United Nations Convention on the Carriage of Goods by Sea, 1978 (Hamburg Rules)
The States Parties to this Convention,
Recognize that need to determine by agreement a numb of rules governing the carriage of goods by sea,
Decided to conclude a convention for this purpose, and agreed as follows:
The first part of the general rules
The first definition
In this Convention:
1. "Carrier" means any person who has entered into a contract of carriage of goods by sea with the shipper by himself or in his name.
2. "Actual carrier" means any person entrusted by the carrier to carry out the transport of goods or part of the transport of goods, including any other person entrusted to carry out this transport.
3. "Shipper" means any person who has entered into a contract of carriage of goods by sea with a carrier or who has actually delivered the goods to the carrier related to the contract of carriage of goods by sea.
4. "Consignee" means the person who has the right to take delivery of the goods.
5. "Goods" include live animals. Where goods are packed in containers, pallets or similar means of transport, or goods are packaged, and such means of transport or packaging are provided by the shipper, "goods" include them.
6. "Contract of carriage by sea" means any contract under which the carrier collects freight and undertakes to transport goods from one port to another by sea; However, a contract that includes both maritime transport and some other modes of transport is regarded as a contract of carriage by sea within the scope of this Convention.
7. "Bill of Lading" refers to a document used to prove the contract of carriage by sea and that the goods are taken over or loaded by the carrier, so that the carrier can guarantee the delivery of the goods. The stipulation in the document that the goods should be delivered to the designated consignee or to the order, or to the holder of the bill of lading constitutes this guarantee.
8. "Written" includes, among other means, telegram and telex.
Article 2 Scope of application
1. The provisions of this Convention apply to all contracts of carriage by sea between two different countries if:
(a) The port of loading stipulated in the contract of carriage by sea is located in a Contracting State, or
(b) The port of discharge stipulated in the contract of carriage by sea is located in a Contracting State, or
(c) One of the alternative ports of discharge stipulated in the contract of carriage by sea is the actual port of discharge, and the port is located in a Contracting State, or
(d) The bill of lading or other documents evidencing the contract of carriage by sea is issued in a Contracting State, or
(e) The bill of lading or other documents evidencing the contract of carriage by sea stipulates that the provisions of this Convention or the legislation of any country implementing this Convention shall bind the contract.
2. The provisions of this Convention shall apply irrespective of the nationality of the ship, the carrier, the actual carrier, the shipper, the consignee or any other interested person.
3. The provisions of this Convention do not apply to charterparties. However, if the bill of lading is issued in accordance with the charter party and the relationship between the carrier and the holder of the bill of lading who is not the charterer is drawn, the provisions of this Convention shall apply to the bill of lading.
If the contract stipulates that the goods will be transported in batches within an agreed time limit, the provisions of this Convention shall apply to each batch of transportation. However, if the transportation is carried out in accordance with the charter party, the provisions of paragraph 3 of this article shall apply.
Article 3 Interpretation of this Convention
When interpreting and applying the provisions of this Convention, attention should be paid to the international nature of this Convention and the need to promote unification.
Part II Liability of the Carrier
Article 4 Period of responsibility
1. According to this Convention, the period of the carrier’s responsibility for the goods includes all the periods when the goods are in the carrier’s charge at the port of loading, during the transit and at the port of discharge.
2. For the purposes of paragraph 1 of this article, the carrier shall be deemed to be in charge of the goods during the following period:
(a) Since the carrier takes over the goods from:
(i) The shipper or a person acting on his behalf; or
(ii) According to the applicable laws or regulations at the port of loading, the goods must be delivered to the authorities where they are shipped or other third parties;
(b) Until the carrier delivers the goods to:
(i) Deliver the goods to the consignee; or
(ii) If the consignee fails to take delivery of the goods from the carrier, the goods shall be placed under the control of the consignee in accordance with the contract or the applicable laws or special trade practices at the port of discharge; or
(iii) Deliver the goods to the authorities or other third parties who must deliver them according to the laws or regulations applicable at the port of discharge.
3. The carrier or consignee mentioned in paragraphs 1 and 2 of this article means not only the carrier and the consignee, but also the servant or agent of the carrier or the consignee respectively.
Article 5 Basis of Responsibility
1. Unless the carrier proves that his servant or agent has taken all reasonable measures to avoid the accident and its consequences, the carrier shall be liable for the losses caused by the loss of or damage to the goods or the delay in delivery. If the accident that caused the loss, damage or delay in delivery occurred while the carrier was in charge, as mentioned in Article 4.
2. If the goods fail to be delivered at the port of discharge stipulated in the contract of carriage by sea within the clearly agreed time, or if there is no such agreement, they fail to be delivered at the port of discharge within the time reasonably required by a diligent carrier in consideration of the actual situation, it is a delay in delivery.
