Hague-Visby Rules. (See Appendix IX for text of the Hague Rules and Hague-Visby Ruless amendments as implemented by the United Kingdom Carriage of goods by Sea Act 1971.)
After the Hague Rules had been in force for a number of years, the development of international trade and the shipping industry, especially containerisation, and the decisions in certain legal cases began to bring the Hague Rules under criticism. One such case occurred in 1955, Adlerv. Dickson, which led to shipowners inserting protective clauses into bills of lading. One clause is called a “Himalaya clause” after the name of the passenger ship connected with the case. The effect of the Himalaya clause was generally to allow third parties, such as servants and agents of the carrier, stevedores, terminal operators, and even dry dock companies, to benefit from -a contract between two contracting parties. One third parties are usually “strangers” to the original contract and under the principle of “privity of contract” they should not be able to benefit from a contract to which they are not party.
In 1959, the Comité Maritime International (CML), formed a sub-committee to study amendments to the Hague Rules. Finally, in 1963, the CMI adopted the text of a draft “Protocol” (or mini-Convention). This was not the text of an entirely new set of rules, a complete change being resisted by shipowners, but an agreed set of amendments to the Hague Rules. The final agreement to the amendments was in Brussels on 23 February 1968. The result was formally called “The Hague Rules as amended by the Brussels Protocol 1968” but more easily as the “Hague-Visby Rules”. The word “Visby” comes from the name of an island in the Baltic Sea. Visby was, in the 13th century, a prominent sea port and gave its name to a maritime legal code called the “Laws of Visby”. The CMI held to ancient tradition and, after initially agreeing to the changes, flew to Visby to sign the recommendations!
The Hague-Visby Rules thus have a common base with the Hague Rules but there are some important differences. In Appendix IX the Hague Rules are shown with the Visby amendments in italics. Some completely new rules appeared under the French word “bis” which indicates an “addition”. Some of the original Hague Rules were repealed. The most essential changes to the original Hague Rules are:
1. Statements in a bill of lading are to be conclusive evidence against a carrier when the bill is transferred to a third party acting in good faith. (Art. III, r. 4.)
2.The time limit for bringing an action against the carrier could be extended beyond the one year. (Art. III, r. 6.)
3.The one-year time limit does not apply to actions for indemnity against third parties. (Art. III, r. 6 bis.)
4.New monetary limits are allowed for limitation of liability; limits were allowed per package (“package limitation”) and also for gross weight. (Art. IV, r. 5(a).)
5. A new method is established for calculating the value of the actual loss of the cargo. (Art. IV, r. 5(b).)
6. Palletisation and containerisation are recognized as is the connection between the number of packages in the container or on the pallet and limitation of liability. (Art. IV, r. 5(c).)
7. The carrier is not permitted to limit liability if the damage results from his act or omission done with intent to cause damage, or recklessly and with the knowledge that damage would probably result. (This is similar to the restriction on limitation of liability found in the International Convention on Limitation of Liability for Maritime Claims 1976.) (Art. LV, r. 5(e).)
8. Article IV bis is entirely new. It protects the carrier in tort as in contract. (Art. IV bis, r. 1.)
9. Servants and agents of the carrier are allowed to benefit from the Rules (the Himalaya clause). (Art. IV bis, r. 2.)
10. The cargo claimant is not permitted to recover amounts exceeding the limits provided for in the Rules. (Art. IV bis, r. 3
11. Servants and agents face the same restriction as carriers on limiting liability. (Art. IV bis, r. 4.)
12. The old Art. IX concerned gold value of the monetary limits (the “Gold clause”). The new Art. IX prevents the Rules applying to cases of nuclear damage.
13. The Hague Rules Art. X was simple: it applied the Rules to all bills of lading issued in any of the countries accepting the Rules. The new Art. X provides for wider application, but still only to bills of lading relating to carriage between ports in two different States.
The Hague-Visby Rules and the Hague Rules still have deficiencies, the solution of which some legislation attempts, for example, the United Kingdom Carriage of Goods by Sea Act 1971. Other solutions are made by courts, for example, if the shipowners breach the contract of carriage severely, the rules may not be permitted to apply (The Chanda, 1989) but even this restriction may be under criticism because the Rules may apply in some circumstances and not in others.