維斯比規則

《海牙規則》自1931年生效實施后，得到了國際航運界普遍接受，它的歷史作用在於使國際海上貨物運輸有法可依，統一了海上貨物運輸中的提單條款，對提單的規範化起到了積極作用，基本上緩和了當時承運方和託運方之間的矛盾，促進了國際貿易和海上運輸事業的發展。但隨著國際政治、經濟形勢的變化，以及航海、造船技術日新月異的進步，使海上運輸方式發生了重大變革，特別是集裝箱運輸方式的出現和迅猛發展，《海牙規則》的內容已不適應新形勢發展的需要。尤其關於承運人的大量免責條款明顯偏袒船方利益，通貨膨脹的現實使100英鎊的賠償限額明顯過低等原因，到了50年代未，要求修改《海牙規則》的呼聲日漸強烈。

基於上述這種形勢，國際海事委員會於1959年在南斯拉夫的里吉卡舉行第二十四屆大會，會上決定成立小組委員會負責修改《海牙規則》。根據各國代表對修改《海牙規則》的建議，1963年小組委員會草擬了修改《海牙規則》的議定書草案，提交給1967年、1968年召開的海事法會議審議，經會議審議通過後，於1968年2月23日在比利時的布魯塞爾召開的、由53個國家或地區代表參加的第十二屆海洋法外交會議上通過，定名為《修改統一提單若干法律規定的國際公約議定書》，並簡稱為“1968年布魯塞爾議定書”(The 1968 Brussels Protocol)。由於該議定書草案在斯德哥爾摩討論期間，參加會議的成員到過哥特蘭島的維斯比城，為借用中世紀維斯比海法之名聲，故將該議定書稱為《維斯比規則》（VisbyRules）。經過議定書修訂后的《海牙規則》稱為《海牙――維斯比規則》（Hague-VisbyRules）。該議定書於1977年6月23日生效。

《維斯比規則》共十七條，但只有前六條才是實質性的規定，對《海牙規則》的第三、四、九、十條進行了修改。其主要修改內容有：

擴大了規則的適用範圍

《海牙規則》的各條規定僅適用於締約國所簽發的提單。《維斯比規則》擴大了其適用範圍，其中的第五條第三款規定：① 在締約國簽發的提單；②貨物在一個締約國的港口起運；③提單載明或為提單所證明的合同規定，該合同受公約的各項規則或者使其生效的任何一個國家的立法所約束，不論承運人、託運人、收貨人或任何其他有關人員的國籍如何。該規定的意思只要提單或為提單所證明的運輸合同上有適用《維斯比規則》的規定，該提單或運輸合同就要受《維斯比規則》的約束。

明確了提單的證據效力

《海牙規則》第三條第四款規定，提單上載明的貨物主要標誌、件數或重量和表面狀況應作為承運人按其上所載內容收到貨物的初步證據。至於提單轉讓至第三人的證據效力，未作進一步的規定。《維斯比規則》為了彌補上述的缺陷，在第一條第一款則補充規定：“……但是，當提單轉讓至善意的第三人時，與此相反的證據將不能接受。”這表明對於善意行事的提單受讓人來說，提單載明的內容具有最終證據效力。所謂“善意行事”是指提單受讓人在接受提單時並不知道裝運的貨物與提單的內容有何不符之處，而是出於善意完全相信提單記載的內容。這就是說，《維斯比規則》確立了一項在法律上禁止翻供的原則，即當提單背書轉讓給第三者后，該提單就是貨物已按上面記載的狀況裝船的最終證據。承運人不得借口在簽發清潔提單前貨物就已存在缺陷或包裝不當來對抗提單持有人。

這一補充規定，有利於進一步保護提單的流通與轉讓，也有利於維持提單受讓人或收貨人的合法權益。一旦收貨人發現貨物與提單記載不符，承運人只能負責賠償，不得提出任何抗辯的理由。

