Barzelex Inc. v. Ebn al Waleed ( The )
T-38-96
Hugessen J.
29/11/99
12 pp.
Trial of issues concerning correct method of calculating limit of liability carrier entitled to claim under paramount clause incorporating provisions of Hague Rules into bill of lading for carriage of goods by sea between Turkey, Canada-Plaintiff estimating damages to cargo of hot rolled deformed reinforcing steel bars at C$570,000-Defendant submitting liability limited to 100,000 Turkish lire ($2.30) per package or unit-Hague Rules, Art. 4(5) limiting liability to 100 pounds sterling per package or unit, or equivalent in other currency unless nature, value of such goods declared by shipper, inserted in bill of lading-Art. 9 permitting contracting state to convert pounds sterling into terms of their own monetary system-Bill of lading incorporating terms of Hague Rules "as enacted in" Turkey-Hague Rules themselves make provision for possible different methods of enactment into law in signatory states-In 1955 Turkish Parliament enacted Hague Rules in same form as adopted by Brussels Convention of 1925-Rules in original form thus becoming part of domestic law of Turkey-In 1956 Turkish Parliament adopted Turkish Commercial Code of 1937, translation of German Commercial Code of 1937, containing adaptation of substance of Hague Rules-That enactment for Turkey constituting full compliance with obligation as signatory of Brussels Convention to enact terms of Hague Rules into national legislation-1955 enactment never repealed, resulting in Turkish national law apparently containing both textual adoption of Hague Rules, national adaptation thereof as permitted by Protocol of Signature-Turkish Commercial Code, Art. 1114 enacting where nature, value of goods not declared, inserted into bill of lading, maximum liability of carrier 100,000 Turkish lire-Evidence of defendant's expert on Turkish law that, although original 1955 Turkish legislation never repealed, effectively displaced by Turkish Commercial Code, preferred as cited very recent decision of Turkish Court of Appeal directly relevant to facts, relating to international shipment-Circumstances herein illustrating how effects of inflation can cause country to fall out of compliance with spirit, if not letter of Brussels Convention-Continuing ability to revise currency unit prerequisite to continuing compliance-Likewise with Protocol of Signature: legal systems change, grow, most civilized countries undertaking periodic law reform-If Hague Rules to be properly effective in any country, must be cast in terms which legal system understands, applies-Presumably reason why Rules adapted by Turkey to form in which appear in Commercial Code-That adaptation became Turkish embodiment of Rules-Under Hague Rules as in force in Turkey, limit of liability where no statement of value in bill of lading 100,000 Turkish lire per package or unit-Statement of nature, quality of goods not statement of value-Although doubtful of correctness of interpretation, metric ton as package or unit limitation accepted for purpose of present decision, since not contradicted, accepted by defendant, more favourable to plaintiff-As limitation result of contractual provision, plaintiff at liberty to declare value of goods or otherwise protect itself-Real gravamen of plaintiff's complaint that did not understand operation of Hague Rules as in force in Turkey-Simply mistake by plaintiff, not unconscionable-International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading and Protocol of Signature, Brussels, August 25, 1924 ("Hague Rules"), Arts. 4(5), 9.