crew which might be prevented if due diligence were exercised. He therefore thought that such ‘neglect or default’ the shipowner ought to be made answerable, but not for mere ‘error of judgment’.”
- 390.
Ibid., 165, Rule II, reprinted in The Legislative History…, Vol. 2, 122.
- 391.
Sturley, The History of COGSA…, 8.
- 392.
Ibid., at 8: “A few German companies adopted the rules but elsewhere they had little immediate impact. In 1887, the Association “rescinded” them and reaffirmed the principles of the Conference form. The format of the Hamburg Rules nevertheless remained persuasive, and future efforts at achieving uniformity did so through uniform rules rather that a model bill of lading.”
- 393.
Knauth, 120.
- 394.
Ibid., 120.
- 395.
Kent, Vol. III, 1; Wheeler, 1.
- 396.
Wheeler, 1; Tetley, Interpretation and Construction…, 42; See 28 US Code s. 1333.
- 397.
Tetley, Interpretation and Construction…, 42, 46. They are bound under the principle of stare decisis.
- 398.
Kent, Vol. III, 17.
- 399.
Story, 470; Wheeler, 1.
- 400.
Gilmore and Black, JR., 140.
- 401.
Wheeler, 1; Gilmore and Black, JR., 140.
- 402.
6 John. 1709.
- 403.
10 John 1.
- 404.
C. Warren, History of the Harvard Law School and of early legal conditions in America (Union, N.J: Lawbook Exchange, 1999), 248.
- 405.
Kent, Vol. II, 608–609. Contractual exclusion of peril for the sea was allowed, but not for negligence.
- 406.
Ibid., 609: “It was further shown that the marine law of Europe went to the same extent, as did also the civil law, and the law of those nations in Europe which have made the civil law the basis of their municipal jurisprudence.
- 407.
47 U.S. (6 How.) 344, 12 L.Ed. 465 (1848).
- 408.
Ibid, 381.
- 409.
62 U.S. (21 How.) 7.
- 410.
Gorton, vol. 43, 20.
- 411.
See supra note 409, at 26: “[The] Duties remain to be performed by the owner, or the master as the agent of the owner, after the vessel is wrecked or disabled and after he has ascertained that he can neither procure another vessel nor repair his own, and those too of a very important character, arising immediately out of his original undertaking to carry the goods safely to their place of destination. His obligation to take all possible care of the goods still continues, and is by no means discharged or lessened, while it appears that the goods have not perished with the wreck, and certainly not where, as in this case, the vessel is only stranded on the beach.”
- 412.
Ibid, 27.
- 413.
Ibid., at 25: “Most of the rules of law prescribing the duties of a carrier for hire, and regulating the manner of their exercise, have existed for centuries, and they cannot be modified or relaxed except by the interposition of the legislative power of the Constitution. Time and experience have shown their value and demonstrated their utility and justice, and they ought not and cannot be changed by the judiciary.”
- 414.
See Richelieu & O. Nav. Co. v. Boston Marine Ins. Co., 136 U. S. 408, 10 Sup. Ct. 934 (1890); The Edwin I. Morrison, 153 U. S. 199, 14 Sup. Ct. 823 (1894); The Caledonia, 157 U. S. 124, 15 Sup. Ct. 537. (1895); The Irrawaddy, 171 U. S. 192, 193, sub nom. Flint v. Christall, 43 L.Ed. 132, 18 Sup. Ct. Rep. 833 (1898).
- 415.
19 Wend. 251, 32 Am. Dec. 470.
- 416.
Sturley, The History of COGSA…, 5–6.
- 417.
4 Sandford, 136.
- 418.
17 Wall. 357 (1873).
- 419.
Ibid., 377.
- 420.
Ibid., 380.
- 421.
Ibid., 368.
- 422.
