Q. In what ways the Hague Rules and Hamburg rules had different object to be fulfilled?
In the pre Hague period the shipowners included many terms in the contract of carriage to favour them. The object of Hague Rules was to protect cargo owners from widespread exclusion of liability by sea carriers. The Hamburg rule however, were proposed by nations who thought that Hague-Visby Rules, were out of date, out of touch with technology, and favoured the powerful shipowning nations. The Hamburg Rules were introduced in 1978 by the United Nations to create a more equitable set of rules to govern the carriage of goods by sea.
Q. Who is carrier as per Hamburg rules? How is the definition different in Hague / HV rules?
Under Hamburg rules any person can be carrier provided he concludes contract of carriage of goods by sea with a shipper. He need not be a ship owner or charterer like in HV rules. In Hamburg rule, actual carrier may be different from carrier. “Actual carrier” defined in Hamburg rules means any person to whom the performance of the carriage of the goods, or of part of the carriage, has been entrusted by the carrier, and includes any other person to whom such performance has been entrusted.
Q. How is Goods defined in Hamburg / H-HV rules?
In HV rules ‘goods’ does not include live animals and Item which by the contract of carriage is,
1. stated as being carried on deck and
2. is so carried on deck.
Under Hamburg rules “Goods” includes live animals and consolidated or packed articles. The carrier is entitled to carry the goods on deck if;
1. such carriage is in accordance with an agreement with the shipper, or
2. with the usage of the particular trade, or
3. it is required by statutory rules or regulations. The insertion in B/L as carried on deck is important. If he fails to do above he will be liable for damages and delays even if he proves that reasonable measures were taken.
Q. What is the provision regarding contract of carriage in Hamburg / H-HV rules?
Under HV rules, contract must involve only carriage by sea and applies to contracts covered by;
1. B/L or similar DOT relating to carriage by sea, including.
2. B/L or similar DOT relating to carriage by sea issued under Ch Party.
Under Hamburg rules, in the definition of contract of carriage. B/L is not talked about. Contract may involve mode other than sea mode but applies only to sea part. The contract must have undertaking of payment of freight to carry goods from port to port.
Q. What is bills of lading?
“Bill of lading” means a document which evidences a contract of carriage by sea and also evidences the taking over or loading of the goods by the carrier, and by which the carrier undertakes to deliver the goods against surrender of the document. A provision in the document that the goods are to be delivered to the order of a named person, or to order, or to bearer, constitutes such an undertaking. (This means B/L apart from a document with other significances is a document that is evidence of contract of carriage rather than the contract itself. Also that it can be negotiable or non negotiable. Negotiable means it is like a currency note of value with holder’s name not written on it. Non negotiable is like a rigid delivery note where the name of beneficiary stated on it)
Q. Where in rules, the contents of Bills of Lading is discussed?
In H or HV rules the reference to B/L is in Art III para 3 & 4, where contents therein are are stated. In Hamburg rules, B/L is defined in article 1. Thus, BL:
1. Evidences contract of carriage.
2. Evidences taking over or loading by shipper.
3. Provides undertaking to deliver cargo to named or holder. Article 15 of Hambug Rules gives details regarding the contents of B/L.
Q. What is the provision in respect of applicability of Hague / Hague Visbey Hamburg rules?
Hague rules as well as HV rules talk about their application to B/Ls. Thus, Hague rules applied to B/Ls issued in the Contracting States. HV amendments applied to B/Ls which were for the carriage between two different States if:
(a) B/L is issued in a Contracting State, or
(b) Carriage is from a port in a Contracting State, or
(c) The evidenced contract provides for this Convention to govern the contract.
Hamburg rules talk about their application to the contract of carriage between two states. The Hamburg rules apply if contract is issued in contracting state; if contract provide load port in contracting state; or the evidencing B/L provides governance of these rules. Additionally, Hamburg rules also apply if port of discharge or one of the optional port of discharge as per contract is in contracting state. Provision has been made for facsimile and electronic transmission of bills of lading.
Q. Do these rules apply to charter parties?
Article V of HV rules states that the provisions of this Convention shall not be applicable to charter parties, but if bills of lading are issued in the case of a ship under a charter party, they shall comply with the terms of this Convention.
Hamburg rules are also not applicable to charter-parties. However, where a B/L is issued pursuant to a charter-party, the provisions apply in respect of the relation between the carrier and the holder of the B/L but not the charterer.
Q. What is the provision in respect of period of responsibility in the H/ HV / Hamburg rules?
Under the Hamburg rules the responsibility of the carrier for the goods covers the period during which the carrier is in charge of the goods at the port of loading, during the carriage and at the port of discharge. The Rules in fact cover the entire period of carriage even during transshipment. The Hague Visby Rules apply to the contract of carriage from the time when the goods are loaded on to the time they are discharged from the ship (Tackle to Tackle).
