Andrew Cave is General Manager of Cave Liquidadores de Seguros
The imposition of the stronger over the weaker, so present in today’s global agenda, and the disruptions in global maritime trade, lead us to value even more something that is often taken for granted: the importance of the existence of rules and the commitment of all parties to comply with them, even though they may sometimes be unfavorable to the interests of one party or another.
In maritime transport, the United Nations provided a Convention in 1978, called the Hamburg Rules, which seeks to regulate the liability of the maritime carrier of goods, modernizing what existed at the time, increasing legal certainty in global trade and balancing responsibilities among operators involved in international trade by sea.
The Hamburg Rules entered into force worldwide after twenty countries ratified them, which occurred at the beginning of the 1990s, with Chile being one of the countries that has subscribed to them.
However, given the uncertainty that the Convention would enter into force, in 1988 Chile incorporated a large part of the rules of the Hamburg Rules into the new Book Three of the Commercial Code, transcribing almost all of them exactly, modifying a few, leaving some out, and incorporating some of national origin.
The Convention determines what will be applicable to contracts of maritime carriage, regardless of the will of the parties, when, among others, the port of loading or discharge is located in a country that is a contracting party to the Convention. This means that, regardless of the clauses of the contract of carriage, all cargo exported from or imported into any country adhering to the Hamburg Rules will be subject to this regulation.
Unlike the conventions that preceded it, the Hamburg Rules are perceived as more favorable to the interests of the cargo. This is reflected in the fact that practically all the countries that originally ratified the Hamburg Rules are exporting /or importing countries with little or no maritime industry of their own, with Chile and Egypt being the exception.
One of the notable points in this regard is that the carrier will only be exempt from liability if it can prove that it, its servants and agents took all measures that could reasonably be required to avoid the event causing the loss and its consequences. This is undoubtedly a very high bar and, in our experience, has never been overcome.
Some of the notable aspects of the Hamburg Rules, in particular, are that: unlike the conventions that preceded them, the limitation period for filing claims is two years, instead of just one. Furthermore, the limits of liability are higher than in previous conventions.
Another important feature of the Hamburg Rules is that they incorporate the carrier’s liability for damages that may arise from delay in delivery of the goods. The Convention defines when delay in delivery occurs, as well as establishing a limit of liability for damages caused by this situation.
Although the Hamburg Rules have not been widely adopted in the maritime cargo transport industry, they are important in South America. In Latin America, after Chile, recently Peru and Ecuador have adopted this Convention as part of their national regulations, and we understand that there would be at least two other Latin American countries evaluating subscribing to them.
As we can see, in light of the world events we observe daily in recent times, this convention drawn up under the auspices of the United Nations seems to make more and more sense.
