the travaux préparatoires hague rules hague-visby rules - Comite ...

20 COMITE MARITIME INTERNATIONALThe Travaux Préparatoires of the Hague and Hague-Visby Rulesto handle and stow goods carefully, and to care for, preserve and properly deliver thembe lessened, weakened, or avoided.37. Difficulty arises as to the determination of the point at which any damage orloss may have occurred, but we feel that so long as all reasonable precautions are takento check the soundness and quantity of the goods when they are transferred from oneresponsible carrier to another this difficulty is not insuperable. For our present purposeit is only requisite to consider what protection the shipowner should be given in orderthat he may not have to accept liability for that which is not within his control as ashipowner. In this connection it should be kept clearly in mind that the form of the proposedlegislation is not to create any liability, [10] but to prohibit the practice of contractingout of an existing common law liability, and so far as we are aware the decisionsat Common Law are not regarded as having been unfair to the shipowner.38. In accordance with the modern methods of commerce, there are frequent caseswhere the shipowner, especially the liner-owner, performs services as forwardingagent or warehouseman before “loading” or after “delivery from the ship”. We thinkthat the new legislation should not affect such services which we understand are notcovered by any of the existing Dominion Acts.39. The bill of lading purports to be a receipt for the goods to be carried, as wellas the contract for their carriage. Since the normal bill of lading opens with the word“shipped”, the liability begins with the “loading” and no question arises. In the case,however, of a “received for shipment” bill of lading or other equivalent document, theproposed uniform legislation should not affect services prior to “loading”.40. Similarly, in regard to the close of the voyage, services by the shipowner whenacting as warehouseman or forwarding agent subsequent to “delivery from the ship”should also not be affected.41. There are, no doubt, cases in which the master and officers are unable effectuallyto control actual discharge from the ship, but it would appear important in thegeneral interests of commerce that any such undesirable conditions in foreign ports orelsewhere should be the subject of representation and other pressure upon the Governmentsor Authorities responsible. Only in very exceptional instances do we thinkthat a justifiable case will arise in which permission should be granted to shipownersto curtail their liability and to limit the operation of the legislation so as to exclude deliverywhile not exempting the voyage itself.42. The new legislation should, however, provide for the granting of the necessarypermission in such exceptional cases.43. Maximum Monetary Limits to Liability. Section 8 of the Canadian Water Carriageof Goods Act, 1910, states:“The ship, the owner, charterer, master or agent shall not be liable for loss ordamage to or in connection with goods for a greater amount than one hundreddollars per package, unless a higher value is stated in the bill of lading or othershipping document, nor for any loss or damage whatever if the nature or valueof such goods has been falsely stated by the shipper, unless such false statementhas been made by inadvertence or error. The declaration by the shipper as tothe nature and value of the goods shall not be considered as binding orconclusive on the ship, her owner, charterer, master or agent”.44. It is noticeable that the limit of 100 dollars imposed by the Act is low comparedwith the limit voluntarily imposed by the shipowners in other trades. The Act,apparently, leaves it open to the shipowner to charge a higher freight for packages ofwhich the declared value is over 100 dollars.