Uniformity of the law of the carriage by The Hamburg Rules ... · Uniform carriage of goods law 11....

Uniformity of the law of the carriage of goods by sea in the 1990s:

The Hamburg Rules - a casualty Brian Makins*

Sometimes a little more realism and a little less idealism, a few more feet on the ground and a few less heads in the clouds, is no bad thing.

Lord Justice Roskill

I. INTRODUCTION

On 31 March 1978, as the result of a desperate eleventh-hour compromise, the United Nations Convention on the Carriage of Goods by Sea was signed a t Hamburg. In the compromise package the nautical fault defence was bargained away, primarily for political reasons.

From the outset, the question was asked: "The Hamburg Rules - Failure or Success?" Twelve years later the answer is clear. The Hamburg Rules have not been accepted by the international community.

This paper argues that, in the interests of the international community and on considerations of uniformity of application and economic efficiency in the allocation of risk in the international carriage of goods by sea, the Hamburg Rules should now be abandoned.

The paper is presented in two sections. The first discusses the quest for uniformity as an imperative in international trade and maritime commerce. It considers a major impediment to uniformity from the standpoint of the work of Professor Michael F Sturley and identifies some solutions. The cost to the international community of lack of uniformity is explained and the spectre of the "worst case" situation is raised. The second section explains why the Hamburg Rules are a casualty, and calls for their abandonment. The paper concludes with a discussion of the challenge facing the international community in the 1990s.

* Corporate Lawyer and Secretary, ACTA Shipping, Sydney.

Uniform carriage of goods law

11. THE QUEST FOR UNIFORMITY

A. Uniformity - an International Imperative From ancient times, men and women engaged in trade and com-

merce among nation states have recognised the value, in terms of economic efficiency, of having a uniform legal frame of reference' to allocate responsibility and risk in their contractual dealings and thus promote the predictability, certainty and stability which are the foundations of international trade and maritime cornmer~e.~

The imperative for this uniformity in the international carriage of goods by sea is recognised by both Civil and Common lawyers. Plinio Manca asserts that "uniformity belongs to the very essence of maritime law". He articulates the rationale for this assertion concisely and with the elegant simplicity characteristic of the Civil lawyer3

Maritime trade having an international character, the logical corollary flowing from this truth is that the ideal legal system to govern it be a uniform one, that is identical in every State. . . . Lord Diplock, in his celebrated Summation delivered a t the conclu-

sion of the Colloquium on the Hamburg Rules held by the ~ o m i t k Maritime International (CMI) in Vienna in 1979, referred to the

I In the carriage of goods by sea in international trade, the customs of merchants and mariners alike have found codification or other attempts a t uniform expression down through the ages: in classical times, in the Rhodian Law and the Roman Law; in the Middle Ages, in the Rolls of Oleron, the Sea Laws of Visby, and the Law Merchant; and in modern times, in the Hague Rules and the Visby Amendments. See G Gilmore and C L Black The Law of Admiralty (2 ed, Foundation Press, New York, 1975) 3. Cleirac, a member of the Bordeaux government, in his work, Les Us et Coustumes de la Mer (1647) states that Eleanor of Aquitaine, wife of King Henry I1 (Plantagenet), ordered the judgments of the Maritime Court of the Island of Oleron, off Rochelle, to be collected and arranged after her journey to the Holy Land. When she had accompanied her husband there on the Second Crusade, she had seen how much venerated was the Book of the Consulate of the Sea, then in use in the Levantine Ports. (See G Nash The Hansa: Its Romance and History, 1929). Carver notes that, in the course of its "unique" development, the English Common Law warded off a number of rival jurisdictions in mercantile law, including the Admiralty Court, in matters of carriage by sea; that the Common Law "never" borrowed or accepted foreign systems of law; and that it turned its face on the Rolls of Oleron a t the earliest possible moment - in Gregory's Case (Coram Rege Roll, no 93 (Trinity 1285), ml), where the Rolls were pleaded, but went unnoticed by the court. (See R P Colinvaux (ed) Carver's Carriage by Sea (13 ed, Stevens, London, 1982, paras 18, 53, also 138, 208). However, Queen Eleanor's initiative (if such it be) was not in vain. Windeyer records that, in England in the Middle Ages, maritime commerce was regulated in the Borough Courts of the ports and seaboard towns, "which administered maritime law, based on the laws of Oleron and other codes which had their origin in the ancient Rhodian sea laws". He adds that although Coke "determined champion of the Common Law" claimed that "the law merchant is part of the law of this realm" (CO Litt 182), it was by the eighteenth century work of Lord Mansfield "the founder of the commercial law of England" that the law merchant was made a part of the ordinary law of England. See W J V Windeyer Lectures on Legal History (2 ed, Law Book CO, Sydney, 1957) 178- 180 and 236-237. P Manca International Maritime Law (v01 1, 1970) 10.

