The Hague Visby Rules - Essay Example

? Background The follow up to the Hague Rules is better known as The Hague Visby Rules. These rules are designed to regulate the movement of goods bysea and target the relationship of the shipper and the carrier. The Hague Visby Rules were drafted in 1968 and were last modified in 1979. The major premise of all these rules was to circumvent lacunae. Moreover, the contract of carriage and bills of lading were also attended to as well as incorporation by reference1. The Hague Visby Rules have been adopted by all major shipping nations while the older Hamburg Rules have been enforced by twenty six nations only. It is reported that the Hague Visby Rules are unclear from text and that case law has served to remove the various ambiguities in it. Hague Visby Rules’ Standalone Status The amendments to the Brussels convention of 1924 are considered to be the Hague Visby Rules. Therefore the Hague Visby Rules cannot be considered as an isolated document. Article 6 of the Rules clarifies this position strongly. Moreover, if any nation chooses to adopt The Hague Visby Rules then it is bound by them2. This indicates that the Hague Visby Rules are clear as far as their ratification is concerned. Force of Law behind The Hague Visby Rules The decision of an English court over the Vita Food Products v Unus Shipping Co3 held that the Hague Rules did not possess the force of the law. The court declared that the Hague Rules in fact held effect by agreement rather than through law especially as they did not possess a paramount clause. The Hague Visby Rules were an attempt to treat this issue. In the case of the Hague Rules, nations were free to choose the extent to which these rules were applied. However, as mentioned above The Hague Visby Rules stipulated that adopting these laws meant being bound by them fully. Article 10 of the rules clearly states that any contracting state observing these rules will apply them as “the force of the law”. As a result most nations implementing the Hague Visby Rules have made them part of local laws such as Canada and Britain. Britain has incorporated the Hague Visby Rules by carving them as the Carriage of Goods by Sea Act, 19714 while Canada has adopted them as the Marine Liability Act5. This essentially clarifies that the Hague Visby Rules are unambiguous as far as their adoption is concerned. Moreover, for all practical purposes nations that have not adopted the Hague Visby Rules are still bound by them because these Rules are in effect the world over. Non participatory nations observe the Hague Visby Rules whenever they utilise international instruments or utilise the equivalent laws from any contracting state such as by referencing within the bill of lading. Paramount Clause and the Hague Visby Rules The Hague Rules were weakened primarily due to the possession of paramount clauses. The presence of paramount clause forced nations using these Rules to look for paramount clauses explicitly within contracts. This was manifest in the initial standing of the Privy Council in Vita Food Products v Unus Shipping Co.3 case. However, the Privy Council soon reverted their stand and later the new position turned into standard practice. Such lacuna does not exist in The Hague Visby Rules especially in light of Article 10 that was remodelled as: “Each contracting state shall apply the provisions6 ...” This declaration ensured that the application of the Hague Visby Rules does not require any paramount clause. Furthermore, any nation’s legislation that previously required the presence of a paramount clause has been dissuaded from doing so. All provisions under the Hague Visby Rules are treated equally as there is no paramount clause. Bill of Lading in The Hague Visby Rules Bills of lading are considered the best possible evidence for contracts. Moreover, any bill of lading need not be a carriage contract. Multiple cases have affirmed this point of view. A notable example is The Ardennes7 and Saint John Shipbuilding and Dry Dock Co. Ltd. v Kingsland Maritime Corp8. etc. the contract is seen to be the sum total of advertisements, the booking note, the freight tariff as well as any other conditions that may have been settled between the carrier and the shipper. All carriage contracts that are carried out come under the domain of The Hague Visby Rules. These contracts could be either written or oral except contracts that relate to commercial trade undertakings as explained in Article 6. There is some ambiguity in these Rules as articles 1(b) and 2 state applications to bills of lading but article 3(8) declares these Rules to be of public order. In a similar manner article (6) declares that the Rules can only be bypassed by issuing certain non negotiable receipts in certain circumstances. The combination of article 1(b), article 2, article 3(8) and article 6 seems to delineate that the Hague Visby Rules apply to all carriage contracts except to certain goods under non negotiable receipts that lie in line with article 69. National coasting trade is also attended in a similar manner when allowed through national statue. Minor exceptions to these positions exist which include: goods mentioned in the bill of lading to be carried on the vessel’s deck; living animals. The combination of the articles mentioned above present an argument that is bolstered by court rulings as well as relevant discussion by authors. On the other hand, traditionally article 1(b) of the Hague Visby Rules is used to regulate various “bills of lading and similar documents of title” which are