3. If the goods are not delivered in accordance with the requirements of Article 4 within 60 consecutive days after the delivery time stipulated in Paragraph 2 of this Article expires, the person entitled to claim for the loss of the goods may regard the goods as lost.
4. (a) The carrier is liable for:
(i) The loss, damage or delay in delivery of the goods caused by the fire, if the claimant proves that the fire was caused by the fault or negligence of the carrier, his servants or agents;
(ii) Loss, damage or delay in delivery of the goods proved by the claimant due to the negligence or negligence of the carrier, its servants or agents in taking all measures that can be reasonably required to extinguish the fire disaster and avoid or mitigate its consequences.
(b) Where the fire on the ship affects the goods, if the claimant or the carrier requests, the cause and situation of the fire must be investigated in accordance with the maritime practice, and a report of the investigator shall be provided to the carrier and the claimant as required.
With regard to live animals, the carrier shall not be liable for loss, damage or delay in delivery caused by any special risks inherent in such transportation. If the carrier proves that he acted in accordance with any special instructions on animals given to him by the shipper, and proves that the loss, damage or delay in delivery can be attributed to this kind of risk according to the actual situation, it shall be presumed that the loss, damage or delay in delivery is caused in this way, unless it is proved that all or part of the loss, damage or delay in delivery is caused by the fault or negligence of the carrier, his servants or agents.
6. The carrier shall not be liable for loss, damage or delay in delivery caused by taking measures to save life or reasonable measures to save property at sea, except contributing to general average.
7. If the loss, damage or delay in delivery of the goods is caused by the fault or negligence of the carrier, its servants or agents and other reasons, the carrier shall be liable for compensation only to the extent that the loss, damage or delay in delivery is caused by their fault or negligence, but the carrier shall prove that it is not the amount of loss, damage or delay in delivery caused by such fault or negligence.
Article 6 limitation of liability
1. (a) According to the provisions of Article 5, the carrier’s liability for compensation for losses caused by loss of or damage to goods shall be limited to the amount equivalent to 835 accounting units or 2.5 accounting units per kilogram of gross weight for each lost or damaged goods or other freight units, whichever is the higher.
(b) According to Article 5, the carrier’s liability for delay in delivery is limited to an amount equivalent to 2.5 times of the freight payable for the delayed goods, but shall not exceed the total freight payable under the contract of carriage of goods by sea.
(c) According to subparagraphs (a) and (b) of this paragraph, the total liability of the carrier shall in no case exceed the limit of liability for total loss of goods stipulated in subparagraph (a) of this paragraph.
2. According to paragraph 1 (a) of this article, the following rules shall be observed when calculating the higher amount:
(a) When containers, pallets or similar means of transport are used to assemble goods, if a bill of lading is issued, the number of pieces or other freight units contained in such means of transport, which is listed in the bill of lading or in any other document evidencing the contract of carriage by sea, shall be regarded as the number of pieces or freight units. In addition to the above situation, the goods in this transportation device are regarded as a freight unit.
(b) When the means of transport itself is lost or damaged, if it is not owned or provided by the carrier, it shall be regarded as a separate freight unit.
3. The unit of account refers to the unit of account mentioned in Article 26.
4. The carrier and the shipper may, by agreement, determine the limit of liability in excess of that stipulated in paragraph 1.
Article 7 Application of Non-contractual Claims
1. The defences and limits of liability provided for in this Convention shall apply to the loss or damage of the goods involved in the contract of carriage by sea, as well as any lawsuit brought against the carrier for delay in delivery, whether such lawsuit is based on contract, tort or otherwise.
2. If such an action is brought against the servant or agent of the carrier, and the servant or agent can prove that he acted within the scope of his employment, he is entitled to avail himself of the defences and limits of liability that the carrier is entitled to invoke under this Convention.
3. Except as provided in Article 8, the total amount of compensation obtained from the carrier and any person referred to in paragraph 2 of this Article shall not exceed the limitation of liability stipulated in this Convention.
Article 8 Loss of the right to limit liability
1. If it is proved that the loss, damage or delay in delivery is caused by an act or omission of the carrier that intentionally caused such loss, damage or delay in delivery, or by an act or omission of the carrier that was done recklessly knowing that such loss, damage or delay in delivery might occur, the carrier shall not be entitled to the benefit of the limitation of liability stipulated in Article 6.
2. Notwithstanding paragraph 2 of Article 7, if it is proved that the loss, damage or delay in delivery is caused by the act or omission of the employee or agent intentionally causing such loss, damage or delay in delivery, or by the act or omission of the employee or agent recklessly knowing that such loss, damage or delay in delivery may occur, the employee or agent of the carrier shall not be entitled to the benefit of the limitation of liability stipulated in Article 6.
