From at least the time of the Phoenicians to the present day, sea perils have been dreaded by mariners worldwide. Storms, rough seas, typhoons, icebergs, and collisions are examples of such perils. Traditionally, these have exempted ocean carriers of goods from liability for damage or loss of cargo. The exemption is sanctioned by article 4.2.c of the Hague and the Hague-Visby Rules ("Visby Rules"), which proclaims the carrier's exoneration in the presence of "perils, dangers and accidents of the sea or other navigable waters" ("sea peril(s)" or "perils of the seas"). (1) At the time of the adoption of the Hague Rules, international policy makers planned to propose a minimum set of liability standards that the carriers could not contract out of. (2) In fact, both the Hague and the Visby Rules maintain a balance between shippers and carriers. (3) Shippers benefit from a liability regime imposed on carriers including an obligation to care, carry, and keep the transported goods and an obligation to exercise due diligence to provide a seaworthy vessel (Articles III and IV). Carriers benefit from seventeen liability exceptions as well as a liability limitation amount in case of damage or loss of the transported goods (Article IV). (4) The sea perils defence constitutes one of the seventeen liability defences that the carrier can invoke. It is not further defined by the Hague and the Visby rules. Domestic laws and/or case law are, therefore, invited to define their components.
The question that naturally arises is how domestic laws and/or courts qualify a sea peril: what are its conditions of application and its main characteristics? These questions are of interest to the present study. (5) The laws, case law, and doctrines of leading maritime nations will be considered in this regard: the common law jurisdictions of the United Kingdom (UK) ("English law"), Canada, and the United States (US), as well as the civil law jurisdictions of France, Italy, and Greece. (6) With the exception of the US having adopted the Hague Rules, the rest of the countries in question apply the Visby Rules. (7)
The civil law and common law traditions of the jurisdictions under examination are important elements underlying our analysis. In civil law, legislation, codes, and generally, written laws are the primary source of law--with case law being an increasingly important interpretive source. (8) Civil law judges do not habitually create law, but interpret written laws declaring the intent of the legislator. (9) On the contrary, the role of judges in common law is not limited to declaring the rules contained in written laws. It also involves creating law on a case-by-case basis through the formulation of precedents. (10) These precedents are binding upon the parties involved in the specific dispute and are also binding upon the judges in deciding future cases based on similar facts. Further, doctrinal views (for example, expert scholarly opinion, treatises, and case commentary) are not attributed the same importance in common law as in civil law. Although it is not clear whether doctrine is a direct source of law in civil law, it clearly carries more weight than in common law. (11)
The seventeen carrier liability exemptions contained in the Hague and the Visby Rules are based on English common law. They were developed in England and have been accepted by ship owners and shippers in other countries. (12) As we are going to see later, the interpretation of the sea perils exemption in common law is based primarily on precedent. Reference to domestic laws and doctrine is present but not stressed upon by the courts. In civil law, the domestic legislator has often codified the Hague and the Visby Rules exoneration clauses and judges have been influenced by the terms employed in these codes as well as by civil law reasoning and doctrine in interpreting them. Thus, when commenting on civil law and the sea perils defence in this article, legal provisions and doctrinal opinion will be more emphasized than in common law. (13)
The first glimpse at the difference in perspective between civil law and common law traditions is taken when we look, in greater detail, at the legal treatment of the sea perils defence in the six countries. The US, UK, and Canadian domestic laws applying the Hague (US) or the Visby rules (UK, Canada) maintain the seventeen carrier defences, including the sea perils exemption. (14) Former UK and Canadian legislation enacting the Hague Rules did the same. (15) The French text of the Hague and the Visby Rules regards sea perils ("Des perils, dangers ou accidents de la mer ou d'autres eaux navigables") as a separate carrier exoneration cause. (16) By an ordinance of 28 October 2010, France adopted a new transport code (Code des transports) (17) The Code proclaims the respect of international conventions and law regarding maritime transport. (18) Its article L5422-12(3) groups several Hague and Visby Rules liability exceptions--acts