強調了承運人及其受僱人員的責任限制

海上貨物運輸合同當事人涉訟多因一方當事人的違約而引起。但在有些國家承認雙重訴訟的權利，即貨主在其貨物遭受損害時，可以以承運人違反運輸合同或以其侵權為由向承運人起訴。在貨主以侵權為由提出訴訟時，承運人便不能引用《海牙規則》中的免責和責任限制的規定。如果不能對此加以限制，運輸法規中的責任限制規定就形同虛設，為進一步強調承運人及其受僱人員享有該權利，《維斯比規則》第三條規定：“本公約規定的抗辯和責任限制，應適用於就運輸合同涉及的有關貨物的滅失或損壞對承運人提出的任何訴訟，不論該訴訟是以合同為根據還是以侵權行為為根據。”“如果訴訟是對承運人的受僱人員或代理人（該受僱人員或代理人不是獨立訂約人）提起的，該受僱人員或代理人也有權援引《海牙規則》規定的承運人的各項抗辯和責任限制。”“向承運人及其受僱人員或代理人索賠的數額，在任何情況下都不得超過本公約規定的賠償限額。”根據以上規定，使得合同之訴和侵權之訴處於相同的地位：承運人的受僱人員或代理人也享有責任限制的權利。英國法院在審理“喜馬拉雅”輪一案時，曾對承運人的受僱人員或代理人能否享受承運人所享受的權利作出否定的判決，認為承運人的受僱人員或代理人無權援引承運人與他人簽訂的合同中的條款。所以在此案后，承運人紛紛在提單上規定承運人的受僱人員或代理人可以援引承運人的免責或責任限制。人們稱這一條款為“喜馬拉雅條款”。顯然《維斯比規則》的這一規定有利於保護船東的利益。

提高了承運人對貨物損害賠償的限額

《海牙規則》規定承運人對每件或每單位的貨物損失的賠償限額為100英鎊，而《維斯比規則》第二條則規定，每件或每單位的賠償限額提高到10000金法郎，同時還增加一項以受損貨物毛重為標準的計算方法，即每公斤為30金法郎，以兩者中較高者為準。採用的金法郎仍以金本位為基礎，目的在於防止日後法郎紙幣的貶值，一個金法郎是含金純度為900/1000的黃金65.5毫克的單位。一旦法郎貶值，仍以上述的黃金含量為計算基礎，在《威斯比規則》通過時，10000金法郎大約等於431英鎊，與《海牙規則》規定的100英鎊相比，這一賠償限額顯然是大大提高了。

這一規定不但提高了賠償限額，而且創造了一項新的雙重限額制度，不但維護了貨主的利益，而且這種制度也為以後《漢堡規則》和我國《海商法》所接受。

另外，該規則還規定了喪失賠償責任限制權利的條件，即如經證實損失是由於承運人蓄意造成，或者知道很可能會造成這一損害而毫不在意的行為或不行為所引起，則承運人無權享受責任限制的權利。

增加了“集裝箱條款”

《海牙規則》沒有關於集裝箱運輸的規定。《維斯比規則》增加“集裝箱條款”，以適應國際集裝箱運輸發展的需要。該規則第二條第三款規定：“如果貨物是用集裝箱、托盤或類似的裝運器具集裝時，則提單中所載明的裝在這種裝運器具中的包數或件數，應視為本款中所述的包或件數；如果不在提單上註明件數，則以整個集裝箱或托盤為一件計算。”該條款的意思是，如果提單上具體載明在集裝箱內的貨物包數或件數，計算責任限制的單位就按提單上所列的件數為準；否則，則將一個集裝箱或一個托盤視為一件貨物。

訴訟時效的延長

《海牙規則》規定，貨物滅失或損害的訴訟時效為一年，從交付貨物或應當交付貨物之日起算。《維斯比規則》第一條第二款、第三款則補充規定，訴訟事由發生后，只要雙方當事人同意，這一期限可以延長，明確了訴訟時效可經雙方當事人協議延長的規定。對於追償時效則規定，即使在規定的一年期滿之後，只要是在受法院法律准許期間之內，便可向第三方提起索賠訴訟。但是准許的時間自提起訴訟的人已經解決索賠案件，或向其本人送達起訴狀之日起算，不得少於三個月。

