Logistics of Maritime Law - Essay Example

LAW ELEMENT (MARITIME LAW) LOGISTICS Introduction Sea transport has proved to be very essential for the economic growth and development of nations across the world. In international trade, the aspect of globalisation has seen increased transport and business activities from one continent to another, with the sea becoming the most economical and efficient means by which passengers and cargo can be transported across nations and continents (Weintrit 2011, p. 43). For an effective and efficient sea transport, different rules have always been created and amended by the International Convention that regulates carriage of goods by the sea and managed by the United Nations. The United Nations has been effective in ensuring that people and governments that use the sea for import and export functions do so in a conducive and effective way (Lee & Hsu 2007, p. 297). In most cases, the rules regulating this form of transport have been changing in order to address the different emerging changes in the industry for the benefit of all the players concerned. Some of the rules that have been adopted in the recent past to govern effective cargo and carriages by sea are those created in Hamburg, German in 1978 (Sze 2002, p. 21). This paper examines how the enactment and enforcement of Hamburg rules is seen as an improvement of the Hague-Visby rules. The Hamburg Rules The Hamburg rules can be defined as a series of rules that have been designed to govern the global shipment and transport of goods. These rules were established by the United Nations International Convention on the carriage of Goods using the sea as the route (Sze 2002, p. 23). These rules came into existed after being enacted and accepted to be enforced in 1978. The process of establishing these rules was aimed at creating an effective and reliable standard legal ground that would govern all forms of goods in transit in ships. One of the main forces that influenced the development of these rules was the need to have a level playing field for all the nations involved in sea transport and not to have minority of them take the lion’s share of all the benefits accruing. In this perspective, the developing countries seem to have benefited immensely since they can now participate actively in some of the major issues and deliberations geared towards improving sea transport. It is important to realize that the development of the Hamburg rules was aimed at amending the rules that had been in existence at that time, the Hague-Visby rules (Sze 2002, p. 61). The amendments were done under the auspices and guidance of the United Nations in a conference held Hamburg Germany on international Trade and development in 1978. This conference had been requested by many of developing countries, who found it wise to make amendments to the Hague-Visby rules so that a level playing field would be created for all the nations involved in various activities of export and import by the sea (Stair 2013, p. 54). The Hamburg rules have been effective in establishing a level surface transport carrier to be duly liable for any damages that arise at the time the carrier in charge of the particular carrier (Gill 2011, p. 39). This process is supposed to happen without any form of limitations as well as without giving regard to the particular causes of the damage. However, the rules can only be waived in the event that the carrier gives proper evident that at the time of the damage, he had exploited all the means available to give necessary protection to the ship and its cargo. During the conference, only 20 countries that had called for amendments on the rules regulating trade and development as stipulated in the Hague-Visby rules approved the changes with few notable exceptions like the United States, United Kingdom and some other developed countries (Karan 2004, p. 61). Despite the development, the developing nations have shown confidence that the Hamburg rules are actually important in protecting their interests as far as international transport is concerned. Additionally, they say that these rules will play a crucial role on facilitating the growth and development of the economies by increasing their trading ties with other developed nations. How the Hamburg Rules constitute an improvement on the Hague-Visby Rules The Hamburg rules differ considerable with the Hague/Visby rules in such a way that the Hamburg rules are considered much to be more effective in addressing many of the challenges brought by the former rules, which often disadvantaged the developing nations (Lidskog & Soneryd 2009, p. 45). For instance, whenever damages and delays or loses happen, the Hague-Visby rules stipulate that the shipper has to take absolute responsibility for all the inconveniences caused by the faults. The amendments done in the Hague-Visby rules provide a different approach towards such an instance. Under article 5 section 1 of the Hamburg rules a new approach has been developed (Varotsi 2008, p. 97), which gives a very positive statement about responsibility of the ship and its cargo; in its approach, the new rule depend on presumptions of fault that arises from the carrier. In this perspective, whenever a loss, damage or any kind of fault happens on the carrier, he often bears all the responsibility and burden of the damage. However, the carrier can be exonerated from the damages in case he can provide sufficient proof beyond reasonable doubts that he made worthy efforts that would have helped avert the losses and damages suffered. Commentators seem to come to consensus that the approach taken by the Hamburg rules constitutes a big shift or change of liability from the particular shipper to the person in charge of the ship, the carrier (Sfyris 2000, p. 67). Additionally, under the Hamburg rules, the carrier can have a level of liability that is not stipulated in the Hague-Visby rules. However, it should be noted that fault presumption as stipulated in the Hamburg rules does not in any way raise the level of carrier liability compared to the same approaches in the previous rules. The Hague rules often impose various responsibilities on the carrier in a bid to make him fully responsible for any damages and inconveniences that may arise. Under article IV, it is expected that the carrier has to carefully and properly load, handle, organize for stowing, keeping and ensure proper care for the goods and the ship as well as discharge those goods being shipped (Chan & Ng 2002, p. 56; Seo, Dinwoodie & Roe 2014, p. 29). In the entire journey, the carrier is supposed to ensure that all these duties are fully enforced from the time the goods and all other kinds of cargo are loaded on the ship to the time they are offloaded from the ship to the respective destination or the customer’s place of convenience. In as much as the burden of damage, loss or any other kinds of inconveniences arising from the transit process are handled by the shipper under the Hague-Visby rules, that does not mean that the carrier does not bear any responsibility for any damages arising (Margetson 2008, p. 73). This is because; the rules give the shipper an opportunity to make a legal case, prima facie against the carrier so that he can also bear part of the loss that arises from his negligence or other causes. In this case, the enforcement of the Hamburg rules ensures that the carriers take maximum care of the shop and its cargo, unless the insolvencies leading to losses and damaging are beyond his control as provided for in the evidence that he has to table. While raising a prima facie case, the shipper has to give sufficient evidence behind any reasonable doubts that the goods given to the carrier were in perfect condition and that any damages or losses have not happened from his negligence (Legato, Mary & Trunfio 2010, p. 547). In order to back his evidence, the shipper can provide the bill of adding, which indicates the kinds of goods, their state at the loading time and other special conditions that can assist him in building his case against the carrier (Vidas 2011, p. 23). With all this information, the shipper can illustrate that the inconveniences like delay, loss or damage of the goods took place because the particular carrier failed in his due responsibilities unless he gives evidence that he tried all he could to salvage the goods from the damage and loss beyond his ability (Caldwell 2011, p. 81). Conclusion In conclusion, it is important to acknowledge that the Hamburg rules have virtually improved the process of maritime transport in very many ways. The rules provide a better way that guides an effective understanding of the carrier and the shipper (Lambert 2007, p. 103). The rules have simplified the process of handling the responsibility of the shipper and the carrier with better ways of handling any arising disputes arising from the process. It is believed that the ratification of these rules by all the developed countries will go a long way in streamlining the process of maritime transport in a manner that will improve the level of trade and development between and among all the different countries globally. Additionally the increased volume of trade in these nations will be an important ingredient towards growth and development of the economy of these countries. 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