Comparison (Hague v Hague-Visby v Hamburg Rules) PDF

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LOG305 International Trade Law T01 January 2018 Hague Rules 1. When does it apply? 2. Types of Cargo Rules Hamburg Rules Art 10: Art 10: Art (2): the bill of lading is issued in a contracting State (a) the bill of lading is issued in a contracting OR (a) the contract for carriage is for carriage AND...

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LOG305 - International Trade Law T01 January 2018 Hague Rules 1. When does it apply?

2. Types of Cargo

Hague-Visby Rules

Hamburg Rules Art (2):

Art 10: the bill of lading is issued in a contracting State

(a) the bill of lading is issued in a contracting State; OR

(a) the contract for carriage is for carriage by ; AND

So what happens if the inbound shipment into a Contracting State, is from a non-Contracting State?

(b) the carriage is from a port in a contracting State; OR

(b) if the contract for carriage

(c) the contract (contained in or evidenced by the bill of lading) provides so.

NOTE: the different states do NOT all have to be Contracting States. It is sufficient if of the operations (eg. or related to the handling of goods

Art 1(c):

Art 1(c):

Art 1:

all goods, ware, merchandise and articles of every kind of whatsoever,

all goods, ware, merchandise and articles of every kind of whatsoever,

all kinds of cargo including live animals and deck cargo (subject to some conditions).

EXCEPT live animals and deck cargo (ie, stated in the contract of carriage as being carried on deck and is so carried)

and which by contract of carriage is stated as being and is so carried

.

Art 9: But the carrier is entitled to carry the goods on deck only if it is in accordance with an agreement/undertaking with the shipper or is in accordance with the usage, rules or regulations

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Hague Rules 3.

Hague-Visby Rules

Art 1(e):

Art 1(e):

beginning of loading of the goods on the ship to the completion of their discharge from the ship, ie, tackle to tackle

beginning of ship to the

Hamburg Rules Art 4:

of the goods on the

the

.e. tackle to tackle

The carrier could not be held liable if the loss or damage occurs prior to OR after shipping, even though the carrier has taken charge of the goods.

5. Who is the "carrier" (who bears responsibility)?

Art 1(a):

Art 1(a):

do not differentiate the terms of ‘carrier’ and ‘actual carrier’

do not differentiate the terms of and ‘

Art 1(1): ’

' is the person who enters into or who is named in a of the goods with the shipper. ‘actual carrier’ is the person to whom the actual carriage of the goods has been entrusted.

Art 3(1): exercise due diligence to make the ship seaworthy (extends to manning, equipment and cargo worthiness) before and at the beginning of the voyage and to properly and carefully load, handle, stow, keep, care and discharge goods

exercise (extends to manning, equipment and cargo worthiness) before and at the beginning of the voyage stow, keep, care and discharge goods

unless he proves that he and his servants or agents took all measures that could reasonably be required to avoid the occurrence of loss, damage or delay and its consequences Wider scope of responsibility on the carrier.

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Hague Art 3(3): Carrier's duty is to provide a bill of lading stating all leading marks necessary for identification of goods (Art III, R3). Art 3(4):

The right to demand a bill of lading only extends to the shipper and does not extend to other parties such as the consignee

goods described.

The bill of lading becomes evidence of the goods described.

Art 4(2) (a) - (q): a wide list of exceptions in favour of the carrier for loss or damage - see the exceptions at the bottom of this table, including the following navigation fault exception:

Art 4(2) (a) - (q): a wide list of exceptions in favour of the carrier for loss or damage - see the exceptions at the bottom of this table, including the following navigation fault exception:

do not have an extensive list of exception clauses (it seeks to potect the consignor more).

(a) act, neglect, default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship.

(a) act, neglect, default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship.

(i) Live Animals (ii) Deviation (iii) Fire

Thus, the carrier may escape liability by claiming defense of navigational fault.

Thus, the carrier may escape liability by claiming defense of navigational fault.

Art 5(5):

evidence of the

8. and allocation of burden of proof

Art 14 & 15: Carrier’s duty is to provide a bill of lading containing statements as to the goods onboard the vessel, date of loading.

EXCEPT for the following 3 key areas (in carrier’s favour):

(i) Live Animals: the carrier is not liable if he can show that the loss or damage was caused by special risks inherent in the kind of cargo carried.

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Hague Rules

Hague-Visby Rules

Hamburg Rules

Article 4(4):

Article 4(4):

Art 5(6):

the carrier will not be liable for loss resulting from any deviation in saving or attempting to save life or property at sea or any reasonable deviation.

the carrier will not be liable for loss resulting from any deviation in saving or attempting to save life or property at sea or any reasonable deviation.

(ii) Deviation: the carrier is not liable, except in general average, where loss, damage or delay in delivery resulted from measures to save life or from reasonable measure to save property at sea. However, in the event of deviations, the carrier will still be liable for all loss, damage or delays in delivery that results after deviation.

Art 5(4): (iii) Fire: a carrier is liable, if a claimant can prove that the fire arose from the fault or negligent on the part of the carrier, his servants or agents. The carrier must prove that he, his servants or agent took all measures that could reasonably be required to avoid the occurrence and its consequences.

See end of table for the list of exemptions (Art 4)

9. Limitation of liability

See end of table for the list of exemptions (Art 4)

No such long list of exemptions to protect the carrier.

