Hague-Visby Rules and Hamburg Rules - Essay Example

? Hague Visby Rules Full s Full [Day Month Year] Critically analyze the allocation of rights and duties of Carrierand Shipper in a contract of carriage of goods by sea at common law, under the Hague-Visby rules and Hamburg Rules. Background Earlier the method most commonly and most frequently used by the traders was to ship their goods through ships. To seal the deal they usually had a signed document as an evidence of their deal, this deal is known as the bill of ladings. This is an acknowledgement that the goods have been delivered to him, and it also contains the terms and conditions at which the goods are being carried. Usually it was seen that the carriers were at a greater advantage and had more negotiating and bargaining powers as compared to the shipper. The first attempt to introduce balance into the carrier and shipper relationship was to introduce a new modeled bill format, which had fairer terms for both the parties. In 1924, a new charter was designed which had considerations for different countries and was formulated as a summation of various postulates, which took in to account a fair balance of both sides (SELVIG, 1961). The first rule that was implemented on the state level was The Hague rule which was a bit of amendment an old Sea law related to Carriage of goods by sea act in 1924. It was then the request was once again made as there were quite many disparities in the rights of carrier and the shippers, there was once again an amendment made. Hague and Hague-Visby rules The main aim was to protect the cargo owner and the carriers. It discussed the liabilities that are faced by the sea carriers. There were standard clauses that were all mixed together and a fairer chance was given to both of them. Standard clauses were incorporated and therefore, it was a very fair rule that was developed. It covered the risks that would be borne by the carrier and the liabilities that he and the shipper had to face. Even the exclusions and limitations of the liability were discussed. Hague rule and The Hague –Visby rules are near about the same except for the factors of applicability. Hague Rules was limited under the influence of the Carriage of Goods by Sea Act 1924 it also included the bills of lading that were issued, it was applied only to the cargo that were outbound from UK. It was not applicable to other voyages. The Hague-Visby rules were applicable to the international voyages as well. It contained an addendum that was in reference with international voyages. It accounted for the trade between international coasts. It also contained legitimate details, which had rules and regulations which accounted for the rights and an international contract related to the operations on international coasts as well. The rules were made as the word of law and therefore, any document that contained the postulates laid down in respect with the trade that was being carried out between two companies and was signed with the above terms present on the paper, the paper would be treated as the bill of laden and the parties held liable for the rules laid down. Those laid down rules would be governing the relations between the parties and had to be followed by the parties in any case. The rules were negotiable if the postulate related to negotiations was laid down in the contract, the rules could also be negotiated if both the parties were willing to negotiate it. It need not be a formal document, but if any paper that had suggested rules and signs of both the parties then it would be considered as a bill of lading no matter what (SCARRY, 2010). It was also very clearly mentioned that the contracting states should be mentioned so that there are no conflicts or claims related to the parties. There was another differentiating factor between The Hague and The Hague-Visby rules. It was on the limitation of the liability. The limitation of liability in The Hague rule was 100 pound per package, and there was another additional clause to it that the compensation was of gold value. There was quite a lot of problem with the unit that was taken into consideration. Countries had conflicts in deciding and interpreting the term “package” and “unit” that was mentioned in the law. There was then another amendment that was made with respect to the unit of payment. The amendment contained information in relation with the conversions of the currency and the specification and relative interpretation of unit package. There were problems to the liabilities as well because there were some units of goods that had very little liability to be covered. People had issues in interpretation of a unit, and therefore there were quite a lot of misunderstandings that traders had (SCARRY, 2010). The Hague-Visby rule had retained the specification of the unit concept of a package, but then it also defined the division of cargo on the basis of weight that the cargo had and then dividing the unit of consideration in case of liability. Again there was a conflict in relation with the concept of usage of weight formula or the per unit formula for bulk cargo or some other type of cargo. It was then finally decided that the value of the goods should be defined at the time of dispatch with relevance to the place where the good is being loaded and time period at which it is being discharged. This was all to be properly recorded in the bills of lading before dispatch and this was