ABSTRACT:
Under a contract of carriage of goods by sea, carriers must complete their obligation to deliver cargos to the destination on time as committed with shippers. In order to fulfil the obligation, not only seaworthiness but also deviation of ships must be ensured by the carriers during the whole conveyance of cargo. However, there is always the existence of potential dangers during sea voyages such as shorebreak, tsunamis, maritime piracy and armed robbery. Therefore, it is necessary to protect carriers in cases where they are not at fault or have exercised their due diligence to complete their obligations. In the UK, although there is existence of the Carriage of goods by Sea Act 1971 which incorporated the Hague – Visby Rules, the common law rules are still preferred for cases falling out of the governing scope of the Act. In comparison with the common law rules, the Carriage of Goods by Sea Act 1971 or the Hague – Visby Rules provide better protection for carriers by sea. In order to discover this, this paper will discuss and analyse cases on scope of carriers’ obligations on seaworthiness and deviation, and exceptions of liability of carriers.
Keywords: Seaworthiness of vessels, deviation of ships, liability exceptions, Hague-Visby Rules.
1. Introduction
In a contract of affreightment by sea, a shipowner, ‘either directly or through an agent, undertakes to carry goods by sea, or to provide a vessel for that purpose’.[1] In other words the carrier who is the ship-owner or the charterer entering into a contract of carriage with a shipper [2] has played an important role carrying goods from departure to a destination in return for freight. It can be seen that in a contract of carriage of goods a carrier by sea has to complete his obligations to carry goods to a particular destination or to make sure that goods are carried to the destination. For this, although each legal regime will have different regulations on a carrier’s particular obligations, overall the carrier has to ensure the two principle obligations including seaworthiness of the ship and avoiding deviation. If the carrier fails to comply with these obligations, he may be liable to loses and damages caused by non-compliance, or the shipper could repudiate the contract.
In England before the Carriage of Goods by Sea Act 1924 which incorporated the Hague rules,[3] came into force, carriage of goods by sea was governed entirely by the common law rules. In recent times, the Carriage of Goods by Sea Act 1971 enacting the Hague-Visby rules[4] has replaced the Carriage of Goods by Sea Act 1924 to govern contracts of carriage of goods by sea. However, the Carriage of Goods by Sea Act 1971 only applies for “contracts of carriage covered by a bill of lading or any similar document of title” during “the period from the time when the goods are loaded on to the time they are discharged from the ship”.[5] Therefore even though there is existence of the Carriage of Goods by Sea Act 1971, the common law rules are still applied in cases which are out of the governing scope of the Hague-Visby Rules such as contracts of carriage involved in sea waybills. However, it can be seen that there are differences in protection to the carrier between the common law rules and the Hague and Hague-Visby rules.
This paper will discuss and critically analyse differences in protection to the carrier under the Hague-Visby rules which are incorporated into the Carriage of Goods by Sea Act 1971 and the English common law, specifically to explore that the carrier has greater protection under the Hague-Visby rules than under English common law. Particularly, this paper will examine regulations of the Hague – Visby Rules and the English common law on not only the carrier’s obligations such as ensuring seaworthiness of a ship and avoiding deviation, but also the exceptions of liability for the carrier.
2. Seaworthiness
Although common law rules on seaworthiness have been replaced by the Hague-Visby rules, overall under the Hague – Visby rules ‘the definition of seaworthiness did not vary much as it still includes the same principles’ in the common law rules.[6] Particularly, under the common law Channel J, in the case of McFadden v Blue Star Line, stated that the warranty of seaworthiness refers to ‘the vessel is fit for the reception of the goods and for carrying them upon the voyage in question’, and ‘the ship is fit to encounter the ordinary perils of the voyage….’.[7] Similarly, in the Hague-Visby rules Griffiths L.J pointed out the aspects of seaworthiness including ‘the ship, her crew and her equipment shall be in all respects sound and able to encounter and withstand the ordinary perils of the sea during the contemplated voyage’ and ‘the ship shall be suitable to carry the contract cargo’ in Actis Co. Ltd v Sanko Steamship Co. Ltd.[8] In order to make the above definition more clear, Cresswell J in Papera Traders Co Ltd v Huyndai Merchant Marine Co Ltd[9] indicated the components of obligations to ensure seaworthiness of a ship including capacity to encounter the perils of voyage consisting of the physical condition of the vessel and its equipment, the competence/efficiency of the master and crew, the adequacy of stores and documentation, and capacity to carry the goods as cargoworthiness which means the vessel is fit to carry the specified cargo. What can be learnt from these is that the carrier has to provide a ship which can encounter the perils of sea not only in the ‘physical condition of the vessel but also the stores, equipment, the competence and efficiency of the master and crew as well as adequacy of the necessary documentation’[10], and which could carry the goods.
