Carriage of Goods by Sea – liability of a carrier Dr. Iva Savić Department for Maritime and Transport Law Zagreb, April 16 2018

International Framework (i) International Convention for the Unification of Certain Rules of Law relating to Bills of Lading ("Hague Rules"), and Protocol of Signature, 1924 Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading ("Visby Rules"), 1968 („Hague-Visby Rules”) Protocol (SDR Protocol) amending the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading of 25 August 1924 (The Hague Rules), as amended by the Protocol of 23 February 1968 (Visby Rules), 1979

International Framework (ii) United Nations Convention on the Carriage of Goods by Sea ("Hamburg Rules"), 1978 United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (the "Rotterdam Rules"), 2008 More information and texts available at: http://www.admiraltylawguide.com/interconv.html http://www.uncitral.org/uncitral/en/uncitral_texts/transport_goods/2008r otterdam_rules.html

scope of aplication Hague Rules (1924) Hague-Visby Rules (1968) Hamburg Rules (1978) B/L issued in a state party Only for transport that includes issuing of B/L B/L issued in a state party Port of loading in a state party Only if agreed in the contract Port of discharge in a state party B/L or other transport document issued in a state party

WHO IS A CARRIER? Hague rules (1924) Hague-Visby Rules (1968) Hamburg Rules (1978) „…carrier includes the owner or the charterer who enters into a contract of carriage with a shipper.” „…any person by whom or in whose name a contract of carriage of goods by sea has been concluded with a shipper.”

Basic Premises Carrier is obliged to: Presumed Fault principle Deliver the goods at the delivery point as accepted for carriage (condition, type and volume) Deliver the goods without the delay > carrier is liable for a LOSS and DAMAGE to goods, and DELAY Presumed Fault principle Carrier can avail himself from liability if able to prove due dilligence Liability period (see slide 8): from accepting the goods to their delivery – modern standard

LIABILITY OF A CARRIER FOR HIS AGENTS AND SERVANTS Carrier is responsible as for his own acts (and omissions) if: 1. persons involved have undertaken those acts (omissions) inside the scope of their jobs and tasks given , and 2. it does not concern a NAUTICAL FAULT (act, neglect or default in the navigation or management of the ship). > for commercial activities of persons who he uses in his business HIMALAYA clause – extending liabiltiy regime of a carrier to independent third-party contractors Fire Exception (unless personal fault) *not retained in Hamburg rules

Hague Rules (1924) Hague-Visby Rules (1968) Hamburg Rules (1978) liable person CARRIER + OPERATING (actual) CARRIER period of liability from loading to unloading (“tackle to tackle”) from receiving the goods to delivery (while „in charge”) liability principle presumed fault special exclusions – shift in burden of proof NO special exclusions *contractual and extracontractual requests delay not regulated? presumption of loss (more than 60 days)

Special exclusions – excepted perils (i) Proved Fault principle Carrier must prove the causal link between the named exclusion (peril) and the damage Transport user – can dispute – must prove carrier’s (or person’s working for carrier) personal fault

Excepted perils (ii) (a) act, neglect, or default of the master, mariner, pilot or the servants of the carrier in the navigation or in the management of the ship (NAUTICAL FAULT); (b) fire, unless caused by the actual fault or privity of the carrier (FIRE EXCEPTION); (c) perils, dangers and accidents of the sea or other navigable waters; (d) act of God; (e) act of war; (f) act of public enemies; (g) arrest or restraint of princes, rulers or people, or seizure under legal process;

Excepted perils(iii) (h)*quarantine restrictions; (i) *act or omission of the shipper or owner of the goods, his agent or representative; (j) strikes or lock-outs or stoppage or restraint of labour from whatever cause, whether partial or general; (k) riots and civil commotions; (l) saving or attempting to save life or property at sea; (m) wastage in bulk or weight or any other loss or damage arising from inherent defect, quality or vice of the goods; (n) insufficiency of packing;

Excepted perils(iv) (o) insufficiency or inadequacy of marks; (p) latent defects not discoverable by due diligence; (q) any other cause arising without the actual fault and privity of the carrier, or without the fault or neglect of the agents or servants of the carrier, but the burden of proof shall be on the person claiming the benefit of this exception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage.

Limitation of Liability (i) Real value plus delay related damage – up to a limited cap real value at delivery port relevant at the time when the vessel was supposed to arrive, or at Loading port when the vessel was supposed to commence the voyage, plus the carriage costs, or calculated based on the court decision HV Rules 666,67 SDR per package or unit (container, if B/L does not stipulate otherwise), or 2 SDR per gross kg tonnage > whichever amount is higher

Limitation of Liability (ii) Possible to agree to higher amounts (relevant for consigner/shipper and carrier, not consignee who is not nominated in B/L) > higher freight Exceptionally, possible to agree to lower amounts: Before loading and after unloading Delayed Delivery Live animals carriage On-deck carriage with shipper’s consent Loss of right to limit liability Intentionally or Recklessly Knowing that the Damage Would Probably Result

Hague Rules (1924) Hague-Visby Rules (1968) Hamburg Rules (1978) liability limitation 100 sterling pounds/unit 30 francs/kg OR 10000 francs/unit 1979 PROTOCOL:666,67 SDR per package or unit OR 2 SDR per gross kg tonnage 2.5 SDR per kg OR 835 SDR per unit loss of right to limit liability no rule Intention or Recklessly Knowing that the Damage Would Probably Result