Ibid., at 381: “Conceding, therefore, that special contracts, made by common carriers with their customer, limiting their liability, are good and valid so far as they are just and reasonable; to the extent, for example, of excusing them for all losses happening by accident, without any negligence or fraud on their part; when they ask to go still further, and to be excused for negligence –an excuse so repugnant to the law of their foundation and to the public good – they have no longer any plea of justice or reason to support such a stipulation, but the contrary.” Citing also: Express Co. v. Caldwell, 21 Wall. 264, 268 (1874); Railroad Co. v. Pratt, 22 Wall. 123, 134 (1874); Bank v. Express Co., 93 U. S. 174, 183 (1876); Railway Co. v. Stevens, 95 U. S. 655 (1877); Hart v. Pennsylvania Railroad Co., 112 U. S. 331, 338, 5 Sup. Ct. Rep. 151 (1884); Phoenix Ins. Co. v. Erie & Western Transp. Co., 117 U. S. 312, 322, 6 Sup. Ct. Rep. 750, 1176, 29 L.Ed. 873 (U.S.Wis. 1886); Inman v. South Carolina Ry. Co., 129 U. S. 128, ante, 249 (1889).
- 423.
Colinvaux, at 1: “… since 1870’s, the courts resolutely refused to enforce unreasonable conditions in bills of lading.”; Schoenbaum and Yiannopoulos, 365.
- 424.
In The Titania 1883 19 F. 101 (D.C.N.Y.), at 103–104 Judge Brown said: “But although, under the English decisions, it seems to be settled that ship-owners may exempt themselves from damages caused even by their own negligence, provided this intention be unequivocally expressed, yet such causes of special exemption, being inserted for the benefit of the ship-owner, are construed most favorably to the shipper and most strongly against the ship-owner, and will not be held to embrace the latter's own negligence, unless that be specially excepted in connection with the actual cause of the loss.”
- 425.
Schoenbaum and Yiannopoulos, 365.
- 426.
129 U.S. 397, 9 S.Ct. 469, 32 L.Ed. 788.
- 427.
129 U.S. 397, 441–442. Similar statement was made later in: The Kensington, 183 U.S. 263, 268 (1902). See also Wheeler, 77; Colinvaux, 1.
- 428.
Wheeler, 82.
- 429.
Knauth, at 119 cites: “Rubens vs. Ludgate Hill S.S.Co. (1892), 1st Dept., 65 Hun 625, 20 N.Y. Supp. 481 at 185–186, affirmed without opinion (1894), 143 N.Y. 629. See Robertson vs. National S.S.Co. (1891), 139 N.Y. 416 and Gleadhill vs. Thompson (1874), 56 N.Y. 194.”
- 430.
Colinvaux, 2.
- 431.
Ibid., 2.
- 432.
Ibid., 2.
- 433.
Knauth, 119.
- 434.
D. C. Frederick, ‘The Political participation and legal reform in the international maritime rulemaking process: from the HR to the Hamburg rules’ (1991) 22, Journal of Maritime Law and Commerce, 81–117, 84, citing S. Dor, Bill of Lading Clauses and the Brussels International Convention of 1924 (Hague Rules) 17 (2d ed. 1960); Sturley, The History of COGSA…, 10–11.
- 435.
Knauth, 119.
- 436.
Sturley, The History of COGSA…, 12.
- 437.
Ibid., 12.
- 438.
Knauth, 120.
- 439.
As cited by Knauth at 121.
- 440.
Ibid., 121.
- 441.
Ibid., 121.
- 442.
Harter Act 1893 section §192: “…danger of the sea or other navigable waters, acts of God, or public enemies, or the inherent defect, quality, or vice of the thing carried, or from insufficient package, or seizures under legal process, or for losses resulting from any act or omission of the shipper or owner of the goods, his agent or representative or attempting to save life or property at sea, or from any deviation in rendering such service.”
- 443.
Harter Act of 1893 at 46 U.S.C. §§190–191.
- 444.
161 U.S. 459, 16 S.Ct. 516, 2010 A.M.C. 1803, 40 L.Ed. 771, at 471 or 1813: “It is entirely clear, however, that the whole object of the act is to modify the relations previously existing between the vessel and her cargo. This is apparent not only from the title of the act, but from its general tenor and provisions, which are evidently designed to fix the relations between the cargo and the vessel, and to prohibit contracts restricting the liability of the vessel and owners in certain particulars connected with the construction, repair, and outfit of the vessel, and the care and delivery of the cargo.”
- 445.
See supra c) Results of these Conferences.
- 446.
