Introduction
The UN Convention on the Carriage of Goods by Sea, also known as the Hamburg Rules, was adopted at a conference in Hamburg on March 31, 1978 and was implemented in November 1992. The Hamburg Rules were intended to modernize and harmonize the Hague Rules of 1924 as amended by the subsequent Hague-Visby Rules. The Hague Rules made provision for a system of liability and obligations and its long title was the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading.
Academics argue however, that the Hamburg Rules, like its predecessor, are too broad in its application to achieve its intended goal with the result that litigation is required and domestic courts are left to refer to domestic law for guidance. In the final analysis, there is effectively no singular international law for governing the carriage of goods by sea, since individual and divergent interpretative approaches are typically required. This paper examines the Hamburg Rules, its purpose and its applicability and argues that it is too broad and perhaps far too one-sided to fulfil its purpose of harmonization and instead leaves national courts with a wide variety of interpretative difficulties.
Background to the Hamburg Rules
During the 19th century, carriers began placing “limitation of liability rules” in their respective bills of lading. Shippers, increasingly encountered difficulties that were a result of these included rules and the US responded by implementing the Harter Act, 1892. The Harter Act provided for specific obligations of carriers with respect to the carriers and the goods under their control. The Harter Act also placed restrictions on the manner in which carriers could limit their liabilities for those obligations. In 1924, the Hague Rules, drawing on the Harter Act 1892, was implemented. In short the Hague Rules of 1924 set out the carrier’s liability for damages or loss in respect of goods in transit by sea.
The Hague Rules 1924 had been indorsed by over 80 countries. There was a glaring difficulty with the Hague Rules as they were, in that it was required that any international bill of lading contain a clause incorporating the Hague Rules. As Giles and Moen explain:
“…they were given the status of contractual terms, not legal enactments having the force of law.”
As a result, courts interpreted the Hague Rules in the same manner that they would interpret contractual terms and conditions. This method of interpretation made possible by the Hague Rules, provided contracting parties with an opportunity to avoid the application of the Rules to their contract by virtue of a choice of law clause. In other words, the parties to a contract for the sale of goods could choose as the governing law of the contract, a jurisdiction that was not a party to the Hague Rules.
Another identifiable problem with the Hague Rules was that it only applied to outbound cargo, so that inbound cargo was subjected to another rule of law altogether, defeating the purpose of the Hague Rules for harmonization of goods transported via sea. Moreover, the Hague Rules 1924 did not apply to third parties and since it was entirely contractual, a shipper might escape liability under the Hague Rules, if it could prove that damages incurred were a result of negligence on the part of stevedores or other third parties. The position was fortified at common law by the case of Scruttons v Midland Silicones [1962] AC 446 where it was held that the Hague Rules were contractual in nature and could only extend liability to contractual relationships.
The Hague-Visby Rules
It was obvious that the Hague Rules 1924 were entirely inadequate for the purpose of promoting comity of international trade law with respect to the carriage of goods by sea. There were a number of difficulties associated with courts’ interpretation, as noted by the contractual nature of the Hague Rules. In addition, changing technology in the shipping industry exposed technical flaws in the 1924 rules. As a result the Brussels Protocol of 1968 amended the Hague Rules, titled the Hague-Visby Rules. In the UK, the Hague-Visby Rules were implemented by virtue of the Carriage of Goods by Sea Act 1971. The Hague-Visby Rules or the Amended Hague Rules were essentially a “compromise between the shipper and the carrier.”
The Hague-Visby Rules insists that the rules can have the force of law or can be applied voluntarily, a measure which replaces the previous Hague Rules, 1924 which left the rules applicable in a contractual nature. As with the Hague Rules 1924, the amended Hague-Visby Rules received over 80 endorsements. In addition the amended rules contained three important elements, which can be summarized as follows.
The carrier was required to exercise due diligence in ascertaining that the ship transporting the goods was seaworthy at the commencement of the journey. This regulatory regime was entirely necessary because the vendor’s liability for the goods comes to an end once the goods are dispatched at a port for transit. The result is that if the goods are received by the purchaser and does not comport to the bill of lading or the main contract for the sale of the goods, the buyer is entitled to reject them. The carrier was under a duty of care to properly and carefully load, handle, stow, carry, maintain and “care for the goods carried.” If the carrier failed in the duty of care and due diligence, liability could be limited to 100 pounds “per package or unit.”
Additionally, Article IV of the Hague-Visby Rules attempted to cure the previous difficulties under the Hague Rules 1924 with respect to the limitation of liabilities with respect to third parties. Article IV provides as follows:
“The defences and limits of liability provided for in these Rules shall apply in any action against the carrier in respect of loss or damage to goods covered by a contract of carriage whether the action be founded in contract or tort.”
However, the Court of Appeal held in The Captain Gregos [1990] 1 Lloyd’s Rep 310 that Article IV could only apply to a claim in tort if the complainant had an analogous action in contract against the carrier which was governed by the Hague-Visby Rules.
One of the greatest achievements of the Hague-Visby Rules was the fact that it had several decades of litigation and interpretations to its credit. By and large it reflected common practice and dealt with a variety of problems common to many shipping transactions on an international level. The British courts for example, had a tendency to remain mindful of the general purpose of comity under the Hague-Visby Rules and would look to foreign judgments in an attempt to avoid diverse rulings in the interpretation and application of the Hague-Visby Rules.
