The carriage of Goods by Sea Conventions – A comparative study of Seaworthiness and the list of exclusions

Sammanfattning: In September 2009, the new convention concerning carriage of goods by sea opened for signing in Rotterdam. If the convention succeeds in what it sets out to do, harmonising the carriage of goods by sea regulations throughout the world, the almost a century old regime of the Hague Rules will be discarded. These conventions, together with the Hague-Visby Rules and the Hamburg Rules, regulate the liability in case of cargo damage, and what the carrier and the shipper respectively will be paying for. This thesis looks at the liability regime for the carrier under the present conventions, which are The Hague, The Hague-Visby Rules and The Hamburg Rules to some extent, and what would change if the new Rotterdam Rules will enter into force and be ratified by the majority of maritime nations. The focus is on the list of exceptions that was introduced in the Hague Rules, but actually comes from the American Harter Act. The compromise that leads up to first the Harter act, and then the Hague Rules has two basic components. The carrier was relieved of an absolute obligation of seaworthiness, that was the long-standing practice and this was instead replaced with a duty of exercising due diligence to make the ship seaworthy. The shippers on the other hand got the advantage of a restriction for the carrier to use exculpating clauses in the bill of lading. With The Hague Rules came a minimum liability for the carrier that could not be contracted out of. The Hague Rules were amended and became the Hague-Visby Rules, but on the liability side, there were no greater changes. In 1992, the Hamburg Rules entered into force. However, they are today regarded as a failure due to the lack of ratifications by the traditional maritime states, and are rarely used. The Hamburg Rules was drafted in a very different way than The Hague and Hague-Visby when it comes to the basis of the carrier’s liability and the concepts of seaworthiness and due diligence was not used at all. The new Rotterdam Rules have now gone back to the wording used in The Hague and Hague-Visby with some changes made. There is a general obligation to care for the cargo. The article concerning exercising due diligence to make the vessel seaworthy is kept the same apart from the new convention will require this obligation to be carried out during the voyage as well, instead of before and at the commencement of it. The exception of error in navigation or management it also removed from the new convention and the burden of proof has been modified. It is now clearly stated in the articles which party needs to prove what. The Vallescura rule has been abolished in favour of giving the courts the right to divide the loss between the parties in case of concurrent causes of the loss, damage or delay. Under the Rotterdam Rules the carrier will be liable more frequently, but the changes in the burden of proof will increase the amount of cases where the carrier is only partly liable, as the burden of proving the extent of the loss due to a concurrent cause in no longer on the carrier.