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instructions about the rights, duties and a responsibility of the parties of the contract of affreightment of the cargo, the United Nations Organization entered by the Convention on sea transportation of cargoes (G amburgskie rules)

In 1978 the Convention of the United Nations Organization on sea transportation of cargoes (further - the Hamburg rules) has been accepted. [32]

Because of less wide application (in comparison with Gaagsko-Visbijsky rules) the given international agreement causes a little smaller interest in researchers (especially at domestic as Soviet Union was not, and Russia is not the participant of the given convention).

As to domestic scientists and the experts most in details investigating the Hamburg rules here it is possible to name A.L.Makovsky and G.G.Ivanov. From foreign - H.Karan, S.Girvin, K.Gronfors, D.Mjurrej, J. F.Wilson.

In the previous paragraph the considerable quantity of lacks of the Hague and Gaagsko-Visbijsky rules which have become obvious in due course, and acceptance of two changing Rules of reports have been specified has not made more effective use of the given international legal certificates.

From the beginning of 1968 there was a work on the new convention. It is required to define, why the attention to the question on working out of the new convention, instead of on the further completion of Gaagsko-Visbijsky rules was brought. It becomes clearer by consideration of the one who acted as the initiator and developed the project of the new convention.

The Hague and Gaagsko-Visbijsky rules have established the minimum obligations and responsibility of a carrier, but, according to the developing states, it was obviously insufficiently. The developing states considered, that Gaagsko-Visbijsky rules at all do not correspond to their interests; therefore, in modification and completion of Gaagsko-Visbijsky rules, in their opinion, there was no sense - more conveniently and more logically to develop the new convention which will be, from their point of view, it is fair to mete duties and risks of the parties and participants of the contract of affreightment of cargoes. [33]

The initiative of working out of the new convention proceeded from JUNKTAD (Conference of the United Nations Organization on trade and development).

It is obviously important to pay attention to the primary goals put before developers as it in many respects opens the purpose of working out of the new convention which was carried out simultaneously with perfection Gaagsko - Visbijsky rules. In the resolution on creation of working group (the convention created for working out), it is underlined, first, that it should study «economic and commercial aspects of the international legislation and practice in sphere of navigation from the point of view of their conformity to requirements of economic development, in particular, the developing states, for the purpose of definition of spheres where changes» are required. Secondly, to prepare recommendations and documents for further work JUNSITRAL, probably, for the purpose of working out of the new convention. [34]

Working group JUNKTAD at the first session, from December, 1 till December, 12th, 1969, has specified, that perfection of the legal regulation connected with bills of lading is priority: including, taking into account interests of the developing states, main principles and the rules concerning bills of lading, an applicable law, obligations and the responsibility, connected with transportation of cargoes, deviation and a delay, studying of the customs regulating bills of lading, and standard forms of bills of lading should be studied.

[35]

It is important, that at fourth session JUNSITRAL (1971), by results of studying of legal regulation of the sea transportations which are carried out under bills of lading, has accepted the resolution in which it was said, that the norms operating in sphere of legal regulation of transportations under bills of lading, including norms of the Hague and Gaagsko-Visbijsky rules, should be expanded and reviewed; for the purpose of it it is necessary to develop and accept the new convention under the aegis of the United Nations. It is possible to consider [36] this moment critical as at operating Gaagsko - Visbijsky rules and their recent updating (the Visbijsky report) the cardinal decision on working out of the new, parallel convention was accepted.

By results of the given work and according to the resolution of the United Nations 31/100 from December, 15th, 1976 in March, 1978 in Hamburg (Germany) has been approved and opened for signing the Convention of the United Nations on contracts of affreightment of cargoes. According to the Appendix III to it it is recommended to name the given Convention the Hamburg rules.

Let's consider the basic features and innovations of the Hamburg rules.

The Hamburg rules represent, in comparison with Hague and Gaagsko - the Visbijsky rules, structured and more detailed, system legal act. [37]

One of the important innovations of the Hamburg rules is that they enter concept "actual carrier" of which did not suffice in Gaagsko - Visbijsky rules - «this any person to whom a carrier realisation of transportation of cargo or a transportation part is entrusted, and includes any other person to whom transportation realisation» is entrusted. [38] Responsibility of the actual carrier and its parity with responsibility of a contractual carrier will be considered in the given work further.