36 (1991) 8 MLAANZ Journal - Part 1

initiatives undertaken by the CM1 since its foundation almost 100 years ago to promote uniformity in maritime law. With the precision of the Common lawyer, he said:'

Not uniformity for its own sake, but uniformity which will facilitate international trade, reduce the costs of sea transport and what is equally important if trade is to be carried on successfully, will bring as much certainty into it as possible so that those taking part in it know where they stand, what obligations they have to fulfil and what risks they run. We are concerned with uniformity of application a s far as possible throughout the trading world and that means that the same facts ought to give rise to the same consequences in all the different jurisdictions in which the matter may fall to be decided by the courts.'

Lord Diplock added that, while uniformity of substantive law helps enormously, it does not necessarily ensure uniformity of application in all jurisdictions, as the national approach of the judiciary varies from country to country and the judicial approach varies from judge to judge. Although acknowledging that "complete uniformity of application is an ideal which can never be achieved", Lord Diplock said that the objective should be to reduce the scope of variations in substantive law to the minimum."

B. The "National Mind-Set" - a Major Impediment to Uniformity of Application

The fact that uniformity of substantive law does not necessarily ensure uniformity of application in all jurisdictions has recently been the subject of investigation by several learned American commenta-

' CM1 Report Colloquium on the Hamburg Rules, (Vienna, 1979) 56. The importance of preserving international uniformity of interpretation under the Hague Rules has been the subject of judicial dicta in a number of cases, including: Stag Line Ltd v Foscolo Mango & CO Ltd [1932] AC 328 (HL), per Lord Atkin a t 342-343; per Lord Macmillan a t 350; Riverstone Meat CO Pty Ltd v Lancashire Shipping CO Ltd [l9611 AC 807 (HL), per Viscount Simonds a t 842, per Lord Merriman a t 855, per Lord Radcliffe a t 869, per Lord Keith a t 869, per Lord Hodson a t 874; Midland Silicones Ltd v Scruttons Ltd [l9621 AC 446 (HL), per Viscount Simonds a t 471; The Hollandia [l9821 QB 872 (CA) a t 884 where Lord Denning opined that freedom of contract must yield to the "higher public policy. . . which demands that, in international trade, all goods carried by sea should be subject to uniform rules." Lord Diplock's statement, "Not uniformity for its own sake . . ." is a reference to the argument advanced by some proponents of the Hamburg Rules that those Rules are to be preferred because they assimilate the rules of carriaee of eoods bv sea to the rules of international conventions relating to carriage by 0th; moies of transport. The Colloquium concluded that the Hamburg Rules were not likely in the long run to lead to real uniformity of application in the various jurisdictions. (See CM1 Report, above n4, 59-60).

Uniform carriage of goods law 37

tors. The work in this field of Michael F Sturley,' Professor of Law at the University of Texas Law School, merits special mention.

Sturley observes that uniformity of interpretation has not always followed uniformity of enactment, that different courts have construed identical provisions in different ways, and that these conflicting interpretations have undermined the uniformity of the uniform laws. He notes that the advantages of uniformity require more than a uniform text: the various courts that apply the text must do so uniformly before all of the promised benefits can be fully real i~ed.~ Sturley sets up the hypothesis that:g

legal conflicts are not simply random occurrences. On the contrary, independent domestic legal concerns push national courts into differing interpretations of supposedly uniform laws. Each court considers itself bound to interpret and apply international uniform law in a manner that will avoid inconsistency or tension with its own domestic law. Constrained by substantively different domestic laws, national courts allow their desires to minimize the disruptive effects of international law to overwhelm their mandate to maintain uniformity. Diverging interpretations of the international law a re the result.

