Therefore, the purpose of this study is to critically analyze the three main changes introduced by the Rotterdam Rules and determine the extent to which they have provided adequate solutions to the alleged shortcomings of its predecessors, the Hague-Visby Rules and Hamburg Rules. This study engages in a comparative analysis of the Rotterdam Rules with the Hague-Visby Rules and the Hamburg Rules in relation to the three main differences above.
Brief overview of the topic
However, in an attempt to more fairly balance the rights between carrier and shipper, under Article III of the Hague/Hague-Visby Rules, the carrier is only required to exercise due care to make the vessel seaworthy before and at the commencement of the voyage. With regard to the carrier's seaworthiness obligation, it has been suggested that the basis of the carrier's liability and the burden of proof under Article 17, which is inextricably linked to the carrier's seaworthiness obligation, is overly complex.
Rationale and purpose of the study
As regards the abolition of the defense against nautical errors, even though there have been calls for its abolition in recent years, it will have to be determined whether its abolition is an appropriate solution in the light of the interests of both the carrier as the shipper, and whether it is a suitable solution from a practical perspective. Accordingly, it will be appropriate to conduct a comparative analysis between the Hague-Visby Rules, the Hamburg Rules and the Rotterdam Rules regarding multimodal transport, the carrier's seaworthiness obligation and the nautical fault defense to determine to what extent the Rotterdam rules have offered appropriate solutions to the shortcomings of its predecessors.
Research question and issues to be investigated
It may consider replacing the South African Carriage of Goods by Sea Act 1 of 1986 (SA COGSA, which gives effect to the Hague-Visby Rules) with the Rotterdam Rules if widely accepted (please see footnote 16 for more information on Operation Phakisa and the proposed update of SA COGSA). An in-depth analysis of the Rotterdam Rules in its entirety is beyond the scope of this study, especially all 96 articles, and therefore this study will focus exclusively on the above three major and potentially controversial changes introduced by the Rules.
Breakdown of chapters
84 F Berlingieri 'A comparative analysis of the Hague-Visby Rules, the Hamburg Rules and the Rotterdam Rules'. A Comparative Analysis of the Hague-Visby Rules, the Hamburg Rules and the Rotterdam Rules” 2009 available at.
CHAPTER TWO: HISTORICAL BACKGROUND
English Law
26 Y Yang Abolition of Nautical Fault Exemption: To Be or Not to Be (Unpublished Ph.D. Dissertation, Lund University, 2011) 4. 8 exploitation of the carrier's dominant position eventually led to the adoption of the Harter Act of 1893 in the United States.37.
The Harter Act
9 jurisdictions further complicated the issue of non-uniformity.49 Many ship-owning countries continued to maintain freedom of contract, allowing carriers to set their own liability terms.50 The result was that the Harter Act did not achieve uniformity in carrier liability did not achieve as hoped, and it was clear that uniformity in carrier liability and harmonious global trade could only be achieved at the international level.51.
The Hague Rules
10 properly load, stow, transport, care for and discharge the goods carried.60 This is a minimum standard of liability and any provision in the bill of lading which attempts to limit these duties is void.61 Recognizing that sea transport is particularly risky, 62 The rules provide the carrier with protection through a list of exceptions that it can rely on to escape liability where applicable. This includes the exception of nautical fault, a disputed defense that allows the carrier to avoid liability for the errors of its employees in the navigation or management of the vessel.63 However, the duty of seaworthiness is considered to be an overriding obligation, which means that before the carrier can seek to invoke one of the exceptions, it must first prove that it has exercised due care to provide a seaworthy vessel before and at the commencement of the voyage.64.
The Hague-Visby Rules
The carrier is obliged to act with due diligence before and at the beginning of the journey: Many developing countries, which represent the interests of shippers and cargo and were not involved in the preparation of the Hague Rules, began to participate in international trade.81 They perceived that The Hague/Hague-Visby the rules favor developed ship-owning countries that have dominated maritime trade.82 Accordingly, the Rules are considered outdated and are not without concerns, particularly regarding the carrier's obligations regarding seaworthiness, defense against nautical errors, and the fact that the rules do not address multimodal transport.
The Hamburg Rules
The wording and structure of the Hamburg Rules differ significantly from the Hague/Hague-Visby Rules, with many notable differences. For example, the seaworthiness obligation and the list of defenses under the Hague/Hague-Visby Rules are not included in the text of the Hamburg Rules, including the nautical fault defence.
The Rotterdam Rules
With regard to point (d) above, if there is no applicable unimodal convention, or if the loss cannot be located (which is often the case for containerized goods), the provisions of the. The question is therefore whether the Rotterdam Rules have provided appropriate solutions to the shortcomings of the Hague-Visby Rules and the Hamburg Rules.
CHAPTER THREE: MULTIMODAL TRANSPORTATION
A comparative analysis between the Hague-Visby Rules, the Hamburg Rules and the
- The Hague-Visby Rules
- The Hamburg Rules
- The Rotterdam Rules
- Article 1.1 and 5
- Introduction to Article 26 and 82
- An overview of Article 26
- An overview of Article 82
180 T Fujita 'The coverage of the Rotterdam Rules' presentation at the CMI Colloquium in Buenos Aires available at. As noted, the scope of the Rotterdam Rules is substantially broader than the Hague-Visby and Hamburg Rules.