See The Carib Prince, 170 U. S. 655, 42 L. Ed. 1181, 18 Sup. Ct. Rep. 753. (1898).
- 447.
171 U. S. 192, 193, sub nom. Flint v. Christall, 43 L. Ed. 132, 18 Sup. Ct. Rep. 833.
- 448.
At 192–193 the Court said: “Plainly, the main purposes of the act were to relieve the shipowner from liability for latent defects, not discoverable by the utmost care and diligence, and, in event that he has exercised due diligence to make his vessel seaworthy, to exempt him and the ship from responsibility for damage or loss resulting from faults or errors in navigation or in the management of the vessel.”
- 449.
See supra note 384.
- 450.
Harter Act of 1893 at 46 U.S.C. §§190–191.
- 451.
In the Martin v. Southwark 191 U.S. 1, 24 S.Ct. 1, at 2 or 7: “Section 3 must be read with §2 to effectuate the purpose of the act, and shows an intention upon the part of Congress to relax, in certain respects, the harshness of the previous rules of obligation upon shipowners,…”.
- 452.
Knauth, 122.
- 453.
Ibid., 122.
- 454.
Ibid., 122.
- 455.
Colinvaux, 4.
- 456.
Ibid., 4. See RE Missouri S.S. Co. (1889) 42 Ch. D. 321; Jones v. Oceanic S.N. Co. [1924] 2 K.B. 730.
- 457.
Knauth, at 122: “The situation in England, where much of the damage litigation naturally centered because the preponderant marine insurance and ship-owning interest, did not, however, develop in a manner equally satisfactory to the owners and underwriters of cargo.”
- 458.
In McFadden v. Blue Star Line (1905) 1 K.B. 697, Judge Chanell said at 706–707: “Therefore, it seems to me that I must hold that the defect was a substantial one, and that as it existed before and at the time of the loading of the goods it amounted to a breach of the warranty, unless the incorporation of the Harter Act in the bill of lading makes any difference. Then does the incorporation of that Act make any difference? For the purposes of this question I will assume that there was no negligence in the packing of the valve-chest, though I do not decide that point one way or the other. Is the absence of negligence material? In other words, does the incorporation of the Harter Act have the effect of cutting down the absolute warranty of fitness to an undertaking to exercise due diligence to make the ship fit? In my opinion it does not.”
- 459.
Gold, 96.
- 460.
Ibid., 96. See Zimmerman, E. W., Ocean Shipping, New York: Prentice-Hall, 1922, 220 ff.
- 461.
Sturley, The History of COGSA…, 18.
- 462.
Ibid., 18.
- 463.
Frederick, 85.
- 464.
Sturley, The History of COGSA…, 19.
- 465.
Knauth, 124.
- 466.
J. C. Sweeney, ‘The UNCITRAL Draft Convention on Carriage of Good by Sea (Part I)’ (1975–1976) 7, Journal of Maritime Law and Commerce, 69–125, 71.
- 467.
Frederick, 86, 107. This situation was used by the cargo owners of Canada, Australia and New Zealand “to press for equity in commercial maritime transactions.”
- 468.
Basedow, 41.
- 469.
A. Q. Diamond, ‘The Hague-Visby Rules’ ([1978]) 2, Lloyd's Maritime and Commercial Law Quarterly, 225–66, 227.
- 470.
Knauth, 120.
- 471.
Frederick, 85.
- 472.
Diamond, 227; Frederick, at 90: Sir Norman Hill who represented the Liverpool Steamshipowners Association and was the leader spokesman during various of the discussions that preceded the HR, expressed “‘his personal conviction’ that the ‘mutual rights [of the parties] to make their bargains without legislative interference’ served the best interest of all.” See Report of the Thirtieth Conference of the International Law Association at xxxix, reprinted in The Legislative History…, Vol. 1, 94.
- 473.
Clarke, 3.
- 474.
Diamond, at 227: “The only freedom of the shipper was to take the bill of lading or to leave it. And in view of the Conference system even the latter freedom was often illusory”.
- 475.
Ibid., 227.
- 476.
Clarke, 4. citing Markianos, 22–23, Cole, 11, Guyon no. 5.
- 477.
