Gabriel, LLM (Maritime Law), Gujarat Maritime University, Gujarat
Introduction
Maritime adventure involves the aspect of allocation of risk and responsibility which further requires the division of rights and liabilities. Parties involved in the adventure which includes the carrier, shipper, receiver have the task of allocating the risk and responsibilities. The carriers most important risk being that of providing a seaworthy vessel for venturing into the sea. A seaworthy vessel is the basic and the most crucial aspect of the maritime trade as the vessel must be competent to encounter all the toils incidental to the maritime adventure. The advent of the concept of providing a sea worthy vessel goes back to the early 14th century period. The emergence of the concept that a vessel must be mandatorily sea worthy in nature became more prevalent due to the increase in cases of danger to human life and damage/loss to cargo carried on vessel. Hence legal aspect concerning liability of carrier saw a growth wherein the same is has been under governance of various regulations namely Rotterdam rules or the Hague or its amendment through the visby protocol, as well as the common law. the carrier under the HVR are mandatorily supposed to exercise due diligence the beginning and before the voyage commences, same is given in Article III (1). The liability of the carrier is understood as being limited to period of time specified that is “at the beginning” of and “before” the voyage, the reason could be assigned very well that the voyage once commences and ship is in the seas many unforeseen, as well as condition such as inherent risk, can be encountered which won't be really in its very nature under the control of the carrier. Moreover, the one criticism to the regimes existing that is the HVR is that the rules are more into favouring the carriers. Upon scrutiny we understand that the carrier’s obligation to provide a vessel that is seaworthy is mandatory in nature to be executed, there cannot be any deviation from the same. The interesting fact is that the provision concerning due diligence and sea worthiness has been removed from Hamburg regulation. Hamburg rules now puts forward new approach that the carrier can be made liable only based on fault involved, if the carrier is successful to prove that the damage or loss in spite of taking all the reasonable measure have occurred to avoid the same. It is understood that the venture of Hamburg rules is not massive or successful as none of the great maritime countries have accepted the same or to say ratified the same. Now here comes the better approach of all the rules existing, that is the approach adopted by the Rotterdam rule. Rotterdam rule supports the notion and promotes the idea that not only will the carrier be liable for not taking due diligence at the beginning and before the carriage causing it to fall under unseaworthiness. Rather he would be liable during the voyage in the sea as well. During the voyage in the sea it is carrier’s responsibility to make and keep the vessel seaworthy by taking all the due diligence required from him. Now with regards to this particular approach it is understood that a criticism is on the way to attack this idea, the same being that, the allocation of risk is not justified to the extend that there is a clear imbalance as to why the carrier alone must bear the risk through out the voyage and what will be the nature of the burden of proof when it comes to prove who is liable?. The interconnection and relation between the cargo owners as well as the carrier is under dilemma due to the fact that the risk allocated is not justified and the burden falls on to the carrier to a larger extend.
Under this chapter the comparative analysis is initiated, the comparison being that of the provisions of the Rotterdam rules and HVR along with the hamburg rules as well. Liability for providing sea worthy vessel along with the extension of the said liability is also discussed in form of comparison among the available rules.
Comments