Real Differences of Substance Between the Hague Essay

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¶ … Real Differences of Substance Between the Hague and the Hague/Visby Rules

are there any real differences of substance between the hague and the hague/visby rules?

There are three ocean treaties used in governing Maritime law which are the: (1) Hague Rules (1924); (2) Hague-Visby Rules (1968); and (3) Hamburg Rules (1978). The objective of this work in writing is to discuss whether there are any real differences of substance between the Hague and the Hague/Visby Rules and if so to cite specific examples.

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The work of Tetley (2004) entitled: "Interpretation and Construction of the Hague, Hague/Visby and Hamburg Rules" states that the Hague Rules "were the result of the Conference on Maritime Law held at Brussels in 1922 and 1923. Their aim was broadly to standardize within certain limits the rights of every holder of a bill of lading against the shipowner, prescribing an irreducible minimum for the responsibilities and liabilities to be undertaken by the latter." The effectiveness of the Hague and Hague/Visby Rules depends on "uniformity in international carriage of goods by sea..." through the three principles of interpretation in applying the Rules which are those of: (1) Plain meaning; (2) International construction; and (3) Standardization. (Tetley, 2004) the specific purpose of the Hague Rules was to initiate a compromise between shipper and carrier interests. Tetley (2004) states that the Hague and the Hague/Visby Rules are "...generally fair and commercially acceptable uniform international rules of carriage of goods by sea. They are in effect codifying statutes and provide an important link between the civil law and the common law, as well as being a fertile source of comparative law." Tetley (2004) additionally states: "Neither the Hague nor the Hague/Visby Rules is a code in the civil law drafting style. Rather each is a hybrid civil law/common law (mostly common law) style statute. Nor do the Hague and Hague/Visby Rules codify all existing law. Instead they are a compromise invoking some new law in order to satisfy the varying interests of carriers and shippers at the time of their adoption. As such they are what may be called "codifying statutes."

II. EXAMINATION of the ISSUES

The work of Hakan Karan (2005) entitled: "The Carrier's Liability Under international Maritime Convention - the Hague, Hague-Visby and Hamburg Rules" states that the "...unification, clarification and simplification of national laws regulating maritime trade have always been targets of lawyers and business people who would like to be aware of their possible legal risks in their contracts performed by sea. With these aim, three conventions were prepared: the Hague, Hague- Visby and Hamburg Rules. They with different texts and legislative styles have become the main reason for lack of uniformity in the field of the carriage of goods by sea today." Hakan (2005) concludes by stating: "After all these studies it is concluded that there are no substantial differences between the Hague and Hamburg liability regimes except the archaic nautical fault and fire exemptions, and that the latter, which contain all the amendments of the Visby and SDR Protocols, were more clearly drafted by taking the needs of modem trade into consideration and have brought the regime into line with other Conventions relating to other modes of transport. It should, therefore, be the convention on carriage by sea. Nevertheless, it is also found that the Hamburg Rules needs some clarification to minor extent..."

Hakan additionally concludes: "With this strength, especially Articles 5 and 6 of the Hamburg Rules are revised as requiring from the carrier to prove the exempted occurrence which caused the loss and to exercise the degree of care expected from the prudent carrier to avoid the occurrence and its consequences, as amending the burden of proving the fault of the carrier, his servants or agents in favor of the cargo interest, and as changing the limitation measures and unit of accounts." (2005)

The work of Francis Reynolds (1990)entitled: "The Hague Rules, the Hague-Visby Rules and the Hamburg Rules" states of the Hague Rules are operative in approximately 60 countries and are thus called since the "work on them commenced at a meeting of the International Law Association at the Hague in the Netherlands in 1921. They were eventually adopted by a diplomatic convention at Brussels in 1924 so they are also referred to as the Brussels Convention, although they are normally called the Hague Rules." (1990) These rules are stated to be linked to the Netherlands and Belgium and to "...represent the first effective internationally agreed control of bill of lading terms. One has to view them against the background operative at the time of their introduction. This was that in many trades, many shipowners were at that time undertaking no liability whatsoever." (Reynolds, 1990) the Hague Rules arose in the attempt to standardize rules and regulations of the world's oceans and ship-going vessels. It is related in the work of (Reynolds, 1990) that this "...compromise was sold to shipowners on the basis of uniformity in bills of lading. A major argument put forward at that time was that different forms of bills of lading made them very difficult to handle; people had to read them carefully to see what liability was involved; the position of financing banks had become difficult; uniformity would bring great advantages. So the Hague Rules, adopted at Brussels in 1924, are a scheme for uniformity of bills of lading adopting the Harter Act compromise of the split risk between carriers' risks and cargo owners' risks." (Reynolds, 1990)

The Hague-Visby Rules are those in place in the UK and 25 additional states which came about because of part of the rules that were quite adverse to the carriers resulting in the Visby amendments which were "...to some extent put forward by carrying interests. The Hague-Visby Rules are comprised of provisions that had the intention to "remedy defects noted in the Hague Rules over some 40 years of operation, to which carriers had draw attention." (Reynolds, 1990) According to Reynolds (1990) there were five specific fundamental defects which were attributed to English cases. Those fundamental defects include:

1) the Vita Food gap - stated to be a 'gap in the international operation of the rules to which attention was drawn or which was a gap created by the Vita Food case' and which had to do with the 'proper law of the contract' or the law regulating contract law in shipping and receiving countries which effectuated evasion of the Rules and rule avoidance, specifically avoidance of English rules by drafting that was differentiated. Specifically stated is as follows: "to be evaded by a choice of law clause for a jurisdiction which either had not adopted the Rules at all or did not apply them to that voyage." (1990)

2) English case of 'Scrittons v Midland Silicones' - held that the protection of the Hague Rules did not affect stevedores, since they were not parties to the contract of carriage.

3) the Muncaster Castle - Stated to be "unpopular with carriers. This case held that the shipowner's duty as to due diligence in furnishing a seaworthy vessel was non-delegable. That is to say, the shipowner could not say that he had exercised due diligence by appointing competent marine surveyors or repairing companies and so forth. If those organizations were themselves negligent, the shipowner had to answer."

4) Problems in regards to the "...probative effect of bills of lading, which did not actually...derive from common law countries" and which were "...questions of exactly of what statements in the bill of lading were proof, and to what extent they could be disproved - statements as to the amount of goods loaded and apparent order and condition on shipment." And 5) Problems in regards to the "...package or unit limitation. There were problems of inflation. The limit was 100 pounds sterling, "taken to be" gold value. But no one knew what that meant: there were different values of gold, two tier systems and so forth, and the matter had not been tested."

III. IDENTIFICATION of DIFFERENCES in HAGUE RULES and HAGUE-VISBY RULES

Specific differences addressed in the Hague-Visby Rules that are 'unclear' areas of rule application in the previous Hague Rules include those contained in Article II of the Hague-Visby Rules which make all carriers bound from beginning to end of each voyage in exercising due diligence in the area of the seaworthiness of the ship all "holds, refrigerating and cooling chambers and all other carrier compartments in holding, carrying, and preserving its contents. Marking requirements of the shipping contents are stated. Article IV sets out the ships liability when relating to unseaworthiness of the ship unless it is a failure of due diligence on the part of the carrier and without this burden of proof the carrier and other person are exempt under this article. It is related that the carrier or ship will not be held responsible for any loss or damage which arises or results due to any… [END OF PREVIEW] . . . READ MORE

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