a good step as the carrier will be aware of the real value of the goods that he is carrying (KARAN, 2004). Legal issues in the Hamburg-Visby Rules In this rule, the carrier was only liable in case of negligence on the part of the owner of the ship or the servants in the ship. The ship was supposed to be sea-worthy, which accounted for the atmosphere on the ship and the conditions that were there on the ships. Sometimes even there were insects that were present were considered to be the fault of the carrier. If the carrier had a seaworthy ship and there was no negligence on the part of the carrier and even then some misfortune befell the ship then the burden to prove the cause on the carrier was that of the shipper otherwise the cargo owner (shipper) had to face the cost. If the carrier was carrying the goods that were harmful and in case any damage occurs then the liability has to be borne by the owner of the cargo. The rule was only valid with the contracting states. There was a predefined list of the states that were following the rule and the contract only existed with them (SCARRY, 2010). Hamburg Rule The Hamburg rule was designed to super cede The Hague and the Hague-Visby rules. It was supposed to be the followed rule. It was made to fulfill the gaps that existed with in the Hague-Visby rules and was an attempt to resolve the gaps and the voids that existed in the earlier rules. The Hamburg rule was to be the charter of the sea; it was to account for all the trade that was taking place and was not limited by the rule of contracted states like it was done by the Hamburg-Visby rule. The difference in both the rules was that the port of loading was not an issue in the Hamburg rule but the destination port had to be a contracting state, while in contrast the Hamburg rule had to be between two contracting states only (KARAN, 2004). The Hague rule said that the bill of landing be produced when demanded, only if the contract was issued then any sort of contract existed, but in the Hamburg rule there was no such thing. Before any goods get ferried, the bills of lading was to be designed beforehand and all sort of considerations be laid down so that there was no problems or conflicts later. The Hamburg rule had more of a contractual approach. A contract came into existence when the bill of lading was designed before the goods were shipped. The nationality of the shipper, carrier or the consignee was not a matter in the Hamburg rule. The bill of ladings govern the relation that the parties had and this clause is quite similar to the one mentioned by the Hague-Visby rule (SCARRY, 2010). The Hague-Visby rule is applicable to all the outward shipments from the UK, but those shipments that are coming into UK are not liable to follow this rule. Only if the cargo is coming from a contracted state the rule becomes automatically applicable. The rule also become applicable if the bill of lading is signed with all the rules laid down specifically, when the ship is departing from the non-contracted state’s port. But if no bill of lading is signed then there is no liability. The cargo then becomes liable to the state law only. The Hamburg rules are applicable to all the imports and the exports no matter what. Even if in some conditions the bill of lading is not signed then the rule becomes applicable automatically. It is by state of law and as well as on the international level basis that the charter parties are not liable to any of the rules. The Hague-Visby rules plays by the issued bill of lading as it is considered as the main point of negotiations while in the Hamburg rule only the point of negotiation is the contract that was made at the start. The Hamburg rule takes into consideration the carriage that is being taken, while the other rule takes into account the bill of lading. The Hague –Visby rule is applicable to all kinds of cargo except for livestock and deck cargo. If the cargo is stowed and deck then it has to be very explicitly be mentioned in the bill of lading failure to do so causes no accountability on the part of the carrier. In case of live animal, the rules are all bendable and negotiable there is no set rule or explicitly mentioned ones with reference to live cargo (KARAN, 2004). Hamburg rule is for all kinds of cargo, it even includes the live cargo. The liabilities are defined per unit and there are no issues. The care must be taken on board as the animals require otherwise it would be considered as negligence on the part of the carrier. The better rule is the Hamburg rule as it has better rights and more equality to both the parties. In a deal it is highly necessary for both the parties to be on an equal level, which is granted by the Hamburg rule alone. Hamburg rule also has more complete set of rules for each and every aspect of trading. It is a stronger and more consolidated rule then Hague-Visby rule. REFERNCES SELVIG, E. (1961). Unit limitation of carrier's liability: The Hague Rules, art. IV (5). Oslo University Press; Pitman. (1995). United Nations Convention on the Carriage of Goods by Sea, 1978: (Hamburg rules). [New York], United Nations. SCARRY, E. (2010). Rule of law, misrule of men. Cambridge, Mass, MIT Press. (2009). Hague journal on the rule of law: HJRL. The Hague, T.M.C. Asser Press. KARAN, H. (2004). The carrier's liability under international maritime conventions: the Hague, Hague-Visby, and Hamburg rules. Lewiston, N.Y., E. Mellen Press. Read More