Lloyd's Maritime and Commercial Law Quarterly
Limitation of liability and of actions
Marc Huybrechts *
I. LIMITATION OF LIABILITY
Historical justification
The limitation of liability that we consider in this article is the limitation per package or unit, also known as package limitation, as opposed to tonnage limitation or the limitation in favour of the vessel owners that is expressed with respect to the size (tonnage) of the vessel. The existence of a general limitation of liability by the tonnage of the vessel has been explained from various viewpoints.1
However, the idea of package limitation has a different foundation.2
According to Smeesters & Winkelmolen, the explanation for this phenomenon is the US Harter Act 1893 (the forerunner of the Hague-Visby Rules), declaring most exemption clauses null and void but not forbidding a clause which limited liability to an amount approaching the agreed value of the cargo.
It is this practice which found its way into the Hague Rules and into the Belgian Maritime Code, Art. 91:3
Et ainsi, sous l’empire du Harter Act, le transporteur parvient, par une sous-évaluation des marchandises transportées, à limiter sa responsabilité a un montant hors de toute proportion avec la valeur réelle de la marchandise. Le système législatif des Etats-Unis présentait une lacune a laquelle le Canadian Act semble avoir porté remède (art. 8), mais celle-ci a en tout cas été comblée par la convention internationale et notre article 91.4
The Hague Rules were seen as a major compromise, constituting an equilibrium which was not easily reached.5
The compromise was based on the fact that the ocean carrier was given a maximum number of exceptions and immunities which he could invoke in his favour, even though those immunities were not stipulated in the contract. Whenever the liability of the carrier was withheld and he was not allowed to invoke an immunity in his favour, he could at least invoke limitation of his liability. This was seen as a minimum
*Professor of Maritime and Transport Law, Catholic University of Leuven and University of Antwerp (U.A.); Member of the Antwerp and Brussels Bar.
1. Smeesters & Winkelmolen, Droit Maritime et Droit Fluviale
(Brussels, 1929), Tôme I, 151., nr. 108 ff.; and C.Hill, Maritime Law,
5th edn (London, 1998), 375;
2. Smeesters & Winkelmolen, supra,
fn. 1. Tôme II, 388, nr. 729.
3. The Belgian Maritime Code, Art. 91 in the national (Belgian) translation of the initial Hague Rules.
4. “And thus under the application of the Harter Act, the carrier managed to limit his liability to an amount which was totally out of reach with the real value of the merchandise by a mechanism of under-evaluation of the carried goods. The United States statutes contained a lacuna in which the Canadian Act has apparently provided for (article 8), but this gap has in any way been taken care of by the International Convention and our article 91” (author’s free translation of Smeesters & Winkelmolen).
5. Tricot Lionel, La Belgique et le droit maritime
(Intern, Vervoerr., 1983–1984), 303–322.
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