论海牙规则中航海过失免责的废除 （ABOLISHING THE NAUTICAL FAULT DE）
宋政平
【全文】
SONG, ZHENGPING
ABOLISHING THE NAUTICAL FAULT DEFENCE---THE TREND OF THE MODERN LIABILITY REGIME OF CARRIAGE OF GOODS BY SEA
LLM RESEARCH PAPER
LAWS 582 LEGAL WRITING
LAW FACULTY
VICTORIA UNIVERSITY OF WELLINGTON
2002
CONTENTS
ABSTRACT………………………………………………………………………………………..…….2
MAIN TEXT……………………………………………………………………………………………..3
I INTRODUCTION…………………………………………………………………………………3
II NAUTICAL FAULT DEFENCE UNDER THE HAGUE RULES……………………………….3
A The History of the Nautical Fault Defence………………………………………………...4
B Distinction between Nautical Fault and Failure to Exercise Duty of Care of Cargo………5
C Distinction between Nautical Fault and Unseaworthiness…………………………………7
D Distinction between Nautical Fault and Unreasonable Deviation…………………………8
III CRITICISM AGAINST THE NAUTICAL FAULT DEFENCE……………………………….10
A Unfairness and Inconsistency by Comparison of Sea
Transport and Other Transport Modes……………………………………………………….10
B The Nautical Fault Defence is at Odds with the Principles of Torts……………………...…11
C Changing Grounds……………………………………………………………..…………….13
IV SOME POSSIBLE WAYS TO GET AROUND THE NAUTICAL FAULT DEFENC………..14
A Contracting out of the Hague Rules………………………………….……………………14
B Nautical Fault Defence is Destroyed by the Joint and Several
Liability Regime in Case of the Both to Blame Collision………………………………....15
C Avoid Nautical Fault Defence by Suing in Tort…………………………………………...17
V ABOLITION OF THE NAUTICAL DEFENCE UNDER THE HAMBURG RULES…………...20
A What’s the Meaning of the “Reasonable Measures”………………………………………21
B The Effect of the Abolition of the Nautical Fault Defence……………..…………………23
VI DEBATE ON THE ABOLITION OF THE NAUTICAL FAULT DEFENCE…………………..24
A Criticism 1: Certainty Issue……………………………………………..………………….24
B Criticism 2: Uniformity Issue………………………………………………………………25
C Criticism 3: The Abolition of the Nautical Fault Defence does not
Necessarily Make Carrier More Aware of the Duty of Care…………………………………26
D Criticism 4: Allocation of Risk and the Dual Insurance……………………………………..27
E Rebutment…………………………………………………………………………………..28
VII RECENT DEVELOPMENTS RELATING TO
THE NAUTICAL FAULT DEFENCE…………………………………………………….…….30
A Comite Maritime International’s Work…………………………………………………….30
B UNCITRAL’s Work………………………………………………………………………..31
VIII CONCLUSION………………………………………………………………………………….32
ABSTRACT
This paper discusses the controversial nautical fault defence under the current carriage of goods by sea regimes, the Hague Rules and the Hamburg Rules. Under the Huge Rules, the nautical fault defence is distinct from the failure to exercise duty of care of cargo, unseaworthiness and deviation. This regime is apparently unfair and inconsistent with other transport modes and the principles of tort law. The grounds for the nautical fault defence have also changed a lot. Nevertheless, there are still some ways to avoid the nautical fault defence. Contracting out this defence and suing carriers in tort are always supported by courts. In the US, cargo owner can get full recovery of its loss in the case of both to blame collision. The Hamburg Rules removes the nautical fault defence in cargo owners’ favour. However, the new regime is accused of bringing about uncertainty and lack of uniformity and is not realistic and cost effective. This paper argues against those criticisms and concludes the Hamburg Rules will reduce the uncertainty, legal risks and transaction costs. Finally the recent developments relating to the nautical fault defence issue demonstrate that the complete abolition of this outdated regime is a matter of time.
Word Length
The text of this paper (excluding contents page, footnotes) comprises approximately 9,115 words
I INTRODUCTION
The Hague Rules article 4.2 (a) lays down a controversial provision known as the nautical fault defence, which exempts a carrier from liability for the loss or damage to the cargo resulting from the act, neglect or default of its master, mariner, pilot, or the servants in the navigation and management of the ship. Although the Hague Rules grant a list of immunities to carriers apart from the nautical fault defence, the underlying principle of those immunities is that the carrier is not at fault. Even if there are no those immunities, a carrier is not likely to be held liable for the loss or damage to the cargo. However, the carrier will not be so lucky if the loss or damage to the cargo resulted from the negligence in navigation or management of the ship and the nautical fault defence is not available.
The Hamburg Rules, adopted in 1978, abolished the nautical fault defence, but it did not come into force until 1992 when a requisite number of ratifications were advised. Most developed countries still stick to the Hague Rules or its amendments.[1] As a consequence, commentators argue that the Hamburg Rules are unlikely to have a significant impact. The nautical fault defence will continue to play an important role in the liability regime.
This paper is not concerned with the justification of the whole Hamburg Rules, but with the debate on the nautical fault defence and its destiny. Part II introduces the history and the specific application of the nautical fault defence; Part III introduces the criticism on the nautical fault defence; Part IV summarises several ways to get around the nautical fault defence under the Hague Rules; Part V describes the abolition of the nautical fault defence under the Hamburg Rules; Part VI introduces the criticism against the abolition of the nautical fault defence; Finally this paper introduces the recent developments on the nautical fault defence issue.
II NAUTICAL FAULT DEFENCE UNDER THE HAGUE RULES
A The History of the Nautical Fault Defence
Under common law, common carriers [2] were liable for nautical fault [3] . Before the advent of the Harter Act, the liability regime was tough against carriers. Since carriers were suspected of damaging the cargo interests by co-operating with thieves [4], they were required to be the insurers of the cargo and guarantee the safe arrival and delivery of the cargo.[5] Only a small number of expected perils could excuse their liability for the loss or damage to the cargo. They were:[6]
an act of God;
or an act of the Queen’s enemies;
or inherent vice in the goods themselves;
or the negligence of the owner of the goods;
or a general average sacrifice.
However, an important common law principle, freedom of contract, allowed carriers to avoid the harsh situation and to relieve them from all kinds of liability for the loss or damage to the cargo. Smart carriers made their own “laws” to regulate carriage of goods by sea. Superficially a carrier was liable for the loss or damage to the cargo arising from the nautical fault, but in fact it was immune from this liability by inserting the exception clause into the bill of lading. This unequitable situation was sustained by the strong bargaining power of carriers.[7] With the development of cargo owners’ power,[8] the all-embracing exception clause was challenged by the US Harter Act in 1893. The Harter Act specified that carriers shall exercise due diligence to make ships seaworthy and properly load, stow, care for, and deliver cargo [9] . New Zealand was the first country outside US enacting the statute relating to bills of lading modelled on the Harter ACT in 1903 [10] and followed by Australia [11] , Canada.[12] In 1924, the new international convention on bills of lading was adopted in the Hague based on the principle of the Harter Act. Nevertheless, both the Harter Act and the Hague Rules made a compromise between carrier interests and shipper interests and legitimised the carriers’ nautical fault defence.[13] Although shippers opposed the Hague Rules from the very beginning,[14] the crucial need of uniformity on bills of lading caused the widespread adoption of the new convention in the world.[15]
