60 Kurt Grönfors are not delivered in the same condition, the carrier is liable, etiamsi sine culpa eius res perit vel damnum datum est, nisi si quid damno fatali contingit). This is the rule that is still generally applicable to common carriers under English law (if no special rules like the Hague Rules apply), viz. strict liability with three exceptions: inherent vice, contributory negligence and acts of God and of the Queen’s enemies. The two first exceptions are no genuine exceptions; liability for damage caused by the goods itself would be quite incompatible with the role of a true carrier —it is his duty to deliver the goods in the same condition as he received it, not to be liable for natural changes of the goods caused by inherent vice, a circumstance clearly outside his sphere of influence. Damage caused by negligence of the shipper is not caused by the carrier and thus falls outside his responsibility. Remains damage caused by force majeure, which is exactly the kind of damage excepted in the Code of 1667. This type of liability can be labelled the typical liability for a carrier^ founded as it is on a very simple legislative argument — the carrier has to deliver the goods at the place of destination in the same condition as he received them at the place of shipment. It has been the predominant rule for at least two thousand years. The same rule could be phrased as a libility for negligence with a reversed burden of proof —viz. the carrier has to prove that he has taken all reasonable precautionary measures in order to avoid the damage, in other words that the damage caused falls outside his sphere of influence. Both formulas lead to almost the same practical results. Various descriptions of the scope of liability used in transport law are investigated and found to amount to the same results, at least to come very close to one another. In view of the above, the Hague Rules deviated from traditions by accepting a rule of quite a different design. The carrier is relieved from liability for an important group of cases where damage is caused by circumstances within his own sphere of influence, viz. error in navigation and in the management of the ship, in other words by his own negligence or negligence by the people he uses for fulfilment of his contractual duties. The Hague Rules compromise became the basis for dividing the insurance market and thus very important, in spite of the fact that other branches of the transport industry have arranged their insurance problems without using similar devices. The new Hamburg Rules 1978 means that this extra exception for nautical error has vanished and the old historical genuine carrier’s liability has been restored, phrased as a rule on liability for negligence with reversed burden of proof. This legal development is followed in detail in this paper and further elaborated on.
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