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Maritime Carrier's Liability for Loss of or Damage to Goods under the Hague Rules, Visby Rules and the Hamburg Rules, compared with his Liability as an Operator under the Relevant Rules of the International Multimodal Transport Convention. A Thesis Submitted for the Degree of Doctor of Philosophy by Hani M.S. Abdulrahim The School of Law, Faculty of Law and Financial Studies, University of Glasgow February 1994 © Hani M.S. Abdulrahim, 1994 ProQuest Number: 11007904 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a com plete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. uest ProQuest 11007904 Published by ProQuest LLC(2018). Copyright of the Dissertation is held by the Author. All rights reserved. This work is protected against unauthorized copying under Title 17, United States C ode Microform Edition © ProQuest LLC. ProQuest LLC. 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106- 1346 “ILhl m i GLASGOW C>p I UNIVERr'T library ii To My mother, brothers, sisters and in memory of my father. Acknowledgements I wish with considerable enthusiasm to acknowledge and express my deepest grateful thanks and gratitude to Dr. W. Balekjian and Mr Alan Gamble for their invaluable guidance and encouragement in supervising this thesis. They have given unsparingly of their time to it. It gives me great pleasure to acknowledge the helpfulness of the Glasgow University library staff, and also my deep gratitude to Mrs Cara Wilson who kindly typed this work. Summary The system of the carrier's liability, in respect of carriage of goods, is a very controversial issue which raises many difficulties in solving the problems thereto related, whether in national laws or in international Conventions. The present thesis, dealing with the carrier's liability, consists of five chapters and final conclusions. The first four chapters concentrate, theoretically, practically and in detail on analysing and comparing the liability regimes in relation to the carrier's liability under the Hague/Visby Rules and the Hamburg Rules, in order to ascertain which is more conducive to international certainty and uniformity. The Hague/Visby Rules and the Hamburg Rules have played a vital role in the international transport industry. They are correspondingly discussed in the thesis. Chapter five is devoted to discussion of the liability of the multimodal transport operator as one of the most important parts of the International Multimodal Transport Convention (1980). The chapter also evaluates the situation when, in the future, the Convention comes into force. In its structure the thesis is divided as follows; chapter one deals with a brief history and the scope of application of the Rules. The liability of the carrier and the limitation of the carrier's liability are considered in chapters two and three. Chapter four deals with the procedures of action for lost or damaged cargo. The liability of the multimodal transport operator for loss or damage to the goods under the 1980 United Nations Multimodal Transport of Goods Convention is dealt with in chapter five. Table of Contents Dedication ii Acknowledgements iii Summary iv Table of abbreviations x Table of cases xiii Introduction 1 Chapter One A brief history and the scope of application of the rules 5 1.1 A brief history of the Hague Rules, Visby 5 Rules and the Hamburg Rules 1.2 Scope of Application of the Rules 18 1.2.1 The documents governed by the Rules 20 1.2.1.1 Under the Hague Rules 20 1.2.1.2 Under the Hamburg Rules 28 1.2.2 The Functions of the Bill of Lading 35 A. As evidence of a contract 36 B. As a receipt for goods shipped 39 C. As a document of title to the goods. 