Introduction. of sea transport, a fourth convention has

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Introduction.

Carriage of goods by sea is regulated by someinternational conventions. Different countries adhere to different conventions.The HagueRules of 1924 or “International Convention for the Unification ofCertain Rules of Law relating to Bills of Lading, and Protocol ofSignature”iare made of a total of 15 articles of which 10 only are directly related to thediscipline of the transport of goods. The Hague Rules was the first setof rules which tried to distinguish among the responsibilities of the varioussubjects which contributed to the transport of goods by sea: the shipper, thecarrier and the receiver. The Hague Rules were slightly amendedin 1968 and 1972 to become the Hague-Visby Rulesii. The vast majority of the worldcountries, some of them also important such as, for example, the USA andGermany (according to Wikipediaiii) stillstay with the Hague Rules of 1924 while few others, such as Italy, UK and someother, mostly European, countries, have adopted the Hague-Visby Rules.A third international convention regulatingsea transport is the “Hamburg Rules”iv whichbecame effective in 1992.

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This convention has been adopted by a limited numberof mainly developing countries (or counties which do not have direct access tothe sea) since the Rules tend to favour less the sea carriers who are mostly basedin developed countries. In order to put some order in theworld of sea transport, a fourth convention has been approved in 2008 althoughnot yet implemented: The “Rotterdam Rules” or as its fulldenomination recites: “The United Nations Convention on Contracts for theInternational Carriage of Goods Wholly or Partly by Sea”v. TheRotterdam Rules have 96 articles and have been signed by 24 countries,including the USA, but they have not yet come into force since they will becomeeffective only when they will have been “ratified” by at least 20 countrieswhile, as of today, they have been ratified by less than 5 countries.The main points of the RotterdamRules are described in the following lines with a comparison, where meaningful,with the previous conventions on carriage of goods at sea and in particularwith the Hague-Visby Rules.Need for uniformity. In the first place, this new convention aspiresto limit the confusion among the different sets of rules which govern the worldof transportation by sea by substituting the older rules.

As a matter of fact,the Rotterdam Rules were drafted by the United Nations Commission onInternational Trade Law and approved by the United Nations in order to providefrom the beginning a document shared and discussed among as many countries aspossible.In second place, the RotterdamRules aim to provide the world of trade with a set of rules more modern which takesinto account today’s complexity and, therefore, not only international seatransport but also international intermodal transportation that is to say atransport that, on top than “at least one leg” by sea, includes also at leastone leg transport by road, train, air or inland water. Coordination with transport conventions covering legs other than sealegs. In case of possible conflicts among international transportconventions, article 82 of the Rotterdam Rules establishes that conventionsruling unimodal (versus “intermodal”)transport shall prevail over the Amsterdam Rules whenever:-         the unimodal rules are not only exclusivelyunimodal and,-         the liability of the carrier i) has arisensolely before or after sea carriage and ii) only for those liabilities of thecarrier which would have been ascribed following an international conventionthat would have applied mandatorily for that leg of transport (which was not onsea)vi.

Contractual flexibility: in line with need to rule today’s world, whichis increasing complex, the Rotterdam Rules take into account the need to allowmore flexibility than that allowed by previous conventions. As a matter offact, the Rules, while on one side affirm the principle of “no contracting out”that is to say that, according to Article 79, any term in a contract ofcarriage is void to the extent that it conflicts with the Rotterdam Rules, onthe other side, often allow the parties to derogate from the general norm bymeans of a specific contractual agreement. Duties and liabilities of the carrier. Under the Rotterdam Rules thecarrier has a number of specific duties.Duty to issue a transportdocument (Art 35) unless the parties have agreed not to.  Art. 3 specifies that any document issuedunder the terms of the convention must be in writing there included electronicwriting. The Rotterdam Rules, maybe alittle bit surprisingly, when referring to the “transport document”, do not usethe well-known and universally used term “bill of lading” but make adistinction between negotiable and not negotiable transport documents.

Apparently,the Rotterdam Rules do not use the term “bill of lading” because it maypossible that in the future the bill of lading may be substituted by moremodern documents there included electronic documentationvii. Inany case, the bill of lading continues to be one of the documents which theparties may agree to issue, also in its electronic form.Duties and liabilities in relation to the goods. As already in partanticipated hereinabove, one first difference between the Amsterdam Rules andall other Rules prior to them, is the circumstance that, accordingly to theprevious Rules, the carrier may be liable only from the moment it has loadedthe goods on the ship up to the discharge of the goods ashore or at theterminal while, on the contrary, the Rotterdam Rules allow the parties involvedto agree that the liability of the carrier can begin from the moment in which thecarrier receives the goods until when the goods are delivered to the receiverviii.  Nevertheless, the Rotterdam Rules also allowthat the following points may be agreed differently by means of contract amongthe parties:-         the period of responsibility of the carrier whichmay restricted to cover only the period from initial loading to the finalunloading (art. 12 (3));-         certain operations such as loading, handling, stowingand unloading which may be excluded from the responsibility of the carrier(art.

