International Trade and Maritime Law - Coursework Example

A comparison between the Hamburg Rules and the Hague Visby Rules for the carriage of goods by sea. When dealing with international trade the appendix of exchange by sea cannot be overlooked at any consequences. Thus again, we come up to the most important factor of sea trades. It is the law or rules that govern the activity of this trade (Able, 39). Maritime law or Admiralty law is regarded as a divergent body of law which is applicable toward the formulation and application of maritime questions and offences. Two such extremely laws or rules are the Hamburg Rules and the Hague Visby Rules for the carriage of goods by sea. (Deb, iv) However, there are quite a few similarities and distinctions between the two rules that we would enumerate. In accordance to the Applicability of the Hamburg Rules it states that it applies to all contracts for the carriage of goods by sea between two States, if: 1. The port of loading is in a Contracting State; 2. The port of delivery is in a Contracting State; 3. The contract of carriage is issued in a Contracting State; or 4. The contract of carriage states that these rules apply and does not apply to charter-parties. On the other hand the Hague-Visby Rules applies to contracts for the carriage of goods by sea that are evidenced by a bill of lading or a similar document of title, if: 1. The bill is issued in a Contracting State; 2. The carriage is from a port in a Contracting State (Sundaram,2004, pg 3) Similarly under the Scope of Coverage the Hamburg Rules 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. Carrier is deemed to be in charge of the goods at the time of receipt of goods to the time of delivery. Whereas the Hague-Visby Rules denotes the Scope of Coverage as an implication where it covers the period of time when the goods are loaded on the ship to the time they are discharged from the ship. ((Sundaram, 2004, pg 12) When the matter of Carriers' Covered is taken into consideration the Hamburg Rules covers carriers that conclude a contract of carriage of goods by sea or are named in a contract of carriage of goods by sea with a shipper. Also covers "actual carriers" which include any person entrusted by the carrier to perform all or part of the carriage of the goods. (Sundaram,2003, pg 29) Whereas under the Hague-Visby Rules carrier includes the owner or charterer who enters into a contract of carriage with a shipper. There is also a difference between the Hamburg Rules and the Hague-Visby Rules in relation to Carrier Liability or Duty of Care. Under the Hamburg Rules the carrier is liable for loss, damage, or delay in delivery of goods, if the loss occurred while the goods were under the carrier's charge, unless the carrier proves that he, his servant or agents took all measures that could reasonably be required to avoid the occurrence and its consequences (loss or damage). Whereas under the Hague-Visby Rules in relation to Carrier Liability or Duty of Care it states that the carrier must exercise due diligence to: 1. To make the ship seaworthy; 2. Properly man, equip and supply ship; 3. Make the parts of the ship in which goods are carried, fit and safe for the receipt, carriage and preservation of the goods. More over, in accordance to the Carrier Liability or Duty of Care rules of Hague-Visby Rules the carrier shall properly load, handle, stow, carry, keep, care for, and discharge the goods carried and supply ship. ((Sundaram,2004, pg 21) In the case of Carrier Defenses to Liability Hamburg Rules states that 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. Whereas under The Hague-Visby Rules the loss or damage resulting from: 1. Unseaworthiness (but the carrier must show that the unseaworthiness did not result from carrier's lack of due diligence); 2. Error in navigation or management of the ship; 3. Fire (unless caused by fault of carrier); 4. Perils, dangers and accidents of the sea; 5. Act of God; 6. Act of war; 7. Act of public enemies; 8. Arrest or restraint of princes, rulers or people, or seizure under legal process; 9. Quarantine restrictions; 10. Act or omission of the shipper or owner of the goods, his agent or representative; 11. Strikes, lockouts, stoppage or restraint; 12. Riots and civil commotions; 13. Saving or attempting to save life or property at sea; 14. Wastage in bulk or weight or any other loss or damage arising from inherent defect, quality or vice of the goods; 15. Insufficiency of packing; 16. Insufficiency or inadequacy of marks; 17. Latent defects not discoverable by due diligence; and 18. Any other cause arising without the actual fault or privity of the carrier or its agents or servants but the carrier bears the burden of proof to show it was not at fault. (Sundaram,2003, pg 22) The acts of Limitation of Carrier's Liability are also different under the Hamburg Rules and the Hague-Visby Rules. Under Hamburg Rules the liability limit for loss or damage is stated as 835 SDRs per package (approx. $1,210.00) or 2.5 SDRs per kilogram (approx. $1.65 per pound), whichever is higher. On the other hand the Liability limit for delay is 2.5 times freight payable for goods delayed, but the recovery may not exceed the total freight payable under the contract of carriage. Where as under the Hague-Visby Rules liability limit for loss or damage is stated as 666.67 SDRs per package (approx. $970.00) or 2 SDRs per kilogram (approx.$1.32 per pound), which ever is higher. (Sundaram,2004, pg 11) On the other hand there are no such actual provisions for liability limit for delay. Moreover the Loss of Liability Limit under Hamburg Rules suggest that where the carrier's (or its servant's or agent's) conduct shows an intent to cause such loss, damage or delay, or was reckless, knowing that such loss, damage or delay would probably result. It may also be applicable where goods are carried on deck contrary to an express agreement for carriage under deck. Similarly under the Hague-Visby Rules the Loss of Liability Limit is placed as where the carrier's (or its servant's or agent's) conduct shows intent to cause damage, or was reckless, knowing that such loss would probably result. May also be lost if an unreasonable or unjustified deviation from the contract of carriage occurs. The two rules also states in a different tone on the Modification of Liability Limit by Agreement factor. Under the Hamburg Rules Modification of Liability Limit by Agreement may Increase