of war, acts of God, sea perils, acts of public enemies, the arrest or restraint of princes, and quarantines--under the following exoneration cause: "[...] event[s] non attributable to the carrier" ("[...] evenements] non imputable au transporteur") commonly referred to by case law. This instrument codified the French Law of 18 June 1966, which, through amendments, had adopted the Visby Rules at the domestic level. (19) In its article 27(d), the 1966 legislation maintained a similar provision to the transport code's article L5422-12(3). (20) Interestingly, the formerly applicable domestic law of 2 April 1936 enacting the Hague Rules in France, qualified the above-mentioned liability exceptions as "fortuitous event(s) or force majeure" ("cas fortuit ou de force majeure"-article 4.3). (21)
In Italy, the liability of the international ocean carrier of goods is regulated by the Visby Rules and the Code of Navigation (Codice della navigazzione). (22) The Visby Rules take precedence over the Code; the latter has a residual role of application. (23) Whereas, under the Hague and the Visby Rules, sea perils is a separate liability exception from acts of God (noted in the Italian conforming translation of the rules as "rischi, pericoli e infortuni del mare o di altre acque navigabili " and "forza maggiore (atto di Dio)", respectively), article 422 of the Italian Code of Navigation treats the two exceptions as one using the following expression: "fortuna o pericoli di mare." (24) While case law commonly refers to the latter, doctrine laments the assimilation of the two Hague and Visby Rules exoneration causes into one as nonconforming to these rules. (25)
Finally, the Greek translation of the sea perils liability exception contained in the Visby Rules is similarly phrased: [TEXT NOT REPRODUCIBLE IN ASCII] (this can be translated as "perils or accidents at sea or in other navigable waters"). (26) Prior to the adoption of the Visby Rules, the domestic Kodikas Idiotikou Nautikou Dikaiou of 1958 (Code of Private Maritime Law; "CPML") had adapted its provisions to the 1924 Hague Rules and exonerated the ocean carrier of goods for "events emanating from the sea" [TEXT NOT REPRODUCIBLE IN ASCII], a wording very similar to the one present under article 4.2(c). (27) When the Visby Rules were enacted in Greece, the provisions of the CPML falling under the scope of these rules were abolished. (28) In practice, however, Greek case law and doctrine after 1992 continued to refer to the CPML sea perils liability exception, a judicial trend that is still noted today. (29)
The divergent domestic law provisions suggest that similarities as well as differences may exist in qualifying a sea peril in the six jurisdictions. Our intent is to describe, in greater detail, case law, domestic laws, and doctrine on this point, (30) and to determine the extent to which uniformity of the applicable principles exists or is possible. If uniformity exists, the intent of the drafters of the Hague and the Visby Rules would be honoured. (31) In the absence of uniformity, we will seek to determine ways to approximate the divergent domestic law principles.
The complexity of the comparative analysis is not negligible. We will be commenting on laws and case law of different jurisdictions regarding the Hague and the Visby Rules sea peril ocean carrier exoneration cause. The common law and civil law traditions of the mentioned jurisdictions add to the richness but also to the complexity of the analysis. We will also seek to determine the extent to which uniformity of domestic laws and case law is present or possible. These considerations involve a cross-country comparative legal study and research of various legal issues, which constitutes quite a challenging task.
In developing our ideas, we privilege the theoretical approach that favours uniformity of the law, thereby following the intention of the drafters of the Hague and the Visby Rules. Unlike the eminent comparativist Pierre Legrand, we do not think that universalism in law is a delusion. On the contrary, international conventions, such as the Hague and the Visby Rules are, to a large extent, an example of uniformity and universalism in law. Accordingly, we agree with the renowned comparativist Rodolfo Sacco who notes that multinational conventions make private law uniform, thus preventing legal relationships from being regulated in a contradictory way. (32) Uniformity in the qualification of the sea peril exception in the six jurisdictions will be the guiding principle of the present study.
The article is divided into three sections: Sections I and II describe the sea perils defence in the mentioned common law and civil law jurisdictions, respectively. Section III compares and analyzes the applicable principles.
Section I: Qualifying a Sea Peril under English, Canadian, and US Law
Under English, Canadian, and US law, perils of the seas is a carrier defence that includes events peculiar...