COMPARISONS BETWEEN HAGUE/ HAGUE-VISBY AND HAMBURG RULES ‘When the Rules apply Contracts covered Geographical scope Definition of carrier Duty of care Burden of proof Live animals Hague and Hague-Visby Hague is silent although the national law of contracting States (such as UK’s COGSA) will stipulate. Hague-Visby applies to a B/L issued in a contracting State or carriage from a contracting State or, naturally, if the contract stipulates Hague or Hague-Visby Glague-Visby Article X). Bills of lading or other similar ‘documents of title’ — which excludes charterparties and gives rise to the requirement for Incorporation Clauses (Article 1). Basically whilst the goods are aboard —tackle to tackle CArticle D) Can be owner or charterer depending upon ‘who enters into the contract of carriage’ but, especially if the master has signed the B/L, the shipper will probably pursue the owner for a remedy (Article D. The carrier must exercise due diligence before and at the beginning of a voyage to make the vessel seaworthy, properly to man, equip and supply the vessel, to make the holds fit and safe for'the presoribed cargo, which has to be properly and carefully loaded, handled, stowed, carried, kept, cared for and discharged (articié i It io critically important that the carrier can show that he exercised ‘due diligence’ to make the vessel seaworthy before and at the beginning of a voyage. With regard to the carriage of the cargo, the carrier has the range of exceptions (@) to (0) appearing in Article IV. Not specified but generally the shipper will infer unseaworthiness or a failure to ‘properly carry’ and the carrier will then have to prove that one of the defences in Article IV applies. ‘These are excluded from the Rules (Article 1) but reintroduced in the UK by the COGSA 1971 Hamburg Hamburg’s application is wider than Hague-Visby by including carriage to a contracting State (Article 2). Although charterparties are excluded, the definition is wider and not restricted to ‘documents of title’ (Article 1). Much wider to cover the time the carrier Is ‘in charge’ of the goods in the port of loading or discharge (Article 3), Includes the concept of both an ‘actual’ carrier anda ‘contractual’ carrier, the latter being any person ‘by whom or in whose name a contract of carriage has been concluded . . .’ (Article 1). Under Hamburg, the carrier (and his servants and agents) must take all measures that could reasonably be required and he must be able to prove this (Article 5). ‘The carrier must prove that reasonable steps were taken to avoid loss. In the case of fire, the shipper must prove that fire arose from fault or neglect on the part of the carrier, his servants or agents Article 5) The Rules apply but do not make the carrier liable for any additional special risk.Deck cargo Limits of liability Excluded if stated on B/L to be carried on deck, but national interpretation may, in certain cases, bring deck cargo within the stope of the Rules—in any case, the master should afford deck cargo the same duty of care which he should give to all cargo (Article D. For goods lost or damaged, 2 SDRs per kg or 666.67 SDRs per package under the Hague-Visby SDR Protocol of 1979 (Article 1). Loss or right to limit liability Under Hague-Visby, intent or recklessness on behalf of the owner, or due to unjustified deviation (Article IV), The master must comply carefully with any special instructions and should request them if they are not provided, Surprisingly, the Hamburg Rules did not take the opportunity to differentiate between containers carried on deck of a purpose. built container vessel and the carriage of cargo on the deck of a general cargo vessel Cunless it was considered to be covered by the rather dangerous wording ‘usage of the particular trade"). A very clear agreement that the cargo can be carried on deck must be made between shipper and carrier and inserted on the B/L. If this latter requirement is not met, the agreoment does not carry over to a consignee (Article 9 2.5 SDRs per kg or 835 SDRs per package (Article 6). Goods are considered lost if not delivered within 60 consecu- tive days of the agreed (or reasonable) time of delivery, Shippers/consignees may also be compensated for delays in delivery of up to 2.5 x freight. Here again, intent or reckless. ness is the measure but the carrier's servants and agents are included (Article 8), A non-exclusive summary of the main differences between Hague/Hague-Visby and Hamburg