treated as negotiable carriage documents. This stands true unless a particular statute allows these Rules to extend waybills and other non negotiable receipts. A strong example is presented through the ruling over The European Enterprise10 where the Hague Visby Rules were deemed inapplicable unless the carriage contract created empowered the shipper to ask for a bill of lading either during or after the shipment. This position was deemed acceptable to warrant that the Rules did not govern any non negotiable consignment notes or other similar document. Another similar example stems from The Happy Ranger11. Here L. J. Tuckey challenged the traditional view point that non negotiable bills of lading were not technically bills of lading. Given this situation of ambiguity under law, both the norms of statute construction as well as statute interpretation under the Hague Visby Rules militate that the Rules oversee waybills too except of course in specified circumstances under article 6 and during cabotage, only if national law permits it. This kind of recognition would clear up ambiguities and would let the Rules aid international shipping better12. Waybills The Hague Visby Rules can be seen to apply to waybills (non negotiable receipts) except of course if the shipment is: concerned with non commercial trade; concerned with national coasting within the boundaries of national law. The case of The Chitra13 may be referred to in this regard. In this case, a “straight consigned bill of lading” (which implies a nominative bill of lading under which the goods are delivered to a specified consignee only) was assimilated in the same manner as a waybill. Situations where no Bill of Lading is issued The Hague Visby Rules as well as The Hague Rules are both applicable to carriage contract that is covered by a bill of lading or any other similar document. It does not matter if the bill of lading was actually issued. This is because the bill of lading is not deemed as a contract of carriage but is generally the best evidence as per the carriage contract14. The contract itself is composed of the booking note, tariff requirements, carrier’s advertisements, shipper’s special demands etc. All of these components are incorporated as a single piece. Though the situation seems ambiguous but case law has established it. Delvin J. formed the criteria of whether a bill of lading had been intended and not whether a bill of lading had been issued in the Pyrene Co. v Scindia Steam Navigation Co15. case. Similar to this case, the Canadian Supreme Court took a similar position in Pyrene Co., Ltd. v St. Amand16 where a $500 per package limit was imposed as a bill of lading had not been issued although a bill of lading had been intended. In contrast to the above, the Hague Visby Rules do not apply in case that a bill of lading is not issued but a charterparty is contemplated. This can be seen clearly from the judgement on the Canada Steamship Lines Ltd. v Desgagne’17. On the other hand, in The Beltana18 shipping receipts were issued in place of bills of lading. Another case is presented by St. Lawrence Construction Ltd.v Federal Commerce and Navigation Co. Ltd.19 where the involved parties went into contract through letters to carry construction supplies and equipment. An annexure was attached consisting of a standard bill of lading. Consequently, the Canadian Federal Court of Appeal applied the Pyrene judgement and judged that a bill of lading had been contemplated. This meant that the carrier was provided the benefit. In all of these circumstances and cases listed above, it is clear that the Hague Visby Rules offer ambiguous treatment of these circumstances. Consequently, case law has been required to substantiate these aspects and other related aspects. Cargo Not Received In case that the carrier does not receive the intended goods although a bill of lading has been issued, then The Hague Visby Rules do not apply at all. The reason behind this is because the carriage contract has not commenced as yet. Strohmeyer & Arpe Co. v. American Line S.S. Corp. is a related case in point where no fault was found with the carrier20. Conclusion The Hague Visby Rules can be seen as an improvement over the Hague Rules. However, the original text of the Hague Visby Rules is ambiguous in large part but case laws have progressively clarified ambiguities. The applicability of the Hague Visby Rules in terms of their adoption is clear but the technical aspects of implementation remain unclear in large part. However, the Rules have had the distinction of being able to combine the varying points of views over international cargo and shipping. This has meant that over time most nations have adopted these Rules and all other nations have been bound by the application of these rules. The Hague Visby Rules may be unclear but their due application and the resulting case laws have established its position on dispute issues clearly. Bibliography Admirality Law Hague Visby Rules (2011) http://www.admiraltylaw.com/statutes/hague.html Brownlie, Ian, Principles of Public International Law, (1979, London, McGraw Hill) Euro Transport Solutions Hague Visby Rules Commentary (2005) http://www.eurotransport-solutions.com/documentos/Hague-Visby%20Comments.pdf Sir Frederick Pollock, First Book of Jurisprudence, (2001, London, MacMillan) Tetly, International Maritime and Admiralty Law, (2002, Yvon Blais Inc.) Tetley, William, Interpretation and Construction of The Hague, Hague Visby and Hamburg Rules (2004) http://www.mcgill.ca/files/maritimelaw/rulesinterpretation.pdf Read More