Article 9 deck cargo
1. The carrier has the right to carry the goods on deck only in accordance with the agreement with the shipper, or in accordance with specific trade practices, or in accordance with the requirements of laws and regulations.
2. If the carrier and the shipper agree that the goods should or can be carried on deck, the carrier must put a corresponding statement on the bill of lading or other documents evidencing the contract of carriage by sea. Without this statement, it is the carrier’s responsibility to prove that an agreement has been reached for carriage on deck. However, the carrier has no right to invoke this agreement against the third party, including the consignee, who believes in and holds the bill of lading.
3. If the goods are carried on deck in violation of the provisions of paragraph 1 of this article, or the carrier cannot invoke the agreement on carriage on deck in accordance with paragraph 2 of this article, notwithstanding the provisions of paragraph 1 of Article 5, the carrier shall still be liable for the loss or damage of the goods and the delay in delivery caused only by carriage on deck, and the limit of its liability shall be determined in accordance with the provisions of Article 6 or Article 8 of this Convention as the case may be.
Loading the goods on deck in violation of the express agreement to load the goods in the cabin shall be regarded as an act or omission of the carrier within the meaning of Article 8.
Article 10 Liability of the carrier and the actual carrier
1. If the performance of the transport or part of the transport is entrusted to the actual carrier, the carrier shall still be responsible for the whole transport in accordance with the provisions of this Convention, regardless of whether it is entitled to do so under the contract of carriage by sea. With regard to the transportation performed by the actual carrier, the carrier shall be responsible for the acts or omissions of the actual carrier and its employees and agents within the scope of their employment.
2. All the provisions of this Convention on the carrier’s liability also apply to the actual carrier’s liability for the transportation performed by it. If a lawsuit is brought against the employee or agent of the actual carrier, the provisions of paragraphs 2 and 3 of Article 7 and paragraph 2 of Article 8 shall apply.
3. Any special agreement under which the carrier assumes the obligations not stipulated in this Convention or waives the rights conferred by this Convention can only affect the actual carrier if he expressly agrees in writing. Whether the actual carrier has agreed or not, the carrier is still bound by the obligations or waivers caused by this special agreement.
4. If both the carrier and the actual carrier are liable, they shall be jointly and severally liable within the scope of this liability.
5. The total amount of compensation obtained from the carrier, the actual carrier and their servants and agents shall not exceed the limitation of liability stipulated in this Convention.
6. The provisions of this article are without prejudice to any right of recourse between the carrier and the actual carrier.
Article 11 through transport
1. Notwithstanding the provisions of Article 10, paragraph 1, if the contract of carriage by sea clearly stipulates that a specific part of the carriage included in the contract shall be performed by a designated person other than the carrier, the contract may also stipulate that the carrier shall not be responsible for the loss, damage or delay in delivery of the goods during this part of the carriage, which is under the control of the actual carrier. However, if legal proceedings cannot be brought against the actual carrier in a competent court in accordance with the provisions of Article 21, paragraph 1 or paragraph 2, any provision limiting or exempting such liability shall be null and void. The carrier shall bear the burden of proof to prove that any loss, damage or delay in delivery is caused by the above-mentioned events.
2. According to Article 10, paragraph 2, the actual carrier shall be responsible for the loss, damage or delay in delivery of the goods caused by accidents while in his charge.
Part III Liability of Shipper
Article 12 General rules
The shipper shall not be liable for the loss suffered by the carrier or the actual carrier or the damage suffered by the ship, unless such loss or damage is caused by the fault or negligence of the shipper, his servants or agents. Any servant or agent of the shipper shall not be liable for such loss or damage, unless such loss or damage is caused by his own fault or negligence.
Article 13 Special rules on dangerous goods
1. The shipper must mark or label the dangerous goods in an appropriate way.
2. When the shipper delivers the dangerous goods to the carrier or the actual carrier, the shipper must inform the danger of the goods and, if necessary, the preventive measures to be taken. If the shipper fails to do so, and the carrier or the actual carrier does not know the dangerous characteristics of the goods from other sources, then:
(a) The shipper shall be liable to the carrier and any actual carrier for the losses caused by carrying such goods. and
(b) The goods can be unloaded, destroyed or rendered harmless at any time according to the needs of the situation without compensation;
3. No one may invoke the provisions of paragraph 2 of this article if he takes over the goods knowing the dangerous characteristics during transportation.
4. If the provisions of paragraph 2 (b) of this article are not applicable or can not be invoked, and the dangerous goods cause actual danger to life or property, the goods may be unloaded, destroyed or rendered harmless without compensation, except for the obligation of general average contribution or the liability of the carrier according to Article 5.