He then proceeds to test and prove his hypothesis in convincing fashion by a rigorous comparative analysis of Hague Rules decisions of various national courts in relation to first, the validity of Himalaya clauses and second, the validity of choice of forum clauses. He concludes, as a result of this analysis, that domestic law constraints play a central role in the interpretation of international uniform laws; that national courts resolving ambiguous provisions have invariably attempted to reconcile the uniform law with their own domestic legal doctrines; that, in the process, they have interpreted the uniform law to make it consistent with independent domestic law; and that because domestic law varies from country to country, conflicts in interpretation have arisen.1°

' See M F Sturley "International Uniform Laws in National Courts: The Influence of Domestic Law in Conflicts of Interpretation" (1987) 27 Virginia Journal of Inter- national Law 729; M F Sturley "The Fair Opportunity Requirement Under COGSA Section 4(5): A Case Study in the Misinterpretation of the Carriage of Goods by Sea Act" (1988) 19 Journal of Maritime Law and Commerce 1. See also by other commentators, D M Collins, "Admiralty - International Uniformity and the Carriage of Goods by Sea" (1985) 60 Tulane LR 165; F L Wiswall, "Uniformity in Maritime Law: The Domestic Impact of International Maritime Regulation" (1983) 57 Tulane LR 1208. As Viscount Simonds said in Midland Silicones Ltd v Scruttons Ltd (above n4, 471): "It would be deplorable if the nations should, after protracted negotiations, reach agreement. . . and that their several courts should then disagree as to the meaning of what they appeared to agree upon . . ." Sturley (1987), above n7, 729, 733.

'" Sturley (1987), above n7, 797.


C. Some Solutions Sturley then goes on to consider measures that might be taken to

reduce the divisive influence of domestic law in the interpretation of international uniform laws. He proposes two steps that might be taken towards correcting the problem. The first is for national courts to become aware of the dangers of interpreting international uniform law according to domestic doctrine and for courts to make the "extra effort" required to discover the international meaning of a convention (being actively assisted as necessary in this task by counsel arguing the case)." However, Sturley then anticipates - reluctantly, but perhaps realistically - that "the world's judges will continue to allow domestic legal doctrine to shape their interpretations of international uniform laws" and that, "even when judges are sensitive to the problem, the difficulty of deciding cases without being unduly influenced by well- developed professional assumptions is probably too great to over- come". This leads him to his next step.

The second step advocated by Sturley towards a solution is the consideration of institutional measures to avoid conflicts in the interpretation of international uniform law. He touches briefly on such measures as better developed choice of law rules and increasing the availability of international materials in the area of international uniform laws and he then sweeps "directly to the heart" of a tentative solution - Professor Black's proposal to create an "international court of appeals" with discretionary jurisdiction over national court decisions construing the Hague Rules. Sturley indicates that he favours the concept of an international court but suggests that it should have jurisdiction on a "certified questions" basis rather than on an appellate basis.I2 Whilst Black's somewhat radical proposal for an international

Sturley (1987), above n7, 801. In an article published some two years previously, Collins (above n7, 203-204) stressed the importance of uniformity in the interpretation of the Hague Rules and proposed a not dissimilar solution:

Every attempt, therefore, should be made to increase the awareness of decision-makers of the international tenor of existing and proposed laws in this area and of their concomitant duty to interpret and implement them as such.

I Z Sturley (1987) above n7, 801 and see 738, note 46. Professor Black (of Gilmore and Black, above nl) argues that the techniques for producing uniformity in the world's bill of lading law - the technique of procuring agreement on a text - is fatally defective; a text must be interpreted, and interpretations will surely diverge. Black then rejects the argument that such conflicts could be minimised by sufficiently impressing on judges their obligation to the international community and widely distributing translated texts of foreign decisions interpreting the Convention. Thus, Black's solution is an international court of appeals, to which judgments interpreting COGSA, rendered in the national courts of last resort, could be brought by the non- prevailing party. The court would determine in its own discretion which cases posed serious enough threats to uniformity to be considered. However, Black readily admits that the concept of such an international court is probably not practically attainable in the near future. (See Collins, above n7, 202).


court of appeals is unlikely to win support from national judiciaries in the near future (if at all), Sturley's suggestion of an international court having jurisdiction on a certified questions basis would seem less offensive to jealous judicial sensibilities and may be capable of more ready implementation. It certainly merits further investigation.

