Loss of the Carrier's Limitation of Liability under the Hague-Visby Rules and the Warsaw Convention: Common Law and Civil Law Views

Author:Marel Katsivela
Position:Assistant Professor, University of Ottawa, Faculty of Law, Programme de Common Law en Français. I would like to deeply thank the Foundation for Legal Research for sponsoring this study, my research assistants and all the law professionals who have guided me in completing it
Pages:118-135
 
FREE EXCERPT
(2012) 26 A&NZ Mar LJ
118
LOSS OF THE CARRIERS LIMITATION OF LIABILITY UNDER THE HAGUE-VISBY
RULES AND THE WARSAW CONVENTION: COMMON LAW AND
CIVIL LAW VIEWS
Marel Katsivela*
This article provides a comparative analysis of selected issues arising under Article 4.5.e of the Hague-Visby Rules
(the Visby Rules)
1
and Article 25 of the 1929 Warsaw Convention
2
as amended by the Hague Protocol (the Hague
Protocol).
3
These provisions focus on the loss of the international ocean and air carriers right to limitation of
liability respectively. The following laws and case law giving effect to the abovementioned provisions will be
considered: English, Australian, Canadian (Common Law), French and Greek (Civil Law).
4
On certain issues,
reference will also be made to the laws and case law of Italy, Germany, China, Japan (Civil Law), and Hong Kong
(Common Law).
5
All these jurisdictions constitute important seafaring and most of them air faring nations.
Article 4.5.e of the Visby Rules and Article 25 of the Hague Protocol provide as follows (emphasis added):
Article 4.5.e of the Visby Rules: 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 pr oved that the damage resulted from an act or omission of the car rier
done with intent to cause damage, or r ecklessly and with knowledge that damage would probably result .
* Assistant Professor, University of Ottawa, Faculty of Law, Pr ogramme de Common Law en França is. I would like to deeply thank the
Foundation for Legal Research for sponsoring this study, my research assistants and all the law professionals who have guided me in completing
it.
1
The Hague-Visby Rules refer to the Hague Rules as amended by two Protocols. The first Protocol, Pr otocol to Amend the International
Convention for the Unification of Certain Rules of Law Relating to Bills of Lading (commonly known as the Visby Protocol 1968), was adopted
at Brussels on 23 February 1968 and entered into force on 23 June 1977. The second protocol, Pr otocol Amending the International Co nvention
for the Unification of Certain Rules of Law Relating to Bills of Lading (25 August 1924, as Amended by the Protocol of 23 Februa ry 1968)
(commonly known as the SDR Visby Protocol 1979), was adopted at Brussels on 21 December 1979 and entered into force on 14 February 1984.
2
Convention for the Unification of Certain Rules Relating to Internationa l Transportation by Air, 12 October 1929, ICAO Doc 9201.
3
Protocol to Amend the Convention for the Unification of Certain Rules Relating to Internationa l Transportation by Air, 28 September 1955,
ICAO Doc 7632.
Some information contained in the present article (especially concerning the Civil Law jurisdictions of France, Italy, Germany and Greece) first
appeared in another of my articles: Katsivela, M, ‘Ocean Carrier’s Loss of Liability Limitation – Interpretation of Article IV.5(e) of the Hague-
Visby Rules in French, Greek, Italian and German Law’ (2012) 18(1) JIML 1, 21-38.
4
Although most Canadian provinces follow the Common Law tradition, the province of Québec is a Civil Law province. Cases that have mostly
commented on the mentioned provisions, however, are federal cases and cases from Common Law provinces. These will be the main focus of the
present study. The United Kingdom, Hong Kong, Australia, Canada, France, Italy, Germany, Greece, Japan and China have applied the Hague
Protocol. ICAO, Contracting P arties to the Warsaw Convention as Amended by the Hague Protocol,
hp.pdf>. Moreover, these countries (for China and Japan see below, n 5) have either ratified/acceded to the Visby Rules or incorporated them into
domestic enactments. For some of these (for example, Greece, France, Italy, the UK and Hong Kong, which have ratified the rules) see CMI,
CMI Yearbook Status of Ratifications to Maritime Conventions, (2009), . For
Australia see Griggs, P, Williams, R, and Farr, J, Limitation of Liability for Maritime Claims (4th Ed, 2005),169, 177, 178; White, M, Australian
Maritime Law (2nd Ed, 2000), 68-69, and the Carr iage of Goods by Sea Act 1991 (Cth), ,
which gives effect to the Visby Rules but contains some provisions of the Hamburg Rules. Part 5 of the Canadian Mar ine Liability Act (formerly
known as the Carr iage of Goods by Water Act) implements the Visby Rules: see .
Both the Australian and the Canadian Acts reproduce the Visby Rules provision under examination.
5
Germany did not sign the Visby Rules, which were later incorporated into the General German Commercial Code: see Ashton, R, ‘A
Comparison of the Legal Regulation of the Carriage of Goods by Sea under Bills of Lading in Australia and Germany’ (1999) 14(2) MLAANZ
Journa l, 24, . China has not signed the Hague, Visby or the
Hamburg Rules. However, the Maritime Code of the People‘s Republic of China (CMC), which entered into force in 1993, adopts various basic
rules contained in the Hague, Visby and Hamburg Rules. Zhang Lixing, ‘Recent Maritime Legislation and Practice in the People’s Republic of
China’ (1993-1994) 6 USF Mar LJ, 273, 281, 284. Article 59 of the CMC is similar to art 4.5.e of the Visb y Rules. The CMC can be found at
. Hong Kong is a Common Law jurisdiction and a Special Administrative
Region of the People’s Republic of China: see Department of Justice, The Legal System in Hong-Kong, (2004),
eng/legal/>. Japan is a party to the Hague Rules and the 1979 Visby Protocol, reflected in the Ja panese Carr iage of Goods by Sea Act: see (1993)
25 The Bulletin of the Japa n Shipping Exchange Inc, 9, 17, . Article 13bis of this Act (which
is also referred to as the Internationa l Carria ge of Goods by Sea Act in Japan) contains a similar provision to art 4.5.e of the Visby Rules. Also
see Griggs, Williams and Farr, above n 4, 217, 290-291.
Loss of Limitation of Liability
(2012) 26 A&NZ Mar LJ
119
Article 25 of the Hague Protocol: The limits of li ability specified in Article 22 shall not apply if it is proved tha t the
damage resulted from an act or omission of the carrier , his servants or agents, done with intent to cause damage or
recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of
a servant or agent, it is also proved that he was acting within the scope of his employment.
6
The expression with intent to cause damage or recklessly and with knowledge that damage would probably result,
which constitutes the main focus of the present study, is common to both Article 4.5.e of the Visby Rules and
Article 25 of the Hague Protocol. This is not a mere coincidence. Article 4.5.e of the Visby Rules was drafted in
conformity with corresponding provisions contained in earlier conventions governing the carriage of persons by sea,
which were, in turn, inspired by Article 25 of the Warsaw Convention as amended by the Hague Protocol.
7
The fact
that the later drafters of Article 4.5.e of the Visby Rules deliberately adopted the expression with intent to cause
damage or recklessly and with knowledge that damage would probably result that had previously been used in
Article 25 of the Hague Protocol, necessarily suggests that they shared the same drafting intent. Case law principles
developed under Article 25 of the Hague Protocol equally constitute a valid source of inspiration and guidance for
cases commenting on Article 4.5.e of the Visby Rules. This becomes even more obvious since as we are going to
see doctrine and case law commenting on the ocean carriers unlimited liability often refer to air transport cases
as well.
8
In devising these provisions, the drafters of the Visby Rules and the Hague Protocol intended to put an end to
divergent legal terms used (wilful misconduct, dol, gross negligence) in connection with the carriers unlimited
liability under the Hague Rules and the Warsaw convention.
9
In this regard, the new Articles were not as vaguely
6
The French version of the Visby Rules is equally authentic to the English and provides (emphasis added): ‘Ni le transporteur, ni le navire,
nauront le droit de bénéficier de la limitation de responsabilité établie par ce paragraphe s’il est prouvé que le dommage résulte d‘un acte ou
dune omission du transporteur qui a eu lieu, soit avec lintention de provoquer un dommage, soit témérair ement et avec conscience quun
dommage en résulterait pr obablement’. The official French version of the Hague Protocol provides (emphasis added): ‘Les limites de
responsabilité prévues à larticle 22 ne sappliquent pas sil est prouvé que le dommage résulte dun a cte ou dune omission du transporteur ou de
ses préposés fait, soit avec lintention de provoquer un dommage, soit témérair ement et avec conscience quun dommage en résultera
probablement, pour autant que, dans le cas dun acte ou dune omission de préposés, la preuve soit également appo rtée que ceux-ci ont agi dans
l’exercice de leur fonctions’. The italicised terms reflect the common elements of the two provisions.
7
Article 4.5.e of the Visby Rules was inspired by art 7 of the 1961 Interna tional Convention for the Unification of Certain Rules relating to
Carr iage of Passengers by Sea (Brussels, 1961) and by art 7 of the Dra ft Convention relating to Passenger Luggage by Sea (Stockholm, 1963).
Royaume de Belgique, Ministère des Affaires Étrangères et du Commerce Extérieur, Conférence Diplomatique de Dr oit Maritime (Douzième
session), (1967), 676, 293. Article 7 of the 1961 Brussels Convention provides: ‘The carrier shall not be entitled to the benefit of the limitation of
liability provided for in Article 6, 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’. The 1961 Brussels Convention was inspired by air carriage rules and was
known as the ‘little Warsaw’: see Gehringer, A, ‘After Carnival Cruise and Sky Reefer: An Analysis of Forum Selection Clauses in Maritime and
Aviation Transactions’ (2001) 66 JALC 633, 671. See also reference to the Warsaw Convention and the Hague Protocol in the minutes of the
1961 Brussels Convention: Royaume de Belgique, Ministère des Affaires Étrangères et du Commerce Extérieur, Conférence Diplomatique de
Droit Maritime (Onzième session), (1961), 169, 178-179. On art 25 of the Hague Protocol being the basis for art 4.5.e of the Visby Rules see also
Tetley, W, Marine Car go Claims (Vol 1, 4th Ed, 2008), 286ν and Diamond, A, ‘The Hague-Visby Rules and the Carriage of Goods by Sea Act,
1971’ (Lloyd’s of London Press Ltd seminar, London, 8 December 1977), 13, 14.We will refer to the Visby Rules/Hague Protocol provisions to
signify the common expression of the two Articles.
8
Moreover, the absence of extensive case law and commentary on art 4.5.e of the Visby Rules in some of the jurisdictions under consideration
justifies recourse to art 25 of the Hague Protocol, which has been described as one of the most controversial and litigated provisions. Cheng, B,
‘Wilful Misconduct: From Warsaw to the Hague and from Brussels to Paris’ (1977) 2 Ann Air & Sp L, 55.
