The Comité Maritime International (the CMI) is a non-governmental international organisation dedicated to the unification of maritime law in all its aspects. It was founded in 1897. Its membership comprises national maritime law associations and international organisations such as the International Maritime Organisation and the International Chamber of Commerce. One of its earliest achievements was the International Convention of 1922 that led to the adoption of the Hague Rules.

The Hague Rules were revised in 1968 by the Hague-Visby Rules, enacted in the UK by the Carriage of Goods by Sea Act of 1971. Although the Hague-Visby Rules increased the liability of the carrier, particularly in regard to the package limitation, disaffection with the balance of responsibility between ship and cargo interests remained. This led to the adoption of the Hamburg Rules in 1978, which represented a substantial departure from the liability regimes previously in force.

The Hamburg Rules have, however, achieved only limited acceptance. As a result, there has been in recent years renewed pressure from cargo interests to revise the Hague and Hague-Visby Rules. The challenge has been accepted by UNCITRAL (the United Nations Commission on International Trade Law), which has commissioned the CMI to do the initial preparatory work.

In fulfilment of this mandate, the CMI established an International Sub-Committee on Issues of Transport Law. This Sub-Committee produced, for consideration at the Conference of the CMI held in Singapore in February 2001, a draft outline for a new international convention on this topic.

The key topics highlighted in this draft and worked on by the Conference were the following:

1 Period of the Carrier’s Responsibility
2 Nature and Extent of Carrier’s Liability
3 Liability of the Performing Carrier
4 Liability for Delay
5 Responsibility of the Shipper
6 Electronic Commerce

1 Period of the Carrier’s Responsibility
The question here was whether the period of the carrier’s responsibility should be:

(a) limited to the ‘tackle to tackle’ period as in the Hague and Hague-Visby Rules, 
(b) limited to the period in which the carrier is in charge of the goods, at the port of loading, during the carriage and at the port of discharge, as in the Hamburg Rules or 
(c) extended to cover inland carriage preceding or subsequent to carriage by sea, from place and time of receipt from the shipper until place and time of delivery to the consignee.

At the Conference, there was considerable support for (c) above, provided that the carriage did involve a sea leg. Conference agreed, however, that provision should be made for the period of the carrier’s responsibility to be limited to tackle to tackle or port to port, for cargoes carried on that basis. In addition, the parties to the contract of carriage would retain the right to agree that certain activities, such as loading, stowing or discharging, should be carried out at the risk and responsibility of the shipper or consignee, rather than of the carrier.

Conference agreed that ‘through transport’ should continue to be permitted. By ‘through transport’ is meant, in this context, the right of a carrier to provide that part of the voyage will be carried out by another carrier, who will act, not as the sub-contractor of the first carrier, but as a contractor for the shipper, engaged through the agency of the first carrier. Under such an arrangement, the first carrier will normally accept responsibility only for that part of the voyage that it carries out through a ship under its control. When this occurs, Conference agreed that the first carrier should comply with certain standards in its selection of the subsequent carrier and the terms on which that carrier should be engaged. These standards would be set out in any future convention.

Whilst there was some support for the concept of a uniform liability regime to govern carriage preceding or subsequent to carriage by sea, there was greater support for the ‘network’ system of liability, as set out in the UNCTAD/ICC Rules for Multimodal Transport Documents of 1990, on which the FIATA Bill of Lading and the Bills of Lading of many liner carriers are already based. Conference believed that a convention based on a network system of liability was more readily achievable and would avoid inconsistencies with existing unimodal law, such as the CMR Convention, which governs road transport in much of Europe.

Conference recognised that – as had been the case since such discussions had begun over a century ago - the eventual allocation of responsibilities between carrier and cargo interests would be a ‘package’, in which each side would trade concessions in order to secure advantages.

The issue before Conference was whether liability should continue to be based on fault, as in the Hague, Hague-Visby Rules and Hamburg Rules, or whether some more stringent regime should be introduced, such as exists in the CMR Convention governing international carriage by road. Conference overwhelmingly supported continuation of a fault-based regime. Most delegates favoured a regime based on the Hague or Hague-Visby Rules, rather than on the Hamburg Rules. There was accordingly support for the inclusion of detailed provisions, rather than those of only a general nature. Delegates believed that the detail contained in the Hague and Hague-Visby Rules, particularly in Articles 3 (the obligation to provide a seaworthy ship and to care for the cargo) and 4 (the list of exceptions from liability), were helpful in interpreting them.

There was much debate on the issue whether the defence of error in the navigation or management of the ship (Article IV 2(a) of the Hague-Visby Rules) should be maintained. There was considerable support for its elimination, particularly in the context of the ‘package’ approach mentioned above. Outside the Conference hall, some delegates raised the issue of pilot negligence in this context. Shipowners and their P&I Clubs have become increasingly concerned in the last decade with the cost of casualties arising from pilot error, where in most cases effective recourse against the pilot at fault is not available.

And who might that be? The draft presented to the Conference described the performing carrier as ‘a person who performs, undertakes to perform, or procures to be performed any of a contracting carrier’s responsibilities under a contract of carriage, at the request of, or under the supervision or control of, the contracting carrier, regardless of whether that person is a party to, identified in, or has legal responsibility under the contract of carriage’. The performing carrier is to be contrasted with the contracting carrier, namely the carrier that enters into a contract of carriage with the shipper. Of course, a contracting carrier which carries out the contract with its own means of transport is also the performing carrier, but often the two roles are separated.