《維斯比規則》規定的承運人責任限制金額計算單位為法郎，並以黃金作為定值標準。由於黃金本身的價格是根據市場供求關係自由漲落的，所以以金法郎責任限制計算單位的實際價值也不能保持穩定。針對這一情況，1979年在布魯塞爾召開有37國代表出席的外交會議上，通過了修訂《海牙――維斯比規則》（Thel979Protocol to the HagueRules）議定書。議定書將承運人責任限制的計算單位，由金法郎改為特別提款權（SpecialDrawingcenter，SDR），按 15金法郎摺合1SDR。議定書規定承運人的責任限制金額為每件或每單位666.67SDR，或按貨物毛重計算每公斤2SDR，兩者中以較高者為準。但國內法規定不能使用特別提款權的締約國，仍可以金法郎作為計算單位，該議定書於1984年4月開始生效。

特別提款權是國際貨幣基金組織於1969年創設的，作為國際儲備的貨幣單位。自1981年1月1日起，特別提款權由5種世界上貿易出口額最高國家的貨幣，即美元、德國馬克、日元、法國法郎和英鎊按每5年調整一次的比例構成。據基金會1990年10月9日新聞公報，自1991年1月1日起，調整特別提款權構成比例為：美元40%，德國馬克21%，日元17%，法國法郎11%，英鎊11%。此比例於1995年底以前不變。特別提款權既為一種賬面資產，又為一種聯合貨幣，只是不在市場上流通、兌換。其價格計算方法：首先將其構成中所含其他4種貨幣金額，按照當日倫敦外匯市場匯價分別折算為等值美元，然後把所有美元值相加，即得出1單位特別提款權美元值。此特別提款權價格由世界銀行逐日掛牌公布。

Hague-Visby Rules

Article I

Definitions

In these Rules the following expressions have the meanings hereby assigned to them respectively, that is to say,

(a) "carrier" includes the owner or the charterer who enters into a contract of carriage with a shipper;

(b) "contract of carriage" applies only to contracts of carriage covered by a bill of lading or any similar document of title, in so far as such document relates to the carriage of goods by water, including any bill of lading or any similar document as aforesaid issued under or pursuant to a charter-party from the moment at which such bill of lading or similar document of title regulates the relations between a carrier and a holder of the same;

(c) "goods" includes goods, wares, merchandise and articles of every kind whatsoever, except live animals and cargo which by the contract of carriage is stated as being carried on deck and is so carried;

(d) "ship" means any vessel used for the carriage of goods by water;

(e) "carriage of goods" covers the period from the time when the goods are loaded on to the time they are discharged from the ship.

Article II

Risks

Subject to the provisions of Article VI, under every contract of carriage of goods by water the carrier, in relation to the loading, handling, stowage, carriage, custody, care and discharge of such goods, shall be subject to the responsibilities and liabilities and entitled to the rights and immunities hereinafter set forth.

Article III

Responsibilities and Liabilities

1. The carrier shall be bound, before and at the beginning of the voyage, to exercise due diligence to

(a) make the ship seaworthy;

(b) properly man, equip and supply the ship;

(c) make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation.

2. Subject to the provisions of Article IV, the carrier shall properly and carefully load, handle, stow, carry, keep, care for and discharge the goods carried.

3. After receiving the goods into his charge, the carrier, or the master or agent of the carrier, shall, on demand of the shipper, issue to the shipper a bill of lading showing among other things

(a) the leading marks necessary for identification of the goods as the same are furnished in writing by the shipper before the loading of such goods starts, provided such marks are stamped or otherwise shown clearly upon the goods if uncovered, or on the cases or coverings in which such goods are contained, in such a manner as should ordinarily remain legible until the end of the voyage;

(b) either the number of packages or pieces, or the quantity, or weight, as the case may be, as furnished in writing by the shipper;

(c) the apparent order and condition of the goods:

Provided that no carrier, master or agent of the carrier shall be bound to state or show in the bill of lading any marks, number, quantity, or weight which he has reasonable ground for suspecting not accurately to represent the goods actually received or which he has had no reasonable means of checking.