Q. Under Hague Visby rules what will help to decide or deny the liability of carrier for loss resulting from loss of or damage to the goods?
Under Hague Visby rules, the carrier shall be bound before and at the beginning of the voyage to exercise due diligence to:
(a) Make the ship seaworthy;
(b) Properly man, equip and supply the ship;
(c) Make the holds, refrigerating and cooled chambers and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation. The carrier shall properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried.
In Hamburg rules the responsibility of carrier not to cause loss or damage is stated in a negative way. Thus, it says, the carrier is liable for loss resulting from loss of or damage to the goods, as well as from delay in delivery, if the occurrence which caused the loss, damage or delay took place while the goods were in his charge, unless the carrier proves that he, his servants or agents took all measures that could reasonably be required to avoid the occurrence and its consequences.
Q. Under Hamburg rules, when are the goods presumed lost?
The person entitled to make a claim for the loss of goods may treat the goods as lost if they have not been delivered within 60 consecutive days following the expiry of the time for delivery.
Q. What does Hamburg or H/HV rules say in respect of Apportionment of Liability?
In Hague Visby Rules, there appears no provision for apportionment of liability. In Hamburg Rules, if it appears, that fault or neglect on the part of the carrier, his servants or agents combines with another cause to produce loss, damage or delay in delivery, the courts would hold carrier liable only to the extent that the loss, damage or delay in delivery is attributable to its fault or neglect, provided that the carrier proves the amount of the loss, damage or delay in delivery not attributable thereto.
Q. What is the limit of liability stated in H/HV/Hamburg rules?
Limitation of Liability in respect of Hague Rules was £ 100 per package. The amendments to the limitation of liability was caused vide Article IV Rule 5 (a). It provided the liability as 10,000 francs per package or unit or 30 francs per kilo. A franc meant 65.5 milligrams of gold of millesimal fineness 900. SDR protocol provided the liability limit as 666.67 units of account per package or unit or 2 units of account per kilogram of gross weight of the goods lost or damaged, whichever is the higher. There were many problems however, in interpreting the term ‘package and unit’ as used in the formula. A further problem that arose in applying the Hague Rules formula was about containers, pallets and in respect of consolidation of goods. Thus, where a container, pallet or similar article of transport is used to consolidate goods, the number of packages or units enumerated in the B/L as packed in such article of transport shall be deemed the number of packages or units. Except as aforesaid (if not declared in B/L) such article of transport shall be considered the package or unit. As per Article IV rule 5 the aforementioned limitations of liability may be overridden by declaring, the value of the goods shipped, and having that declarations recorded on the bill of lading.
Hamburg rules by Art. 6 provides that the carrier has complete liability for loss resulting from loss of or damage to goods (unless the carrier proves that all reasonable precautions were taken when liability is limited to an amount equivalent 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.
Q. What is the maximum liability for the loss due to delay?
The liability of the carrier for delay in delivery, under Hamburg Rules is limited to an amount equivalent to two and a half times the freight payable for the goods delayed, but not exceeding the total freight payable under the contract of carriage of goods by sea. In Hague Visby rules there is no similar provision about loss due delay.
Q. Compare H / HV and Hamburg rules in respect of carrier’s immunities.
The Hague Visby rules Article IV para 2 (a) to (q), provide a wide list of exceptions in favour of the carrier.
Under Hamburg Rules, there are three main exceptions which operate in the carriers favour. These are in respect of:
(i) Live Animals
Q. What are the immunities available to ship or carrier in H / HV rules?
The carrier or the ship shall not be responsible for loss or damage arising or resulting from:
(a) Act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship.
(b) Fire, unless caused by the actual fault or privity of the carrier.
(c) Perils, dangers and accidents of the sea or other navigable waters.
(d) Act of God.
(e) Act of war.
(f) Act of public enemies.
(g) Arrest or restraint or princes, rulers or people, or seizure under legal process.
(h) Quarantine restrictions.
(i) Act or omission of the shipper or owner of the goods, his agent or representative.
(j) Strikes or lockouts or stoppage or restraint of labour from whatever cause, whether partial or general.
(k) Riots and civil commotions.
(l) Saving or attempting to save life or property at sea.
(m) Wastage in bulk or weight or any other loss or damage arising from inherent defect, quality or vice of the goods.
(n) Insufficiency of packing.
(o) Insufficiency or inadequacy of marks.
(p) Latent defects not discoverable by due diligence.
(q) Any other cause arising without the actual fault or privity of the carrier, or without the actual fault or neglect of the agents or servants of the carrier. The burden of proof shall be on the person claiming the benefit of this exception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage.
Q. Discuss the immunities available to carrier under the Hamburg rules? What is the provision on these in H / HV rules?
Live Animals: Live animals are not covered under H / HV rules. In Hamburg rules, under Article 5 (5) With respect to live animals, the carrier is not liable for loss, damage or delay in delivery resulting from any special risks inherent in that kind of carriage, if the carrier proves that he has complied with any special instructions given to him by the shipper.
