United Nations Convention
on the Carriage of Goods by Sea ("Hamburg Rules")
(Hamburg, 31 March 1978)
PREAMBLE
THE STATES PARTIES TO THIS CONVENTION,
HAVING RECOGNIZED the desirability
of determining by agreement certain rules relating to the carriage of goods
by sea,
HAVING DECIDED to conclude a
convention for this purpose and have thereto agreed as follows:
PART I. GENERAL PROVISIONS
Article 1. Definitions
In this Convention:
1. "Carrier" means any person by whom or in
whose name a contract of carriage of goods by sea has been concluded with
a shipper.
2. "Actual carrier" means any person to whom
the performance of the carriage of the goods, or of part of the carriage,
has been entrusted by the carrier, and includes any other person to whom
such performance has been entrusted.
3. "Shipper" means any person by whom or in
whose name or on whose behalf a contract of carriage of goods by sea has
been concluded with a carrier, or any person by whom or in whose name or
on whose behalf the goods are actually delivered to the carrier in relation
to the contract of carriage by sea.
4. "Consignee" means the person entitled to
take delivery of the goods.
5. "Goods" includes live animals; where the
goods are consolidated in a container, pallet or similar article of transport
or where they are packed, goods includes such article of transport or packaging
if supplied by the shipper.
6. "Contract of carriage by sea" means any
contract whereby the carrier undertakes against payment of freight to carry
goods by sea from one port to another; however, a contract which involves
carriage by sea and also carriage by some other means is deemed to be a
contract of carriage by sea for the purposes of this Convention only in
so far as it relates to the carriage by sea.
7. "Bill of lading" means a document which
evidences a contract of carriage by sea and the taking over or loading
of the goods by the carrier, and by which the carrier undertakes to deliver
the goods against surrender of the document. A provision in the document
that the goods are to be delivered to the order of a named person, or to
order, or to bearer, constitutes such an undertaking.
8. "Writing" includes, inter alia,
telegram and telex.
Article 2. Scope of application
1. The provisions of this Convention are applicable
to all contracts of carriage by sea between two different States, if:
(a) the port of loading as
provided for in the contract of carriage by sea is located in a Contracting
State, or
(b) the port of discharge
as provided for in the contract of carriage by sea is located in a Contracting
State, or
(c) one of the optional ports
of discharge provided for in the contract of carriage by sea is the actual
port of discharge and such port is located in a Contracting State, or
(d) the bill of lading or
other document evidencing the contract of carriage by sea is issued in
a Contracting State, or
(e) the bill of lading or
other document evidencing the contract of carriage by sea provides that
the provisions of this Convention or the legislation of any State giving
effect to them are to govern the contract.
2. The provisions of this Convention are applicable
without regard to the nationality of the ship, the carrier, the actual
carrier, the shipper, the consignee or any other interested person.
3. The provisions of this Convention are not
applicable to charter-parties. However, where a bill of lading is issued
pursuant to a charter-party, the provisions of the Convention apply to
such a bill of lading if it governs the relation between the carrier and
the holder of the bill of lading, not being the charterer.
4. If a contract provides for future carriage
of goods in a series of shipments during an agreed period, the provisions
of this Convention apply to each shipment. However, where a shipment is
made under a charter-party, the provisions of paragraph 3 of this article
apply.
Article 3. Interpretation of the Convention
In the interpretation and application of the
provisions of this Convention regard shall be had to its international
character and to the need to promote uniformity.
PART II. LIABILITY OF THE CARRIER
Article 4. Period of responsibility
1. The responsibility of the carrier for the
goods under this Convention 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.
2. For the purpose of paragraph 1 of this
article, the carrier is deemed to be in charge of the goods
(a) from the time he has taken
over the goods from:
-
(i) the shipper, or a person acting on his behalf;
or
-
(ii) an authority or other third party to whom,
pursuant to law or regulations applicable at the port of loading, the goods
must be handed over for shipment;
(b) until the time he has
delivered the goods:
(i) by handing over the goods to
the consignee; or
(ii) in cases where the consignee
does not receive the goods from the carrier, by placing them at the disposal
of the consignee in accordance with the contract or with the law or with
the usage of the particular trade, applicable at the port of discharge;
or
(iii) by handing over the goods to
an authority or other third party to whom, pursuant to law or regulations
applicable at the port of discharge, the goods must be handed over.
3. In paragraphs 1 and 2 of this article, reference
to the carrier or to the consignee means, in addition to the carrier or
the consignee, the servants or agents, respectively of the carrier or the
consignee.
Article 5. Basis of liability
1. The carrier is liable for loss resulting
from loss of or damage to the goods, as well as from delay in delivery,
if the occurrence which caused the loss, damage or delay took place while
the goods were in his charge as defined in article 4, unless the carrier
proves that he, his servants or agents took all measures that could reasonably
be required to avoid the occurrence and its consequences.