4. Such a bill of lading shall be prima facie evidence of the receipt by the carrier of the goods as therein described in accordance with paragraphs 3(a), (b) and (c).

However, proof to the contrary shall not be admissible when the bill of lading has been transferred to a third party acting in good faith.

5. The shipper shall be deemed to have guaranteed to the carrier the accuracy at the time of shipment of the marks, number, quantity and weight, as furnished by him, and the shipper shall indemnify the carrier against all loss, damages and expenses arising or resulting from inaccuracies in such particulars. The right of the carrier to such indemnity shall in no way limit his responsibility and liability under the contract of carriage to any person other than the shipper.

6. Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage, or, if the loss or damage be not apparent, within three days, such removal shall be prima facie evidence of the delivery by the carrier of the goods as described in the bill of lading.

The notice in writing need not be given if the state of the goods has at the time of their receipt been the subject of joint survey or inspection.

Subject to paragraph 6bis the carrier and the ship shall in any event be discharged from all liability whatsoever in respect of the goods, unless suit is brought within one year of their delivery or of the date when they should have been delivered. This period may, however, be extended if the parties so agree after the cause of action has arisen.

In the case of any actual or apprehended loss or damage the carrier and the receiver shall give all reasonable facilities to each other for inspecting and tallying the goods.

6.bis An action for indemnity against a third person may be brought even after the expiration of the year provided for in the preceding paragraph if brought within the time allowed by the law of the Court seized of the case. However, the time allowed shall be not less than three months, commencing from the day when the person bringing such action for indemnity has settled the claim or has been served with process in the action against himself.

7. After the goods are loaded the bill of lading to be issued by the carrier, master or agent of the carrier, to the shipper shall, if the shipper so demands, be a "shipped" bill of lading, provided that if the shipper shall have previously taken up any document of title to such goods, he shall surrender the same as against the issue of the "shipped" bill of lading, but at the option of the carrier such document of title may be noted at the port of shipment by the carrier, master, or agent with the name or names of the ship or ships upon which the goods have been shipped and the date or dates of shipment, and when so noted the same shall for the purpose of this Article be deemed to constitute a "shipped" bill of lading.

8. Any clause, covenant or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or damage to or in connection with goods arising from negligence, fault or failure in the duties and obligations provided in this Article or lessening such liability otherwise than as provided in these Rules, shall be null and void and of no effect.

A benefit of insurance or similar clause shall be deemed to be a clause relieving the carrier from liability.

Article IV

Rights and Immunities

1. Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy, and to secure that the ship is properly manned, equipped and supplied, and to make the holds, refrigerating and cool chambers and all other parts of the ship in which goods are carried fit and safe for their reception, carriage and preservation in accordance with the provisions of paragraph 1 of Article III.

Whenever loss or damage has resulted from unseaworthiness, the burden of proving the exercise of due diligence shall be on the carrier or other person claiming exemption under this article.

2. Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from

(a) act, neglect, or default of the master, mariner, pilot or the servants of the carrier in the navigation or in the management of the ship;

(b) fire, unless caused by the actual fault or privity of the carrier;

(c) perils, dangers and accidents of the sea or other navigable waters;

(d) act of God;

(e) act of war;

(f) act of public enemies;

(g) arrest or restraint of princes, rulers or people, or seizure under legal process;

(h) quarantine restrictions;

(i) act or omission of the shipper or owner of the goods, his agent or representative;

(j) strikes or lock-outs or stoppage or restraint of labour from whatever cause, whether partial or general;

(k) riots and civil commotions;

(l) saving or attempting to save life or property at sea;

(m) wastage in bulk or weight or any other loss or damage arising from inherent defect, quality or vice of the goods;

(n) insufficiency of packing;

(o) insufficiency or inadequacy of marks;

(p) latent defects not discoverable by due diligence;

(q) any other cause arising without the actual fault and privity of the carrier, or without the fault or neglect of the agents or servants of the carrier, but the burden of proof shall be on the person claiming the benefit of this exception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage.

