Hague–Visby Rules

Hague Rules/Hague–Visby Rules
International Convention for the Unification of Certain Rules of Law relating to Bills of Lading (1924)/
First Protocol (1968)/
Second Protocol (1979)
Drafted 25 August 1924/23 February 1968/21 December 1979
Effective 2 June 1931/23 June 1977/24 February 1982
Condition after consultations/
10 ratifications, of which 5 representing over 1 millions gross tonnage (first protocol)/
5 ratifications (second protocol)
Ratifiers 86/24/19
Depositary Belgian Government
Languages French and English (protocols)

The Hague–Visby Rules is a set of international rules for the international carriage of goods by sea. They are a slightly updated version of the original Hague Rules which were drafted in Brussels in 1924.

The premise of the Hague–Visby Rules (and of the earlier English common law from which the Rules are drawn) was that a carrier typically has far greater bargaining power than the shipper, and that to protect the interests of the shipper/cargo-owner, the law should impose some minimum affreightment obligations upon the carrier. However,the Hague and Hague–Visby Rules were hardly a charter of new protections for cargo-owners; the English common law prior to 1924 provided more protection for cargo-owners, and imposed more liabilities upon "common carriers".[1]

The official title of the Hague Rules the "International Convention for the Unification of Certain Rules of Law relating to Bills of Lading". After being amended by the Brussels Amendments (officially the "Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading") in 1968, the Rules became known colloquially as the Hague–Visby Rules.

A final amendment was made in the SDR Protocol in 1979. Many countries declined to adopt the Hague–Visby Rules and stayed with the 1924 Hague Rules.[2] Some other countries which upgraded to Hague-Visby subsequently failed to adopt the 1979 SDR protocol.

Implementing legislation

The Hague–Visby Rules were incorporated into English law by the Carriage of Goods by Sea Act 1971; and English lawyers should note the provisions of the statute as well as the text of the rules. For instance, although Article I(c) of the Rules exempts live animals and deck cargo, section 1(7) restores those items into the category of "goods". Also, although Article III(4) declares a bill of lading to be a mere "prima facie evidence of the receipt by the carrier of the goods", the Carriage of Goods by Sea Act 1992 section 4 upgrades a bill of lading to be "conclusive evidence of receipt".

Under Article X, the Rules apply if ("a) the bill of lading is issued in a contracting State, or (b) the carriage is from a port in a contracting State, or (c) the contract (of carriage) provides that(the) Rules ... are to govern the contract". If the Rules apply, the entire text of Rules is incorporated into the contract of carriage, and any attempt to exclude the Rules is void under Article III (8).

Carriers' duties

Under the Rules, the carrier's main duties are to "properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried" and to "exercise due diligence to ... make the ship seaworthy" and to "... properly man, equip and supply the ship". It is implicit (from the common law) that the carrier must not deviate from the agreed route nor from the usual route; but Article IV(4) provides that "any deviation in saving or attempting to save life or property at sea or any reasonable deviation shall not be deemed to be an infringement or breach of these Rules".

The carrier's duties are not "strict", but require only a reasonable standard of professionalism and care; and Article IV allows the carrier a wide range of situations exempting them from liability on a cargo claim. These exemptions include destruction or damage to the cargo caused by: fire, perils of the sea, Act of God, and act of war. A controversial provision exempts the carrier from liability for "neglect or default of the master ... in the navigation or in the management of the ship". This provision is considered unfair to the shipper; and both the later Hamburg Rules (which require contracting states to denounce the Hague–Visby Rules) and Rotterdam Rules (which are not yet in force) refuse exemption for negligent navigation and management.

Also, whereas the Hague–Visby Rules require a ship to be seaworthy only "before and at the beginning" of the voyage, under the Rotterdam Rules the carrier will have to keep the ship seaworthy throughout the voyage (although this new duty will be to a reasonable standard that is subject to the circumstances of being at sea).

Shipper's duties

By contrast, the shipper has fewer obligations (mostly implicit), namely: (i) to pay freight; (ii) to pack the goods sufficiently for the journey; (iii) to describe the goods honestly and accurately; (iv) not to ship dangerous cargoes (unless agreed by both parties); and (v) to have the goods ready for shipment as agreed; (q.v."notice of readiness to load"[3]). None of these shippers' obligations are enforceable under the Rules; instead they would give rise to a normal action in contract.