9
Internationa l Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, Aug 25, 1924, 120 LNTS 155 (1924) (the
Hague Rules) provides (emphasis added): ’Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in
connection with goods in an amount exceeding 100 pounds sterling per package or unit, or the equivalent of that sum in other currency unless the
nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading’. The expression ‘in any
event’ has been made the object of various interpretations in different countries. For wilful misconduct at United States law, see Tetley, above n
7, 255, 266-267. For dol at French law, see Bonassies, P, and Scapel, C, Droit Mar itime (2nd Ed, 2010), 766. For dol () and divergent
opinions regarding gross negligence (‘ ’) at Greek law, see Kiantou-Pampouki, A,   II (6th Ed, 2007), 657-658. For
the uncertainty regarding the interpretation of this term under English law, see also Griggs, Williams and Farr, above n 4, 151-152 and Wilson, J,
Carr iage of Goods by Sea (7th Ed, 2010), 202-203. Likewise, the Warsaw Convention’s reference to ‘wilful misconduct’ (dol in the French text o f
the Convention) or ‘default equivalent to wilful misconduct’ was problematic since it gave rise to divergent interpretations, not only in countries
belonging to different legal systems, but also in countries sharing the same legal tradition. For example, following the Civil Law maxim culpa
lata dolo a equiparatur signifying that gross negligence is equivalent to dol, some Civil Law jurisdictions would assimilate gross negligence
(faute lourde) to dol, while others would not: Cheng, above n 8, 76-77. Further, Common Law approaches to wilful misconduct (for example,
under English and US law) differ: Clarke, M, ‘Way with Words: Some Obstacles to Uniform Transport Law’ (1998) 3(2-3) Unif L Rev, 351, 364-
365ν and Mankiewicz, R, ‘From Warsaw to Montréal with Certain Intermediate Stops’ (1989) 14 Air Law 239, 247.
Loss of Limitation of Liability
(2012) 26 A&NZ Mar LJ
120
worded as the corresponding provision in the Hague Rules, nor did they use domestic law concepts as the Warsaw
Convention did.
10
As such, they appeared to respond to the need for international uniformity in this area.
Based on the negotiations of the Hague Protocol, Article 25 contains two conduct requirements that are not easy for
a claimant to establish. The first requirement (intent to cause damage) was not commented upon in great detail
during these negotiations. The second requirement (recklessly and with knowledge that damage would probably
result) received more attention from the drafters. Some country delegates opined that the term recklessly
amounted to no more than gross negligence, and that its presence should be established based on an objective
standard.
11
Others concluded that a subjective approach underpinned this concept.
12
As a result, there was no
definite pronouncement on the definition or assessment of the term. What seems to be clear, however, from these
negotiations is that the knowledge that damage would probably result requirement was intended to be based on a
subjective (or in concr eto), rather than an objective (or in a bstracto) test.
13
The subjective assessment favors the
carrier, since it is very difficult for a claimant to establish actual knowledge that damage would probably result. On
the contrary, the objective assessment is protective of claimants because they do not have to prove actual knowledge
of the likelihood of damage, but simply that the person in question should have had such knowledge when compared
to a reasonable, prudent person (imputed knowledge).
14
In all cases, actual knowledge must relate to the presence of
probable, not possible damage.
15
This is a more stringent, carrier-protective requirement than merely establishing the
possibility of damage. The German reference to a possible danger, and the Belgian formula of damage might or
probably would result, did not receive a second glance.
16
This article will examine how different Common Law and Civil Law jurisdictions have viewed the two requirements
of the Visby Rules and Hague Protocol provisions.
17
This question will be the main focus of the commentary. Issues
arising solely under Article 25 of the Hague Pro tocol or Article 4.5.e of the Visby Rules (for example, whether the
Visby Rules term carrier should also include its agents, or what the Hague Protocol expression within the scope of
his employment means)
18
will not be discussed.
The ultimate goal of the present study is to determine to what extent the Visby Rules and the Hague Protocol
requirements are being uniformly interpreted in the statutes and case law in the aforementioned jurisdictions. If
uniformity exists, the intent of the drafters would be honored. In its absence, the vices of divergent domestic law
interpretations prevailing before the adoption of the two sets of rules will persist.
The complexity of such a comparative analysis is not negligible. One is commenting on the statutes and case law of
a large number of Common Law and Civil Law countries regarding two provisions governing international ocean
and air carriage. This involves a cross-modal (ocean-air) and cross-country legal study which, by its very nature,
constitutes a challenging task.
In undertaking this task, the author aligns herself with the third category of comparative law scholars described by
Professor von Mehren; namely, those who do not reject or embrace the convergence of different legal systems.
19
10
To ensure uniformity, it was deemed necessary to replace abstract legal definitions by concrete specifications: Cheng, above n 8, 83.
11
Ibid, 86.
12
Ibid.
13
Ibid, 90-91. Mankiewicz, R, ‘L‘Origine et l‘Interprétation de l‘Article 25 de la Convention de Varsovie Amendée à la Haye en 1955’ (1977) 26
ZLW 175, 186.
14
On the description of these tests, see Rodière, R, ‘La Faute Inexcusable du Transporteur Aérien – Appréciation Concrète ou Abstraite’ (1978)
13 ETL 24, 26; McKay, J, ‘The Refinement of the Warsaw System: Why the 1999 Montréal Convention Represents the Best Hope for
Uniformity(2002) 34 Case W Res J Intl L 73, 91-92.
15
See Cheng, above n 8, 88.
16
Ibid. The meaning of possible and probable damage will be commented on below.
17
However, it should be noted that, due to the number of countries considered, this comparative study will not thoroughly examine all aspects of
the relevant conduct. Moreover, art 4bis of the Visby Rules and art 25A of the Hague Protocol will not be discussed.
18
These issues will probably be the focus of a future article.
19
For what follows in this paragraph, see von Mehren, A, ‘The Rise of Transnational Legal Practice and the Task of Comparative Law’ (2001) 75
Tul L Rev 1215, 1215-1216.
Loss of Limitation of Liability
(2012) 26 A&NZ Mar LJ
121
These scholars simply believe that such convergence may or may no t occur. Until or unless it takes place, however,
they opine that it is the responsibility of comparative law to determine the degree and the manner in which
convergence exists or may be occurring, and to provide the analytical tools to enable jurists from different legal
cultures to achieve a shared understanding of their respective intents, positions or views. This is precisely the
approach the author adopts.
The goal of this article is to determine to what extent uniformity in implementing these provisions exists. This will
allow legal professionals in the field of international transportation law to achieve a better understanding of these
provisions, helping them to better operate in a world that seeks closer interaction between Common Law and Civil
Law rules.
The analysis is divided into four sections. The first two sections contain a description of the two requirements of the
Visby Rules and Hague Protocol provisions as interpreted in the Common Law jurisdictions (Section 1) and Civil
Law jurisdictions (Section 2) under consideration. Section 3 compares and analyzes the respective laws. Section 4
provides a concluding summary.
1 The Two Requirements of the Visby Rules and Hague Protocol Provisions in
Common Law Jurisdictions
Under Canadian, English and Australian law, the first requirement of the Visby Rules and the Hague Protocol
provisions, an intent to cause damage, requires proof of the state of mind of the defendant (a subjective test). This
places a heavy burden of proof on the claimant, since it is hard to imagine a person who actually intends to cause
damage to cargo.
20
As such, the first requirement has not attracted much judicial attention in these three countries, or
as we have seen during the negotiations of the Hague Protocol.
In analyzing the components of the second requirement, recklessly and with knowledge that damage would
probably result, English and Hong Kong decisions have sided with a subjective test to establish the required
knowledge of probable damage. In the well-known English case Goldman v Thai Airways International Ltd,
21
(hereinafter Goldman), the court commented on this test. Goldman, a personal injury air transport case, has been
extensively cited by air and ocean cargo decisions worldwide on the carriers unlimited liability. It involved a
passenger who sustained injuries when the plane he boarded encountered severe turbulence. The pilot had received
warnings as to the possibility of such turbulence but no sign was given by the aircraft control panel to keep the seat
belt fastened. The court had to determine whether the pilot had acted recklessly and with knowledge that damage
would probably result in not switching on the fasten seat belt sign. In concluding that it had not been proven that
the pilot actually knew that damage would probably result, Eveleigh J stated:
22
If the pilot did not know that damage would probably result from his omission, I cannot see that we are entitled to
attribute to him knowledge which another pilot might have possessed or which he, himself, should have possessed.
20 Canadian law: Connaught Labora tories Ltd v. British Airways, (2002) OJ No 3421 (QL), [53], 32 (Ont S Ct J) (Connaught); Rembrandt
Jewelry Manufacturing Ltd v Air Canada, [1985] OJ No 1382 (QL), [15] (Ont SC). Australian law: see Heerey, P, ‘Limitation of Maritime
Claims’ (1994) 10(1) Austl & NZ Mar LJ, 1, 14, referring to English doctrine. English law: see Aikens, R, Lord, R, and Bools, M, Bills of Lading
(2006), 299; Griggs, Williams and Farr, above n 4, 37.
21
Air: (1983) 1 WLR 1186, 1199-1202 (CA). This case was followed by Nugent v Michael Goss Aviation (2000) 2 Lloyd’s Rep 222 (CA). Sea:
Wilson, above n 9, 204 referring to air case law. The author notes, ibid, that it remains to be seen how courts will describe the second requirement
under art 4.5.e of the Visby Rules. Also see Boyd, S, Burrows, A, and Foxton, D, Scrutton on Cha rterparties a nd Bills of Lading (20th Ed, 1996),
452 n 64, referring to Goldman; Griggs, Williams and Farr, above n 4, 38, referring to air and maritime case law. We found no English Visby
Rules case addressing this point.
22
(1983) 1 WLR 1186, 1194. In more explicit terms, Purchas J stated (ibid, 1202): ‘I agree that the true interpretation of article 25 when it is read
as a whole involves the proof of actual knowledge in the mind of the pilot at the moment at which the omission occurs… .’
Loss of Limitation of Liability
(2012) 26 A&NZ Mar LJ
122
This holding clearly opts for a subjective test to assess the knowledge of probable damage (actual knowledge); as
opposed to an objective standard (the knowledge the carrier should have possessed imputed knowledge). In
reaching this conclusion, the court cited the negotiating history of the Hague Protocol.
In the Hong Kong case of Chiu Pui Yin v China Airlines Ltd
23
the plaintiff suffered injuries during landing at Hong
Kong airport. At that time, a number 8 typhoon signal was hoisted. The claimant contended that the defendant
airline had acted recklessly and with knowledge that damage would probably result in failing to take a series of
measures to prevent such injuries. In siding with the subjective test to establish knowledge of probable damage
following English case law, Saunders J stated:
I am satisfied that it is arguable that it was within the actual contemplation of the crew of the aircraft, that the anticipated
landing in the course of the typhoon in Hong Kong, of an aircraft at maximum landing weight or thereabouts, would be such
as to probably cause damage.
