Hamburg Rules cover all contracts for the carriage by sea other than charter parties.

The
contracts of carriage by sea are defined in Article 1(6) as;
any contract whereby the carrier undertakes against payment of freight to carry,
goods by sea from one port to another.
Where the contract is a combination of some form of multimode carriage, the Rules
will only be applicable to the sea leg. This approach is different from that adopted by the
Hague/ Visby Rules which mainly deals with contracts of carriage covered by a bill of
lading or any similar document of title under Article 1(b). The Hamburg Rules govern
both inward and outward bills, one important exception from Article X of the
Hague/Visby Rules. Thus it is an important factor or ship owners who trade with
countries in which the Convention is now effective. Provision is also available for parties
who expressly incorporate the Rules into the bill of lading or other document evidencing
the contract.
The main differences between the Hamburg and Hague/Visby Rules and also the extent to
which Hamburg Rules are considered to be better than the Hague/Visby Rules are
described in the following:

The carrier: At this stage we need to discuss who the carrier is under the
Hamburg Rules. Article 1 of the Hamburg Rules makes a distinction between the
carrier nad the actual carrier. Under Article 1(1); Carrier means any person by
whom or in whose name a contract of carriage of goods by sea has been concluded with
a shipper. Article 1(2) provides; Actual carrier means any person to whom the
performance of the carriage of the goods, or of part of the carriage, has been entrusted
by the carrier, and includes any other person to whom such performance has been
entrusted. The Hamburg Rules refer to the actual carrier and the contractual carrier as
being susceptible to liability under the Rules concurrently.

Article 10(1) provides: Where the performance of the carriage or part thereof
has been entrusted to an actual carrier, whether or not in pursuance of a liberty under
the contract of carriage of goods by sea to do so, the carrier nevertheless remains
responsible for the entire carriage The carrier is responsible, in relation to the
carriage performed by the actual carrier, for the acts and omissions of the actual carrier
and of his servants and agents acting within the scope of their employment.

However, the actual carrier is liable only for the part of the contract which he
personally performs. The contractual carrier is entitled to exclude his liability for loss or
damage caused to the goods while in the custody of the actual carrier, provided that the
actual carrier is named and details about that part being performed by the actual carrier
are given, in the contract of carriage under article 11(1).

The right of the contractual carrier to exclude liability may be affected under
these circumstances- Where there is not possible for judicial proceedings to be brought
against the actual carrier in a competent court (as defined in Article 21(1)(2)), the

exclusion clause shall be ineffective. There exists, however, between themselves, a

mutual right to indemnity.

The Hamburg Rules makes clear that where the contracting carrier delegates
performance of the contract of carriage he remains responsible throughout for the acts
and omissions of the actual carrier and of his servants and agents acting within the scope
of their employment (Article 10(1)).

At the same time the Rules equally govern the responsibilities of the actual
carrier for that part of the carriage performed by himself and where the obligation of the
two parties overlap, their liability is joint and several under Article 10(4).
In comparison with the Hague/Visby Rules, the Hamburg Rules will greatly assist the
cargo owner claimant who at present has the difficult task of unrevealing the complicated
relationship with the owner, charters and demise charters in order to establish the identity
of the carrier. The need to identify the carrier arises from the fact that the Hague and
Hague/Visby Rules will only recognise a single carrier, i.e. the contractual carrier.

Basic carrier liability: The draftsmen of the Hamburg Rules have

used the well criticised concept that carrier liability should be base exclusively on fault
and that a carrier should be responsible without exception for all loss or damage to the
cargo as a result of his own mistake or the fault of his servants or agents, in order to
frame a uniform and substantive test of carrier liability. They have rightly selected to
present an affirmative rule of responsibility which is dependant on presumed fault on part
of the carrier and to abolish the list of exceptions contained in Article IV rule 2 of the
Hague/Visby Rules. This statement of basic liability is drafted in Article 5(1) as:
The carrier is liable for loss resulting from loss or damage to the goods, as well as
delay in delivery, if the occurrence which caused the loss, damage, or delay took place
while the goods were in his charge as defined in article 4, unless the carrier proves that
he, his servants or agents, took all measures that could reasonably be required to avoid
the occurrence and its consequences.

The obligation of the carrier under the Hague/Visby Rules to provide a

seaworthy ship was only, subject to a duty of exercising due diligence, while he was
required to look properly and carefully, after the cargo throughout the carriage. But after
the Hamburg Rules the carriers duty to provide a seaworthy ship is to be judged on the
same basis as his duty towards the cargo, and both obligations are running throughout the
period of carriage. The only issue is to be considered by the national courts on the issue
of carriers liability is whether all measures that could reasonably be required to avoid the
occurrence and its consequence have been taken by the carrier and his servants or agents.