Part IV Transport Documents
Article 14 issuance of bills of lading
1. When the carrier or actual carrier takes over the goods, the carrier must issue the bill of lading to the shipper at the request of the shipper.
2. The bill of lading may be signed by the person authorized by the carrier. A bill of lading signed by the captain of the ship carrying the goods shall be deemed to be signed on behalf of the carrier.
3. The signature on the bill of lading can be handwritten, copied, punched, stamped, symbolized, or by any other mechanical or electronic means provided that it does not violate the laws of the country where the bill of lading is issued.
Article 15 Contents of Bill of Lading
1. The bill of lading must include the following items, among other things:
(a) The category of the goods, the main signs necessary to identify the goods, such as dangerous goods, a clear description of the dangerous characteristics of the goods, the number of packages or pieces, the weight of the goods or the quantity expressed in other ways, etc., all of which are provided by the shipper;
(b) the appearance of the goods;
(c) The name and principal place of business of the carrier;
(d) the name of the shipper;
(e) If the shipper designates the consignee, the name of the consignee;
(f) The port of loading stipulated in the contract of carriage by sea and the date when the carrier takes over the goods at the port of loading;
(g) the port of discharge stipulated in the contract of carriage by sea;
(h) If there is more than one original bill of lading, specify the number of original bills of lading;
(i) the place of issue of the bill of lading;
(j) The signature of the carrier or its representative;
(k) The amount of freight payable by the consignee or other explanations of freight paid by the consignee;
(l) The declaration referred to in article 23, paragraph 3;
(m) In the case of deck cargo, a statement that the cargo should or can be transported on deck;
(n) If expressly agreed by both parties, the date or time limit for delivery of the goods at the port of discharge shall be specified; and
(o) Any increased liability limit agreed in accordance with Article 6, paragraph 4.
2. After the goods are loaded, the carrier must issue a "loaded" bill of lading to the shipper if the shipper so requests. In addition to the items specified in paragraph 1 of this article, the bill of lading must also indicate that the goods have been loaded on one or more designated ships and one or more loading dates. If the carrier has previously issued a bill of lading or other documents of title to the shipper on any part of the goods, the shipper must return such documents in exchange for the "on board" bill of lading at the request of the carrier. In order to meet the shipper’s requirements for the "on board" bill of lading, the carrier may modify any previously issued documents, but the modified documents shall include all the items required in the "on board" bill of lading.
3. The lack of one or more of the items specified in this article does not affect the legal nature of the document as a bill of lading, but the document must meet the requirements specified in Article 1, paragraph 7.
Article 16 Bill of Lading: Reservation and Evidence Effect
1. If the carrier or other person who issues the bill of lading on his behalf knows or has reasonable grounds to suspect that the items contained in the bill of lading, such as the category, main marks, number of packages or pieces, weight or quantity, do not accurately represent the goods actually taken over, or in the case of issuing the "on board" bill of lading, do not accurately represent the goods actually shipped, or he has no proper method to check these items, the carrier or other person must make a reservation on the bill of lading, indicating.
2. If the carrier or other person who issues the bill of lading on his behalf fails to annotate the appearance of the goods on the bill of lading, it shall be deemed that he has indicated that the goods are in good appearance on the bill of lading.
3. In addition to the reservation of permission for the relevant project and its scope according to the provisions of paragraph 1 of this article:
(a) The bill of lading is prima facie evidence that the carrier takes over or, if a "on board" bill of lading is issued, loads the goods described in the bill of lading;
(b) If the bill of lading has been transferred to a third party, including the consignee, who believes in the description of the goods in the bill of lading and acts accordingly, the carrier will not accept the evidence to the contrary.
4. If the bill of lading fails to specify the freight or otherwise state that the freight is paid by the consignee or that the demurrage incurred at the loading port is paid by the consignee in accordance with Article 15, paragraph 1 (k), the bill of lading is prima facie evidence that the consignee does not pay the freight or demurrage. If the bill of lading has been transferred to a third party, including the consignee, who believes that there is no such statement on the bill of lading, the evidence to the contrary presented by the carrier will not be accepted.
Article 17 the shipper’s warranty
1. The shipper shall be deemed to have assured the carrier that the category, mark, number of pieces, weight and quantity of the goods listed in the bill of lading provided by him are correct. The shipper must compensate the carrier for the losses caused by the inaccuracy of these items. Even if the shipper has transferred the bill of lading, he is still liable for compensation. This right of compensation obtained by the carrier will in no way reduce his liability for compensation to anyone other than the shipper under the contract of carriage by sea.
