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The Hague- Visby Rules

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					The Hague-Visby Rules
Alan Ward University of Essex

Origins
• Precursor - Hague Rules 1924 • As amended by Brussels Protocol 1968
– Object
• Protection of cargo-owners • Widespread use of exclusion clauses by carriers

– Method
• incorporate standard clauses into bill of lading • define risks to be borne by carrier • restrict exclusion & limitation of liability clauses

Article I: Application of Rules
• Contracts of carriage
• ‘covered by a bill of lading or any similar document of title in so far as such document relates to the carriage of goods by sea
• not waybills, charterparties • nor bill of lading issued to charterer as receipt for goods while in charterer’s hands • sufficient if contract formed but bill of lading not yet issued

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Article I: Application of Rules (2)
• Apply to ‘every bill of lading relating to the carriage of goods between ports in two different states if:
a) the bill of lading is issued in a contracting state, or b) the carriage is from a port in a contracting state, or c) the contract contained in or evidenced by the bill of lading provides that these Rules , or the legislation of any state giving effect to them, are to govern the contract.

Cargoes excluded
• Article 1(c)
– Live animals
• nature of risk

– Deck cargo
• exposed position of cargo • cargo must be on deck and bill of lading must so state

• Article VI
– ‘Notwithstanding the provisions of previous articles, a carrier … and a shipper shall, in regard to any particular goods, be at liberty to enter into any agreement in any terms as to the … liability of the carrier for such goods … provided that in this case no bill of lading has been or shall be issued, and that the terms agreed shall be embodied into a receipt which shall be a non-negotiable document and shall be marked as such … Provided that this article shall not apply to ordinary commercial shipments made in the ordinary course of trade, but only to other shipments where … the property … or the circumstances, terms and conditions under which the carriage is to be performed are such as reasonably to justify a special agreement

Article III: Carrier’s duties
• ‘The carrier shall be bound before and at the beginning of the voyage to exercise due diligence to – Make ship seaworthy – Properly man, equip & supply ship – Make holds etc fit & safe for cargo

• Properly load, carry & discharge goods • After receiving goods, on demand of shipper, issue bill of lading

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Article III Rule 1: Seaworthiness(1)
• Obligation covers period from beginning of loading to start of voyage
– period from at least beginning of loading until the vessel starts on voyage

• Provided due diligence exercised, no liability for subsequent defects developing during voyage

Article III Rule 1: Seaworthiness(2)
• Overriding obligation
– consequences of breach cannot be excluded under Article IV immunities

• Due diligence
– reasonable care

• Inescapable personal obligation
– duty cannot be delegated
• ‘The carrier cannot claim to have shed his obligation to exercise due diligence to make his ship seaworthy by selecting a firm of competent ship repairers to make his ship seaworthy. Their failure to use due diligence to do so is his failure’
– The Muncaster Castle [HL 1961]

Article III Rule 2: Care of cargo
• ‘Subject to the provisions of Article IV, the carrier shall properly and carefully load, handle, stow, carry, keep, care for and discharge the goods delivered’ • from loading to unloading • reasonable care
– properly = efficiently = using a sound system
• ‘a system which is sound in the light of all the knowledge which the carrier has or ought to have about the nature of the goods’
» Albacora v. Westcott and Laurance Line [HL 1966]

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Article III Rule 2: Issue of bill of lading
• After receipt of goods, on demand of shipper • Bill of lading to show:
– leading marks necessary to identify goods – number, quantity or weight
• as furnished by shipper before loading

– apparent order & condition of goods

• Unless carrier
– has reasonable grounds to believe shipper’s info inaccurate or – no reasonable means of checking shipper’s info

• Shipper’s obligations:
– deemed to guarantee accuracy of info supplied & – must indemnify carrier against any loss in reliance thereon

Article III Rule 6: Time limit on claims
• Subject to para 6 bis (3rd party indemnities), carrier and the ship shall in any event be discharged from all liability whatsoever in respect of the goods, unless suit is brought within one year of their delivery or of the date when they should have been delivered
» extended if parties agree after cause of action has arisen

– ‘all liability whatsoever’
• includes liability based on dishonest misappropriation

– ‘suit’
• includes arbitration proceedings • must be in proper jurisdiction

– delivery date or date for delivery
• regardless of actual chronology
– i.e. if delivered after due date, time runs from actual delivery date

Article III Rule 8: Nullity of inconsistent exemption clauses
• ‘Any clause … relieving the carrier or the ship from liability for loss or damage to, or in connection with, goods arising from negligence, fault or failure in the duties and obligations provided in this article or lessening such liability otherwise than as provided in these Rules, shall be void of no effect …
– precludes the use of jurisdiction and applicable law clauses to avoid the application of the Hague-Visby Rules in a dispute to which the Rules are otherwise applicable

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Article IV Rule 1
• Excludes liability of carrier or shipowner for damage/loss caused by unseaworthiness unless caused by lack of due diligence on part of carrier • Where loss caused by unseaworthiness, burden on defendant to prove due diligence

Article IV Rule 2: specific perils
• Neither carrier or shipowner shall be liable for:
b) c) d) e) f) g) h) i) j) k) l) m) n) o) p) a) Act, neglect or default of master or servants of carrier in navigation or management of ship Fire unless caused by fault/privity of carrier Perils of the sea Act of God Act of war Act of public enemies Restraint of princes Quarantine Act/omission of shipper/owner of goods/agents Strikes/lockouts Riots, civil commotions Saving or attempting to save life or property at sea Wastage/inherent vice Inadequate packing Insufficient marks Latent defects not discoverable by due diligence

Article IV Rule 2: general
q) ‘Any other cause arising without actual fault or privity of carrier, or without fault or neglect of servants or agents of carrier …’
– Burden of proof on defendant
• ‘to show that neither the actual fault or privity of carrier nor the fault or neglect of [his agent/servant] contributed to the damage’

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Article IV Rule 3: shipper’s liability
• 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 servants

Article IV Rule 4: Deviation
• Any deviation in saving or attempting to save life or property at sea or any reasonable deviation shall not be deemed to be an infringement or breach of these rules or of the contract of carriage, and the carrier shall not be liable for any loss or damage resulting …
– ‘any reasonable deviation’
• ‘The true test seems to be what departure … might a prudent person, controlling the voyage at the time, make … having in mind all the relevant circumstances at the time, including the terms of the contract and the interests of all the parties concerned but without obligation to consider the interests of any one conclusive … The decision has to be that of the master …

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posted:12/26/2008
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