However this obligation in the Common Law is absolute while article III of the Hague-Visby rules regulates that the carrier just needs to make the ship seaworthy in due diligence which is, defined by Tomlinson in the case of Eridania SpA & Ors v Oetker & Ors (‘The Fjord Wind’)[11], as reasonable care and skill. This does not mean at the common law the carrier has to provide a perfect ship which is equipped with capacity to encounter the perils of sea and to carry the goods to a specified destination, but he has to ensure that the ship is reasonably furnished and suitable for that purpose as Kilkenney stated in President of India v West Coast Steamship Co.[12] therefore under the common law if a claimant is successful in proving that the loses and damages he is incurring are caused by unseaworthiness, the carrier has to be liable to the loses and damages unless he can prove that he is not at fault.[13] This is proved in the following cases, Owners of Cargo on Ship “Maori King” v Hughes[14] in which the owners of a cargo of frozen meat shipped at Melbourne in Australia on board of the steamship Maori King for conveyance to London claimed against the shipper for damages because of non-delivery or conversion of the goods, or in the alternative for breach of warranty of seaworthiness of the vessel, it held that the refrigerating machinery has to be fit, at the time of shipment, to carry the frozen meat in good conditions to Europe, thus the shipowner has to be liable for the damages. It is clear that the obligation to provide a ship seaworthy means that the carrier has to ensure not only the vessel but also the cargo is seaworthy. This is a reasonable requirement because if the cargo is not ensured to arrive at the destination in good condition, the purpose of the obligation, which is to make sure that the goods can be delivered to the specified destination in the good condition, is not achieved. Therefore in this case the carrier should be liable although he provided a ship fitted with refrigerating machinery, he failed to ensure the cargo was seaworthy because the machinery was not, at the commencement of the voyage, fit to carry the meat to Europe in good condition. It can be seen that, under the common law rules, ensuring seaworthiness is an absolute obligation which all carriers must fulfil. Therefore if a carrier wants to escape his liabilities against damages caused by seaworthiness, the only way he can do so is by bringing the burden of showing that the damage is not caused by his fault. This means that if the carrier fails to prove he is not at fault, he will always be liable for the damages as the owners in Lennard’s Carrying company v Asiatic Petroleum company [15]. In the case the owner failed to prove that the damages happened without their fault and privity in ensuring seaworthiness, while the defendant was successful in proving that their damages were caused by unseaworthiness of the ship. As a result the court dismissed their appeal.
In contrast to the Common law rule, due diligence is an important component in the exercise of obligations to ensure seaworthiness of the ship in the Hague-Visby rules. In Parson Corp v CV Scheepvaartonderneming Happy Ranger[16] the claimant sued the shipowner for damages caused by one of the double ramshorn hooks on the aft crane being broken, and it held that the shipowner failed to discharge the burden of showing that he did exercise due diligence to make the ship seaworthy under article III of the Hague-Visby rules while the claimant was successful in proving the amount of their loses. It can be seen that under the Hague-Visby rules the burden of proof is on the carrier, so if the carrier can prove that he has used reasonable care and skills to make the ship seaworthy, he could contract out of the obligations. This is also pointed out at article IV rule 1 of the Hague-Visby rules.[17] However in Eridania SpA & Ors v Oetker & Ors (‘The Fjord Wind’) Clarke LJ pointed out that the due diligence has to be exercised not only by the owners, their servants and agents, but also their independent contractors.[18] What we can learn from this is that although the liability of the carrier, under the Hague-Visby rules, is larger than that under the common law because he has to be liable for not only his own negligence but also negligence of his servants, agents and independent contractors,[19] he still has a chance to contract out of the obligations if he can prove that he exercised due diligence to make a ship seaworthy as stipulated in article III of the rules. In other words the common law rules require, strictly, the carrier to make the ship seaworthy, so the chance for the carrier to contract out of the obligations is lower unless he can prove that he is not at fault or privity to the damages, but the responsibility under the Hague-Visby rules is less because if he uses reasonable care and skill to make the ship seaworthy but then it is unseaworthy he will not be liable to the damage caused by the unseaworthiness of the ship as in The Hellenic Dolphin [20].
