The Carrier's Liability Under International Maritime Conventions: The Hague, Hague-Visby and Hamburg Rules

The Carrier's Liability Under International Maritime Conventions: The Hague, Hague-Visby and Hamburg Rules

By: Karan Hakan (author)Hardback

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Description

This book centres on the sea carrier's liability for loss of or damage to goods under convention based regimes. The Hague, Hauge-Visby and Hamburg Rules have become the main reason for lack of uniformity in the field of the carriage of goods by sea today with their different texts and legislative styles. Preface; The book deals with the carrier's liability for breach of contract of sea carriage of goods under the convention-based regimes: the Hague Rules, the Hague-Visby Rules and the Hamburg Rules. Dr. Karan has undertaken an ambitious and brave task in joining an ongoing debate on whether the maritime transport industry needs all the 3 conventions on the same subject: the legal regime relating to carriage of goods. The book is divided into four broad Parts and a Conclusion. Part I deals with the preliminaries by setting out the basis for the carriers' liability under Roman Law, Common Law, Civil Law and Convention regimes. Part II is devoted to conditions applicable to the contract of carriage under the same regimes following the pattern set out Part I. Part III deals with exclusions and exemptions of the carriers' liability. Finally, Part IV deals with limitation of damages and liabilities by the carrier. The book concludes with exhaustive concluding remarks. The book starts on the premises that the unification, clarification and simplification of domestic legislation regulating carriage of goods by sea have always been the aim of shippers who wish to ascertain and minimize their contractual liability and insurance risks in such contracts. The book argues that it is for those reasons that the three international conventions (Hague Rules, Hague-Visby and the Hamburg Rules) were enacted. However, with differing textual approaches and legislative styles these conventions have themselves become the main obstacle to uniformity in international sea carriage today, with different countries applying different regimes. The book then examines and explains the necessity for, and the needed, amendments to the Conventions in comparison with the other carriage conventions (by Air, Road, Rail and Multi-modal Transport). This particular approach to, and the explanations and examinations of, the subject is not only unique but also puts the Rules in perspective and makes it easy for, especially practitioners, to better appreciate. Furthermore it also leaves it easier for undergraduates, post-graduates, and advanced researchers and scholars who might wish to pursue further research to do so. Secondly, the book identifies, evaluates, and compares the carrier's liabilities under the three conventions and determines the conditions of such liabilities and exemptions. In particular the author does not shy away from asking and answering questions as to whether the conventions lead to certainty in the international sea carriage regime and, if so, whether they have kept up to date with economic, political and technological developments in the field. The main arguments that the book highlights is the Anglo-American or Common Law approach versus the Continental or Civil law approach which has dodged this area of the law and made difficult attempts to unify the Conventions. This argument has been made in the past but not as strongly as in this instance. The book concludes that there are no substantial differences in practice between the Hague and Hamburg liability regimes except for what the book refers to as "the archaic nautical fault and fire exemptions", and that the latter, which contain all the Visiby amendments and the SDR Protocols, were more clearly drafted with the needs of modern trade in mind and have brought the regime into line with other modern transport Conventions. Having examined all the strengths and weaknesses of the three conventions, the author comes down on the side of the Hamburg Rules, as the preferred and more international and forward-looking convention on carriage by sea. In committing himself to one side, the author has not avoided the central debate on the subject, if anything he has aided it. Having so nailed its flag to the mast, the book also cautions that the Hamburg Rules themselves, to a certain extent, need some clarification and amendments to be more acceptable and accommodating. As an example in this respect, attention is drawn to Articles 5 and 6, which require the carrier to prove that the "exempted occurrence" causing the loss and to the exercise of care expected from a prudent carrier to avoid the occurrence and its consequences, which amend the burden of proving the fault of the carrier, his servants or agents in favor of the cargo interest, and change the limitation measures and unit of accounts. Other strengths of the book are the wide search and literature coverage: apart from the traditional inclusion of Annexes of the three Conventions including the latest ratification status; application of the rules or domestic statutes, and monetary limits to the carriers' liability in various countries; there is extensive provision of abbreviations used and extensive citing of authoritative sources; and wide provisions of exhaustive bibliography of conventions, reports, statutes, authors and cases. Another bonus is the inclusion of materials on the author's native country: Turkish maritime law. This is particularly interesting as the Turkish maritime law is itself based on a modified Germanic and Civil Law Codes; there is also mention of current reforms in that country in a bid to join the European Community. Other strengths of the book are the comparative approach to Continental Civil (Belgium, France, Germany and Greece) and Common Law (UK, Australia), including the Anglo-American (US and Canada) tradition as well as the Scandinavian and Far Eastern (e.g. China) jurisdictions. In producing this book the author has made efficient use of his: legal and academic training; association with the International Chamber of Commerce; experiences with the International Maritime Organisation; and skills as one of the advisors of his government's Ministry of Foreign Affairs, on maritime and aviation matters. The author is to be congratulated on the admirable grasp he displays of the wealth of materials at his disposal. Although not necessarily original, the concept is intriguing, the approach is balanced and persuasive, and the study as a whole provides valuable contribution to an understanding of the problems facing the truncated maritime law convention regime at the present day. In advocating a streamlined policy towards sea carriage conventions Dr. Karan makes a forceful and persuasive case which gains additional strength when advanced during a period of widespread concerns. The book will be a valuable addition to knowledge and scholarship in maritime law generally and the convention-based regimes of sea carriage in particular. It will no doubt benefit practitioners, lawyers, shippers, policy makers, lawmakers, as well as law and business studies' students and the more advanced scholars and researchers.

