Lloyd's Maritime and Commercial Law Quarterly
Basis of liability and exclusions of liability
Francesco Berlingieri *
This paper analyses the provisions of the CMI/UNCITRAL Draft Instrument on Transport Law in respect of the liability of the carrier. As regards the duties of the carrier, the author is of the opinion that such duties, and in particular that relating to the seaworthiness of the vessel, should be made continuous, while the carrier in a door-to-door contract should not be allowed to exclude specified services from the scope of the contract. As regards the basis of liability, the allocation of the burden of proof, and the exonerations from liability, the author is strongly in favour of the abolition of the exonerations for fault in navigation and in the management of the vessel and of structuring the other Hague-Visby excepted perils as cases of reversal of the burden of proof.
Introduction
Initially UNCITRAL had considered investigating the need for uniform rules in transport law in areas other than the liability regime of the carrier1
in order not adversely to affect the prospects of future ratification of the Hamburg Rules. However, the Executive Council of the CMI, conscious of the fact that the liability regime is the core of the law of transport and that, therefore, it would have been practically impossible to draw up a well balanced text capable of independent application if rules governing the liability of the carrier were not included, adopted a two-stage action. It instructed the International Sub-Committee (ISC) first to consider in what areas of transport law not at present governed by international Conventions uniformity may be achieved, and then to draft provisions on liability.2
* President honoris causa
of the CMI, past Professor of Maritime Law in the University of Genoa, doctor honoris causa
Universities of Antwerp and Bologna, Honorary Professor of International Maritime Law IMLI. In the footnotes, “Travaux Preparatoires”
refers to the Travaux Preparatoires of the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading of 25 August 1924, The Hague Rules and of the Protocols of 23 February 1968 and 21 December 1979, The Hague-Visby Rule
s (Genoa 1997), 146.
1. In the Report on the work of the 29th session of UNCITRAL, held in May-June 1996, there is mentioned the proposal that UNCITRAL “should include in its work programme a review of current practices and laws in the area of the international carriage of goods by sea, with a view to establishing the need for uniform rules in the areas where no such rules existed”.
2. The terms of reference of the International Sub-Committee on Issues of Transport Law, approved by the CMI Executive Council at its meeting of 11 November 1999
(CMI Yearbook 1999,
117) were the following:
“To consider in what areas of transport law, not at present governed by international liability regimes, greater international uniformity may be achieved; to prepare the outline of an instrument designed to bring about uniformity of transport law; and thereafter to draft provisions to be incorporated in the proposed instrument including those relating to liability.”
336