Besides the difference just discussed, there is another difference on the level of protection to the carrier between the common law rules and the Hague-Visby rules which relates to the scope of their obligation. Article III of the Hague-Visby rules requires the carrier to exercise due diligence to make the ship seaworthy both before and at the beginning of the voyage. In the case of Owners of Cargo Lately Laden on Board the Subro Valour v Owners of Subro Vega [21] the plaintiff claimed against the carrier for damages and loses caused by fire, alleging that the vessel was unseaworthy at the commencement of the voyage, so this contrasts with article III of the Hague-Visby rules. It held that because either the wiring, or the shelving, were in such a condition that damage could occur in ordinary weather, the ship was unseaworthy at the commencement of the voyage, therefore the carrier is liable to the damages and loses. It can be seen that the obligations to make a ship seaworthy do not extend as far as to during the voyage. In other words until the ship sails the carrier is still responsible to exercise due diligence to make a ship seaworthy, and since this time if there are damages and losses caused by unseaworthiness of the ship he will not be liable. However although the obligation of the carrier to provide a seaworthy ship, under the Common law, is not continuous, besides the fact that he has to practice the obligation at the loading stage or by the sailing of the ship this obligation may attach at other stages.[22] Particularly, while Day, J concerns about the warranty of seaworthiness at the commencement of the voyage from Oran to Garson in the case of Thin and Another v Richard & Co,[23] Collin L.J pointed out that for the voyage including many distinct stages the warranty of seaworthiness should be practiced at the commencement of each stage, therefore the carrier should be liable to damages and loses happening in the stage from Colombo to Suez for unseaworthiness of the ship in The Vortigen [24]. It can be seen that the scope of the responsibility on providing a seaworthy ship under the Common law is wider than that in the Hague-Visby rules. This means that the carrier may be liable to damages for unseaworthiness at the commencement of each stage in the voyage instead of the commencement of the voyage. In other words there is reduction of liability of the carrier to the obligation to ensure seaworthiness of the ship under the Hague-Visby rules in comparison to that under the common law.
From the cases discussed above, we can see that the liability of the carrier to the shipper who enters into the contract with him for unseaworthiness of the ship is, under Hague-Visby rules, lower than that under the common law. The question raised is whether or not the third party, specifically, the cargo owners in case the property passes from the shipper to him but he not a party in the contract with the carrier, could sue the carrier for damages caused by his breach of the obligation under the Hague-Visby rules. Article IV bis of the Hague-Visby rules regulates that the protection of the rules to the carrier shall apply in any action, whether founded in contract or in tort, against him in respect of loss and damages to the goods. Under this rule, the carrier may be liable for damages and losses caused by not exercising due diligence to make the ship seaworthy in tort to the cargo owner. In other words the carrier has protection from the Hague-Visby rules for liability for breach of the seaworthiness obligation not only to the shipper but also to the third party. This is also determined in Mitsui & Co Ltd v Novorossiysk Shipping Co (The Gudermes)[25]. In this case the carrier entered into a contract of carriage of fuel to Italy, and did not exercise due diligence to make the ship seaworthy under article III of the Hague-Visby rules. It held that because the property passed to the cargo owner, he could sue the carrier in tort. Therefore the carrier in this case is liable to the cargo owner for failure to exercise due diligence to make the ship seaworthy.