Unlike Gaagsko-Visbijsky rules, the Hamburg rules regulate more a wide range of legal relations. For example, if Gaagsko-Visbijsky rules exclude from concept of cargo of live animals as a transportation subject (the item from"article 1) the Hamburg rules according to article 1 (items 5) in concept"cargo"include live animals. Containers concern concept"cargo"and pallety as well adaptations for transportation of cargoes, including. [39] In the previous paragraph it has been considered, that Gaagsko-Visbijsky rules did not consider the requirements of time connected with container revolution and necessity of legal regulation of sea transportations of cargoes in containers which volumes of realisation became more and more. [40] inclusion in the Hamburg rules of the norms doing convenient realisation of container transportations, has just been directed on the decision of the given problem.

Point 6 of article 1 of the Hamburg rules does wider their application in comparison with Gaagsko-Visbijsky rules: Gaagsko-Visbijsky rules are applied only to the transportations certificated by the bill of lading (the subparagraph «»

Articles 1 of Gaagsko-Visbijsky rules); in the Hamburg rules "contract of affreightment" to which the given convention is applied is provided, that, - «it is any contract according to which the carrier for freight payment undertakes to transport cargo by sea from one port in another». [41]

Has appeared, that is important, definition of the term "bill of lading": according to item 7 of article 1 of the Hamburg rules it is the document confirming the contract of carriage and reception or loading of cargo by a carrier and according to which the carrier undertakes to hand over cargo against the bill of lading. [42]

Wider in comparison with the Hague and Gaagsko-Visbijsky rules is application of the Hamburg rules in territorial space: the Hamburg rules, according to article 2 point 1, are applied to all contracts of affreightment of cargoes between two various states if the port of loading or port of discharge are in one of the Agreeing states and also if the bill of lading or other document confirming the contract of affreightment, is given out in one of the Agreeing states or if the bill of lading provides application of the Hamburg rules or the right of one of the Agreeing states.

The Hamburg rules have expanded the period of realisation of transportation and responsibility of a carrier. In the previous paragraph the period of realisation of transportation and responsibility of a carrier has been considered agrees Gaagsko - to Visbijsky rules: from the moment of loading of cargoes aboard a vessel to their unloading from a vessel. The given period has been gradually recognised by too narrow and not covering the reference of a carrier with cargo on port territories, storage, loading, packing, fastening, a cargo unloading. In point 1 of article 4 of the Hamburg rules the period of transportation and responsibility of a carrier is defined as follows: it «the period during which cargo is in carrier conducting in the port of loading, during transportation and in port of discharge». [43] Therefore, cargo is in conducting a carrier since the moment as it has accepted cargo from the consigner or representing his face, and till the moment of transfer of cargo to the consignee or its grantings in the order of the consignee according to the law or the contract. In more details the problem of the period of responsibility of a carrier is considered in Chapter 2 of the given work.

As to a regulation of responsibility of a carrier in the Hamburg rules in comparison with Hague and Gaagsko-Visbijsky, in addition to responsibility of a carrier for a damage which is growing out of loss or damage of cargo, there was a norm about responsibility of a carrier for a delay in cargo delivery: the carrier bears a damage liability, growing out of a delay in cargo delivery if cargo is not handed over in port of discharge within the term adjusted by the parties and if the similar coordination is absent - within limits term (that is such which it would be reasonable to demand from a careful carrier taking into account concrete circumstances). [44]

In the Hamburg rules the onus of proving of fault of a carrier is in detail enough mentioned. The carrier is responsible for loss, damage or a delay in delivery of cargo during the period when cargo was in its conducting if it does not prove, that «, its employees or agents have taken all measures, which could be required reasonably to avoid such circumstances and their consequences». [45] It is a principle of the general intent of a carrier.

