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§ 2. The international convention on unification of some rules on the bill of lading of 1924. Rules Visbi 1968 and 1979

The first successful attempts to unify the norm of various legal systems regulating civil-law relations on transportation of cargoes, concern 1922 when at the Bruxelles diplomatic conference on a marine law the International convention on unification of some rules on the bill of lading [77] has been accepted, remaining on today the basic international convention regulating transportations of cargoes by the sea.

Small under the maintenance the Bruxelles convention has made huge impact on legal regulation of the international sea transportations. Parties to the convention now are 93 states, its positions are apprehended by the internal sea legislation of many countries (Indonesia, Syria, Czechia and Liberia, etc.). In Maritime Codes of the Russian Federation and Republic of Bulgaria its major rules are reflected.

Further we will consider in detail a circle of relations regulated by the convention of 1924 (the Hague rules).

The first definition formulated in item 1 of the Convention concerns a carrier: "carrier" includes the proprietor of a vessel or the freighter who is the party in the contract of carriage with the sender (podp. And Convention item 1).

From here follows, that the ship-owner represents itself as a carrier when enters contractual relations with the consigner in which force undertakes to execute transportation.

On sense podp. b item 1 "contract of carriage" is applied exclusively to the contract of carriage certificated by the bill of lading or any document similar to it, forming basis to sea transportation of cargoes; it is applied also to the bill of lading or the document similar to it which have been given out on the basis of charter-party, since that moment when such bill of lading or the document regulates relations between a carrier and the holder of this bill of lading or the document. Hence, transportations on charter-party on which bills of lading are not given out are excluded.

The bills of lading which have been given out on the basis of charter-party, come within the purview of the Convention of 1924 only when they are "contract of carriage" i.e. when relations between a carrier and the holder of the bill of lading are found out, while last — the person who is distinct from the freighter [78].

The proved explanation gives to this rule R. Colinvaux which writes: «the Bill of lading on charter-party is the bill of lading which has been given out to the freighter and becomes"contract of carriage"only since the moment when such bill of lading regulates relations between a carrier and the holder of the bill of lading, for example, when this bill of lading is transferred the buyer of cargo. Obviously then there is a new contract between a carrier and the addressee of the cargo, considering reservations in the bill of lading and then the consignee accepts the fact of infringement of this contract both before, and after transfer of the bill of lading.

Reservations in the bill of lading have the retroactive effect and are accepted for made in relation to cargo even before delivery of the bill of lading »[79].

What can be «the document similar to the bill of lading», mentioned in podp. b Convention item 1 as an equivalent to the bill of lading? The thought on the receipt on loading (receipt for shipment) at once comes, but there is a doubt concerning the point of view stated in item 3 of item 3 which says: «Having received cargoes and having accepted them in the possession, a carrier, the captain or the agent of a carrier should give out on request of the sender to the sender the bill of lading...».

From this follows, that the receipt on loading is qualified as the bill of lading. But this conclusion contradicts podp. 7 items 3, saying, that if the sender has preliminary received any document of title to the goods this document in exchange for delivery of the "onboard" bill of lading should return. In this connection the mentioned document cannot be the receipt on loading.

In the formulation podp. b items 1 can join and the documents which have been given out according to the national law of a flag of a vessel if they have character of the bill of lading [80].

The convention of 1924 is not applied «to live animals and cargo which is declared under the contract of carriage as transported on a deck and really transported thus». According to podp. From Convention item 1 live animals and deck cargo are excluded from definition "cargo". Hence, the convention does not carry out a legal protection of live animals and deck cargo.

In this direction there is a certain distinction between the Convention of 1924 and Bulgarian KTM which does not exclude live animals and deck cargo from a legal protection, and expects the specific bases for clearing of a carrier of responsibility. According to item 174 KTM of Republic of Bulgaria the carrier does not bear responsibility for absence or povrezh - dennost the cargo which is on a deck if they come in the given way of transportation.

In item 2 of item 137 KTM it is said, that if for transportation of cargoes the bill of lading stands out, the consent of the consigner about transportation of the goods over a deck is marked in it [81].

«Transportation of cargoes» covers the period from the moment of loading of cargoes aboard a vessel to their unloading from a vessel (podp. e Convention item 1). This article contradicts the subsequent in which the duty is assigned to the parties in relation to transportation out of this period. So, for example, «the carrier is obliged before flight to show reasonable care about, that:

a) to result a vessel in a seaworthy condition;

b) properly to complete people, to equip and supply a vessel;

c) to adapt and result in a condition, suitable for reception, transportations and preservations of cargoes holds, refrigerator both refrigerating premises and all other parts of a vessel in which cargoes »(item 1 of item 3 of the Convention) are transported.

Other example, in ab. 4 items 6 of item 3 of the Convention are spoken: «the Carrier and a vessel in any case are released from any responsibility concerning cargoes what it was if only the claim is not shown within a year after its delivery or date when they should be handed over. This term can be extended, however, the cause of action» has arisen the agreement concluded by the parties after.

According to the general legal principles extinctive prescription term begins with the moment of occurrence of the legal claim.