Following English and Hong Kong cases, therefore, actual knowledge of probable damage needs to be established in
order to determine the carriers unlimited liability. Actual knowledge can be proven by direct evidence or by the
drawing of inferences based on the facts of the case.
24
In this regard, case law refers to the knowledge of probable,
not merely possible, damage. Probable damage has been viewed as something likely to happen.
25
The definition of the term recklessly does not seem to be settled under English case law.
26
Some decisions have
stated that recklessness involves deliberately running an unjustifiable risk.
27
Others have concluded that recklessness
amounts to gross carelessness as opposed to gross negligence and is assessed on an objective standard.
28
In
this regard, t he likelihood that damage will follow not whether there is actual knowledge that damage would
probably result is one element to be considered.
29
In Goldman, Eveleigh J noted that a person acts recklessly
when he behaves in a manner which indicates a decision to run the risk or a mental attitude of indifference to its
existence.
30
He explained that a deliberate disregard of instructions that the pilot knows to be for the safety of the
passengers may be qualified as reckless.
31
Such behavior, however, was not present in the case at bar.
32
In arguing
that it is in relation to that knowledge [that damage would probably result] that his conduct is to be judged in
order to determine whether or not it was reckless,
33
the court opined that recklessness and the prescribed knowledge
cannot exist independently but rather in relation to one another. Since, as mentioned above, this case concluded that
knowledge of probable damage needs to be assessed on the basis of a subjective test, establishing recklessness
involves taking into account subjective considerations.
23
Air: [2007] HKCU 1839 (QL), [22] (Court of First Instance); Ericsson Ltd v KLM Royal Dutch Airlines [2006] 1 HKLRD 584 (WL), [190]
(Court of First Instance). Both cases cite English law on this point. See also Amconics Infotech (HK) Ltd v. Menlo Worldwide Forwarding Inc,
[2006] HKEC 506 (WL), [13] (CA) (Armonics).
24
English law air: Rolls Royce plc v Heavylift-Volga DNEPR Ltd [2000] 1 All ER (Comm) 796 (QL), [36] (QB) (Rolls Royce). Sea: Griggs,
Williams, and Farr, above n 4, 38 referring to air case law. See also the Hong Kong cases Amconics, above n 23; and Kwok Kam Ming v China
Airlines Ltd [2008] HKEC 1802 (WL), [9], [13], [15], [18] (CA).
25
Air: Goldman, above n 21, 1195-1196. Maritime: Griggs, Williams and Farr, above n 4, 38, where the Goldman case is cited.
26
As was stated in the non-transport case of Herr ington v British Railways Board (1971) 2 QB 107 (CA): ‘“Reckless” is an ambiguous word
which may bear different meanings in different contexts. In some branches of the law it is used to connote a rare state of mind between
negligence however gross on the one hand and deliberate wrongdoing on the other. In other contexts “reckless” simply amounts to gross
negligence… .’ This case has often been cited when commenting on this term. On the multiple meanings of ‘reckless’ in general, see Cheng,
above n 8, 73-76. See also the suggestion of Anthony Diamond on how recklessness should be defined: Diamond, above n 7, 15.
27
Albert E Reed & Co v London & Rochester Trading Co Ltd [1954] 2 Ll LR 463, 475 (QB) (Albert). This maritime (albeit not Visby Rules) case
has been cited by Canadian air cargo decisions on the definition of recklessness.
28
Megaw J in Shawinigan Ltd v Vokins & Co Ltd [1961] 3 All ER 396, 403 (QB) (Shawinigan). This is a maritime (albeit not Visby Rules) case.
As we will see, this case has been cited by Canadian air cargo cases on the definition of recklessness.
29
Ibid.
30
Goldman, above n 21, 1194.
31
Ibid, 1194
32
Ibid, 1200.
33
Ibid, 1199. In interpreting the term ‘reckless’ maritime doctrine refers to air case law: Griggs, Williams and Farr, above n 4, 38; Aikens, Lord,
and Bools, above n 20, 299.
Loss of Limitation of Liability
(2012) 26 A&NZ Mar LJ
123
The English and, to a lesser extent, the Hong Kong courts have also described the Visby Rules/Hague Protocol
requirement of intent to cause damage or recklessly and with knowledge that damage would probably result in
terms of the domestic legal concept of wilful misconduct.
34
A person engages in wilful misconduct if he knows
and appreciates that it is misconduct on his part in the circumstances to do or to fail or omit to do something and yet:
(a) intentionally does or fails or omits to do it; or (b) persists in the act, failure or omission regardless of the
consequences; or (c) acts with reckless carelessness, not caring what the results of his carelessness may be.
35
In this
regard, English law insists on examining both the state of mind of the actor (a subjective test) and the wrongful
character of his conduct.
36
The English definition of wilful misconduct approximates the Visby Rules/Hague protocol requirement.
37
In effect,
the awareness of probable damage, and the persistence to proceed to an act despite such a realization are elements
present in both concepts. However, differences do exist. For example, wilful misconduct does not refer to an intent
to cause damage (Visby Rules/Hague Protocol standard), but rather to an act that needs only to create a risk of
probable damage.
38
Moreover, the Visby Rules and the Hague Protocol provisions spell out the requirement of
knowledge that damage would probably result,
39
contrary to the abovementioned definition of wilful misconduct,
where the awareness of the likelihood of damage is not explicitly stated. The former concept probably places some
restraint on the permissible bounds of inferences of such knowledge.
40
In doing so, the Hague Protocol clarified
what wilful misconduct meant under the Warsaw Convention, and the Visby Rules adopted a more precise and
specific wording than its predecessor, the Hague Rules.
41
Canadian and Australian cases do not dwell on the concept of wilful misconduct when commenting on the carriers
unlimited liability. Cases that have used this term briefly usually cite English decisions or doctrine.
42
In examining
the Visby Rules/Hague Protocol provisions, courts in the two countries simply seek to determine whether the
claimant has met the onerous burden of proof of establishing an act or omission done with intent to cause damage or
recklessly and with knowledge that damage would probably result.
43
In SS Phar maceutical Co Ltd v Qanta s Airways Ltd (air carriage)
44
and Sellers Fabrics P ty Ltd v Hapa g-Lloyd AG
(ocean carriage)
45
the Australian courts followed the English approach in Goldman.
34
English sea: Cia Por torafti Commerciale SA v Ultramar P anama Inc (The Captain Gr egos) [1990] 1 Lloyd’s Rep 310, 316 (CA). Air:
Antwerp United Diamond BVBA v Air Europe [1996] QB 317. Rolls Royce, above n 24, para 37. A substantial majority of country delegates
during the negotiations of the Hague Protocol maintained that the new rule should be drafted along the lines of the Common Law concept of
wilful misconduct: Cheng, above n 8, 83. Hong Kong: Sally Thirkell v Trans World Airlines Corp [1968] HKDCLR 91 (WL), 91-100 (DC).
35
See The Thomas Cook Group Ltd v Air Malta Co Ltd (1997) 2 Lloyd’s Rep 399, 408, commenting on the unamended Warsaw Convention. The
Court added: ‘A person acts with reckless carelessness if, aware of a risk that goods in his care may be lost or damaged, he deliberately goes
ahead and takes the risk, when it is unreasonable in all the circumstances for him to do so’. Several decisions defining wilful misconduct,
including Horabin v British Overseas Airways Corp [1952] 2 Ll LR 450, 459, were mentioned therein.
36
Clarke, above n 9, 364-365.
37
Cheng, above n 8, 92ν Matte, N, ‘De Varsovie à Montréal, avec Escale à la Haye (Problèmes Posés par l’Augmentation de la Responsabilité du
Transporteur Aérien International)’ (1966) 1 RJT 165, 168; McGilchrist, N, ‘Article 25 : an English Approach to Recklessness’ (1983) LMCLQ
488, 489, stating that the Hague Protocol provision reflects the Common Law philosophy in the Hora bin case.
38
Cheng, above n 8, 76; Diederiks-Verschoor, I, An Introduction to Air Law (8th Ed, 2006), 153.
39
Cheng, above n 8, 92.
40
Ibid.
41
Air: for air carriage, see ICAO McGill University Institute of Air and Space Law, Compensation for Da mage Caused by Aircraft to Third
Par ties Arising from Acts of Unlawful Interference or from General Risks (2009),
, [2.2.2] (ICAO McGill). Sea: Griggs, Williams and Farr, above n 4, 153.
42
Canada: Swiss Bank Corp v Air Canada (1981) FCJ No 167 (QL), [27], [28], [30] (FCC) (Swiss Bank).
43
Sea: Ontario Bus Industries Inc v Feder al Calumet (The) (TD) [1991] FCJ 535 (QL), [13] (FCC) (Calumet). The appeal on this case was
rejected. Air: Swiss Bank, above n 42, [40]-[44]. Harry Richer Furs Inc v Swissair (1987) FCJ No 1155 (QL), [7] (FCC) (Ha rry Richer); Tiura
v United Parcel Service Cana da Ltd [2009] OJ No 6059 (QL), [10]-[11] (Ont SCJ) (Tiura). See, however, Green Computer In Sweden AB v
Federa l Express Corp [2002] FCJ No 1342 (QL), [15]-[17] (FCC), where the court used domestic concepts to describe the abovementioned
provision.
44
(1988) 92 FLR 231 (SC NSW) (SS Pharmaceutica l). The case was affirmed on appeal: Qantas Airways Ltd v SS Pharmaceutical Co Ltd (1991)
1 Lloyd’s Rep 288 (CA NSW) (Qantas Airways).
45
(29 Oct 1998) online: (SC NSW) (Sellers Fa brics). An appeal against the 1998 decision was commenced but the
matter finally settled: see Derrington, S, and White, M, ‘Australian Maritime Law Update: 1998’ 30(3) JMLC 419, 426.
Loss of Limitation of Liability
(2012) 26 A&NZ Mar LJ
124
In Sellers F abrics, containers were loaded in France on board a vessel travelling between Europe and Australia.
During the voyage between Melbourne and Sydney there was rough weather and a stack of containers on board the
vessel collapsed due to improper lashing undertaken in Melbourne under the supervision of the chief officer. The
main issue in this case was whether the ocean carrier could benefit from his limitation of liability. It was common
ground that the Visby Rules applied. The court reasoned that, in failing to ensure proper lashing or re-stowing of the
cargo in circumstances where it was known that the vessel was going to sail into bad weather, the chief officer acted
recklessly since, by taking this decision, he ran the risk that the cargo might collapse. From this and other
circumstantial evidence the court also determined that he had actual knowledge that damage would probably result.
Rolfe J specifically stated:
46
[T]he decision in Goldman settled a number of questions arising under Article 25 [such as] the proof of actual
knowledge in the mind of the [actor] at the moment at which omission occurs [and that] recklessness [exists] when
the person concerned ... acts in a manner which indicates a decision to run the risk or a mental attitude of indifference
to its existence.