13 (2));-         the liability of the carrier, in case of specialcargo or in the relation to the transport of live animals, can be limited orexcluded altogether (art. 81). Art. 13 of the Rotterdam Rulesimposes to the carrier a general duty of care similar to that of Art III r.2 ofthe Hague-Visby Rules. However, the obligation of seaworthiness of the carrierin the Rotterdam Rules is extended to include the exercise of due diligence “during”the voyage and not only at the moment of the loading of the goods, as in the Hague-VisbyRulesix.In so far as the determination ofthe liability of the carrier is concerned, the Rotterdam Rules state that thecarrier is liable for loss of, or damage to the goods or delay in the deliveryif the claimant proves that this was caused during the period of the carrier’sresponsibility (Art 17.1).

Moreover, the claimant does not have to prove thelack of due diligence of the carrier but it is instead up to the carrier toavoid all or part of its liability by proving that the cause of the loss is i) notattributable to its fault (or to the fault of any person listed in Art 18) orthat ii) the cause of the damage or loss falls within the list of defences atArt 17(3)x.The defences listed at Art 17(3) of the Rotterdam Rules are similar to thoseunder Art IV r.2 of the Hague-Visby Rules (there included the “Act of God”) butthere are some notable differences and in particular that the “error ofnavigation or management of the ship” Art IV r.2(a) has been omittedxi.However, if a claimant can provethat the fault of the carrier, or person referred to in Art 18, caused orcontributed to the loss, the carrier will remain liable for all or part of theloss notwithstanding any applicable defence under Art 17(3).It is important to note that theRotterdam Rules, even in cases of damages that on the basis of the previousConventions would have been ascribable in full to the liability of the carrierand, in particular, in cases of unseaworthiness, allow for a principle ofproportional allocation of the liability between the carrier and the shipperprovided that the carrier is able to prove the responsibility of the latter.This is an important change compared to the Hague-Visby Rules since theRotterdam Rules may impose, at least in theory, a higher liability on theshipperxii . Finally, the upper limit amountof the carrier’s liability is higher than that set out under the terms of theHague, Hague-Visby and Hamburg Rules.

Under the terms of the Rotterdam Rules, thisliability is limited to the higher between i) 875 Special Drawing Rights (“SDR”)1 unitsper package or ii) 3 SDR units per kilogram of the gross weight (Art 59). Theliability for economic loss due to delay is limited to 2,5 times the freightpayable on the goods delivered but must be no greater than the limits under Art59 xiii.Nevertheless, the Rotterdam Rules allow for the parties to agree a differentcompensation by way of contract, in particular in the case of the so called”Volume Contracts”xiv. Duties and liabilities of the shipper. According to the RotterdamRules, the shipper has also more specific liabilities than in the previousconventions. For example, the shipper is responsible for the preparation anddelivery of the goods, in respect of a series of documents and instructions whichmust be provided or exchanged with the carrier and for liability (art. 30 (2))arising from the shipment of dangerous cargo.

Duties and liabilities of “Maritime Performing Parties”. TheRotterdam Rules specifically define maritime performing party as a party thatperforms or undertakes to perform any of the carrier’s obligations during theperiod between the arrival of the goods at the port of loading of a ship andtheir departure from the port of discharge of a ship. An inland carrier is amaritime performing party only if it performs or undertakes to perform itsservices exclusively within a port areaxv. It iswidely reputed that among these maritime performing parties must be considered,for example, other actors in the transport?chain, such as ports,stevedores, ship agents, warehouse operators in ports, terminals and freightforwarders when they perform “any of the carrier’s obligations under a contractof carriage with respect to the receipt, loading, handling, care and unloadingor delivery of the goods”xvi. Article 19 of the Rotterdam Rulesimposes liability for cargo loss or damage on a maritime performing partyprovided that the circumstance that caused the loss, damage or delay took placeduring the period between the arrival of the goods at the port of loading ofthe ship and their departure from the port of discharge from the ship andeither: –         while the maritime performing party had custodyof the goods or –         at any other time to the extent that it wasparticipating in the performance of any of the activities contemplated by thecontract of carriage.It is important to note that allthe other conventions prior to the Rotterdam rules do not contain any similarprovision regarding the liability of ports and terminalsxvii.Time limit for taking action.