The Hague/Visby Rules contain no specific provision for the recovery of loss
caused by delay in delivery of the cargo. In case of physical damage to the goods as a
result of the delay, there remains little doubt as to whether such loss is recoverable under
Article III rule 2 which imposes a general duty of care in handling the cargo. And also

there remains some ambiguity surrounding the concept of purely economic loss, such as
loss of market resulting from delay in delivery. In order to clarify the position and also to
bring the carriage of goods by sea in line with other three modes of international
transport, the Hamburg Rules expressly provide that the carrier will be held responsible
for loss resulting from delay in delivery unless he can show that neither he nor his
servants or agents were at fault. Article 5(2) defines delay as occurring when the goods
have not been delivered the port of discharge within the time expressly agreed in the
contract of carriage. Where there is no express agreement contained in the contract of
carriage, within the time which it could be reasonable to require of a diligent carrier
having regard to the circumstances of the case: Renton v Palmyra Trading Corp [1957] 1.

Period of responsibility: It is clear that under Hamburg Rules, the

period for which the carrier could be held liable appears to have been extended from
contract of carriage under Article 1(e) of the Hague/Visby Rules which only covers the
period from the time when the goods are loaded on to the time they are discharged from
the ship. Article 4(1) of the Hamburg Rules makes it plain that the carrier shall be held
liable under the Rules not only for the period when the goods are being shipped, but also,
for the period, during which he is in charge of the goods at the port of loading and at the
port of discharge. This provision seems to be designed to remedy the existing before and
after problem of the Hague/Visby Rules, which used to have the effect that the carrier
was able to exclude all liability for the cargo when it is not physically abroad his vessel2.

Types of cargo: It is generally recognised that certain types of cargo, such

as animals or deck cargo, present problems of assimilation to any set formula of carrier
liability. The Hamburg Rules cover all kinds of cargo. The draftsmen of the Hamburg
Rules recognised the problems involved in the carriage of such cargo and provided a just
solution which was to include the problem cases initially in the general formula and then
to make special provision to cover their peculiarities.

Article 5(5) governs the carriage of live animals. It states that with respect to
live animals, the carrier is not liable for loss, damage or delay in delivery resulting from
any special risks inherent in that kind of carriage. Moreover, provided that the carrier can
establish that he had complied with any instructions given to him by the shipper in
respect of the carriage of the animals in question, and the particular loss incurred could be
attributed to such risks, it will be presumed that the loss was so caused unless there I
proof that all, or part of the loss, damage or delay in delivery resulted from fault or
negligence on the part of the carrier, his servants or agents.
According to Article 9, the deck cargo, subject to the Rules, will be treated as
normal cargo where it is shipped in accordance with an agreement with the shipper, or
with the usage of the particular trade or is required by statutory rules or regulations.
Such an agreement must be recorded on the bill of lading, otherwise the carrier will have
1
2

AC 149
See Supra pp 181-2

to prove of its existence. Moreover, he will not be allowed to invoke such an agreement
against a purchaser who has acquired the bill in good faith. If the goods are shipped on
deck without the consent of the carrier though it would not amount to a fundamental
breach but the carrier will be held responsible for loss, damage or delay in delivery of
these goods on deck only.

Documentation: Under Article 14(1) the carrier is required to issue a

bill of lading. Article 15 governs the contents of a bill of lading. The Article gives a long
list for the contents of a bill of lading which contain 15 aspects. These provisions are
clearly much more detailed than their counterpart- Article III(3) of the Hague/Visby
Rules (3 aspects only).
Article 15(3) provides that the absence in the bill of lading of one or more
particulars referred to in this article does not affect the legal character of the document as
a bill of lading provided that it nevertheless meets the requirements set out in paragraph
7 of Article 1. As with the Hague/Visby Rules, statements on the bill of lading are
regarded as prima facie evidence under Article 16(3)(a). However, once the bill of lading
is transferred to a third party acting in good faith under Article 16(3)(b), proof to the
contrary cannot be submitted by the carrier.

Burden of proof: The Hague/Visby Rules in its

Article IV rule 2(a)

accepted the exception of negligence or default of the master, mariner, pilot or the
servants of the carrier in the navigation or management of the ship. The Hamburg Rules
seek to remove this confusion of a exception, by presuming fault in all cases of loss or
damage to cargo and thus imposing a uniform burden of proof on the carrier. This
provision appears to be justified since the desirability of placing the burden of proof on
the party most likely to have known about the facts. Only in the case of damage caused
by fire, the carrier is exempted from this burden of proof presumably for the reason that it
is difficult to establish the precise origin of a fire at sea, since in most of the cases the
event tend to be originated with the cargo.

Article 5(4) provides that where the damage or loss caused by fire, the carrier
will not be liable unless the claimant, usually the owner of the cargo, is able to prove that
the fire arose from the fault or negligent on the part of the carrier, his servants or agents
or from their fault or negligent in not taking all reasonable measures that is required to
put out the fire and avoid or mitigate its consequence.