I am satisfied that Mr Lewis was aware that the stack was not properly lashed and that he could, had he chosen, have
re-stowed the two top containers. I am further satisfied that in failing to ensure proper lashing or re-stowing in
circumstances where the vessel was to sail into weather, which he knew would be rough, he acted in a manner, which
indicated as clearly as could be, a decision to run the risk that the stack would collapse . Obviously if the containers
fell, as they did, there would, in all probability, be damage either to the goods in them or to the goods in containers onto
which they fell. Mr Lewis knew this and, for that reason, immediately on the happening of the occurrence he left the
bridge to try to minimise the damage, which he knew was, in all probability, occurring.
Despite this finding, the carriers limitation of liability was finally upheld because the officers conduct was not
deemed to be the personal act of the ocean carrier.
In the internationally known SS Pharmaceutical Co Ltd v Qanta s Airways Ltd also cited by Sellers Fabr ics the
plaintiff had shipped five cartons of drugs from Melbourne to Tokyo via Qantas Airlines. The cartons were marked
with a symbol denoting that they were to be kept dry. Despite this, the air carriers agents left the cargo exposed to
rain, wind and thunderstorm without any particular precautions taken. The court stated that to have cargo, which is
particularly vulnerable to damage by rain, and leave it exposed to the elements without particular precautions, is
reckless.
47
Moreover, in his letter, the director of cargo acknowledged the presence of deplorably bad handling.
This evidence, coupled with the defendants failure to prove what, if anything, it did to protect the cargo, led the
court to conclude that the defendant had acted recklessly and with knowledge that damage to the goods would
probably result. As the trial judge (Rogers J) specifically stated:
48
Article 25 has been subjected to critical examination by the English Court of Appeal in Goldman .The Court of
Appeal [in Goldman] held that the applicable test was subjective … . Here the defendant, who had such goods in its
care, declined to give evidence of what, if anything, it did to protect the goods . I am entitled on the evidence, as I
do, to hold the defendants conduct to have been reckless. In my view, there was clear knowledge of the li kelihood of
damage to specially vulnerable cargo in the weather conditions then obtaining.
In affirming this holding, the appellate court sided with the subjective test and added that, where an inference is
open and the defendant elects not to give evidence the Court is entitled to be bold.
49
In making this finding, the
46
Sellers Fabr ics, above n 45. In reality, the court in Sellers Fabrics cited t he Goldman case as stated in the SS Phar maceutical. The last two
holdings have often been cited by subsequent Australian and international case law and doctrine.
47
SS Pharmaceutical, above n 44, 246. The appeal case specifically referred to the Goldman definition of recklessness: Qantas Airways, above n
44, 290-291.
48
SS Pharmaceutical, above n 44, 246-247. See Qa ntas Airways, above n 44, 291 on the subjective test. On this test see also Davies, M, and
Dickey, A, Shipping Law (3rd Ed, 2004), 229; and Heerey, P, above n 20, 15-16, referring to SS Pharmaceutical. Australian cases that have
mentioned SS Pharmaceutical on this po int are Morrison v Peacock & Roslyndale Shipping Co Pty Ltd [2000] NSWCCA 452 (QL),[70]-[76];
and Smithers v Lokys (2001) 108 FCR 303 (WL), [15] (FCA). These cases are interpreting similar loss of limitation of liability provisions.
49
Qantas Airways, above n 44, 293. Subsequent Australian cases have cited this phrase. The similarity of the facts and holding of this case to the
Canadian case Connaught, above n 20, is striking, and was noted by the Canadian court: see Co nnaught, above n 20, 419. We should note,
Loss of Limitation of Liability
(2012) 26 A&NZ Mar LJ
125
court was obviously of the view that actual knowledge can be inferred from evidence and the surrounding
circumstances of each case.
50
Both the SS P harmaceutical and Sellers Fa brics holdings are consistent in their interpretation of the second
requirement of the Visby Rules/Hague Protocol provisions. In aligning themselves with the English approach
adopted in the Goldman case, the Australian courts assess knowledge of probable damage based on a subjective test
and state that a person acts recklessly when she behaves in a manner which indicates a decision to run the risk or a
mental attitude of indifference to its existence. In opting for the latter definition of recklessness, Australian decisions
do not appear to adopt the variety of interpretations given to this term under English case law mentioned above.
Under Canadian case law the definition of recklessness does not seem to be settled. Following English cases, some
Canadian courts have defined the term as gross carelessness distinguishing it from gross negligence and
basing its presence on an objective test.
51
Other Canadian decisions describe it as a conscious ... disregard for or
indifference to ... risk of harm. Reckless conduct is more than mere negligence; it is gross deviation from what a
reasonable man would do.
52
The term has also been defined as gross negligence.
53
Despite this uncertainty of
definition, judges have concluded that recklessness exists where there is failure of cargo services employees to
inform the ramp services of the presence of dry ice in the compartment of the aircraft where live animals are being
transported.
54
Likewise, there is reckless behavior where the shipper has specifically asked for the refrigeration of
the cargo and the carrier has failed to refrigerate it, taking no steps to investigate the shippers claim or to preserve
evidence regarding the subsequent damage.
55
The use of the objective or the subjective tests to establish knowledge of the likelihood of damage has given rise to
debate in Canada.
56
Federal court cases such as Swiss Bank
57
and Prudential Assurance Co v Canada
58
have adopted
the objective test on this issue.
In Swiss Bank, a parcel of Canadian bank notes was shipped from Switzerland to Montréal by the defendant carrier.
It disappeared after reaching Montréal. The plaintiff sought full recovery, relying on article 25 of the Hague
Protocol. Air Canada admitted liability but sought to limit the amount of its liability. Applying the objective test, the
court held for the plaintiff, reasoning that the bank notes were likely to have been stolen by an Air Canada
employee, who must have had knowledge that damage would probably result. Walsh J stated:
59
however, that Kirby J dissented in the Australian Court of Appeal case and made the following remarks: ‘In the present case Qantas failed to call
the officer who acknowledged that its handling of the subject cargo had been “deplorably bad”. It also failed to call Mr Johnson. But such
omissions do not, in my view, fill the gaping void left by the respondents’ failure to prove that a servant or agent of Qantas acted recklessly and
with knowledge that damage would probably result in the way the respondent’s goods were handled. No particular servant or agent was ever
identified who had that attitude which allegedly occasioned the respondents’ loss. The issue was simply left to speculation.’ (Qa ntas Airways,
above n 44, 305-306). Kirby J also referred to different definitions of the term ‘reckless’, mainly based on English law (ibid, 301).
50
Heerey, above n 20, 16, commenting on this case.
51
Air: Newell v Canadia n Pac Airlines [1976] 74 DLR (3d) 574 (QL), [19]-[20] (Ont Ct) (Newell) based on English case law (Shawinigan, above
n 28).
52
Air: Tiura, above n 43, [13], following the Black’s Law Dictionary definition of ‘recklessness’. Commenting on this definition, the court (ibid,
[14]) refers to Goldman.
53
Sea: Gundersen v Finn Marine Ltd [2008] BCJ No 2366 (QL), [43]-[49] (BCSC). Other judicial and do ctrinal definitions of the term are
cited in this case, which comments on a similar provision of another international maritime convention. See also Gold, E, Chircop, A, and
Kindred, H, Maritime Law (2004), 732, where the authors note that ‘recklessness suggests gross negligence’ (their reasoning being based on a
similar provision to the Visby Rules).
54
Air: Newell, above n 51, [20]. In this case, it was clear from the evidence that the cargo services employees knew that if live animals and dry
ice were placed in the same compartment, there would be a risk that the animals would sustain injury or death.
55
Air: Connaught, above n 20, [59]-[68].
56
Air: ICAO McGill, above n 41, n 12. Sea: No Visby Rules case was found on this point. However, in the Visby Rules case Ca lumet, above n
43, [13], it was stated that, to establish unlimited liability, the claimant must meet a high standard of proof. The court cited English doctrine on
this point.
57
Above n 42.
58
(1993) 2 FC 293 (QL), [28] (FCA) (Prudentia l).
59
Above n 42, [41]. On appeal, the court referred to the controversy regarding the application of a subjective or an objective test but did not
further comment on this point. Air Canada v Swiss Bank Corp (1987) FCJ No 619 (QL), [24] (FCA). The appeal decision (ibid, [11]) also stated
Loss of Limitation of Liability
(2012) 26 A&NZ Mar LJ
126
To interpret the Article [Article 25 of the Hague Protocol] otherwise would have the effect of rendering it virtually
meaningless, and in my view the French Cour de Cassation has therefore quite properly adopted the objective approach
for forming conclusions.
In adopting the objective standard, the court sided with French case law which we will be examining later on in our
study. As we have stated in our introductory remarks, opting for the objective standard favors claimants in that they
do not have to establish actual knowledge of the likelihood of damage, but simply that the person in question should
have had such knowledge when compared to a reasonable, prudent person (imputed knowledge). According to the
court, if the subjective test was followed, the difficulty of proof it would entail for the claimant would render Article
25 virtually meaningless, because it would rarely lead to full recovery.
In the more recent Prudential case, the Federal Court did not deviate from the conclusion in Swiss Bank. However,
the court did refer to the subjective test. This case involved electronic goods shipped by air from Japan to Canada
and stored in a warehouse pending customs clearance. The shipment was released to a person who misrepresented
himself as the owner of the goods. The true owner claimed the full value of the goods based on Article 25 of the
Hague Protocol, stating that the defendant carrier had acted recklessly and with knowledge that damage would
probably result by releasing the goods to a non-authorized party. The Court held for the plaintiff and stated that any
reasonable person would know that a failure to check identification could result in loss. In adopting the objective
standard, however, MacGuigan J also considered the subjective test:
60
In my view it is unnecessary for the present decision to get into the refinements of domestic criminal law as to
recklessness. Whatever the criminal law standard of recklessness, the civil law interpretation of the various concepts of
negligence (including recklessness as used in that context) is arguably objective . In any event, I am persuaded that
the result would be the same in the case at bar whether the standard of recklessness be subjective or objective. S.E.B.
Cargo had the onus of taking such care as to ensure proper delivery, and it can be concluded from the facts that it not
only must have been but was aware that delivery to an unauthorized person was very likely to preclude the cargos
coming into the hands of its rightful owner. In other words, the result is so obvious that it would be the same whether
taken subjectively or objectively.
In concluding in this way, the P rudential holding seems to adop t a less strict stance than Swiss Bank in allowing
consideration of a subjective test after examination of the objective standard when reasoning on the knowledge of
probable damage. This flexibility may be significant in view of more recent provincial cases that have opted for the
subjective test. It has been said, in this regard, that the trend in Canada is moving increasingly towards applying a
subjective, rather than an objective test.
61
A well-known provincial decision adopting the subjective standard is Conna ught Labora tories Ltd v British
Airways.