About Author

Ademun-Odeke was a Reader in Law at London Guildhall (now Metropolitan) University, Senior Lecturer at University of Kent; Senior Legal Officer at International Atomic Energy Agency and Legal Officer at the International Maritime Organization. He is now AAA Consultant and Maritime Consultant, author of several books and articles, such as The Law of International Trade, London (Oxford University Press / Blackstone Press Ltd) 2000; Bareboat Charters Ship Registration, The Hague (Kluwer Law International) 1999; Shipping in International Trade Relations, Aldershot (Gower Publishers) 1986; Protectionism and the Future of International Shipping, The Hague (Martinus Nijhoff) 1983 etc.

Contents

Abbreviations i; Table Of Cases vii; Table Of Legislation xxxv; Table Of Standard Forms xlv; Preface by Dr. Ademun-Odeke xlvii; Acknowledgments li; Introduction; I. Subject Matter And Aim 1; II. Scope And Structure 3; III. Approach And Methodology 5; Part I; Preliminaries To The Carrier's Liability; Chapter 1 - Historical Development Of The Carrier's Liability; I. The Carrier's Liability Under Roman Law 7; II. The Carrier's Liability Under Civil Law 9; III. The Carrier's Liability At Common Law 11; IV. The Carrier's Liability Under The Principle Of "Liability Due To Written Statement" 12; A) General 12; B) The Carrier's Liability Under Model Bills Of Lading 15; 1- The carrier's liability under the Common Form of Bill of Lading 1882 15; 2- The carrier's liability under the Hamburg Rules of Affreightment 1885 16; 3- The carrier's liability under the London Conference Rules of Affreightment 1893 17; V. The Carrier's Liability Under National Reacting Statutes 18; A) The Carrier's Liability Under The Us Harter Act 1893 18; B) The Carrier's Liability Under The Canadian Water Carriage Of Goods Act 1910 21; VI. The Carrier's Liability Under International Conventions 21; A) The Carrier's Liability Under The Hague Rules 21; 1- The carrier's liability under the pre-Hague Rules 1921 21; 2- The carrier's liability under the Hague Rules 1924 24; 3-The carrier's liability under the Hague - Visby Rules 1968 (the Hague Rules amended by the Visby Protocol 1968 and the SDR Protocol 1979) 27; B) The Carrier's Liability Under The Hamburg Rules 1978 32; VII. The Carrier's Liability At Present 36; VIII. Conclusions 41; Chapter 2 - International Rules Concerning The Carrier's Liability; I. Aims Of The Rules 43; A) Aims Of The Hague And Hague-Visby Rules 43; B) Aims Of The Hamburg Rules 45; II. Legislative Styles Of The Rules 46; III. Legal Nature Of The Rules 48; A) Convention Based Uniform Rules 48; B) Mandatory Rules 52; 1- General 52; 2- Principle 53; 3- Exceptions 55; 4- Sanctions 57; 5- General average 59; 6- Effects of Contracting States' national public policies 61; IV. Scopes Of The Rules 62; A) General 62; B) Under The Hague Rules 63; C) Under The Hague-Visby Rules 64; D) Under The Hamburg Rules 65; E) Enlargement Of The Scope Of The Rules By Paramount Clauses 66; V. Jurisdiction 69; VI. Arbitration 75; VII. Conclusions 77; Chapter 3 - Basis Of The Carrier's Liability; I. The Reason For The Carrier's Liability 81; II. Legal Nature Of The Carrier's Liability 82; A) General 82; B) Strict Liability For Others' Fault 85; C) Exempted Liability 87; D) Limited Liability 98; III. Relations Of The Carrier's Liability With Other Liabilities 100; A) Relations With The Carrier's Extracontractual (Tortious) Liability 100; B) Relations With Carrier's Other Contractual Liabilities 104; 1- General 104; 2- Relations with the carrier's contractual liability for loss or damage arising from unseaworthiness before and at the beginning of the voyage 105; 3- Relations with the carrier's contractual liability for loss or damage arising from deviation 113; a-. General 113; b-. Quasi-deviations 118; IV. The Burden And Order Of Proof 120; V. Conclusions 123; Part II; Conditions Of The Carrier's