2. Delay in delivery occurs when the goods
have not been delivered at the port of discharge provided for in the contract
of carriage by sea within the time expressly agreed upon or, in the absence
of such agreement, within the time which it would be reasonable to require
of a diligent carrier, having regard to the circumstances of the case.
3. The person entitled to make a claim for
the loss of goods may treat the goods as lost if they have not been delivered
as required by article 4 within 60 consecutive days following the expiry
of the time for delivery according to paragraph 2 of this article.
4. (a) The carrier is liable
(i) for loss of or damage to the
goods or delay in delivery caused by fire, if the claimant proves that
the fire arose from fault or neglect on the part of the carrier, his servants
or agents;
(ii) for such loss, damage or delay
in delivery which is proved by the claimant to have resulted from the fault
or neglect of the carrier, his servants or agents in taking all measures
that could reasonably be required to put out the fire and avoid or mitigate
its consequences.
(b) In case of fire on board
the ship affecting the goods, if the claimant or the carrier so desires,
a survey in accordance with shipping practices must be held into the cause
and circumstances of the fire, and a copy of the surveyors report shall
be made available on demand to the carrier and the claimant.
5. With respect to live animals, the carrier
is not liable for loss, damage or delay in delivery resulting from any
special risks inherent in that kind of carriage. If the carrier proves
that he has complied with any special instructions given to him by the
shipper respecting the animals and that, in the circumstances of the case,
the loss, damage or delay in delivery could be attributed to such risks,
it is presumed that the loss, damage or delay in delivery was so caused,
unless there is proof that all or a part of the loss, damage or delay in
delivery resulted from fault or neglect on the part of the carrier, his
servants or agents.
6. The carrier is not liable, except in general
average, where loss, damage or delay in delivery resulted from measures
to save life or from reasonable measures to save property at sea.
7. Where fault or neglect on the part of the
carrier, his servants or agents combines with another cause to produce
loss, damage or delay in delivery, the carrier is liable only to the extent
that the loss, damage or delay in delivery is attributable to such fault
or neglect, provided that the carrier proves the amount of the loss, damage
or delay in delivery not attributable thereto.
Article 6. Limits of liability
1. (a) The liability of the carrier
for loss resulting from loss of or damage to goods according to the provisions
of article 5 is limited to an amount equivalent to 835 units of account
per package or other shipping unit or 2.5 units of account per kilogram
of gross weight of the goods lost or damaged, whichever is the higher.
(b) The liability of the carrier
for delay in delivery according to the provisions of article 5 is limited
to an amount equivalent to two and a half times the freight payable for
the goods delayed, but not exceeding the total freight payable under the
contract of carriage of goods by sea.
(c) In no case shall the aggregate
liability of the carrier, under both subparagraphs (a) and (b)
of this paragraph, exceed the limitation which would be established under
subparagraph
(a) of this paragraph for total loss of the goods with
respect to which such liability was incurred.
2. For the purpose of calculating which amount
is the higher in accordance with paragraph 1 (a) of this article,
the following rules apply:
(a) Where a container, pallet
or similar article of transport is used to consolidate goods, the package
or other shipping units enumerated in the bill of lading, if issued, or
otherwise in any other document evidencing the contract of carriage by
sea, as packed in such article of transport are deemed packages or shipping
units. Except as aforesaid the goods in such article of transport are deemed
one shipping unit.
(b) In cases where the article
of transport itself has been lost or damaged, that article of transport,
if not owned or otherwise supplied by the carrier, is considered one separate
shipping unit.
3. Unit of account means the unit of account
mentioned in article 26.
4. By agreement between the carrier and the
shipper, limits of liability exceeding those provided for in paragraph
1 may be fixed.
Article 7. Application to non-contractual
claims
1. The defences and limits of liability provided
for in this Convention apply in any action against the carrier in respect
of loss of or damage to the goods covered by the contract of carriage by
sea, as well as of delay in delivery whether the action is founded in contract,
in tort or otherwise.
2. If such an action is brought against a
servant or agent of the carrier, such servant or agent, if he proves that
he acted within the scope of his employment, is entitled to avail himself
of the defences and limits of liability which the carrier is entitled to
invoke under this Convention.
3. Except as provided in article 8, the aggregate
of the amounts recoverable from the carrier and from any persons referred
to in paragraph 2 of this article shall not exceed the limits of liability
provided for in this Convention.
Article 8. Loss of right to limit responsibility
1. The carrier is not entitled to the benefit
of the limitation of liability provided for in article 6 if it is proved
that the loss, damage or delay in delivery resulted from an act or omission
of the carrier done with the intent to cause such loss, damage or delay,
or recklessly and with knowledge that such loss, damage or delay would
probably result.