Deviation: Under Hague Visby rules, any deviation in saving or attempting to save life or property at sea or any reasonable deviation shall not be deemed to be an infringement.
In Hamburg Rules, under Article 5 (6)The carrier is not liable, where loss, damage or delay in delivery resulted from measures to save life or from reasonable measures to save property at sea. The liability towards general average would still be there.
Where fault or neglect on the part of the carrier, his servants or agents combines with another cause to produce loss, damage or delay in delivery, the carrier is liable only to the extent that the loss, damage or delay in delivery is attributable to such fault or neglect, provided that the carrier proves the amount of the loss, damage or delay in delivery not attributable thereto.
|Fire: Under H/HV rules immunity is available regarding fire, unless caused by the actual fault or privity of the carrier. Under Hamburg rules, the carrier is liable for loss of or damage to the goods or delay in delivery caused by fire, if the claimant proves that the fire arose from fault or neglect on the part of the carrier, his servants or agents. The carrier is not entitled to the benefit of the limitation of liability if it is proved that the loss, damage or delay in delivery resulted from an act or omission of the carrier done with the intent to cause such loss, damage or delay, or recklessly and with knowledge that such loss, damage or delay would probably result.
Q. What is the provision regarding the liability of actual carrier in respect of through carriage?
Where a contract of carriage by sea under Hamburg rules, provides explicitly that a specified part of the carriage covered by the said contract is to be performed by a named person other than the carrier, the contract may also provide that the carrier is not liable for loss, damage or delay in delivery caused by an occurrence which takes place while the goods are in the charge of the actual carrier during such part of the carriage. There is no such provision in H / HV rules.
Q. What is the responsibility of shipper in respect of dangerous goods?
HV rules, provide the liability for the shipment of dangerous cargo. Thus, the shipper shall not ship dangerous goods without the consent of the carrier. It provides that when such goods are shipped without the knowledge or consent of the carrier, not only he is entitled to neutralize them at the expense of the shipper, and without any obligation to compensate the cargo owner, but the shipper is also liable for any loss or damage resulting from their shipment.
Hamburg rules, Article 13, is ‘Special rules on dangerous goods’. Three new requirements for the shipment of dangerous goods were introduced.
(a) There should be suitable marking on the cargo that it is dangerous.
(b) The dangerous character of the goods must be indicated to the carrier by shipper.
(c) Shipper must tell carrier about the necessary precaution to be taken.
If shipper fails in his duty as above the shipper will be liable to the carrier for the loss resulting from the shipment of such goods. The goods may at any time be unloaded, destroyed or rendered innocuous, as the circumstances may require, without payment of compensation.
Q. What is the provision of electronic signatures when issuing the BL?
Under the Hamburg rules, the signature on the bill of lading may be in handwriting, printed in facsimile, perforated, stamped, in symbols, or made by any other mechanical or electronic means, if not inconsistent with the law of the country where the bill of lading is issued. There is no such reference in H / HV rules.
Q. Compare H / HV / Hamburg rules regarding notification of loss or damage.
Under Hague Visby Rules(Article III (6)), notice of loss or damage must be given in writing to the carrier or his agent at the port of discharge before or at the time of delivery, or where the loss or damage is latent, within 3 days of delivery. A failure to give such notice is prima facie evidence of delivery in accordance with the Bill of Lading. Under Hamburg Rules (Article 19), Notice of loss or damage must be given in writing by the consignee to carrier not later than 1 working day after the goods were delivered to consignee, or where the loss or damage is latent, within 15 consecutive days after delivery to the consignee. A failure to give such notice is prima facie evidence of delivery in accordance with the document of transport, in good condition.
Q. What is the Time bar for suit?
Under Hague Visby Rules (Article III (6)), a civil suit must be brought within one year of the date of delivery of the goods, or the date when the goods should have been delivered. By article 6 bis. An action for indemnity against a third person may be brought even after the expiration of the year provided for, if brought within the time allowed by the law of the Court seized of the case. However, the time allowed shall be not less than three months, commencing from the day when the person bringing such action for indemnity has settled the claim or has been served with process in the action against himself.
Under Hamburg Rules Article 20, a civil action or arbitration proceeding related to the carriage of goods must be commenced within two years of the date delivery of the goods, or where no delivery, on the last day on which the goods should have been delivered.
Q. What is the provision in respect of jurisdiction?
Under Hamburg rules the plaintiff, at his option, may institute an action in a court which according to the law of the State where the court is situated, is competent and within the jurisdiction of which is situated: the principal place of business or the habitual residence of the defendant; or the place where the contract was made; or the port of loading or the port of discharge. The Hague Rules contain no mandatory provisions on jurisdiction.
You may also visit my youtube videos @captsschaudhari.com)