Knauth, 120; Frederick., 83. See Report of the Thirtieth Conference of the International Law Association, 52–53, reprinted in The Legislative History…, Vol. 1, 158–159.
- 478.
Diamond, 227.
- 479.
Clarke, 4.
- 480.
Ibid., 4.
- 481.
Sturley, The History of COGSA…, 19.
- 482.
Ibid., 19.
- 483.
Colinvaux, 7; Diamond, 227.
- 484.
Diamond, at 227: “It was this later objective which motivated the attempts made by the British Government both through the International Law Association and at a diplomatic level to secure an international treaty whereby as many contracting States as possible would bind themselves to introduce uniform legislation acceptable to all of them. It was the judgment of many people in the mid-1950s that, in securing the Brussels Convention of 1924, the U.K. Government had managed to combine self-interest with the implementation of the greatest good for the greatest number.”
- 485.
Clarke, 4.
- 486.
Ibid., 4.
- 487.
Sturley, The History of COGSA…, 30.
- 488.
Frederick, 88.
- 489.
Ibid., 93. The chairman of the 1921 Hague meeting, Sir Henry Duke said on this regards: “In any Convention in which nations were represented they would vote by nations. We represent interests. In any context or in any discussion in which they were represented they would express their views by interests. But the usage of the Association, as I have learned, and the usage of the Committee is, that the votes are given by individuals.” See Hague Conference Report at 9, reprinted in 1 Legislative History, at. 115.
- 490.
Sturley, The History of COGSA…, 31–32.
- 491.
Karan, 27. See CMI Yearbook (1992), 40.
- 492.
Tetley, Interpretation and Construction…, 37.
- 493.
Clarke, at 124: “The warranty was, in fact, superfluous as Ripert observes.”
- 494.
Ibid., 124.
- 495.
Ibid., 124. See Propeller Niagara v. Cordes (1858) 62 U.S. (21 How) 7, 23.
- 496.
Ibid., 125. See Steel v. State Line (1877) 3 App. Cas. 72, 76.
- 497.
Ibid., 124.
- 498.
Ibid., 124.
- 499.
M. F. Sturley, T. Fujita and G. J. d. van Ziel, The Rotterdam rules: The UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (London: Sweet & Maxwell, 2010), 78.
- 500.
Wilson, 187.
- 501.
R. Force, ‘A comparison of the Hague, Hague-Visby and the Hamburg Rules: Much Ado About (?)’ (1996) 70, Tulane Law Review, 2051–89, 2061.
- 502.
Ibid., 2061.
- 503.
The HR, Article 4, paragraph 2, literal (a): “2. Neither the carrier nor the sip shall be liable for loss or damage arising or resulting from: (a) Act, neglect, or default of the master, mariner, pilot, of the servants of the carrier in the navigation or in the management of the ship.”
- 504.
Sweeney, 72; The HR, Article 4, paragraph 2.
- 505.
Diamond, 227.
- 506.
Billah, M. M., Effects of insurance on maritime liability law: A legal and economic analysis (Cham: Springer, 2014), 11.
- 507.
J. O. Honnold, ‘Ocean Carriers and Cargo; Clarity and Fairness --Hague or Hamburg?’ (1993) 24, Journal of Maritime Law and Commerce, 75–109, 101.
- 508.
The HR, Article 4, paragraph 5(a).
- 509.
Tetley, Interpretation and Construction…, 37.
- 510.
Ibid., 37.
- 511.
Wilson, 187.
- 512.
Karan, 27.
- 513.
[1961] AC 807 at 836, [1961] 1 Lloyd’s Rep. 57 at, 67. In the United States See also The Asturias 40 F. Supp. 168, 169, 1941 A.M.C. 761, 762 (S.D.N.Y. 1941): “The purpose of the Act is to create international uniformity”; Senator Linie GmbH v. Sunway Line, Inc. 291 F.3d 145 at 158, 2002 A.M.C. 1217 at 1232 (2nd Cir. 2002): “One important aspect of the international agreement [The Brussels Convention 1924] and its United States counterpart [COGSA 1936] is the standardization of liability expectations.”, as quoted by Tetley, Interpretation and Construction…, 57–58.
- 514.
