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

600 COMITE MARITIME INTERNATIONALThe Travaux Préparatoires of the Hague and Hague-Visby Rulesson who is not a party to a contract can derive no benefit from it. I am not defendingthat principle nor am I saying it is wrong. I am only saying there it is. It is not confinedto maritime law. It is a general principle of our law of contract as a whole. That is thereason why if an action is brought against one of the servants or agents of the shipperor carrier, either against the captain, or the chief officer, or the officer of the watch, thatofficer cannot avail himself of the exemption clauses in the bill of lading for the simplereason that that officer is not a party to the bill of lading. It would be impossiblefor us to put the matter right by proposing this to our Parliament because an amendmentof this general principle of our law of contract would require an Act of Parliamentasking them to provide by statute that a person who is not a party to a contractcan derive benefit from it because the answer would be that the only people hamperedby that principle would only be a very small section, though a very important class ofpeople, an important class of traders, those who carry goods by sea. You cannot altera fundamental principle of [32] your law just because a somewhat narrow domesticdifficulty arises. What you can do is to alter the law on the Carriage of Goods by SeaAct which is the means by which we have implemented the Hague Rules.We want to be careful in our jurisdiction, that is to say the United Kingdom jurisdiction,how we do it because our Carriage of Goods by Sea Act makes the Conventiona compulsory contract, but it is still a contract. Therefore, if we merely say in oneof the Rules, the Rules themselves, that the benefit of the exemption clauses in the contractshall be enjoyed by the servants or agents of the shipowners, that will simply bea clause in a contract, as I endeavoured to explain. The compulsory contract is still acontract and the same principle of law will apply to it. What we want is a specific sectionin the Act of Parliament which will embody, I hope, the amendments to the HagueRules which we are now discussing.The reason for this is that actions against servants or agents of the shipowner arein practical effect actions against the carrier himself.It has been said by some of the National Associations why should a cargo owner -and we are only considering cargo owners here -not be able to pursue his action againstthe man who has been negligent, such as the Chief officers: the officer in charge of thecargo, or the officer of the watch in case of a collision, the officer of the watch whogave a wrong order?To those who put forward this argument, it is from a practical point of view nonsense.What does the carrier want? What he thinks he can get, but I doubt very muchwhether he thinks he can get £ 100,000 worth out of the chief officer in charge of thecargo, or the chief engineer who is [33] negligent. He knows them well not to be richand he knows very well that unless the carrier stands behind the unfortunate officer,he will not get his shipment’s worth. That is the practical reason for these actions andthere is no injustice in saying to the cargo owner: “we have made a bargain with youwhich is now embodied in the Hague Rules whereby we agree, we the carrier agree onlyfor you to be allowed certain exemptions. But you, the cargo owner are not to getround that by saying: my chief officer is responsible and making me pay through him”.That is what anybody engaged in the shipping agency business knows. This may be apersonal theory of mine but there are numerous cases in which that has been done andthe result of this is that the shipowner has had to pay far beyond the limit to the cargoowner because the action was taken again.The British Maritime Law Association supports the viewpoint as exposed in theSub-Committee Report on pages 29 to 33 that the carrier, servants or agents should beprotected for the reasons that I have given. Actions brought against servants or agentsare, in practical effect, against the carrier himself. We do not, however, support thatthis should include independent practice for the reason that the carrier can protecthimself by contract.