internatinal trade law

1. Legal Frameworks in Regulating
the Transportation of Exports by
SEA
Nor Emylia binti Atan
241005
Ng Yan Ni
240153
Nor Zuhairah binti Zainal
237894
Lee Yee Liang

2. *
*Goods which are deal with the subject
matter of an export transaction, either in a
contract of sale or of construction, have to
be moved to the destination from the place
of dispatch.
*The most common unimodal form of freight
transportation that will apply by the
company.
Hague-Visby Rules Hamburg Rules

3. Hague-Visby Rules
• Official title
- ‘‘International Convention for the Unification of
Certain Rules of Law relating to Bills of Lading’’
• A set of international rules for the international
carriage of goods by sea
• The updated version of the original hague rules by
the brussels amendments
• Come into force 23 june 1977
• To counter some of the problems of the hague
rules legislation
• 10 Articles

4. Hamburg Rules
• A set of rules governing the international shipment
of goods
• Drafted due to the concerns of developing nations
that the Hague Rules were unfair in some respects
• Adopted in 31 march 1978 , came into force in 1
November 1992
• United Nation on the Carriage of Goods by Sea
• 34 Articles
• The carrier is responsible for the loss and damage
of all goods unless they can prove that they have
taken all reasonable steps to avoid the loss.

5. 2.0 DEFINITION
The Hague-Visby Rules
Hamburg Rules

6. THE HAGUE-VISBY RULES
Definition:
Art 1 - it covers the period from the time when the goods are loaded on to
the time they are discharged from the ship.
Carrier: the owner or the charterer who enters into a contract of carriage
with a shipper.
Goods: includes goods, wares, merchandise, and articles of every kind
whatsoever except live animals and cargo which by the contract of
carriage is stated as being carried on deck and is so carried.
What is “contract of carriage”?
 applies only to contracts of carriage covered by a bill of lading or any
similar document of title, in so far as such document relates to the
carriage of goods by sea, including any bill of lading or any similar
document as foresaid issued under or pursuant to a charter party from
the moment at which such bill of lading or similar document of title
regulates the relations between a carrier and a holder of the same

7. HAMBURG RULES
What is “contract of carriage of seas”?
Art 1: any contract whereby the carrier undertakes against
payment of freight to carry goods by sea from one port to another;
however, a contract which involves carriage by sea and also
carriage by some other means is deemed to be a contract of
carriage by sea for the purposes of this Convention only in so far
as it relates to the carriage by sea.
Carriers:
any person by whom or in whose name a contract of carriage of
goods by sea has been concluded with a shipper.
Goods:
 includes live animals; where the goods are consolidated in a
container, pallet or similar article of transport or where they
packed, “goods” includes such article of transport or packaging if
supplied by the shipper

8. The Hague-Visby
Rules
-----------------------------------
---
solely connects the
contract of carriage to
the document issued
thereunder, the bill of
lading
Hamburg Rules
-----------------------------------
---
the definition of
“contract of carriage”
has been described
with the obligation of
the carrier and
expressly excludes their
application to the
carriage by modes
other than sea in case
the contract involves
the carriage by other
modes.
DISTINCTION BETWEEN
TWO RULES

9. 3.0 EXCLUSIONS
The Hague-Visby Rules
 The definition of “contract of carriage” in Art 1 shows they
have impliedly excluded charter parties in the line “apply
only to contracts of carriage covered by a bill of lading or
similar document of title”
By referring to Article 3(3) and Article 6 of the Hague-Visby
Rules, the rules will be applied also even before a bill of
lading is issued.
Article of 3(3):
the carrier must issue a bill of lading on demand of the
shipper.
Article 6 :
when bill of lading is being issued, the carrier is granted with
freedom of contract.