Honnold, 101; See Sturley, “International Uniform Laws in National Courts” 27 Va. J. Int’l L. 729, 774–796 (1987).
- 515.
Frederick, 96.
- 516.
Diamond, Anthony QC. “Responsibility for Loss of, or Damage to, Cargo on a Sea Transit: the Hague or Hamburg Convention?” in P. S. K. Koh, Carriage of goods by sea (Singapore: Butterworths, 1986), 110.
- 517.
[1998] AC 605 at 621, [1998] 1 Lloyd’s Rep. 337, 346, 1998 A.M.C. 1050 at 1065 (HL), as quoted by Tetley, Interpretation and Construction…, 62.
- 518.
422 F2d. 7, 11, 1969 A.M.C. 1741, 1746(2nd Cir. 1969), [1969] 2 Lloyd´s Rep. 536, cert. denied, 397 US 964, 1971 A.M.C. 813 (1970), as quoted by Tetley, Interpretation and Construction…, 63. See also Senator Linie GmbH v. Sunway Line, Inc., see supra note 513, at 158: “In essence, the purpose of these laws is to allow international maritime actors to operate with greater efficiency under a mantle of fairness.”
- 519.
Diamond, 226, 231–232.
- 520.
Karan, 27; Tetley, Interpretation and Construction…, 62.
- 521.
Diamond, 226.
- 522.
Zimmermann, 521.
- 523.
Tetley, Interpretation and Construction…, 62.
- 524.
Ibid., 62. quoting Senator Linie GmbH v. Sunway Line, Inc. See supra note 513. It is about the liability for dangerous goods, and Caemint Food v. Lloyd’s Brasileiro 647 F. 2d 347, 1981 A.M.C. 1801 (2nd Cir. 1981), on defective packages.
- 525.
Diamond, at 227: “It was the judgment of many people in the mid-1950s that, in securing the Brussels Convention of 1924, the U.K. Government had managed to combine self-interest with the implementation of the greatest good for the greatest number. The Convention seemed, on the one hand, a diplomatic coup of the first order; on the other hand, the beneficial instrument which had finally brought about the desirable aim of the standardization of bill of lading clauses.”
- 526.
Sweeney, 74. It was even part of the developed countries objections. Such balance in favor of shipowners “must necessarily have affected the cost of insurance, although no compensation is given by way of lower rates for shippers.”
- 527.
UNCTAD, Bills of Lading: Report by the Secretariat of UNCTAD (1971).
- 528.
Ibid., 18, at para. 80: “In part, this arises from the fact that through both specific provisions and omissions, the Hague Rules provide what appears to be an excessive number of opportunities for the shipowner to avoid, legally, liability for loss of cargo and so to reject the claim made by the cargo owner.”
- 529.
Honnold, 107. See Kindred, at 613–614; O’Hare, Allocating Risk, 143–144, 152. Hellawel at 363–365; M. F. Sturley, ‘Changing Liability Rules and Marine Insurance: Conflicting Empirical Arguments About Hague, Visby, and Hamburg in a Vacuum of Empirical Evidence’ (1993) 24, Journal of Maritime Law and Commerce, 119–49.
- 530.
Diamond, 228.
- 531.
Frederick, 104. Indeed, something that has been noticed by some authors is the great influence of English shipowners in the adoption of this Convention. Diamond reported the concern of the British Government in defending the carriers’ interests during the negotiations, See supra note 575; Knauth pointed out the influence of the British shipowner in the British Parliament, See supra note 561.
- 532.
Colinvaux, at v, commenting on the incorporation of the HR language into the English COGSA of 1924, he criticizes its ambiguity as follow: “No document gives more scope for ingenuity in its interpretation than a statute which attempts to incorporate into English law the terms of an International Convention. A well drafted enactment like the Sale of Goods Act, 1893, has the effect of crystallizing the law within a few decades; one such as the Carriage of Goods by Sea Act, 1924 puts it into confusion indefinitely. Now, nearly thirty years later, every month sees some new and insoluble problem arising under it.”
- 533.
Honnold, 101. See Gröforns, The Hamburg Rules 1978 J. Bus. L. 334, 335.
- 534.