D. The International Reporter

Another initiative to which consideration might be given in the quest for uniformity in the interpretation of international uniform laws in carriage of goods by sea, is the establishment of an International Reporter on Hague and Hague-Visby Rules decisions, similar in format to the loose-leaf reporter services offered by CCH and other legal publishers. The Reporter could be operated from one of the world's maritime law institutes. It would report and, where appropriate, comment on case law decisions from the major jurisdictions and would give special mention (and appropriate admonition) to those decisions which posed threats to uniformity. The Reporter would be supported by a computerised data base covering case law and journal articles from the major jurisdictions, which could be accessed for a fee by practitioners and judges in all jurisdictions.

Such a system would have two advantages for the cause of uniformity. First, it would tend to deter those judges who in the interpretation and application of the provisions of the Convention (or of enacting legislation) failed to have regard to its international character and to the need to promote uniformity.13 Second, the system would offer to practitioners and judges in all jurisdictions an expertly maintained, international data base from which to prepare their cases and submis- sions, to frame their overtures for settlement, or to elevate their judgments.

The major impediment to the introduction of such an entrepreneur- ial system has hitherto been the concern that, if and when the Hamburg Rules come into force internationally, much of the Hague Rules case law built up over the last six decades will be swept away.

E. The Cost of Non-Uniformity

Sturley points out that lack of uniformity imposes real cost ineffi- ciencies on the commercial system governed by the Hague and Hague- Visby Rules. He notes that, in every transaction covered by the Rules, there are at least two countries: those of the shipper and the consignee.

'I See Hamburg Rules 1978, a r t 3. Similar provisions are now appearing in other international conventions, though the practical value of them has been criticised a s doubtful.

(1991) 8 MLAANZ Journal - Part 1

The carrier may be from a third country.14 The carrier's P & I Club liability insurer, the cargo underwriterlQnd the financing bank may increase the total number of countries involved to six. Sturley adds that each of these parties may participate in a number of related transactions, each involving a different group of countries and that any one of the many transactions could be the subject of litigation in any of the countries involved - or even in an unrelated country where a claimant obtains in rem jurisdiction over the ship. Only a uniform international code can provide the certainty and predictability that all parties require to make rational, commercially and economically efficient decisions."

Sturley goes on to argue that carriers and cargo interests need to know who bears the risk of potential loss, so that they can insure against it. Insurers need the same information to identify and evaluate risk exposures and to calculate their premiums. The Hague and Hague- Visby Rules seek to create a clear and uniform regime for the allocation of risk and responsibility for cargo losses on an international scale. When, as a result of lack of uniformity, risk allocations differ in different countries, each party faces a potential loss according to an unpredictable choice of forum. Each party must insure against that loss and there is the economic inefficiency of overlapping and double insurance expenses. Insurers must consider the possibility that they will be held liable, and charge higher premiums to reflect that risk. Uncertainties in the governing law also produce expensive litigation to reallocate losses after they have occurred and to clarify the allocation of future losses. The result is increased expense to achieve the certainty and predictability that the Hague Rules themselves were designed to accomplish."

F. The "Worst Case" Situation Sturley's analysis proceeds on the assumption that, to begin with,

there is uniformity of enactment. His comments must apply a fortiori where uniformity is lacking in the enactment itself. It is widely acknowledged that, in the context of uniformity of application of the law of the carriage of goods by sea, the worst case situation is one where incompatible marine cargo liability regimes are competing with each other.

l' Over 90 per cent of Australia's international liner cargo shipping task is undertaken by foreign flag vessels. (See Liner Shipping Report, Department of Transport, Canberra, 1986).

'I In carriage of goods by sea, the carrier's liability insurance and the shipper's (or consignee's) marine cargo insurance are underwritten in two separate markets.

l6 Sturley (1988), above n7, 20-21. l' Sturley (1988) above n7, 21 and Sturley (1987) above n7, 6-7.


This situation was in the contemplation of Professor William Tetley QC when, in 1979, he framed the conclusion to his commentary on the Hamburg Rules.I8 Tetley, Professor of Law at McGill University, Montreal, author of Marine Cargo Claims, and widely-respected champion of cargo interests, attended the Diplomatic Conference at Ham- burg in March 1978 as an observer with the Canadian delegation.

