Apportioning liability in a carriage of goods by sea contract: towards a universal code

Abstract

This paper will give a brief history of the common law that governed the carrier's liability in a carriage of goods by sea contract before the enactment of the 1924 Hague Rules. It will briefly point out the shortcomings of The Hague rules .The paper will demonstrate how these shortcomings led to the adoption of the Hague- Visby Rules that tend to favour the ship owning nations. It will be shown that although the Hague- Visby Rules were enacted to mitigate the weaknesses and shortcomings of The Hague Rules they have miserably failed to achieve their desired objectives. The paper will demonstrate that the Cargo owning nations rightly felt that the Hague- Visby Rules were too harsh to them thus justifying their eagerness to have another code/rules. It will be shown that the Hamburg Code came into being because of the agitation of the cargo owning nations (mostly third world countries).

It will be clearly shown that the Hamburg Code is skewed towards the cargo owning nations and how this reality has made ship owning nations shun it. The paper will also demonstrate how the Hague Rules, Hague- Visby Rules and the Hamburg Code have divided the world in the field of the lucrative and important maritime trade. The paper will put a strong case for the enactment of a compromise code that will ease the stand-off between the ship owning nations and the cargo owning nations. The paper will analyse the UNICTRAL Draft pointing out its strengths and weaknesses; proposals of enacting a compromise code will be made to ensure that there is a balance of interests of both the ship owning nations and the cargo owning nations.