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active consideration by the CMI with the hope that a unified scheme can be made effective world-wide. Now is therefore not the time for one of the major trading nations to act independently. We would therefore be opposed to these proposals at this stage and, if asked to give testimony before a Congressional committee, would voice this opposition.
We would also be opposed to these proposals on their merits; we are not convinced that any small adjustments to the rules produces any long-term benefit. The search for equity is an illusion in this context since both parties are invariably insured and the point at issue concerns only the apportionment of the cost of insurance. From this perspective clarity is the watchword: the existing rules should not be abandoned until a globally unified scheme can be introduced. If new law is introduced in the USA alone we would predict no longterm benefit but considerable short-term confusion to the benefit of no-one but lawyers.
I hope these comments are helpful.
INTERNATIONAL CHAMBER OF SHIPPING
London ECIM WEB
Fax: +44 171 417 8877
29 March 1996
Mr. Chester D. Hooper
the United States
Dear Mr. Hooper
ICS members have followed the progress of your Association's Carriage of Goods Committee proposals to revise COGSA with growing concern.
When viewed in an international context, the proposals have the potential to seriously undermine international uniformity of the law relating to the carriage of goods by sea.
As you know it has been suggested that there is already an unacceptably high degree of non-uniformity of this law and the CMI has formed an International Sub-Committee to consider whether something can be done to remedy the situation. ICS is participating as an observer in the current CMI discussions which your Association and other national maritime law associations are actively engaged in. We would urge your Association to defer its decision in relation to the Carriage of Goods Committee's proposals until the outcome of the CMI discussions is know.
ICS believes that while the current international situation is not ideal, the level of non-uniformity has been overstated. In practice the increasing number of different legal regimes has not resulted in the level of non-uniformity suggested. The world's major maritime nations have adopted the Hague-Visby Rules and the majority of the world's carriers contractually incorporate the Hague-Visby Rules in their contracts of carriage.
All of the “hybrid” national/regional regimes which have emerged in the past few years are firmly Hague-Visby based. We understand that it was also the intention of your Association to produce a Hague-Visby based revised COGSA. In the main your proposals would achieve this but they depart from the current international trend in the fundamentally important area of carrier's liability.
The Nordic countries' Maritime Codes, while abandoning the traditional Hague Rules Article 4 rule 2 “catalogue” of defences, have expressly retained the carrier's defence of negligent navigation or management - the "nautical fault defence" (see for example Section 26 of the Finnish Maritime Code, Chapter 13).
The Maritime Code of the People's Republic of China, while incorporating a number of Hamburg Rules provisions and shortening the catalogue of defences, has expressly retained the nautical fault defence (see Chapter IV, Article 51).
In a similar exercise to your own, the Australian Cargo Liability Working Group has recommended to the Australian Government that a number of changes be made to Australian COGSA. The Working Group has not recommended any tinkering with the catalogue of defence. The Working Group did recommend that in international discussions Australia should support the abolition or partial abolition of the nautical fault defence, but only if there was clear international support for such a move by Australia's major trading partners.
There was no recommendation to abolish the nautical fault defence in Australia's national law.
ICS is of the view that any amendment to the central liability provisions of the Hague-Visby regime is likely to cause severe disruption and increased litigation. Furthermore, proponents of the Hamburg Rules could argue that the US proposals represented a significant step away from the Hague-Visby regime and a move towards US acceptance of the Hamburg Rules.
ICS firmly believes that any national/regional initiatives in this area are misguided and in conflict with the quest for international uniformity of the regulation of shipping. While we appreciate that the Carriage of Goods Committee's proposals are the result of several years' concentrated effort, and many of the recommendations are sensible and well considered, the proposal to abolish the nautical fault defence is totally unacceptable to us and we must therefore register our firm opposition to the package as a whole. Even though it may be unrealistic to expect US ratification of the Visby Protocol, in our view new US legislation in this area should be shaped around the provisions of that Protocol to ensure that the US remains in the mainstream of trading nations.
We have conferred with the Baltic & International Maritime Council (BIMCO) which has requested that we convey to you its full support for the views expressed herein.
We would be grateful if you could arrange for this letter to be circulated to your membership in advance of your May meeting.
cc: Michael Marks Cohen, Burlingham Underwood LLP
MARITIME LAW ASSOCIATION OF THE UNITED STATES
Committee on Carriage of Goods PROPOSED REVISIONS TO THE CARRIAGE OF GOODS BY SEA ACT
April 2, 1996
Michael J. Ryan
This report is by way of “dissent” to allow the full membership of the Committee on the Carriage of Goods as well as the full membership of the Association to consider certain aspects of the draft proposed which I submit require clarification.