3. Deviation
In Davis v Garret [26] it held that the carrier was liable for the loss resulting from unnecessary deviation. From this case the common law set up ‘an implied obligation that the carrier will not deviate from the agreed route without any lawful justification for doing so’.[27] This means that the carrier has to comply with the agreed route strictly while he carries the goods. Therefore if he wants to call by any ports which are not either the specified departure or arrival port without bearing liabilities, he should add the liberty clause into the contract. For example in Glynn and Others v Margetson & Co and Others [28] the carrier entered into a contract of carriage of oranges from Malaga to specific ports stated under the bill of lading. In fact the ship called by a port on the east coast of Spain from Malaga, before returning and continuing to Liverpool, as a result the oranges were damaged because of the delay. It held that the oranges should be carried from Malaga to Liverpool and ‘the liberty must be restricted to ports which were in the course of voyage’, therefore the carrier was liable for the damages as the deviation in which the ship called by a port on the east coast of Spain and returned was not justified. However under the common law there are not many circumstances where deviation is considered to be justifiable. The court, in Scaramanga & Co. v Stamp and Another,[29] held that ‘a deviation for the purpose of saving life is justifiable, but not a deviation for the mere purpose of saving property’, so the carrier was liable. It can be seen that the carrier should not be liable in case of deviation for the purpose of saving property, because in the contract of affreightment the shipper as well as the cargo owner wants the goods to be delivered to the specified destination, but in case of perils at sea if the ship still keeps in line with the agreed voyage the cargo and itself may be destroyed, thus they will not achieve their purposes as laid out in the contract. However this defect of the common law rule is almost reformed under the Hague Rules as well as under the Hague-Visby Rules. Article IV rule 4 of these rules gives the carrier the right to deviate from the agreed voyage to save or attempt to save life or property at sea, and to do any reasonable deviation which is not an infringement or breach of the rule or of the contract of carriage. This is examined in Danae Shipping Corp v Tpao (the Daffodil B) [30] in which it held the fact that the ship deviated from the voyage from Sicily to Rotterdam to have her diesel generator repaired at Lavrion in Greece was a reasonable deviation within the Hague Rules Art IV, r.4. In conclusion the Hague-Visby Rules give the carrier greater protection in comparison with the common law rules.
4. Exceptions of liability of the carrier
At the common law there are implied exceptions, under which the carrier will not be liable for damages and losses resulting from incompliance of his obligations, including acts of god, acts of Queen’s enemies and Inherent vice which cause breaches of the contract of carriage of the carrier. These exceptions and their meanings under the common law will be examined in Nugent v Smith [31]. In this case, the court believed that an act of god is an act of nature ‘to which no act of man contributes’ such as storm, and rainfall, therefore the carrier who agreed to carry a mare for the plaintiff from London to Aberdeen was not liable for the fact that the mare died because of the injuries partly caused by the bad weather. However beside this the court added that the carrier can adduce on this exception only if the act of god is unforeseen. Thus if the bad weather is predicted, but the carrier does not have any action to prevent any damages which can occur due to bad weather, he is definitely liable for the damages. For acts of Queen’s enemies, Byles J pointed out that the Queen’s enemies ‘means enemies of the sovereign of the carrier, whether that sovereign be an Emperor or a Queen’ in Russell v Niemann.[32] In addition, in The Tuetonia,[33] war is concerned as an act of Queen’s enemies, so it held that the master ‘was not guilty of any breach of duty or breach of contract’ when he decided not to enter the port of Dunkirk under the circumstances which was the war between France and Prussia. Besides these the carrier who entered into the contract of carriage of cargo of rice for the plaintiff from Akyad to Liverpool in case of Pandorf & Co. v Hamilton, Fraser, & Co.