Hamburg rules
Hamburg rules is regulations that govern the liability for loss or damage to goods carried by sea and which cover all contracts (including the shipment of live animals and deck cargo) other than charter parties, applicable to exporters and importers alike. There are different signatories to those of the Hague/Visby rules, with a strong African representation. They are rarely used, because the Hague-Visby rules normally apply, unless otherwise agreed[1].
Hamburg rules governing the rights and responsibilities of carrier and cargo interests which may be incorporated into a contract for the carriage of goods by sea by agreement of the parties or statutorily. These rules were adopted by United Nations Convention on the Carriage of Goods by Sea in 1978[2].
New concepts of Hamburg rules
The Hamburg rules introduce several new concepts, all of which tend to increase the liability of the carrier[3]:
- First, in lieu of the shopping list of exceptions in the Hague Rules, there is a unitary concept of fault'. The carrier is liable unless it proves that it took all measures that could reasonably be required to avoid the occurrence and its consequences. This means that there is a continuing carrier duty for seaworthiness, and the exception to liability for negligence in the navigation and management of the ship in the Hague Rules is eliminated.
- Second, the fire exception is reduced, and the carrier will be liable for negligent acts of the crew in starting of fighting a fire
- Third, the carrier is liable for economic loss caused by delay in delivery up to a maximum of 2.5 times the freight charges on the shipment under that bill of landing
- Fourth, the liability limits are raised slightly above are Visby levels per package or per kilogram, whichever is higher.
Bills of lading under the Hamburg Rules
The principles now mentioned also appear in the Hamburg Rules containing a number of provisions purporting to strengthen the position of the holder of the bill of lading. First, it is stipulated that a bill of lading signed by the master of the ship is deemed to have been signed on behalf of the carrier. This does not add very much to the position under the Hague Rules, since under most maritime laws the master would have an authority to act for his employer in signing bills of lading. However, the problem whether or not the bill of lading has been signed so as to evidence a contract of carriage with the owner, time charterer or somebody else still remains to be solved (the so-called identity of carrier problem).
Further, The Hamburg Rules, with respect to the contents of the bill of lading are much more elaborate than Hague Rules. Both the number of packages or pieces as well as the weight or their quantity otherwise expressed of the goods must be shown in the bill of lading, while under the Hague Rules it is sufficient that one of these particulars be mentioned[4].
Examples of Hamburg rules
- Contract of carriage: The Hamburg Rules set out a contract of carriage and define the rights and duties of the carrier, the shipper and the consignee. The carrier must ensure the safe delivery of the goods, the shipper must ensure that the goods are properly packaged and labeled, and the consignee must pay the freight charges.
- Liability for loss or damage: The Hamburg Rules stipulate that the carrier is liable for any loss or damage to the goods, unless the carrier can prove that the loss or damage was caused by an act of God, or by the fault or negligence of the shipper.
- Freight charges: The Hamburg Rules set out the amount of freight charges payable by the consignee to the carrier.
- Notice of loss or damage: The Hamburg Rules require the shipper or consignee to notify the carrier of any loss or damage to the goods within a specified period of time.
- Duration of voyage: The Hamburg Rules set out the maximum duration of the voyage, which must not exceed a certain number of days.
Advantages of Hamburg rules
The Hamburg Rules provide a number of advantages for exporters and importers alike. These include:
- Extended application - The Hamburg Rules extend the scope of applicable contracts to include live animals and deck cargo, whereas the Hague/Visby Rules do not.
- Broader signatories - The Hamburg Rules are signed by a larger number of countries, including many African countries, thus providing a larger pool of applicable contracts.
- Uniformity of law - The Hamburg Rules provide a uniform set of rules that apply regardless of the contract, which reduces the potential for confusion and dispute between contracting parties.
- Greater protection - The Hamburg Rules provide greater protection and compensation for goods than the Hague/Visby Rules, making it more attractive to exporters and importers.
- Clear definitions - The Hamburg Rules include clear definitions and interpretations of key terms and concepts, providing greater clarity and certainty for exporters and importers.
Limitations of Hamburg rules
The Hamburg Rules contain several limitations that affect their effectiveness and usage. These include:
- The Hamburg Rules apply only when parties agree to their application. As the Hague-Visby Rules are more commonly used and agreed upon, the Hamburg Rules are rarely used.
- The Hamburg Rules are limited in scope. They do not cover damages to or loss of cargo on deck, or contracts of affreightment.
- The Hamburg Rules set a much lower liability limit for the carrier than the Hague-Visby Rules, at only 8.33 SDRs per kilogram of gross weight of the cargo.
- The Hamburg Rules require the carrier to take greater care of the cargo than the Hague-Visby Rules, and also impose more obligations on the carrier for providing information about the condition of the cargo to the shipper.
- The Hamburg Rules do not set specific time limits for filing claims against the carrier and do not have a provision for punitive damages.
Introduction: In addition to the Hamburg Rules, there are other approaches to international maritime law used in various jurisdictions.
- The Hague Rules (1924) are the precursor to the Hamburg Rules and are still used in some jurisdictions. The Hague Rules are similar to the Hamburg Rules but do not include the provisions for the limitation of liability or the division of damages among carriers.
- The Rotterdam Rules (2009) are a comprehensive international convention that provide for the rights and obligations of all parties involved in the carriage of goods by sea. The Rotterdam Rules address a wide range of issues, including the liability of shippers, carriers, and consignees for the loss or damage to goods, the division of damages among them, and disputes resolution.
- The United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (2018) is a comprehensive convention that provides for the rights and obligations of all parties involved in the carriage of goods by sea. The Convention covers a range of topics, including the liability of the carrier, the division of damages among them, and dispute resolution.
- The Carriage of Goods by Sea Act (COGSA) (1936) is a US federal law that applies to all contracts for the transportation of goods by sea from a US port to a foreign port. COGSA governs the liability of the carrier, who is liable for loss or damage to goods unless the carrier can prove that the loss or damage was caused by an act of God or an act of war.
In summary, there are several approaches to international maritime law, including the Hague Rules, the Rotterdam Rules, the United Nations Convention, and the Carriage of Goods by Sea Act. The Hamburg Rules are the most commonly used approach, but other approaches may be used in certain jurisdictions.
Footnotes
| Hamburg rules — recommended articles |
| Institute cargo clauses — Contract of affreightment — Letter Of Indemnity — Freight insurance — Hague-Visby rules — CMR convention — Exculpatory Clause — Bill of lading — Dual insurance |
References
- Berlingieri F., Delwaide L., (2000), The Hamburg Rules, Maklu, Zurich.
- Brodie P., (2013), Dictionary of Shipping Terms, Taylor & Francis, Abingdon.
- Force R., Yiannopoulos A.N., (2010), Admiralty and Maritime Law, Beard Books, Washington.
- Hammett M., (2010), International Trade Finance, Global Professional Publishing, New York.
Author: Brygida Mordarska