Art 4(5): 100 pound sterling (to be taken as gold value) per package or unit

666,67 SDR per package or unit 2 SDR per kilogram

or unit 2.5 SDR per kilogram

Considered by some to be low. Increase in liability.

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Hague Rules 10. Liability limit for

Hague-Visby Rules

no applicable provisions exist

Hamburg Rules Art 5(1): resulting from loss of or damage to the goods, as well as

Art 6(1)(b): it is 2.5 times freight payable for goods delayed but not exceeding the total freight payable under the contract of carriage.

11. Loss of right to limit responsibility

no special provisions

HVR (Article 4(5)e) and the Hamburg Rules (Article 8) provide that the carrier cannot benefit from the limitation liability if the carrier intends to cause loss or is reckless knowing that loss would probably result.

HVR (Article 4(5)e) and the Hamburg Rules (Article 8) provide that the carrier cannot benefit from the limitation liability if the carrier intends to cause loss or is reckless knowing that loss would probably result.

12. Liability of the

Art 4(2): the carrier is liable for the faults of his servants or agents

Art 4(2): the carrier is liable for the faults of his servants or agents

Art 4(3): the carrier is liable for the faults of his servants or agents

Article 3(5):

Article 3(5):

Article 12 corresponds to HVR's article 4(3).

shipper is deemed to have guaranteed to the carrier the accuracy at the time of shipment of the marks, number, quantity and weight furnished by him

shipper is deemed to have guaranteed to the carrier the accuracy at the time of shipment of the marks, number, quantity and weight furnished by him

do NOT include independent contractors

13. Obligations and liability of the shipper

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Article 13 corresponds to HVR's article 4(6) but expressly states that the shipper must inform the carrier of the dangerous nature of the goods.

Hague Rules

Hague-Visby Rules

Article 4(3): the shipper is not responsible for loss or damage sustained by the carrier or the ship arising or resulting from any cause without its act, fault or neglect

Article 4(3): the shipper is not responsible for loss or damage sustained by the carrier or the ship arising or resulting from any cause without its act, fault or neglect

Article 4(6): shipper is liable for all damages and expenses directly and indirectly arising out of or resulting from the shipment of dangerous goods, where the carrier has not consented

Article 4(6): shipper is liable for all damages and expenses directly and indirectly arising out of or resulting from the shipment of dangerous goods, where the carrier has not consented

Shipper is liable for damages caused by dangerous goods shipped without the knowledge by the carrier of their dangerous nature.

Hamburg Rules

Shipper is bound to inform the carrier of the dangerous nature of the goods and (if necessary) of the precautions to be taken. Shipper is liable to the carrier for the loss resulting from their shipment if the carrier does not otherwise have knowledge of their dangerous character.

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Hague Rules 14. Notice of loss, damage or delay

Hague-Visby Rules Art 3(6):

Art 19(1):

notice must be given before or at the time of delivery OR

notice must be given before or at the time of delivery OR

notice must be given not later than the working day after delivery OR

if the loss or damage is not apparent, within 3 days of delivery.

if the loss or damage is not apparent, within 3 days of delivery.

when the loss or damage is not apparent, within 15 days after delivery.

Very short time period. If you notify after that time period, carrier is not liable.

15. Time for suit

Hamburg Rules

Art 3(6):

Longer time period for notification so that the shipper or consignee does not have to scramble to check the goods and notify the carrier.

Art 3(6):

Art 3(6):

Art 20:

a civil suit must be brought within 1 year of the date of delivery of the goods, or the date when the good should have been delivered.

a civil suit must be brought within 1 yearof the date of delivery of the goods, or the date when the good should have been delivered.

a civil action or arbitration proceeding related to the carriage of goods must be commenced within 2 years of the date of the delivery of goods, or where no delivery, on the last day on which the goods should have been delivered.

One year was deemed by some parties to be too short.

Longer time period for the shipper to start legal proceedings, so that the shipper have more time to prepare for the legal proceedings.

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Rules 16. Freedom of contract

Hague-Visby Rules

Hamburg Rules

Art 3(8): any clause relieving the carrier from liability otherwise than provided by the Rules is null and void.

Art 3(8): any clause relieving the carrier from liability otherwise than provided by the Rules is null and void.

Art 23(1): any stipulation is null and void to the extent that it derogates from the provisions of the Convention.

Art 6: the carrier may enter into any agreement in respect of its obligations and its liability if no B/L has been or will be issued and the goods carried are not ordinary commercial shipments.

Art 6: the carrier may enter into any agreement in respect of its obligations and its liability if no B/L has been or will be issued and the goods carried are not ordinary commercial shipments.

BUT carrier may increase his responsibilities and obligations under the Convention.

Art 7: freedom of contract is permitted prior to loading and after discharge.

Art 7: freedom of contract is permitted prior to loading and after discharge.

Increased protection of the shipper or consignee by providing that if it has incurred loss as a result of a stipulation, which is null and void by virtue of that article, the carrier must pay compensation.

of the Hague Rules as well as the Hague-Visby Rules contain an extensive list of exceptions in favour of the carrier - see below. [Art 3(8) states that the carrier is not allowed to increase the list of exceptions). - Unseaworthiness -

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