If transportation, the contract of carriage and responsibility of a carrier really begin with loading and finish unloading then all facts which precede loading and follow unloading, appear out of the Convention grasp. Article 7 resolves to a carrier and to the consigner «to include in the contract of position, a condition, the reservation and an exception concerning duties and responsibility of a carrier or a vessel for loss or losses, proisshedshie with cargo or their concerning storages, cares of them and their processings before loading and, accordingly, after an unloading from a vessel on which cargoes are transported by the sea». It is the proof of that the Convention breaks the definition formulated in its rules.

One of the purposes of the international conventions — uniformity achievement in a regulation of civil-law relations with a foreign element. In a concrete case the Convention of 1924 had for an object to unify a regulation of sea transportation of cargoes.

By definition podp. e item 1 each contract falling under the Convention of 1924, is inevitably divided into three phases: the first — a phase of transfer of cargo to a carrier and its loading aboard a vessel, in it is applied the national law of a flag of a vessel; the second — a phase from the moment of loading before the unloading, regulated by the Convention; the third — a phase from unloading before transfer of cargo to the addressee, in which vessel law of the flag again in operation since clasps the period which is unreasonably excluded from the Convention of 1924.

Delivery of the bill of lading is the inevitable precondition of application of the Convention of 1924.

The bill of lading — the document of title to the goods which grants to its holder the right of reception of the cargo designated in it.

The holder of the bill of lading is authorised to apply the right mentioned in the document, when will present the document, in which his name (poimennyj the bill of lading), subsequently zhirovan (the order bill of lading is written). The holder of the bill of lading is the holder of transported cargo. A carrier and the holder of the bill of lading have not the right to be based on conditions which do not follow from its text.

The bill of lading has the double nature: it simultaneously valuable paper representing cargo, and the proof of the contract of carriage [82].

After a carrier, the captain or the agent of a carrier will accept cargo under the responsibility, it should give out the bill of lading in which the cargo accepted by a carrier is described on request of the sender. A carrier duty to give out the bill of lading comes only on request of the sender.

The bill of lading is the proof of the conclusion and the maintenance of the contract of affreightment.

In the Convention the list of data which should be specified a carrier in the bill of lading is defined:

«) the basic marks necessary for identification of cargo, informed by the sender in writing before loading of such cargo has begun, provided that these marks are put by a stamp or clearly specified by a different way on cargoes if cargoes are not packed, either on boxes or in packing in which cargoes are so that marks remained legible enough before the flight termination;

b) number of places or subjects or quantity or weight, depending on circumstances and how they are in writing specified by the sender;

c) appearance and a visible condition of cargo «(item 3 of item 3 of the Convention. The given out bill of lading as it will not be proved other, is the proof of acceptance by a carrier of cargoes, as they in it are described (item 4 of item 3 of the Convention)».

As example the decision on business № 2/1983 under the claim of insurance joint-stock company "Ингосстрах", Moscow, the USSR to firm «Tilli Rifer Lajnz», Gerleken, France can serve. Under the decision on relations of a carrier with the addressee of the cargo, following from the bill of lading in which it is specified, that in them all conditions of concrete charter-party are incorporated, conditions of this charter-party, including the reservation containing in it on arbitration if at the same time according to the bill of lading of the right and a duty of the parties on transportation are defined by the Convention on unification of some rules on the bill of lading of 1924 extend. To the specified relations those conditions of charter-party which owing to the Convention should be recognised by void for such relations are inapplicable. Reservations in such bill of lading that weight, quantity of cargo are unknown to a carrier, does not release the last in conformity C item item 4 3 Conventions from responsibility for shortage of places of cargo if it does not prove that had the serious bases to suspect discrepancy of the number of places specified in the bill of lading or had no reasonable opportunity to check up their number [83].

It is necessary to consider not only elements of the bill of lading it agree item 3 of item 3 of the Convention, but also other elements necessary for the validity of the bill of lading.

Marks are necessary for cargo identification. The carrier is obliged to reproduce them in the bill of lading, only when it is fixed in writing by the sender before the beginning of loading of cargo and shtempelovany or are in another way put clearly over cargo if it is not packed. It is important, that marks have been put distinctly and have been kept till the end of a way. Unfortunately, this rule is not fixed in norms of the Convention of 1978.

The number of places or subjects or quantity or cargo weight are necessary for an establishment of the exact maintenance of duties of a sea carrier.

If the carrier in the bill of lading describes the cargo which distinct from is really loaded cargo bears a liability for damages and should pay cost of party which is not shipped [84].

Data in the bill of lading should characterise only appearance and a visible condition of cargo, the carrier has no right to open cash desk or packages in which there is a cargo.

Remarks which the carrier has the right to enter in the bill of lading, happen two types:

Subjective character when a carrier, the captain or the agent of a carrier has the serious basis to suspect discrepancy in the description of cargo represented by the sender;

Objective character when a carrier, the captain or the agent of a carrier has no possibility to check up reasonable means of mark, quantity of parcels and packages, quantity or weight of cargo which to it were informed by the sender.

If in the bill of lading the mark (remark) is made, weight of proving of correctness of messages from the sender passes to the owner of cargo. In the absence of such proof it is not released from an initial duty to prove, that harm has come as a result of cargo transportation.

Point 7 of item 3 of the Convention provides, that if cargo is shipped, the bill of lading, which carrier, the captain or the agent of a carrier should give out to the sender, should be the on board bill of lading if it demands the sender.

If before it the sender has received any document of title to the goods for the same cargo it should return this document in exchange for the on board bill of lading.