62
In this case, the plaintiff shipped cartons of vaccine from Toronto to Melbourne, Australia, via British
Airways. Despite directions to do so, British Airways did not store the cartons at temperatures between 2 and 8 °C,
and the vaccine was ruined. Connaught sued for damages, arguing that the air carrier acted recklessly and with
knowledge that damage would probably result. British Airways which took no steps to investigate the shippers
claim or to preserve evidence regarding the incident contended that damages, if any, should be limited to the
amount established by the Warsaw Convention as amended by the Hague Protocol. Molloy J gave judgment for the
plaintiff. Citing Goldman and extensively commenting on the Australian SS Pharmaceutical decision, and noting its
similarity to the case at bar, Molloy J argued that the carrier must have actual knowledge that damage would
that the trial court erred in its conclusion in failing to identify the perpetrator of the theft. For a discussion of the latter point under English law see
Treitel, G, and Reynolds, F, Carver on Bills of Lading (2nd Ed, 2005), 641-642.
60
Above n 58, [28]-[29].
61
ICAO McGill, above n 41, n 12. Even though we found no Visby Rules case on this test following Canadian law, maritime case law reasoning
on a similar provision has cited the Goldman decision in opting for the subjective test. Société Telus Communications v Peracomo Inc [2011] FCJ
No 602 (QL), [80] (FCC). Moreover, a Canadian conflict of laws case commenting on the Hague Protocol provision refers to Goldman in stating
that there should be knowledge of probable damage and not merely of possible damage: Johnson Esta te v Pischke [1989] SJ No 58 (QL) (Sask
QB).
62
Connaught, above n 20, [58].
Loss of Limitation of Liability
(2012) 26 A&NZ Mar LJ
127
probably result. Such knowledge does not need to be proven by direct evidence, but may be inferred from the
circumstances of the case. He specifically stated:
63
In the case before me, there is no direct evidence available as to the state of mind of the persons who handled the cargo
in London. However, the requirement of refrigeration was clearly marked on the packages and on the waybills, and
they were labelled as perishable. Refrigeration was available in London but not used. It is obvious that perishable
goods requiring refrigeration will probably be damaged if they are not refrigerated. In my view, this gives rise to the
inference that British Airways personnel deliberately took the risk of the damage. At the very least, it gives rise to
circumstances requiring some response from British Airways and no explanation has been provided. This supports the
drawing of an adverse inference against British Airways.
The Connaught case is not the only Canadian case which has embraced the subjective test. Cases like World of Art
Inc v Koninklijke Luchtvaar t Maatscha ppij NV
64
and Tiura v United Pa rcel Service Canada Ltd
65
have also favored
this standard. With some Canadian cases siding with the objective test to determine the knowledge of probable
damage, and others adopting the subjective standard, the dominant trend of Canadian jurisprudence on this matter is
not entirely clear. This contrasts with the English and Australian decisions, which have clearly sided with the
subjective test.
2 The Two Requirements of the Visby Rules and the Hague Protocol Provisions in
Civil Law Jurisdictions
During the negotiations of the Hague Protocol it was thought that Civil Law countries would interpret the first
requirement of the Visby Rules/Hague Protocol provisions (intent to cause damage) as dol
66
(from the Latin
dolus). This has proven to be true for the Civil Law countries under examination since dol, in its different domestic
law denominations (in France, dol;
67
in Greece, ,)
68
has been used to qualify this behavior. Strong subjective
considerations underpin these concepts.
69
Dol implies an act intentionally committed to cause harm. This concept has no precise counterpart in English
language or Common Law. However, the split of mental states into dolus and culpa (the Latin term for fault) in
Civil Law systems is said to correspond roughly to intent and negligence following Common Law reasoning.
70
Common Law terms that have been specifically used to describe dol are deceit
71
and wilful misconduct. Wilful
misconduct was the Common Law concept used to translate the French term dol in the 1929 Warsaw Convention
63
Ibid, [63]. See, however, Harr y Richer, above n 43, [9], [22], where the court held that, in the absence of a definitive explanation as to why the
cargo is lost, no conclusion on the carrier’s unlimited liability can be reached.
64
[2000] OJ No 4567 (QL). [1] (CA).
65
Above n 43, para 14, where the court followed Goldman. The subjective test seems to have also been followed in Newell, above n 51, [21].
66
Mankiewicz, above n 13, 180, 186.
67
France sea: Cour de Cassation, 24 May 1994 (92-13632) LEGIFRANCE; Air: Cour de Cassation, 21 July 1987 (86-12091) LEGIFRANCE.
68
Greece sea: Kiantou-Pampouki,   II, above n 9, 658. Korotzis, I,        
 -, (1994), 51-52. Air: Papaxronopoulos, N,          
   , (2002), 184-185. A corresponding term (dolo) has also been used in Italy sea: D’Ovidio, A, Pescatore, G,
and Tullio, L, Manuale di Diritto della Navigazione, (10th Ed, 2004), 542. Air: Busti, S, Trattato di Diritto Civile e Commerciale, XXVI T.3
(2001), 644. On the approximation of an intent to cause damage to an intentional fault under Chinese Civil Law, see Xia Chen, Limitation of
Liability for Maritime Claims (2001), 81. Under Chinese law intentional fault exists when a person can foresee the consequences of his act and
hopes that the latter will occur or wilfully allows it to occur: Zheng, H, China’s Civil and Commercial Law (1988), 37; Yang Lixin, Tort Law
(2004), 185.
69
France transport case : general comment: Cour d’Appel de Rouen 21 January 2010, 2011 DMF 267, 267ν Ghafourian, A, F aute Lourde,
Faute Inexcusable et Dol en Dr oit França is - Étude Jurisprudentielle (PhD Thesis, Paris II Droit d’Écono mie et de Sciences Sociales, 1977), 72,
82. Greece air: Court of Appeal of Athens, 1982, NOMOS 3075/1982  (147861). See also Fragogianni, K,    
  (2000), http://www.kostasbeys.gr/articles.php?s=5&mid=1479&mnu=3&id=18252>. China: Yang Lixin, above n 68. On the
classification of faults in China see below, n 127 and accompanying text.
70
As reported by Martinez, J, ‘Understanding Mens Rea in Command Responsibility’ (2007) 5 JINTCRJ 638, 644.
71
Government of Canada, Translation Bureau, Law of Contracts and Law of Torts Glossary (Common Law),
documents/droit-law.pdf>. This publication is part of a national program for the integration of both official languages in Canada.
Loss of Limitation of Liability
(2012) 26 A&NZ Mar LJ
128
provision regulating the loss of the air carriers limitation of liability.
72
However, the two concepts are not
synonymous. Whereas in wilful misconduct the act needs only to create a risk of probable damage to others, in dol
the act is designed to cause damage to others.
73
Moreover, wilful misconduct need not be intentional, but may
instead be a reckless act with knowledge that damage will result, lowering the burden of proof in Common Law
countries compared to the Civil Law dol concept.
74
These are some of the issues that necessitated the drafting of
Article 25 of the Hague Protocol.
75
The latter provision uses descriptive terms to qualify the conduct leading to
unlimited liability, and deliberately does not refer to domestic law concepts such as wilful misconduct or dol, even
though such have been used in practice.
As is the case in Common Law jurisdictions, an intent to cause damage is a rather rare occurrence in Civil Law
countries, since it is rather unlikely that a carrier will intend to harm the transported goods.
76
As such, this conduct
has not attracted much judicial attention.
Under the laws of France and Greece, as in Civil Law systems in general, gross negligence is, in reality, assimilated
to dolus following the maxim culpa lata dolo aequiparatur signifying that gross negligence is equivalent to
dolus.
77
Although there is a theoretical distinction between the two notions in Civil Law countries gross
negligence constitutes an extremely serious fault, or conduct far removed from that of a reasonable, prudent person,
but, unlike dol, gross negligence does not require intent or wilfulness the assimilation is well known and
generally applied in practice. It contrasts, however, with the situation in Common Law jurisdictions where there is a
sharp distinction between negligence and intent. English leading cases have stated that there is no room for the
[Civil Law] maxim [culpa lata dolo aequiparatur ] in the Common Law.
78
Despite the general application of the assimilation of gross negligence to dolus in Civil Law jurisdictions, France
and Greece do not give effect to this maxim with respect to the carriers loss of limitation of liability.
79
As a result,
only the required elements of the Visby Rules/Hague Protocol provisions can lead to unlimited liability. This
conforms with the intent of the drafters of both sets of rules, who believed that the use of domestic legal concepts
rendered the provisions of international conventions devoid of coherence.
80
The expression témérair ement et avec conscience quun dommage en résulter ait probablement (the French
equivalent of recklessly and with knowledge that damage would probably result) has been translated into French
law as faute inexcusable (inexcusable fault).
81
The concept of inexcusable fault does not form part of the general
hierarchy of faults in French civil law; it is well-known, however, at the domestic level in the areas of transport,
employment law (workplace accidents), and traffic accidents.
82
Its origins lie in the area of workplace accidents. In
72
The official French text of Article 25.1 of the 1929 Warsaw Convention made loss of the carrier’s limitation of liability dependent on the
presence of dol, or fault equivalent to dol, according to the law of the court seized of the case. It was translated into English as follows: ‘The
carrier shall not be entitled to avail himself of the provisions of this Convention which exclude or limit his liability, if the damage is caused by his
wilful misconduct or by such default on his part as, in accordance with the law of the Court seised of the case, is considered to be equivalent to
wilful misconduct’.
73
Cheng, above n 8, 76.
74
As reported by McKay, above n 14, 90-91.
75
Above, 119-120 and accompanying footnotes.
76
See the interesting analysis of Theocharidis, G,        - (2000), 53-54.
77
France: Mazeaud, H, L and J, and Chabas, F, Leçons de Droit Civil - Obligations Théorie Génér ale (1991), 773. Greece: see art 332 par 1 of
the Greek Civil Code on this assimilation. See also Chrisanthis, C, ‘   ‘  ’   
   ’ (1999) , 598, 711 referring to this assimilation in general.
78
Armitage v Nurse [1997] 2 All ER 705 (CA). In Goodman v Har vey (1836) 4 111 ER 1011 (KB), the court stated: “gross negligence may be
evidence of mala fides, but is not the same thing“.
79
France air: Cour de Cassation, Chambre civile 1, 24 June 1968 LEGIFRANCE; sea: Cour de Cassation, Chambres réunies, 11 March 1960
(2141) LEGIFRANCE. Remond-Gouilloud, M, Droit Mar itime (2nd Ed, 1993), 386. Greece: see the commentary of Chrisanthis, above n 77, 711
on international air and sea carriage. The same is valid under German law: Bundesgerichtshof (German federal supreme court), July 16, 1998 1
ZR 44/96, , commenting on the CMR and the Visby Rules.
80
Above, 119-120.
81
Sea: Cour de Cassation, 19 October 2010 (09-68425) LEGIFRANCE, Bonassies and Scapel, above n 9, 766. Air: Cour de Cassation, 20
October 2009 (08-18502) LEGIFRANCE.