2. Notwithstanding the provisions of paragraph
2 of article 7, a servant or agent of the carrier is not entitled to the
benefit of the limitation of liability provided for in article 6 if it
is proved that the loss, damage or delay in delivery resulted from an act
or omission of such servant or agent, done with the intent to cause such
loss, damage or delay, or recklessly and with knowledge that such loss,
damage or delay would probably result.
Article 9. Deck cargo
1. The carrier is entitled to carry the goods
on deck only if such carriage is in accordance with an agreement with the
shipper or with the usage of the particular trade or is required by statutory
rules or regulations.
2. If the carrier and the shipper have agreed
that the goods shall or may be carried on deck, the carrier must insert
in the bill of lading or other document evidencing the contract of carriage
by sea a statement to that effect. In the absence of such a statement the
carrier has the burden of proving that an agreement for carriage on deck
has been entered into; however, the carrier is not entitled to invoke such
an agreement against a third party, including a consignee, who has acquired
the bill of lading in good faith.
3. Where the goods have been carried on deck
contrary to the provisions of paragraph 1 of this article or where the
carrier may not under paragraph 2 of this article invoke an agreement for
carriage on deck, the carrier, notwithstanding the provisions of paragraph
1 of article 5, is liable for loss of or damage to the goods, as well as
for delay in delivery, resulting solely from the carriage on deck, and
the extent of his liability is to be determined in accordance with the
provisions of article 6 or article 8 of this Convention, as the case may
be.
4. Carriage of goods on deck contrary to express
agreement for carriage under deck is deemed to be an act or omission of
the carrier within the meaning of article 8.
Article 10. Liability of the carrier and
actual carrier
1. Where the performance of the carriage or
part thereof has been entrusted to an actual carrier, whether or not in
pursuance of a liberty under the contract of carriage by sea to do so,
the carrier nevertheless remains responsible for the entire carriage according
to the provisions of this Convention. The carrier is responsible, in relation
to the carriage performed by the actual carrier, for the acts and omissions
of the actual carrier and of his servants and agents acting within the
scope of their employment.
2. All the provisions of this Convention governing
the responsibility of the carrier also apply to the responsibility of the
actual carrier for the carriage performed by him. The provisions of paragraphs
2 and 3 of article 7 and of paragraph 2 of article 8 apply if an action
is brought against a servant or agent of the actual carrier.
3. Any special agreement under which the carrier
assumes obligations not imposed by this Convention or waives rights conferred
by this Convention affects the actual carrier only if agreed to by him
expressly and in writing. Whether or not the actual carrier has so agreed,
the carrier nevertheless remains bound by the obligations or waivers resulting
from such special agreement.
4. Where and to the extent that both the carrier
and the actual carrier are liable, their liability is joint and several.
5. The aggregate of the amounts recoverable
from the carrier, the actual carrier and their servants and agents shall
not exceed the limits of liability provided for in this Convention.
6. Nothing in this article shall prejudice
any right of recourse as between the carrier and the actual carrier.
Article 11. Through carriage
1. Notwithstanding the provisions of paragraph
1 of article 10, where a contract of carriage by sea provides explicitly
that a specified part of the carriage covered by the said contract is to
be performed by a named person other than the carrier, the contract may
also provide that the carrier is not liable for loss, damage or delay in
delivery caused by an occurrence which takes place while the goods are
in the charge of the actual carrier during such part of the carriage. Nevertheless,
any stipulation limiting or excluding such liability is without effect
if no judicial proceedings can be instituted against the actual carrier
in a court competent under paragraph 1 or 2 of article 21. The burden of
proving that any loss, damage or delay in delivery has been caused by such
an occurrence rests upon the carrier.
2. The actual carrier is responsible in accordance
with the provisions of paragraph 2 of article 10 for loss, damage or delay
in delivery caused by an occurrence which takes place while the goods are
in his charge.
PART III. LIABILITY OF THE SHIPPERS
Article 12. General rule
The shipper is not liable for loss sustained
by the carrier or the actual carrier, or for damage sustained by the ship,
unless such loss or damage was caused by the fault or neglect of the shipper,
his servants or agents. Nor is any servant or agent of the shipper liable
for such loss or damage unless the loss or damage was caused by fault or
neglect on his part.
Article 13. Special rules on dangerous
goods
1. The shipper must mark or label in a suitable
manner dangerous goods as dangerous.
2. Where the shipper hands over dangerous
goods to the carrier or an actual carrier, as the case may be, the shipper
must inform him of the dangerous character of the goods and, if necessary,
of the precautions to be taken. If the shipper fails to do so and such
carrier or actual carrier does not otherwise have knowledge of their dangerous
character:
(a) the shipper is liable
to the carrier and any actual carrier for the loss resulting from the shipment
of such goods, and
(b) the goods may at any time
be unloaded, destroyed or rendered innocuous, as the circumstances may
require, without payment of compensation.
