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A reprint of 18 Houston Journal of International Law, p.609 (1996) by Professor Michael Sturley of the University of Texas on changes and suggestions for changes regarding the new Carriage of Goods by Sea Act

Houston Journal of INTERNATIONAL LAW

VOLUME 18

SPRING 1996

NUMBER 3

ARTICLES
PROPOSED AMENDMENTS TO THE CARRIAGE OF GOODS BY SEA ACT

Michael F. Sturley
RECENT DEVELOPMENTS IN ADMIRALTY LAW IN THE UNITED STATES
SUPREME COURT, THE FIFTH CIRCUIT, AND THE ELEVENTH CIRCUIT

William L. Garwood

Kenneth G. Engerrand
COGSA OR HAGUE-Visby: Carco DAMAGES IN INTERNATIONAL

SHIPMENTS
Trevor R. Jefferies

ESSAYS
FLOATING BACK & FORTH WITH FEDERALISM: REMOVAL AND REMAND

POR PROCTORS

Lynn N. Hughes
OLD WINE INTO New BOTTLES AND OLD WINE INTO New BOTTLES

REVISITED
Gus A. Schill, Jr.

COMMENTS
THE ENFORCEMENT OF EUROPEAN UNION Law: THE ROLE OF THE
EUROPEAN COURT OF JUSTICE AND THE COURT'S LATEST CHALLENGE

Lisa Borgfeld White
AMERICA'S MINORITIES ARE SHOWN THE “BACK DOOR"... AGAIN:
THE DISCRIMINATORY IMPACT OF THE IMMIGRATION REFORM AND

CONTROL ACT
Sarah M. Kendall

CASENOTE
MIV SKY REEFER: CLEAR SAILING FOR FOREIGN ARBITRATION

CLAUSES UNDER COGSA

Christian B. Miller

BOOK REVIEW
WHO SHOULD WE TREAT? Law, PATIENTS AND RESOURCES IN

THE N.H.S.

Mary Anne Bobinski
CUMULATIVE INDEX VOLUMES 1-18

1

HOUSTON JOURNAL

OF
INTERNATIONAL LAW

VOLUME 18

SPRING 1996

NUMBER 3

PROPOSED AMENDMENTS TO THE
CARRIAGE OF GOODS BY SEA ACT*

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III. THE PROPOSAL

A. The "Tackle-to-TackleLimitation
B. Domestic Trade ..
C. Bills of Lading
D. Deck Carriage and Live Animals
E. The Navigational Fault Exception
F. The Fire Exception

621 622 625 627 628 629 632

* An earlier version of this article appeared in a publication prepared for the Fourth Annual Admiralty and Maritime Conference of the University of Texas School of Law that took place on September 29, 1995. All rights reserved. This article also draws heavily on the Revised Final Report discussed here.

† Stanley D. and Sandra J. Rosenberg Centennial Professor, University of Texas Law School. B.A., J.D., Yale; M.A. (Jurisprudence), Oxford.

I served as the Reporter for the Ad Hoc Liability Rules Study Group and the Ad Hoc Review Committee, whose work is discussed here. The views expressed in this article, however, are my own, and have not been approved by the other members of the Study Group, the Review Committee, the Committee on the Carriage of Goods (CoCoG), or by the Maritime Law Association of the United States (MLA). I am grateful to Samuel R. Askew for his valuable research assistance.

609

610 HOUSTON JOURNAL OF INTERNATIONAL LAW

(Vol. 18:609

G. Unit Limitation

634 1. The Visby and Hamburg Solutions

635 2. The Proposed Package Limitation, Weight Limitation, and Container Clause

636 3. "Unbreakable" Unit Limitation

637 H. The "HimalayaProblem

640 1. Suits Outside of COGSA

643 J. Admiralty Jurisdiction

644 K. Qualifying Statements

645 L. Deviation

653 M. Service Contracts

655 N. Forum Selection Clauses

656 0. The Pomerene Act

659

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In 1936, the United States adopted the Carriage of Goods by Sea Act (COGSA),' which is the domestic enactment of a 1924 international convention commonly known as the Hague Rules. The Hague Rules, in turn, were based on a 1910 Canadian statute which was itself directly modeled on the United States' 1893 Harter Act.* COGSA, the Hague Rules, the Cana

1. Carriage of Goods by Sea Act (COGSA), ch. 229, 49 Stat. 1207 (1936) (codified as amended at 46 U.S.C. app. $8 1300–1315 (1994)). For the history of the U.S. Carriage of Goods by Sea Act (COGSA) and its ratification, see Michael F. Sturley, The History of COGSA and the Hague Rules, 22 J. MAR. L. & COM. 1, 36-55 (1991) (hereinafter Sturley, History).

2. Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, Aug. 25, 1924, 51 Stat. 233, 120 L.N.T.S. 155, reprinted in 6 BENEDICT ON ADMIRALTY 1-2.1 (Frank L. Wiswall, Jr. ed., 7th ed. 1996) (hereinafter Hague Rules). For the history of the Hague Rules, see Sturley, History, supra note 1, at 18–32.

3. Water Carriage of Goods Act, 1910, 9 & 10 Edw. 7, ch. 61 (Can.). For a brief history of the Canadian statute, see Sturley, History, supra note 1, at 16–17.

4. Harter Act, ch. 105, $881-196; 27 Stat. 445-46 (1893) (codified as amended at 46 U.S.C. app. $8 190-196 (1988)). For the history of the Harter 1996]

PROPOSED AMENDMENTS TO COGSA

611

dian statute, and the Harter Act were all designed to allocate financial responsibility for cargo loss or damage that occurs during ocean transportation."

In the 1920s and 1930s, COGSA and the Hague Rules were a major improvement in commercial maritime law. The commercial world, however, has changed significantly in the intervening years.' COGSA has kept pace remarkably well, considering its age, but there are areas where it is simply inadequate for modern needs. Most significantly, COGSA did not anticipate the so-called "container revolution," in which the industry moved from traditional "break bulk” methods to the wide-spread use of large, metal containers measuring eight feet by eight feet by up to forty feet.

Efforts to update the Hague Rules began in the late 1950s. In 1968, a diplomatic conference completed the Visby Protocol,"o which amends the Hague Rules in several significant respects and addresses some of the specific problems that have arisen." The Hague-Visby Rules," the name given to the Hague Rules as amended by the Visby Protocol and the

8

Act, see Joseph C. Sweeney, Happy Birthday, Harter: A Reappraisal of the Harter Act on its 100th Anniversary, 24 J. MAR. L. & COM. 1 (1993).

5. 1 LEGISLATIVE HISTORY OF THE CARRIAGE OF GOODS BY SEA ACT AND THE TRAVAUX PRÉPARATOIRES OF THE HAGUE RULES 3 (Michael F. Sturley ed., Carol Boyle trans., 1990) (hereinafter LEGISLATIVE HISTORY).

6. See Sturley, History, supra note 1, at 5-10.
7. Id. at 57.
8. See infra notes 138–140 and accompanying text.

9. See Conflicts of Law: Report of the International Sub-Committee, in INTERNATIONAL MARITIME COMM., XXIVTH CONFERENCE-RIJEKA 134, 134-40 (1959).

10. Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, Feb. 23, 1968, 1977 Gr. Brit. T.S. No. 83 (Cmnd. 6944) (entered into force June 23, 1977), reprinted in 6 BENEDICT ON ADMIRALTY, supra note 2, at 1—25 (hereinafter Visby Protocol). For a discussion of the Visby Amendments, see Anthony Diamond, The Hague-Visby Rules, 1978 LLOYD'S MAR. & COM. L.Q. 225; Benjamin W. Yancey, The Carriage of Goods: Hague, COGSA, Visby, and Hamburg, 57 TUL. L. Rev. 1238, 1248 (1983); THE HAGUE-VISBY RULES AND THE CARRIAGE OF GOODS BY SEA ACT, 1971 (Lloyd's of London Press Seminar 1977).

11. See, e.g., Yancey, supra note 10, at 1246-49 (discussing provisions that address the limitation of liability for servants or agents of carriers and the monetary and weight limitations).

12. The Hague-Visby Rules are reprinted in a number of sources, including the Australian Carriage of Goods by Sea Act 1991, no. 160, sched. 1 (Austl.).

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