3. The shipper shall not be responsible for loss or damage sustained by the carrier or the ship arising or resulting from any cause without the act, fault or neglect of the shipper, his agents or his servants.

4. Any deviation in saving or attempting to save life or property at sea or any reasonable deviation shall not be deemed to be an infringement or breach of these Rules or of the contract of carriage, and the carrier shall not be liable for any loss or damage resulting therefrom.

5. (a) Unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading, neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the goods in an amount exceeding 666.67 units of account per package or unit or 2 units of account per kilogramme of gross weight of the goods lost or damaged, whichever is the higher.

(b) The total amount recoverable shall be calculated by reference to the value of such goods at the place and time at which the goods are discharged from the ship in accordance with the contract or should have been so discharged.

The value of the goods shall be fixed according to the commodity exchange price, or, if there be no such price, according to the current market price, or, if there be no commodity exchange price or current market price, by reference to the normal value of goods of the same kind and quality.

(c) Where a container, pallet or similar article of transport is used to consolidate goods, the number of packages or units enumerated in the bill of lading as packed in such article of transport shall be deemed the number of packages or units for the purpose of this paragraph as far as these packages or units are concerned. Except as aforesaid such article of transport shall be considered the package or unit.

(d) The unit of account mentioned in this Article is the Special Drawing Right as defined by the International Monetary Fund. The amounts mentioned in sub-paragraph (a) of this paragraph shall be converted into national currency on the basis of the value of that currency on the date to be determined by the law of the Court seized of the case. The value of the national currency, in terms of the Special Drawing Right, of a State which is a member of the International Monetary Fund, shall be calculated in accordance with the method of valuation applied by the International Monetary Fund in effect at the date in question for its operations and transactions. The value of the national currency, in terms of the Special Drawing Right, of a State which is not a member of the International Monetary Fund, shall be calculated in a manner determined by that State.

Nevertheless, a State which is not a member of the International Monetary Fund and whose law does not permit the application of the provisions of the preceding sentences may, at the time of ratification of the Protocol of 1979 or accession thereto or at any time thereafter, declare that the limits of liability provided for in this Convention to be applied in its territory shall be fixed as follows:

(i) in respect of the amount of 666.67 units of account mentioned in sub-paragraph (a) of paragraph 5 of this Article, 10,000 monetary units;

(ii) in respect of the amount of 2 units of account mentioned in sub-paragraph (a) of paragraph 5 of this Article, 30 monetary units.

The monetary unit referred to in the preceding sentence corresponds to 65.5 milligrammes of gold of millesimal fineness 900. The conversion of the amounts specified in that sentence into the national currency shall be made according to the law of the State concerned. The calculation and the conversion mentioned in the preceding sentences shall be made in such a manner as to express in the national currency of that State as far as possible the same real value for the amounts in sub-paragraph (a) of paragraph 5 of this Article as is expressed there in units of account.

States shall communicate to the depositary the manner of calculation or the result of the conversion as the case may be, when depositing an instrument of ratification of the Protocol of 1979 or of accession thereto and whenever there is a change in either.

(e) Neither the carrier nor the ship shall be entitled to the benefit of the limitation of liability provided for in this paragraph if it is proved that the damage resulted from an act or omission of the carrier done with intent to cause damage, or recklessly and with knowledge that damage would probably result.

(f) The declaration mentioned in sub-paragraph (a) of this paragraph, if embodied in the bill of lading, shall be prima facie evidence, but shall not be binding or conclusive on the carrier.

(g) By agreement between the carrier, master or agent of the carrier and the shipper other maximum amounts than those mentioned in sub-paragraph (a) of this paragraph may be fixed, provided that no maximum amount so fixed shall be less than the appropriate maximum mentioned in that sub-paragraph.

(h) Neither the carrier nor the ship shall be responsible in any event for loss or damage to, or in connection with, goods if the nature or value thereof has been knowingly mis-stated by the shipper in the bill of lading.

