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VIII CONCLUSION
The nautical fault defence has been so important under the Hague Rules that in almost every case counsels for both plaintiff and defendant argue its definition and whether the fact can be classified as nautical fault. Generally speaking, nautical fault is the negligence of a carrier’s servants and agents which primarily puts cargo in jeopardy.
The nautical fault defence is at odds with the principle of other transport liability regimes and the tort law. Its historical grounds have also changed a great deal.
Under the Hague Rules, there are also several ways to get around the nautical fault defence. Contracting out this defence is allowed and it is the optimal method if a cargo owner is strong enough. Due to the unfairness of the nautical fault defence, courts are reluctant to apply or interpret it broadly. In some particular occasions, judges may set aside this defence provided for on bills of lading by reason of several joint liability or tort.
The Hamburg Rules has abolished the nautical fault defence. As a result, the liability of carriers is completely based on their fault. Some proponents of the nautical fault defence accuse the new regime of a lack of certainty, uniformity and economic efficiency. However, the recent work done by the CMI shows there is a tendency towards completely abolishing the nautical fault defence worldwide. The Hamburg Rules will not die in this respect.
ENDNOTES
[1] See UNCITRAL <> (Last accessed 18 March 2002). There are only 28 countries having ratified the Hamburg Rules so far.
[2] See E.R. Hardy Ivamy Payne & Ivamy’s Carriage of Goods by Sea (11ed, Butterworths, London, 2002) 153-154. Common carriers are not those who are charterers and therefore subject to the Hague Rules.
[3] Ivamy, above, 154.
[4] Ivamy, above, 154.
[5] See Coggs v. Bernard [1703] 2 Ld. Raym 918 per Lord Halt.
[6] Ivamy, above, 154. They are similar to the Hague Rules art 4 (2). (d), (f), (I), (m).
[7] M.J.Shah “The Revision of the Hague Rules on Bills of Lading within the UN System - Key Issues” in Samir Mankabady(ed) The Hamburg Rules on the Carriage of Goods by Sea (A.W. Sijthoff, Leyden, 2002) 1,3.
[8] See Shah, above, 4.
[9] Roughly similar to the Hague Rules art 3.
[10] Shipping and Seamen Act (No. 96) 1903.
[11] Sea-Carriage of Goods Act (No.14) 1904 (Cth). The 1904 legislation was superseded in 1924 by domestic legislation adopting the Hague Rules, Sea-Carriage of Goods Act (No. 22) 1924 (Cth).
[12] Water Carriage of Goods Act RS 1910.
[13] M.J.Shah “The Revision of the Hague Rules on Bills of Lading within the UN System - Key Issues” in Samir Mankabady(ed) The Hamburg Rules on the Carriage of Goods by Sea (A.W. Sijthoff, Leyden, 2002) 1,4.
[14] John O. Honnold “Ocean Carriers and Cargo; Clarity and Fairness----Hague or Hamburg?” (1993) 24 J Mar L & Com 77, 78.
[15] Eun Sup Lee & Seon Ok Kim “A Carrier’s Liability for Commercial Default and Default in Navigation or Management of the Vessel” (2000) 27 Transp L J 205, 210.
[16] Samir Mankabady “Comments on the Hamburg Rules” in Samir Mankabady(ed) The Hamburg Rules on the Carriage of Goods by Sea (A.W. Sijthoff, Leyden, 2002) 27, 53(footnote 4).
[17] Gosse Millard v Canadian Gov''t Merchant Marine, [1928] All ER 97, 98 (HL).
[18] Gosse Millerd v Canadian Government Merchant Marine [1927-28] 29 Ll L Rep 190, 192 (CA) per Ljj Scrutton.
[19] See The Glenochil [1896] P.19. In this case Sir Francis Jeune further held that “it seems tome clear that the word ‘management’ goes somewhat beyond---perhaps not much beyond---navigation, but far enough to take in this very class of acts which do not affect the sailing or movements of the vessel, but do afect the vessel herself.” The Glenochil [1896] P.15.
[20] Gosse Millerd v Canadian Government Merchant Marine, above, 104.
[21] Gosse Millerd v Canadian Government Merchant Marine, above, 105.