45 1.2.3 The Voyages governed by the Rules 50 1.2.3.1 Under the Hague Rules and the Visby Rules 50 1.2.3.2 Under the Hamburg Rules 57 Concluding Remarks 60 Chapter Two The Liability of the Carrier 61 2.1 The basis of the carrier's liability and the period of responsibility 61 2.1.1 Under the Hague/Visby Rules 62 A.Exercising due diligence to make the vessel seaworthy 62 B.Loading the cargo properly and carefully 69 C.Stowing the cargo properly and carefully 76 D.Discharging the cargo properly and carefully 83 vii 2.1.2 Under the Hamburg Rules 89 2.2 The burden of proof 112 2.2.1 Under the Hague/Visby Rules 113 2.2.2 Under the Hamburg Rules 117 2.3 The immunities of the carrier 122 2.3.1 Under the Hague/Visby Rules 122 A.Error in navigation or in the management of the ship 124 B.Fire 128 C.Peril of the sea 132 2.3.2 Under the Hamburg Rules 136 Concluding Remarks 142 Chapter Three The limitation of the Carrier's liability 144 3.1 The units of limitation 145 3.1.1 Under the Hague Rules 145 A.The concept of per package 146 B.The concept of per unit 150 1."The intention of the parties" test 156 2."Functional Economic" test 159 3.1.2 Under the Visby Rules 160 3.1.3 Under the Hamburg Rules 171 3.2 The unit of account 176 3.2.1 The Gold Clause basis 177 3.2.2 The Gold Franc basis 182 3.2.3 The S.D.R. basis 185 3.3 Loss of the right to limit liability 188 3.3.1 Declaration of the nature and value of the goods 188 A.The declaration must be express 190 B.The declaration must be before shipment 192 C.The declaration must be inserted in the bill of lading 192 3.3.2 Serious Faults 194 Concluding Remarks 2 02 Chapter Four Procedures of action for lost or damaged cargo 2 05 4.1 Notice of loss, damage and delay in delivery 2 06 4.1.1 Under the Hague/Visby Rules 2 06 4.1.2 Under the Hamburg Rules 209 4.2 Time limitation for suit 213 4.2.1 Under the Hague Rules and Visby Rules 214 4.2.2 Under the Hamburg Rules 228 4.3 Jurisdiction clauses 231 4.3.1 Under the Hague/Visby Rules 2 32 4.3.2 Under the Hamburg Rules 2 39 Concluding Remarks 2 44 Chapter Five The liability of the multimodal transport operator for loss of or damage to the Goods under the 1980 United Nations Multimodal Transport of Goods Convention 2 46 5.1 The background of the Convention 246 5.2 The aim and importance of the multimodal transport of goods 256 5.3 Scope of application of the Convention and its mandatory effect 259 5.4 The liability of the MTO for loss of or damage to goods under the MT Convention 2 68 5.4.1 The system of liability under the MT Convention 2 69 5.4.2 The basis of the MTO and the period of responsibility under the MT Convention 2 73 5.4.3 The limitation of the MTO's liability under the MT Convention 2 84 5.4.3.1 The MTO's liability limit in case of non-localized or of localized loss or damage to goods 2 84 1. The MTO's liability limit in case of non­ localized loss or damage if a sea leg of transport is included in the multimodal transport 2 85 2. The MTO's liability limit in case of non­ localized loss or damage if no sea leg of transport is included in the multimodal transport 2 89 5.4.3.2 Loss of the right to limit liability 2 94 5.5 Procedures of action for lost or damaged cargo under the MT convention 2 98 5.5.1 Notice of loss, damage or delay in delivery 2 98 5.5.2 Limitation of actions 304 5.5.3 Jurisdiction clauses 310 5.6 The problems of conflict between the multimodal transport convention and the existing unimodal conventions; the solution to avoid the conflict 312 Concluding Remarks 322 Final conclusions 325 Bibliography 336 Table of conventions, reports and documents 350 X Abbreviations A. C. Law Reports, Appeal Cases. A.M.C. American Maritime Cases. Adm. Admiralty Court. All E.R. The All England Law Reports. Am.J.Comp.Law, American Journal of Comparative Law. Asp.M.L.C. Aspinall's Maritime Cases. C.A. Court of Appeal. C. J. Chief Justice. C • L • R • Commonwealth Law Reports. Can.Sup.Ct. Canadian Supreme Court. Ch. Law Reports, Chancery. Ch.D. Chancery Division. C.M.I. Comity Maritime International. COGSA. Carriage of Goods by Sea Act. Com.Cas. Reports of Commercial Cases. Ct. Court. Ct. J. Circuit Judge. Ct. of App. U.S. Circuit Court of Appeals. D. J. District Judge. Dist.Ct. U.S. District Court. Div. Ct. Divisional Court. E.C.E Economic Commission for Europe. E.C.O.S.O.C. Economic and Social Council. E ■ L. D • European Law Digest. E.T.L. European Transport Law. Ex.C.R. Exchequer Court Reports. F. 2d. Federal Reporter, Second Series. F.C. Federal Court Reports (Canada). F.Supp. Federal Supplement (USA) 1932. Fed.Rep. Federal Reporter (USA) 1880. H.L. The House of Lords. H.L.R. Harvard Law Review. I.C.A.O.......... ......... International Civil Aviation Organization. I.C.C...........
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