10. 3.0 EXCLUSIONS
Hamburg Rules
 Art 2(3) provides that this Convention is not applicable to
charter-parties.
However, where a bill of lading is issued pursuant to a
charter-party, the provisions of the Convention apply to such
a bill of lading if it governs the relation between the carrier
and the holder of the bill of lading, not being charterer.
This means that the charter-party who is also the third party
is not applicable for the protection under this rules unless
there is documentary approach, which bill of lading is
issued, then the charterer can be excluded from their scope
of application of the Rules.

11. 4.0 PERIOD OF
APPLICATION AND
PERIOD OF
RESPONSIBILITY OF
THE CARRIER

12. Article 1 of the United Nations
Convention on the Carriage of Goods
by Sea.
“carrier”
any person by whom or in whose name a contract of carriage
of goods by sea has been concluded with a shipper.
“actual carrier”
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.

13. HAGUE-VISBY RULES
Article 1(e) of the rules
period of their application is for the transportation of dry
cargo is started as earlier as from the beginning of
loading of the goods on the ship to the completion of
their discharge at the buyer port.
the carrier takes the goods in charge before their loading
on board and delivers them to the consignee in a
warehouse of the port of discharge.
 application of fully custody (beyond ship's tackle )

14. Uncle Ben’s Int’l Div. Of Uncle Ben’s, Inc. v.
Hapag-Lloyd Aktiengesellschaft 855 F.2d 215.
(1988)
the contractual extension of COGSA beyond tackle made the
one-year COGSA time-bar applicable to the claim for pre-
loading damage to the cargo.
Falconbridge Nickel Mines Ltd. v. Chimo
Shipping Ltd (1996)
the bill of lading stated that the ship's liability ended with its
discharge from the ship's gear, but this was held to be subject
to the understanding that the cargo was to be lightered ashore
by the ship's barge.

15. HAMBURG RULES 1978
Period of application (as well as the period of responsibility of
the carrier under the convention) is that during which the
carrier is in charge of the goods at the port of loading and also
include during the carriage and at the port of discharge.
In a port-to-port contract the rules normally apply to the whole
period during which the carrier is in charge of the goods.
In a door-to-door contract or when the terminals of the carrier
are outside the port area, because the rules applicable would be
different, nor are there in the hamburg rules provisions on the
allocation of the burden of proof as to the conditions of the
goods when they arrive to the port of loading and when they
leave the port of discharge.

16.  Malaysia adopted The Hague-Visby Rules .
 Article 1 of The Rules
 `Carrier' includes the owner or the charterer who
enters into a contract of carriage with a shipper,
 `Contract of carriage' applies only to contracts of
carriage covered by a bill of lading or any similar
document of title that regulates the relations
between a carrier and a holder of the same while
 `Carriage of goods' covers the period from the time
when the goods are loaded on 8 to the time they are
discharged from the ship.
5.0 Obligation of Carrier

17.  Article II states that subject to the provisions of Article VI,
under every contract of carriage of goods by sea the carrier,
in relation to the loading, handling, stowage, carriage,
custody, care and discharge of such goods, shall be subject to
the responsibilities and liabilities and entitled to the rights
and immunities hereinafter set forth.
 obligation of carrier does not only limit to the process of
carriage only. In fact, the responsibilities of carrier arise from
the time the goods being loaded until the goods being
discharged and it is subjected to the terms and conditions
stated in the contract between the carrier and the shipper.
The Obligations Stated in
Article 2 of The Rules

18.  Before the carriage
 Ensure physical seaworthiness of the ship itself which is the physical
shape of the ship which should be fit in all aspects to carry the
intended voyage, the manning of the ship and this implies a competent
crew, the adequacy of the equipment and the ships supply.
 Ensure cargo seaworthiness regarding to, make the holds, refrigeration
and cool chambers, and all other parts of the ship in which goods are
carried, fit and safe for their reception, carriage and preservation.
 In Dixon v. Sadler case , seaworthiness was defined as: “she (the
vessel) shall be in a fit state as to repairs, equipment, and crew and in
all other respects to encounter the ordinary perils of the voyage”.
 Properly man, equip and supply the ship. Because the ship to use for
carriage purpose is going to voyage not for a short period of time.
 Obligation to make the holds, refrigerating and cool chambers, and all
other parts of the ship in which goods are carried, fit and safe for their
reception, carriage and preservation.
The Obligation Stated in
Article 3 of The Rules