3. The provisions of paragraph 2 of this article
may not be invoked by any person if during the carriage he has taken the
goods in his charge with knowledge of their dangerous character.
4. If, in cases where the provisions of paragraph
2, subparagraph
(b), of this article do not apply or may not be
invoked, dangerous goods become an actual danger to life or property, they
may be unloaded, destroyed or rendered innocuous, as the circumstances
may require, without payment of compensation except where there is an obligation
to contribute in general average or where the carrier is liable in accordance
with the provisions of article 5.
PART IV. TRANSPORT DOCUMENTS
Article 14. Issue of bill of lading
1. When the carrier or the actual carrier
takes the goods in his charge, the carrier must, on demand of the shipper,
issue to the shipper a bill of lading.
2. The bill of lading may be signed by a person
having authority from the carrier. A bill of lading signed by the master
of the ship carrying the goods is deemed to have been signed on behalf
of the carrier.
3. The signature on the bill of lading may
be in handwriting, printed in facsimile, perforated, stamped, in symbols,
or made by any other mechanical or electronic means, if not inconsistent
with the law of the country where the bill of lading is issued.
Article 15. Contents of bill of lading
1. The bill of lading must include, inter
alia, the following particulars:
(a) the general nature of
the goods, the leading marks necessary for identification of the goods,
an express statement, if applicable, as to the dangerous character of the
goods, the number of packages or pieces, and the weight of the goods or
their quantity otherwise expressed, all such particulars as furnished by
the shipper;
(b) the apparent condition
of the goods;
(c) the name and principal
place of business of the carrier;
(d) the name of the shipper;
(e) the consignee if named
by the shipper;
(f) the port of loading under
the contract of carriage by sea and the date on which the goods were taken
over by the carrier at the port of loading;
(g) the port of discharge
under the contract of carriage by sea;
(h) the number of originals
of the bill of lading, if more than one;
(i) the place of issuance
of the bill of lading;
(j) the signature of the carrier
or a person acting on his behalf;
(k) the freight to the extent
payable by the consignee or other indication that freight is payable by
him;
(l) the statement referred
to in paragraph 3 of article 23;
(m) the statement, if applicable,
that the goods shall or may be carried on deck;
(n) the date or the period
of delivery of the goods at the port of discharge if expressly agreed upon
between the parties; and
(o) any increased limit or
limits of liability where agreed in accordance with paragraph 4 of article
6.
2. After the goods have been loaded on board,
if the shipper so demands, the carrier must issue to the shipper a "shipped"
bill of lading which, in addition to the particulars required under paragraph
1 of this article, must state that the goods are on board a named ship
or ships, and the date or dates of loading. If the carrier has previously
issued to the shipper a bill of lading or other document of title with
respect to any of such goods, on request of the carrier the shipper must
surrender such document in exchange for a "shipped" bill of lading. The
carrier may amend any previously issued document in order to meet the shippers
demand for a "shipped" bill of lading if, as amended, such document includes
all the information required to be contained in a "shipped" bill of lading.
3. The absence in the bill of lading of one
or more particulars referred to in this article does not affect the legal
character of the document as a bill of lading provided that it nevertheless
meets the requirements set out in paragraph 7 of article 1.
Article 16. Bills of lading: reservations
and evidentiary effect
1. If the bill of lading contains particulars
concerning the general nature, leading marks, number of packages of pieces,
weight or quantity of the goods which the carrier or other person issuing
the bill of lading on his behalf knows or has reasonable grounds to suspect
do not accurately represent the goods actually taken over or, where a "shipped"
bill of lading is issued, loaded, or if he had no reasonable means of checking
such particulars, the carrier or such other person must insert in the bill
of lading a reservation specifying these inaccuracies, grounds of suspicion
or the absence of reasonable means of checking.
2. If the carrier or other person issuing
the bill of lading on his behalf fails to note on the bill of lading the
apparent condition of the goods, he is deemed to have noted on the bill
of lading that the goods were in apparent good condition.
3. Except for particulars in respect of which
and to the extent to which a reservation permitted under paragraph 1 of
this article has been entered:
(a) the bill of lading is
prima
facie evidence of the taking over or, where a "shipped" bill of lading
is issued, loading, by the carrier of the goods as described in the bill
of lading; and
(b) proof to the contrary
by the carrier is not admissible if the bill of lading has been transferred
to a third party, including a consignee, who in good faith has acted in
reliance on the description of the goods therein.
