The carriers responsibilities and immunities under the Hague and Hamburg rules
Over the last few centuries the carriage of goods by sea has gone through a constant evolution. Only in the last century were the changes so noticeable. Since the early days of shipping, maritime law has tried to adapt to the realities of its time. Change was slow and not always easy to achieve. Prior to statutory regulation the practical reality was such that carriers managed to escape most if not all of their responsibilities. In the last century everything changed, the adoption of The Hague, Hague-Visby and Hamburg Rules transformed the whole system of carriage of goods by sea and their system of responsibilities. The maritime industry was marked by gradual evolution and maritime law has never been the same since. In the last few decades, maritime law went through various reforms and many changes. Today, the shipping industry faces two carriages of goods by sea regimes, The Hague or Hague / Nisby Rules and the new Hamburg Rules. Since the early nineteen hundreds, the maritime industry, with the help of a number of international and national organisations, have been working toward "one goal", the adoption of a universal convention regulating maritime trade. The objective was to reach acceptability, predictability, certainty, clarity and unanimity among all the parties involved i.e. carriers as well as shippers, insurers and governments. The 1924 Hague convention was a great innovator. For the first time in maritime history, an international convention limited the carriers practice of using exoneration clauses to limit their responsibilities. Article 3(8) of the Hague Rules regulated the issue in clear and simple terms. Any exemption clause found to be contrary to the Hague Rules would be null and void. The aim was to change the pattern of abuse that existed and promote fairness and balance between shippers and carriers. The carrier's rights and immunities are expressed in art. IV of the Rules. Here again, the convention outlines the importance of the carriers responsibilities found in art. Ill by IV restating them in art. IV(l). Only after discharging such duties, are carriers allowed to follow with the use of available defences (art. IV (2)). For the first time, a mandatory convention regulated affairs of carriage by sea, in particular the use of exemption clauses by carriers. This was a novelty in such an old industry, whose working was based on customs and the freedom of contract basis. Thus, it seemed natural to praise such an accomplishment and indeed no one can contest that in those days, it was an accomplishment. In the late sixties, the Hague rules were amended. The amendments were adopted in Brussels on February 23, 1968 and were known as the Visby Protocol. They represented the response to modernisation and changes that have marked the shipping industry and that were not covered by the original Hague Rules. Nonetheless, even with the changes brought forth by the Visby Rules, international criticism over The Hague and Hague Visby Rules persisted. Thus, in 1978, the Hamburg Rules were adopted to answer the growing dissatisfaction of shipper interests, particularly amongst developing nations. The adoption of the Hamburg Rules meant the implementation of a new regime to govern the relationship between cargo owners and carriers. The adoption of the Hamburg Rules modernised the transit of cargo by ships. They replaced the Hague Rules as well as clarified and simplified maritime shipping matters. They abolished the list of available defences found in article 4(2) of The Hague, and changed the carrier's basis of liability. No longer will exoneration, in cases of fault or neglect, be accepted. The new system is based on the presumption of fault or neglect. This issue is made clear in article 5 (l) of the Hamburg Rules, which states that the carrier will be held responsible for the loss or damage to the goods under his charge, until he proves he was not at fault and that he used the v reasonable required measures to avoid such loss or damage. In practice the Hamburg Rules are not universally accepted, none of the major trading states (US, Britain, Canada, France etc...) have adopted this new system. However, they are more suitable for modem maritime shipping needs, they expanded into areas that Hague did not cover or did not exist (electronic technology), and further, eliminated the perception of bias and injustice that was perceived with the Hague Rules. Formulated by all parties concerned they are more illustrative of all interests involved. Today the question on everyone's mind is, which system should be the one to govern? Until everyone agrees on the acceptable solution, if ever, we will have to face an industry being regulated by two systems or three if we consider the Hague / Nisby System as distinct from the original Hague Rules.
carriage of goods by sea