in limit by agreement. The decrease in limit for the same is not expressly authorized. ((Sundaram,2003, pg 19) Whereas the Hague-Visby Rules suggest that increase in limit may be accomplished by agreement between the carrier or its agent and the shipper, and must be declared in the bill of lading. But decrease in limit is not permitted, except where the character or condition of the property or the circumstances of carriage reasonably justify a special agreement. On the contrary when the issue of Apportionment of Liability is taken into consideration Hague-Visby Rules has no applicable provision at all regarding this but the same is well specified under Hamburg Rules 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 its fault or neglect, provided that the carrier proves the amount of the loss, damage or delay in delivery not attributable to its fault or neglect. According to the Shipper Liability under Hamburg Rules the shipper is not liable for loss sustained by the carrier, or for damage sustained by the ship, unless such loss or damage was caused by the fault or neglect of the shipper, his servants or agents. Similarly enough the Hague-Visby Rules state the same issue quite in accordance to the Hamburg Rules and indicate that the shipper shall not be responsible for loss or damage sustained by the carrier or the ship arising or resulting from any cause without the act, fault or neglect of the shipper, his agents or his servants. ((Sundaram,2004, pg 18) When the issue of Notification of Loss or Damage comes into consideration the Hamburg Rules say that the notice of loss or damage must be given in writing by the consignee or carrier no 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 prime facie evidence of delivery in accordance with the document of transport, or if no such document has been issued, in good condition. ((Sundaram,2003, pg 15) Compensation for loss resulting from delay in delivery may not be provided unless notice has been given in writing to the carrier within 60 consecutive days after delivery to the consignee. Whereas on the same issue of Notification of Loss or Damage the Hague-Visby Rules state that the 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, within3 days of delivery. A failure to give such notice is prime facie evidence of delivery in accordance with the bill of lading. While the issue of Filing of Loss or Damage Suits/Arbitration Hamburg Rules states that a civil action or arbitration proceeding related to the carriage of goods must be commenced within two years of the date of delivery of the good, or where no delivery, on the last day on which the goods should be delivered. But the Hague-Visby Rules suggest that 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. But there are no provisions applications for the arbitration. Similarly according to the Shipper Load, Count and Weight issue Hamburg Rules state that shipper must furnish the nature of the goods, identification of the goods, the number of packages or pieces or other quantity, and the weight of the goods to carrier, which must be included in the bill of lading. If the carrier fails to indicate the apparent condition of the goods in the bill of lading, it is deemed to have noted the goods were received in good condition. The carrier may insert in the bill of lading a reservation specifying any inaccuracies, grounds of suspicion, or absence of reasonable means to verify the information provided by the shipper. If no reservation is inserted in the bill of lading, the bill is prima facie evidence of the accuracy of the information so indicated. The shipper is deemed to have guaranteed the accuracy of the information it provides to carrier and must indemnify the carrier against loss resulting from inaccuracies in the particulars provided by shipper. (Sundaram,2003, pg 16) On the other hand the Hague-Visby Rules states on the issue of the Shipper Load, Count and Weight that shipper must furnish the nature of the goods, identification of the goods, the number of packages or pieces or other quantity, and the weight of the goods to carrier, which must be included in the bill of lading. The carrier must indicate in the bill of lading the apparent condition of the goods. The carrier is not required to state any marks, number, quantity, or weight that he has reasonable ground to suspect does not accurately represent the goods actually received, or which he has no means of checking. The bill of lading is prima facie evidence of the receipt by carrier of the goods as described therein. The shipper is deemed to have guaranteed the accuracy of such information and must indemnify the carrier against all loss, damages and expenses resulting from inaccuracies in the particulars provided by shipper. Lastly, when the matter of Forum Selection is taken into account the Hague-Visby Rules fails to provide any applicable provisions but under Hamburg Rules this section is discussed elaborately in relative sense. The rules under Hamburg rules suggest Court actions: Plaintiff may bring suit in a court located as follows: 1. Principal place of business or place of residence of defendant; 2. Place where contract was made; 3. Port of loading or discharge; or 4. Any other place designated in the contract of carriage. Arbitration: Parties may agree in writing to arbitration of a dispute and the proceedings shall be instituted as follows: 1. The principal place of business or place of residence of defendant; 2. Place where the contract was made; 3. Port of loading or discharge; or 4. Any other place designated in the contract of carriage. (Sundaram,2003, pg 14) Here are the comparisons and conflicts between the two laws of maritime international trade, the Hague-Visby Rules and the Hamburg Rules. But it is high time that these two able rules should be updated and if possible consolidated into one rule to avoid confusion. Moreover, in view of the consolidations of the rules it could be well suggested that a unified rule if much of a factor of convenience to every global trader and merchant. (Kar, 51) References: Deb, J; 2006; Introduction to International Trade; ABP Ltd. Kar, P; 2006; History of Law and related application of Law; Dasgupta & Chatterjee. Sundaram, S; 2003; An Outline of the Maritime Laws: Hamburg Rules; Allied Publications Sundaram, S; 2004; An Outline of the Maritime Laws: Hague-Visby Rules; Allied Publications Able, A; 2001; The Outcomes of Trade: A legal Force; OTRC Ltd . Read More