[34] was not liable for damages of the rice caused by ‘sea-water passing from a metal pipe connected with a bathroom’, because it said that the pipe had been gnawed by rats brought on board by the plaintiff, therefore the damages were caused by inherent vice in the cargo. It is necessary to protect the carrier against liability when the breach of the contract is not caused by his action. Nevertheless in the case that the carrier breaks the contract without his fault or privity, the common law rule should also protect them against liability. These exceptions at the common law are incorporated into the Hague-Visby Rules. However the Hague-Visby Rules give the carrier more chance to contract out of his obligations by adducing the exceptions stipulated at article IV rule 2. The carrier, under the Hague-Visby Rules, is out of liability for losses and damages caused by ‘act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship’[35] as the shipowner did in the case of Compania Sud American Vapores v Ms ER Hamburg Schiffahrtsgesellschart mbH & Co KG [36]. Besides this he could adduce the provision under article IV rule 2(b) to escape from the liability for damages or losses caused by fire. The AM who was substituted for the cargo owner chartering a vessel from the shipowner to carry the cargo of cotton bales from Greece to two ports in South America sought for the exception of liability under article IV rule 2(b) in A Meredith Jones & Co Ltd v Vangemar Shipping Co Ltd [37] and they asserted that the fire resulting in the cargo damages was caused by the shipowner’s fault or the fact that the shipowner failed to exercise due diligence to make the vessel seaworthy, therefore they were not liable to contribute to the general average. However it held that the AM had not exercised the actual control over the stevedore’s operation during which they discarded their cigarette on board causing the fire, therefore the AM was be liable for the damages. In addition if the carrier can not rely on any exceptions stipulated at article 4 rule 2(a)-(p), he still has a chance to contract out of liability for damages caused by breach of the contract by adducing rule 2(q) in article 4, but he has to prove that he is not at any fault or privity contributing to the loss or damage. Therefore when the carrier fails in exploiting the exceptions such as act of god, default of his staffs in navigation or management of the ship, and the fire, he could not be liable if the damages and losses are caused either by his fault or his privity. It can be seen that the Hague-Visby rules protect the carrier as much as possible from liability for damages and losses caused without his fault or privity not only to the shipper but also to the third party such as the cargo owner by relying on the article IV bis as discussed above. This is necessary because of the nature of marine carriage. Especially, the carrier may not be a person who governs the ship directly, and usually the management the ship during the voyage is performed by a master and crew. Therefore the carrier should not be liable as either his staff is or he is not at fault due to damages. For example there are damages caused by fault of a master or a crew within his operation because without directions from the carrier, or because they do not listen to the directions and the carrier is not aware of this fault.
5. Conclusion
This paper has proved that the carrier has greater protection under the Hague-Visby Rules than he would have under the common law rules by critically analysing the cases as to the provisions relating to seaworthiness, deviation and exceptions of liability. In each part, the relationship between the carrier, the shipper and the third party in connection to the carrier’s liability has been considered. It can be seen that of course when the carrier is better protected, the chance to seek compensation for damages and losses of the cargo owner is decreased. However as sea voyages always face potential dangers, it is necessary to protect the carrier in the case that they exercised due diligence to comply with the contracts. From this perspective, the common law requests the carrier to strictly implement his obligations while it is reasonable for him to not be liable for damages in some cases. Therefore the Hague-Visby Rules are now applied to govern the contracts, which cover bills of lading or similar documents of title, not only mandatorily but also by agreement between the parties in case of choice of law.
FOOTNOTES:
[1] John F Wilson, Carriage of goods by sea (7th edn), Mylawchamber, UK, 2010.
[2] The carriage of goods by sea act 1971, art 1.
[3] The International Convention for the unification of certain rules of law relating to Bills of Lading drafted in Brussels in 1924
[4] The International Convention for the unification of certain rules of law relating to bills of lading as amended by the Brussels Protocol 1968.
[5] The Carriage of Goods by Sea Act 1971, art 1.
[6] Ahmad Hussam Kassem, ‘The legal aspects of seaworthiness: current law and development’ (DPhil thesis, the University of Wales 2006) 14. < http://discovery.ucl.ac.uk/6988/1/6988.pdf> accessed 3rd March 2012.
[7] Channel J, ‘McFadden v Blue Star Line’ (case note) [1905] 1 K.B. 697.
[8] Griffiths L. J, ‘Actis Co. Ltd v Sanko Steamship Co. Ltd’ (case note) [1982] 1 W.L.R. 119 (CA).
