Export Trade Laws and Hague Visby Rules - Paper Example

International trade markets provide a good opportunity that can be utilized to make a significant profit. However, it is important to understand legal implications of various arrangements to avoid complications and solve challenges associated with an international trade using the right procedures (Carole et el., 2012: 613). Buying and selling of goods in the in a different country as well delivery to their destination differ regarding the rules and the customs involved. Thus, the domestic law is different from the international law that governs the sale of goods. There certain barriers that make can make communication between the parties involved difficult such as language and culture. However, parties should endeavor to understand the laws that apply to each and every issue and concern as well as the regulations of goods in each country before entering into the contract of sale. There are international convections that govern the transport of goods by the sea, and they are incorporated with the domestic law of a given country to help solve maritime disputes (Tetley, 2004 pg, 2). The most applicable convections are Hague, Hague-Visby, and Hamburg convections.

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The Hague Visby rules were drawn from the English Common Law, and they govern the international carriage of goods whose mode of transport is the sea. The convictions has various articles that cover various aspects; however, the carrier is held in a favorable position than the shipper party, and this is meant to protect the rights of the cargo owner. Therefore, the rules are meant to give more protections to the cargo owners while ensuring that the shipper is held accountable for any damage or loss of goods while on the voyage (Fredrick, 1991:57). The Hague-Visby rules are integrated into the English Law Act 1971 on the carriage of goods by sea. There are various organizations that have been put in place to regulate international trade, for instance, the World Trade Organization that relies on the rules of trade in a given area instead of the specific rules (Matsushita, 2015: 2).

The Hague- Visby Rules were developed from The Hague rules 1924, which were also referred as the International convention for the unification of certain rules and law relating to the bill of landing. The Hague-Visby rules are much applicable for the damage incurred during the shipment of goods not unless the terms indicated in the contract extends the period to go beyond the transit period. But in the cases where the rules do not apply, the parties involved can decide to consider other means of solving their case. It is important, to identify and confirm clearly that in deed the damage occurred during shipment and the cause so as to apply effectively the Hague-Visby rules.

The carriage of goods by sea entails two types of contracts that are the landing contract that applies when goods are shipped from one port to another. The second contract is the kind of charter party, where the whole ship or part of the ship is hired for shipment. The first type of contract referred as the bill of lading; it contains information on the terms of carriage, also the receipts that indicate the quantity and conditions of goods. It is important to establish the contractual carrier in the bill of lading, and this can either be the ship owners, the charterers or even the freight forwarder. When both terms of the contract that is the bill of lading and the charter party is issued, then it becomes the entity that governs the shipment. However, upon endorsement the lading bill as the third party then it is relied on to determine the course of carriage. The Hague-Visby rules are most applicable in a country like the UK and Hong Kong in the shipment process. Other nations adopt the earlier international conventions referred as Hague rules while few places have adopted the recent convention known as the Hamburg rules, while other states are not members of any convention. The commonly applicable rules that are considered as the Hague convention and The Hague Visby Rules with only a few nations adopting Hamburg convection especially those that are not major maritime nations.

The Hague-Visby rules can be fall into two categories that is those articles that deals with the duty of the carrier and secondly, articles that try to limit liability in case of the damaged or lost cargo. The article III, part a,b, and covers on the obligation to exercise due diligence to ensure that the ship is seaworthy, fit and save for the voyage and this is the responsibility of the carrier. The carrier should also ensure that the ship has adequate supply and the right conditions for the transportation of goods are provided. Besides the carrier should ensure that they get the necessary documents that pertain the goods to be transported as required by the landing bill. The bill of lading should be well stamped, legible and the quantity and pieces of goods well written and maintained till the end of the voyage. However, these obligations are effective only before and at the beginning of the journey. The case where damages have occurred which the claimant associate to the unworthiness of the vessel, it upon them to provide the evidence and the ship-owner has to counter proof to show that the ship was checked and it was in the right condition. The carrier is required to take care of the good while on the voyage, and they are liable unless loss or damage due to the acts of God, sea peril among other things. There is a limited liability for undeclared goods and those that do not meet the required package.

