This book contains a study of the system of liability under the Hagueand Hague Visby Rules. The application of the Rules under American, English and Dutch law and incidentally Australian and Canadian law is researched to determine if the Rules are construed and applied uniformly. Where it is found that there are differences in the way a Rule is applied the intended construction of the Rule is established.
After a chapter on the construction of the Rules, the duties of the carrier contained in article III(1) and III(2) are discussed. Some of the most important exceptions of article IV and the relationship between those exceptions and the duties of the carrier are discussed in two separate chapters. There is also a chapter on the division of the burden of proof.
The book ends with a chapter containing the conclusions derived from the comparative legal research throughout the book.
A summary is included in English and Dutch.
N.J. Margetson is a lawyer in Rotterdam at Hampe Meyjes.
List of abbreviations
Preface
1 Introduction
1.1 When do the H(V)R apply?
1.2 Construction of the Rules
1.3 Research question
1.4 Method used to answer the research question
1.5 Researched legal systems
1.6 Topics of research
1.7 The UNCITRAL draft convention
2 Construction of the Hague (Visby) Rules
2.1 Introduction
2.2 Terminology
2.3 Aids to the construction of the H(V)R
2.4 Problems regarding uniform construction of the H(V)R
2.5 Ways to improve uniform construction of the H(V)R
2.6 Conclusion
3 Duties of the carrier
3.1 Introduction
3.2 What is meant by ‘voyage’?
3.3 What is meant by ‘before and at the beginning of the voyage’?
3.4 Why is the requirement restricted to the period ‘before and at the beginning of the voyage’?
3.5 What is meant by ‘due diligence’?
3.6 Is the duty to exercise due diligence to make the ship seaworthy delegable?
3.7 What is the meaning of seaworthiness?
3.8 What is meant by ‘properly and carefully’?
3.9 Is the duty contained in art. III(2) delegable?
4 The relationship between the duties of the carrier and the exceptions
4.1 Introduction
4.2 Causes of damage
4.3 The expression ‘overriding obligation’
4.4 The requirement of causal connection
4.5 Doctrines concerning the relationship between art. III and art. IV
4.6 Concurrence of culpable and non-culpable causes of damage
4.7 Why is art. III(2) not also considered an overriding obligation under English law?
4.8 The intended construction of the relationship between the duties and the exceptions
5 Art. IV(1) and some of the exceptions of art. IV(2) H(V)R
5.1 Art. IV(1): loss or damage due to unseaworthiness
5.2 The ‘nautical fault’ exception
5.3 The fire exception
5.4 Perils of the sea
5.5 The catch all exception
6 Division of the burden of proof under the H(V)R
6.1 Introduction
6.2 In general
6.3 Common law
6.4 Dutch Law
6.5 Some other continental authors
6.6 The author’s opinion: the division of the burden of proof depends on the invoked exception
6.7 The intended division of the burden of proof
6.8 Conclusion
7 Conclusions
7.1 The intended construction of the H(V)R
7.2 Duties of the carrier
7.3 Overriding obligation
7.4 Art. IV(1): loss or damage due to unseaworthiness
7.5 The ‘nautical fault’ exception
7.6 The fire exception
7.7 Perils of the sea
7.8 The catch all exception
7.9 Division of the burden of proof
Summary
Samenvatting
Appendix I Hague Visby Rules
Appendix II Harter Act
Appendix III Carriage of Goods by Sea Act 1936
Appendix IV Carriage of Goods by Sea Act 1971
Bibliography
Case List
Index
Curriculum vitae