Theo Kwong, 11 March 2025.
The Hague-Visby Rules are a vital part of international maritime law, striking a balance between the rights and liabilities of carriers and cargo owners. The rules amend the common law position on seaworthiness and liability, introduce significant exceptions, and provide a framework for examining carrier liability.
Modification of Common Law Implied Obligation of Seaworthiness
In common law, there is strict liability on the shipowner for the seaworthiness of a ship before the voyage. A shipowner is strictly liable if a ship is unseaworthy at delivery to a charterer, even in the absence of negligence. The Hague-Visby Rules relax such a requirement by replacing strict liability with a due diligence requirement.
Article 3, Rule 1 of the Hague-Visby Rules mandates the carrier to exercise due care to:
Make the vessel sea-worthy;
Adequately man, equip, and provision the ship; and
Ensure cargo spaces are suitable for carriage.
As opposed to common law's imposition of absolute duty, the Hague-Visby Rules recognize the possibility that unpredictable circumstances might influence the seaworthiness of a ship once set out. Such variance prolongs the time limit for checking seaworthiness beyond pre-delivery alone and as far as during the loading of goods. The variance is observed in cases such as The Irbensky Proliv, where inconsistent phrasing could not displace seaworthiness obligations.
The Hague-Visby Rules as an Expository but Not Exhaustive Code
In Volcafe Ltd v Compania Sud American de Vapores SA (2018), Lord Sumption explained that although the Hague-Visby Rules are exhaustive on the topics covered, they are not exhaustive on everything relating to carrier liability. One central area under which the Rules overlap with general principles of law is the burden of proof.
Article 3, Rule 2 establishes that the carrier is to deal with the cargo appropriately and carefully.
Nevertheless, the Rules do not clearly establish the burden of proof of liability. Instead, the principles of English law hold that carriers must prove that loss or damage did not result from their fault in the performance of their duty. This method guarantees that the Rules offer a harmonized regime but not one that completely displaces national legal principles relating to evidentiary burdens and contractual terms.
Limitations of Liability and Exceptions under the Hague-Visby Rules
The Hague-Visby Rules provide some protection for carriers in the form of limitation of liability and stated exceptions:
Article 4(2) contains a list of defences, such as:
Defects inherent in the cargo;
Hazards of the ocean; or
Acts of public authorities.
Article 4(5) establishes financial limits on liability:
The greater of 2 SDR per kilogram or 666.67 SDR per package.
The limit is for the whole shipment if goods are stated in the Bill of Lading in terms of a unit aggregate. Where individual items are listed (i.e., 500 bags of wheat), the limit is per item.
Article 4(5)(a) eliminates limits of liability when damage results from the carrier's recklessness with the knowledge that damage would likely result. This exception calls for a higher threshold than simple negligence, which entails evidence of conscious disregard for danger.
Conclusion
The Hague-Visby Rules strike a balance between carrier protection and cargo owner rights. They temper the severity of the common law doctrine of strict liability, establish a standard of due diligence seaworthiness, and provide formal limits of liability. However, as Lord Sumption observed, they do not deal with all issues of liability, and there is still space for national principles of law to step in and plug the gaps. The interplay between the rules and common law continues to be relevant to establishing carrier liability in maritime claims.
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