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“The Due Diligence in Maritime Transportation in the Technological Era” Victor H

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“The Due Diligence in Maritime Transportation in the Technological Era” Victor H “The Due Diligence in Maritime Transportation in the Technological Era” Dissertation Zur Erlangung des Doktorgrades an der Fakultät für Rechtswissenschaft der Universität Hamburg Vorgelegt von Victor H. Chacon aus Panama Hamburg, 2016 Erstgutachter: Prof. Dr. Dr. h.c. Rüdiger Wolfrum Zweitgutachter: Prof. Dr. Dr. h.c. mult. Jürgen Basedow Datum des Kolloquiums: 8. März, 2016. Contents Contents .................................................................................................................... I Abbreviations ........................................................................................................ VII Introduction ............................................................................................................. 1 A. Purpose of the Study ........................................................................................... 1 B. The Contract of Carriage of Goods by Sea ......................................................... 2 I. Concept ............................................................................................................ 2 II. The Parties Involved ...................................................................................... 2 1. The Shipper ................................................................................................ 2 2. The Carrier ................................................................................................. 3 a) Private Carrier ...................................................................................... 3 b) Common Carrier ................................................................................... 4 III. Respective Obligations ................................................................................. 5 1. On the Carrier ............................................................................................. 6 a) To Provide a Seaworthy Ship ............................................................... 6 b) Reasonable Dispatch ............................................................................ 6 c) Not to Deviate from the Agreed Route ................................................ 7 2. On the Shipper or Charterer ..................................................................... 10 a) Not to Ship Dangerous Goods ............................................................ 10 b) To Nominate a Safe Port .................................................................... 11 Part I: The Origin of the Obligation of Practicing Due Diligence in Maritime Transportation ................................................................................... 13 A. The Evolution of the Standard of Carrier’s Liability in Maritime Transportation ................................................................................................... 13 I. Introduction ................................................................................................... 13 1. The Shift of the Standard of Liability ...................................................... 13 2. The Historical Maritime Law ................................................................... 14 II. Historical Sources of Maritime Law ............................................................ 18 1. Hammurabi's Code of Laws ..................................................................... 18 2. The Roman Law ....................................................................................... 19 a) Historical Context ............................................................................... 19 b) The Concept of Diligence .................................................................. 20 (1) Diligence and the Relation with Culpa ........................................ 20 (2) Degrees of Diligence in Roman Law ........................................... 22 c) Standard of Care for Sea Common Carriers ....................................... 23 (1) The Original Standard .................................................................. 23 (2) The Praetor’s Edict ....................................................................... 24 3. The Sea Law of Rhodes ........................................................................... 29 a) Historical Context ............................................................................... 29 II b) The Standard of Carrier’s Liability .................................................... 31 (1) The Duty to Provide a Seaworthy Ship ........................................ 31 (2) The Duty of Care of the Cargo ..................................................... 32 4. The Rules of Oleron ................................................................................. 33 a) Historical Context ............................................................................... 33 b) The Standard of Liability .................................................................... 34 5. The Consulate of the Sea .......................................................................... 36 a) Historical Context ............................................................................... 36 b) The Standard of Liability .................................................................... 37 (1) The Vessel’s Seaworthiness ......................................................... 37 (2) The Care of the Cargo .................................................................. 39 III. Anglo-American Maritime Law .................................................................. 40 1. The Maritime Law of England ................................................................. 40 a) The Influence of Roman Law on the Admiralty Courts ..................... 41 b) The Sea Carrier as a Bailee ................................................................. 42 c) The Distinction of Common Carrier ................................................... 44 d) The Common Sea Carrier as an Insurer of the Cargo ......................... 46 e) Additional Reasons for the Absolute Standards ................................. 49 (1) Consideration of Morality ............................................................ 49 (2) Political and Commercial Reasons ............................................... 51 f) The Decline of the Absolute Standard ................................................ 53 (1) The Liberalism Theory ................................................................. 53 (2) The Second Industrial Revolution ................................................ 54 (3) The Excesses in the Principle of Freedom of Contract ................ 54 2. International Attempts for Regulation and Unification ............................ 56 a) The Liverpool Conference of 1882 ..................................................... 57 b) The Hamburg Conference of 1885 ..................................................... 58 c) Results of these Conferences .............................................................. 59 3. The Maritime Law of the United States of America ................................ 59 a) The Standard of Liability for Sea Carriers .......................................... 59 b) Restrictions to the Principle of Freedom of Contract ......................... 62 c) The Enactment of the Harter Act of 1893 ........................................... 64 (1) Historical Context ......................................................................... 64 (2) The Original Project ..................................................................... 64 (3) The Final Version ......................................................................... 65 (4) International Impact ...................................................................... 67 IV. International Regulations for the Carriage of Goods by Sea ...................... 68 1. The Hague Rules – 1924 .......................................................................... 68 a) History of its Adoption ....................................................................... 68 b) Scope of Application .......................................................................... 71 c) The Standard of Liability .................................................................... 71 d) Consequences ..................................................................................... 74 (1) International Standardization ........................................................ 74 (2) Compromise for a Fairer Balance ................................................. 75 (3) Lack of Clarity .............................................................................. 77 e) Amendments ....................................................................................... 79 (1) The Visby Amendment –The Brussels Protocol of 1968 ............. 79 (2) The S.D.R. Protocol –The Brussels Protocol of 1979 .................. 80 III 2. The Hamburg Rules – 1978 ..................................................................... 80 a) Adoption and Generalities .................................................................. 80 b) Scope of Application .......................................................................... 82 c) Period of Responsibility ..................................................................... 82 d) Liability Rule ..................................................................................... 83 e) Objections ........................................................................................... 85 3. The Rotterdam Rules – 2009 .................................................................... 86 a) Adoption
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