2. Any letter of guarantee or agreement under which the shipper guarantees to compensate the carrier for the losses caused by issuing the bill of lading because the carrier or its representative fails to provide the consignor with comments and reservations on the items or the appearance of the goods included in the bill of lading is invalid for any third party, including the consignee.
3. This letter of guarantee or agreement is valid for the shipper, unless the carrier or his representative does not endorse the reservation referred to in paragraph 2 of this article as intentional fraud, and a third party, including the consignee, believes in the description of the goods in the bill of lading. In the latter case, if the unmarked reservation is related to the items provided by the shipper for inclusion in the bill of lading, the carrier has no right to demand compensation from the shipper in accordance with paragraph 1 of this article.
4. In case of intentional fraud referred to in paragraph 3 of this article, the carrier shall not enjoy the benefit of the limitation of liability stipulated in this Convention, and shall be liable for the losses suffered by the third party, including the consignee, who acted because of believing the description of the goods contained in the bill of lading.
Article 18 Documents other than bills of lading
If the carrier issues a document other than the bill of lading to prove the receipt of the goods to be shipped, the document is the preliminary evidence of the conclusion of the contract of carriage by sea and the carrier’s taking over the goods described in the document.
Part V Claims and Litigation
Article 19 Notice of loss, damage or delay in delivery
1. Unless the consignee sends a written notice of loss or damage to the carrier not later than the first working day after the date when the goods are handed over to him, stating the general nature of the loss or damage, such handover shall be regarded as the prima facie evidence of the carrier’s delivery of the goods described in the transport document or, if no such document is issued, as the prima facie evidence of the delivery of the goods in good condition.
2. In case of inconspicuous loss or damage: if the written notice is not sent within fifteen consecutive days after the goods are delivered to the consignee, the provisions in paragraph 1 of this article shall apply accordingly.
3. If the condition of the goods has been jointly inspected or inspected by the parties at the time of delivery to the consignee, there is no need to send a written notice on the loss or damage identified in the inspection or inspection.
In case of any actual or unexpected loss or loss, the carrier and the consignee must provide all reasonable facilities for each other to inspect and count the goods.
5. Unless the carrier is notified in writing within 60 consecutive days after the goods are delivered to the consignee, no compensation will be paid for the losses caused by the delayed delivery.
6. If the goods are delivered by the actual carrier, any notice given to him according to this article has the same effect as that given to the carrier, and similarly, any notice given to the carrier has the same effect as that given to the actual carrier.
7. Unless the carrier or the actual carrier sends a written notice of the loss or damage to the shipper not later than the occurrence of the loss or damage accident or within 90 consecutive days after the delivery of the goods in accordance with Article 4, paragraph 2, whichever occurs later, stating the general nature of such loss or damage, the failure to submit such notice is prima facie evidence that the carrier or the actual carrier has not suffered loss or damage due to the fault or negligence of the shipper or its servants or agents.
8. For the purposes of this article, a notice shall be deemed to have been delivered to the carrier, the actual carrier or the shipper respectively if it is delivered to the person acting on behalf of the carrier or the actual carrier, including the master or the officer in charge of the ship, or to the person acting on behalf of the shipper.
Article 20 Limitation of action
1. Any litigation concerning the carriage of goods in accordance with this Convention shall be time-barred if judicial or arbitration proceedings are not instituted within two years.
2. The limitation period starts from the date when the carrier delivers the goods or part of the goods. If the goods are not delivered, it starts from the last day when the goods should be delivered.
3. The starting date of the limitation period is not counted in the period.
4. The person against whom compensation is claimed may, at any time within the limitation period, submit a written explanation to the claimant to extend the limitation period. This time limit may be further extended by another statement or statements.
5. If the lawsuit is filed within the time permitted by the national laws of all countries where the lawsuit is filed, the person liable for compensation may file a lawsuit for compensation even after the expiration of the limitation period stipulated in the above paragraphs. However, the time allowed shall not be less than 90 days from the date when the person who initiated the claim lawsuit has settled his compensation or the summons filed by himself has been delivered.
Article 21 Jurisdiction
1. According to the provisions of this Convention, the plaintiff may choose to bring a lawsuit in such a court, which has jurisdiction according to the laws of the country where the court is located, and one of the following places is located within the jurisdiction of the court:
(a) The defendant’s principal place of business or, if there is no principal place of business, his usual residence; or
(b) the place where the contract was concluded, provided that the contract was concluded through the defendant’s business office, branch or agency there; or
(c) Port of loading or port of discharge; or
(d) Any other place designated for this purpose in the contract of carriage by sea.