4. A bill of lading which does not, as provided
in paragraph 1, subparagraph (k), of article 15, set forth the freight
or otherwise indicate that freight is payable by the consignee or does
not set forth demurrage incurred at the port of loading payable by the
consignee, is prima facie evidence that no freight or such demurrage
is payable by him. However, proof to the contrary by the carrier is not
admissible when the bill of lading has been transferred to a third party,
including a consignee, who in good faith has acted in reliance on the absence
in the bill of lading of any such indication.
Article 17. Guarantees by the shipper
1. The shipper is deemed to have guaranteed
to the carrier the accuracy of particulars relating to the general nature
of the goods, their marks, number, weight and quantity as furnished by
him for insertion in the bill of lading. The shipper must indemnify the
carrier against the loss resulting from inaccuracies in such particulars.
The shipper remains liable even if the bill of lading has been transferred
by him. The right of the carrier to such indemnity in no way limits his
liability under the contract of carriage by sea to any person other than
the shipper.
2. Any letter of guarantee or agreement by
which the shipper undertakes to indemnify the carrier against loss resulting
from the issuance of the bill of lading by the carrier, or by a person
acting on his behalf, without entering a reservation relating to particulars
furnished by the shipper for insertion in the bill of lading, or to the
apparent condition of the goods, is void and of no effect as against any
third party, including a consignee, to whom the bill of lading has been
transferred.
3. Such a letter of guarantee or agreement
is valid as against the shipper unless the carrier or the person acting
on his behalf, by omitting the reservation referred to in paragraph 2 of
this article, intends to defraud a third party, including a consignee,
who acts in reliance on the description of the goods in the bill of lading.
In the latter case, if the reservation omitted relates to particulars furnished
by the shipper for insertion in the bill of lading, the carrier has no
right of indemnity from the shipper pursuant to paragraph 1 of this article.
4. In the case of intended fraud referred
to in paragraph 3 of this article, the carrier is liable, without the benefit
of the limitation of liability provided for in this Convention, for the
loss incurred by a third party, including a consignee, because he has acted
in reliance on the description of the goods in the bill of lading.
Article 18. Documents other than bills
of lading
Where a carrier issues a document other than
a bill of lading to evidence the receipt of the goods to be carried, such
a document is prima facie evidence of the conclusion of the contract
of carriage by sea and the taking over by the carrier of the goods as therein
described.
PART V. CLAIMS AND ACTIONS
Article 19. Notice of loss, damage or delay
1. Unless notice of loss or damage, specifying
the general nature of such loss or damage, is given in writing by the consignee
to the carrier not later than the working day after the day when the goods
were handed over to the consignee, such handing over is prima facie
evidence
of the delivery by the carrier of the goods as described in the document
of transport or, if no such document has been issued, in good condition.
2. Where the loss or damage is not apparent,
the provisions of paragraph 1 of this article apply correspondingly if
notice in writing is not given within 15 consecutive days after the day
when the goods were handed over to the consignee.
3. If the state of the goods at the time they
were handed over to the consignee has been the subject of a joint survey
or inspection by the parties, notice in writing need not be given of loss
or damage ascertained during such survey or inspection.
4. In the case of any actual or apprehended
loss or damage, the carrier and the consignee must give all reasonable
facilities to each other for inspecting and tallying the goods.
5. No compensation shall be payable for loss
resulting from delay in delivery unless a notice has been given in writing
to the carrier within 60 consecutive days after the day when the goods
were handed over to the consignee.
6. If the goods have been delivered by an
actual carrier, any notice given under this article to him shall have the
same effect as if it had been given to the carrier; and any notice given
to the carrier shall have effect as if given to such actual carrier.
7. Unless notice of loss or damage, specifying
the general nature of the loss or damage, is given in writing by the carrier
or actual carrier to the shipper not later than 90 consecutive days after
the occurrence of such loss or damage or after the delivery of the goods
in accordance with paragraph 2 of article 4, whichever is later, the failure
to give such notice is prima facie evidence that the carrier or
the actual carrier has sustained no loss or damage due to the fault or
neglect of the shipper, his servants or agents.
8. For the purpose of this article, notice
given to a person acting on the carriers or the actual carriers behalf,
including the master or the officer in charge of the ship, or to a person
acting on the shippers behalf is deemed to have been given to the carrier,
to the actual carrier or to the shipper, respectively.
Article 20. Limitation of actions
1. Any action relating to carriage of goods
under this Convention is time-barred if judicial or arbitral proceedings
have not been instituted within a period of two years.
2. The limitation period commences on the
day on which the carrier has delivered the goods or part thereof or, in
cases where no goods have been delivered, on the last day on which the
goods should have been delivered.
3. The day on which the limitation period
commences is not included in the period.
4. The person against whom a claim is made
may at any time during the running of the limitation period extend that
period by a declaration in writing to the claimant. This period may be
further extended by another declaration or declarations.
