I had my first boerewors roll, a uniquely South African delicacy, in Dubai, long before I moved to South Africa.. I tasted stroopwafel for the first time in Johannesburg, years before I visited Netherlands..
Like me, I’m sure many of you have enjoyed wonderful things from different parts of the world without leaving your own country..
Seaborne trade, one of the oldest forms of global trade spanning continents, is a key reason why we, as a global population, can experience such treasures from across the globe..
Like seaborne transportation, international maritime conventions that are designed to govern seaborne trade also continue to stand the test of time..
A great example is the Hague Rules which came into practice 100 years ago in 1924 (way before containerisation) and has been instrumental in revolutionising the carriage of goods by sea and addressing several legal disputes between carriers and cargo owners and is still going strong..
Before the Hague Rules came into play, carriers often absolved themselves of responsibility for delays or damages, relying on nonliability clauses in bills of lading creating chaos and legal uncertainties in global shipping and trade..
I approached one of the luminaries in our industry, especially with regards to bill of lading history, Ahmet Aytoğan to provide some historical context about this international convention..
Below is a very good read on the same.. Thank you Ahmet..
Maritime transportation is one of the oldest and most important modes of transport in global trade.. It has connected countries and continents, leading to the formation of cultural and economic bridges between them..
The story of the bill of lading, with its history dating back to clay tablets in the Sumerians according to some, to the 15th century AD according to others, and to the year 1538 when the first bill of lading was issued according to some academic findings and became a common practice in the 17th century, will never end.
Legal disputes in maritime transportation have also been quite frequent. Serious issues arose between cargo owners and carriers regarding responsibilities and rights.
Carriers would say, “Pay your freight, deliver the goods to me, and I will transport your goods.” However, the carrier would take no responsibility for any damage to the goods, delays, or even failure to transport them for any reason. Collecting freight payments became practically their sole concern.
To defend these situations, nonliability clauses like the ones below began to be added to bills of lading.
Of course, this nonliability clause written in the middle of the bill of lading alone was not considered sufficient. Before and after it, the carrier would invoke the name of God and say “Amen,” thus firmly reinforcing their lack of liability.
Maritime Trade Law Before the Hague Rules
In the 19th century and before, as is still the case today, the majority of goods transported worldwide were carried by sea. Even today, 90% of goods are still transported by sea.
With the Industrial Revolution and the accompanying Agricultural Revolution, the demand for maritime transportation increased tremendously. Supply and demand, as well as production and consumption, were connected through maritime transport.
The situation of carriers assuming no responsibility or assuming the least responsibility in sea transportation activities, as described above, encouraged carriers since there was no legal development to the contrary, and the bills of lading continued to be equipped with even more nonliability clauses. At the top, the phrase “The Act of God” was often added.
This certainly could not and should not have continued. Legal uncertainties caused serious chaos in maritime transportation, and this problem had to be resolved with a global legal regulation.
There were many national initiatives before this regulation. The Harter Act, enacted in 1893 after the American Civil War, was the most important of these. America had emerged from the Civil War, and one of the first areas that drew attention was the exemption of carriers in maritime transportation. With the Harter Act, justice between the cargo owner and the carrier was achieved, to some extent.
The Emergence of the Hague Rules (1924)
The Hague Rules were adopted by the United Nations in 1924 and came into force in 1931, but discussions about them had begun long before, even before World War I. However, this work was inevitably interrupted by the First World War.
Leading maritime nations, particularly the United Kingdom, took the initiative in these efforts. While the historical development was, of course, taken into account during these discussions, the main source of inspiration was the Harter Act, which was adopted in the United States in 1893.
Following World War I, these efforts resumed, and in 1921, under the organization of the International Law Association (ILA), the “Hague Rules” were introduced, similar to the “York Antwerp Rules,” to be used optionally. However, since the application of these rules was not mandatory for the parties, it was concluded that the rules needed to be ratified by states at the United Nations as an international convention.
Thus, 100 years ago, on August 25, 1924, the binding rules known as the HAGUE RULES, La HAYE CONVENTION, or BRUSSELS CONVENTION were adopted. These rules were very necessary.
Because it was not possible and fair to solve every problem in maritime transportation involving foreign elements, only with the domestic laws of the countries. Ensuring the fair determination of the responsibilities of the parties and resolving legal disputes within the framework of international law and regulations had become inevitable.
International conventions like this have been adopted at the United Nations, particularly in the field of maritime transport. These conventions not only address the responsibilities of carriers and shippers but also cover important issues such as marine pollution, piracy, and nuclear risks.
Of course, under these beautiful efforts, we have to mention CMI (Comité Maritime International), which started its life in 1897, made extraordinary efforts to develop and promote maritime trade law, and also drafted the text of the 1924 HAGUE RULES.
Starting from the mid-1930s, we begin to see references to the Hague Rules in bills of lading.
Subsequently, in almost all long-form bills of lading, carriers began referencing this convention in their standard printed clauses.
In the centennial year of the convention, those engaged in liner shipping had to refer to other conventions and amendment protocols that we have not mentioned here.
In today’s world, where electronic bills of lading are being discussed and partially implemented, bills of lading have been uniquely used for many years, with companies determining the transport conditions under the supervision of their own advisors.
The issue which began as a struggle over the rights and responsibilities between carriers and cargo owners but has evolved into unexpected areas.
A Bill of lading became the subject of probably millions of lawsuits and served as a means in the payment or prevention of countless compensations.
The struggle for rights against the carrier has not yielded fully satisfactory results for the shipper and freighter. We know that, historically and even today, the law has tended to protect the maritime carrier, aiming to assign them the least amount of responsibility and generously expanding the scope of force majeure in their favor.
The perceptions of injustice towards the carrier on the part of the freighter/shipper, along with the sometimes double-standard approaches of the carrier, continue to trouble the freighter and shipper even today.
Conclusion
In conclusion, I learned a very beautiful sentence from the book by dear John Richardson: “Transport may be international, but the law is national.”
This year, as we remember our esteemed professor, PROF. H.C DR. N. BÜLENT SÖZER, who was laid to rest this year and held a highly respected place in maritime law and other modes of transport both in our country and globally, I bow with respect to his memory by sharing a quote from his book, Maritime Trade Law I.
“THERE ARE TWO FACTORS IN TRADE: RISK AND PROFIT.”
In maritime trade, risk reaches a maximum level compared to many other businesses, and perhaps to all other fields of activity, often possesses a quality that is difficult to foresee, calculate, or even estimate. There is no knowing when the risk will occur—where, when, and how the blow will come. In contrast, the profit must be realized at a certain level, one that justifies the risk both in quality and quantity, so that humanity continues to engage in seafaring.
B. Sözer
