I am infinitely blessed with parents who support my passion, this thesis is a reflection of the sacrifices they have made to ensure I live my dreams. This study briefly examines good shipping practices under the International Safety Management Code, 1994 (the ISM Code) and International Ship and Port Facility Security Code, 2002 (the ISPS Code) in the context of or extending the duration of the carrier's obligation to seaworthy vessel provided in terms of the Rotterdam Rules, any additional duties fall on the shipowner.
Introduction
Purpose Statement of the Study
There are various differences in the nature and extent of the carrier's liability and the requirements for proof in a cargo claim as set out in the Hague Visby and Rotterdam Rules. The author will examine the outcome of this point and provide recommendations based on the results of the research conducted.
Chapter Overview
One of the key initiatives of this government project is the review of ocean-specific legislation, which will explore the potential ratification of the Rotterdam Rules – should the Rules gain widespread acceptance among South Africa's major trading partners.
Introduction
The roots of carriage of goods by sea and the carrier’s obligation to maintain a seaworthy
Roman law
5 In an attempt to balance the interests of cargo owners with those of ship owners, Roman commentators and legislators attempted to implement two exceptions in which a carrier could rely on a cargo claim against him, thereby escaping strict liability. imposed on him.
English law
Due to the growth of international trade and the need for international transport of sold goods, most of which were transported by sea, there was a need to unify the rules of maritime trade. This was particularly important to ensure uniform rules governing important aspects of a contract of carriage as a result of a breach of contract by either party.9 This resulted in the introduction of different maritime conventions to regulate different aspects of maritime transactions. 10.
International conventions governing the carrier’s obligation to maintain a seaworthy
7 The Association's efforts were unsuccessful as final agreement on the Liverpool Bill of Lading was never reached.11. The writer will further discuss and scrutinize the reasons behind the passage of the Harter Act and the methods it introduced to try to achieve a balance between the interests of cargo owners and ship owners.
International conventions governing the carriage of goods by sea and the carrier’s
- The Harter Act
- The Hague Rules
- The Hague Visby Rules
- The Hamburg Rules
- The Rotterdam Rules
26 F Berlingieri Travaux Preparations for the Hague Rules and The Hague-Visby Rules (1997) Comite Maritime International at page 32. With regard to the air carrier's airworthiness obligation, the Rotterdam Rules introduce two fundamental departures from the approaches set out in the Hague Rules. and Hague Visby Rules.
South African Perspective on the Ratification of the Rotterdam Rules
15 The rationale for this is based on the need to maintain uniformity with the currently applicable international shipping regimes “which encourage ship owners to register ships on the South African Register”.65.
Conclusion
Introduction
The definition of seaworthiness under common law
This means that the crew on board the vessel must be properly trained and qualified for the intended voyage. 19 It is important to note that if any of the above elements are missing, the vessel will be considered unseaworthy (the same applies to the Hague Visby Rules). The vessel must be seaworthy at the beginning of each leg if it is to be engaged in a serial voyage.94 Where a ship is lost at sea immediately after the voyage has commenced, there is a presumption that operates in favor of the claimant against the ship's owner.
Seaworthiness under Article III of the Hague Visby Rules
Who is the carrier?
The writer will discuss seaworthiness in the context of the Hague Visby Rules in the next section. However, a Himalayan clause102 may be inserted in the waybill to protect the carrier's servants or agents. Under the Hague Visby Rules (Article IV bis, Rule 2), an employee or agent of the carrier may limit his liability in the same manner and to the extent that the carrier may, but that employee or agent is not an independent contractor.
The duration of the seaworthiness obligation
In relation to servants and agents of a carrier under the Hague Rules, persons other than the carrier cannot limit their liability under the Rules. 23 the journey' means 'the period from at least the beginning of the loading until the vessel starts on her journey.'106 Furthermore, it was found that the use of the words 'at least the beginning' is a minimum duration of the carrier's obligation to provide a seaworthy vessel. The decision of the Privy Council in the Maxine Footwear case is the authority on the duration of the obligation to exercise due care in the maintenance of a seaworthy vessel under the Hague Visby Rules.
The concept of due diligence
In light of this definition, due diligence refers only to the conduct of the carrier in ensuring that the ship is seaworthy by taking the required reasonable steps in the light of the surrounding circumstances.115. Furthermore, it was found that the need to prove the application of due diligence only arises after the insurer has provided evidence that the cause of the loss or damage was a lack of due diligence. It is submitted that the conclusion of the SCA in the above case is similar to the conclusion in the Papera case, i.e.
Seaworthiness under Article 14 of the Rotterdam Rules
The duration of the seaworthiness obligation under the Rotterdam Rules
At first glance, the Rotterdam Rules appear to extend the period during which the carrier is obliged to provide a seaworthy vessel. Under the Rotterdam Rules, the carrier is liable for any loss or damage caused by the carrier's failure to exercise due care in maintaining the vessel seaworthy throughout the voyage. This alleged extension of the carrier's obligation to keep the vessel seaworthy affects the allocation of risks in maritime transport contracts between the shipowner and the cargo owner.118 The Rotterdam Rules emphasize the extension of such obligation by adding the word "maintain" to the description of seaworthiness in Art. 14,119.
Conclusion
The Rotterdam Rules are a recently drafted international convention that takes into account the realities of modern freight transport.117 The Hague Visby Rules, on the other hand, are an older convention which was derived from the Harter Act, 1893, and therefore these rules do not take into account for modern transport systems. 27 the duration of the obligation to exercise due diligence in maintaining a seaworthy ship throughout the voyage will have no bearing on the current obligation of the shipping company.
