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The Hamburg Rules: a Comparative Analysis, 12 U View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by University of Miami School of Law University of Miami Law School Institutional Repository University of Miami Inter-American Law Review 1-1-1980 The aH mburg Rules: A Comparative Analysis D. E. Murray Follow this and additional works at: http://repository.law.miami.edu/umialr Recommended Citation D. E. Murray, The Hamburg Rules: A Comparative Analysis, 12 U. Miami Inter-Am. L. Rev. 59 (1980) Available at: http://repository.law.miami.edu/umialr/vol12/iss1/3 This Article is brought to you for free and open access by Institutional Repository. It has been accepted for inclusion in University of Miami Inter- American Law Review by an authorized administrator of Institutional Repository. For more information, please contact [email protected]. The Hamburg Rules: A Comparative Analysis D. E. MuRRAY* INTODUCTION The new "Hamburg Rules",1 which are designed to govern inter- national carriage of goods by sea, are intended to take the place of the Hague Rules, 2 exemplified in the American facsimile, the Carriage of Goods by Sea Act (COGSA).' Although the Hamburg Rules grew out of the Hague Rules, it can be observed that the Hamburg Rules also derive some of their concepts from the Warsaw Convention ' (as amended)" governing international air transportation. This article is designed to analyze the new Hamburg Rules and to compare their provisions with those of the existing Hague Rules (COGSA), including some of its case law progeny, and with the original Warsaw Convention, the 1955 Hague amendments to the Warsaw Convention (Warsaw-Hague), and selected sections of the Uniform Commercial Code, the United States Interstate Commerce Act,' and United States statutes limiting liability of ship owners.7 INTERPRETATION OF THE HAMBURG RULES Hamburg provides that "[iln the interpretation and application of the provisions of this Convention regard shall be had to its inter- national character and to the need to promote uniformity."' The * Professor of Law, University of Miami School of Law. 1. Final Act of the United Nations Conference on the Carriage of Goods by Sea of March 30, 1978, 17 I.L.M. 608-31 (1978) (hereinafter cited as Hamburg). 2. International Convention for the Unification of Certain Rules Relating to Bills of Lading (Hague Rules), August 25, 1924, 120 L.N.T.S. 157 (herein- after cited as Hague Rules). 3. 46 U.S.C. §§ 1300-1315 (1970). In most essentials, COGSA is textu- ally equivalent to the Hague Rules. 4. Warsaw Convention, opened for signature Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876, 137 L.N.T.S. 11 (hereinafter cited as Warsaw). 5. The Hague Protocol to The Warsaw Convention, opened for signature Sept. 28, 1955, 478 L.N.T.S. 371 (hereinafter cited as Warsaw-Hague). Text taken from LoRD McNAIR, THE LAW OF THE Aia 501-16 (3rd ed. 1964). The Hague Protocol contains only amendments to the Warsaw Convention, and any parts which are not so amended are not to be found within the Protocol. 6. See notes 81 and 88 infra. 7. See notes 165 and 168 infra. 8. See Hamburg, supra note 1, at art. 3. LAWYER OF THE AMERICAS Convention is "in a single original, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic.'" ' One wonders whether the drafters' goal for uniformity will be reached when a Convention is written in six different languages. On the other hand, the provision that each language is equally authentic avoids the dilemma posed by the Warsaw Convention, which was written only in French "0and then improperly translated in many respects in England and the United States, with the result that courts have had to resort to dictionaries and to schoolboy French in order to interpret its terms." Under such an approach, non- uniformity prevails. No matter which approach is chosen, however, it appears that uniformity is a Utopian goal over the following years, unless one or two forums only are selected for dispute settlement in the vast majority of the bills of lading used in international trade. 2 SCOPE OF APPLICATION Under the Hamburg Convention, the Rules will govern all con- tracts of carriage by sea between two different countries if either the port of loading, the port of discharge, or one of the optional ports of discharge is the actual port of discharge, and such port is located in a contracting state." The Rules will also apply if the bill of lading is issued in a contracting state, or the bill of lading provides that the Hamburg Rules are to govern the contract of shipment. Let us assume that a bill of lading is issued in a contracting state, and the shipment is to be discharged in an American port which is governed by the Hague Rules. (COGSA). Which rules will apply-Hamburg or COGSA? If suit were brought in a court in the United States, the Hague Rules (COGSA) would control. 