20-01-2015 بانوراما التأمين

Though regularly criticised by the manufacturing industry in particular, the Hague-Visby Rules continue to dominate the market for the carriage of goods by sea. They have seen off the challenge from the Hamburg Rules and are also continuing with a strong defence against the Rotterdam Rules, which do not now appear to be any closer to being used in the market. A best estimate for their coming into force could be reasonably put at 2015, if they come into force at all. Though signed for by the minimum 20 nations they have still to be ratified into the laws and legal codes of at least 20 nations. There is at present little evidence of this happening. One view has it that they will only be accepted by the international market if and when the United States of America has ratified them

So what, you may ask, is all the fuss about? Are they really as one-sided as claimed by their detractors? If they are, is it fair that such a state of affairs should be allowed to continue? To answer these questions we need to sit back and consider the respective positions of ship-owners and manufacturers of goods, and to consider solutions

It’s entirely understandable that ship-owners should wish to restrict the circumstances in which they will accept liability for loss or damage to goods they are carrying and, sometimes, to exclude responsibility for loss or damage altogether. This position is formed because of the freight they earn in carrying goods from one port to another. The level of that income is dictated by the amount the market will pay. It is no surprise that the market will not allow a profit margin that is excessive, so the mark-up for profit on the costs of running a ship is relatively small

As with road haulage contractors, train operators or air freight carriers, the level of freight charges is established by reference to the cost of running the ship from one port to another regardless of the type of goods carried. It costs the same to run a ship carrying coal as it does to run a ship carrying an equal weight in gold, even though the values of the two are poles apart. It’s unreasonable to expect the carrier of goods to cater for the full value of the goods they carry and to absorb those values in the freight costs. There is simply too little money from freight to cover the full values of goods of whatever type or value

On the other hand, it may be unreasonable for the owner of goods lost or damaged in transit to bear those costs from his own funds but, for him, the solution is simple. Arrange cargo insurance on the goods for their full values and with cover as wide as can be obtained in the market. Institute Cargo Clauses (A) 1/1/09 are the usual choice for most goods as they give the widest cover. Arranging cargo insurance provides the owner of goods with a sleep-easy option. If the worst comes to the worst all they have to do is to prove the quantum, title in the goods, and that the loss occurred. It is for marine insurers to pay the claim and then, only then, to exercise rights in subrogation against any carrier responsible for the loss or damage, knowing that the carrier may offer only limited compensation or may refuse to pay any monies at all, citing one of the seventeen defences to liability contained in the Hague-Visby Rules. Some of those rules are entirely reasonable but others may not be so, so allow me to offer a comment on some of those Rules and to suggest which should be deleted or, in some cases, varied

The first defence involves the exclusion of the ship-owner’s liability for negligent navigation by the master, the crew or a pilot. This defence harks back to the days of star sighting and dead reckoning so as to calculate the approximate position of the vessel at a given time. Because of this lack of complete accuracy it is only reasonable for the negligent navigation defence to have been applied but that is an age that is now gone. With navigation now done by reference to a highly accurate Global Positioning Satellite the negligent navigation exclusion is no longer valid and should be discarded

At the other end of the list of defences we have the “any other cause arising without fault or privity of the carrier…” one, with its torturous phrasing. This could easily be replaced with the more clearly understood wording of the CMR Convention, Article 17.2, which allows the carrier to escape liability if he can prove that the cause of the loss was due to circumstances he could not foresee and the consequences of which he could not prevent

Sandwiched between these first and last defences we have some defences relating to the perils of the sea and others which concern themselves with actions taken by the owner of the goods. Actions such as failures on their part of the owners of goods “act of omission of the shipper or owner of the goods” and insufficiency of packing. It’s perfectly reasonable that these ought to remain, as they are outside the control of the ship owner, the master and the crew

Finally, perhaps there is an argument for increasing the liability from the current 2 SDRs per kilo to 2.5 kilos per kilo of weight lost or damaged, but no more than that