As to such important problem as a limit of responsibility of a carrier, it is necessary to notice, that the Hamburg rules, following the tradition which have been put in pawn by Visbijsky report 1968, have established, as it names researchers, dualisticheskuju system of restriction of responsibility - definition of a limit of responsibility at cost of a unit of cargo or cost of one kg of cargo. According to the Hamburg rules, responsibility of a carrier is limited to the sum equivalent to 835 units of account for a place of cargo or 2,5 units of account for one kg - depending on what sum above. [46]

As in the Hamburg rules there is a position about responsibility of a carrier for cargo delay in delivery, their developers found expedient to establish restriction and the given responsibility - no more than size of the freight which is coming under to payment agree contracts of carriage (the given norm contains in the subparagraph «» of point 1 of article 6 of the Hamburg rules). [47]

In the Hamburg rules there was much more system and detailed, in comparison with the Hague and Gaagsko-Visbijsky rules, a regulation of the relations connected with bills of lading and other transport documents. In the Hamburg rules there is the separate article devoted to procedure of delivery of the bill of lading. In particular, it defines a carrier duty to give out the bill of lading at acceptance to them or the actual carrier of cargo on the basis of the requirement of the sender. [48]

Article 15 of the Hamburg rules contains the list of necessary requisites which should be in the bill of lading. In comparison with Gaagsko-Visbijsky rules the given list is essentially expanded: instead of three basic requisites provided by Gaagsko-Visbijsky rules (the basic marks, number of places or weight and an external condition), them in the Hamburg rules fourteen. Besides the data which inclusion in the bill of lading is established by Gaagsko-Visbijsky rules, the Hamburg rules oblige to specify the name of a carrier and its site, the name of the consigner, the name of the consignee (if it is specified by the sender), the port of loading according to the contract of carriage and date of reception of cargo a carrier, port of discharge according to the contract, number of original Bills of Lading (if them more than one), a place of delivery of the bill of lading and other important data.

The Hamburg rules have become effective only in 14 years from the moment of their acceptance - on November, 1st, 1992 when the given convention has collected enough of ratifications (20) as that is demanded by point 1 of article 30 of the Hamburg rules. For the present moment the Hamburg rules ratified 34 states.

Here it is necessary to notice, that among the states ratifying the Hamburg rules, there is no big navigable state (and such navigable states as Brazil, Denmark, Finland, France, Germany, Mexico, Norway, Portugal, Singapore, Sweden, the USA have signed, but did not ratify the given convention). [49] Therefore though the Hamburg rules also have become effective, them it is impossible to name successful: they have not reached an overall objective for the sake of which were accepted - creation of the new uniform legal regime regulating the contract of sea international transportation of cargoes.

On it researchers - they often converge or mention the Hamburg rules as failure, or in general ignore them. As an example it is possible to lead introductory articles to two books-comments to the Convention of the United Nations on contracts in full or in part sea international transportation of cargoes (Rotterdam rules). In given introductory articles the reasons on which there was necessary a working out of a new legal regime are resulted. In particular, in introductory article to the book «Rotterdam rules. The comment to the Convention of the Organization of the Incorporated nations on contracts in full or in part sea international transportation of cargoes» J. Sekolek writes, that «the Hamburg rules prepared in 1978 on purpose to correct a situation, on the one hand, have become effective, on the other hand, have not justified expectation that they should become a basis for universally comprehensible mode...» . [50] In introductory article to work «Rotterdam rules. The practical summary» the Professor of University of Southampton (Great Britain) of H.Stanilend in general ignores the Hamburg rules and specifies Gaagsko-Visbijsky rules as unique is high-grade the operating international mode regulating sea transportation of cargoes which obsolescence has led to necessity of working out of the new convention (Rotterdam rules). [51] Russian researcher

A.I.Loboda writes about «actual failure» Hamburg rules. [52] It is represented proved to agree with the given opinion - the Hamburg rules are not used by the basic navigable powers and consequently their application is now rather insignificant; prospects of wider use practically is not available.

However it is necessary to notice, that in the legislation of many states which are participants of Gaagsko-Visbijsky rules, there is a considerable quantity of the positions borrowed from the Hamburg rules. As a similar example it is possible to result Norway and the Norwegian sea code (the law № 39 from June, 24th, 1994) which majority of positions concerning responsibility of a carrier are borrowed from the Hamburg rules: for example, it is positions about the debaring on responsibility restriction, about a liability of infringement of rules about transportation of cargoes on a deck, carrier and sub-carrier joint and several liability.

Much in section about transport documents of the Norwegian sea code is based on a part of IV Hamburg rules («Transport documents»). Still, that is important, the section of the Norwegian sea code about responsibility of the consigner (sections 290 and 291) actually repeats the part of III Hamburg rules also consisting of two articles.

Also it is a lot of positions from the Hamburg rules are borrowed in KTM the Russian Federation.