According to article 62, any action willneed to be taken within two years from delivery or from when the deliveryshould have taken place. This time limit applies to both claims by the carrieragainst the shipper and to claims by the shipper against the carrier. Also setoff (compensation) between different liabilities is allowed. The receiver, in its turn, mustnotify the carrier of any loss due to delay in the delivery within 21 dayssince the date in which the delivery has actually occurredxviii. Electronic documents.

Some commentatorsxix referenthusiastically about the circumstance that Art. 8 of the Rotterdam Rulesallow for electronic documents acknowledging the development of technology inthe international carriage of goods so favouring increased securities, decreaseof fraud and a better impact on the environment. In the opinion of these commentators,electronic documents can mark the beginning of new habits in the carriage ofgoods industry which, in this respect, is much less developed than otherindustries. Moreover, it is possible to forecast the development of a specificindustry which will design and envisage new software and technical systems thatwill help the implementation of the Rotterdam Rules.

As a matter of fact,systems for managing electronic documents such as the Bill Of Lading ElectronicRegistry Organization (BOLERO), have already been in existence for over adecade but they are not working efficiently and they need to be reformed andupdated. Jurisdiction and arbitration. The Hague and Hague-Visby Rules didnot have any rules concerning jurisdiction while the Hamburg Rules left largefreedom in selecting the court where to raise the litigation. The RotterdamRules contain jurisdiction rules which apply only if the State has i) ratifiedthe convention and ii) it has declared that intends to accept the rules statedin the Rotterdam Rules. When these two conditions are met, the party who intendto begin a litigation or an arbitration can choose a court among one of thefollowing locations: i)                   the domicile of the carrier;ii)                  the place of receipt; oriii)                the place of delivery of the goods stipulatedunder the contract of carriage; oriv)                the port where the goods are initially loaded ona ship or finally discharged from a ship.In this case too, the RotterdamRules allow the parties to reach different agreement by way of contractxx. State of the ratification of the Rotterdam Rules.  Almost ten years after their approval,the Rotterdam Rules have, as of today, been ratified by only 4 states: the Republicof the Congo, Spain, Togo and Cameroonxxi whilethey will not come into force until when it will have been ratified by at least20 countries.

Some further information abouttheir process of ratification can be gathered on the Rotterdamrules.comxxii  the “official” internet site of the Ruleswhich, honestly speaking, looks quite desolated and almost abandoned. In 2013the Netherlands have started the process of ratification. In the same year, theDutch Minister of Security and Justice asked the governments of Belgium,France, Germany and the United Kingdom to comment on their intentions to ratifythe Rotterdam Rules. Belgium indicated not to be at the forefront of theratification process and France and Germany had not yet begun any ratificationprocess. The United Kingdom informed to have set up a Working Group of partiesrepresenting the British maritime industry to advice the UK government withregard to ratification of the Rotterdam Rules.

However, these representativescould not reach consensus. The UK will therefore await the internationaldevelopments and for other large maritime and trade nations to ratify theRotterdam Rules first.Overall the situation does notappear particularly bright.

The USA seem to be a step forwardin ratifying the Rules or, at least, to have plans in this respect since manyUS operators have shown a strong interest in them. Unfortunately, the processhas been halted by ports, terminals and similar operators who fear that beinglabelled as “maritime performing party” under the terms of Art. 19 of theconvention, will impose upon them new liabilities that today they do not bearxxiii. Concerns about the Rotterdam Rules. Concerns about the RotterdamRules are several and wide-spread. In the first place the Rules must fight a generalizedresistance against anything which is new and, at least in appearance, complex.As a matter of fact, the Rotterdam Rules are composed by more than 90 articles asagainst the about 10 of the Hague and the Hague-Visby Rules and the 34 of theHamburg Rules which have all been in place for several decades and are verywell known by operators.

Beside what is above, there are anumber of factors that inspire caution or even mistrust by operators againstthe Rotterdam Rules. The most important are:-         its complexity since it aims at regulating notonly sea carriage but also intermodal transport;-         its flexibility, since parties can derogate toit by way of contract, also adds to its complexity;-         due to its complexity and to the fact that it isa new convention, a very high level of litigation and arbitration is expected;-         the circumstances that it partly shiftsliabilities between shippers and carriers and also imposes liabilities on newsubjects such as, for example, the maritime performing parties;These are only some of the main criticismsto the Rotterdam Rules. The European Shippers’ Council, the body which “represents the logistic interests ofmanufacturers, retailers and wholesalers, collectively referred to as shippers”xxiv hasdrafted a list of eight points against the RulesxxvIn a similar way, the BritishInternational Freight Associationxxvi(BIFA) has it too listed in a documentxxvii eightreasons to be against the Rotterdam Rules and to lobby the UK government inorder to prevent their approval or at least to delay it.1As against 666.67 in the Hague-Visby Rules and 835 of the Hamburg RulesiThe Hague Rules Url: http://www.

