INTRODUCTION TO SHIPPING AND MARITIME

REGULATION
THE REGULATORY FRAMEWORK OF MARITIME ECONOMICS
PROF JOHAN DU PLESSIS 2021
 RULES
E HAM BURG
PT 7 TH
CH
7.1 INTRODUTION

• The modifications to the Hague Rules

effected by the Brussels Protocol in 1968 did
not gain universal approval.
• They were regarded by many cargo owning
countries as constituting merely a temporary
expedient and there was a growing demand
for a thorough reappraisal of carrier liability
designed to produce a comprehensive code
covering all aspects of the contract of
carriage
7.1 INTRODUTION

• This movement culminated in the drafting of

a new Convention which was adopted, at an
international conference sponsored by the
united Nations in Hamburg, in March 1978.
7.1.1 SCOPE OF APPLICATION OF THE RULES

• The Hamburg Rules apply to contracts of

carriage by sea which are defined as “any
contract whereby the carrier undertakes
against payment of freight to carry goods by
sea from one port to another.”
• This approach differs from that of either the
Hague or Hague/Visby Rules which
concentrate on “contracts of carriage
covered by a bill of lading or any similar
document of title.
7.1.1 SCOPE OF APPLICATION OF THE RULES

• So far as the Hamburg Rules are concerned,

it is immaterial whether a bill of lading or a
non-negotiable receipt is issued, and the
definition of “Bill of Lading” in Art 1.7 is
worded accordingly.
7.1.1 SCOPE OF APPLICATION OF THE RULES

• Convention, however, follows its

predecessors in that its provisions are not
applicable to charter parties or to bills of
lading issued pursuant to them unless such
a bill “governs the relation between the
carrier and the holder”, I.e. it has been
issued or negotiated to a party other than the
charterer.
7.1.1 SCOPE OF APPLICATION OF THE RULES

• The Hamburg Rules govern both inward and

outward bills – an important factor to be
taken into account by shipowners who trade
with countries in which the Convention is
now effective.
7.1.1 SCOPE OF APPLICATION OF THE RULES

• Whereas the Hague and Hague/Visby Rules

are only applicable from tackle to tackle, the
Hamburg Rules are designed to operate
throughout the entire 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”.
7.1.2 BASIC CARRIER LIABILITY

i. GENERAL DEFINITION
• In framing a uniform and comprehensive
test of carrier liability, the draftsmen of the
Hamburg Rules have adopted the argument
long advanced by cargo interest that carrier
liability should be based exclusively on fault
and that a carrier should be responsible
without exception for all loss of, and
damage to cargo that results form his own
fault or the fault of his servants or agents.
7.1.2 BASIC CARRIER LIABILITY

i. GENERAL DEFINITION
• However, one major shift of responsibility
is envisaged by the abolition of the
exception covering negligence in the
navigation or management of the ship.
(a) Nature of liability
• The carrier’s duty to provide a seaworthy
ship under the Hamburg Rules is to be
judged on the same basis as his duty
towards the cargo.
7.1.2 BASIC CARRIER LIABILITY

i. GENERAL DEFINITION
b) Burden of Proof
• The Hamburg Rules presume fault in all
cases of loss or damage to cargo and so
imposing a uniform burden of proof on the
carrier.
• Only in the case of damage caused by fire
is the burden shifted away from the carrier,
presumably for the reason that it is difficult
to establish the precise origin of a fire at
sea.
7.1.2 BASIC CARRIER LIABILITY

ii.SPESIFIC PROVISON FOR PARTICULAR

CASES
a) Carriage of live animals
• Provided that the carrier can establish that
he has complied with any instructions
given to him by the shipper respecting the
carriage of the animals in question, and the
particular loss incurred could be attributed
to such risks, it will be presumed that the
loss was so caused “unless there is proof
7.1.2 BASIC CARRIER LIABILITY

ii.SPESIFIC PROVISON FOR PARTICULAR

CASES
a) Carriage of live animals
that all or a part of the loss, damage or
delay in delivery resulted from fault or
negligence on the part of the carrier, his
servants or agents.”
7.1.2 BASIC CARRIER LIABILITY

ii. SPESIFIC PROVISON FOR PARTICULAR

CASES
b) Carriage of deck cargo
• According to Art 9, deck cargo will be
treated as normal cargo, and subject to the
Rules, where it is shipped “in accordance
with an agreement with the shipper, or with
the usage of the particular trade or is
required by statutory rules or regulations.
LOCOMOTIVES – DECK CARGO
7.1.2 BASIC CARRIER LIABILITY

ii. SPESIFIC PROVISON FOR PARTICULAR

CASES
c) Deviation
• “The carrier is not liable except in general
average, where loss, damage or delay is
delivery resulted from measures to save life
or from reasonable measures to save
property at sea.”
7.1.2 BASIC CARRIER LIABILITY

ii. SPESIFIC PROVISON FOR PARTICULAR

CASES
d) Partial liability of carrier
• The Hamburg Rules provide that the carrier
shall be liable “only to the extent that the
loss damage or delay in delivery is
attributable to his fault” provided that he
can establish the proportion of loss
attributable to other factors.
7.1.2 BASIC CARRIER LIABILITY

ii. SPESIFIC PROVISON FOR PARTICULAR

CASES
e) Loss caused by delay in delivery
• The Hamburg Rules expressly provide that
the carrier will be liable for loss resulting
from delay in delivery unless he can
discharge the standard burden of proof, I.e.
that neither he nor his servants or agents
were at fault.
7.1.3 LIMITATION OF LIABILITY

