A comparative analysis of the carrier’s liability under the Hague Visby and Rotterdam rules.

Abstract

This study provides a historical overview of the development of the carrier’s obligation to maintain a seaworthy vessel in contracts of carriage by sea, as well as a comparative analysis of the extent and duration of this obligation under the Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, 1968 (the Hague Visby Rules) and the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, 2008 (the Rotterdam Rules). The comparative analysis of the two carriage regimes undertaken in this study is of importance from a South African perspective as it examines whether the country should ratify the Rotterdam Rules in accordance with the recommendation made under the ‘Operation Phakisa’ project. The writer will briefly elaborate on the background and objectives of this governmental project in the study. 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 whether the extension of the duration of the carrier’s obligation to provide a seaworthy vessel under the Rotterdam Rules, imposes any additional duties on the ship owner. The study also explores the requirements that the parties to a cargo claim have to meet by analysing the burden of proof under both the Hague Visby and Rotterdam Rules. This examination includes an overview of the commonly invoked exceptions contained in both carriage regimes, particularly the negligent navigation exception and the reasons and possible cost implications of excluding this exception from the list of exceptions contained in the Rotterdam Rules.