The Hague-Visby Rules, Harter Act 1893
‘The Hague-Visby Rules 1968 built upon the Hague Rules 1924 and the United States Harter Act 1893. They were intended to balance the competing interests of both carriers and shippers. However, it could be argued that the Hague-Visby Rules 1968 failed to achieve this balance as the rules were drafted to protect the carrier and, consequentially, failed to protect shippers adequately. Examples include the breadth of exclusions available to the carrier and the difficulties for the shipper in establishing a breach by the carrier.
This is unsurprising, given that it is in the national interest of western states to protect ship-owners. The Hamburg Rules have gone some way towards creating a fair balance between the shipper and the carrier.' Critically discuss the statement with reference to appropriate cases, the above Rules and academic literature.
[...] the contrary, they ought to be happy that the ambiguity in the Hague-Visby Rules has been eliminated. This is especially since Annex II of the Hamburg Rules even goes so far as to reiterate: is the common understanding that the liability of the carrier under this Convention is based on the principle of presumed fault or neglect. This means that, as a rule, the burden of proof rests on the carrier but, with respect to certain cases, the provisions of the Convention modify this rule.” Moreover, with regard to substance, Hamburg does is shift the burden of proof to the party best able to garner the facts. [...]
[...] At best though, they are reasonable, flexible and up-to-date. The same, however, cannot be said about the Hague-Visby Rules. Accordingly, perhaps it would be fairest to say that the Hamburg Rules not perfect rules but they are, perhaps, the best which could be obtained in an imperfect world”.50 I (Student Reference Number 1053314) declare that this piece of work contains 3,994 words See e.g., Articles and where “[contractual] carrier” and “actual carrier” are defined respectively. See Grönfors, supra note 16, pp.335-336. [...]
[...] Selvig, Hamburg Rules, the Hague Rules and Maritime Insurance Practice' (1981) 12 Journal of Maritime Law and Commerce. Tetley, William, ‘Cargo Owner's Obligations in General Average' (1988) 19 Journal of Maritime Law and Commerce. Tetley, William, ‘Interpretation and Construction of the Hague, Hague/Visby and Hamburg Rules' (2004) 10 Journal of International Maritime Law. Tetley, William, Hamburg Rules—A Commentary' (1979) Lloyd's Maritime and Commercial Law Quarterly. Werth, Douglas Hamburg Rules Revisited—A Look at U.S. Options' (1991) 22 Journal of Maritime Law and Commerce No.1. [...]
[...] Firstly, “there is some continuity [here] between the Hamburg Rules and its predecessors [because] both Hague and Visby place affirmative duties upon carriers. In effect, what the Hamburg Rules have done in article is to take the catch-all ‘exception' of Hague's article and to turn it into a general duty with the burden of proof being on the carrier to disprove fault. This general duty is thus allowed to swallow nearly all the defenses of Hague.”44 Imposing such a general duty on the carrier in fact makes the Hamburg Rules clearer than the Hague-Visby Rules in respect of the question of burden of proof since, with the exception of Article the Hague-Visby Rules are largely silent on the issue. [...]
[...] It is now increasingly understood that this defence is a vital part of the mechanism for allocating risk under the Hague and Hague-Visby Rules, that the system of risk allocation under those Rules is economically more efficient than that provided by the Hamburg Rules, and that the elimination of the nautical fault defence at Hamburg in March 1978 on political considerations and on irrelevant perceptions of ‘equity' and ‘fairness' was a mistake.”42 However, if we are to evaluate the success of both Rules based on whether fair balance between the shipper and the carrier” is achieved, such a position as Makins' is self-defeating, for two reasons: Firstly, he himself acknowledges that the Hamburg Rules were indeed based on and “fairness”. Secondly, he actually dismisses these considerations as See Werth, supra note p.62. Tetley ‘Cargo Owner's Obligations in General Average' (1988) 19 Journal of Maritime Law and Commerce pp.105- See Frederick, supra note p.81, note 1. [...]
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