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Validity of Contractual Terms
Article 79. General provisions
1. Unless otherwise provided in this Convention, any term in a contract of carriage is void to the extent that it:
(a) Directly or indirectly excludes or limits the obligations of the carrier or a maritime performing party under this Convention;
(b) Directly or indirectly excludes or limits the liability of the carrier or a maritime performing party for breach of an obligation under this Convention; or
(c) Assigns a benefit of insurance of the goods in favour of the carrier or a person referred to in article 18.
2. Unless otherwise provided in this Convention, any term in a contract of carriage is void to the extent that it:
(a) Directly or indirectly excludes, limits or increases the obligations under this Convention of the shipper, consignee, controlling party, holder or documentary shipper; or
(b) Directly or indirectly excludes, limits or increases the liability of the shipper, consignee, controlling party, holder or documentary shipper for breach of any of its obligations under this Convention.
Article 79 of the Rotterdam Rules and Article III rule 8 of the Hague-Visby Rules compared. Article 79 is the provision which makes the Rotterdam Rules override any terms to the contrary contained in any contract of carriage to which the Convention applies and may be considered the most important guarantee for the effectiveness of the Rules in practice. Article III rule 8 of the Hague-Visby Rules, the corresponding provision currently in force under English law, states: “Any clause, covenant, or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or damage to, or in connection with, goods arising from negligence, fault, or failure in the duties and obligations provided in this article or lessening such liability otherwise than as provided in these Rules, shall be null and void and of no effect”. 1 Broadly speaking, there appear to be three main differences between the two articles: firstly, the scope of the Rotterdam Rules text is significantly broader than its Hague-Visby equivalent; secondly, it expressly refers to the duties and liabilities of both carriers and shippers; thirdly, by imposing a dual capping system, whereby duties and liabilities of some parties other than the carrier may not be neither increased nor decreased, has made the Convention two-way mandatory, at least in part. These three new characteristics have a number of important elements of novelty which are likely to have a resounding impact on current shipping practices.
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