The carrier can enter as a mark in this document the vessel name on which it is shipped cargo and departure date. If this document contains data, according to item Z Convention item 3 it is considered the on board bill of lading.

Among the requisites of the bill of lading which has been not mentioned particularly in the Convention, it is possible to name a carrier. This requisite starts with the maintenance of item 3 of item 3: if the carrier after will receive cargo under the responsibility, give out the bill of lading it is obvious, that he should sign it and in such a way open the name. Without a name of a carrier the bill of lading would not have cost since does not specify the debtor under the bonded relation certificated by the bill of lading.

The basic requisite — a designation in the carrier bill of lading. If the certain firm prepares some bills of lading and on konosamentnyh forms puts the name, it opens its exact intention to make transportation and in such a way to be as a carrier and plays a main role at a carrier establishment.

The requisite is applied, and if one of two circumstances is available:

The firm which name designates the bill of lading, has signed it, causing coincidence between heading and the signature;

The captain has signed the bill of lading, confirming coincidence. If he has not specified firm from which name has signed the bill of lading, it is considered, that he has signed on behalf of that firm which operated as a carrier.

The convention of 1924 has for an object to unify only some rules of law of bills of lading. For this reason many problems arising in connection with bills of lading, have not been put and solved by the Convention.

One of unresolved problems is collision of bills of lading. The bill of lading usually stands out to the consigner in the three first copies with the reservation, that if one of them will be executed, the others lose the force. In this case there is no collision of bills of lading.

Collision arises in case of delivery of two different complete sets of bills of lading. In this case it is possible, that one of two complete sets of bills of lading will be valid, and another — void.

Conditions of collision of bills of lading follow from some rules of the foreign trade and currency legislation of the separate countries. For example, in Turkey export of cargo to other countries can be made only through the authorised banks. They should receive abroad cargo from a vessel, transfer to its foreign buyer, collect from it the price of cargo and send to the Turkish government the price defined in a foreign currency. The Turkish government after price reception in a foreign currency transfers to the Turkish exporter its equivalent in national currency. Thus the foreign currency reserve is created.

This complex operation can be carried out, if the exporter surrenders to bank all necessary documents and, in particular, the bill of lading for "unloading" to give to bank function ordinary entrusted and to avoid wilful actions in relation to cargoes.

Bypassing this system approved by laws of Turkey, the exporter can receive the first bill of lading which it lawful by transfers to bank only «for unloading» from the agent of a carrier. But can be the second bill of lading which after transfer is sent to the third party is taken also.

At unloading in port there comes collision of the rights of bank-holder of the lawful bill of lading, transferred for unloading, and the holder of the second bill of lading transferred to it without any conditions and restrictions.

It is necessary to consider the second bill of lading unusable. It has no legal effects, actions on its delivery are void, also the bill of lading hence is void. Consequences operates both concerning the third parties, and concerning diligent holders.

The attention to the question is brought: which of two bills of lading stands good in law?

In the Italian judiciary practice, for example, it is considered to be, that the holder of certainly transferred bill of lading has the right of priority before the holder who posesses the bill of lading transferred only for reception of cargo. This point of view do not support in the legal literature. It is underlined, that in relation to a carrier cost of the bill of lading, without restriction, and that only for unloading, same — both the holder of the first bill of lading, and the holder of the second, has the right to receive cargo from a carrier.

In case of the full indorsement the authorised person after reception of cargo from a carrier can dispose of it at own discretion, and in case of the indorsement

For unloading, this person should with reception of cargo from a vessel arrive with it in the way provided in the contract, for example, return cargo to this person, sell to its third parties and so on [85].

Can arise and other collision of bills of lading if some persons present various parts of the complete set which contain a note «if one bill of lading is executed, the others lose force».

The captain, not knowing, that is given out more than one complete set of bills of lading, should establish, which of them legitimate and transfer it cargo. If he does not establish it it is not necessary to transfer cargo, and it is necessary to deposit. The deposited cargo can be received only on the basis of judicial or the arbitral award [86 [87].

The basic maintenance of the convention is constituted by rules about responsibility of a sea carrier. The carrier duty «properly is underlined and diligently to load, process, transport, store transported cargoes, to care of them and to unload them» and its obligation to show reasonable care for maintenance of seaworthiness and ought is specially allocated

L

Equipment of a sea vessel (subitem 1, 2 items 3 of the Convention).

In the legal literature crucial importance of the given text is not without justification underlined, how many it grants to a carrier all rights and simplification and at the same time assigns to it a duty and the responsibility provided by the Convention. For example, under the decision from February, 19th, 1985 on business № 21/1984 under the claim of Kuban organisation "Алимпорт" to Inogosstrahu the USSR the POPPY has decided, that according to item 6 of item 3 of the Convention on unification of some rules, concerning bills of lading of 1924 the carrier non-notification about damage ( destruction, shortage etc.) does not disqualify cargo on

The presentation of the proved requirement to a carrier, but assigns to the cargo owner the onus of proving of  destruction or damage of cargo [88].

The seaworthy condition means readiness of a vessel for execution of problems of the given way both with navigatsionno-technical, and with torgovoekspluatatsionnoj the points of view.

Judiciary practice of all countries recognises wide concept of seaworthiness not only as technical validity of the vessel, but also as its cargo validity, i.e. its readiness for transportation of certain cargo.

