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Reactions to Tetley's commentary on the U.S. draft bill to replace COGSA 1936 (April 7, 1999)

The draft U.S. Senate COGSA '99 (referred to by me in various lectures in the past year and in my articles in FAIRPLAY) has elicited many letters, faxes, phones and e-mails, in the past year. Here are some excerpts:

Belgian maritime lawyer:

"The position of the United States does not surprise me. The U.S. does not have a tradition of ratifying international treaties, prepared by the C.M.I."

American maritime lawyer:

"I was one of the small minority who voted against it when it was taken up at a U.S. M.L.A. meeting two years or so ago. My main objection was that I thought that any major change should be made through the CMI. I would have limited unilateral changes to adoption of the Hague-Visby Rules, repeal of the Harter Act, and extension of COGSA to the pre-loading and post-discharge periods."

"By the time the MLA revision of COGSA is ready for action by Congress it may be watered down to such an extent that it will be very little different from Hague-Visby, except for an extension to the periods before loading and after discharge. I hope this proves to be the case."

U.K. maritime law professor:

"...US COGSA is a disaster. I was very shocked to see the complicated drafting; a nightmare to read, let alone understand. The stated purpose, i.e. to bring US legislation in line with the Visby Rules, seems to be a pretext for introducing a new and far-reaching regime on a unilateral basis. If COGSA goes ahead, I think the EU will have to develop its own regional intermodal liability regime."

American maritime law professor:

"I have not bothered to express views concerning the unneeded draft bill because nobody will listen. The MLA seems to have in its unwritten code of conduct a "gentlemen's agreement" provision, according to which members should not oppose any MLA resolution before a third person or body."

German maritime lawyer:

"It is, of course, not appropriate for a foreigner to comment on those ideas. But shouldn't one try to convince the Americans that they should abstain from legislation of their own and bring forward their ideas as a proposal for revision of the Hamburg Rules?"

U.K. maritime law professor:

"Thank you for your material on the US Draft COGSA '98. I was indeed aware of it, and think it is all a terrible mess, which cannot improve the handling of disputes in connection with international carriage ...."

"I am glad you are daring to say something about it. At this end we do not feel justified in telling another country how they should be organising their law; and though there is a point on international uniformity, it can be said that that has already been broken a lot recently though not in such a dramatic way as this will involve. You may be near enough to American lawyers to say more."

U.S. maritime law professor:

"Quick and therefore necessarily superficial reading of your comments, causes me to be sympathetic with your line of thought. I think that the U.S. should not assume the role of dictating, when there is a history of multinational negotiation. There should be special consideration for sensitivities of major trading partners."


"It is with great concern that we have been witnessing the proliferation of national variations to the Hague/Hague-Visby Rules over the last few years and it was against this background that we have expressed our concern to the MLA when they started drafting a revised COGSA."

"A further attempt was made by BIMCO early this year to influence the situation by writing to the Chairwoman of the Senate Committee on Commerce, Science and Transportation. Similar concerns were at that time expressed by the ICS, the International Group of P & I Clubs, FIATA and the ICC."

American maritime lawyer:

"I have just read your article in Fairplay. I will not say that I agree 100% with all of your comments, but I, for one, have long questioned why the MLA has been so hell-bent on passage of this legislation. I just fail to see how it really will improve the current status of 'cargo law' in this country and its trading partners. I doubt foreign interests will succeed in reasoning with the proponents of the Act, but we wish you good luck."

Slovenian maritime lawyer:

 "I would suggest that the Americans should adopt the example of the Slovenian Code,  which is in my opinion a proper compromise of the Hague/Visby and Hamburg Rules."

Slovenian maritime house lawyer:

"On the one hand I am enthusiastic about the solutions that the new COGSA is offering.  On the other hand it would be much better if a similar legal act would be accepted  under cover of UN and would be in force on the international level for all the countries  that would ratify it."

Italian freight forwarder:

 "... this autocratic Act shows...that too many interests inspired it..., with the ... not  unexpected result of confusion and uncertainty...."

American maritime lawyer:

"But aside from my cynicism, (or perhaps, in support of it) my first thought is that this new law, as many new laws, offers many full employment opportunities for lawyers and creative advocates.  In general however, the proposed changes appear to be reasonable in theory and a more modern approach to balancing the respective rights and liabilities of the parties to a  normal ocean transportation contract.  I believe however, that only with the passage of time and the application of the new law to the various fact patters that will inevitably develop,  that the real and true effect of the new COGSA will be appreciated."

American maritime lawyer:

"In response to your question on COGSA, I am on the Carriage of Goods Committee of the MLA and believe that the statute is in need of some updating. I must admit, however, that it is somewhat difficult explaining to carrier clients that package limitation must be increased.  Similarly difficult to explain is why forum selection clauses and the error in navigation defense need to go. This said, I believe the proposal is sound and look forward to its enamctment into law."

American maritime lawyer:

"Bill, I have not read your commentary, but I know if we do not adopt COGSA '98 right away, all U.S. cargo cases will have left the country and we will have no cargo recoveries or defense work left in the U.S."

American maritime lawyer:

"I would compare your evaluation of the proposed COGSA to the situation that sometimes arises in a law suit, wherein a clear victory on the law and the facts is reviewed from the perspective of the losing side, completely ignoring the more compelling arguments that led the trier of fact to find as it did."

"Proposed COGSA came with an extensive evaluation of what and why things were done, as well as an even more detailed article by Michael Sturley. Both of these works address almost every issue your paper attempts to question. From that perspective one might conclude that if the background material has been ignored, there is little point in providing comments that would be equally inconvenient to the theme of the paper."

"Bill, I think of you as one of the few free spirits in maritime law, which is why I can not understand this fixation with the all-but-dead Hamburg rules. This fixation obviously has affected your paper. Proposed COGSA would apply the finishing touch to Hamburg, so it is time to move on to the next conversation. You should be with the activists, rather than manning the ramparts for this lost cause."

"Though we seem to be far apart on this issue, you are still one of my favourite people, and you have my very best wishes ...."

The foregoing are only a few of the comments I have received. My own position, incidentally, is that international uniformity is essential. The United States and all nations, should therefore adopt Hamburg, with perhaps minor changes. In the alternative, (which is more likely to succeed), we should slightly amend the Hague/Visby Rules by adding "actual" and "contracting carrier", abolish the defense of "error in navigation and management of the ship" and add the Hamburg provisions on arbitration and jurisdiction clauses.

William Tetley QC

Professor, McGill Law Faculty

Counsel, Langlois Kronström Desjardins

Email: william [dot] tetley [at] mcgill [dot] ca