Be that as it may, difficulties surfaced. Giles and Meons explain:
“Navigation has been revolutionised by satellite technology. Communication advances are such that a vessel is now almost continuously in touch with its owner. Vessels themselves are better constructed, faster and more economical to run – steam and sail have long since given way to today’s engine technology. Perhaps most importantly, cargo handling has been revolutionised with bulk handling and containerisation accounting for the vast majority carried.”
Moreover, the 100 pounds limit per package liability with respect to the carrier’s liability, was no longer feasible. While in 1924, that amount was a reasonable sum, the fact that it persisted under the Hague-Visby Rules could no longer be justified in a world where 100 pounds per package was relatively small. In short liability was subject to too many limitations under the Hague-Visby Rules. As a result the Hamburg Rules were adopted in March of 1978 and came into effect in November, 1992.
The Hamburg Rules
It is important to note at the outset that the Hamburg Rules came about as a result of pressure from developing nations such as, Barbados, Botswana, Morocco, Nigeria, Lesotho, Malawi, Romania, Sierra Leone, Tanzania, Uganda, Zambia, Hungary, Lebanon, Chile, Egypt and Burkina Faso. Since 1992, countries such as Austria, Cameroon, the Republic of Congo, the Czech Republic, Gambia, Georgia, Saint Vincent and the Grenadines, the Syrian Arab Republic and Burundi have become signatories to the Hamburg Rules. The aim to provide uniformity is compromised by the lack of participation by developed and first world countries in general.
In any event, the Hamburg Rules like the Hague-Visby Rules attempts to limit the carrier’s liability. Differences of note can be summarized as follows:
- The abrogation of defences of “negligent navigation and negligent management.”
- Liability continues with the journey and does not end with “loading and discharge of the goods.”
- The Hamburg Rules cover all contracts for the transport of goods by sea with the exception of charter-parties and likewise is not limited to bills of lading (this was also the case under the Hague-Visby Rules).
- The liability limits have been increased.
Additionally, the Hamburg rules extend liability beyond that provided for in the Hague Rules and the Hague-Visby Rules. For example, liability now covers “deck-cargo, live animals, and trans-shipments.”Carr explains:
“The regime of carrier liability under the Hamburg Rules, in broad terms, is far more stringent that that of the Hague or the Hague-Visby Rules. The liability of the carrier is based on the principle of presumed fault or neglect with means that the onus is on him to show otherwise.”
Moreover, under the Hamburg Rules the carrier is not at liberty to rely on exceptions such as negligent navigation.It is by far a more “self-contained code” than the Hague Rules and the Hague-Visby Rules since it makes provision for “jurisdiction” and the “carrier’s right to freight and demurrage.”
There were ultimately two different responses to the Hamburg Rules, those who were in favour of it and those who were against it. Those against the Hamburg Rules claim that they were primarily brought about as a result of political pressure and as a result are counter-productive. Chandler notes that:
“The Hamburg Rules were meant to cut overall shipping costs particularly for the developing countries – they might well raise costs.”
In a study conducted by Lee of traders in Korea, traders felt that the increase in liability would increase the cost of liability insurance and measures such as “re-engineering, mark-up reduction and service reduction” would have to be taken to compensate.
One of the greatest difficulties with the Hamburg Rules is that it puts aside many years of litigation and decided cases. The result is uncertainty and difficulty predicting outcomes. This compromises the goal of harmonization and the progress made so far. As Waldron notes the uncertainty exists because the Hamburg Rules can be viewed as:
“…casting aside the results of half a century of expensive litigation and pave the way for another half century of legal debate on a new and different regime.”
Others finding disfavour with the Hamburg Rules claim that it is far too civilian law orientated in nature.
Those in favour of the Hamburg Rules extol its all-inclusive liability stance, maintaining that it provides a fairer allocation of risks. In response to arguments which express concerns about the uncertainty of the Rules, Nicol maintains that arguing that the Hamburg rules will:
“…herald a period of uncertainty and confusion is…a little like refusing to update computer software because it takes a certain investment in time to learn the new program and derive the full benefits from the innovation.”
Other residual difficulties with the Hamburg Rules however, is with the fact that it does not provide sufficient details with the operation of the rules in circumstances where “multi-modal transport is involved.” It is equally uncertain when the Hamburg Rules are to take effect. In other words it is far from clear whether the liability and obligations of the relevant parties should commence the moment the goods are under the control of the carrier or when the shipper’s responsibilities end. To cure these difficulties countries will have to rely on national laws to determine these questions. For instance, the UK’s Sale of Goods Act 1979 dictates the risk and obligations associated with goods under a sale of goods contract, by reference to the parties’ intentions. Once again, reliance on domestic laws leaves open the possibility of inconsistent application of the rule of law. The result is, the harmonization cannot be achieved.
Conclusion
The Hamburg Rules were entirely necessary, since the Hague Rules and the Hague-Visby Rules exposed the difficulties encountered by the courts and traders in times of technological advancements. There were far too many loopholes allowing carriers to escape liability. However, its primary motivation was to strike a fairer balance between the respective liabilities and obligations of the carrier and the shipper. By doing so, much of the problems encountered by the courts and traders have not been specifically addressed by the Hamburg Rules. To this extent, too much is left to interpretation and invariably, as under the Hague Rules and the Hague-Visby Rules, courts are left to look to national precedents for guidance. This practice can only compromise the UN’s goal of harmonization of laws with respect to the carriage of goods by sea.
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