The Due Diligence in Maritime Transportation in the Technological Era

The carriage of goods by sea has been the most useful and effective means of transportation for the international trading of goods. Its paramount importance for the world’s economy increased dramatically over the last century when more countries went beyond their borders to compete in the international market creating in large part today’s global economy. Boundaries fell away and free trade was opened between all nations. Today, the success of countries’ economies is measured, among other factors, on the balance of payment of goods annually imported and exported. This international exchange of goods is possible thanks to vessels that currently move approximately 80% of the world’s trade. Because of this, the shipping industry is not only of special importance to the private sector, but to the public sector as well. As a fundamental component of the economic growth and development policy, it has been the subject of public interest and States have endeavored to regulate it.

The first part of this work presents an overview of the sea carrier’s duties and liabilities during the centuries before the enactment of the Hague/Hague Visby rules, and addresses the historical origin of the current sea carrier duties to practice due diligence in making the ship seaworthy and to care the cargo. Maritime transportation, as a cornerstone of the commerce, development and civilization, has been subject of regulations since ancient times. Rules governing the carrier’s duties are found back in history. A review from the ancient sources of regulation for carriage of goods by sea law, including those during the middle ages and in the modern era, reveals a constant application of an absolute liability standard on sea carriers. Such standard changed during the XIX century under English law, when the global trade increased, along with the advent of new philosophical ideas that prompted some carrier’s practices that required later urgent attention from the international community. Such efforts ended on the existing standards contained in the Hague/Hague-Visby Rules. After that, attempts for more modern regulation have been tried, but without success. From the standards of liability demanded to maritime carriers for centuries before the current era, this part provides and aid to a better understanding of the duties required to them, in what we now call the technological era.

This part deals primarily with the obligations that, according to the Hague/Hague-Visby Rules, every carrier subject to them must practice. It is firstly presented the introduction or adoption of the rules in American, English and German legislations. Then, it develops the construction that has been given to the fundamental concepts of due diligence, seaworthiness and cargo care. The explanation of the same is made in light of the American and English jurisprudence. There is no doubt that these two nations were leaders in maritime transport for most of the last century, so the decisions made by their courts, analising such duties, have come to complement the gaps and uncertainties of the Hague/Hague-Visby Rules. As explained, the rules impose to practice “due diligence”. What should be understood by such an obligations? There have been some doubts if said duty should be understood as to perform due diligence or reasonable diligence; or, if there is a difference between diligence and care. In this regard, some contributions are presented to elucidate this apparent conflict. Regarding the concept of seawothiness, this has been widely discussed and fragmented into various aspects, considering the different elements of the ship and the maritime adventure as well. This deals with both legal and technical aspects, paying special attention to the implications that technology has had on them. Finally, passing from the ship to the cargo, it addresses the duty to protect the cargo that under the same regulations every carrier must meet.

Since the last decades of the 20th century, and most notably in the present century, technology has shown signs of unprecedented development. The maritime transport industry has been strongly benefited by the introduction of new electronic devices, radio and satelital communication, the implementation of innovative methods of loading, stowage and unloading of cargo, among others. This has facilitated both, the navigation and the care of the cargo, making it more effective and secure. In the same way, new designs of more sophisticated, larger and efficient ships have allowed the transport of bigger amounts of cargo, in less time, at a lower cost and in a much safer way. Such a reality has evidenced and confirmed that the concept of seaworthiness of the ship is changing and that it evolves according to the times and the improvements that the scientific development it allows to implement. This affects both, the hull of the vessel and her equipment, as well as the knowledge that her captain and crew must have of these new instruments. From the case law providing analysis on technologies that burst onto the scene in the last century, where their implementation, or lack of it, affected the occurrence of damage to or loss of the cargo, three groups of technologies appear, whose application, in the technological era, is mandatory regarding the obligation to exercise due diligence, established in the Hague/Hague-Visby.