Initially, I applaud the efforts of the Committee, its Chairmen who guided this effort and those who gave their time and input to the project. In many ways, the draft corrects situations (aberrations?) in need of correction as well as includes provisions to bring COGSA into the 90's. I strongly believe that COGSA should be updated and my participation with the Study Group and as a member of the Committee had this in mind.
I believe one of the basic purposes of the effort was to modernize; not to dramatically change. The cornerstone of the Hague Rules and COGSA (along with the preceding Harter Act) was to establish a regime with respect to common carriage where the obligations and rights of the parties to the venture (common carriage) would have a standard regime where each would know where the other stood. The touch stone of who was a carrier was based on the issuance of a bill of lading (i.e., a contract).
At the same time, the Hague Rules and COGSA made it clear that they did not apply to charter parties. Simply stated, neither the Hague Rules nor COGSA were to interfere with private carriage or contract (with the caveat that a bill of lading issued in a charter situation would be governed by the Rules or the Act).
While the Rules and COGSA based responsibility and rights on the contract issued, the proposed amendments go beyond contract and would include responsibilities and rights based upon participation. It is this aspect which I submit requires further consideration and clarification lest its broadness be literally interpreted to include private carriage, making parties who never intended to undertake the responsibility of common carriers subject to the Act. As a practical matter, many charter parties today include COGSA by reference; however, not all do. It is a matter of choice which should remain a matter of choice in private carriage.
The proposed amendment in Section 1(a) (i) defines "carrier” as including a contracting carrier, performing carrier or ocean carrier. Contracting carriers are simple enough; however, “performing carriers” in its emphasis on participation is, to say the least, extremely broad and perhaps too broad.
The effort initially considered a broad base regime which would include everyone involved in an intermodal movement. The railroads and truckers opted out (Section 1(a) (v) and the explanatory commentary was changed from all to more (substantive changes to Final Report, page 3). (Query: the proposed draft makes no mention of air carriage although transportation by air can and has been part of an intermodal movement. Should not an air carrier also be excluded when acting as an air carrier?)
It is submitted that the definition of “performing carrier" by the following language, perhaps unwittingly, can be read to include a private contract party merely on the basis of what it does or is.
****including any party that performs or undertakes to perform or procures to be performed any incidental service to facilitate the carriage of goods, regardless of whether it is a party to, identified in, or has legal responsibility under the contract of carriage."
The use of the term "incidental service to facilitate the carriage of goods” may be literally read to include almost anyone who comes close to the deal. For example, the proposed clause is not specific that participants to the transportation are limited to just those working for the contracting carrier or performing carrier. It could be read to cover those whose participation is incidental to the transportation of the goods.
Packers are specifically mentioned as included; however, no specification as to whether these are packers employed by the shipper or by the carrier. In either case, it would seem somewhat anomalous that a packer (whether acting for the shipper or the carrier) would be entitled to a complete defense of “insufficiency of packing" (Section 4(2)(n)). The proposed amendments would, literally, afford a packer working for the carrier side a defense for his own negligence. It is without question that this defense has always been intended to cover the fault of the shipper's packer over which a carrier had no control.
By the same token, if the clause can be broadly read and a shipper's packer may be included as performing work incidental to facilitate the carriage of the goods (a package has been defined as a bundle put up for transportation), could the clause be read for the benefit of a negligent shipper's packer? Obviously, this was not intended nor should this be the result.
Nevertheless, it is submitted that lawyers and judges read words of statutes as written and, if they are subject to interpretation one way or another, the lawyer will argue to his client's advantage and the judge may well be persuaded on the basis that statutes are supposed to mean what they say. Therefore, statutes should say what they mean.
The term “carrier” also include “ocean carrier" which is defined as a “performing carrier” who owns, operates or charters a vessel. Again, “performing carrier" includes those who procure to be performed any incidental service to facilitate the carriage of goods, regardless of whether it is a party to, identified in, or has legal responsibility under the contract of carriage.
The term “charter” makes no distinction between bareboat charter, time charter, voyage charter, space charter or cross charter. Aside from the bareboat charter situation, a time charterer, voyage charterer, etc., does not control the vessel by way of maintenance, repair, crew manning, equipment, etc. Such is the responsibility of the owner and charters will usually contain a warranty by the owner that he will maintain the vessel in seaworthy condition and will be