5. An action for indemnity by a person held
liable may be instituted even after the expiration of the limitation period
provided for in the preceding paragraphs if instituted within the time
allowed by the law of the State where proceedings are instituted. However,
the time allowed shall not be less than 90 days commencing from the day
when the person instituting such action for indemnity has settled the claim
or has been served with process in the action against himself.
Article 21. Jurisdiction
1. In judicial proceedings relating to carriage
of goods under this Convention the plaintiff, at his option, may institute
an action in a court which according to the law of the State where the
court is situated, is competent and within the jurisdiction of which is
situated one of the following places:
(a) the principal place of
business or, in the absence thereof, the habitual residence of the defendant;
or
(b) the place where the contract
was made, provided that the defendant has there a place of business, branch
or agency through which the contract was made; or
(c) the port of loading or
the port of discharge; or
(d) any additional place designated
for that purpose in the contract of carriage by sea.
2. (a) Notwithstanding the preceding provisions
of this article, an action may be instituted in the courts of any port
or place in a Contracting State at which the carrying vessel or any other
vessel of the same ownership may have been arrested in accordance with
applicable rules of the law of that State and of international law. However,
in such a case, at the petition of the defendant, the claimant must remove
the action, at his choice, to one of the jurisdictions referred to in paragraph
1 of this article for the determination of the claim, but before such removal
the defendant must furnish security sufficient to ensure payment of any
judgement that may subsequently be awarded to the claimant in the action.
(b) All questions relating
to the sufficiency or otherwise of the security shall be determined by
the court of the port or place of the arrest.
3. No judicial proceedings relating to carriage
of goods under this Convention may be instituted in a place not specified
in paragraph 1 or 2 of this article. The provisions of this paragraph do
not constitute an obstacle to the jurisdiction of the Contracting States
for provisional or protective measures.
4. (a) Where an action has been instituted
in a court competent under paragraphs 1 or 2 of this article or where judgement
has been delivered by such a court, no new action may be started between
the same parties on the same grounds unless the judgement of the court
before which the first action was instituted is not enforceable in the
country in which the new proceedings are instituted;
(b) For the purpose of this
article, the institution of measures with a view to obtaining enforcement
of a judgement is not to be considered as the starting of a new action;
(c) For the purpose of this
article, the removal of an action to a different court within the same
country, or to a court in another country, in accordance with paragraph
2 (a) of this article, is not to be considered as the starting of
a new action.
5. Notwithstanding the provisions of the preceding
paragraphs, an agreement made by the parties, after a claim under the contract
of carriage by sea has arisen, which designates the place where the claimant
may institute an actions, is effective.
Article 22. Arbitration
1. Subject to the provisions of this article,
parties may provide by agreement evidenced in writing that any dispute
that may arise relating to carriage of goods under this Convention shall
be referred to arbitration.
2. Where a charter-party contains a provision
that disputes arising thereunder shall be referred to arbitration and a
bill of lading issued pursuant to the charter-party does not contain special
annotation providing that such provision shall be binding upon the holder
of the bill of lading, the carrier may not invoke such provision as against
a holder having acquired the bill of lading in good faith.
3. The arbitration proceedings shall, at the
option of the claimant, be instituted at one of the following places:
(a) a place in a State within
whose territory is situated:
(i) the principal place of business
of the defendant or, in the absence thereof, the habitual residence of
the defendant; or
(ii) the place where the contract
was made, provided that the defendant has there a place of business, branch
or agency through which the contract was made; or
(iii) the port of loading or the
port of discharge; or
(b) any place designated for
that purpose in the arbitration clause or agreement.
4. The arbitrator or arbitration tribunal shall
apply the rules of this Convention.
5. The provisions of paragraphs 2 and 4 of
this article are deemed to be part of every arbitration clause or agreement,
and any term of such clause or agreement which is inconsistent therewith
is null and void.
6. Nothing in this article affects the validity
of an agreement relating to arbitration made by the parties after the claim
under the contract of carriage by sea has arisen.
PART VI. SUPPLEMENTARY PROVISIONS
Article 23. Contractual stipulations
1. Any stipulation in a contract of carriage
by sea, in a bill of lading, or in any other document evidencing the contract
of carriage by sea is null and void to the extent that it derogates, directly
or indirectly, from the provisions of this Convention. The nullity of such
a stipulation does not affect the validity of the other provisions of the
contract or document of which it forms a part. A clause assigning benefit
of insurance of goods in favour of the carrier, or any similar clause,
is null and void.
2. Notwithstanding the provisions of paragraph
1 of this article, a carrier may increase his responsibilities and obligations
under this Convention.
3. Where a bill of lading or any other document
evidencing the contract of carriage by sea is issued, it must contain a
statement that the carriage is subject to the provisions of this Convention
which nullify any stipulation derogating therefrom to the detriment of
the shipper or the consignee.