Rules of the Bruxelles convention on responsibility of a carrier are imperative and any deviations from them «should be considered unusable, void and not valid» (item 8 of item 3 of the Convention).

The establishment of the validity of a vessel in the modern world is carried out by the specialised organisations (the Bulgarian register of a vessel, Lojde redzhistr to England, Bureau Veritas in France, etc.) which have the necessary experts making periodic surveys of vessels and granting corresponding certificates.

However the granted certificate is not the deciding proof of that the carrier has shown the reasonable care about vessel reduction in a seaworthiness condition when the ascertainings containing in the certificate, are confuted by other proofs.

Responsibility of a carrier comes, if the unseaworthy condition is proved by absence of the reasonable care from a carrier, and does not come, if the unseaworthy condition is caused by latent defects which could not be found out at reasonable care display (podp. r item 2 of item 4 of the Convention). This principle of the Convention is fixed and in national laws. Item 126 KTM of Republic of Bulgaria says: the carrier does not bear responsibility if will prove, that the unseaworthy condition of a vessel has been caused by lacks which could not be found out at display by it obligatory cares (latent defects).

The Bruxelles convention does not differentiate responsibility of a sea carrier at nesohrannosti cargo, falling into arrears of its delivery and at other cases. In it it is spoken about responsibility of a carrier «for losses or losses» (item 2 of item 4 of the Convention). It gives the basis to consider, that Convention positions cover all cases of responsibility of a sea carrier before the cargo owner.

In the legal literature primary value of a duty of display of the reasonable care provided in podp is not without justification underlined. From item 1 of item 3 of the Convention and if the carrier does not execute this duty and it leads to cargo damage it cannot be relieved from responsibility, according to item 4 [89].

The mentioned duty remains in force, and owing to inclusion in the contract of carriage with the reservation «FIO» (free in and out) or according to operating in ports corrected cargo should plunge not a carrier, and the consigner or the specialised enterprise (the stevedore company) [90].

Point 2 of item 4 of the Convention provides 17 bases which are relieving from a carrier of responsibility for losses or losses, arisen owing to or grown out:

a) actions, negligences or omissions by the captain, a member of crew, the pilot or the employee of a carrier at navigation or vessel management;

b) a fire if only it has not arisen owing to actions or fault of a carrier;

c) risk, danger or accident on the sea or in other navigable waters;

d) force majeure;

e) military actions;

f) actions of antisocial elements;

g) arrest or detention by the authorities, governors or the people or imposing of judicial arrest;

h) quarantine restrictions;

i) actions or omissions of the sender or the proprietor of cargoes, its agent or the representative;

j) strike or lock-out or stay or a delay of works for any reasons in full or in part;

k) revolt or civil commotions;

l) rescue or attempts of rescue of lives or property on the sea;

Volume or weight loss or any other loss or the damage, arisen because of latent defects, the special nature of cargo or defects peculiar to cargo;

Insufficiency of packing;

Incompleteness or marks lacks;

Latent defects which cannot be found out at display of reasonable care;

q) any other reasons which have arisen not because of actions both not because of a carrier and not because of actions and not because of agents or employees of a carrier.

However the onus of proving is assigned to the person demanding such condonation, and it should prove, that actions or fault of agents or employees of a carrier mismatched losses or losses.

The carrier does not bear responsibility in a case «actions, negligence or omission of the captain, a member of crew, the pilot or employees of a carrier in navigation or management of a vessel, i.e. is not responsible for a so-called navigating error». The navigating negligence admitted both at conducting, and at management of a vessel, leads to death or to cargo damage. Negligence at vessel conducting can be expressed in wrong definition of a site of a vessel, in wrong maneuver that is usually connected with vessel operation. For example, damage of cargo as a result of penetration into a water barn is considered negligence at vessel management as comes in connection with wrong actions of members of crew. If at operation of a vessel the captain and members of crew commit errors and result of such errors —  destruction and cargo damage, the carrier is relieved from responsibility. Has no value time of an assumption of errors — during flight or in its beginning.

On a carrier the duty lays to place cargo on a vessel, to harden and in general to show the reasonable care about cargo. The carrier is not relieved from responsibility if the  destruction and cargo damage have come as a result of inactivity of its attendants concerning cargo. For example, the carrier will not have time to be relieved from responsibility for povrezhdennost cargo owing to it promokanija which has come as a result of negligence at closing of hatches of a vessel [91].

In the legal literature it is with good reason underlined, that in judiciary practice even the same legal system does not exist enough clear and steady criteria for differentiation of navigating and commercial negligence. As a result of it there is no uniform application of the unified rules of law about clearing of a carrier of responsibility for navigating negligence (. "And" t. 2 items 4 of the Convention). In this connection at acceptance of the Convention of 1978 this norm has disappeared, that has been estimated positively since has led to reduction of quarrels at law [92].

The carrier does not bear a liability for damages, resulted a fire. This rule is not applied, if the fire has arisen because of a carrier. Hence, when the carrier will present proofs, that harm prichi - nen as a result of a fire it is relieved from responsibility. But, if the owner of cargo has time to prove, that the fire has arisen because of a carrier, last bears responsibility.

Dangers and accidents in the sea are the classical basis for clearing of a carrier of responsibility (podp. From item 2 of item 4 of the Convention). To relieve from a responsibility carrier, it is not necessary that for danger and accidents in the sea were extreme or insuperable. There is enough, that the carrier could not expect and prevent events concerning sea dangers, because of their suddenness. Sea dangers cannot be predvideny at all, therefore it is impossible to take measures for prevention of approach of losses.