admiraltylawguide.com/conven/haguerules1924.htmliiThe Hague-Visby Rules Url: https://www.first.dk/media/6204/Hague.pdfiiiThe Hague Visby Rules, Wikipedia Url:  https://en.wikipedia.org/wiki/Hague%E2%80%93Visby_RulesivThe Hamburg Rules, Url: http://www.

uncitral.org/pdf/english/texts/transport/hamburg/hamburg_rules_e.pdfvThe Rotterdam Rules. Url: http://www.

uncitral.org/pdf/english/workinggroups/wg_3/CTCRotterdamRulesE.pdfvi”UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT” (Geneva) REVIEW OFMARITIME TRANSPORT 2009. Url: http://unctad.org/en/docs/rmt2009ch6_en.pdf#page=2vii”THE ROTTERDAM RULES IN A NUTSHELL” by BRITANNIA NEWS CONVENTIONS. Url: https://eprints.

soton.ac.uk/170957/1/the_rotterdam_rules_in_a_nutshell.pdfviiiMarine Insight. Url: https://www.

marineinsight.com/maritime-law/rotterdam-rules-redefining-and-introducing-the-electronic-bill-of-lading/ixFisher solicitors. Url: http://www.fisherslondon.com/pages/news/index.asp?NewsID=38x”UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT” (Geneva) REVIEW OFMARITIME TRANSPORT 2009.

Url: http://unctad.org/en/docs/rmt2009ch6_en.pdf#page=2xi  Fisher solicitors. Url:http://www.

fisherslondon.com/pages/news/index.asp?NewsID=38xii”UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT” (Geneva) REVIEW OFMARITIME TRANSPORT 2009. Url:http://unctad.org/en/docs/rmt2009ch6_en.

pdf#page=2xiiiFisher solicitors. Url: http://www.fisherslondon.

com/pages/news/index.asp?NewsID=38xiv”Volume contract” means a contract of carriage that provides for the carriageof a specified quantity of goods in a series of shipments during an agreedperiod of time. The specification of the quantity may include a minimum, amaximum or a certain range. From the definitions of the Rotterdam Rules http://www.

uncitral.org/pdf/english/texts/transport/rotterdam_rules/Rotterdam-Rules-E.pdfxv”United Nations Convention on Contracts for the International Carriage of GoodsWholly or Partly by Sea” (“Rotterdam Rules”). Url: http://www.uncitral.org/pdf/english/texts/transport/rotterdam_rules/Rotterdam-Rules-E.pdfxvi”The Rotterdam Rules Revolution” by Joshua Hawes.

Url:  http://arno.uvt.nl/show.cgi?fid=128604xvii”Rotterdam Rules: the road ahead by” by Utsav Mathur, Norton Rose Fulbright,Url: https://thebalticbriefing.com/2017/07/26/rotterdam-rules-the-road-ahead/xviii”UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT”  (Geneva) REVIEW OF MARITIME TRANSPORT 2009.Url: http://unctad.org/en/docs/rmt2009ch6_en.pdf#page=2xix”Why haven’t the Rotterdam Rules been ratified?” A post by Máire Griffin,Registered Auditor, Mentor & Food Safety Manager.

Url: https://www.linkedin.com/pulse/why-havent-rotterdam-rules-been-ratified-m%C3%A1ire-griffin/xx”THE ROTTERDAM RULES IN A NUTSHELL” by BRITANNIA NEWS CONVENTIONS. Url: https://eprints.soton.ac.

uk/170957/1/the_rotterdam_rules_in_a_nutshell.pdfxxiUnited Nations Commission on international Trade Law (UNICITRAL) http://www.uncitral.org/uncitral/en/uncitral_texts/transport_goods/rotterdam_status.htmlxxiihttp://www.rotterdamrules.com/xxiii”Rotterdam Rules: the road ahead” by By Utsav Mathur, Norton Rose Fulbright,Url: https://thebalticbriefing.

com/2017/07/26/rotterdam-rules-the-road-ahead/xxivhttp://europeanshippers.eu/about/xxv”The Rotterdam Rules Revolution” by Joshua Hawes. Url:  http://arno.

uvt.nl/show.cgi?fid=128604xxvihttps://bifa.org/homexxvii”So what are the Rotterdam Rules?” By BIFA. URL: https://bifa.org/_attachments/Resources/1003_S4.pdf 

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