The discipline in the rotterdam rules of the obligations of the carrier and of his liability

Autor:Francesco Berlingieri
Páginas:225-242

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1. Introduction

The structure of the liability regime of the carrier in the Rotterdam Rules is generally similar to that of the Hague-Visby Rules. Its fundamental elements are the period of responsibility, the obligations of the carrier, the basis of liability, the allocation of the burden of proof, the liability in respect of cargo carried on the deck of a ship, the liability regime applicable to carriage other than sea carriage, the liability of the carrier for acts or omissions of other persons.

2. Period of responsibility of the carrier and period of application of the uniform rules

Although theoretically the period of responsibility of the carrier and the period of application of the uniform rules should coincide, this has not been the case so far. In fact under the Hague-Visby Rules no reference is made to the period of responsibility of the carrier but only to the period of their application and since that period commences with the loading of the good on the ship and ends with their discharge from the ship, it is in the liner trade shorter than the period of responsibility. That entails the application of national law in respect of the period between receipt of the goods and commencement of loading and between completion of discharge and delivery to the consignee. The Hamburg Rules instead in article 4, under the misleading rubric "Period of responsibility" set out the period of their application and, similarly to the Hague-Visby Rules, do not refer to receipt and delivery of the goods by the carrier. They in fact refer to the period during which the goods are in charge of the carrier at the port of loading, during the carriage and at the port

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of discharge. If, therefore, the carrier receives the goods at the port of loading and delivers them at the port of discharge, the Hamburg Rules apply to the whole period of responsibility of the carrier; but if instead the carrier receives the goods at a place outside the port of loading (for example at an inland terminal) or delivers them at an inland place of destination1, the carrier is in charge of the goods during periods that are outside the scope of application of the Rules and this may entail problems in respect of the proof of the conditions of the goods when they enter into the port where they are loaded on the ship or when they leave the port where they are unloaded from the ship.

This gap is filled in by the Rotterdam Rules. Pursuant to article 12(1), in fact they apply to the entire period of responsibility of the carrier, from receipt to delivery, even though during the periods from receipt to commencement of loading on the ship and from completion of discharge from the ship and delivery they do not prevail over the provisions of another international convention in so far as the liability of the carrier, the limitation of his liability and time for suit are concerned.

3. Obligations of the carrier

A distinction must be made between the obligation the carrier undertakes to perform, which identifies the type of contract, and the manner in which the obligation must be fulfilled, the nature of the obligation being thus normally part of the definition of a contract. The primary obligation of the carrier is to carry the goods received from the shipper to their contractual destination and to deliver them without delay to the consignee in the same conditions in which they were at the time of receipt. Pursuant to article 21 delay in delivery occurs only when the goods are not delivered within the time agreed and, therefore, no obligation of the carrier to timely deliver the goods arises, unless the parties have made an express agreement in that respect. Under the Rotterdam Rules the time employed for the carriage of the goods to destination, even if significantly greater than that normally required, does not give rise to a breach of the obligation of the carrier. The proposal to provide, as in the Hamburg Rules, that delay occurs when delivery does not take place within the time it would be reasonable to expect of a diligent carrier2, was in fact rejected. The problem remains, however, whether any such agreement may also be implied, for example in consideration of the nature of the goods carried.

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The manner in which the obligation must be fulfilled may be indicated in general terms, such as the civil law obligation to exercise the diligence of the bonus pater familias, or may be more specific, such as in Italian law the obligation of a contractor to organize the necessary means in order to perform the works3. The Hague Rules, due to their origin as a standard form of bill of lading, do not define the contract of carriage and, consequently, do not specify the obligation of the carrier, which is merely implied, while they regulate how his obligation must be fulfilled, both as regards the ship, in respect of which he must exercise due diligence to make her seaworthy, and of the cargo, in respect of which he must act properly and carefully for its loading, stowage and carriage. The Hamburg Rules instead contain a definition of contract of carriage and thus specify that the carrier undertakes to carry the goods from one port to another, but do not indicate how that obligation must be fulfilled, merely regulating the liability of the carrier in case of loss, damage or delay. But this is not the correct approach, because the obligation to refund the loss is a remedy provided for the breach and, therefore, is a secondary obligation, the primary one being to deliver the goods undamaged. It is thus a sound approach that of setting out what the carrier should do in order to fulfil its primary obligation. An approach that was adopted for the first time in the Harter Act of 1893, followed by the Australian Act relating to the Sea-Carriage of Goods, 1904 and by the Canadian Act respecting the Water-Carriage of Goods, 1910. But while the Harter Act merely provided in its section 3 that it is unlawful to insert in a bill of lading any covenant whereby the obligation to exercise due diligence to make the vessel seaworthy and capable to perform the intended voyage would in any way be lessened, without indicating when such obligation has to be performed, the Australian and the Canadian Acts did, but differed: the Australian Act made in its section 8(2) express reference to an implied obligation to make the ship seaworthy at the beginning of the voyage and the Canadian Act instead deemed it appropriate to provide that the obligation of the carrier is an obligation to "make and keep the ship seaworthy". The draft of article 3(1) submitted at the Hague Conference of 1921 followed the Australian Act and provided that the carrier is bound to exercise due diligence to make the ship seaworthy "before and at the beginning of the voyage". The reason given for this restriction of the period during which due diligence must be exercised by the carrier was that the obligation to keep the ship seaworthy is in conflict with the principle that the carrier is not responsible for an accident of navigation that entails

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the unseaworthiness of the ship4. That explanation, accepted without discussion, was misconceived, because the obligation is not strict, but merely to exercise due diligence, and obviously if during the voyage the ship becomes unseaworthy and the unseaworthiness cannot be remedied on board, there would not be any breach by the carrier of that obligation, even though there would be a duty to call at the nearest port in order to have the ship repaired. Similarly, if a member of the crew whose presence on board is required for the safety of the ship falls ill or dies, the carrier would not be responsible for the possible ensuing unseaworthiness of the ship, but his obligation to exercise due diligence to properly crew the ship would entail a duty to replace the missing member of the crew as soon as reasonably possible.

When the issue was considered by the UNCITRAL Working Group that view was accepted and consequently under article 14 of the Rotterdam Rules all obligations of the carrier under article 3(1) of the Hague-Visby Rules have become continuous. Nowadays the owner of a ship may, unless something extraordinary happens, be in continuous touch with his ship and thus may at any time exercise due diligence in order to ensure its safety5.

4. The basis of liability

In all conventions for the carriage of goods the basis of the liability of the carrier is fault. But while in the Hague-Visby Rules that rule is laid down under article 4(2)(q), at the end of the list of the excepted perils, as if it were

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an except peril6, and in the Hamburg Rules the drafting of article 5(1) is so unclear that it was deemed necessary to annex to the Convention a Common Understanding, the value of which is not settled, in the Rotterdam Rules the principle of fault liability is set out in the first provision (paragraph 2) of article 17 - the rubric of which is "Basis of liability" - that deals with the proof required of the carrier in order to be relieved of liability.

But contrary to the Hague-Visby Rules, under which the carrier is exone-rated from liability in...

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