In his commentary, he mentions the broad disparity of knowledge and competence existing between the spokespersons of various nations; he says that many of the motions, amendments and speeches were misleading and erroneous; that there was little time during the four week Conference for genuine discussion; that drafting was by committee (the most difficult process of all) done publicly in a large hall, with committees of 10 to 15 delegates; and that at times obscure drafting was intentionally used to promote the settlement of differences. A disenchanted Professor Tetley calls the Hamburg Rules "Poems by Committee" and gives us this gem:19

Just as great poetry has never been written by a committee, so great laws are unlikely to be ever written by a committee, even if the parties have a common purpose.

Tetley encapsulates his disappointment over the "confusing drafting and the obscure changes in law" of the Hamburg Rules in this ~ t a t e m e n t : ~ ~

And that is what I find disappointing in the Hamburg Rules. The Rules a s a new Convention in many cases do not clarify the law a t all, nor do they arrive a t the new social balance expected. Instead they make concessions to shippers and create new law in one direction and concessions to carriers and new law in another, all the while establishing a third international codention which in itself opposes the principle of uniformity in the world of commerce and shipping.

In presenting the conclusion to his commentary and presaging the worst case situation, Tetley prophesie~:~~

Most important of all, if they [the Hamburg Rules] come into force, they will not be universal but will create a third carriage of goods by sea convention existing simultaneously with the Hague Rules and the Hague-Visby Rules on the shipping lanes of the world. The ensuing contradictions and disputes will frustrate carriers and shippers, confound Admiralty lawyers, ensnarl the courts of the world and only please the occasional professor of conflicts of law.

Just 12 years later, Tetley's prophecy is about to be fulfilled. The "occasional professor of conflicts of law" is fairly beaming with pleasurable anticipation.

-

W Tetley "The Hamburg Rules - A Commentary" (1979) LMCLQ 1, 19. l9 W Tetley Marine Cargo Claims, first published in 1966 and now in its third edition

(Editions Y Blais, Montreal, 1988) is affectionately referred to as "The Bible" by cargo lawyers around the world.

Is See Tetley, above n18, 3. l0 Tetley, above n18, 20.

Tetley, above n18, 19.


111. THE CHALLENGE OF THE 1990s

A. The Hamburg Rules - a Casualty Article 30(1) of the Hamburg Rules provides that the Convention

enters into force on the first day of the month following the expiration of one year from the date of deposit of the 20th instrument of ratification, acceptance, approval or accession. The Hamburg Rules, a t 1 September 1990, had 17 of the required 20 i n s t r ~ m e n t s : ~ ~

No. State

Egypt Uganda Tanzania Tunisia Barbados Morocco Romania Chile Lebanon Hungary Senegal Botswana Sierra Leone Nigeria Kenya Burkina Faso Lesotho

Ratification Accession

23 April 6 July

24 July 15 September 2 February

12 June 7 January 9 July 4 April 5 July

17 March 16 February 7 October 7 November

31 July 14 August 26 October

None of these 17 countries is a major maritime or trading state and, taken together, they represent something less than 2 per cent of world total tonnage and about 2 per cent of world total trade. The strategy of the United Nations Commission on International Trade Law (UNCITRAL) seems to be to fill the remaining places as quickly as possible and hope that the "tail" will be able to wag the

However, it is now clear that the Hamburg Rules have not been accepted by the international community as a marine cargo liability regime, worthy of implementation by mandatory international convention, to regulate the carriage of goods by sea in private maritime commerce.

UNCITRAL "Status of Conventions", Document No A/CN 91337, 1 June 1990. UNCITRAL is currently holding discussions with several countries in the hope of filling the remaining places. (S Katz, personal communication, June 1990).


The function of a marine cargo liability regime is to allocate risk between ship and cargo, in a way that is economically efficient and that promotes the predictability, certainty and stability that come from uniformity of application, and thereby protect the integrity of the bill of lading as the instrument of currency in international trade.z'

The elimination of the nautical fault defence is a fatal flaw in the Hamburg Rules. It is now increasingly understood that this defence is a vital part of the mechanism for allocating risk under the Hague and Hague-Visby Rules, that the system of risk allocation under those Rules is economically more efficient than that provided by the Ham- burg Rules, and that the elimination of the nautical fault defence at Hamburg in March 1978 on political considerations and on irrelevant perceptions of "equity" and "fairness" was a mistake.25

The conclusion of the CM1 Colloquium on the other important aspect, uniformity of application, was that there would be considerable uncer- tainty as to the Hamburg Rules' interpretation for an appreciable period after moving to them, and that, in the long run, they were not likely to lead to real uniformity of application in the various jurisdictions. Tetley's concerns about uniformity and the Hamburg Rules have been noted abovenZ6

On the matter of costs, the CM1 Colloquium concluded that the Hamburg Rules will lead to some increase in the costs of sea transport rather than to any diminuti~n.~' Herber, Chairman of the Hamburg Conference in 1978, has confirmed this:28

The expectation of a possible decrease in overall transportation costs for shippers all over the world, however, does not seem to be justified . . . [The Hamburg Rules'] coming into force would certainly not meet expectations as to a decrease ,' in overall costs.