[9] Cresswell J, ‘Papera Traders Co Ltd v Huyndai Merchant Marine Co Ltd’ (case note) [2002] EWHC 118 (Comm).
[10] Lachmi Singh, The law of carriage of goods by sea, Bloomsbury Professional, UK, 2011.
[11] Tomlinson, ‘Eridania SpA & Ors v Oetker & Ors (‘The Fjord Wind’)’ (case note) [2000] C.L.C 1376.
[12] President of India v West Coast Steamship Co [1963] 2 Lloyd’s Rep 278.
[13] Lachmi Singh, The law of carriage of goods by sea, Bloomsbury Professional, UK, 2011.
[14] Owners of Cargo on Ship “Maori King” v Hughes [1895] 2 Q.B. 550 (CA).
[15] Lennard’s Carrying company v Asiatic Petroleum company [1915] A.C 705 (House of Lords).
[16] Parson Corp v CV Scheepvaartonderneming Happy Ranger [2006] EWHC 122 (Comm).
[17] The carrier shall not be liable for damage caused by unseaworthiness if he did exercise due diligence to make the ship seaworthy, and ‘the burden of proving the exercise of due diligence shall be on the carrier or other person claiming exemption under this article’
[18] Clarke LJ, ‘Eridania SpA & Ors v Oetker & Ors (‘The Fjord Wind’)’ (case note) [2000] C.L.C 1376.
[19] John F Wilson, Carriage of Goods by Sea (7th edn), Mylawchamber, UK, 2010.
[20] The Hellenic Dolphin [1978] 2 Lloyd’s Rep. 336. in which the cargo owner sued the shipowner for damages of the 3,182 bags of asbestos caused by seawater, and it held that ‘the shipowner had complied with their obligation to exercise in that the ship was fully classed and had undergone her annual dry docking in December 1972….’ so the shipowner is not liable because of unseaworthiness of the ship.
[21] Owners of Cargo Lately Laden on Board the Subro Valour v Owners of Subro Vega [1995] 1 Lloyd’s Rep. 509
[22] Lachmi Singh, The law of carriage of goods by sea. Bloomsbury Professional, UK, 2011.
[23] Thin and Another v Richard & Co [1892] 2 Q.B. 141.
[24] The Vortigen [1899] P. 140. in which the ship of the plaintiff carrying the defendant’s cargo from Cebu in the Philippine Islands to Liverpool was seaworthy at the commencement of the first stage, and then unseaworthy at the next stage from Colombo to Suez because it did not take enough quantity of coal.
[25] Mitsui & Co Ltd v Novorossiysk Shipping Co (The Gudermes) [1992] 1 Lloyd’s Rep. 311.
[26] Davis v Garret [1830] 130 E.R. 1456. in which the ship was deviated unnecessarily from the usual course when it carried the cargo of lime from Medway to London as contracted with the plaintiff.
[27] Lachmi Singh, The law of carriage of goods by sea, Bloomsbury Professional, UK, 2011.
[28] Glynn and Others v Margetson & Co and Others [1893] A.C. 351 (House of Lord)
[29] Scaramanga & Co. v Stamp and Another [1879-80] L.R. 5 C.P.D. 295. in which the carrier agreed to carry a cargo of wheat from Cronstadt to the Mediterranean and the ship called by Texel to save her and her cargo.
[30] Danae Shipping Corp v Tpao (the Daffodil B) [1982] 1 Lloyd’s Rep. 498.
[31] Nugent v Smith [1875-76] L.R. 1 C.P.D. 432.
[32] Byles J, ‘Russell v Niemann’ (case note) [1864] 17 C.B. N.S 163
[33] The Tuetonia [1869-72] L.R. 3 A. & E. 394
[34] Pandorf & Co. v Hamilton, Fraser, & Co [1885-86] L.R. 16 Q.B.D. 629
[35] The Hague-Visby Rules, art IV r 2(a).
