Shipments from Ukrainian ports: do Hague-Visby Rules apply?

28 Фев

Публикация посвящена сравнению положений украинского морского права со стандартами, закрепленными в международных морских конвенциях, в частности, Гаагских правилах и Гаагско-Висбийских правилах. Хотя Украина не является стороной соответствующих конвенций, многие положения этих конвенций аналогичны положениям украинского права, которые регулируют сходные отношения.

Pursuant to Article 10 of the Hague-Visby Rules, the rules apply to all bills of lading relating to the carriage of goods between ports in two different states if:

  • the bill of lading is issued in a contracting state;
  • the carriage is from a port in a contracting state; or
  • the contract contained in or evidenced by the bill of lading provides that the rules or legislation of any state giving effect to them will govern the contract.

Ukraine is not a contracting state to the Brussels Convention 1924 or the Brussels Protocols 1968/1979 amending the convention; therefore, shipments from Ukrainian ports are not subject to Hague-Visby Rules by default. Ukrainian law does not directly envisage the application of the rules, and neither the Hague Rules nor the Hague-Visby Rules are compulsorily applicable to shipments from Ukrainian ports, or where the bill of lading is issued in Ukraine.

Nevertheless, several significant concepts in the Hague-Visby Rules are reflected in the Merchant Shipping Code of Ukraine. There are no direct references to the rules themselves (either the Hague Rules or the Hague-Visby Rules) in the Merchant Shipping Code, but the rules are reflected in the code by way of equivalent or similar legal principles.

For example, like Article 3 of the rules, Clause 143 of the Merchant Shipping Code provides for the carrier’s responsibility to make the ship seaworthy, to man and equip the ship properly and to make the holds and premises of the ship fit and safe for the acceptance, carriage and safekeeping of goods:

«The carrier is obliged with due advance, before the beginning of the voyage, to bring the ship in seaworthy condition: to ensure the technical suitability of the ship to sail, to properly equip her and to provide with all necessary, to man her, and to bring the holds and all other premises of the ship in which goods are carried in the state which ensures the proper acceptance, carriage and safekeeping of cargo… The carrier shall not be liable if he proves that the unseaworthy condition of the vessel resulted from defects that could not be detected by exercising due diligence (latent defects)

Similar to Article 3(3) of the rules, Clause 137 of the code reflects the direct duty of the carrier (or the master or agent of the carrier) to issue a bill of lading to the shipper. Clause 153 of the code reproduces Article 4(6) of the rules (the right of the carrier to discharge or destroy dangerous cargo that was improperly declared by the shipper). Clause 161 of the code reflects Article 4(4) of the rules (deviation to save life or property).

Clause 166 of the code reproduces Article 3(6) of the rules:

«Unless the notice of shortage or damage to cargo was given by the consignee in writing to the carrier during the acceptance of cargo carried under the bill of lading, it is presumed, unless proved otherwise, that the consignee has received the goods in accordance with the terms of the bill of lading.

If the cargo has been inspected and checked by the consignee together with the carrier, the consignee may not give a notice mentioned in the first part of this Article.

In case of loss, shortage or damage which could not be detected during the usual procedure of cargo acceptance, the notice may be given by the consignee to the carrier within three days after the acceptance of cargo

The provisions outlining the carrier’s liability are also similar to those contained in the rules. Under Clause 176 of the code:

«The carrier shall be liable for loss, shortage or damage to the cargo received for carriage unless he proves that such loss, shortage or damage occurred without his fault or negligence, i.e. resulted particularly from:

‐ Acts of God;

‐ perils and accidents of the sea or other navigable waters;

‐ fire, unless caused by the fault of the carrier;

‐ saving of people, cargoes or vessels at sea;

‐ acts or orders of public authorities (arrest, seizure, quarantine, etc.);

‐ acts of war, acts of terrorism, riots and civil commotions;

‐ omission of the shipper or consignee;

‐ inherent/latent defects, defect of the goods, natural loss;

‐ insufficiency of packing not discoverable by external examination; insufficiency or inadequacy of marks;

‐ strikes or stoppage of labor;

‐ actions in order to prevent the pollution of environment

Also similar to the rules, Ukrainian law states that the shipper will not be liable for loss of or damage to the goods if it proves that such loss or damage resulted from an act, negligence or fault of the master, mariner, pilot or servants of the carrier in the navigation or management of the ship.

Naturally, there are several differences between the rules and the code. Pursuant to Clause 178 of the code, the carrier will not be liable for the shortage of cargo where the cargo arrived at the destination port:

  • in the intact ship premises, lighters and containers with the intact shipper’s seals;
  • in intact packing with no trace of unpacking; and
  • accompanied by the representative of the shipper or consignee (unless the consignee proves that a shortage resulted from the fault of the carrier).

Article 3, Rule 4 of the Hague-Visby Rules provides that:

«a bill of lading shall be prima facie evidence of the receipt by the carrier of the goods as therein described in accordance with paragraphs 3(a), (b) and (c). However, proof to the contrary shall not be admissible when the bill of lading has been transferred to a third party acting in good faith

There is no equivalent provision in the Merchant Shipping Code. The closest in wording and meaning is Clause 137 of the code:

«After taking over the cargo, the carrier or master or agent of the carrier shall issue to the shipper a bill of lading, which is the evidence of receipt of the cargo specified in this bill of lading.

The carrier may issue a document, other than the bill of lading, evidencing the receipt of goods for carriage. Such document shall be primary evidence of the contract of affreightment and the receipt of goods by the carrier as described in such document

Article 138 of the code provides that where the quantity of dry or liquid cargo was not checked, the carrier may include the quantity in the bill of lading with the respective remark. The carrier can make the same remark for the carriage of other types of cargo if it has reasonable grounds to believe that the shipper incorrectly stated the quantity of the cargo, or where the carrier had no reasonable opportunity to check the quantity.

Автор: Arthur Nitsevych (Interlegal)

Источник: http://www.internationallawoffice.com/Newsletters/Detail.aspx?g=b9326107-b496-4882-9243-94a6322302da&utm_source=ILO+Newsletter&utm_medium=email&utm_campaign=Shipping+%26+Transport+Newsletter&utm_content=Newsletter+2013-02-27