Fri, Oct

Carrier's obligations-Hague/Hague-Visby Rules and Hamburg Rules


Carrier's obligations-Hague/Hague-Visby Rules and Hamburg Rules. When goods are carried under bills of lading the duties of the carrier are established by express clauses in the documents. These are "express obligations".

The document can also contain a Paramount clause stating that carriage is subject to legislation, for example, the United States Carriage of Goods by Sea Act 1936, and/or the U.K. Carriage of Goods by Sea Act 1971, which enforce the Hague Rules 1924 and the Hague-Visby Rules 1968 respectively. In any case the bill of lading itself may not be subject to legislation but be stated to be subject to the Hague Rules and/or the Hague-Visby Rules. The Hamburg Rules 1978 are not in force in 1991 but there is nothing to prevent a country, which has adopted these, from enacting legislation requiring carriage from and/or to that country and under bills of lading to be subject to the Hamburg Rules. These Rules enter into force internationally on 1 November 1992.

Certain obligations of the carrier under these Rules are obvious and need not be considered in any depth, for example, the duty to print, sign and issue bills of lading. The issuing of bills of lading is covered by the Rules and will be briefly discussed. The duties of the carrier will be stated, taking the Hague Rules as a starting model and too much emphasis will not be laid on complex legal issues. A comparison will be attempted between the duties specified in the three sets of international Rules. The main reason for this method of treatment is that carriers (and holders of bills of lading) may wish to know the carriers' responsibilities under the Rules implemented by different legislation in the various countries in which the vessels may call.

The "responsibilities" are generally referred to in Art. II of the Hague Rules and Hague-Visby Rules. Article II states:

"Subject to the provisions of Article VI, under every contract of carriage of goods by sea the carrier, in relation to the loading, handling, storage, carriage, custody, care and discharge of such goods, shall be subject to the responsibilities and liabilities, and entitled to the rights and immunities hereinafter set forth."

The "carriage of goods" relates to “ . . . the period from the time when the goads are loaded on to the time they are discharged from the ship" (Art. I) . Therefore, the responsibilities commence when the goods are loaded and end when they are discharged, i.e., this probably includes the actual loading and discharging operation.

Article VI provides that the carrier can enter into any agreement provided no bill of lading is issued and the terms of the agreement are contained in the receipt which is a non-negotiable document marked as such. Such documents are "waybills". Article VI does not apply to ordinary commercial shipments made in the ordinary course of trade but to goods which require to be carried under a special agreement. Article VII allows a carrier to agree to responsibility and liability related to the goods before loading on and after discharging from the vessel.

While the Hamburg Rules specify the application of the Rules they do not contain as general and sweeping a statement covering the scope and gist of the Rules. These Rules do make general statements about responsibilities, such as that the “ . . . responsibility of the carrier of the goods . . . covers the period . . .", that is, a statement as to the duration of the responsibility but nothing is said as to what precise duties or activities are included in the "responsibility". The Hamburg Rules also relate responsibility more to "liability" where, in Art. 5 the basis of liability is specified and it is stated that the liability will not be that of the carrier if he can prove "that he, his servants or agents took all measures that could reasonably be required to avoid" the loss or damage or delay. This implies that the carrier or his servants or agents must take reasonable measures to avoid damage, loss and delay. This is as close to specific "responsibility" of the carrier and approximates the duty under the Hague Rules/Hague-Visby Rules for the carrier to exercise "due diligence".