4. Where the claimant in respect of the goods
has incurred loss as a result of a stipulation which is null and void by
virtue of the present article, or as a result of the omission of the statement
referred to in paragraph 3 of this article, the carrier must pay compensation
to the extent required in order to give the claimant compensation in accordance
with the provisions of this Convention for any loss of or damage to the
goods as well as for delay in delivery. The carrier must, in addition,
pay compensation for costs incurred by the claimant for the purpose of
exercising his right, provided that costs incurred in the action where
the foregoing provision is invoked are to be determined in accordance with
the law of the State where proceedings are instituted.
Article 24. General average
1. Nothing in this Convention shall prevent
the application of provisions in the contract of carriage by sea or national
law regarding the adjustment of general average.
2. With the exception of article 20, the provisions
of this Convention relating to the liability of the carrier for loss of
or damage to the goods also determine whether the consignee may refuse
contribution in general average and the liability of the carrier to indemnify
the consignee in respect of any such contribution made or any salvage paid.
Article 25. Other conventions
1. This Convention does not modify the rights
or duties of the carrier, the actual carrier and their servants and agents
provided for in international conventions or national law relating to the
limitation of liability of owners of seagoing ships.
2. The provisions of articles 21 and 22 of
this Convention do not prevent the application of the mandatory provisions
of any other multilateral convention already in force at the date of this
Convention relating to matters dealt with in the said articles, provided
that the dispute arises exclusively between parties having their principal
place of business in States members of such other convention. However,
this paragraph does not affect the application of paragraph 4 of article
22 of this Convention.
3. No liability shall arise under the provisions
of this Convention for damage caused by a nuclear incident if the operator
of a nuclear installation is liable for such damage:
(a) under either the Paris
Convention of 29 July 1960 on Third Party Liability in the Field of Nuclear
Energy as amended by the Additional Protocol of 28 January 1964, or the
Vienna Convention of 21 May 1963 on Civil Liability for Nuclear Damage,
or
(b) by virtue of national law governing
the liability for such damage, provided that such law is in all respects
as favourable to persons who may suffer damage as is either the Paris Convention
or the Vienna Convention.
4. No liability shall arise under the provisions
of this Convention for any loss of or damage to or delay in delivery of
luggage for which the carrier is responsible under any international convention
or national law relating to the carriage of passengers and their luggage
by sea.
5. Nothing contained in this Convention prevents
a Contracting State from applying any other international convention which
is already in force at the date of this Convention and which applies mandatorily
to contracts of carriage of goods primarily by a mode of transport other
than transport by sea. This provision also applies to any subsequent revision
or amendment of such international convention.
Article 26. Unit of account
1. The unit of account referred to in article
6 of this Convention is the special drawing right as defined by the International
Monetary Fund. The amounts mentioned in article 6 are to be converted into
the national currency of a State according to the value of such currency
at the date of judgement or the date agreed upon by the parties. The value
of a national currency, in terms of the special drawing right, of a Contracting
State which is a member of the International Monetary Fund is to be calculated
in accordance with the method of valuation applied by the International
Monetary Fund in effect at the date in question for its operations and
transactions. The value of a national currency, in terms of the special
drawing right, of a Contracting State which is not a member of the International
Monetary Fund is to be calculated in a manner determined by that State.
2. Nevertheless, those States which are not
members of the International Monetary Fund and whose law does not permit
the application of the provisions of paragraph 1 of this article may, at
the time of signature, or at the time of ratification, acceptance, approval
or accession or at any time thereafter, declare that the limits of liability
provided for in this Convention to be applied in their territories shall
be fixed as 12,500 monetary units per package or other shipping unit or
37.5 monetary units per kilogram of gross weight of the goods.
3. The monetary unit referred to in paragraph
2 of this article corresponds to sixty-five and a half milligrams of gold
of millesimal fineness nine hundred. The conversion of the amounts referred
to in paragraph 2 into the national currency is to be made according to
the law of the State concerned.
4. The calculation mentioned in the last sentence
of paragraph 1 and the conversion mentioned in paragraph 3 of this article
is to be made in such a manner as to express in the national currency of
the Contracting State as far as possible the same real value for the amounts
in article 6 as is expressed there in units of account. Contracting States
must communicate to the depositary the manner of calculation pursuant to
paragraph 1 of this article, or the result of the conversion mentioned
in paragraph 3 of this article, as the case may be, at the time of signature
or when depositing their instruments of ratification, acceptance, approval
or accession, or when availing themselves of the option provided for in
paragraph 2 of this article and whenever there is a change in the manner
of such calculation or in the result of such conversion.