[36] Compania Sud American Vapores v Ms ER Hamburg Schiffahrtsgesellschart mbH & Co KG [2006] EWHC 483 (Comm)
[37] A Meredith Jones & Co Ltd v Vangemar Shipping Co Ltd [1999] 2 Lloyd’s Rep. 292
REFERENCE:
- John F Wilson, Carriage of goods by sea (7th edn), Mylawchamber, UK,
- Lachmi Singh, The law of carriage of goods by sea, Bloomsbury Professional, UK 2011
- Martin Dockray and Katherine Reece Thomas, Cases & Materials on the carriage of goods by sea (3rd edn), Cavendish, UK, 2004.
- Stephen Girvin, Carriage of good by sea (2nd edn), Oxford university press, UK, 2011)
- Alexander Von Ziergler, The liability of the contracting carrier, Tex. Int’l L.J, 44 (2009)
- Charles Debattista, Fundamental breach and deviation in the carriage of goods by sea, J.B.L (1989) 26.
- Chen Liang, Seaworthiness in charter parties, J.B.L (2000) 1.
- Eun Sup Lee and Sun Ok Kim, Sea carriers’ liability for default, Journal of Korea Trade 9(2) (2005) 89.
- Francesco Berlingieri, The Hague-Visby Rules and actions in tort, P & I Int. 6(2) (1992) 14.
- Francis Reynolds, The Hague Rules, the Hague-Visby Rules, and the Hamburg Rules, MLAANZ journal 7 (1990) 16.
- Francis Reynolds, Some recent development in maritime law in England, MLAANZ Journal 7 (1990) 35.
- Hoke III Peacook, Deviation and the package limitation in the Hague Rules and the Carriage of Goods by Sea Act: An alternative approach to the Interpretation of International Uniform Acts, Tex. L. Rev 68 (1989-1990) 977.
- Paul David, The Hague-Visby Rules back on course?, NZLJ (2010) 189.
CÔNG ƯỚC HAGUE - VISBY BẢO VỆ NGƯỜI VẬN CHUYỂN ĐƯỜNG BIỂN NHIỀU HƠN SO VỚI LUẬT COMMON LAW CỦA ANH
ThS. BÙI ĐOÀN DANH THẢO
Khoa Quản trị Kinh doanh, Trường Đại học Quốc tế - Đại học Quốc Gia TP.HCM
TÓM TẮT:
Trong hợp đồng vận chuyển hàng hóa bằng đường biển, người vận chuyển có nghĩa vụ phải giao hàng hóa đến điểm giao hàng đúng thời hạn như đã cam kết với người gửi hàng. Để thực hiện nghĩa vụ này, người vận chuyển ngoài việc đảm bảo tàu của họ có khả năng đi biển thì còn phải đảm bảo việc tuân thủ đúng lộ trình trong suốt quá trình vận chuyển hàng hóa. Tuy nhiên, trên thực tế luôn luôn tồn tại những rủi ro như sóng triều, sóng thần, cướp biển và cướp biển có vũ khí. Do đó, cần thiết phải bảo vệ những người vận chuyển trong trường hợp họ không có lỗi hoặc đã cố gắng hết sức thực hiện nghĩa vụ của mình. Ở Vương quốc Anh, mặc dù Luật Vận tải hàng hóa bằng đường biển năm 1971 chuyển hóa Công ước Hague – Visby đã được ban hành, nhưng luật common law vẫn được áp dụng cho những trường hợp nằm ngoài phạm vi điều chỉnh của Luật Vận tải hàng hóa bằng đường biền 1971. So với luật common law, luật Vận tải hàng hóa bằng đường biển năm 1971 hay Công ước Hague – Visby bảo vệ người vận chuyển nhiều hơn. Để tìm hiểu về vấn đề này, bài viết sẽ tập trung bình luận và phân tích các tranh chấp về trách nhiệm của người vận chuyển liên quan đến vấn đề đảm bảo khả năng đi biển của tàu và tuân thủ lộ trình, và các tranh chấp về các trường hợp miễn trách của người vận chuyển.
Từ khóa: Khả năng đi biển của tàu, tuân thủ lộ trình của tàu, miễn trách, Công ước Hague - Visby.
