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Lloyd's Maritime and Commercial Law Quarterly

Basis of liability and exclusions of liability

Francesco Berlingieri *

This paper analyses the provisions of the CMI/UNCITRAL Draft Instrument on Transport Law in respect of the liability of the carrier. As regards the duties of the carrier, the author is of the opinion that such duties, and in particular that relating to the seaworthiness of the vessel, should be made continuous, while the carrier in a door-to-door contract should not be allowed to exclude specified services from the scope of the contract. As regards the basis of liability, the allocation of the burden of proof, and the exonerations from liability, the author is strongly in favour of the abolition of the exonerations for fault in navigation and in the management of the vessel and of structuring the other Hague-Visby excepted perils as cases of reversal of the burden of proof.

Introduction

Initially UNCITRAL had considered investigating the need for uniform rules in transport law in areas other than the liability regime of the carrier1 in order not adversely to affect the prospects of future ratification of the Hamburg Rules. However, the Executive Council of the CMI, conscious of the fact that the liability regime is the core of the law of transport and that, therefore, it would have been practically impossible to draw up a well balanced text capable of independent application if rules governing the liability of the carrier were not included, adopted a two-stage action. It instructed the International Sub-Committee (ISC) first to consider in what areas of transport law not at present governed by international Conventions uniformity may be achieved, and then to draft provisions on liability.2

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