82
Viney, G, and Jourdain, P, Traité de Dro it Civil, Les Conditions de Responsabilité (2006), 644-659.
Loss of Limitation of Liability
(2012) 26 A&NZ Mar LJ
129
Common Law terms, this French concept of faute inexcusable approximates the notion of wilful misconduct, since it
may also refer to reckless behavior and implies the presence of knowledge of probable damage.
83
In the areas of aviation and maritime law, an inexcusable fau lt has been applied in different contexts.
84
Two
elements seem to characterize it: the presence of a reckless (téméraire)
85
behavior and the consciousness of the
likelihood of damage (la conscience de la pr obabilité du dommage).
86
The two elements apply cumulatively.
Recklessness (témérité) denotes the persistence of the carrier to act in such a way that will result in damage, or the
presence of a daring act on his part, or even the absence of measures taken to avoid foreseeable harm.
87
Some
authors have described the term more briefly as boldness that may reach imprudence, a behavior against law and
reason (our translation for ha rdiesse qui va jusquà limprudence and le comportement contre dr oit et raison).
88
In contrast to the English cases and doctrine examined above, the definition of this term has not attracted lengthy
judicial and doctrinal commentary in France.
The consciousness of the likelihood of damage refers to the awareness that the carrier ought to have had of the
likelihood of resulting harm. In effect, French courts assess the presence of an inexcusable fault based on an
objective standard.
89
It has, therefore, been held that an inexcusable fault exists when the carrier loads cargo on the
bridge of the vessel while bad weather conditions can be forecast and the possibility of damage is not excluded.
90
Likewise, the French Supreme Court (Cour de Cassation) has suggested that an inexcusable fault exists if the air
carrier takes no measures to safeguard cargo at the arrival of the aircraft when he knows its value and cannot,
therefore, ignore the likelihood of damage resulting from its treatment as regular cargo.
91
Finally, it has been
concluded that an ocean carrier acts recklessly and with knowledge that damage would probably result when cargo
is lost, no evidence is presented to explain the loss, but factual presumptions exist that it was delivered to a non-
authorized party.
92
The adoption of the objective standard to establish an inexcusable fault is compatible with the treatment of this
concept in employment law cases in France
93
and certainly favors claimants. As mentioned in our introductory
remarks, this is because the objective test does not require claimants to prove actual knowledge of the likelihood of
damage like the subjective standard does but, rather, that the person in question should have had such knowledge
83
See above, 123, on wilful misconduct. Cheng, above n 8, 79, on the comparison.
84
Veaux, D, and Veaux-Fournerie, P, ‘La pénétration en droit Français de la théorie de la faute inexcusable en matière aérienne et maritime sous
l’influence des conventions internationales’ in Mélanges en l’Honneur de Yvon Loussouarn (1994), 394-397.
85
Even though the two terms (‘recklessly’ and ‘témérairement’) appear to be synonymous, their equivalence has been disputed: see Cheng, above
n 8, 94, based on the negotiations of the Hague Protocol. Cheng states, however, that there is little doubt from the preparatory work of the Hague
Protocol that ‘témérairement’ is really the translation for ‘recklessness’. The definition of inexcusable fault in the different areas it is encountered
is not identical.
86
Air and sea: for the two elements of the concept, see Veaux and Veaux-Fournerie, above n 84, 397. See also de Juglart, M, and du Pontavice, E,
‘Droit Aérien et Droit Maritime’ (1990) 43(1) Rev Trim Droit Com, 116, 129. We should note, however, that not all French authors agree with
the mentioned elements of inexcusable fault.
87
Corbier, E, ‘La Notion de Faute Inexcusable et le Principe de la Limitation de Responsabilité’ in Études de Droit Maritime à l’Aube du XXI
siècle Mélanges offerts à Pierr e Bonassies (2001) 103, 110. See also Cour de Cassation, Chambre Civile 1, 5 November 1985 (84-11068),
LEGIFRANCE (air case), Cour de Cassation, Chambre Commerciale, 14 March 1995 (93-13637) LEGIFRANCE (air case) to which the
abovementioned author refers.
88
Delebecque, P, ‘La Pontée Irrégulière : Une Faute Inexcusable du Commissionaire mais une Faute Simple du Transporteur’ (2002) 54 DMF
620, 631.
89
Sea: Bonassies and Scapel, above n 9, 766-769; Cour de Cassation 19 October 2010, 2011 DMF 155, 173 (note of Stéphane Miribel). Air: Cour
de Cassation, Chambre Civile 1, 5 December 1967, LEGIFRANCE; Rodière, R, ‘La Faute Inexcusable du Transporteur Aérien — Appréciation
Concrète ou Abstraite’ (1978) 13 ETL, 24, 26.
90
Sea: The Teleghma, Cour de Cassation, Chambre Commerciale, 7 January 1997 (94-19035) LEGIFRANCE, also mentioned by Bonassies and
Scapel, above n 9, 767. See also Cour d’appel d’Orléans, 9 Avril 2004, (2004) DMF 549, 556-557 (note of Antoine Vialard).
91
Air: Cour de Cassation, Chambre Commerciale, 14 March 1995, (93-16196) LEGIFRANCE. Reference to this case has also been made by
Scapel, C, ‘Vers la Fin de la Limitation de Responsabilité du Transporteur Aérien’ (1996) 49-50 Rev Fr Dr Aérien et Spat, 15, 18.
92
Sea: Cour de Cassation, Chambre Commerciale, 4 January 2000, (96-22687) LEGIFRANCE. This case has been criticized in Delebecque, P,
‘La Carence du Transporteur: Une Faute Inexcusable?’ (2000) 52 DMF, 468, 468-470. Professor Delebecque argues that simple presumptions
should not suffice to determine the presence or absence of an inexcusable fault.
93
Viney and Jourdain, above n 82, 646-647, 649, 654-656ν Vialard, A, ‘L’Évolution de la Notion de Faute Inexcusable et la Limitation’ (2002)
54 DMF, 579, 581.
Loss of Limitation of Liability
(2012) 26 A&NZ Mar LJ
130
when compared to a reasonable, prudent person (imputed knowledge). As favorable to claimants as this standard
may be, however, it conflicts with the intent of the drafters of the Visby Rules/Hague Protocol provisions who
concluded on the adoption of a subjective standard to assess the presence of knowledge that damage would probably
result.
94
As a result, some authors have criticized the position of French courts. Professor Vialard, for instance, has
referred to the Franco-French interpretation of a concept with an international origin that presents the risk of
isolation of French law.
95
Recent case law of the French Supreme Court also suggests that the subjective test should
be used in this regard without, however, clearly abandoning the objective standard.
96
Authors argue that only court
decisions concluding unequivocally on this issue can overrule the traditional approach maintained by the French
courts.
97
Finally, French maritime law is not clear on whether the second requirement of the Visby Rules/Hague Protocol
provisions refers to the awareness of possible or probable damage. A probable damage is said to correspond to more
than a 50% chance that damage will result, whereas a possible damage corresponds to merely a 25% chance.
98
Many
maritime cases in France have required knowledge of possible, rather than probable, damage in assessing the
presence of inexcusable fault qualifying the second requirement.
99
Such an interpretation aligns with the pro-shipper
objective assessment of the concept of inexcusable fault adopted by the French courts, since it is easier for a
claimant to establish a mere possibility, rather than a probability, of damage. Some authors, however, disagree with
this interpretation, arguing that probability of damage goes beyond a simple possibility (une simple
éventualité).
100
In Greece, the translation of the second requirement of Article 4.5.e of the Visby Rules refers to gross negligence
and with knowledge that damage would probably result (        
).
101
Gross negligence which translates the English term recklessly’— is a familiar domestic law concept
which denotes an inhabitual and particularly distant behavior from the one adopted by a reasonable, prudent person
(an objective standard).
102
Greek doctrine, however, argues that the use of this concept in this context is unfortunate
because it does not accurately translate the requirement.
103
What further complicates matters under Greek law is that
the expression recklessly and with knowledge that damage would probably result of Article 25 of the Hague
Protocol is translated as: by indifference and with knowledge that damage would probably result ( 
       ).
104
The term by indifference translating the word
recklessly’— is thought to be quite broad, allowing for interpretations not intended for under article 25.
105
In Germany, reckless conduct has been described as grossly negligent conduct
106
a behavior that encompasses an
objective and a subjective element whereas in Italy, recklessness has been defined as the lack of respect of the
94
Above, 120.
95
Vialard, above n 93, 581.
96
Sea: Cour de Cassation 19 October 2010, above n 89, 172-173, 155-174, with reference made to other cases that have used the subjective test.
Air: Cour de Cassation, chambre commerciale 21 March 2006, (04-19246) LEGIFRANCE, also commented upon by Bonassies and Scapel,
above n 9, 767-768.
97
Bonassies and Scapel, above n 9, 768.
98
Below n 114, 115.
99
See, for instance, Cour de Cassation 19 October 2010, above n 89, 159. This case seems to confuse possibility and probability of damage. See
Bonassies and Scapel, above n 9, 301-302 on a similar provision of another international maritime convention. We are not certain whether the
same tendency is present in French air cases.
100
Delebecque, above n 88, 631.
101
For the Greek translation of the Visby Rules see Gioggaras, G,  -  (2007), 97.
102
This is a doctrinal definition of gross negligence. The Greek Civil Code does not define this concept. Beis, K and E, Balogianni, E, 
    (2000), , para. 3.2.2.
103
Korotzis, above n 68, 52, Kiantou-Pampouki, above n 9, 658-659. In this regard, note needs to be made of the fact that no reference to gross
negligence is made in the French, German or Italian versions/translations of art 4.5.e of the Visby Rules.
104
Papaxronopoulos, above n 68, 290.
105
Yokaris, A, ‘La Jurisprudence des Tribunaux Grecs sur la Convention de Varsovie’ (1977) RFDA, 125, 143.
106
Schoner, D, ‘Article 25 Hague Protocol – Theft of Bank Notes: German Federal Supreme Court (Bundesgerichtshof), decision of 16 February
1979’ (1981) 6 Air Law, 97, 98.
Loss of Limitation of Liability
(2012) 26 A&NZ Mar LJ
131
minimum level of diligence
107
and as running an unjustifiable risk.
108
It is obvious, therefore, that a variety of terms
has been used to describe the word recklessly in the abovementioned Civil Law jurisdictions.
Greek case law has not clearly concluded on the application of the subjective or the objective tests to establish
knowledge of probable damage. It has been held that, where the agents of the air carrier knew the value of the
transported goods and consequently the probability of their loss, but failed to put them in a protected area, limitation
of liability was unavailable to the carrier.
109
Likewise, where the agent of the carrier failed to take necessary
measures to safeguard reported lost luggage where he knew that damage was likely, the air carrier cannot benefit
from limitation of liability.
110
Italian law exhibits the same uncertainty on this issue.
111
Although recent German
cases and doctrine side with the subjective test to assess the knowledge of probable damage,
112
the objective test has
also been applied.