Liability; Chapter 4 - The Contract Of Carriage Of Goods By Sea; I. Definition And Elements Of The Contract Of Carriage Of Goods By Sea 125; A) Definition 125; B) Elements 126; 1- Carriage 126; 2- Carriage of goods (cargo) 127; a-. General 127; b-. Carriage of live animals and deck cargo 128; c-. Carriage of container goods 131; 3- Carriage by sea 133; 4- Carriage of goods in the carrier's custody 137; II. Types Of Contracts Of Carriage Covered By The Rules 138; A) Contracts Covered By The Hague And Hague-Visby; Rules 138; 1- Principle: Lading contracts 138; 2- Exception: Contracts of carriage by chartered ship 141; B) Contracts Covered By The Hamburg Rules 143; 1- Principle: all contracts of carriage of goods by sea 143; 2- Exception: contracts of carriage by chartered ship 144; III. Documents Proving The Contract Of Carriage 144; A) Bills Of Lading 145; B) Waybills 146; C) Electronic (Paperless) Bills Of Lading 147; IV. Sub-Contracts Of Carriage 150; V. Contracts Of Through-Carriage 152; A) General 152; B) Types Of Contracts Of Through-Carriage 154; 1- Contracts of linked carriage 154; 2- Contracts of combined (multimodal) carriage 155; VI. Enlargement Of The Scope Of The Rules To Contracts Outside Their Coverage By Agreement 157; VII. Conclusions 159; Chapter 5 - Liable Party Under The Contract Of Carriage; I. The (Contracting) Carrier 163; II. Legal Position Of The Carrier Issuing A Bill Of Lading 165; III. Legal Position Of The Ship 166; IV. Third Parties Deemed A Carrier By Law 167; A) Sub-Carriers 168; B) Shipowners 172; C) Intermediaries Of Transport 176; D) Carrier's Servants Or Agents 179; 1- General 179; 2- Definition of "the carrier's servants or agents" 183; a-. Carrier's servants 183; b-. Carrier's agents 184; c-. People deemed "the carrier's servants or agents": carrier's assistants (in the performance of the contract of carriage) 185; d-. Relationship between the carrier and his servants, agents or assistants 188; III. Conclusions 189; Chapter 6 - Breach Of Contractual Obligation; I. Content Of Contractual Obligation 193; A) Carriage Obligation 193; B) Obligation To Receive Goods 197; B) Obligation To Load Goods 198; C) Obligation To Handle Goods 201; D) Obligation To Stow Goods 202; E) Obligation To Carry Goods 206; F) Obligation To Keep Goods 207; G) Obligation To Care For Goods 209; H) Obligation To Discharge Goods 210; I) Obligation To Deliver Goods 211; II. Breach Of Obligation (Loss Of Or Damage To Goods) 216; A) Misfeasance Of Obligation (Damage To Goods) 216; B) Nonfeasance Of Obligation (Loss Of Goods) 220; III. Conclusions 222; Chapter 7 - Breach Of Breach Of The Carriage Obligation While In The Carrier's Charge; I. Duration Of The Carrier's Liability 225; A) Receipt Of Goods By Carrier 226; B) Delivery Of Goods By Carrier 228; C) Agreement On Time Of Receipt Or Delivery 232; II. Breach Of The Contract Of Carriage During The Period Of The Carrier's Liability 232; A) General 232; B) State Of Goods At The Time Of Receipt 233; 1- Receipt function of bills of lading and other documents 233; 2- General nature, leading marks, number, weight or quantity of goods 236; 3- Apparent order and condition of goods 241; 4- Date of receipt by carrier and quality of goods 245; 5- Proof of state of goods with independent evidence 245; C) State Of Goods At The Time Of Delivery 246; 1- Inspection of goods 246; 2- Notice of loss or damage 248; III. Conclusions 254; Chapter 8 - Loss Resulting From Breach Of The Carriage Obligation; I. Definition Of Loss 257; II. Quantum Of Loss 258; A) General 258; B) Difference Theory 260; 1- Decreases in assets 260; a-. Decrease in value of goods carried 261; b- Decrease in value of other things in assets 266; c-. Decrease in assets due to non-compensation of decrease in value at the time of occurrence of loss or damage 266; d-. Decrease in profits 267; e-. Increases in expenses 268; f-. Agreement on the method used for