Article 138 KTM the Russian Federation (item 1) contains the position borrowed from the Hamburg rules about transportation of cargoes on a deck, specifying, that «the carrier has the right to transport cargo on a deck only according to the agreement between a carrier and the sender, the law either other legal acts of the Russian Federation or customs of a business turn».

Attracts attention also article 144 KTM the Russian Federation («the Maintenance of the bill of lading») which almost literally repeats the maintenance of article 15 of the Hamburg rules and specifies on data which should be included in the bill of lading. In article 145 KTM the Russian Federation («Reservations in the bill of lading. Probative value of the bill of lading») positions of article 16 of the Hamburg rules are borrowed. In article 173 KTM the Russian Federations («Responsibility of the actual carrier») are reproduced the positions borrowed from article 10 of the Hamburg rules («Responsibility of a carrier and the actual carrier»). Also, article 174 («Through transportation of cargoes») completely repeats article 11 G amburgskih rules.

The Russian Federation from the Hamburg rules it is possible to consider as one more important loan KTM code positions about freight payment: in Gaagsko-Visbijsky rules the given problem is not mentioned.

On the basis of stated above it is possible to draw a conclusion, that in KTM the Russian Federations are reproduced positions both Gaagsko-Visbijsky, and the Hamburg rules, that under G.G.Ivanov's remark is difficult enough phenomenon, and «sometimes in the foreign legal literature such type of the legislation name hybrid».

By results of the carried out research it is possible to draw a conclusion, that the Hamburg rules are more modern convention, than Gaagsko - Visbijsky rules, with wider sphere of the territorial and subject application, allowing to carry out according to the contract of carriage transportation of containers and the animals, responsibility of a carrier containing more modern regulation and transition of the onus of proving, and also more detailed regulation of use of bills of lading. Thus, it is impossible to name the Hamburg rules the successful international agreement. One of the basic lacks of the Hamburg rules, in opinion of the states not participating in them and researchers, their rather radical approach to responsibility of a carrier - the carrier general intent for loss or injury to cargo - and thereof unwillingness of the navigable states to join the given convention is. At the moment clearly, that to the Hamburg rules any more other states, therefore this convention, most likely, will not join has no any prospects of development. Taking into account it, and also simultaneous action at the moment Gaagsko-Visbijsky and Hamburg rules, considering two given conventions, it is possible to consider proved participation of the Russian Federation in

Gaagsko-Visbijsky rules to join the Hamburg rules it is represented not expedient.

1.3.

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A source: Malyukov Cyril Andreevich. the Basic directions of development of rules about the cargo contract of affreightment. The dissertation on competition of a scientific degree of the master of laws. Moscow-2017. 2017

More on topic instructions about the rights, duties and a responsibility of the parties of the contract of affreightment of the cargo, the United Nations Organization entered by the Convention on sea transportation of cargoes (G amburgskie rules):

  1. the convention of the United Nations Organization on contracts polnostjuili partially sea international transportation of cargoes (Rotterdam rules) as historical attempt to provide conformity of rules of law to modern conditions of trading navigation
  2. 3.1. Multimodal aspects of the Convention of the United Nations Organization about contracts in full or in part sea international transportation of cargoes (Rotterdam rules) and its parity with other transport conventions
  3. Chapter 2. Short stories of the Convention of the United Nations Organization about contracts in full or in part sea international transportation of cargoes (Rotterdam rules)
  4. prospects of the introduction of the Convention of the United Nations Organization about contracts in full or in part sea international transportation of cargoes in force
  5. § 3. The convention of the United Nations on sea transportation of cargoes of 1978
  6. Chapter 3. Multimodal aspects and prospects of coming into force of the Convention of the United Nations about contracts in full or in part sea international transportation of cargoes (Rotterdam rules)
  7. the International convention on unification of some rules on the bill of lading (Gaagskie, Gaagsko-Visbijsky rules) as a stage of occurrence and development of rules of law about the cargo contract of affreightment
  8. 3.2. Specificity of the rights and duties of the parties under the contract of insurance of professional responsibility
  9. Malyukov Cyril Andreevich. the Basic directions of development of rules about the cargo contract of affreightment. The dissertation on competition of a scientific degree of the master of laws. Moscow-2017, 2017
  10. § 3. The rights and duties of the parties under the contract
  11. 2.4. Electronic documents in the international sea transportation of cargoes at the present stage