2. (a) Notwithstanding the above provisions of this Article, if a ship carrying cargo or any other ship belonging to the same owner is detained in any port or place of a Contracting State in accordance with the applicable legal rules of that country and the rules of international law, a lawsuit may be brought in the court of that port or place. However, in this case, upon the request of the defendant, the plaintiff must transfer the lawsuit to one of the competent courts referred to in paragraph 1 of this article selected by the plaintiff to make a judgment on the claim. However, before the lawsuit is transferred, the defendant must provide sufficient deposit to ensure the payment of the amount that may be finally awarded to the plaintiff in the lawsuit.
(b) All questions concerning the adequacy of the security deposit shall be decided by the court of the port or place of detention.
3. All legal proceedings concerning the carriage of goods in accordance with this Convention shall not be brought at a place not specified in paragraphs 1 or 2 of this article. The provisions of this paragraph are without prejudice to the jurisdiction of States parties to take temporary or protective measures.
4. (a) If a lawsuit has been filed in a court that has jurisdiction according to paragraph 1 or 2 of this article, or a judgment has been made by such a court, a new lawsuit may not be filed between the same parties for the same reason, unless the judgment of the court that handled the first lawsuit cannot be enforced in the country where the new lawsuit is filed;
(b) For the purposes of this article, measures taken to enforce the judgment shall not be regarded as bringing new proceedings;
(c) For the purposes of this article, the transfer of proceedings to another court in the same country or to a court in another country in accordance with paragraph 2 (a) of this article shall not be regarded as the institution of new proceedings.
5. Notwithstanding the provisions of the above paragraphs, after the claim is filed in accordance with the contract of carriage by sea, the agreement reached by the parties to designate the place where the claimant can bring an action shall be valid.
Article 22 Arbitration
1. In accordance with the provisions of this Article, the parties may agree in writing that any dispute concerning the carriage of goods that may arise under this Convention shall be submitted to arbitration.
2. If the charter party contains a clause that disputes arising from the contract shall be submitted for arbitration, and the bill of lading issued under the charter party does not specifically indicate that this clause is binding on the holder of the bill of lading, the carrier shall not invoke this clause against the holder of the bill of lading who believes in the bill of lading.
3. The plaintiff may choose to initiate arbitration proceedings in one of the following places:
(a) At a certain place in a country, there should be:
(i) The defendant’s principal place of business or, if there is no principal place of business, his usual residence; or
(ii) the place where the contract was signed, provided that the contract was concluded through the defendant’s business office, branch or agency there; or
(iii) Port of loading or port of discharge; or
(b) Any place designated for this purpose in the arbitration clause or agreement.
4. Arbitrators or arbitral tribunals shall apply the rules of this Convention.
5. The provisions in paragraphs 3 and 4 of this article shall be regarded as part of each arbitration clause or agreement, and any provisions in the arbitration clause or agreement that are inconsistent with these two paragraphs shall be null and void.
6. Nothing in this article shall affect the validity of the relevant arbitration agreement concluded by the parties after the claim is filed in accordance with the contract of carriage by sea.
Part VI Supplementary Provisions
Article 23 contract terms
1. Any clause in the contract of carriage by sea, bill of lading or any other document evidencing the contract of carriage by sea shall be null and void to the extent that it directly or indirectly violates the provisions of this Convention. The invalidity of such clauses shall not affect the validity of the provisions as other parts of the contract or document. A clause transferring the insurable interest of the goods to the carrier, or any similar clause, is null and void.
2. Notwithstanding the provisions of paragraph 1 of this article, the carrier may increase his responsibilities and obligations stipulated in this Convention.
3. When issuing the bill of lading or any other document evidencing the contract of carriage by sea, it must contain a statement that the carriage complies with the provisions of this Convention, and any clause that deviates from this Convention and is harmful to the shipper or consignee shall be null and void.
4. If the claimant of the goods concerned suffers losses due to this clause invalidating a contract clause or omitting the statement referred to in paragraph 3 of this article, in order to compensate the claimant, the carrier must stipulate the compensation within the required limit for any loss or damage of the goods and delay in delivery and payment in accordance with this Convention. In addition, the carrier must compensate the claimant for the expenses incurred in exercising his rights, but the expenses incurred in the lawsuit invoking the above provisions shall be determined in accordance with the laws of the country where the lawsuit is filed.
Article 24 General average
1. The provisions of this Convention shall not prejudice the application of the provisions on general average adjustment in the contract of carriage by sea or national laws.
2. In addition to Article 20, the provisions of this Convention on the carrier’s liability for loss of or damage to the goods also determine whether the consignee can refuse to contribute in general average and the carrier’s liability for any such contribution or salvage charges paid by the consignee.
