Analysing Hague Visby Rules Article IV Rule 2 and Commercial Law

This presentation critically analyses the statement “There is the surprising exclusion of liability for defects of the master or crew in management of the ship [in Hague Visby Rules Article IV rule 2] The exception is generally considered to be an anachronism which tilts the burden unfairly against cargo”. It discusses relevant cases and how courts have curtailed the use of excepted peril by carriers.

COMPONENT A ORAL PRESENTATION

INTRODUCTION
 Law has been determined as the system of rules that is aligned
with the set of protocols and has to be followed by the people.
 The present study revolves around the commercial law. This
law regulates behaviour of people who are engaged in trade
activities.
 Also, this law is entitled with the contracts, consumer
protection and employment contract elements. This PPT will
shed a light over critically analysing the statement “There is the
surprising exclusion of liability for defects of the master or
crew in management of the ship [in Hague Visby Rules
Article IV rule 2] The exception is generally considered to be
an anachronism which tilts the burden unfairly against
cargo”

UNDERSTANDING HAGUE VISBY RULES ARTICLE IV RULE 2 AND COMMERCIAL LAW
 The subject provision of article (Mentioned in
Hague Visby Rules article IV rule 2) states that,
the carrier should properly & carefully assure
focus over loading, handling, carrying and
keeping the goods.
 Also, in context of discharging the goods same
attributes needs to be applied. However, the article
IV rule 2 often depicts that, the carrier or ship is
not accountable if the loss or damage has been
created due to default or mistake of pilot, servant
and mariner of the ship
 Thus, the loss that has been created by the
member of the ship does not bear by the carrier or
while company.

Continued…..
 However, the sixth edition of the Goode and Mckendrick on
commercial law says that, the carrier is liable for the loss and damage
of the goods if the danger has not been discussed before assuring the
transportation of the goods.
 The amount that has been mentioned in the contract has been bear up
by the carrier if the loss takes place. Thus, the saying of article IV
rule 2 in Hague Visby rules is different in accordance with the
commercial law Commercial law protects consumer within the
implemented legal terms.
 Also, works on the basis of the contract and the judgement has been
made on the basis of the information provided in contract.

ANALYSING RELEVANT CASES
 Belae v Markwarth shipping company Ltd [1991] SBHC 10 is associated
with the scenario in which the appellant dispatched the goods on a vessel
that has been operated by himself.
 The goods has been given to the respondent and the cargo receipt has
been received in context if this. However, when the goods arrived some
of the goods were missing. The appellant has issues the writ of summons.
 At the time of hearing the decision has been taken in the favour of
appellant as the Cargo receipt which has been provided is not a contract
of carriage in relation of the purpose of the carriage of goods by sea act.

CONTINUED….
 Finch v Seafreight pty Ltd[1976] PNGLR 440 (6 October
1976)
 In the case two crates of some individual possessions were
shipped from Loloho to Moresby port on the ship of the
defendant.
 The shipped item were lost on the way and did not reach its
destination. Here the plaintiff raised his concern pertain to
fulfilment of damages since it was lost after shipping and the
entire responsibility of protecting the items and ensuring its
proper delivery lies in the jurisdiction of the shipping
organization.

CONTINUED…..
 The judgement of the court has been in favour of the
plaintiff that as per the commercial law, here it is Sea
carriage of goods act 1951,
 as per the low the period when the goods were damaged,
it was in the possession of the shipping company. The
company was responsible from the time of loading to the
discharging of the goods,
 The judgement of the court has clarified that as
commercial low of the nation is guiding and also
protecting the rights of such parties who are getting their
goods shipped.

Hauhaea v Laurabada shipping services ltd[2005] PGDC 31; DC200
(13 July 2005)
 In the case the goods were supposed to be shipped on the
ship on two different occasions. In the event on both
occasion it was reported that some portion of the goods was
missing.
 The plaintiff raised concern and argued that this is
responsibility of the company to fulfil the losses. On the
other side the complainant claimed that the items were not
lost from the ship before or after discharge.
 The judgement of the court has been in favour of the
complainant and court said that now the onus to prove of
losing the goods in lying in the jurisdiction of the plaintiff
so the claim of loss has been dismissed.

HOW COURTS HAVE CURTAILED THE USE OF EXCEPTED PERIL BY CARRIER
 Over the time the supreme court also felt the jeopardies by
the carriers. Some of excepted perils they often used in
order to take advantages of such cases and ultimate loss was
bared by the plaintiffs .
 SC has focused on the article 4 of Hague Rules, on the
appeal made by Andrew Nicholas. Mr Donaldson QC,
justice found that it would be breach of article 3.2 so the
onus would be on the carrier company to present their side
to counter allegation. So by these ways supreme court of the
nations curtailed use of excepted perils by such carriers .

DISCUSSION
 Hague Visby Rules article IV rule 2 provides protection to the
carrier within not blaming them for the loss of goods.
 However, the major issue is that in such case, who will take
liability. The major elements of commercial law in UK is aligned
with, contract, consumer protection, insurance tax and the
partnership.
 Thus, if everything has been mentioned in contract then, it has to
be followed and in such case, the loss and damage has been bear
by the carrier itself The above explained cases has shown that,
 in some case, the favour has been assured to shipping company
and the major reason behind this is concerned with the absence of
contract.

CONCLUSION
 From the report above it can be concluded that the Article
4 rule 2 of Hague-Visby was giving a number of such
exceptions to the shipping companies to reduce their
liability pertain to the carried goods.
 In the report the arguments of The Hague-Visby and
Commercial laws of the nation were compared in order to
trace the anachronism of the rules

References
 Cheng, Jess. "How to build a stablecoin: certainty, finality, and
stability through commercial law principles." Berkeley Bus. LJ 17
(2020): 320
 Kasi, Arun. "Hague/Hague-Visby Rules: Application." In The Law of
Carriage of Goods by Sea, pp. 247-269. Springer, Singapore, 2021.
 Ceil, Chenoy. "Limit Liability under Hague-Visby, Hamburg and
Rotterdam Rules." Hamburg and Rotterdam Rules (December 4,
2018) (2018).