Ibid., 101. Quoting a Norwegian Ministry of Justice. See Selvig, The Hamburg Rules, the Hague Rules and Maritime Insurance Practice, 12 J. Mar. L. & Com. 299, 302 (1981).
- 535.
Diamond, 228.
- 536.
Frederick, 99. See Andreani, Revision of the Hague Rules, Activities of UNCTAD and UNCITRAL and Developing Countries, in Studies on the Revision of the Brussels Convention on Bills of lading (F. Berlingeri ed. 1974), 45.
- 537.
Frederick, 105.
- 538.
Honnold, 101.
- 539.
Frederick, 85. This author reports that the influence of British Shipowners existed even in the English judiciary.
- 540.
Frederick, 99.
- 541.
Honnold, 107.
- 542.
Diamond, 232.
- 543.
Ibid., at 232: “The greatest test cases on the Rules had mostly been determined and were seen to be very few in number, as compared with the great volumes of cargo claims where the Rules could be satisfactorily applied without the need for litigation.”
- 544.
Frederick, 94.
- 545.
Sweeney, 73. Since 1959 the amendment to the rules were discussed in the Plenary Conference of the CMI in Rijeka. The process took 4 year of discussion until the adoption of the final draft in the CMI conference of 1967 in Stockholm.
- 546.
The Visby Protocol Article V(b) and (c).
- 547.
[1961] A.C. 807, [1961] 1 Lloyd’s Rep. 57; Diamond, 231.
- 548.
Ibid., 231.
- 549.
It expands the time bar limitation of one year for claims based in deviation, fraud or fundamental breach; the total amount to be recoverable is based in the value of the goods in the port of destination; extension of the carrier´s rights to agent and servants, etc.
- 550.
Tetley, Interpretation and Construction…, 62.
- 551.
CMI Yearbook 2013, 605–606. Including also the Special Administrative Region of Hong Kong.
- 552.
Tetley, Interpretation and Construction…, 62.
- 553.
CMI Yearbook 2013, 607.
- 554.
Diamond, 234.
- 555.
UNCTAD, Bills of Lading: Report by the Secretariat…, 17, para. 73 (d).
- 556.
Frederick, 105.
- 557.
Honnold, 78.
- 558.
Ibid., 78.
- 559.
Diamond, 234.
- 560.
Sweeney, at 73: “Dissatisfaction of the developing world stems essentially from the belief that the operation of traditional maritime law (along with other aspects of international trade law) impairs the balance of payments position of developing states so as to insure continued poverty and perpetual under-development in an industrial age.”; Diamond, at 234: “The Hague Rules, it was so said, were a device of the colonialist powers designed to impoverish the developing world.” See also UNCTAD, Bills of Lading: Report by the Secretariat…, 30 para. 172–175.
- 561.
Frederick, 117.
- 562.
Diamond, 232.
- 563.
Ibid., 232.
- 564.
Honnold, 80.
- 565.
Koh, 116.
- 566.
Force, 2055.
- 567.
Wilson, 217.
- 568.
Honnold, 80.
- 569.
The HR Art.1(e) “Carriage of goods covers the period from the time when the goods are loaded on to the time they are discharge from the ship.”
- 570.
Honnold, 81.
- 571.
Ibid., 82.
- 572.
Ibid., 82.
- 573.
Ibid., 81–82. See Kindred, From Hague to Hamburg: International Regulation for the Carriage of Goods by Sea, 7 Dalhousie L.J. 585, 595.
- 574.
The Hamburg Rules Art. 4.1.
- 575.
Wilson, 216.
- 576.
Force, 2059.
- 577.
Honnold, 83.
- 578.
The Annex II of the same Hamburg Rules clearly states that: “It is the common understanding that the liability of the carrier under this Convention is based on the principle of presumed fault or neglect. This means that, as a rule, the burden of proof rests on the carrier but, with respect to certain cases, the provisions of the Convention modify this rule.”
- 579.
Force, 2063.
- 580.
Wilson, 217.
- 581.
Force, 2064.
- 582.
Tetley, Marine Cargo Claims, Vol. 1, 896.
- 583.
Wilson, 217.
- 584.
Frederick, 113. See Hellawell, Allocation Risk Between Cargo Owner and Carrier, 27 Am. J. Comp. L. 363 (1979).