Introduction
The origin of the ISM and ISPS Codes
The origin of the ISM Code
At its 17th session in November 1991, the Assembly adopted the revised IMO Guidelines by Resolution A. This process of review and revision continued until the 18th session of the IMO Assembly in 1993. The Assembly adopted 741(18), which constitutes the ISM Code.135 The ISM Code is however, it was adopted as a recommendation because of the potential positive impact of the code in improving safety and pollution prevention, and the general ineffectiveness of the code's voluntary predecessors. Thus, the IMO created the ISM Code as a direct response to accidents and claims arising from the various maritime incidents described above.138.
The origin of the ISPS Code
SOLAS states that the company and the ship must comply with the requirements of the ISM Code.136 The ISM Code was established to provide companies with a framework to establish integrated safety management systems (SMS) to reduce accidents caused by human error .137 . The main reason for including the ISM Code in the SOLAS Treaty, rather than retaining it as a standalone treaty, is that more than 96% of the world's tonna countries are SOLAS member states, making the ISM code is mandatory applicable to all contracting countries. unless a Contracting State has made an express reservation that precludes the application of the Code.139 The inclusion of the ISM Code in the SOLAS Convention is therefore a means to guarantee the efficient and widespread application of the Code, and to ensure that all contracting states of the SOLAS Convention adhere to the security measures laid down therein. The code has both a mandatory and a recommendation section and the reasons for its inclusion in the SOLAS Convention are the same reasons for the inclusion of the ISM Code in the SOLAS Convention.
The objectives of the ISM and ISPS Codes in relations to the carrier’s obligation to
The objectives of the ISM Code
The objectives of the Code are to ensure safety at sea, the prevention of human injury or loss of life, and the avoidance of damage to the environment, particularly the marine environment, and to property. From the wording of section 1.2 of the ISM Code it would appear that the purpose of the code is to ensure that ship owners develop and use their own safety management system (in addition to the general ship safety requirements to be met by all ship owners') .149 By forcing shipowners to create additional safety management standards, the ISM Code aims to increase the safety of ships and reduce maritime accidents, ultimately preventing the loss of life, ships and cargo. A substandard ship is one whose "hull, machinery, equipment or operational safety is significantly below the standards required by the relevant convention or whose crew is not in accordance with the safe crew document".151 This means that the immediate purpose of the ISM code is. is to cleanse the shipping industry of non-compliant vessels and crew members.
The objective of the ISPS Code
Furthermore, the Code recognizes that drastic changes cannot happen overnight, so its aim is to gradually create and implement improved ways to achieve safer ship operations.
The relevance of the ISM and ISPS Code in relation to the carrier’s obligation to provide
The ISM Code in relation to the carrier’s obligation to provide a seaworthy vessel
35 6.3 The company must establish procedures to ensure that new personnel and personnel transferred to new duties related to safety and environmental protection are properly familiarized with their duties. Compliance with the ISM Code creates a presumption that due care in securing a seaworthy vessel is exercised by shipowners. 37 requirements in the ISM Code shipowners are in compliance with their obligation to exercise due care.
The ISPS Code in relation to the carrier’s obligation to provide a seaworthy vessel . 37
The Rotterdam Rules do not introduce anything new in this respect, they simply bring the carrier's private law obligations into line with his public law obligations (ISM Code). Consequently, the ISPS Code requires the carrier to carry valid certificates of compliance at all times during the journey (not limited to "before and at the start of the journey"). It is therefore submitted that the extension of the carrier's obligation to secure a seaworthy vessel throughout the voyage and not just at the commencement and commencement of the voyage is not a new concept.
Introduction
Burden of proof
Burden of proof under common law
Burden of proof under the relevant carriage regimes
According to both the Hague-Visby and Rotterdam rules, the initial burden of proof (prima facie case) rests with the cargo claimant, who must establish that the loss or damage to the cargo occurred during the carrier's period of responsibility. 175. The basis of the carrier's liability is set out in Article 17 of the Rotterdam Rules. What is even more remarkable is that the immunities under the Rotterdam Rules are not subject to the shipping company's proof of the vessel's seaworthiness.189.
The immunities contained in the Hague Visby Rules and the Rotterdam Rules
The Hague Visby Rules
The Rotterdam Rules
Overview of the defences commonly invoked in light of modern day maritime trade
- Act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in
- Fire
- Perils, dangers and accidents of the sea or other navigable waters
- Insufficiency of packaging
- Insufficiency or inadequacy of marks
- Latent defects not discoverable by due diligence
Management in the context of this exception refers to the management of the vessel and not the cargo. The court held that the cargo claimants failed to prove the carrier's negligence and that one of the exceptions existed. 52 exercising due care to make the vessel before and at the beginning of the voyage. 248.
Rationale for the abolishing of the negligent navigation exception
Furthermore, research shows that the global industry believes that removing the exception to the Rotterdam Rules is a fundamental step towards the modernization and harmonization of international transport law. The rationale behind the removal of the negligent navigation exception is therefore to subject shipowners to the same liability standards as operators of other modes of transport278, thus creating a fairer balance between the interests of the cargo owner and those of the shipowner. The UNCITRAL reports further show that during the discussions of the working group charged with facilitating the negotiations on the Rotterdam Rules, a number of delegates were of the opinion that the exception for negligent navigation should not be abolished as it would lead to 'economic consequences for the Rotterdam rules'. insurance practice' due to a change in the current “risk allocation between the carrier and the cargo owner”.279 However, an even greater number of delegates disagreed with this view.
Conclusion
Among these ninety-six provisions provided in the Rotterdam Rules are the provisions dealing with burden of proof requirements in cargo claims. Thus, it is submitted that due to the fact that the Rotterdam Rules are not widely accepted, the logical and rational way to proceed would be simply to modify the current widely accepted transport regimes. Thus, allowing many precedents and judicial interpretations created under these regimes to live a longer life compared to the ratification of the Rotterdam Rules.
