INTRODUCTION TO SHIPPING AND MARITIME

REGULATION
THE REGULATORY FRAMEWORK OF MARITIME ECONOMICS
WILSON CHAPTER 6 THE HAGUE VISBY RULES. PART 1
PROF JOHAN DU PLESSIS 2021
6. THE HAGUE/VISBY RULES

• At common law the parties to a contract of

airfreightment covered by a bill of lading or
similar document had complete freedom to
negotiate their own terms as had the parties
to a charter party.
THE HAGUE/VISBY RULES

• Abuse of the carrier’s stronger bargaining

position during the nineteenth century,
however, resulted in the curtailment of this
freedom and the formulation in 1924 of the
Hague Rules.
• The object of these rules and of their
successors the Hague/Visby Rules, was to
protect cargo owners from widespread
exclusion of liability by sea carriers.
THE HAGUE/VISBY RULES

• The Hague/Visby Rules accordingly envisage

a basic and mandatory framework of
contractual clauses for incorporation in a
contract of carriage outside of which the
parties are free to negotiate additional terms
of their own.
 O F T HE
C A T I ON
APP L I E S
6. 1 B Y RUL
E/ V I S
HAGU
6.1.1 TYPES OF CARRIAGE COVERED BY THE
RULES

• Art 1(b) states that the Rules are applicable

‘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’.
6.1.1 TYPES OF CARRIAGE COVERED BY THE
RULES

• From the above it would appear that the rules

are not designed to cover contracts of
carriage which envisage the issue of a
waybill or other non-negotiable document
since these do not constitute documents of
title.
• Nor would the Rules apply to charterparties,
or even bills of lading issued under
charterparties, at least so long as such bills
remain in the hands of the charterer.
6.1.1 TYPES OF CARRIAGE COVERED BY THE
RULES
• In such circumstances the bill merely acts as
a receipt and does not ‘cover’ the contract of
carriage, the terms of which are to be found
exclusively in the charterparty.
• Once the bill is assigned to a third party,
however, the position will change and the
Rules will operate ‘from the moment at which
such bill of lading or similar document of title
regulates the relationship between a carrier
and a holder of same’.
* Pyrene Co Ltd v Scindia Navigation
6.1.2 THE CARGOES EXCLUDED

• Two types of cargo are expressly excluded

from the application of the Rules in Art 1(c).
These consist of live animals and ‘cargo
which by the contract of carriage is stated as
being carried on deck and is so carried’.
• In both cases the parties are free to negotiate
their own terms of carriage for such cargoes.
6.1.2 THE CARGOES EXCLUDED

(I) DECK CARGO - EXCLUSION OF

HAGUE/VISBY RULES
• Two requirements need to be satisfied in
order to avoid the operation of the Rules.
First, the cargo must actually be stowed on
deck and, secondly, this fact must be clearly
stated on the bill of lading.
• Unless both requirements are met, the
contract of carriage will still be controlled by
the Rules.
* Svenska Traktor v Maritime Agencies
6.1.2 THE CARGOES EXCLUDED

I. DECK CARGO - EXCLUSION OF

HAGUE/VISBY RULES
• Nor is the requirement satisfied by a clause
in the bill providing that the carrier is entitled
to carry the cargo on deck unless the shipper
objects.
* Encyclopaedia Britannica v Hong Kong
Publisher
6.1.2 THE CARGOES EXCLUDED

I. DECK CARGO - EXCLUSION OF

HAGUE/VISBY RULES
• Finally it must be noted that the mere fact
that it is customary in the trade for certain
cargoes, such as timber or inflammable
goods, to be carried on deck is irrelevant to
the question of the applicability of the
Hague/Visby Rules.
6.1.2 THE CARGOES EXCLUDED

I. DECK CARGO - EXCLUSION OF

HAGUE/VISBY RULES
• If a carrier wishes to take advantage of Art
1(c) and avoid their operation, it is essential
that the bill contains an express statement
that the goods have been shipped on deck.
6.1.2 THE CARGOES EXCLUDED

II. CONSENT TO DECK CARRIAGE

• If such a breach of contract is to be avoided,
the shipper must have consented either
expressly or impliedly, to the stowage of his
cargo on deck.
6.1.2 THE CARGOES EXCLUDED

II. CONSENT TO DECK CARRIAGE

• In this respect it would appear that the
inclusion of a general liberty clause in the bill
of lading might suffice for this purpose, or
even a clause to the effect that ‘carrier
permitted to stow on deck unless shipper
objects’, provided that the shipper has
sufficient notice of the clause at the time of
shipment.
6.1.2 THE CARGOES EXCLUDED

II. CONSENT TO DECK CARRIAGE

• This view is strongly contested by Tetley who
argues that the presence of a printed liberty
clause in a bill of lading is insufficient to
constitute implied consent unless it is
accompanied by a clear statement on the
face of the bill that the goods have in fact
been shipped on deck.
6.1.2 THE CARGOES EXCLUDED

II. CONSENT TO DECK CARRIAGE

• Moreover, there are often good commercial
reasons for the absence of any clear
statement as to deck carriage on the face of
the bill of lading.
• Thus in the container trade some 30 per cent
of containers are normally carried on the
deck of a container ship in an efficient
operation.
6.1.2 THE CARGOES EXCLUDED

II. CONSENT TO DECK CARRIAGE

• Rarely will the carrier be aware until the last
moment of the identity of the containers
which will eventually travel on deck.
• The final location of each container will be
dependent on a variety of factors including
the possible dangerous nature of its
contents, the trim of the ship, or merely the
time of its arrival at the dockside.
6.1.2 THE CARGOES EXCLUDED

II. CONSENT TO DECK CARRIAGE

• In these circumstances the carrier will rarely
have the time or the opportunity to notate
each bill, but will in practice rely in each case
on the inclusion of a liberty clause.
6.1.3 PERIOD OF COVERAGE OF THE RULES

• Even though the Rules are applicable to a

particular contract of carriage covered by a
bill of lading, they do not necessarily govern
performance of the contract in its entirety,
but are merely relevant to that part of the
contract relating to sea transport.
6.1.3 PERIOD OF COVERAGE OF THE RULES

• Thus, for the purpose of the Rules, the term

‘contract of carriage’ is defined as
constituting ‘the period from the time when
the goods are loaded on to the time they are
discharged from the ship’.
• This normally construed as covering the
‘tackle to tackle’ period in circumstances
where the carrier is responsible for loading
and discharge, that is from the time when the
ship’s tackle is hooked onto the cargo at the
port of loading until the hook of the tackle is
released at the port of discharge.
6.1.3 PERIOD OF COVERAGE OF THE RULES

• A further problem arises where goods are

shipped under a through bill of lading or a
combined transport document which
envisages that they will be transhipped at an
intermediate port.
* Captain v Far Eastern Steamship
* Mayhew Foods v OCL
* Captain v Far Eastern Steamship Co.
Carpe Diem