MASTER EXAM ORAL QUESTIONS AND ANSWERS - LATEST QUESTIONS | Page 126

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its shown in classification cert.

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Ask C/O to conduct another stowaway search anticipating more stowaways.As a master deal with the stowaway politely and ask him for getting information such as name of the stowaway, the nationality of the stowaway, his travel documents if any. If he is not giving the travel documents have a thorough search for it in the area in which he was first sighted.Inform company, P&I club & all relevant parties

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In 1971 UNCTAD recommended that a new international conference be called under the united nations auspices. A new set of rules were prepared by the UNICITRAL and was adopted in hamburg in 1978, tehese rules are called Hamburg Rules, cma into force from 01st Jan 1992.

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The Hamburg Rules are an updated and more cargo-friendly version of the Hague and Hague-Visby Rules. They came into force on 1 November 1992. However, they have not been adopted by any of the major trading nations.

The Hague-Visby Rules attach to contracts covered by bills of lading; the Hamburg
Rules attach to all contracts of carriage by sea except charter parties. Therefore,
waybills will fall within the ambit of the Hamburg Rules, whereas they would
generally fall outside the scope of the Hague-Visby Rules.

Under Art 2(1) of the Hamburg Rules, all contracts of carriage by sea between
different states will be subject to their provisions if either:
%u2022 the port of loading is in a Contracting State; or
%u2022 the port of discharge, including an optional port of discharge that becomes an
actual port of discharge, is in a Contracting State; or
%u2022 the bill of lading, or other document evidencing the contract of carriage, is issued
in a Contracting State; or
%u2022 the bill of lading or other document evidencing the contract of carriage by
sea incorporates the Hamburg Rules or the legislation of any State giving effect
to them.
The major changes from the Hague-Visby regime are that the port of discharge is now significant and not only the port of loading, and contractual documents other than bills of lading are brought within the ambit of the Rules.

The Hague-Visby regime focuses on the liability of the carrier, which may be either a shipowner or a charterer, but not both simultaneously. Under the Hamburg Rules, the position is changed, for Art 10 subjects both the contractual carrier and the actual carrier to the Rules. Under Art 10(1), the contractual carrier remains responsible
for the part of the contract performed by another carrier (the actual carrier).

The actual carrier will be liable only for the part of the contract of carriage that it personally performs. This would cover other shipowners where the contracting carrier exercises a  contractual liberty to trans-ship. It would also cover a shipowner where a time charterers bill of lading is issued.

The Hague-Visby Rules apply only to contracts of carriage by sea. Their ambit is limited to the period starting with the commencement of loading and terminating with the completion of discharge. In contrast, Art 4(1) of the Hamburg Rules provides that:
The responsibility of the carrier for the goods . . . covers the period during which the carrier is in charge of the goods at the port of loading, during the carriage and at the port of discharge.
Therefore, the Hamburg Rules will extend to any period of storage at the port of
loading in the carrier%u2019s custody prior to actual loading and any equivalent period at the port of discharge prior to taking of delivery.

The Hamburg Rules dispense with the two-pronged liability scheme of the Hague-
Visby Rules in favour of a unitary system. Under Art 5, once the claimant can prove that the loss or damage took place while the goods were in the charge of the carrier, as defined by Art 4, the carrier will be presumed to be liable for the loss or damage.
Delay is treated as a separate head of liability under Art 5(1) and has its own special limitation figure in Art 6. The presumption of liability under Art 5 can be rebutted only if the carrier proves that he, his servants or agents took all measures that could reasonably be required to avoid the occurrence and its consequences. The exceptions
provided by Art IV(2) of the Hague-Visby Rules have no equivalent in the Hamburg
Rules. Consequently, a negligent carrier who could have relied on Art IV(2)(a) of the Hague and Hague-Visby Rules would no longer be able to escape liability under the Hamburg Rules.

The Hamburg Rules provide only two exceptions to the carrier who is unable to
rebut the presumption of fault.
1. Fire
Where goods are lost or damaged by fire, Art 5(4) provides that the carrier will be
liable only if the claimant can prove that the fire arose from the fault or neglect on the part of the carrier, its servants or agents.

2. Live animals
With carriage of live animals, the carrier is not liable under Art 5(5) for loss, damage or delay arising out of any special risk inherent in that kind of carriag. If the carrier can prove that the damage was caused by such a risk and that it complied with any special instructions given by the shipper, the burden of proof will shift to the claimant
to prove negligence on the part of the carrier. If it fails to discharge this burden, the carrier will escape liability.


Deck cargo
Unlike the position with the Hague and Hague-Visby Rules, deck cargo under the
Hamburg Rules is treated in exactly the same way as any other cargo in that its carriage cannot be taken outside the ambit of the Hamburg Rules. Article 9(1) provides that cargo may be carried on deck either in accordance with agreement with the shipper or
the usage of a particular trade, or if required by statutory rules or regulations.

Article 6(1)(a) provides a package limitation of 835 Special Drawing Right (SDR)) with an alternative of 2.5 units of account per kg of the gross weight of the goods. The claimant may choose whichever basis
yields the higher figure. The Hamburg Rules limit amount to a 25 per cent uplift of the equivalent Hague-Visby figures