If, in fact, the Hamburg Rules cost shippers more than the Hague- Visby Rules, which then is the more "equitable" regime?

Given the above considerations as to allocation of risk, uniformity of application and costs, it is perhaps not surprising that the Hamburg Rules have found so little support from the major trading and maritime nations. Moreover, when one considers that there are over 100

l' See generally B Makins "Sea Carriage of Goods Liability: Which Route for Australia? The Case for the Hague-Visby Rules and SDR Protocol" Fourteenth International Trade Law Conference Report 93 (Attorney-General's Department, Canberra, 1987).

" See CM1 Report, above n4, 57-58. See also Makins, above n24, 11. Note that the UNCTADIICC Draft Rules for the Multimodal Transport Documents (Document No 321-34/1) propose to retain the nautical fault defence (Rule 5.4). See text a t n18-21 above. See also Makins, above n24, 7-11 and 31-32.

" See CM1 Report, above n4, 59. Herber "United Nations Convention on the Carriage of Goods by Sea (1978) (Hamburg Rules)" Eleventh International Trade Law Seminar Report 125 a t 165, 166 (Attorney- General's Department, Canberra, 1984).


developing countries in the United Nations Group of 77, the support that the Hamburg Rules have received from developing countries - at whose instigation, with some prompting from UNCTAD, they were createdz9 - has been quite limited. It is now generally accepted that the Hamburg Rules will not alleviate the "economic burden" of the developing c o ~ n t r i e s . ~ ~

In his account of the Hamburg Conference, Cleton, who led the Dutch delegation, said?'

For many developing countries, in particular for those which have been former colonial territories, the Hague Rules represent a typical product of a colonial period, when the major colonial powers which were also the countries with important maritime interests were dictating maritime law. During the Confer- ence it was often argued that the new convention should be in line with the new economical order which does away with unfair international trading relations. Therefore the new Convention should be distinctively different from the Hague- Visby Rules and the liability of the carrier for nautical errors was one of the most important marking points in this respect.

Such were the political considerations which shaped the Hamburg Rules. The statement is interesting first, because of the insight it gives into the political motivation of the developing countries in pressing for the elimination of the nautical fault defence, and second, because it suggests that a number of the 17 countries which have now adhered to the Hamburg Rules may have done so, not on any considerations of economic efficiency in the allocation of risk or of uniformity of application, but rather to make a political statement - a statement of independence from the burden of the colonial yoke.

B. A Call for the Abandonment of the Hamburg Rules

In the interests of uniformity, the Hamburg Rules should now be abandoned. >,

They are seen by the international community as an unwarranted intervention in the affairs of private maritime commerce. The over- whelming view of distinguished Common lawyers is that they will not

See S Basnayake "Introduction: Origins of the 1978 Hamburg Rules" (1979) 27 AJCL 353. 354.

'"ee'~akins, above n24, 20-21. " Cleton "The Special Features arising from the Hamburg Diplomatic Conference" The

Hamburg Rules 3, Lloyd's of London Press (Seminar) 1978.


promote uniformity of application." They fail to allocate risk between ship and cargo in an economically efficient manner. They will not achieve UNCTAD1s objective of relieving the economic burden on developing countries and other shipper countries; rather, they will increase that burden and they can be expected to result in a net cost increase for shippers.

IV. CONCLUSION - THE CHALLENGE

A marine cargo liability regime is concerned with the allocation of risk between ship and cargo in the carriage of goods by sea in international trade. The criteria by which it is to be judged are those of uniformity of application and economic efficiency in the allocation of risk.