The carrier cannot be relieved from responsibility, being based on such sea dangers and accidents, as force of a wind, a sea condition, its depth and so on [93].

In judiciary practice of the different countries of concept "accident" and "danger" are interpreted differently. For example, such danger which is casual event or force majeure admits France the basis of clearing of a carrier from responsibility. Thus danger should be unforeseen and impreventable and not have any relation to vessel operation.

Strong excitement in the sea does not admit the American and French judiciary practice by the sea danger which is relieving from a carrier of responsibility. The storm concerns sea dangers if it is characterised by storm force and is extraordinary for a concrete place and the given season. In legal practice it is possible to consider as an example vessel business «Black Engle» in which course it has been established: in the conditions of a gale with force to 12 points, the deck cargo representing naphthalene in bags, has been carried for a board by a wave, and podbortovoj cargo has suffered vsledstvii destructions by a strong wave of the hatch on a vessel surface. Recognising, that in a concrete case a damage caused by continuous influence of furious elements on all case of a vessel also that it also was sea danger, the court has relieved from a carrier of responsibility [94].

In English and German judiciary practice by sea dangers strong sea excitement, and bad weather are considered also. But sea dangers do not admit English practice if will be established though any errors from a carrier, the basis for clearing of a carrier of responsibility. For English practice business on which it has been established was characteristic: in the conditions of a whole gale there has come moving of cargo and it has caused damage of transported cars from the USA to India. The court has refused to recognise presence of sea danger and accident in a concrete case, establishing thus, that the carrier has admitted infringement in arrangement of cargo [95].

The basis of clearing of a carrier from responsibility for damage or cargo loss is force majeure (act of God) - podp. d item 2 of item 4 of the Convention. In this connection value of force majeure causes various opinions. Two essential signs characterise force majeure: the first — events which constitute it, come without participation of the person; the second — the carrier could not prevent this event by means which could use [96].

For example, in the English legal literature first sign is described as follows: the fire from considerable distance has covered a place where the carrier has put cargo, and it has destroyed. At neustanovlenii participations of the person in fire occurrence, the court recognised event as force majeure [97 [98]. However failure which has come as a result of vessel movement in a fog, has not been recognised by court as arisen at force majeure, since it from -

' at

Parts it has been caused by wrong action of the person.

The storm and strong excitement are considered as the ordinary phenomena, but their results can be recognised and force majeure. For example, the Parisian trading court recognised as thorough clearing of a carrier of responsibility at a storm with force of a wind to 10 points, with high waves and strong rolling. In the motives the court has underlined, that the data characterising a condition of the sea and onboard rolling during flight, should not be considered separately. If them to take separately, they cannot be considered extreme, but in the set are an example circumstances of force majeure [99].

In the legal literature it is underlined, that it is not enough only carrier proofs about losses and damage of the cargo, come owing to the spontaneous (natural) phenomena. It should prove, that no reasonable safety measure and cares has allowed to prevent harm [100].

As the basis of clearing of a carrier from responsibility for  destruction or cargo damage military actions (podp serve. e item 2 of item 4 of the Convention). It is not obligatory, that harm has been caused by military actions in the conditions of the declared war. Military actions can come, when there is an international pressure.

When there is a conflict, military actions concerning vessels of the neutral countries (sea blockade of coastal zones, prohibition of transportations of some kinds of cargoes etc.) are possible. Such actions of the at war countries lead to clearing of a carrier from the neutral country from the tort liability, caused to the cargo owner [101].

Arrest or detention by the authorities, governors or the people, or imposing of judicial arrest (podp. d item 2 of item 4 of the Convention) as the basis of clearing of a carrier from responsibility for loss of cargo or the losses caused to it, covers all administrative actions of the authorities which impose absolute or relative restriction of freedom of navigation, stay of vessels in port, vessel or cargo confiscation, etc.

That restrictive actions from the government have formed the basis of clearing of a carrier from responsibility, it is necessary, that the fact which constitutes it, has come after the flight beginning, the carrier could not know about the fact and could learn about it before the flight beginning at display of reasonable protection. If the fact existed before flight departure, the vessel would be in a danger zone, it would become inevitable a subject of restrictive action that it is impossible to consider exclusive as has arisen on force of the law concrete страны2.

The carrier is relieved from responsibility for losses or the losses which have arisen owing to or as a result of quarantine restrictions (podp. h item 2 of item 4 of the Convention). It results from sanitary actions for prevention of distribution of infectious illnesses, including isolation of patients, the termination of movement of people, animal, cargoes from infectious places, etc.

Actions or omissions of the sender or the proprietor of cargo, its agent or the representative is the basis of clearing of a carrier from responsibility, since it is the facts, which cannot be charged a carrier (podp. і item 2 of item 4 of the Convention).

Cargo arrangement happens actus reus in which result bears responsibility the consigner, sometimes also. If arrangement is made by a carrier, it should bear responsibility for each admitted negligence shown by its employees at execution of such operation, having trading character. Negligent arrangement of cargo can be the basis of clearing of a carrier from responsibility only when it is carried out by other person, for example, the consigner on force of the reservation «FIOS» or stividorskoj the company. C «FIOS» (free in and out and stowed) the carrier is released by the reservation from expenses on loading, unloading and arrangement of cargo [102].

