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Third Party Protection in Shipping

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CHAPTER 5

Third party protection under the Hamburg Rules

The Hamburg Rules and multimodalism

5.1 The factual context of the shipping industry changed substantially between the drafting of the Hague Rules and the Hamburg Rules.1 Containerisation revolutionised the carriage of goods by sea, and re-shaped the shipping industry as a whole. As Wyatt notes, the ability of containers to travel between different modes of transport (the foundation of multimodalism) further complicated the relationship between shippers and other parties.2 Despite their versatility, containers can present more problems, especially if cargo is damaged or lost. Determining not only who is liable but also during which leg of the multimodal chain3 the cargo was damaged or lost, and, consequently, which liability scheme is applicable, is now a difficult task.4 5.2 The need arose, therefore, for a new convention that reflected the changing industry. In the 12 years between 1968 and 1980, two conventions and one protocol had been drafted. Considering that the international community was quite silent for the 44 years between the Hague Rules and the Visby Protocol, this relatively high level of activity can be reasonably construed as a response to demand from the international community for clarification and updates. Haak lists the failures of trying to solve the issue of multimodalism:
  • • 1967 Genoa Rules and 1969 Tokyo Rules
  • • 1972 Transport Combine de Merchandise
  • • 1980 Multimodal Transport Convention by the United Nations5
5.3 The Hamburg Rules came into force on 1 November 1992 and were ratified despite not receiving full support from the international community. To

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date, 34 states have ratified the rules; a significant show of acceptance, but insufficient adoption to give uniformity.6 5.4 The states that have ratified the Hamburg Rules are principally small developing countries. It is pertinent to mention here that, of the 20 states that became signatories to the Hamburg Rules, Barbados and Kenya were the only two to have signed either the Hague or the Hague-Visby Rules.7 5.5 The Hamburg Rules represent a significant development in the industry’s understanding of responsibility for cargo. Under tackle-to-tackle conventions, Wyatt explains, the parameters of the carrier’s liability under the contract of carriage were easier to establish. However, carriers in that period were often engaged with multimodal activities. As the industry evolved to take a more port-to-port approach, responsibility for cargo during handling became a rather grey area. The aim of the UNCITRAL was to overcome this dissonance. For the purposes of this book, categories such as stevedores and terminal operators will be left unexamined.8 5.6 The scope of application of the Hamburg Rules—and consequently the period of carrier responsibility9 under them—has therefore been extended from tackle-to-tackle to port-to-port. The extension has been defined in accordance with modern cargo transport, in which shippers are normally not located immediately opposite the quay.10 5.7 In relation to the carriage of goods by sea, the reference to multimodal contracts present in Article 1(6) of the Hamburg Rules merits discussion. This article essentially states that, when there is a multimodal contract of carriage, the Hamburg Rules apply only to the sea leg. The convention is the only sea carriage instrument that takes the possibility of multimodal carriage into account, thus recognising that a multimodal contract does not exclude the sea contract. The application of the liability regime of the Hamburg Rules covers the period during which the carrier is in charge of the goods at the port of loading and ending at the port of discharge.11

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Third party protection and the Hamburg Rules

5.8 The Hamburg Rules consider the contract of carriage by sea as being when the carrier undertakes to carry goods by sea from one port to another.12 Additionally, the Hamburg Rules cast the responsibility of the carrier more expansively than the Hague-Visby Rules. It is nonetheless confined to the periods of time during which the carrier is in charge of the goods at the port of loading, during the carriage, and at the port of discharge. 5.9 In terms of action to be considered, the Hamburg Rules introduced a new element not present in the Hague-Visby Rules; the carrier (and consequently his third parties) is liable not only for loss or damage, but also for delay.13 5.10 Furthermore, the Hamburg Rules introduce the concept of an ‘actual carrier’, which, in turn, introduces the concept of multilateral performance of the carriage.14 The article states that, in a case where the performance has been assigned to an actual carrier, the carrier is still responsible for the all carriage (including for the part performed by the actual carrier).15 Both the carrier and actual carrier are liable and their liability is joint and several.16 5.11 Article 10 of the Hamburg Rules is, in practice, a precursor to the performing parties (and maritime performing parties) provisions of the Rotterdam Rules. However, the article does not precisely state that the defences and limitations of the carrier are extended to the actual carrier. As per the proposal of the United States mentioned in the travaux préparatoires:

The United States (para. 38) notes that the ‘carrier’ and the ‘actual carrier’ are distinguished under article 10 of the draft Convention. Further, paragraph 2 of this article, which imposes responsibility on the actual carrier, does not state that the latter is entitled to the same benefits and limitations of liability to which the carrier is entitled under the draft Convention. Nor is such an entitlement referred to in any other article of the draft Convention. In order to clarify that the actual carrier has the same entitlement as the carrier, the United States proposes (para. 38) that the following words be added at the end of the first sentence of this paragraph: ‘and the defences and limitations of liability provided to the carrier according to the provisions of this Convention shall also be applicable to the actual carrier for the carriage performed by him’.17

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