CHAPTER ONE
GENERAL INTRODUCTION
1.1 Background to the Study
The industrialisation of large parts of the world during the 19th century led to increased manufacturing, trade and transport together with technological and infrastructural development. This in turn led to a huge increase in maritime transport. For example between 1850 and 1869, the total net tonnage of steamers increased to over 400 per cent.[1] A part of this development was that liner conferences were created during that 19th century to control price levels and act for uniform tariffs on shipping routes.[2] The organisation of carriers in liner conferences led to increased negotiating power that gave carriers a great advantage against shippers when negotiating transport terms.[3]
The early bills of lading[4] contain any mainly four exception which are act of God, public enemies, shipper’s fault, or inherent vice of the goods. Therefore the carrier was strictly liable for cargo damage unless it could prove that its negligence had not contributed to the loss andthat the damage had been caused by one of the above four excepted causes.
However, as a result of 18th century judicial decisions, shipowners began generally to amend their bills not only to stipulate the old common law exceptions but also to exempt themselves from liability in respect of all perils of the sea and of navigation “of whatever nature and kind.” That is to say, the law regulating the carriage of goods by sea had in the early 19th century been made up by general maritime principles that were applied in both common and civil law countries. These traditional maritime principles held that a carrier was strictly liable for cargo damage unless it could prove that its negligence had not contributed to the loss andthat the damage had been caused by one of four excepted causes namely: act of God, act of public enemies, shipper’s fault, or inherent vice of the goods
Through such comprehensive clauses provisions inserted in their bills (known as “exemption clauses” or “negligence clauses”), carriers began to limit contractually the strict liability imposed upon them by marine law. The use of freedom of contract principles expressed in both common law and civil law created a situation whereby the carrier was enjoined on the one hand to strict liability by marine law, but could, on the other contract out of the bill of lading.
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