calculation 269; 2- Increases in benefits 269; IV. Conclusions 270; Part III; Conditions Of The Carrier's Exemption From Liability; Chapter 9 - Exempted Incident; I. Unavoidable Occurrence 273; A) General 273; B) Occurrence 275; C) Lack Of Fault On The Part Of The Carrier, His Servants And Agents 276; 1- Lack of fault on the carrier's part 277; 2- Lack of fault on the part of the carrier's servants and agents 283; D) Acts Of God 283; II. Exceptions 284; A) General 284; B) Exceptions To The General Exemption Rule: Nautical Fault And Fire 285; 1- General 285; 2- Nautical fault 288; a-. General 288; b-. Forms of nautical fault 291; aa: Fault in the navigation of the ship 291; bb: Fault in the management of the ship 293; 3- Fire 294; C) Exceptions To The General Burden Of Proof Rule: Occurrences Presumed Unavoidable 296; 1- General 296; 2- Sea perils 301; 3- Acts against public order (policy) 302; 4- Restraints of public authority 304; 5- Restraints of labor 305; 6- Acts or omissions of the cargo interest 307; 7- Salvage 310; 8- Inherent deterioration of goods 313; 9- Latent defects 315; III. Particular Unavoidable Occurrences 317; A) Undetectable Defects Causing Unseaworthiness Before And At The Beginning Of The Voyage 317; B) Reasonable Deviation 320; IV. Conclusions 323; Chapter 10 - Proximate Causal Relation; I. General 325; II. Combination Of Proximate Causes 328; III. Chain Of Proximate Causes 330; IV. Legal Position Of Cargo Interests Adducing Evidence To The Contrary 331; V. Blocked Causal Relation 335; VI. Conclusions 335; Part IV; Limitation Of The Carrier's Liability; Chapter 11 - Limitation Of Damages; I. General 337; II. In Case Of Physical Loss Or Damage 339; A) Measures Used For Limitation Of Damages 339; 1- Package 340; a-. General 340; b-. Container, pallet or similar article of transport 344; 2- Unit 351; 3- Weight 355; B) Unit Of Account 357; 1- General 357; 2- Gold value of currency 358; a-. Gold value of pound sterling or other equivalent national currency (in the Hague Rules) 358; b-. Gold value of franc (in the Visby Protocol) 363; 3- Special Drawing Rights value together with gold value (in the SDR Protocol and the Hamburg Rules) 364; C) Monetary Amount 366; III. In Case Of Non-Physical Loss Or Damage 367; IV. In Case Of Both Physical And Non-Physical Loss Or Damage 369; V. Loss Of Right To Limit Damages 369; A) Declaration Of The Nature And Value Of Goods 369; 1- General 369; 2- Burden on the carrier to give shippers fair opportunities to declare the value of goods 371; 3- Sanction on the shipper for misrepresentation 374; B) Conscious Fault 376; VI. Conclusions 379; Chapter 12 - Limitation Of The Period For Action; I. General 383; II. Legal Nature Of The Period 385; III. Length Of The Period 388; IV. Commencement And Calculation Of The Period 389; V. Compliance With The Period 391; VI. The Period For Recourse Action 393; VII. Alteration Of The Period 395; VIII. Loss Of Right To Limit The Period 396; IX. Conclusions 397; Conclusion; I. Urgent Need For The Harmonization Of International; Liability Regimes In The Field Of Carriage Of Goods; By Sea 401; II. Comparison Of International Liability Regimes 403; III. The Preferred International Liability Regime: The Amended Hamburg Rules 408; Bibliography; I. Books 417; II. Thesis (Unpublished) 424; III. Articles 425; IV. Reports 451; V. Journals & Other Periodicals 429; I. The Hague Rules 1924 461; II. The Visby Protocol 1968 467; III. The Sdr Protocol 1979 372; IV. The Hamburg Rules 1978 475; V. Signatories And Contracting States 492; VI. Application Of The Rules Or Domestic Statues To The Contract Of International Carriage 498; VII. Monetary Limits Of The Carrier's Liability In Various Countries 500; Index 507

Product Details

  • ISBN13: 9780773461741
  • Format: Hardback
  • Number Of Pages: 524
  • ID: 9780773461741
  • ISBN10: 0773461744

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