PART VII. FINAL CLAUSES
Article 27. Depositary
The Secretary-General of the United Nations
is hereby designated as the depositary of this Convention.
Article 28. Signature, Ratification, Acceptance,
Approval, Accession
1. This Convention is open for signature by
all States until 30 April 1979 at the Headquarters of the United Nations,
New York.
2. This Convention is subject to ratification,
acceptance or approval by the signatory States.
3. After 30 April 1979, this Convention will
be open for accession by all States which are not signatory States.
4. Instruments of ratification, acceptance,
approval and accession are to be deposited with the Secretary-General of
the United Nations.
Article 29. Reservations
No reservations may be made to this Convention.
Article 30. Entry into force
1. This Convention enters into force on the
first day of the month following the expiration of one year from the date
of deposit of the twentieth instrument of ratification, acceptance, approval
or accession.
2. For each State which becomes a Contracting
State to this Convention after the date of the deposit of the twentieth
instrument of ratification, acceptance, approval or accession, this Convention
enters into force on the first day of the month following the expiration
of one year after the deposit of the appropriate instrument on behalf of
that State.
3. Each Contracting State shall apply the
provisions of this Convention to contracts of carriage by sea concluded
on or after the date of the entry into force of this Convention in respect
of that State.
Article 31. Denunciation of other conventions
1. Upon becoming a Contracting State to this
Convention, any State Party to the International Convention for the Unification
of certain Rules relating to Bills of Lading signed at Brussels on 25 August
1924 (1924 Convention) must notify the Government of Belgium as the depositary
of the 1924 Convention of its denunciation of the said Convention with
a declaration that the denunciation is to take effect as from the date
when this Convention enters into force in respect of that State.
2. Upon the entry into force of this Convention
under paragraph 1 of article 30, the depositary of this Convention must
notify the Government of Belgium as the depositary of the 1924 Convention
of the date of such entry into force, and of the names of the Contracting
States in respect of which the Convention has entered into force.
3. The provisions of paragraphs 1 and 2 of
this article apply correspondingly in respect of States Parties to the
Protocol signed on 23 February 1968 to amend the International Convention
for the Unification of certain Rules relating to Bills of Lading signed
at Brussels on 25 August 1924.
4. Notwithstanding article 2 of this Convention,
for the purposes of paragraph 1 of this article, a Contracting State may,
if it deems it desirable, defer the denunciation of the 1924 Convention
and of the 1924 Convention as modified by the 1968 Protocol for a maximum
period of five years from the entry into force of this Convention. It will
then notify the Government of Belgium of its intention. During this transitory
period, it must apply to the Contracting States this Convention to the
exclusion of any other one.
Article 32. Revision and amendment
1. At the request of not less than one third
of the Contracting States to this Convention, the depositary shall convene
a conference of the Contracting States for revising or amending it.
2. Any instrument of ratification, acceptance,
approval or accession deposited after the entry into force of an amendment
to this Convention is deemed to apply to the Convention as amended.
Article 33. Revision of the limitation
amounts and unit of account or monetary unit
1. Notwithstanding the provisions of article
32, a conference only for the purpose of altering the amount specified
in article 6 and paragraph 2 of article 26, or of substituting either or
both of the units defined in paragraphs 1 and 3 of article 26 by other
units is to be convened by the depositary in accordance with paragraph
2 of this article. An alteration of the amounts shall be made only because
of a significant change in their real value.
2. A revision conference is to be convened
by the depositary when not less than one fourth of the Contracting States
so request.
3. Any decision by the conference must be
taken by a two-thirds majority of the participating States. The amendment
is communicated by the depositary to all the Contracting States for acceptance
and to all the States signatories of the Convention for information.
4. Any amendment adopted enters into force
on the first day of the month following one year after its acceptance by
two thirds of the Contracting States. Acceptance is to be effected by the
deposit of a formal instrument to that effect with the depositary.
5. After entry into force of an amendment
a Contracting State which has accepted the amendment is entitled to apply
the Convention as amended in its relations with Contracting States which
have not within six months after the adoption of the amendment notified
the depositary that they are not bound by the amendment.
6. Any instrument of ratification, acceptance,
approval or accession deposited after the entry into force of an amendment
to this Convention is deemed to apply to the Convention as amended.
Article 34. Denunciation
1. A Contracting State may denounce this Convention
at any time by means of a notification in writing addressed to the depositary.
2. The denunciation takes effect on the first
day of the month following the expiration of one year after the notification
is received by the depositary. Where a longer period is specified in the
notification, the denunciation takes effect upon the expiration of such
longer period after the notification is received by the depositary.
Done at Hamburg, this thirty-first day of
March, one thousand nine hundred and seventy-eight, in a single original,
of which the Arabic, Chinese, English, French, Russian and Spanish texts
are equally authentic. |