Uniformity - as Plinio Manca and Lord Diplock saw it and as it has been sought by the international community from ancient times - is an international imperative. The international community pays a heavy price for lack of uniformity and the worst case situation is one where, in the present context, the Hague-Visby and the Hamburg Rules, two incompatible regimes, compete with each other. Expressing his disenchantment with the Hamburg Rules and contemplating this worst case situation, Professor Tetley warned in 1979 that:

The ensuing contradictions and disputes will frustrate carriers and shippers, confound Admiralty lawyers, ensnarl the courts of the world and only please the occasional professor of conflicts of law.

It is now more than 12 years since the Hamburg Conference. Seventeen states have adhered to the Hamburg Rules. None is a major trading or maritime nation. It is clear that the Hamburg Rules have not gained the acceptance of the international community and there is now the call for the abandonment of the-amburg Rules - a call made in the interests of the international community and in the quest for uniformity. It is a call to which informed shippers, who must pay the price for lack of uniformity, should have little difficulty in rallying. The more "equitable" regime is the one that will cost shippers least.

" Carruthers J, Judge in Admiralty in the Supreme Court of New South Wales, said: By reason of their draftsmanship [the Hamburg Rules] raise a multitude of legal problems, including questions which go to the main thrust of the new rules i.e. the division of responsibility between cargo and ship. It will take the courts many years to resolve these problems . . . . The Hamburg Rules create as many problems as they purport to solve.

(See Carruthers, "The UNCITRAL Draft Convention: A Lawyer's View" (1977) MLAANZ Annual Conference Papers). See CM1 Report, above n4, 3, 59; Tetley, above 1118-20.


An efficient marine cargo liability regime is essential if international trade is to be conducted effectively. The international community will not allow an inefficient and unacceptable regime to be foisted on it. It will not be "shoehorned" into the ill-fitting Hamburg Rules. UNCITRAL should now recognise and accept this, for it has responsi- bilities to the wider international community and to the cause of economic efficiency and uniformity in international trade.

The Hamburg Rules have not won international acceptance. There are shortcomings in the Hague-Visby Rules. Solutions must be found.

Already the international community is taking up the challenge. The International Chamber of Commerce (ICC), working with UNCTAD, is currently preparing draft rules for voluntary adoption in multimodal transport documents. The CMI, a t its XXXIVth International Confer- ence held in Paris in June 1990 produced rules (again for voluntary adoption) to accommodate the introduction of Electronic Data Inter- change (EDI) and to facilitate the increased use of sea waybills.

The CM1 Conference also adopted a valuable study, produced under the chairmanship of its distinguished President, Francesco Berlingieri, entitled "Uniformity of the Law of the Carriage of Goods by Sea in the Nineteen Nineties: Problems of the Hague-Visby Rules and Possible solution^".^^ The subjects which are discussed in that study and for which solutions are indicated are: identity of the carrier, contracts and documents, deck cargo, period of application, exemptions from liability, limits of liability, deviation, and damages including damages from delay. It is CMI's intention to build on this study - either towards preparation of an amending Protocol to the Hague Rules or towards formulation of voluntary rules that will meet the perceived shortcomings in the Hague-Visby Rules. At this stage there is little enthusiasm for a "green fields" approach - preparation of a fresh convention - although, with the benefit of the Hamburg Rules experience, the task may be easier than is commonly ~upposed.~'

There was another decision made at the CM1 Conference in Paris which has special significance for Australia. It was decided that the next International Conference of CM1 would be held in Sydney in 1994. This was in response to an invitation extended to CM1 by the Executive of the Maritime Law Association of Australia and New Zealand

See CM1 Document PARIS/UNIF/8 bis (REDRAFT). " The CM1 Committee which prepared the study voted overwhelmingly in favour of

retention of the fault in navigation defence. The support came from Civil lawyers and Common lawyers alike. The strongly prevailing view was that the exemption should be retained because it ensures a more balanced spreading of the risks and because it did not appear that the abolition of the defence would ensure a more significant uniformity (CM1 Document, above 1133, 28).


(MLAANZ), originally during the Presidency of Mr Justice Ken Carruthers, now Judge in Admiralty in the Supreme Court of New South Wales. It is a signal honour for Australia and provides an opportunity for Australia to further enhance its standing in the international community.

Uniformity of the law of the carriage of goods by sea is likely to be included on the agenda for the Syndey Conference and will offer a unique opportunity for maritime lawyers from Australia and New Zealand to work with their international colleagues under the aegis of CM1 in making a further contribution to the resolution of this demand- ing challenge.

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