Bcom H CHPT 6 Wilson - Part 2

INTRODUCTION TO SHIPPING AND MARITIME
REGULATION
THE REGULATORY FRAMEWORK OF MARITIME ECONOMICS
WILSON CHAPTER 6 THE HAGUE VISBY RULES. PART 2.
PROF JOHAN DU PLESSIS 2020
6.2 LEGAL EFFECT OF THE RULES
• When statutory force was given to the

original Hague Rules, it was provided by s 1
of the Carriage of Goods by Sea Act 1924
that the Rule ‘shall have effect in relation to
and in connection with certain types of
contract for the carriage of goods by sea.
LEGAL EFFECT OF THE RULES
• The phrase ‘shall have effect’ appears to

have been interpreted by the courts as, in
practice, conferring little more than
contractual force on the Rules.
* Vita Food Products v Unus Shipping Co
• A radically different approach was adopted

by the legislature in implementing the
provisions of the Hague/Visby Rules. The
1971 Carriage of Goods by Sea Act drops the
requirement for the inclusion in every bill of
lading of a paramount clause expressly
incorporating the Rules but provides that
they shall have ‘the force of law’.
* The Morviken
• On the other hand, the decision in The

Morviken will only be relevant in a situation
where the application of the Hague/Visby
Rules is mandatory. In circumstances where
the Rules are not otherwise applicable, the
courts are not prepared to interpret a choice
of English law as indicating an intention to
incorporate the Rules into the contract of
carriage within the meaning of Art X
* The Komninos S
• Finally it must be remembered that the

parties are free expressly to incorporate the
Hague/Visby Rules into a bill of lading or
non-negotiable receipt in situations where
the Rules would not otherwise be applicable.
• Now s 1(6) of COGSA 1971 provides that in
the event of any conflict, the provisions of
the Rules will override express terms of the
contract which are inconsistent with them.
• The object of the subsection is ‘to confer on

a voluntary contractual tie a statutory
binding character’.
* The European Enterprise
6.3 BASIC PROVISIONS OF THE HAGUE/VISBY
RULES
• The Hague/Visby Rules were ‘not conceived
as a comprehensive and self-sufficient code
regulating the carriage of goods by sea’, but
merely designed to provide a basic, but
compulsory, framework for the contract of
carriage, outside of which the parties were
free to negotiate the remaining terms.
6.3.1 DUTIES OF THE CARRIER
I. OBLIGATION TO PROVIDE A SEAWORTHY

SHIP - ART III RULE 1
• At common law the carrier was under an
absolute obligation to provide a seaworthy
ship subject only to the common law
exceptions of act of God, Queen’s enemies
or inherent vice.

a) Duration of obligation
• The article requires the carrier to exercise
due diligence to provide a seaworthy ship
‘before and at the beginning of the voyage’.
The phrase has been interpreted as covering
‘the period from at least the beginning of the
loading until the vessel starts on her voyage.

b) Meaning of due diligence
• The standard imposed by this obligation has
been interpreted by the courts as being
roughly equivalent to that of the common law
duty of care, but with the important
difference that it is a personal obligation that

cannot be delegated
* The Muncaster Castle
* The Amstelslot
c) Burden of proof
• Article VI rule provides that the carrier shall
not be liable for loss or damage arising or
resulting from unseaworthiness unless
caused by want of due diligence on his part
to make the ship seaworthy, as defined in Art
III rule 1
c) Burden of proof
• The phraseology of this article has led to the
general assumption that no onus is cast on
the carrier in relation to proof of due
diligence until the other party has first
established that the vessel was unseaworthy
and that his loss was attributable to that fact.
* The Hellenic Dolphin
II. CARE OF CARGO

• Article III rule 2 provisions that:
‘Subject to the provisions of Article IV, the
carrier shall properly and carefully load,
handle, stow, carry, keep, care for and
discharge the goods delivered.’
* Albacora v Westcott and Laurance Line
III. OBLIGATION TO ISSUE A BILL OF LADING

• Article III rule 3 provides that:
‘After receiving the goods into his charge the
carrier or the master or agent of the carrier
shall, on demand of the shipper, issue to the
shipper a bill of lading showing among other
things -

a) The leading marks necessary for
identification of the goods as furnished in
writing by the shipper before loading of
such goods starts, provided such marks are
stamped or otherwise shown clearly upon
the goods is uncovered, or on the cases or
coverings in which such goods are
contained in such a manner as should
ordinarily remain legible until the end of the
voyage;

b) Either the number of packages or pieces, or
the quantity, or weight, as the case may be,
as furnished in writing by the shipper;
c) The apparent order and condition of the
goods.’

• The obligation imposed on the carrier is,
however, subject to two provisos. First, he
is not bound to acknowledge the above
facts if either he has reasonable grounds
for suspecting that the information supplied
by the shipper is inaccurate, or he has no
reasonable means of checking it, as for
example if the goods are delivered to him in
a sealed container.

• Secondly, the shipper in return is deemed
to have guaranteed the accuracy of the
information supplied by him and is required
to identify the carrier in the event of the
latter suffering loss as a result of its
inaccuracy.
Carpe Diem

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INTRODUCTION TO SHIPPING AND MARITIME

• When statutory force was given to the

• The phrase ‘shall have effect’ appears to

• A radically different approach was adopted

• On the other hand, the decision in The

• Finally it must be remembered that the

• The object of the subsection is ‘to confer on

I. OBLIGATION TO PROVIDE A SEAWORTHY

I. OBLIGATION TO PROVIDE A SEAWORTHY

I. OBLIGATION TO PROVIDE A SEAWORTHY

difference that it is a personal obligation that

II. CARE OF CARGO

III. OBLIGATION TO ISSUE A BILL OF LADING

III. OBLIGATION TO ISSUE A BILL OF LADING

III. OBLIGATION TO ISSUE A BILL OF LADING

III. OBLIGATION TO ISSUE A BILL OF LADING

III. OBLIGATION TO ISSUE A BILL OF LADING

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