Article 25 Other Conventions
1. This Convention shall not change the rights or obligations of the carrier, the actual carrier and their servants and agents as stipulated in international conventions or national laws on the limitation of liability of maritime shipowners.
2. The provisions of Articles 21 and 22 of this Convention shall not prevent the application of the mandatory provisions of any other multilateral convention that has entered into force on the date of conclusion of this Convention, provided that the dispute completely occurs between parties whose principal places of business are in contracting countries of such other conventions. However, this paragraph shall not affect the application of paragraph 4 of Article 22 of this Convention.
3. The damage caused by a nuclear accident shall not be liable for compensation according to the provisions of this Convention, if the operator of the nuclear device is liable for the damage according to the following provisions:
(a) According to the Paris Convention on Third Party Liability in the Field of Nuclear Energy of July 29th, 1960 as amended by the Additional Protocol of January 28th, 1964 or the Vienna Convention on Civil Liability for Nuclear Damage of May 21st, 1963, or
(b) according to the national laws that provide for compensation for such damage, provided that such laws are as beneficial to the person who may suffer damage in all aspects as the Paris Convention or the Vienna Convention.
4. If the carrier is liable for any loss, damage or delay in delivery of the luggage according to any international convention or national laws concerning the carriage of passengers and their luggage by sea, no liability will occur according to the provisions of this Convention.
5. The provisions of this Convention shall not prevent the Contracting States from applying any other international convention that has entered into force on the date of the conclusion of this Convention, which is compulsorily applicable to contracts of carriage of goods whose main mode of transport is not maritime transport. This provision also applies to any subsequent revision or modification of this international convention.
Article 26 Accounting unit
1. The unit of account referred to in Article 6 of this Convention is the special drawing right stipulated by the International Monetary Fund. The amount mentioned in Article 6 shall be converted into the domestic currency according to the value of the national currency on the judgment date or the date agreed by the parties. Where a State Party to this Convention is a member of the International Monetary Fund, the value of its domestic currency expressed in special drawing rights shall be calculated according to the fixed value method applied in the business and transactions of the International Goods Fund on the above date. The value of the national currency expressed by special drawing rights in a country that is not a member of the International Monetary Fund shall be calculated according to the method decided by that country.
2. However, a country that is not a member of the International Monetary Fund and whose laws do not allow the application of the provisions of paragraph 1 of this article may declare at the time of signature, or at the time of ratification, acceptance, approval or accession, or at any time thereafter that the limitation of liability stipulated in this Convention is applicable within its territory, and it shall be determined as follows:
12,500 currency units per package of goods or other freight units, or 37.5 currency units per kilogram of gross weight of goods.
3. The monetary unit referred to in paragraph 2 of this article is equal to 65.5 milligrams of gold with a purity of 900%. When converting the amount referred to in paragraph 2 into the national currency, it shall be handled in accordance with the laws of that country.
4. The calculation mentioned in the last sentence of paragraph 1 of this article and the conversion mentioned in paragraph 3 of this article shall be carried out in such a way that the actual value of the amount expressed in the currency of a Contracting State is the same as that expressed in the unit of account in Article 6 as far as possible. When signing, or when depositing their instruments of ratification, acceptance, approval and accession, or when making use of the options provided for in paragraph 2 of this article, and when there is a change in the calculation method or the conversion result, a Contracting State must, as the case may be, notify the depositary of the Convention of the calculation method decided in accordance with paragraph 1 of this article or the conversion result mentioned in paragraph 3 of this article.
Part VII Final Clauses
Article 27 Custodian
The Secretary-General of the United Nations is hereby designated as the depositary of this Convention.
Article 28 Signature, ratification, acceptance, approval and accession
1. This Convention is open to all countries for signature at the United Nations Headquarters in new york before April 30th, 1979.
2. This Convention is subject to ratification, acceptance or approval by signatory States.
3. After April 30th, 1979, this Convention is open to all countries that are not signatories for accession.
4. The instruments of ratification, acceptance, approval and accession shall be kept by the Secretary-General of the United Nations.
Article 29 Reservations
No reservations shall be made to this convention.
Article 30 comes into force
1. This Convention shall enter into force on the first day of the month following the expiration of one year from the date of deposit of the twentieth instrument of ratification, acceptance, approval or accession.
2. For each country that becomes a contracting party to this Convention after the date of deposit of the twentieth instrument of ratification, acceptance, approval or accession, this Convention shall enter into force on the first day of the month following the expiration of one year from the date of deposit of the corresponding documents by that country.
3. Each Contracting State shall apply the provisions of this Convention to contracts of carriage by sea signed on or after the date of entry into force of this Convention for that State.