To challenge clearing of a carrier of responsibility in case of the reservation «FIOS», the duty of the captain prior to the beginning of flight is sometimes underlined to make survey of a vessel and to be convinced of correct loading. In particular, this duty concerns cargo distribution between separate barns and refrigerating premises for maintenance of safety of a vessel during flight. When it is executed also cargo distribution made according to the cargo plan, changes in detail do not mention the captain, but only consigner who should mete cargo in the barns shown by the captain.

Fact proving, that cargo arrangement was carried out by the consigner or the third party, is possible a testimony. Convention item 3 does not appear in item Z a name of the person and the name of the organisation which would carry out loading and cargo arrangement. From here follows, that proving with a testimony serves as the purpose to fill emptiness in the bill of lading, not mentioning its other elements. In a concrete case proving represents the material fact, in particular, that cargo arrangement is carried out by the person who is distinct from a carrier, i.e. the fact on which in charter-party the reservation «FIOS» or on which the port norm or custom operates contains.

The basis of clearing of a carrier from responsibility for loss or cargo losses is strike, lock-out, stay or a delay of works for any reasons, completely and partially (podp. j item 2 of item 4 of the Convention).

Strike represents cessation of work from a certain category of workers, members of crew, pilots etc. Strike can be the general, i.e. concern all vessels, irrespective of their nationality, or partial — concerning vessels of one nationality, for example, solidarity strike. The purpose of strikes has no value, they can carry both economic, and political character.

Lock-out is a default by a carrier of flight or nezavershenie it for the labour reasons.

Stay or delay of works represent the facts which have no strike or lock-out signs, but do impossible the operations connected with processing of cargo and with normal execution of transportation.

Revolts or civil commotions as the basis of clearing of a carrier from responsibility (podp. To item 2 of item 4 of the Convention) are very wide and flexible concepts, they are difficult for differentiating. Revolts, revolts, excitements, etc., — actions which do not lead to civil war.

All kinds of the help and rescuing on the sea consist in words «rescue or nearly so rescue of lives or property on the sea» (podp. 1 items 2 of item 4 of the Convention) also form a basis for clearing of a carrier of responsibility.

Rescuing can be obligatory or voluntary and concern a human life or property.

Volume or weight loss either any other loss or damage because of latent defects, the special nature of cargo or defects peculiar to cargo, can be recognised by the bases for clearing of a carrier of responsibility (podp. m item 2 of item 4 of the Convention) only when they correspond to norm of loss.

Insufficiency of packing can entail loss or cargo loss that is the basis of clearing of a carrier from responsibility (podp. p item 2 of item 4 of the Convention). If in the bill of lading it is written down, «outwardly good kind and a cargo condition» it is impossible vposledstvie to be based on it.

Lacks and marks ambiguity represent the basis of clearing of a carrier from responsibility for loss or cargo loss (podp. About item 2 of item 4 of the Convention).

The lack is hidden in all cases when it is not opened at survey realisation, and is established together with absence or cargo damage. On force podp. r items 2 of item 4 of the Convention the basis for clearing of a carrier of responsibility are latent defects which cannot be found out at reasonable care realisation.

When the proof is presented, that the lack is hidden and there was impossible its opening at reasonable care display, the carrier is relieved from responsibility. Then weight of proving does not lay more on it. In particular, it should not prove, that from its party the reasonable care in a place where the latent defect is revealed has been applied.

The list of the excluded dangers provided in podp. And - r item 2 of item 4 of the Convention, not settling and practice it proves.

According to podp. g t. 2 items 4 of the Convention a carrier, a vessel are not responsible for loss and the harm which has arisen owing to or result of the other reasons, following not because of action and not because of agents or employees of a carrier and not because of a carrier. However weight of proving lays on the interested person which is interested to prove, that actions or fault of agents or employees of a carrier, or personal fault of a carrier do not concern to loss or povrezhdennosti cargo.

Distinction between the specific exclusive dangers, provided in podp. And - r, and general of podp. g consists in the following. For specific dangers there is enough proof of approach of one of them for carrier condonation, i.e. on a carrier weight of proving of any other circumstances does not lay. As to the patrimonial reasons of loss and harm, the carrier should prove, that loss and cargo damage have come without the valid fault of a carrier, its employees or agents.

Responsibility of a carrier for loss or losses of cargo or for damnified cargo is limited. In such a way it is released from the harm full indemnification that is characteristic for the bonded right in general. According to podp. And for item 5 of item 4 of the Convention «neither a carrier, nor a vessel any losses or the damages caused to cargo or connected with it, to the sum exceeding an equivalent of 10 000 francs for a place or unit or 30 francs for one kg of gross weight of lost or damaged cargo depending on what sum above if character and cargo cost have not been declared by the sender before loading at all are not responsible and are brought in the bill of lading».

This rule is unsuccessful in two relations.

First, introduction of a limit of responsibility for a place (unit) of cargo has raised the question at once, as it is necessary to apply this rule concerning large-sized and mass cargoes, when there is no a place (unit) of cargo in the usual sense. Judiciary practice is inclined to recognise as a place (unit) any "outwardly isolated" quantity of cargo, for example, the railway car, and concerning mass cargoes uses concept of charter unit, i.e. a unit of measure on which base the freight is estimated.

