International Maritime Conventions (Volume 1)

The Carriage of Goods and Passengers by Sea

Francesco Berlingieri

• Publisher: Informa Law from Routledge
• Year: 2014
• ISBN:
  9781317750581
• Edition: 1
• Topic: Jura
• Subtopic: Seerecht

For the first time, this unique text brings together all private international maritime law conventions alongside expert commentary and analysis. Truly global in approach, the book covers each of the nineteen conventions currently in force, all scrutinised by this internationally-acclaimed author. It also examines important maritime conventions not yet in force, including the topical Rotterdam Rules.

Split into three convenient volumes, this comprehensive resource provides a thorough treatment of both wet and dry shipping treaties, combining breadth of coverage with depth of analysis. In this first volume, the author covers conventions dealing with the Carriage of Goods and Passengers by Sea, in particular:

- International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, 1924 and its Protocol of 1968 and 1979 (Hague-Visby Rules)

- United Nations Convention on the Carriage of Goods by Sea, 1978 (Hamburg Rules)

- United Nations Convention on the International Carriage of Goods wholly or Partly by Sea, 2008 (Rotterdam Rules)

- Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea, 1974 as amended by its Protocol of 2002 (Athens Convention)

This book is an indispensable reference for maritime lawyers, academics and students of maritime law worldwide.

PART I

CARRIAGE OF GOODS BY SEA

CHAPTER 1

International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, 1924 (Hague-Visby Rules) and its Protocols of 1968 and 1979

1 INTRODUCTION

It would be very difficult to understand the format of the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, 1924 without the knowledge of its origin.¹ Although it would be out of place to trace the history of the Hague Rules 1921² on which this Convention is based, it is thought that in order to understand the spirit with which they have been considered by the Comité Maritime International (CMI) the following introductory paragraph of the Report of the Commission appointed by the Conférence Internationale de Droit Maritime convened by the Belgian government in October 1922³ may be of assistance:

La Commission a pleinement reconnu que le projet qui lui est soumis est sorti des règles de La Haye de 1921; que la question du règlement international du transport des marchandises par mer a suscité beaucoup d’intérêt dans les pays maritimes au cours des 4 dernières années; que le projet dans sa forme actuelle représente une transaction conclue entre les représentants d’un grand nombre d’intérêts, armateurs et chargeurs, agissant par l’intermédiaire de leurs organismes professionnels. Il parait évident que des règles de cette origine rédigées en grande partie par ceux qui s’occupent personnellement des matières qu’il s’agit de régler, méritent d’être considérées avec tous les soins et les égards voulus; aussi est-ce dans cet esprit que nous les avons examinées en détail.

The Commission has fully recognised that the draft submitted to it resulted from the Hague Rules 1921; that the issue of the international regulation of the carriage of goods by sea has created a great interest in the maritime countries during the last four years; that the draft in its present form represents a compromise between the representatives of a great number of interests, shipowners and shippers, acting through the intermediary of their professional organisations. It appears to be obvious that rules having such origin, drawn up in great part by those who are personally concerned of the matters that must be regulated, deserve consideration with all required care and attention; it is also with that spirit that we have considered them in detail.

The layout of the Convention reveals clearly its origin. There are, in fact, no separate chapters in which the various aspects of the rules on carriage of goods by sea are dealt with, but such rules are set out in an order that is much more similar to that adopted in bills of lading rather than to that which would be logical for an instrument intended to regulate the carriage of goods by sea. The rules on transport documents are mixed with rules on the obligations of the carrier and of the shipper, on the notice of loss or damage and on the time for suit. And they are clearly insufficient.

It is, however, extraordinary that, its unusual birth notwithstanding, this Convention has been the basis of the law of carriage of goods by sea for almost 100 years. Even if at present it is to some extent obsolete, it is thought that, apart from the 1910 Convention on collision, no other maritime convention will ever last for such a long time.

According to the most recent available data there are still 58 States Parties to the Hague Rules,⁴ six States Parties to the Hague-Visby Rules⁵ and 24 States Parties to the Hague-Visby Rules as amended by the SDR Protocol.⁶ Furthermore, 17 States that were parties to the Hague Rules or to the Hague-Visby Rules⁷ have become parties to the Hamburg Rules, but only five⁸ have denounced the Hague Rules, while the others apparently have not, although that was required by art. 31(1) of the Hamburg Rules. Consequently, pursuant to art. 30(4)(b) of the Vienna Convention 1969, as between such last States⁹ and the States-only Parties to the Hague Rules or the Hague-Visby Rules, such last rules apply.

The commentary that follows will be made basically with reference to the 1924 Convention as amended by the two Protocols, but, where necessary, mention will be made of the regime of the original 1924 text, where it differs from the regime as amended by the two Protocols, as well as of the regime applicable to the 1924 text as amended only by the 1968 Protocol. The peculiarity of the Hague Rules is that, although they have been adopted in the French language only, they are based on a French unofficial translation of the Hague Rules 1921, the only official text of which was in English. Therefore it may look odd to base the interpretation of the Hague Rules on a French text that originates from a translation of the original English text. However, at the diplomatic conference, the text considered was that in French and the debates took place in the French language, which at that time was the unique diplomatic language. Consequently, it must be the French text that in any event prevails, and recourse to the English translation is permissible, for the purpose of the interpretation of the Convention, only where the French text is unclear.¹⁰ An example is the translation of “any similar document of title insofar as such document relates to the carriage of goods by sea” in art. 1(b) with “tout document similaire formant titre pour le transport des marchandises par mer”, reference to which will be made later. However, the above criterion is not applicable anymore in respect of the amendments and additions to the Hague Rules adopted with the Protocols of 1968 and 1979, which have been adopted in two official texts, French and English. For example, in the amended text of art. 4, paras 1 through 4 are only in French, para 5 is in French and English and para 6 is only in French.