[22] Gosse Millerd v Canadian Government Merchant Marine, above.
[23]The Hague Rules art 3 (1).
[24] Rio Tinto Company, Ltd. v. The Seed Shipping Company, Ltd. [1926] 24 Ll L Rep 316, 317 (KB).
[25] Rio Tinto v Seed Shipping, above, 319.
[26] Rio Tinto v Seed Shipping, above, 317. The plaintiff said: “the course taken by the captain was so extraordinary that it was compatible only with utter incompetence or something wrong with his brain. Of course, if the master started on his voyage liable to mental trouble, the effect in law was that the ship was unseaworthy.”
[27] Rio Tinto Company, Ltd. v. The Seed Shipping Company, Ltd. above, 318. Another issue argued by two sides was whether this case constituted the deviation which will be discussed in the following topic.
[28] Rio Tinto v Seed Shipping, above, 318.
[29] Rio Tinto v Seed Shipping, above, 317.
[30] Rio Tinto v Seed Shipping, above, 318.
[31] Rio Tinto v The Seed Shipping Company, above, 321.
[32] Rio Tinto Company v The Seed Shipping Company, above, 321.
[33] Rio Tinto Company v The Seed Shipping Company, above, 321.
[34] See also Samir Mankabady “Comments on the Hamburg Rules” in Samir Mankabady(ed) The Hamburg Rules on the Carriage of Goods by Sea (A.W. Sijthoff, Leyden, 2002) 27, 53 (footnote 3).
[35] Rio Tinto v Seed Shipping, above, 316.
[36] See David M. Sasoon and John C. Cunningham “Unjustifiable Deviation and the Hamburg Rules” in Samir Mankabady(ed) The Hamburg Rules on the Carriage of Goods by Sea (A.W. Sijthoff, Leyden, 2002) 167, 178.
[37] Lavabre v. Wilson (1779) 1 Dougl. 284, 291; 99 ER 185, 189 (KB).
[38] Lavabre v. Wilson, above, 284.
[39] Rio Tinto Company, Ltd. v. The Seed Shipping Company, Ltd. [1926] 24 Ll L Rep 316, 320 (KB).
[40] Rio Tinto Company, Ltd. v. The Seed Shipping Company, Ltd. above, 321.
[41] Convention for the Unification of Certain Rules Relating to International Carriage by Air(Warsaw Convention).1929 art 18 (1).
[42] Uniform Rules Concerning the Contract for International Carriage of goods by Rail (CIM) 1980 art 50.
[43] see Convention on the Contract for the International Carriage of Goods by Road art3, art 17.
[44] Convention on the Contract for the International Carriage of Goods by Road art3, art 17(3).
[45] The concept of negligence is a bit different from that of nautical defence. See R.A. Percy Charlesworth & Percy on Negligence (8ed, Sweet & Maxwell, London, 2001) 12.
[46] Marsh v Moores [1949] 2 K.B.208, 215. See also Poland v John Parr & Sons [1927] 1 K.B.236, 240; Warren v Henlys Ltd. [1948] 2 All ER 935, 937; Ilkiw v Samuels [1963] 1 WL R 991, 997, 1002, 1004 and R.A. Percy Charlesworth & Percy on Negligence (8ed, Sweet & Maxwell, London, 2001) 139.
[47] Barwick v English Joint Stock Bank [1867] LR 2Ex. 259,266.
[48] Riverstone Meat Co. Pty. Ltd. v Lancashire Shipping Co. Ltd. [1961] AC. 807; The Muncaster Castle [1961] 1 Lloyd’s Rep 57, 73 Lord Viscount Simonds. But see Leesh River Tea Co. Ltd. v British India Steam Navigation Co. Ltd. [1967] 2 QB 250.
[49] The Muncaster Castl, above, 57.
[50] G.E. Dobell & Co.v. Steamship Rossmore Company, Ltd., [1985 ] 2 QB 408, 416.
[51] Smith, Hogg & Co., Ltd. v. Black Aea & Baltic General Insurance Company, Ltd., (1939) 64 Ll L Rep 87, 89.
[52] Brian Makins “Sea Carriage of Goods Liability which Route for Australia” (Fourteenth International Trade Law Conference, Canberra, 16 October 1987) 14.
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