Secondly, absence in the Bruxelles convention of the special reservation on the gold maintenance of a limit of responsibility in the conditions of currency instability of the modern world had a consequence an establishment the legislation of the separate countries of a various limit of responsibility and its numerous revisions. Result was the different limit of responsibility of a carrier according to the sea legislation of the separate countries [103].

According to the Convention all harm put to the cargo owner, should be compensated a carrier.

Restriction of responsibility of a carrier is not applied in case of the valid default of the contract of affreightment which does not hold in frameworks of absence, damages of cargo or delay of its delivery. For example, if cargo is not shipped aboard a vessel contrary to given out the on board bill of lading, the carrier cannot demand the compensation provided in podp. And item 5 of item 4 of the Convention.

Obosnovanno it is underlined, that in many countries was and there is dominating a concept on which the carrier cannot limit the responsibility if the damage is caused as a result of intention or self-confidence, with knowledge eventualnogo injuries. In attention undertake not only personal acts or omissions of a carrier, but also its employees having powers to instruct. However before forfeiture of restriction of responsibility cannot result action of employees of a carrier which do not have appropriate competence [104].

There is also an opposite opinion. It is considered, that the mentioned restriction of responsibility is applied in all cases at absence or cargo damage, that is irrespective of the responsibility reason. Responsibility is not limited only to cases of easy negligence and, on the contrary, is excluded in gross negligence or intention cases. In a reinforcement of it it is underlined, that item 5 of item 4 of the Convention at all does not do a hint about the reason of absence or cargo damage. Hence, distinction looks any.

In order to avoid the mentioned disputes, in report 1968 the text which provides is included, that the carrier cannot take advantage of the right of restriction of responsibility if it will be proved, that the damage has resulted from act or omission of a carrier which has arrived so or with intention to cause a damage, or on self-confidence, understanding eventualno the caused damage (podp. e Report 1968 item 2).

In case of partial damage of cargo the addressee cannot demand from a carrier of the maximum sum certain by the Convention of 1924. The covered sum should be calculated to proportionally valid fall of cost of cargo. In case of full absence or damage of a place (unit) of cargo compensation in the maximum size — 100 English lyres should be paid; in case of cargo depreciation — 20 %-s' compensation for a place (unit) of cargo. In many cases when cost of a place or a unit of cargo exceeds the specified maximum, results remain are unacceptable: if cargo costs 500 English lyres, the covered sum in this case would be 100 English lyres both in case of full, and in case of partial loss — that is very unacceptable.

Expression «the place or a unit of cargo», written down in item 5 of item 4 of the Convention, very extensible also opens a way for set of disputes.

Place the physical unit of cargo, packed accordingly in a chest, a bag, to a flank is considered, a box, etc. Unit containing in packing, there can be unique, for example, a sewing-machine, or plural, for example, spare parts for the sewing-machine. This circumstance has no jural significance since in a concrete case the unity of packing dominates over set of units which contain in it.

Sometimes, when the transported thing is not packed, it can be slightly individualised in physical sense: for example, pig-iron pipes, marble blocks, cars, boats and others. Unit true in this case is available — the limit of responsibility of a carrier is applied to such physical unit of cargo.

When such natural individualization is impossible, the term "unit" should be interpreted and applied in sense of charter unit which is defined on the basis of weight or volume. In this sense distinction between valid charter unit and ordinary charter unit is shown.

It is necessary to give prehonouring to valid charter unit since it is closer to will of the parties on sea transportation of cargoes. If such it is impossible to establish, it is necessary to apply ordinary charter unit. It has that advantage that can be established irrespective of circumstance, whether valid charter unit in the bill of lading is established or not. In particular it concerns a bulk cargo at which for unit it is impossible to consider cargo in its integrity. For such unit it is necessary to take a cargo part, for example, one ton — a unit of measure which is perceived as a designation of the loaded quantity.

Ordinary charter unit should have the appendix at definition of a covered damage in case of a total sum of the freight of the whole vessel without survey of actual quantity of transported cargo (lumpsum). This reservation excludes any criterion for an individualization of a unit of cargo. If for a bulk cargo the ton is not considered as unit, there is no other alternative how to consider for unit all cargo on a vessel. Results would be absurd: the compensation limit for absence of the unique 50-kilogramme bag would be the same, as for full cargo in number of 5 000 tons.

The announcement of cost and character of cargo should be entered in the bill of lading. Data about character and cargo cost can be confuted proofs. If it is made, the carrier bears responsibility only within the limits of a maximum defined by the Convention.

The carrier is released from any responsibility when character and cargo cost umyshleno have been incorrectly declared by the sender at delivery of the bill of lading (item 5 of item 4 of the Convention).

The ship master, or the agent of a carrier in port or the consigner can agree about other maximum sum, than that which is provided

The convention in item 4 item 5, under a condition that this sum would not be less limit provided by the Convention.

The Convention mode begins extends, when cargo is shipped aboard a vessel, and comes to an end, when cargo is unloaded from it. Concerning the period which precedes loading, restriction of responsibility of a carrier for a place or a unit of cargo is not applied.

Rules Visbi 1968 and 1979

In 1968 to the Convention of 1924 the additional Report called by Rules Visbi has been accepted. The Russian Federation has joined the Report on change of the International convention on unification of some rules on the bill of lading from the August, 25th, 1924, changed by the Report from February, 23rd, 1968, after acceptance KTM of the Russian Federation which has become effective on May, 1st, 1999.