A critique of the Rules

With only 10 Articles, the Rules have the virtue of brevity, but they have several faults. When, after 44 years of experience, the 1924 Rules were updated with a single minor amendment, they still covered only carriage wholly by sea (thereby ignoring multi-modal transport), and they barely acknowledged the container revolution of the 1950s.[4][5] Also, the United Nations body UNCTAD felt that the Rules had actually diluted the protection to shippers once provided by English common law, and proposed instead the more modern Hamburg Rules of 1978. These were embraced by many developing countries, but largely ignored by ship-operating nations. The modern Rotterdam Rules, with some 96 articles, have far more scope and cover multi-modal transport; but these Rules remain far from general implementation.

Ratifications

A list of ratifications and denouncements of the 3 conventions is shown below:

Country 1924 1968 1979Comments
 Algeria Active
 Angola Active
 Antigua and Barbuda Active
 Argentina Active
 Aruba Denounced Active Active
 Australia Denounced Active
 Bahamas Active
 Barbados Active
 Belgium Active ActiveActive
 Belize Active
 Bolivia Active
 Cameroon Active
 Cape Verde Active
 China
 Croatia Active Active Active
 Côte d'Ivoire Active
 Cuba Active
 Cyprus Active
 Democratic Republic of the Congo Active
 Denmark Denounced Active Active
 Dominica Active
 East Germany[6] Active Active
 Egypt Active Denounced
 Ecuador Active Active
 Fiji Active
 Finland Denounced Active Active
 France Active Active Active
 Gambia Active
 Georgia Active
 Greece Active
 Grenada Active
 Guinea-Bissau Active
 Guyana Active
 Hong Kong Denounced Active Active
 Hungary Active
 Iran Active
 Ireland Active
 Israel Active
 Italy Denounced ActiveActive
 Jamaica Active
 Japan Denounced Active
 Kenya Active
 Kiribati Active
 Kuwait Active
 Latvia Active Active Active
 Lebanon Denounced Denounced
 Lithuania Active Active Active
 Luxembourg Active
MacaoActive
 Madagascar Active
 Malaysia Active
 Mauritius Active
 Mexico Active
 Monaco Active
 Mozambique Active
 Nauru Active
 Netherlands Denounced Active Active
 New Zealand Active
 Nigeria Active
 North Borneo[7] Active
 Norway Denounced Active Active
 Palestine[8] Active
 Papua New Guinea Active
 Paraguay Denounced
 Peru Active
 Poland Active ActiveActive
 Portugal Active
 Portuguese India[9] Active
 Portuguese Timor[10] Active
 Romania Denounced
 Russia Active
Saint Kitts and Nevis Saint Christopher and Nevis Active
 Saint Lucia Active
 Saint Vincent and the Grenadines Denounced
 São Tomé and Príncipe Active
 Sarawak[7] Active
 Senegal Active
 Seychelles Active
 Sierra Leone Active
 Singapore Active Active
 Somalia Active
 Slovenia Active
 Solomon Islands Active
 Spain Active[11]
 Sri Lanka Active Active
 Sweden Denounced Active Active
  Switzerland Active Active Active
 Syria Active Active
 Tanganyika[12] Active
 Tonga Active Active
 Trinidad and Tobago Active
 Turkey Active
 Tuvalu Active
 United Kingdom Denounced Active Active
 United States Active
 West Germany[13] Active
 Yugoslavia Active

See also

References

  1. ↑ Liver Alkali Company v. Johnson (1874), L.R., 9 Ex. 338
  2. ↑ The Jackson Parton Miscellany, 2nd ed. 202
  3. ↑ The Mihailis Angelos [1971] 1 QB 164
  4. ↑ Hague-Visby Rules: Article IV Rule 5c
  5. ↑ http://www.jus.uio.no/lm/sea.carriage.hague.visby.rules.1968/doc.html#31
  6. ↑ Part of present-day Germany.
  7. 1 2 Part of present-day Malaysia. During ratification a British protectorate.
  8. ↑ A mandated territory under British control on ratication. Area includes present day Israel
  9. ↑ Part of the present-day Indian state of Goa.
  10. ↑ Now East Timor. In 1952, ratification was received when it was under Portuguese control
  11. ↑ Denounced with effect of the entry into force of the Hague Rules, see at the ratification page of the depositary
  12. ↑ Presently known as Tanzania. Upon ratification under British control
  13. ↑ Part of present-day Germany.
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