For local lawyers working in the shipping and transport sector at the domestic level, the question of whether Colombia really is a Hague/Hague-Visby Rules jurisdiction has been posed on many occasions in both professional and academic forums. In particular, despite the fact that Colombia has not yet properly ratified any of the existing instruments available internationally, the relevant section of Colombia's Commercial Code has supposedly been founded on the Hague Rules.(1)
Broadly speaking, the Colombian regime has incorporated some of the main features of the international scheme(2) into local law, as follows:
- The obligation to exercise due diligence to make ships seaworthy is contemplated by Article 1582 of the Commercial Code (Article III, Rule 1 of the Hague-Visby Rules).
- The obligation to load, stow, keep, carry, care for and discharge any goods properly and carefully is set out in Article 1600(2) of the Commercial Code (Article III, Rule 2 of the Hague-Visby Rules).
- A list of liability exemptions available to carriers is included in Article 1609 of the Commercial Code, following the logic of Article IV, Rule 2 of the Hague-Visby Rules, including so-called 'nautical fault', fire, perils, dangers and accidents at the sea.
Despite these similarities, important differences can be identified between the local and international instruments.
First, although the local regime imposes a general obligation on carriers to exercise due diligence, Article 1582 of the Commercial Code specifically requires carriers to do so in relation to the ship (Article III, Rule 1(a) of the Hague/Hague-Visby Rules), but makes no reference to this requirement when referring to the obligation to ensure the soundness of all spaces used for the carriage of goods within the ship, which is set out in a different provision of the Commercial Code.(3)
On the other hand, the list of exemptions as contemplated by Article 1609 of the Commercial Code departs in various respects from the original list provided for by Article IV, Rule 2 of the Hague/Hague-Visby Rules. For example, there are some understandable adaptations of the rules in light of Colombia's Roman-Germanic legal framework, such as replacing the Anglo-Saxon 'act of god' with the Latin 'force majeure'. However, there are also some situations that may have a greater impact in practice, such as the removal of Paragraph q, as originally contained in the rules, which refers to the "any other cause without the actual fault and privity of the carrier" exemption.(4)
In addition, and perhaps more importantly, there is a significant difference in the way in which the rules approach limitations of liability compared with local law. In fact, while carriers are precluded at the international level from stipulating any limitation that could endanger shippers' protections under each scheme (Article III, Rule 8), the situation may be different under local law. In fact, under Article 1644 of the Commercial Code, if no declared value exists, limitation will be based on the price of the cargo in the place of loading. Further, the article states that "in this case a maximum limitation could be agreed". In an important September 8 2011 decision, the Supreme Court construed this provision to mean that:
- the parties can agreed to any limitation in this regard, irrespective of whether the agreement is higher or lower than the price of the goods; and
- any agreed limitation will be valid as long as it is not derisory.
Based on these facts, it is still unclear whether Colombia really is a Hague/Hague-Visby jurisdiction.
For further information on this topic please contact Javier Franco at Franco & Abogados Asociados by telephone (+571 7035633) or email ([email protected]). The Franco & Abogados Asociados website can be accessed at www.francoabogados.com.co.