- 585.
Force, 2066.
- 586.
Ibid., 2067.
- 587.
Ibid., 2067.
- 588.
Honnold, 105.
- 589.
Wilson, 217.
- 590.
Honnold, 98.
- 591.
The Hamburg Rules 5.4.
- 592.
The Hamburg Rules Articles 5.5 and 9.
- 593.
Tetley, Marine Cargo Claims, Vol. 1, 936.
- 594.
Force, 2085.
- 595.
Sturley, Fujita and van Ziel, 8.
- 596.
Force, 2087.
- 597.
Sturley, Changing Liability Rules…, 149.
- 598.
Ibid., 149.
- 599.
Honnold, 81.
- 600.
Ibid., 101. See a 1998 Bulleting of the Baltic and International Maritime Conference (BIMCO), where in addition it was stated that the Hamburg Rules “must be resisted at every opportunity”. Quoted by Waldron in The Hamburg Rules, 1991 J.B.L. 305, 318.
- 601.
Ibid., 102.
- 602.
T. Nikaki, ‘The Carrier's Duties Under the Rotterdam Rules: Better the Devil You Know?’ (2010) 35, Tulane Maritime Law Journal, 1–44, 3.
- 603.
United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (Vienna: United Nations, 2009).
- 604.
Nikaki, 5.
- 605.
Sturley, Fujita and van Ziel, 82.
- 606.
Article 1.1.
- 607.
Article 1.6(a) “‘Performing Party’ means a person other than the carrier that perform or undertakes to perform any of the carrier’s obligation under a contract of carriage with respect to the receipt, loading, handling, stowage, carriage, care, unloading or delivery of the goods, to the extent that such person acts, either directly or indirectly, at the carrier’s request or under the carrier’s supervision or control.”
- 608.
Article 1.7 “‘Maritime performing party’ means a performing party to the extent that it perform or undertakes to perform any of the carrier’s obligation during the period between the arrival of the goods at the port of loading of a ship and their departure from the port of discharge of a ship. An inland carrier is a maritime performing party only if it performs or undertakes to perform its services exclusively within a port area.”
- 609.
Articles 1.5; 1.6 (a) and 1.7.
- 610.
Girvin, 445.
- 611.
Sturley, Fujita and van Ziel, 82.
- 612.
Article 23 paragraph 2: “Notwithstanding paragraph 1 of this article, and without prejudice to the other provisions in chapter 4 and to chapters 5 to 7, the carrier and the shipper may agree that the loading, handling, stowing or unloading of the goods is to be performed by the shipper, the documentary shipper or the consignee. Such an agreement shall be referred to in the contract particulars.”
- 613.
Ibid., 82.
- 614.
Ibid., 82. He suggests the reading of the 9th Session Report para 117, 119.
- 615.
Girvin, 445–446.
- 616.
Ibid., 446.
- 617.
Ibid., 446.
- 618.
See supra note 597.
- 619.
Sturley, Fujita and van Ziel, 85.
- 620.
Ibid. “However, at sea, whether the due diligence obligation requires the carrier to instruct the ship to effect repairs or not would depend on several factors, including the extent of the leakage, the possibility of causing damage to the cargo, the delay that may be caused, the weather condition and the availability of skills within the crew to effect such repairs.”
- 621.
Y. Baatz, The Rotterdam Rules: A practical annotation (London: Informa Maritime Law, 2009) Michael Tsimplis “Obligation of the Carrier”, 39.
- 622.
Sturley, Fujita and van Ziel, 84.
- 623.
Mangone, 12.
- 624.
J.M. Alcantara, “The Grand Liability Unified Theory”, Scritti in Onore di Francesco Berlingieri, Il Diritto Marittimo, 2 Vols. (Genova, 2010) Vol. 1, 30.
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Chacón, V.H. (2017). The Origin of the Obligation of Practicing Due Diligence in Maritime Transportation. In: The Due Diligence in Maritime Transportation in the Technological Era. Springer Series on Naval Architecture, Marine Engineering, Shipbuilding and Shipping, vol 5. Springer, Cham. https://doi.org/10.1007/978-3-319-66002-8_2
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