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

PART I - THE HISTORY OF THE HAGUE AND HAGUE-VISBY RULES 37II. From the Hague Rules, 1921 to the Brussels Convention, 1924selves. By virtue of the authority conferred upon our Committee by resolution passedat the International Chamber of Commerce on July 1st, 1921, we ask that the carriersadopt the Rules with such promptness as to make them effective by February 1st,1922. The Committee wishes to express its deep appreciation of the opportunity of realco-operation which has been shown by the shipowners in the framing of theseRules”. That letter is signed on behalf of the Committee by their Chairman, Mr.Haight.I have dealt with the circumstances under which the Hague Rules came into existence,and I would like to summarise briefly what I think are the essential points of theRules.For the first time we have before us a self-contained Code. That in itself is a greatadvance on all previous National legislation. The Harter Act and the Acts of the BritishDominions are all super-imposed on the English Common Law. They do not declarerights and liabilities, but start with the assumption that rights and liabilities exist.That is, I venture to think, the worst possible method to adopt when legislating inmatters concerning international commerce, and I doubt if the possibility of legislationin that form would have ever occurred to any one who was not an Anglo-Saxon.Something might have been said for it, if the English Common Law were embodiedin a Code. But it is not. Its pride is that it is a living and growing system expressingthe common sense of the Anglo-Saxons, but that common sense appears to be influencedby climate, for an English lawyer is quite unable to understand, far less to anticipate,the manner in which the Judges in the United States will apply the principlesof Common Law.I realise that other nations will find in the Hague Rules many matters dealt with infar greater detail than [46] is customary in their Codes. But is that a disadvantage ifthe points are fully and wisely provided for? In the Codes to which they are accustomed,principles are only stated, and their interpretations left to the Judges. In theAnglo-Saxon countries we also leave our Judges to interpret the principles, but we limitand prescribe their powers by previous decisions of other Judges; and when we docodify any branch of the law we define not only principles, but we lay down with greatprecision the lines upon which they are to be applied.There are clearly merits in both systems, but when we come to business contractsdo we not all follow the same method? We do not content ourselves with defining thebroad principles upon which the transaction is to be carried out; we put down in blackand white what each party to the contract is to do.Now the aim and purpose of the Hague Rules is to embody in business terms theconditions that are to be applicable to the sea carriage of goods. I do not think wordshave been wasted in doing that, and I do submit that the Rules as they stand can beunderstood in every market in the world.The next point, and it is one to which the British shipowner attaches the greatestimportance, is that the Rules control only the actual sea carriage. They are applicableonly from the time the goods reach the ship’s tackle. The shipowner is left as free as,but no freer than, every other trader, to make his own terms in regard to all other serviceshe renders as collecting, receiving, distributing, and as forwarding agent, or inany other capacity. Those points are made quite clear in Articles 1 and 6.The next point is that the warranty of seaworthiness is placed on a sound and reasonablefooting. The shipowner is only to be held responsible if there has been wantof due diligence on his part. The point is made clear in Articles 3 and 4. It was concededin the Harter and Dominion Acts, but to those who are familiar with English