Academic journal article Texas International Law Journal

The Liability of the Contracting Carrier

Academic journal article Texas International Law Journal

The Liability of the Contracting Carrier

Article excerpt

I. THE LIABILITY OF THE CARRIER: INTRODUCTION

A. From The Hague to Vienna, via Hamburg

Lawyers, practitioners, or academics who are involved in the law of carriage of goods by sea are used to working with a very particular liability regime based on the Brussels Convention of 1924 (commonly known as the "Hague Rules")1 as later amended by the so-called Visby Amendment, the Hague-Visby Rules of 1968.2 Most nations have ratified this Convention and have also adopted national legislation based on that regime.3 In the United States we have the U.S. Carriage of Goods by Sea Act ("COGSA") dating back to 1936,4 a body of law that has remained unchanged for over 70 years.

It is only after having studied the historical background that one understands the very particular style and format of the Hague Rules and of the national legislation based on that convention. The codification by the Hague Rules more closely resembles a "model bill of lading" - a format reflecting the purpose for which the rules were initially drafted - than it does a proper piece of legislation or a legal instrument on contractual liabilities. The result of this is that the Hague Rules have a very complex legal structure based on how the liability of the carrier is defined. One can only reach the correct conclusions by reading the first paragraphs of both its articles 3 and 4 in conjunction with one another. The result is the well-known and well-covered conceptualization of the interplay as a "ping-pong game" created by a maritime cargo case which defines the burden of proof and the respective steps in the allocation of liability and exemption.5

Almost 100 years of very successful global application of the Hague Rules have almost overcome those structural deficiencies. This success cannot change the fact that the system and some of the principles of the Hague Rules are outdated and remain barely adequate in the modern environment of international trade and transportation. This is particularly true for question beyond the scope of liability. It also remains true for the nucleus of any transportation legislation: the issue of the liability of the carrier.

Almost a century later, we look at a new draft Convention by the U.N. Commission on International Law ("UNCITRAL")6 that attempts to restructure the basic principles of the preexisting laws and jurisprudence on the liability of the carrier for maritime cargo claims. In doing that, the UNCITRAL Convention has entirely restructured the different legal principles known under the Hague Rules without, for the most part, attempting to alter either the substance of the Hague Rules or the principles that were carefully developed over the years by the international legal community in the application of the Hague Rules.

The Hamburg Rules of 1978 were a similar attempt made by the U.N. Conference on Trade and Development ("UNCTAD") and UNCITRAL, but at that time a stronger iteration of the carrier's liability system was sought. However, the Hague Rules proved to be unacceptable to the shipping and insurance industries and has therefore received only limited support. Nevertheless, the Hamburg Rules had already undergone a process of systematic rearrangements of its different legal principles, a process that facilitated the new harmonization process undertaken by the Working Group III of UNCITRAL.

The new Convention is, as it relates to liability issues, a revision, a modernization, a reorganization, and a clarification of the current and well-known principles. With the exception of very few well-chosen deletions or amendments, the change in substance is minimal. The revolution lies in its reworked format. This change in the drafting and legislating technique is in line with a number of important changes concerning the general approach and philosophy of this instrument, which have also had an impact on the liability system of the new UNCITRAL Convention.

B. Broadening the Scope: From a Liability Convention to a Convention on the Contract of Carriage

The UNCITRAL Convention has taken the step from a liability-driven convention - as all current transportation law Conventions are7 - to a harmonizing instrument regulating nearly the entire contractual relationship between parties to a contract of carriage. …

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