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

PART II - VISBY RULES 525Article 4 (5) - Limits of liability1) Liability limited per “package or unit” becomes derisory in the case of machineryor heavy engineering products such as locomotives and electrical transformersfor example.2) In the case of bulk cargoes it has been necessary to have recourse to some formof fiction and consider every ton or every item as separate units or packages, accordingto whether the freight is calculated per ton or per item.The imperfect 1924 solution is becoming more and more cumbersome in view ofpresent transport trends, both from the technical and legal point of view.A. For the other forms of transport the system of the limitation of liability is still basedon the weight of the goods (except naturally in the case of an express declaration ofvalue inserted into the Bill of Lading):- Warsaw Convention- C.I.M.: International Carriage of Goods by Rail- C.M.R.: Carriage of Goods by Road.Combined carriage is becoming more and more common; consequently, differentsystems of limitation are difficult to accept.In the case of carriage of goods which has to be effected by air then by sea followedby road, the limit would vary according [718] to whether the loss or average happenedat sea, in the air or on the road.Since the limitation of liability on the basis of the weight of the goods seemed thebest solution for the other forms of transport, consideration should be given towhether it must be otherwise for carriage by sea.B. The development of transport by containers also goes to aggravate the imperfectionof the present system. The “container” literally forms a unit. Its contents can howeverbe of great value: typewriters, precision tools etc.Rationally, it would be tempting to say: “Let us disregard this outside cover and seehow many units there are inside”.In practice it will often not be possible to do this because, as has been emphasized,it is not always feasible to divide the contents into “units” or “packages”.It is certainly considerations of this sort which explain the amendment proposedby the United States Delegation (Doc. CONN. 6). 4The main object of this amendment in its final form is to abolish the limitationbased on the notion of “package or unit” and to replace it by a limitation based onweight.More specifically, the amendment proposes the same limitation as that of theC.M.R., namely 25 germinal francs per kg of goods lost or averaged.The working party has also been apprised of a new Norwegian amendment (Doc.CONN. 16) which, in a spirit of conciliation, proposes combining the existing systemwith a limitation based on weight.This amendment means that when the weight of a package or unit exceeds 333 kg,the limit begins to exceed 10.000 F. in gold.Thus a remedy would be brought to the drawbacks of the old system in cases suchas locomotives and transformers. This would also bring an acceptable solution in thecase of containers.The drawbacks of disparate systems in the case of combined transport still remain.These two proposals were examined by the working group and in particular the attemptedcompromise on by the Norwegian Delegation were sympathetically welcomed,but each of the proposals came up against an objection upon which the representativeof the British Delegation laid particular stress.4See page 540.