The basic innovations of the Report are: restriction of responsibility of a carrier (item 2), rules about expansion of sphere of action of the Convention and final norms of excess of a limit of responsibility of a carrier.

Rules Visbi have expanded sphere of action of the Bruxelles convention of 1924, applying it to any bill of lading:

- If it is given out in one of the state-participants;

- If transportation is carried out from the port which is in one of the state-participants;

- At presence in the reference bill of lading about its submission to the Hague rules.

The responsibility limit in edition of Rules Visbi constitutes Poincare's 10 000 francs for a place or a unit of cargo or Poincare's 30 francs for 1 kg of gross weight of the lost or damaged cargo, depending on what sum above. This limit of responsibility is applied, if cargo cost has not been reserved by the sender in the bill of lading [105].

Definition of a place (unit) of cargo is made also at transportations in containers, pallets and similar adaptations: when the number of package (units) is listed in the bill of lading, the data specified in it should be considered as the number of package (units), otherwise the adaptation is considered as one place (unit).

The limits of responsibility established by the Report operate concerning any requirement irrespective of, it is shown on the contractual or non-contractual basis, and employees of a carrier can refer to them (item 3) also. However responsibility limits are not applied, if will be proved, that the damage has resulted from rough fault of a carrier (item 2).

The report contains also a number of new positions under more incidental points. Addition to item 5 of item 4 of the Convention of 1924 which says was accepted: «If character and cargo cost have not been declared by the sender before loading and are brought in the bill of lading, neither a carrier, nor for a vessel any losses or the damages caused to cargo or connected with it, to the sum exceeding 666,67 units of account for a place or unit or 2 units of account for one kg of gross weight of lost or damaged cargo, depending on what sum above» at all are not responsible.

In podp. d item 2 the unit of account is unit of "the special right of loan» as it is defined by the International currency fund. The sums are translated in national currency on the basis of cost of this currency for the date defined under the lex fori, considering case. Cost in units of "the special right of loan» national currency of the state which is a member of the International currency fund, is estimated according to a method of definition of the cost, applied International currency fund for corresponding date for its own operations and calculations. Stoi - most in units of "the special right of loan» national currency of the state which is not a member of the International currency fund, it is estimated in the way established by this state.

Nevertheless the state which is not a member of the International currency fund and which legislation does not allow to apply the positions containing in the previous phrases, can during ratification of Report 1979 or joining to it or at any time after that to declare, that the limits of responsibility provided in the present Convention and applied in its territory, are established as follows:

1) concerning the sum of 666,67 units of account specified in podp. And item 4 item 5 — 10 000 monetary units;

2) concerning the sum of 2 units of account specified in podp. And item 4 item 5 — 30 monetary units ».

The monetary unit corresponds 65,5 mg of gold of 900th test. Transfer of the sums specified in this phrase, in national currency is carried out according to the legislation of the corresponding state.

Bruxelles report 1968 has become effective on June, 23rd, 1977 after ratification by its ten countries (including England, France, Denmark, the Great Britain, Ecuador, Lebanon, Norway, Singapore, Syria, Switzerland, Sweden) and has influenced sea legislations of some the states. Report positions are reproduced in the law of England from April, 8th, 1971. The law of GDR of 1976 on trading navigation also reproduces positions of Report 1968 on limits of responsibility of a sea carrier which are applied on the terms of reciprocity.

In report 1968 legislative norms about its parity with the Convention of 1924 contain. The parity of the Convention of 1924 and Report 1968 are fixed in item 6. Between the states under the report which are also the parties under the convention, both international certificates represent indivisible unity, are read and interpreted as the uniform document.

In item 2 of item 11 of Report 1968 it is formulated corrected, that ratification of the Report by the country which is not the party under the Convention of 1924, is valid joining to the Convention.

Contracting parties can instal Report 1968 or if will give to norms of the report force of the law or if will include it in the national legislation in the corresponding form [106].

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A source: Stoyanov Rositsa Stoyanov. LEGAL REGULATION of the INTERNATIONAL SEA TRANSPORTATIONS of CARGOES. The dissertation on competition of a scientific degree of the master of laws. Saratov-2000. 2000

More on topic § 2. The international convention on unification of some rules on the bill of lading of 1924. Rules Visbi 1968 and 1979:

  1. 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
  2. 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
  3. Chapter 2. International legal unification of the rules of substantive law about a concession of incorporeal rights
  4. unification of rules of proving in the international commercial arbitration by means of private sources
  5. CHAPTER 2. LEGAL REGULATION of the INTERNATIONAL SEA TRANSPORTATIONS of CARGOES UNDER the BILL of lading
  6. 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
  7. § 1. The Ocean bill of lading: the legal nature, the maintenance, kinds
  8. 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)
  9. 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)
  10. Rules speaking and rules of the addressee in diskursivnoj to irony practice
  11. 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)
  12. § 3. Unification of norms about a concession of incorporeal rights in the Convention on the international guarantees concerning the mobile equipment of 2001
  13. rules about reception of proofs in the international arbitration
  14. § 2. Conflict rules about a concession of incorporeal rights in the international certificates
  15. § 1. Unification of norms about a concession of incorporeal rights in Convention unidrua about international faktoringe 1988
  16. § 2.3.1. Features of rules of procedure of international law