Hague & Hamburg Comparison

Topics: Hague-Visby Rules, Due diligence Pages: 5 (1349 words) Published: February 11, 2013
Period of coverage

i) Hague Rules
The Rules in fact cover the entire period of carriage even during trans-shipment.

ii) Hague – Visby Rules
The Hague – Visby Rules apply to the contract of carriage under Article (1) (c) from the time when the goods are loaded on to the time they are discharged from the ship (Tackle to Tackle).

iii) Hamburg Rules
The Hamburg rules covers the period during which the carrier is in charge of the goods at the port of loading during the carriage, and at the port of discharge. Carrier is deemed to be in charge of the goods at the time of receipt of goods to the time of delivery.

Under the Hamburg Rules the carrier is in greater responsibility for deck cargo. In the absence of a statement in a bill of lading that deck carriage is permitted the carrier has unlimited liability if it in fact carries on deck having the burden of providing permission. Where the carrier is authorized to carry on deck, it has the same liabilities as in the case of under deck carriage. This differs from the Hague-Visby Rules when there is no mandatory application of those Rules of deck carriage.

In the case of Pyrene Co Ltd., v Scindia Navigation Co Ltd.11 it was held thatalthough the damage was caused before the goods had crossed the ship rails thisdid not essentially mean the exclusion of the rules. In the said judgement it wasstated that no special significance should be placed on the phrase “loaded on”.|

Carrier’s Duties and Liabilities – Seaworthiness

i) Hague Rules
Even if the carrier fails to exercise due diligence to make the ship seaworthy before and at the beginning of the voyage, and even if that failure causes the cargo loss or damage, the carrier may nevertheless limit its liability for "any loss or damage to or in connexion with goods "to the amount of the package limitation of art. 4(5) of the Hague Rules. The reason is that art.4(5) provides that: "Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connexion with goods in an amount exceeding..." (Emphasis added). In consequence, the carrier's breach of its due diligence duty under art. 3(1) of the Hague Rules does not constitute a "fundamental breach" of its obligations under the Convention (i.e.the Hague Rules) or the contract of carriage. The want of due diligence therefore differs from unreasonable geographic deviation (art. 4(4)) and from unjustified deck carriage (art. 1(c)),which, when done intentionally by the carrier, are regarded as fundamental violations of its obligations under the Rules and the contract of carriage, entailing the loss of at least the package limitation, and arguably the loss of other defences as well (e.g. the one-year time bar of art. 3(6),the defences of art. 4(2)(a) to (q) and any other valid defences of the carrier specified by the contract).Failure to exercise due diligence, while therefore not a "fundamental breach" depriving the carrier of the package limitation, should nevertheless deprive it of the one-year time for suit under art. 3(6), as well as of the art. 4(2)(a) to (q) exceptions and any other contractual defences, because of the "overriding" character of due diligence and its impact on the order of proof.

ii) Hague – Visby rules
Under the Hague – Visby rules the carrier must exercise due diligence to (Article III). (a) make the ship seaworthy
(b) properly man, equip and supply ship
(c) make the parts of the ship in which goods are carried fit and safe for the receipt, carriage and preservations of the goods [Article (III) Rule (1)]. The carrier shall properly load, handle, stow, carry, keep, care for and discharge the goods carried (Article (III) Rule 2).

iii) Hamburg Rules
Hamburg Rules makes a distinction between the “carrier” and the “actual carrier”. Under the Hamburg Rules the carrier is liable for loss, damage, or delay in delivery of goods, if the loss occurred while the goods were under the...

References: Hamburg Rules: United Nations Convention on the Carriage of Goods by Sea, 1978 Alessandro. [Source: http://www.transportrecht.de/]
A Comparative Analysis of The Hague-Visby Rules, The Hamburg Rules And The Rotterdam Rules, Francesco Berlingieri (Nov. 2009).
The Hague Rules, the Hague-Visby Rules, and the Hamburg Rules, Francis Reynolds (April 1990).
COMPARISON OF HAGUE-VISBY AND HAMBURG RULES, Ms Anomi Wanigasekera, Messrs Julius & Creasy (2007).
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