4 On the other hand, if suit were brought in the first contracting state, the Hamburg Rules would control. A delightful conflicts question thus arises. 9. Id. at art. 34, § 2. The preamble to the Convention also repeats much of this language. 10. See Warsaw, supra note 4, at art. 36. The Hague Protocol (Warsaw- Hague) is also drafted solely in French. See note 5 supra. 11. See, e.g., Corocraft, Ltd. and Vendome Jewels, Ltd. v. Pan American Airways, Inc., [1968] 2 Lloyd's List L.R. 459; Fothergill v. Monarch Airlines, [1977] 2 Lloyd's List L.B. 184. 12. See Hamburg, supra note 1, at art. 21, § 1(d). This provision permits a limited choice to contract for a particular forum. 13. Id. at art. 2. 14. See COGSA, supra note 3, at § 1305. THE HAMBURG RULES The COGSA rules provide that they "shall not be applicable to charter parties; but if bills of lading are issued in the case of a ship under a charter party, they [meaning the bills of lading] shall comply with the terms of this Act."15 This wording has been changed dra- matically under the Hamburg Rules which provide: The provisions of this Convention are not applicable to charter parties. However, where a bill of lading is issued pursuant to a charter party, the provisions of the Convention apply to such a bill of lading if it governs the relation between the carrier and the holder of the bill of lading not being the charterer1 6 (emphasis added). Under Hamburg, it appears that only when third parties are holders of the bills of lading will the Rules govern. It seems permis- sible for the parties to incorporate the Hamburg Rules into the bill of lading by contractual reference." Under COGSA, the carrier is liable for damage (if liable at all) only for the period from the time when the goods are loaded on board the ship to the time when they are discharged from the ship. It is common to say that the carrier is liable only from tackle to tackle."6 COGSA further provides that the parties can, by contract, agree to the liability of the ship for custody and handling of goods prior to loading and subsequent to discharge from the ship on which the goods are carried. As a practical matter, many bills of lading do provide 15. Id. 16. See Hamburg, supra note 1, at art. 2, § 3. 17. Article 28 of the Hamburg Rules states: Any stipulation in a contract of carriage by sea, in a bill of lading, or in any other document evidencing the contract of carriage by sea is null and void to the extent that it derogates, directly or indirectly, from the provisions of this Convention. The nullity of such a stipulation does not affect the validity of the other provisions of the contract or document of which it forms a part. A quick reading of this provision would seem to indicate that the Hamburg Rules could not be applied by contract to a bill of lading issued to a charterer of the vessel because this would be in derogation of the Convention. On the other hand, since Hamburg has declined jurisdiction over bills of lading issued by a ship to the charterer, Hamburg should have no concern as to what private parties have chosen to do by contract; the contract does not truly derogate from the Hamburg Rules because Hamburg has chosen not to interfere with their private arrangements. Further, the use of the word derogate, which means to take away from or lessen the force of, would seem to indicate that if the parties have agreed to extend the reach of Hamburg by contract, they have not lessened its reach but have rather increased it. 18. W. TETLEY, MARUNE CA.RcO CLAIMS 10-11 (2d ed. 1978). LAWYER OF THE AMERICAS for the responsibility of the carrier prior to loading and subsequent to discharge, and at the same time, the limitation of liability pro- visions of COGSA are also adopted for this "prior to and subsequent to" period. In effect, the carrier assumes liability, but at a reduced rate."0 The Hamburg Rules represent a dramatic change from the COGSA provisions in this regard. Under Hamburg, the carrier is liable from the time it takes possession of the goods until it does one of the following: (1) delivers the goods to the consignee; (2) puts them at the disposal of the consignee in accordance with the contract, the law, or the usage of the particular trade applicable at the port of discharge; or (3) hands over the goods to a third party or au- thority which by operation of law or regulations applicable at the port of discharge is required to receive the goods.20 Now it is not a question of contract liability, but rather a question of Convention liability which arises.
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