19.  During the carriage
 The carrier shall properly and carefully load, handle, stow, carry, keep, care
for, and discharge the goods carried.
 The carrier shall, after receiving the goods into his charge, based on demand
of the shipper, issue to the shipper a bill of lading which include the leading
marks which are crucial to identify the goods as the same are furnished in
writing by the shipper before the loading of such goods starts.
 **make sure that the marks are stamped or otherwise shown clearly upon the
goods to show that if the goods are uncovered, or ordinarily remain legible
until the end of the voyage.
 The carrier shall also include the Bill of Lading that includes either the
number of packages or pieces, or the quantity, or weight, depends on a case
by case basis as furnished in writing by the shipper. (if and only if he has
reasonable ground believe so)
 The carrier also needs to provide the apparent order and condition of the
goods in the Bill of Lading for the shipper.
The Obligation Stated in
Article 3 of The Rules

20.  After the carriage
 the carrier and the receiver to give all reasonable facilities to each other
for inspecting and tallying the goods.
 issue the bill of lading to the shipper under the demand of shipper
after the goods are loaded.
 shipper shall have previously taken up any document of title to such
goods and surrender the same as against the issue of the `shipped' bill
of lading.
 document of title may be noted at the port of shipment with the name
or names of the ship or ships upon which the goods have been shipped
and the date or dates of shipment, and when so noted.
 Carrier can constitute a ‘shipped’ bill of lading if the bill shows all the
particulars mentioned.
The Obligation Stated in
Article 3 of The Rules

21. The carrier’s liability regime directly regulates
the allocation of risks between the carrier and
cargo interests
Most cases involve disputes concerning whether
the carrier shall be liable for the loss of or
damage to the goods and the scope of carrier’s
liability.

22. • Art 3(1)(a): The carrier shall be bound before
and at the beginning of the voyage to
exercise due diligence to make the ship
seaworthy
• Art 4(1): the carrier shall not be liable for
loss or damage arising or resulting from
unseaworthiness unless caused by want of
due diligence on the part of the carrier to
make the ship seaworthy
• The carrier is presumed at fault if any
damage or loss arising while the cargo is
under the possession of the carrier resulting
from any unseaworthiness due to lack of due
diligence.

23. • Art 4(2) Neither the carrier nor the ship shall be
responsible for loss or damage arising or resulting from:
• (a) Act, neglect, or default of the master, mariner, pilot, or
the servants of the carrier in the navigation or in the
management of the ship.
• (b) Fire, unless caused by the actual fault or privity of the
carrier.
• Art 4(2)(a)-(q)

24. • Art 4(2)(q) Any other cause arising without
the actual fault or privity of the carrier, or
without the actual fault or neglect of the
agents or servants of the carrier, but the
burden of proof shall be on the person
claiming the benefit of this exception to
show that neither the actual fault or privity
of the carrier nor the fault or neglect of the
agents or servants of the carrier
contributed to the loss or damage.
• The carrier is not liable when there is an
error in the navigation and management of
the ship or fire, unless if the faults are
made by his servants or agents as stated in
article 4(2)(q)

25. • Facts: Supper pipes of a ship belonged to the
defendant company which was loading in Halifax
harbour were frozen. A contractor was engaged to
thaw them. The contractor's employees used an
acetylene torch, which set fire to cork insulation that
the contractor had not been informed to the
existence of it. Part of the cargo belonged to the
plaintiffs was destroyed by the fire and subsequently,
the plaintiffs claimed its value.
• It was found as a fact that the cargo was stowed after
the fire broke out but before it was discovered. It was
held that the loss of the appellant's goods was the
action of the carrier's employees in bringing the
cargo to, and loading them on, a burning and
unseaworthy ship by which the ship was not fit and
safe for their reception and carriage, thus, the carrier
lose his right to the defence of Article 4(2)(b) because
the fire was caused by the lack of carrier’s due
diligence to provide a seaworthy vessel.