To what extent is the provision for multimodal transportation under the Rotterdam Rules
After examining the multimodal aspects of the Rotterdam Rules, it will be appropriate to determine to what extent the rules are an appropriate solution to the shortcomings of the Hague-Visby Rules and the Hamburg Rules. 268 A Sulicu 'Aspects of the multimodal transport in the Rotterdam Rules Perspectives of Business Law Journal 49. It is clear that the multimodal aspects of the Rotterdam Rules are not without their concerns, with many organizations and leading authors expressing their concerns about the Pronouncing Rotterdam Rules. .
A brief South African perspective
41 Operation Phakisa may now attempt to replace the Hague-Visby Rules with the Rotterdam Rules, should these become widely accepted (see footnote 16 for further details). One of the aspects that the South African government must consider when deciding whether or not to adopt the Rotterdam Rules is the multimodal aspects of the Rules, given the potential impact they could have in South Africa. And since South Africa is not a party to the CMR, the land part that precedes or follows the sea part will be governed by the Rotterdam Rules, a largely maritime treaty.
Conclusion
The airline is obliged to exercise due care before and at the start of the journey. According to the Hague-Visby rules, the carrier is only required to exercise due care before and at the start of the voyage to make the vessel seaworthy. Aladwani T.H, A comparative study of the obligation of due diligence to deliver a seaworthy vessel under the Hague/Hague-Visby Rules and the Rotterdam Rules (PhD thesis, Plymouth University, 2015).
CHAPTER FOUR: THE CARRIER’S SEAWORTHINESS OBLIGATION
A comparative analysis between the Hague-Visby Rules, the Hamburg Rules and the
- The Hague-Visby Rules
- Historical background and general overview
- Features of the seaworthiness obligation under the Hague-Visby
- Why is there a need for reform?
- The Hamburg Rules
- General overview
- Why is there a need for reform?
- The Rotterdam Rules
- General overview
Therefore, the carrier is not required to exercise due care before and at the beginning of each stage of the voyage to make the ship seaworthy and the stages doctrine does not apply under the Hague-Visby Rules. 61 the beginning of the voyage, which is the measure of obligation according to the Hague-Visby Rules.448. As we have seen under the Hague-Visby Rules, the carrier has a fundamental obligation to exercise due care only before and at the beginning of the voyage to make the vessel seaworthy.
To what extent is the extension of the carrier’s seaworthiness obligation under the
- Concerns regarding the basis of liability and burden of proof under the
- The impact the extension of the seaworthiness obligation
This is considered one of the most significant changes introduced by the Rules and differs significantly from the Hague-Visby and Hamburg Rules. Accordingly, it may invoke one of the exceptions to liability before proving that it exercised due diligence in making and keeping the vessel seaworthy. Consequently, it is suggested that the extended seaworthiness obligation under the Rotterdam Rules is not necessarily a new or appropriate solution to the shortcomings of the Hague-Visby Rules and Hamburg Rules.
Conclusion
In this regard, it is practically debatable whether it is appropriate to omit the defense from the Rotterdam Rules. Based on the above, removing the nautical fault defense is in theory a logical and appropriate response to the Hague-Visby rules. Consequently, it argued that the extension of the seaworthiness obligation under the Rotterdam Rules is not an adequate solution to the shortcomings of the Hague-Visby and Hamburg Rules.
CHAPTER FIVE: THE NAUTICAL FAULT DEFENCE
A comparative analysis between the Hague-Visby Rules, the Hamburg Rules and the
- The Hague-Visby Rules
- Historical background and general overview
- The concept of the nautical fault defence
- The position under the Hamburg Rules and the Rotterdam Rules
The act, neglect or default of the master, seaman, pilot or servants of the carrier in the voyage or in the management of the ship." Furthermore, an error in the management of the ship that wrongfully damages the cargo may also lead to. The act, neglect or default of owner, sailor, pilot or servants of the carrier".
To what extent is the absence of the nautical fault defence in the Hamburg Rules and the
- Arguments opposing the nautical fault defence
- Arguments in favour of the nautical fault defence
- Overall assessment
Defense advocates further argue that its removal would not necessarily encourage carriers to take greater care of cargo. The lack of defenses in the Hamburg Rules and the perceived increase in carrier liability ultimately prevented the Rules from gaining widespread acceptance. Its removal was therefore not an appropriate solution and may be an indication that removing the defense from the Rotterdam Rules is not an appropriate solution.
Conclusion
Introduction
Summary of the findings
For our purposes, however, the multimodal aspects of the Rules can be seen as an adequate solution to its predecessors. Therefore, the known wording of the obligation regarding seaworthiness under the Hague-Visby Rules is not in the text of the Hamburg Rules. Given the shortcomings of the Hague-Visby Rules and the Hamburg Rules, an extension under the Rotterdam Rules may at first appear to be an adequate solution, but its provisions relating to the obligation of seaworthiness are worrisome.
Conclusion
Relationships between the Rotterdam Rules and the Convention on the Carriage of Goods by Road Tulane Maritime Law Journal 725-740. Carrier Liability Regime under the Rotterdam Rules' 2013, available at http://www.hksoa.org/contents/attachments/Presentations/2013/IFSPA2013/Papers/M28. UNCITRAL Introductory Note on the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (New York, 2008) ("Rotterdam Rules"), available at.