• The draftsmen of the Hamburg Rules

rejected the Poincaré franc as the unit of
account in favour of the Special Drawing
Right (SDR) as defined by the International
Monetary Fund.
• In cases where the SDR is the appropriate
unit of account, Art 6.1(a) provides that the
carrier’s liability is limited to an amount
‘equivalent to 835 units of account per
package or other shipping unit, or 2.5 units
7.1.3 LIMITATION OF LIABILITY

of account per kilogramme of gross weight of

the goods lost or damaged, whichever is the
higher.
• Alternatively, in those states permitted to use
the Poincaré franc, the corresponding
limitation would be 12,500 and 37,5 monetary
units respectively.
• These figures represent a 25 per cent
increase on the limits presently prescribed in
the Hague/Visby Rules.
7.1.4 LOSS OF RIGHT TO LIMIT
LIABILITY
• While the Hague Rules entitled the carrier to
limit his liability for cargo damage within the
permitted amounts ‘in any event’, this phrase
has now disappeared from the
corresponding limitation clause in the
Hamburg Rules.
• In its place is the unqualified statement that
the liability of the carrier ‘is limited’ to the
amounts specified without any further
reservation except that contained in Art. 8.
7.1.4 LOSS OF RIGHT TO LIMIT
LIABILITY
• Article 8 specifically denies the carrier the
right to limit his liability for any loss, damage
or delay which results from an act or
omission of the carrier ‘done with intent to
cause such loss, damage or delay, or
recklessly and with knowledge that such
loss, damage or delay would probably
result.’
7.1.5 OTHER PROVISIONS

I. ISSUES OF BILL OF LADING

• Once the carrier has taken the goods into
his charge he is required on demand of the
shipper to issue a bill of lading containing a
variety of information listed in Art 15.
• These provisions covering the receipt
function of the bill of lading generally follow
the pattern established by the Hague and
Hague/Visby Rules, but there are significant
variations in detail.
7.1.5 OTHER PROVISIONS

I. ISSUES OF BILL OF LADING

• Thus, while the carrier is excused from
acknowledging particulars which he knows
or has reasonable grounds for suspecting
are inaccurate, or which he has no
reasonable means of checking, he is now
required to ‘insert in the bill of lading a
reservation specifying these inaccuracies,
grounds of suspicion or the absence of
reasonable means of checking.’
7.1.5 OTHER PROVISIONS

I. ISSUES OF BILL OF LADING

• The carrier will have no right of indemnity
against the shipper if his intention in issuing
the bill in this form was ‘to defraud a third
party, including a consignee, who acts in
reliance on the description of the goods in
the bill of lading.’
7.1.5 OTHER PROVISIONS

II. LIMITATION OF ACTION

• Actions are time-barred under the Hamburg
Rules if judicial or arbitral proceedings have
not been instituted within a period of two
years from the time the goods have been
delivered or should have been delivered.
7.1.5 OTHER PROVISIONS

III. DANGEROUS GOODS

• The Hamburg Rules introduce three new
requirements for the shipment of dangerous
goods. First the shipper must mark or label
the goods in such a way as to indicate that
they are dangerous; secondly he must
inform the carrier of the dangerous
character of the goods and of any necessary
precautions to be taken and, finally the bill
of lading must include an express statement
that the goods are dangerous.
7.1.5 OTHER PROVISIONS

IV. JURISDICTION
• In the event of a claim being brought in
respect of a contract for the carriage of
goods governed by this convention, the
plaintiff is given a wide choice of courts in
which to initiate judicial or arbitral
proceedings.
• Provided that the court selected is
competent in terms of its own domestic law,
the plaintiff has the option of instituting
proceedings in any court.
7.1.5 OTHER PROVISIONS

V. DEFINITION OF THE ‘CARRIER’

• Who is the carrier for the purposes of the
Hamburg Rules? He is defined in Art 1 as
‘any person by whom or in whose name a
contract of carriage of goods by seas has
been concluded with a shipper.
• This definition is somewhat wider than that
provided by the Hague or Hague/Visby
Rules, since it extends beyond the
7.1.5 OTHER PROVISIONS

V. DEFINITION OF THE ‘CARRIER’

• shipowner or charterer to include any
person who has negotiated, as principal, a
contract to carry goods by sea, even though
he has no intention of carrying the goods
himself. Accordingly, it could include a
freight forwarder, a combined transport
operator or any other type of non-vessel
owning carrier.
7.1.6 PROSPECTS FOR ADOPTION OF THE
HAMBURG RULES
• Whatever the merits of the draftsmanship of
the Hague and Hague/Visby Rules, their
provisions have been well tested in litigation
and their effects are now reasonably clear.
• On the other hand, the introduction of new
concepts phrase in ambiguous language,
which is often the result of diplomatic
compromise, presents the opportunity for
endless litigation, the cost of which may well
be prohibitive.
7.1.6 PROSPECTS FOR ADOPTION OF THE
HAMBURG RULES
• Some few years after the Rules came into
effect, what are the chances of their
widespread adoption? At present they have
not been ratified by any major maritime
nation but have been implemented in 26
states estimated to represent overall some 5
per cent of world trade.
7.1.7 LATER DEVELOPMENTS

• In recent years the overall situation has been

further complicated by the fact that a number
of states have unilaterally adopted a hybrid
Hague-Hague/Visby-Hamburg regime, the
details of which differ from state to state.
• The major maritime nations involved include
China, Japan the Scandinavian states and
Australia, while a draft bill to similar effect is
currently before the US Senate.
Carpe Diem