Lebanon - Hague-Visby or Hamburg rules?

ON April 5, 1975, at the dawn of the war which was to tear the country apart for more than fifteen years, Lebanon ratified both the Hague Rules and the Visby Protocol and implemented them by way of Law No 13/75.

Previously, all disputes brought before the Lebanese judges arising from contracts covering the carriage of goods by sea, where the port of loading or discharge, the domicile or place of business of the defendant, or the place of signature or performance of the contract was located in Lebanese territory, were strictly and mandatorily governed by the Lebanese Code of Maritime Commerce.

Enacted on February 18, 1947, this code drew its inspiration mainly from the 1936 French Law and the 1924 Moroccan Maritime Code, both of which departed from the Hague Rules on various essential issues. The interpretation given by the Lebanese tribunals to the provisions of the code developed these differences even further, hence placing Lebanon on the fringe of the international shipping community.

Lebanon's 1975 alignment with the rules adopted by most of the major trading nations was short-lived. On January 5, 1983, encouraged by a vast movement of the francophone countries lead by France, the Lebanese parliament authorised the Lebanese government to ratify the 1978 United Nations Convention on the Carriage of Goods by Sea. The text of the convention, more commonly known as the Hamburg Rules, was published in January 1983, with an express mention that the statute was of immediate application.

However, though the Hamburg Rules were first adopted in 1978, they could not enter into force until November 1, 1992 - on the first day of the month following the expiration of one year from the date of deposit of the twentieth instrument of ratification, acceptance, approval or accession as per Article 20 of the convention.

The Hamburg Rules were considered an inconsistent amalgam of the various legal regimes governing transportation, and a piecemeal legislation that ignored the specific nature of maritime.

As the Lebanese government failed to notify the Belgian government of its decision to adopt Hamburg over Hague-Visby, or to defer the changeover for a period provided by Article 31 of the convention, there followed a long period of wavering among Lebanese judges and the various parties involved as to which international convention on the carriage of goods by sea was enforceable in Lebanon. This uncertainty was further fuelled by the enactment of a national statutory order dated April 19, 1996, in relation to the limitation of liability of the sea carrier, wherein reference was strictly made to the Hague-Visby Rules.

Parties opposed to the Hamburg Rules immediately turned the government's failure to fulfil the duties provided for in Article 31 of the convention into a window of opportunity to bring back into question the applicability of this convention in Lebanon - particularly since it received over the years virtually no support from major trading and maritime nations and, surprisingly little support from developing countries.

In addition, a large number of Lebanon's judges were reluctant to abandon the wealth of existing case law on Hague-Visby and enter instead a period of confusion arising from what they considered the incoherent and rather complex provisions of the Hamburg Rules. They considered the Hamburg Rules to be an inconsistent amalgam of the various legal regimes governing transportation, and a piecemeal legislation that ignored the specific nature of maritime, which could only lead to contradicting interpretation.

On the other hand, supporters of the Hamburg Rules, keen to secure what they believed was a modern text updating international maritime transport law and placing it in line with other international transport conventions (Warsaw, CMR and CIM), advocated that, in accordance with well-established general principles of law, where there is a conflict between two successive treaties, both implemented in national legislation, the second treaty shall prevail.

On June 3, 1997, putting an end to a period of hesitation and uncertainty, the Appellate Court of Beirut clearly resolved by way of Judgement No 635 that the Hamburg Rules became applicable in Lebanon as of November 1, 1992.

The chain of reasoning followed by the court in reaching this landmark judgment merits closer examination. The judges particularly emphasised the following points:

1. The decision to discontinue adherence to the Hague-Visby Rules was not a prerequisite for the entry into force of the Hamburg Rules.
2. Whereas Lebanon failed to make any notification of its decision in this regard, it may very logically be implied that its intention was to be immediately bound by the Hamburg Rules.
3. Lebanon's failure to notify the Belgian government of its intentions was a matter affecting only the relationship between the states of Lebanon and Belgium, and could not hinder the applicability of the Hamburg Rules as such. In any case, this issue fell outside the ambit of the judiciary courts.
4. The fact that Statutory Order No 8305 of April 19, 1994 made reference to the Hague-Visby Rules was irrelevant, considering that, according to Article 2 of the Lebanese Code of Civil Procedure, the provisions of international conventions supersede those of any prior or subsequent national laws or regulations.

Despite this judgment, some authors and jurists continue to argue that the Hague-Visby Rules should continue to be applicable in Lebanon to all contracts of carriage involving the states signatory to these rules. But the applicability of the Hamburg Rules in Lebanon is no longer questionable.