Qns.1. Advice Wallace to his legal position

According to the article III of the Hague-Visby rule, regarding delay in delivery that results in damage or loss and this requires a thorough investigation of the circumstances of the transport. The Rotterdam regime which is a modern convention, the article III (2) holds the carrier liable unless it is not their fault or any person in the ship. The Hague-Visby

In the case provided, where Wallace shipped a consignment from Liverpool, and it was supposed to be taken to New York. The carrier had provided Wallace with a lading bill indicating that the ship could visit any other port. The carrier was under the protection of the Hague rules. The carrier sends the ship to a French port known as Bordeaux and does not notify Wallace. As the ship continues with the journey to New York, it hits an Iceberg and sunk. The case is clear that the ship had passed various obligations required before starting the voyage. Wallace could consider suing the carrier for the failure to exercise prior diligence to ensure that the ship is seaworthy. Such option would require investigation to proof that one of the factors that contributed to the sinking of cheap is due to its fault nature. Thus the case cannot be considered to be reckless and with knowledge because the carrier was not anticipating that such an accident would occur. For instance, the case of Goldman v Thai Airways International Limited in which the passenger got injuries as a result of the airplane turbulence. In this case, the pilot got some warnings about encountering turbulences, and it was upon the court to determine whether the pilot was guilty of reckless and failure to act despite being equipped with knowledge. It was not possible to prove that indeed the pilot had prior knowledge of the possibility of an accident. Similarly, the case involving Wallace can be quite tricky especially because the leading bill had provided information about the possibility of lading to other ports. Another case that follows the English Law on the need to establish the prior knowledge of an accident is happening. The case is Chiu Pui Yin v China Airlines Ltd that entailed another passage who sustained injuries as the airplane was landing. In this two cases, the main challenge is to establish that there was enough knowledge of a probable danger to hold the carrier with the unlimited liability.

According to the article 25 of the Hague rules and section 4.5 of the Visby rules the carrier is not entitled to the benefit accorded by the limited liability, whereby it can be proved that the loss or the damage occurred due to the acts or omissions of the carrier done with intent to cause damage or reckless and with knowledge of the possibility of damage occurring. The two rules despite being drafted at different times, they share the same expression that is with intent to cause damage or recklessly and with knowledge that damage would probably result thus the two cases were drafted with the same intent. The article 25 of the Hague laws can be used to provide guidance and inspiration to the Wallace case, in which his consignment got lost in the sea when the ship sunk after hitting the iceberg. Thus the case has to be considered whether it is a gross misconduct or willful misconduct by the carriers unlimited liability as stipulated under the Hague rules. The claimant, in this case, Wallace can find it difficult to ascertain the intent to cause damage as well as the proof that there was recklessness or-or knowledge of the probability of an accident. In this, the carrier decided that the ship would visit another port and he did not notify Wallace. As such, Wallace was not aware of the state of his good although the carrier had notified of the possibility of a lawful visit to any port. It is thus upon the claimant to proof that the visit to the Bordeaux port was not lawful and this can be backed up by the information provided whereby, the visit was not planned but it was due to another ship that developed a mechanical problem and thus could not make it to the port to collect the cargo. Instead, Albion ship which was shipping Wallace goods had to go and collect that cargo before heading to its place of destination.

It is not certain the circumstances that lead to then ship hitting the iceberg and even though it might appear like one of the sea perils, it could be better it investigation were done to assess the expertise of the sailors as well as the quantity of the of the goods on board to ensure that they were packaged appropriately and were in the right amount. According to the article three rule one of the 1971 Acts of the Hague convection, the carrier is supposed to exercise due diligence to ensure that the ship is seaworthy before and at the beginning of the voyage. However, it is important to establish whether the seaworthiness could have been partly or wholly being the cause of the ship hitting the iceberg. For instance, in the case of the Island Tug and Barger v Makedonia (1962) P 190, the plaintiff shipped timber from British ports to the United Kingdom Ports. And while on the way, the vessel broke down and the salvage assistance was called upon to help. In this case, the plaintiff wanted to be compensated for the cost incurred in the salvage. The defendant who was the owner and the carriage had to prove that the ship was seaworthy, so as to establish that it was the ship partly or wholly that the loss (Anthony et el., 2016: 424).

The Visby and Hague rules were adopted to ensure that carriers have unlimited liability and that they are uniformly applied. They are subject to divergent interpretations, and reasons and their content can undermine the objective.

Qn. 2 By the time Hague-Visby rules were ratified by the UK in 1971, they were arguably already anachronism. Critically respond to this statement, and examine whether the most modern conventions provide any improvement.

The Hague rules were the first convention of the matter pertaining the carriage of goods by sea and whose implementation began in the year 1931. However; it would later be ratified by the maritime. The convention was meant to help settle any compromise between the shipper and the carrier in a...