113
However, Greek,
114
German
115
and Italian
116
doctrine and, in some instances, case law refer to
the probability, not merely the possibility, of damage within the context of the Visby Rules/Hague Protocol
provisions.
When analyzing the second requirement of the Visby Rules/Hague Protocol provisions as a whole, many authors in
Greece as well as the case law opine that it approximates the notion of conscious negligence (our translation for
the Greek term  ).
117
Conscious negligence is a well-known domestic law concept that implies
awareness of the results of ones imprudent behavior coupled with the conviction that such results will be
avoided.
118
This would be the case, for instance, of a carrier who did not properly stow the transported goods, not
seriously taking into account the likelihood of a shipwreck such an act could cause, but instead believing that this
incident would not occur. Similar notions have been used to qualify the second Visby Rules/Hague Protocol
requirement in Italy (colpa con previsione)
119
and in Germany (bewusste grobe Fahr lässigkeit).
120
In Japan and China, judicial controversy is avoided and emphasis is put on the amicable resolution of disputes.
121
As
a result, case law commenting on the provisions under examination does not abound in these two countries. Despite
107
Air: Corte di Cassazione, (Sez. 3) Soc. Deutsche Lufthansa AG v Maresca, 18 July 1991, 1992 Giustizia Civile 1543, 1545 (No 7977).
108
Air: Busti, above n 68, 645. Sea: reference to this concept with respect to the loss of the carrier’s limitation of liability is also made by
Carbone, S, Contratto di Tra sporto Marittimo di Cose (2010), 473.
109
Supreme Court ( ) 1999, NOMOS 428/1999  (275592), Court of Appeal of Athens 2005, NOMOS 5310/2005  
(380319).
110
Athens Trial Court 1995, NOMOS 7337/1995   (171456). However, there are earlier air decisions and doctrine that have reasoned on
an objective standard: see Yokaris, above n 105, 142-145 and case law reported therein. We found no Greek cases commenting on this point
under the Visby Rules provision.
111
Sea: Bonassies, P, ‘Rapport de Synthèse’ (2002) 54 DMF, 1083, 1085 commenting on Italian law. On cases that have adopted the objective or
the subjective standards in air carriage, see Busti, above n 68, 646-655.
112
Subjective test sea: Bundesgerichtshof, July 29, 2009, I ZR 212/06, ; Schoner, above n 106, 98, commenting
on case law; Giemulla, E, and Schmid, R, Warsaw Convention (2005), 19-21.
113
Cases applying the objective test air: Bundesgerichtshof, 10 May 1974, I ZR 61/73, 1974 ETL 630, also mentioned by Mankiewicz, R, The
Liability Regime of the International Ca rrier (1981), 117.
114
Sea: Theocharidis, above n 76, 55-56, following foreign doctrine. Air: Papaxronopoulos, above n 68, 191, following foreign case law and
doctrine. We found no Greek case addressing specifically this question. It has been stated that probability of damage corresponds to more than a
50% chance that damage will result, whereas possibility corresponds to merely 25%: see Theocharidis, above n 76, 55-56, based on German
doctrine.
115
Air: Giemulla and Schmid, above n 112, 21, where the authors note that probability cannot be assumed until the chances of something
happening are more than 50%. Although not specifically addressing this point, the ocean case Bundesgerichtshof, July 29, 2009, I ZR 212/06,
.Bundesgerichtshof.de>, refers to the probability of damage.
116
Under Italian law the concept of colpa con pr evisione (below, n 119) refers to the probability of damage. Air: Corte di Cassazione, (Sez 3) Soc
Deutsche Lufthansa AG v Maresca, above n 107, Co rte di Cassazione (Sez 3) Cie Air Fra nce v De Luca, 15 July 2005, , No 15024.
See also the analysis of this issue in general by Zampone, A, La Condota Temerar ia e Consapevole nel Diritto Uniforme dei Trasporti (1999),
95.
117
Sea: Kiantou-Pampouki, above n 9, 658-659. We should note the lack of Greek cases on the Visby rules on this issue. Air: Supreme Court
( ) 2010,  412/2010  (516038), Chrisanthis, above n 77, 704-705, reasoning on air carriage rules.
118
As mentioned by Papaxronopoulos, above n 68, 189, based on civil law and criminal law doctrine.
119
Sea: Carbone, S, Celle, P, and de Gonzalo, M, Il Diritto Mar itimo, (3rd Ed, 2006), 297. A ‘colpa con previsione’ exists where the author deems
the damaging event to be probable, but is convinced that it can nonetheless be avoided. Air: Corte di Cassazione (Sez 3) Cie Air Fr ance v De
Luca, 15 July 2005, , No 15024, Corte di Cassazione (Sez 3), 19 June 2001 (2001), , No 08328.
120
Sea: Herber, R, Seehandelsrecht: Systematische Dars tellung (1999), 333.
121
For this trend in Japan, see Toda, M, ‘Recent Developments and Changes in Japanese Maritime Laws’ (2008) 53 J apan Shipping Exchange
Bulletin 1, ttp://www.jseinc.org/en/bulletin/list_of_nos.htmlρν and Baden, N, ‘The Japanese Initiative on the Warsaw Convention’ (1996) 61 J
Loss of Limitation of Liability
(2012) 26 A&NZ Mar LJ
132
this fact, a recent Japanese air case of the District of Nagoya, upheld on appeal,
122
stressed the importance of the
subjective test to assess the knowledge of probable damage. Professor Fujita, an expert witness in this case, agrees
with the courts adoption of the subjective test,
123
while maritime legal professionals from Japan also put emphasis
on this standard.
124
At least part of Chinese maritime doctrine
125
seems to be moving in the same direction.
In China, some authors approximate the second requirement to an intentional fault or characterize it as an indirect
intent.
126
Often, however, this behavior is termed gross negligence.
127
Gross negligence in China refers to a serious
breach which is assessed based on the behavior that a reasonable person would have adopted in the circumstances.
128
Although there are authors in Japan who share the same view and utilize domestic law concepts such as gross
negligence to define this behavior, authoritative doctrine opines that the second requirement of the Visby
Rules/Hague Protocol provisions should be assessed independently from such concepts.
129
3 Comparative Analysis of Domestic Laws
Following the discussion of applicable laws regarding the Visby Rules/Hague Protocol provisions we will attempt to
provide a comparative analysis. The focus of our analysis will revolve around the question of whether the
implementation of these provisions promotes uniformity, ending the divergent interpretations that formerly existed
regarding the requirements.
The answer to this inquiry is not monolectic. On the one hand, it is certain that the new rules clarified formerly
applicable terms by describing the types of behavior leading to the loss of the carriers limitation of liability. This
has avoided, to some extent, the use of various domestic law concepts and their divergent interpretations that
formerly existed. For instance, Civil Law jurisdictions which may have assimilated gross negligence (faute lour de)
to dol under the Warsaw Convention or the Hague Rules cannot sustain this assimilation under the Hague
Protocol/Visby Rules, which only refer to an intent to cause damage or to a reckless conduct with knowledge that
damage would probably result. Equally, divergent Common Law interpretations of the term wilful misconduct under
the Warsaw Convention and reference to various concepts with respect to the expression in any event of the Hague
Rules, do no t form part of the Visby Rules/Hague Protocol provisions due to the descriptive terms chosen by their
drafters.
Air L & Com, 437, 453-455 respectively. For China and dispute resolution in general see Kaufmann-Kohler, G, and Fan Kun, ‘Integrating
Mediation into Arbitration: Why it Works in China’ (2008) 25(4) J Intl Arb, 479, 480.
122
District Court of Nagoya (26 December 2003), Hanrei Jihô no 1854, 63, upheld on appeal (Appeals Court of Nagoya (28 February 2008),
Hanrei Jihô no.2009, 96). The case also referred to the negotiating history of the Hague protocol on this point. Both these cases were kindly
forwarded to the author by Dr Souichirou Kozuka, Professor at Gakushuin University in Japan.
123
Professor Fujita understands, however, why judges accepted exceptions to the ceiling of liability based on circumstantial evidence showing
that pilots ‘would have probably known’ or ‘must have been aware’ of probable damage. The pilots were dead, and their actual knowledge of
probable damage could not have been ascertained by the court. As reported by Fujita, K, ‘On the Dramatic Decision of December 26, 2003 by the
Nagoya District Court - In re the China Airlines Disaster of April 26, 1994’ (Paper delivered at the International Conference at HAU Aerospace
Center in Seoul, Korea, 17-19 June 2004), a document kindly provided by the author.
124
Two Japanese law practitioners have discussed art 4.5.e of the Visby Rules with the author, and also believe that judges will determine the
knowledge of probable damage based on the subjective test. However, there is no reported Japanese case on this point. Nor is there any clear
consensus amongst Japanese academics.
125
Xia Chen, ‘Chinese Law on Carriage of Goods by Sea under Bills of Lading’ (1999) 8 WTR Currents: Intl Trade LJ, 89, 97; Lu Shi-ping and
Liu Xin, ‘Research on Carrier’s Responsibilities in Maritime Code of the PRC’ (1) 19 Jour nal of Weinan Teachers College No 6.
126
On intentional fault see Xia Chen, above n 68, 81, reasoning on a similar provision of another international maritime convention. On indirect
intent where the author is aware of the damaging result of his acts or omissions but adopts a laissez-fair e attitude regarding its occurrence, see Lu
Shi-ping and Liu Xin, above n 126.
127
Zhangjun Li, The Study of International Sea Ca rrier Liability Regime, (2006), 99-101, on similar provisions. This view has been confirmed by
a conversation the author had with a law professional from China on art 4.5.e of the Visby Rules. The Chinese Civil Code does not define the
concept of fault, but jurisprudence distinguishes between negligence (a category that also includes gross negligence) and intention. Zheng, H,
China’s Civil and Commercial Law (1988), 37; Jones, W, Basic Pr inciples of Civil Law in China (1989), 156.
128
Yang Lixin, above n 68, 187.
129
As reported by Professor Akira Sano on his commentary of art 13.2 of the Japanese COGSA published in Toda, S, and Nakamura, M, (eds),
Chûkai Kokusai Kaijô Buppin Unsô Hô (Commentaries on the Inter national Carr iage of Goods by Sea Act) (1997), 295. This document was
kindly forwarded to the author by Dr Souichirou Kozuka, Professor at Gakushuin University in Japan.
Loss of Limitation of Liability
(2012) 26 A&NZ Mar LJ
133
On the other hand, when we examine the interpretations of the Visby Rules/Hague Protocol provisions in the case
law, we can see that uncertainty as to the applicable standard persists. With regard to the second requirement of the
Visby Rules/Hague Protocol provisions, we have noted that the term recklessly has been defined in different ways
(gross negligence, gross carelessness, running an unjustifiable risk) in Common Law jurisdictions, and has been
subject to subjective or objective tests, depending on the reasoning of the particular court. On the contrary, the
French corresponding term, témérairement, has not been subjected to lengthy doctrinal or judicial discussions in
France. Descriptions of the term in this country include boldness, a behavior against law and reason, the persistence
to act in such a way that will result in damage, while case law assesses its presence based on an objective standard
which is the test followed by French courts in order to establish inexcusable fault. Some Italian authors have
described recklessness as running an unjustifiable risk, while in other Civil Law countries such as Greece and
Germany it has been referred to as gross negligence or indifference, and such behavior has been variously tested on
an objective or an objective-subjective standard. The large range of interpretations and assessments of the term
recklessly based on domestic laws is, therefore, obvious.