26. • The category of the agents appears to be
rather limited, because article 4bis(2)
provides that they do not include
independent contractors and because the
scope of application of the Hague-Visby
Rules is limited to the period between
commencement of loading on and
completion of discharge from the ship;
therefore, actions performed ashore in the
ports of loading and discharge are not
subject to the Hague-Visby Rules.
• But agents probably include the master
and crew of the ship if they are not under
the employment of the carrier, as is the
case where the carrier is the time charterer
of the ship.

27. • The liability of the carrier regarding to the
loss or damage of the goods is limited
• Financial limit of the carrier: the limits of
the liability of the carrier for the loss of or
damage to the goods reach an amount
equivalent to 666.67 SDR per package or
other shipping unit, or 2 units of account
per kilogram of the gross weight of the
goods lost or damaged, whichever is
higher, unless the nature and value of the
goods have been declared by the shipper
• Time limit: one year

28. • Art 5(1): the carrier is liable for loss resulting from
the loss of or damage to the goods as well as for
delay in delivery if occurrence that causes the loss,
damage or delay took place while the goods were
in his charge as defined in Article 4, unless the
carrier proved that he, his servants or agents had
taken all reasonable measures required to avoid
the occurrence and its consequences
• Article 4(1) : Period of responsibility : during which
the carrier is in charge of the goods at the port of
loading, during the carriage and at the port of
discharge.
• Art 10(1): the carrier is responsible for loss, damage
or delay for which a sub-carrier is liable

29. • Basis of carrier’s liability under Hamburg
Rules is based on presumed fault as
stated in article 5(1) and always liable for
loss, damage or delay caused by fault of
the carrier, his servants or agents.
• No exclusion in the case where the loss or
damage is done by the servants or agents
even in the course of navigating or
managing the ship
• Carrier is liable as long as the goods are in
his custody or possession

30. • Art 5 of the Hamburg Rules provides
exceptions to the liability of the carrier in
specific instances
• Art 5(5): in respect of carrying living animals,
carrier will not liable for loss, damage or
delay in specific circumstances resulting from
any special risks inherent in their carriage
• Art 5(4): fire unless the claimant can prove
that the fire is either caused by the
negligence on the part of the carrier or guilty
of fault to take any reasonable measures to
put out the fire
• Art 5(6): deviation to save a life or property
at the sea

31. • The liability of the carrier regarding to the loss
or damage of the goods is limited
• Financial limit: limited to an amount equal to
835 SDR per package or other shipping unit or
2.5 SDR per kg or gross weight, which-ever is
higher
• Time limit: 2 years

32. *
*International Maritime Organization (IMO), sea
transport has become an economical way to trade
between countries over water
*90% of the world’s trade is carried by the sea
*The most ‘inexpensiveness’ cost of shipping.

33. *In 1924, the Hague rules had come into existence
under the International Convention for the
Unification of Certain Rules of law relating to
Bills of Lading.
*However, it was then amended and become
Hague-Visby Rules in 1968.
*Due to the variety and large coverage of the
rules, the Hague-Visby Rules have come under
scrutiny by some groups. These situations have
caused much criticism, and so because of this
scrutiny a new set of laws called the Hamburg
rules were created and came into effective date
on 1 November 1992.

34. *However, the Hamburg Rules have an advantage of
being able to re-construct some of the Hague-Visby
Rules that are thought to be unfair, unclear or likely
to cause misinterpretation.
*the Hamburg Rules has been strongly opposed by
ship owning interests as it is feared that they would
tend to increase carrier’s liability. The Hague-Visby
Rules continue to be the governing law of the
carriage of goods by sea. This is because the
Convention still constitutes the rules that govern
the vast majority of contracts globally.