Resulted from unified system of liability under the Hamburg Rules the carrier

Resulted from unified system of liability under the

This preview shows page 3 - 6 out of 8 pages.

Resulted from unified system of liability, under the Hamburg Rules, the carrier must provide a seaworthy ship the whole period of the carriage. So the carrier must take all necessary measures to prevent the damage or loss and its consequences. However, under the Hague-Visby Rules, this duty of the carrier was limited. His duty only to exercise due diligence, but at the same time he was required to look after to the goods carefully 1 Hamburg rules art. IV [1] 2 Hamburg rules art. V [1]
Image of page 3
4 throughout the carriage. It made unclear the carrier’s duty under the Hague-Visby Rules. On the other hand, the introduction of the unified system of liability which based on the fault, made the carrier’s duty much clear. Furthermore, under the Hague-Visby Rules article III [2] that, “the carrier shall properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried.” This rule imposes to the carrier which has to take all necessary measures to prevent the damage or loss occurred to the goods. However, in contrary to that, article IV [2] mentions a list of exceptions which the carrier shall not be liable for the damage or loss under these exceptions. As a matter of fact, these two articles conflicts each other and another problem comes to the light is that how to deal with the burden of proof. In practice, the court generally finds it difficult to interpret to these provisions. On the other hand, The Hamburg Rules have introduced a new measure to resolve this problem. They adopted a unified burden of proof rule. According to the rule, the burden of proof is on the carrier, because the carrier’s liability shall be based on fault in all cases of loss or damaged to the goods. As I mentioned before, the burden of proof is on the carrier under the Hamburg Rules. However, there are two exceptions of this rule. 1 Under these exceptions the claimant has to prove that the damaged or loss was resulted from carrier or his agent or servants fault. First exception of the rule is the fire. Where the goods are damaged or lost as a result of fire, the carrier will be liable if the claimant can prove that the fire arose from the “fault or neglect on the part of the carrier, its servants, or agents.” 2 However, the burden of proof must be on the party who is most likely to have knowledge of the facts. In this case, it could be difficult for the claimant to prove the fire, because it was happened by fault of the carrier. And also his goods has already been lost or damaged. On the other hand, as a carrier, it is also difficult to establish the precise origin of the fire at sea. 1 Hamburg rules V [4]-[5] 2 Hamburg rules V [4]
Image of page 4
5 In addition, there are a little difference about fire exception between the Hague-Visby Rules and the Hamburg Rules. Under the Hague-Visby Rules, same as the Hamburg Rules, the claimant is under a burden of proof to prove that the fire occurred on account of the fault or privity of the carrier. However, in this case, when the claimant proved that
Image of page 5
Image of page 6

You've reached the end of your free preview.

Want to read all 8 pages?

  • Spring '19
  • Law, Contract Law, Bill of lading, carrier, Commercial item transport and distribution, Hague-Visby Rules

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture