Ecuador: Entry into force of the Hamburg Rules on 1 August 2026
Versión en español
On 1 August 2026 the United Nations Convention on the Carriage of Goods by Sea 1978 (the “Hamburg Rules”) will enter into force in Ecuador, following its ratification in 2025. Ecuador is the latest country to ratify the Rules after Peru in 2021. With their entry into force, Ecuador will cease to apply the Hague-Visby Rules 1968.
The Hamburg Rules establish a uniform regime for international contracts of carriage of goods by sea, whether evidenced by a bill of lading, sea waybill, or any other kind of transport document. While they do not apply to charterparties, the Hamburg Rules will govern the relationship between the carrier and the holder of the bill of lading, other than the charterer (e.g. a CIF buyer, a bank qua pledgee). The Hamburg Rules will be applicable, inter alia, when the port of loading or the port of discharge provided in the contract is in Ecuadorian territory, regardless of the nationality of the vessel or of the parties involved.
The Hamburg Rules’ provisions are mandatory. Any contractual term or clause that deviates from the Hamburg Rules to the detriment of the cargo interests would be null and void. The principal aspects of the Rules are as follows:
- Its liability regime extends to the entire period during which the carrier or the actual carrier is in charge over the goods between ports (“port-to-port” liability).
- This liability regime is fault or negligence based. As a rule, the carrier is presumed to be liable for loss of or damage to the goods, even if caused by delay.
- The nautical fault exception enshrined in the Hague and Hague-Visby Rules is not to be found in the Hamburg Rules.
- The International Monetary Fund’s Special Drawing Rights (SDR) are designated as the unit of account for the calculation of liability limits.
- The Hamburg Rules extend the carrier’s defenses and limits of liability to tort claims and other causes of action, extend said defenses and limits to the carrier’s servants and agents, imposes joint and several liability on the actual carrier, and establish a two‑year limitation period.
- The Hamburg Rules turn choice of court clauses non-mandatory, allowing the cargo interest to start legal proceedings, inter alia, in the courts of the State where the port of loading or the port of discharge are situated.
- The Hamburg Rules recognize arbitration clauses in transport documents and turn the choice of seat non-mandatory, like the rule above.
The Hamburg Rules will not require implementing legislation for them to be applied by the local courts and arbitration tribunals. Due to their international nature, the Hamburg Rules will prevail over the Commercial Code (2019) and, particularly, its provisions related to the carriage of goods by sea. It must be noted that the text of the Hamburg Rules has not been published yet in Ecuador’s Official Gazette (Registro Oficial).
Members are reminded that, subject to the Club’s Rules, liabilities arising under Hamburg Rules are protected under P&I cover only where they are compulsorily applicable to the contract of carriage by operation of law.