The negotiating history of the Hague Protocol perpetuates the prevailing uncertainty since, as we have stated, the
country delegates were not in agreement on the assessment of the term or its qualification.
130
What is certain from
these negotiations, however, is that the drafters intended to render uniform the conditions governing the carriers
unlimited liability and to avoid the use of domestic law concepts. This means that qualifying the term recklessly
based on domestic legal terms for example, gross negligence is not the correct approach to follow.
131
Such a
practice is precisely what the drafters of the Visby Rules/Hague Protocol provisions sought to avoid.
This leads us to believe that the use of more neutral vocabulary such as taking an unjustifiable risk (English case
law, Italian doctrine), behavior against law and reason (French doctrine), a decision to run the risk or a mental
attitude of indifference to its existence (English and Australian case law), or more descriptive definitions of the
term such as persistence to act in such a way that will result in damage, absence of measures taken to avoid
foreseeable damage (France), are more appropriate ways to describe this term since they dissociate themselves from
domestic law concepts, the use of which cannot promote uniformity at the international level. Evidently, opting for
one or more of the above-mentioned expressions may still leave room to divergent interpretations at the domestic
level. However, these provide a basis upon which uniformity may exist , something that is less likely to occur when
reasoning on domestic law terms.
Moreover, when commenting on the knowledge of probable damage, we have seen that the English, Hong Kong,
Australian, Canadian (in part, and according to more recent trends) and seemingly Japanese cases assess such
knowledge based on a subjective test. However, the French courts have opted for the objective standard to establish
an inexcusable fault (faute inexcusable). Some Canadian judges share this view. Other jurisdictions, (Greece, Italy
and Germany) have not clearly sided with on e or the other test. The adoption of a shipper-protective objective
standard by France to establish the knowledge of probable damage may be compatible with the traditional stance of
French courts regarding inexcusable fault as applied in employment law cases. It clearly conflicts, however, with the
intent of the drafters of the Visby Rules/Hague Protocol provisions, who sided with the application of a subjective
test on this issue.
132
It also conflicts with the standard adopted by other jurisdictions that reason on the subjective
test, and it leads to uncertainty as to the applicable rule at the international level. It is the authors belief that national
judges cannot oppose the obvious intent of the drafters of international instruments by applying the objective
standard based on pre-existing employment case law on the inexcusable fault concept. The author agrees with
French authors criticizing the stance that courts have adopted in this country, and trusts that future cases will
130
Above, 120.
131
We agree, in this regard, with authors from Greece who regard as unfortunate the reference to gross negligence in the Greek statute
implementing the Visby Rules. This is even more so if we follow the opinion of some authors who have stated that an important deviation from
the acts of a reasonable person (denoting the concept of gross negligence) is not a condition for unlimited liability. Papaxronopoulos, above n 68,
189.
132
Above, 120.
Loss of Limitation of Liability
(2012) 26 A&NZ Mar LJ
134
overrule the traditional French judicial approach. The author also invites jurisdictions that have not clearly ruled on
this issue to adopt a clear stance respectful of the intent of the drafters of the two sets of rules.
Further, following on from the above analysis, the courts and doctrine in most of the jurisdictions under
consideration usually conclude that the second requirement of the Visby Rules/Hague Protocol provisions refers to
the probability not the possibility of resulting damage. However, French maritime cases seem to reason
otherwise, often referring to the possibility of damage. Such a conclusion contradicts both the strict letter and the
negotiating histories of both sets of rules.
133
The stance of French courts can be explained by the overall pro-shipper
view that these courts maintain of the inexcusable fault concept. This consideration, however, cannot effectively
counter the letter and intent of the drafters of the two sets of rules and does not favor uniform case law conclusions
at the international level. It is to be hoped that French courts will reconsider this line of case law in the future.
Despite the different approaches adopted on the elements of the second requirement, similarities can also be found
in the jurisdictions examined. For instance, where the carrier fails to present evidence relating to the damage of the
cargo and there is proof of deplorably bad handling (Australia), or failure to observe the shippers instructions
(Canada), or factual presumptions exist that the goods were delivered to a non-authorized party (France), cases in
these countries have all held that the carrier may lose his limitation of liability.
134
Moreover, where the failure of
agents of the air carrier to place valuable cargo in a safe area has resulted in its loss, French, German and Greek
courts have not hesitated to find the presence of reckless conduct with knowledge that damage would probably
result.
Assessed overall, even though the Visby Rules/Hague Protocol provisions undoubtedly settled issues prevailing
before their adoption, and have given rise to some consistent holdings at the international level, they have
nonetheless failed to establish a uniformly applicable standard regarding the carriers unlimited liability. This is due
to the fact that the terms of the mentioned provisions are neither clearly defined nor interpreted in the same way by
courts. The latter have often tried to qualify the prescribed conducts based on domestic law concepts for example,
the inexcusable fault notion in France and the subsequent application of the objective standard as mentioned above.
In effect, apart from the inexcusable fault concept in France, we have seen that English and other Common Law
cases refer to the notion of wilful misconduct to describe the required conduct under the Visby Rules/Hague
Protocol provisions. The danger lurking behind this qualification is that judges who are more familiar with domestic
law terms may focus on applying these instead of looking at the requirements contained in the international
instruments and their negotiating history. For instance, by qualifying the prescribed conducts as wilful misconduct,
English judges may not stress the importance of the knowledge that damage would probably result, which is implicit
in the Common Law notion, but is explicit in the Visby Rules/Hague Protocol provisions.
135
Likewise, the concepts
of colpa con pr evisione in Italy and conscious negligence ( ) in Greece that doctrine and case
law have used to describe the second requirement imply awareness of the results of ones imprudent behavior
coupled with the conviction that these results will be avoided. Such conviction, however, does not make part of the
second requirement of the Visby Rules and the Hague Protocol. The two sets of rules simply refer to the awareness
of the likelihood of damage without any specific mention made to a conviction of avoiding it, or to its acceptance for
that matter.
136
Thus, the English, Italian and Greek concepts do not accurately translate the Hague Protocol/Visby
Rules corresponding behavior and may, therefore, confuse judges in their assessment of the facts. Finally, although
the use of dol to qualify an intent to cause damage in France may reflect more accurately the first prescribed conduct
133
Ibid.
134
Referring to SS Pharmaceutical (Australia); Co nnaught (Canada); Cour de Cassation, Chambre Commerciale, 4 January 2000, (96-22687)
LEGIFRANCE (France). For a Canadian holding similar to the French case, see Pr udential (Canada), above n 58. These decisions have been
criticized on the basis that an absence of evidence should not suffice to conclude on the carrier’s unlimited liability. See the dissent of Kirby J in
the appeal of SS Pharmaceutical; and the criticis m of the French case by Delebecque, above n 49, 92.
135
On the comparison of wilful misconduct to the requirements in the rules, see above, 123.
136
Busti, above n 68, 655; Papaxronopoulos, above n 68, 189. Quite independently from this point, an excellent comparison of the colpa con
previsione and dolo eventuale to the second prescribed conduct and their differences is made by Zampone, above n 116, 166-175.
Loss of Limitation of Liability
(2012) 26 A&NZ Mar LJ
135
than the Common Law wilful misconduct,
137
these domestic law concepts are not synonymous. In effect, French
dol, Italian dolo and Greek  imply an act that is designed to cause damage, whereas wilful misconduct
presupposes an act that needs only to create a risk of probable damage.
138
The person who engages in wilful
misconduct, therefore, probably has no intention to cause damage.
139
Evidently, translating the descriptive terms of
the Visby Rules/Hague Protocol provisions into domestic law concepts does not promote uniformity at the
international level, does not always accurately reflect the terms contained in the international instruments and is
exactly what the drafters of these provisions intended to avoid. One wonders, therefore, whether reference to
domestic law concepts to qualify the prescribed conducts is needed, or should be avoided as confusing. The author
believes that clarity in the application of the law mandates the latter approach.
The conclusion to be drawn from analyzing all these examples of domestic law concepts used to qualify
international document provisions is that having recourse to such notions may result in distancing or, at least,
distracting domestic judicial attention from the wording of the Visby Rules/Hague Protocol provisions. It is, in fact,
not necessary to characterize the first requirement as dol, dolo,  (Civil Law jurisdictions) or as wilful
misconduct (Common Law jurisdictions). These Common Law and Civil Law concepts are not synonymous. Judges
have to simply look at the facts of the case and identify the presence of an intent to cause damage, without
necessarily qualifying this behavior following one or another domestic law term. Likewise, it is unnecessary to label
the second requirement wilful misconduct, conscious negligence, inexcusable fault, colpa con previsione, or gross
negligence. These notions do not accurately reflect the behavior contained in the two sets of rules. The elements of
the prescribed conduct (recklessness, awareness of probable damage) can be examined based on the facts of the case
an approach that seems to be followed more faithfully by the Canadian and Australian courts
140
and need not,
therefore, attach to do mestic law terms. The opposite trend perpetuates the uncertainty as to the applicable legal
standard and is not respectful of the intent of the drafters of the rules.
4 Conclusion
The Visby Rules/Hague Protocol provisions governing the international ocean and air carriers unlimited liability
were adopted with the view to promoting uniformity in their application. The above comparative analysis has
demonstrated that, although the said provisions may have responded, to a certain extent, to the call for uniformity,
their divergent interpretations and the persistence to reason on domestic legal terms to describe their content have
undermined this objective. Rising above parochial legal concepts and focusing on the prescribed conduct and the
intent of the drafters seems to be the right path to follow in working towards their uniform implementation.
If uniformity is to be achieved, the Visby Rules/Hague Protocol prescribed conduct should be interpreted
autonomously, without regard to domestic law concepts. The descriptive terms of the Visby Rules/Hague Protocol
provisions were designed to avoid recourse to domestic law notions, not encourage it. Moreover, the negotiating
history of the mentioned rules reveals that the subjective test should be used to assess the knowledge of probable
damage. This is also the test that major seafaring nations have adopted. Any other standard followed (for instance,
the objective test mainly applied by French case law) is not supported by the negotiating history of the rules and
does not promote uniformity.
137
It has to be noted, however, that the illegality element inherent in the concept of dol is not explicit or, it might be argued, even implicit in the
first requirement. Cheng, above n 8, 84-85.
138
Ibid, 76 and above, 127-128.
139
Ibid.
140
Above, 123-125

To continue reading

REQUEST YOUR TRIAL