6. Goods of an inflammable, explosive or dangerous nature to the shipment whereof the carrier, master or agent of the carrier has not consented, with knowledge of their nature and character, may at any time before discharge be landed at any place or destroyed or rendered innocuous by the carrier without compensation, and the shipper of such goods shall be liable for all damages and expenses directly or indirectly arising out of or resulting from such shipment.

If any such goods shipped with such knowledge and consent shall become a danger to the ship or cargo, they may in like manner be landed at any place or destroyed or rendered innocuous by the carrier without liability on the part of the carrier except to general average, if any.

Article IVbis

Application of Defences and Limits of Liability

1. The defences and limits of liability provided for in these Rules shall apply in any action against the carrier in respect of loss or damage to goods covered by a contract of carriage whether the action be founded in contract or in tort.

2. If such an action is brought against a servant or agent of the carrier (such servant or agent not being an independent contractor), such servant or agent shall be entitled to avail himself of the defences and limits of liability which the carrier is entitled to invoke under these Rules.

3. The aggregate of the amounts recoverable from the carrier, and such servants and agents, shall in no case exceed the limit provided for in these Rules.

4. Nevertheless, a servant or agent of the carrier shall not be entitled to avail himself of the provisions of this Article, if it is proved that the damage resulted from an act or omission of the servant or agent done with intent to cause damage or recklessly and with knowledge that damage would probably result.

Article V

Surrender of Rights and Immunities, and Increase of Responsibilities and Liabilities

A carrier shall be at liberty to surrender in whole or in part all or any of his rights and immunities or to increase any of his responsibilities and liabilities under the Rules contained in any of these Articles, provided such surrender or increase shall be embodied in the bill of lading issued to the shipper.

The provisions of these Rules shall not be applicable to charter-parties, but if bills of lading are issued in the case of a ship under a charter-party they shall comply with the terms of these Rules. Nothing in these Rules shall be held to prevent the insertion in a bill of lading of any lawful provision regarding general average.

Article VI

Special Conditions

Notwithstanding the provisions of the preceding Articles, a carrier, master or agent of the carrier and a shipper shall in regard to any particular goods be at liberty to enter into any agreement in any terms as to the responsibility and liability of the carrier for such goods, and as to the rights and immunities of the carrier in respect of such goods, or his obligation as to seaworthiness, so far as this stipulation is not contrary to public policy, or the care or diligence of his servants or agents in regard to the loading, handling, stowage, carriage, custody, care and discharge of the goods carried by water, provided that in this case no bill of lading has been or shall be issued and that the terms agreed shall be embodied in a receipt which shall be a non-negotiable document and shall be marked as such.

Any agreement so entered into shall have full legal effect.

Provided that this Article shall not apply to ordinary commercial shipments made in the ordinary course of trade, but only to other shipments where the character or condition of the property to be carried or the circumstances, terms and conditions under which the carriage is to be performed are such as reasonably to justify a special agreement.

Article VII

Limitations on the Application of the Rules

Nothing herein contained shall prevent a carrier or a shipper from entering into any agreement, stipulation, condition, reservation or exemption as to the responsibility and liability of the carrier or the ship for the loss or damage to, or in connection with the custody and care and handling of goods prior to the loading on and subsequent to the discharge from the ship on which the goods are carried by water.

Article VIII

Limitation of Liability

The provisions of these Rules shall not affect the rights and obligations of the carrier under any statute for the time being in force relating to the limitation of the liability of owners of vessels.

Article IX

Liability for Nuclear Damage

These Rules shall not affect the provisions of any international Convention or national law governing liability for nuclear damage.

Article X

Application

The provisions of these Rules shall apply to every bill of lading relating to the carriage of goods between ports in two different States if:

(a) the bill of lading is issued in a Contracting State, or

(b) the carriage is from a port in a Contracting State, or

(c) the contract contained in or evidenced by the bill of lading provides that these Rules or legislation of any State giving effect to them are to govern the contract,

whatever may be the nationality of the ship, the carrier, the shipper, the consignee, or any other interested person.