The rights and immunities of the carrier under the Carriage of Goods by Sea Act 1954 as amended till 1983, and proposals for reform

Abstract

Carriage of Goods by Sea, in particular, the rights and immunities of the carrier is but an aspect of Maritime Law which generates litigation. Attempts have constantly been made to create some form of legal uniformity within the area of Carriage of Goods by Sea, on an international level. Although the Hague Rules were successful, conditions, time and progress in the area necessitated a modernisation of such Rules. This brought about the Hague Visby Rules. The latest International Convention on Carriage of Goods by Sea is the Hamburg Rules (1978). Notwithstanding the fact that the Rules intended to replace its predecessors and promote uniformity, these on the contrary, created a great deal of uncertainty in the shipping industry. The urge for a comprehensive and unambiguous set of rules governing the rights and immunities of the carrier was strongly felt. Dissatisfaction, with all international regimes on the matter, led to a number of countries adopting or attempting to adopt their own law on Carriage of Goods by Sea, such as Australia, Canada, the US and the Scandinavian countries thus placing international uniformity in serious jeopardy. It was at this point that the Comite Maritime International (CMI) sought to take action in the hope that a major step forward towards uniformity of the law of the Carriage of Goods by Sea could soon be achieved. Undoubtedly, Maltese law on Carriage of Goods by Sea, which incorporates the Hague Rules, requires reconsideration. The scope of this thesis is to analysis the provisions tackling the rights and immunities of the carrier, most of which are provided in Art. IV of our COGSA, these being the defence of due diligence, the 17 exceptions in Art. IV(2) and other ancillary rights of the carrier, limitation of liability and time-bar, reasonable deviation and the right/immunity of the carrier relating to the shipment of dangerous goods. A comparison of the rights and immunities of the carrier under other existing regimes shall also be affected together with an examination on the possibility of adopting the CMI Final Draft Instrument, as the next International Convention governing Carriage of Goods by Sea. Lastly, the thesis shall propose what position Malta ought to adopt today and in the later future to bring the Maltese position in line with leading maritime nations.