The purpose of defining the performing carrier was to make the performing carrier as well as the contracting carrier subject to the Convention. If this were done, it would avoid the problems that arise at present from cargo interests pursuing a claim in tort against a person other than the contracting carrier. Today, carriers seek to prevent such claims by including in the contract of carriage ‘Himalaya’¹ type provisions, which are designed to give to all parties whose services the contracting carrier uses to carry out its obligations under the contract of carriage, the same defences and limitations as the contracting carrier itself enjoys.

The wide definition of the performing carrier gave rise to great concern, particularly among the forwarding community represented by FIATA, the international association of national forwarding associations. In a special submission to the Conference, FIATA described the definition of performing carrier as ‘too broad and far-reaching. It includes third parties that are not bailees of the goods or parties to the contract of carriage, such as agents of the contracting carrier. The definition should be restricted to that of the ‘actual carrier’ (bailees of the goods only) as in the Hamburg Rules’. Conference agreed. It also agreed that, to the extent that a party was not within the narrower definition of performing carrier, that party should be protected by Himalaya-type provisions, in order to avoid a multiplicity of actions designed to defeat the terms of the contract of carriage.

Conference also supported the concept that a performing carrier (which is not also a contracting carrier) should not be bound by special terms agreed in the contract of carriage – such as declared values, or specific times of delivery – unless the performing carrier had itself accepted the additional liability.

Conference was asked whether conduct on the part of a servant or agent, including a performing carrier, of the contracting carrier which caused that person to lose its rights to limit its liability, should cause the contracting carrier also to lose its rights to limit liability.

The overwhelming answer was ‘no’.

4 Liability for Delay

Conference was asked to consider whether there should be special provisions imposing liability for pure economic loss arising from delay. Conference was generally in favour of imposing some liability for delay, but only in those cases where a specific time limit had been agreed in the contract of carriage. Where no specific period was agreed, Conference was divided on whether any liability for delay should be imposed. Those against the proposition argued that, given the unavoidable factors, such as extreme weather, likely to be met on the sea voyage, it was unwise - on grounds of safety - to impose any liability for delay. Similar factors made it unrealistic to impose a test of reasonableness; it would give rise to too many arguments, most of them hypothetical.

Conference recognised that the issue of liability for delay was closely linked to the question whether the defence of error in navigation should be retained.

Where liability for delay was imposed, Conference wished to see some limit placed on the amount that the carrier would have to pay. Although precedents existed for basing this on multiples of the freight, Conference preferred to leave this question open for the time being.

There was no support for the Hamburg Rules proposition that, if the goods were not delivered within some pre-determined timescale, cargo interests could claim a constructive total loss.

The issues addressed under this heading were fourfold:

Should the shipper’s liability for loss or damage arising from the cargo be based on fault or on some stricter basis?

Should a distinction continue to be drawn between inherently dangerous goods and other types of cargo?

Should the shipper be entitled to limit its liability?

Should there be a time bar for claims against shippers?

There was considerable support at the Conference for the shipper’s liability to be based on fault and for there being no distinction drawn between inherently dangerous and other cargo. In this respect Conference accepted the reasoning of the International Sub-Committee, to the effect that the ‘distinction between ordinary goods and dangerous or polluting goods is out of date. Whether goods are dangerous depends on the circumstances. Harmless goods may become dangerous under certain circumstances and dangerous goods (in the sense of poisonous or explosive) may be harmless when they are properly packed, handled and carried appropriately’. Some delegates thought however, that the shipper’s failure to comply with special regulations regarding dangerous goods should attract a more stringent liability. Finally, a distinction was made between liability for failure to provide accurate information and liability for damage caused by the goods. Conference tended to favour more stringent liability for the former than the latter.

As to the remaining questions, Conference agreed that the liability of the Shipper should not be limited but that claims against shippers should be subject to a time bar.

In advance of the Conference, the E-Commerce Working Group had produced a report on the implications for electronic commerce of the draft text produced by the International Sub-Committee.

Debate at the Conference confirmed the paramount importance that any new convention ‘facilitate and be compatible with electronic commerce’. Its provisions covering these aspects ‘must be simple and technology-neutral’.

Conference also identified some substantive issues that the new convention should address, such as provisions relating to the right of control of the cargo whilst in transit. Conference favoured the approach to control set out in Section 6 of the CMI Uniform Rules on Sea Waybills of 1990, under which the right of control was vested in the shipper.

Conference charged the International Sub-Committee to continue its work, taking note of the views expressed at the Conference and in particular to complete its drafting work by including ‘provisions able to facilitate the needs of electronic commerce and to cover the possibility that it should apply also to other forms of carriage associated with carriage by sea (‘door to door transport’)’.

Following the re-draft, there is to be a further round of consultation with member maritime law associations and other interested industry bodies, in the light of which the draft text will again be revised.

The overall object is to present the final text to UNICTRAL at some time probably within 2002.

So, no one should hold his breath, but this space will be worth watching!

^{1 This is a reference to the 1955 English case of Adler v. Dickson, in which a passenger on board the ship ‘Himalaya’ successfully sued the Master of the ship, Captain Dickson, in tort, in order to circumvent the restrictive conditions set out in her passenger ticket.}

David Martin-Clark, 19 February 2001