2 SCOPE OF APPLICATION

A distinction must be made between the scope of application of the Convention as an international instrument and the period of the contract of carriage of goods by sea covered by the Convention. The analysis of the international scope is a condition precedent to the enquiry about the definition of the period actually covered by rules of the Convention.

2.1 The international scope

The international scope of the Hague-Visby Rules is indicated in the opening sentence of art. 10 as amended by the Visby Protocol, where reference is made to the carriage of goods between two different States. According to the prevailing opinion,¹¹ the Hague Rules apply also to the national coastwise trade (cabotage) and this is confirmed by the provision in the Protocol of signature, pursuant to which the Contracting States may reserve the right to apply art. 6 insofar as the national coasting trade is concerned to all classes of goods without taking into account the restriction set out in the last paragraph of that article.

In its original wording, art. 10 provided that the Convention applies to all bills of lading (connaissement in the official text of the Convention) issued in any Contracting States. In its wording as amended by the Protocol of 1968, two additional connecting factors have been added: the place where the carriage commences and the incorporation of the rules of the Convention in the bill of lading. Furthermore it is clarified that the carriage must be between ports in two different States, and that the nationality of the ship, of the carrier, the shipper, the consignee or any other interested person is irrelevant. Such additions have settled uncertainties that had arisen and had caused conflicting views in the jurisprudence of some Contracting States.¹²

The notion of bill of lading is therefore relevant in both the original text and in the amended text of art. 10, and the provisions of the Convention are relevant in order to establish when the document reference to which is made in art. 10 may be so qualified. Also in order to define the period of the contract of carriage of goods by sea covered by the Convention. reference is made to the bill of lading, but in addition reference is also made to “any similar document of title” (“tout document similaire formant titre” in the official French text). It is thought, therefore, that also for the purpose of art. 10. the term “bill of lading” should include “any similar document of title” and the meaning of that phrase will be considered later, in connection with the analysis of art. 1 of the Convention.

(a) Place where the bill of lading (or a similar document of title) is issued

This is the only connecting factor in the Hague Rules. The wording of the authentic French text of art. 10 differs from that of the English translation: while, in fact, in the French text reference is made to “tout connaissement créé dans un des états contractant”(any bill of lading created in a Contracting State), in the English translation reference is made to “all bills of lading issued in any of the contacting States”. While the creation refers to the moment at which the bill of lading is drawn up and signed, the issue refers to the moment at which the bill of lading is handed over to the shipper. It is possible that the carrier draws up the bill of lading some time before he hands it over to the shipper. It is also possible that the two actions take place at different times, even in different countries.

Since the only official text of the Hague Rules is the French one, reference must be made to the time and place where the bill of lading (or similar document of title) is created and not to the time and place where it is issued.

That difference in the wording of art.10 has disappeared in the text as amended by the Visby Protocol, both texts of which are authentic: the word used, in fact, has been changed in the French text and now is “émis”: therefore the relevant time and place is now that when and where the bill of lading is handed over to the shipper.

The question remains, however, whether this is a significant connecting factor, since the bill of lading for various reasons may be handed over to the shipper in a place that has no connection with the carriage, for example because the carrier has no authorised agent in the port of shipment and, being the time charterer of the ship, does not want to authorise the master to sign the bill of lading. It is equally conceivable that the actual shipper is domiciled at a place far away from the port of shipment and wants that the bill of lading be handed over directly to him.¹³

(b) Place where the carriage commences

This is a connecting factor added in the Hague-Visby Rules that complements the previous one. The English and French texts differ slightly, even if the meaning is this time the same: while, in fact, the former merely says “The carriage is from a port in a Contracting State”, the latter says “Le transport a lieu au depart d’un port d’un état contractant” (“the carriage takes place with the departure from a port of a Contracting State”). But both leave a margin of uncertainty where the carriage by sea is preceded by a carriage by rail or road, although probably it may be overcome with the help of the definition of carriage of goods in art. 1(e), pursuant to which such carriage covers the period from the time when the goods are loaded on to the time they are discharged from the ship.¹⁴ It is worth noting that both in art. 10 of the Hague Rules and in art. 10 of the Hague-Visby Rules reference to the “similar document of title” to which they apply is omitted. When a revision of the Hague Rules was first discussed by the CMI at the Conference held in Rijeka in September 1959, both the place of departure and the place of destination had been considered as connecting factors,¹⁵ and that rule was approved by the subsequent CMI Conference held in Stockholm in June 1963.¹⁶ However, at the Diplomatic Conference, the United Kingdom delegation strongly objected to the reference, as connecting factor, to the place (or port) of discharge on the ground that that would be in conflict with the general rules of comity of Nations¹⁷ and, regretfully, the request to delete the reference to the port of discharge was supported by several other delegations.¹⁸ Consequently, there remained in the new text of art. 10 only a reference to the port at which the carriage commences.

(c) Incorporation of the Rules in the bill of lading

The additional situation in which the Hague-Visby Rules apply is that where they are incorporated into the bill of lading. This provision is worded in the French text as follows: “le connaissement prévoit que les dispositions de la présente Convention ou de toute autre législation les appliquant ou leur donnant effet régiront le contrat” (“the bill of lading provides that the provisions of this Convention or of any law giving effect to it shall apply to the contract”). It is instead so worded in the English text: “the contract contained in or evidenced by the bill of lading provides that the rules of this Convention or legislation of any State giving effect to them are to govern the contract”. It is thought that the French formulation is closer to the structure of the Convention since “contrat de ...