Lloyd's Maritime and Commercial Law Quarterly
FROM RADICAL REVOLUTION TO QUESTIONABLE REFORMATION
Professor Giorgio Righetti
of the University of Genoa.
We publish below an intervention by Professor Righetti at a seminar on “Apportionment of Risk in Maritime Law,” held at Aix-en-Provence from Sept. 9 to 11, 1976, inclusive, in which he claims that changes actually projected in rules governing sea carriers’ liability will increase prices and costs.
A historical foreword
The Hague Rules, 1921, adopted by the Brussels Convention of 1924, have changed the legal status of the sea carrier under bills of lading, imposing upon shipowners a precise liability and defining rigorously both their rights and immunities in place of the previous unlimited freedom to coerce the other party into contracting unfair terms. Although the Rules do not apply to charter-parties, some or all of their provisions may be and are usually incorporated in a charter-party by the so-called “Paramount Clause.”
That regime is the result of a “historical compromise” and has ruled the subject of maritime transportation for half a century. However, just as it has become really “universal” and the consequent allocation and apportionment of risks has been thoroughly scrutinised and clarified into the most detailed terms by a massive and constant jurisprudence a strong tendency has suddenly arisen to criticise it and to invoke a quite radical change in legal rules.
The reasons put forward by the critical innovators differed in nature, e.g. technical, economic, and juridical, but all were converging with a revolutionary aim—the adoption of a system of strict liability. Under the technical aspect, the stronger argument was with regard to progress and change in the structure and function of ships and transportation as well as the spreading of combined transport “door to door.” With regard to economics bitter criticism has been made of the dual system of marine insurance cover, while from the legal point of view the incoherency of the “compromise” system was censured.
A great deal of agreement has been reached on the basis of wanting a new system which imposes a strict (even an absolute) liability on sea carriers, and, consequently the abolition of all immunities, both substantial and procedural (such as the “excepted perils”), and further, a re-settlement of the insurance market—namely—the disappearance of direct goods insurance by cargo interests and enlargement of carriers’ liability cover which should have completely replaced the former.
I remember the Oxford Draft and the Genoa Draft (both of 1967) but I want to remind some of the learned friends I am so glad to meet again of what they still uphold or relate in the Genoa seminar of 1972, where the particular matters of
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