Article 31 Withdrawal from other conventions
1. When becoming a contracting party to this Convention, all contracting parties to the International Convention for the Unification of Certain Rules on Bills of Lading (1924 Convention) signed in Brussels on August 25th, 1924 must notify the Belgian government as the depositary of the 1924 Convention to withdraw from the Convention, and declare that the withdrawal will take effect as of the date when this Convention comes into effect for that country.
2. According to Article 30, paragraph 1, when this Convention enters into force, the depositary of this Convention must notify the Belgian Government, the depositary of the 1924 Convention, of the date of entry into force and the names of the contracting States for which this Convention enters into force.
3. The provisions of paragraphs 1 and 2 of this article shall be applicable to the contracting States of the Protocol amending the International Convention for the Unification of Certain Rules on Bills of Lading signed in Brussels on August 25th, 1924 on February 23rd, 1968.
4. Notwithstanding the provisions of Article 2 of this Convention, as far as paragraph 1 of this article is concerned, a Contracting State may, if it deems it necessary, postpone its withdrawal from the 1924 Convention and the 1924 Convention as amended by the 1968 Protocol for a maximum period of five years from the date of entry into force of this Convention, in which case it shall notify the Belgian government of its intention. During this transitional period, the State Party must apply this Convention to other States Parties, but not to any other conventions.
Article 32 Revision and revision
1. At the request of not less than one third of the States parties to this Convention, the depositary shall convene a meeting of the States parties to revise or modify this Convention.
2. Any instrument of ratification, acceptance, approval or accession deposited after the entry into force of the amendment to this Convention shall be deemed to be applicable to this Convention as amended.
Article 33 Revision of quota and accounting unit or monetary unit
1. Notwithstanding the provisions of Article 32, the depository shall, in accordance with the provisions of Paragraph 2 of this Article, convene a meeting specifically for the purpose of amending the amounts specified in Article 6 and Paragraph 2 of Article 26 or replacing two or one of the units specified in Paragraphs 1 and 3 of Article 26 with other units. Only when the actual value of the amount has changed significantly can it be revised.
2. At the request of not less than one quarter of the Contracting States, the depositary shall convene an amendment conference.
3. Any decision of the conference must be made by a two-thirds majority of the participating countries. The amendment shall be sent by the depositary to all States parties for acceptance and notified to all signatories to the Convention.
4. Any amendment adopted shall enter into force on the first day of the month following the expiration of one year from the date when it is accepted by two thirds of the States parties. When accepting an amendment, an official document expressing acceptance shall be deposited with the custodian.
5. After the amendment comes into force, the Contracting State that accepts the amendment has the right to apply the revised convention in its relations with the Contracting State that has not notified the depositary that it is not bound by the amendment within six months after the adoption of the amendment.
6. Any instrument of ratification, acceptance, approval or accession deposited after the entry into force of the amendment to this Convention shall be deemed to apply to the amended Convention.
Article 34 Withdrawal
1. A Contracting State may denounce this Convention at any time by written notification to the Depositary.
2. Denunciation of this Convention shall take effect on the first day of the month following the expiration of one year from the date when the depositary receives the notification. If a longer period is specified in the notice, the denunciation of this Convention shall take effect upon the expiration of the longer period after the depositary receives the notice.
Done at Hamburg on March 31st, 1978 in one original. Its Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic.
In witness whereof, the following plenipotentiaries, duly authorized by their governments, have signed this Convention.
Common understanding adopted by the United Nations Conference on the Transport of Goods by Sea
We have reached the following common understanding: According to this Convention, the carrier’s liability is based on the principle of presumption of fault or negligence. In other words, the carrier usually bears the burden of proof, but in some cases, the provisions of the convention will change this rule.
Resolutions adopted by the United Nations Conference on the Transport of Goods by Sea
"United Nations Conference on the Transport of Goods by Sea,
"Noting with gratitude the kind invitation of the Federal Republic of Germany to hold a meeting in Hamburg,
"Recognizing that the facilities provided to the Conference by the Government of the Federal Republic of Germany and the Free and Hanseatic City of Hamburg and the warm hospitality extended to the participants have contributed greatly to the success of the Conference,
"Thanks to the Government and people of the Federal Republic of Germany,
"At the request of the United Nations Conference on Trade and Development, the Convention on the Carriage of Goods by Sea was adopted on the basis of the draft convention prepared by the United Nations Commission on International Trade Law.
"Thanks to the United Nations Commission on International Trade Law and the United Nations Conference on Trade and Development for their outstanding contributions to the simplification and harmonization of the laws governing the carriage of goods by sea,
"Decided to name the convention adopted by the conference as’ 1978 United Nations Convention on the Carriage of Goods by Sea’,
"It is suggested that the rules contained in this Convention be called’ Hamburg Rules’."