Introduction. of sea transport, a fourth convention has

Introduction. Carriage of goods by sea is regulated by some
international conventions. Different countries adhere to different conventions.

The Hague
Rules of 1924 or “International Convention for the Unification of
Certain Rules of Law relating to Bills of Lading, and Protocol of
Signature”i
are made of a total of 15 articles of which 10 only are directly related to the
discipline of the transport of goods.

The Hague Rules was the first set
of rules which tried to distinguish among the responsibilities of the various
subjects which contributed to the transport of goods by sea: the shipper, the
carrier and the receiver.

The Hague Rules were slightly amended
in 1968 and 1972 to become the Hague-Visby Rulesii.

The vast majority of the world
countries, some of them also important such as, for example, the USA and
Germany (according to Wikipediaiii) still
stay with the Hague Rules of 1924 while few others, such as Italy, UK and some
other, mostly European, countries, have adopted the Hague-Visby Rules.

A third international convention regulating
sea transport is the “Hamburg Rules”iv which
became effective in 1992. This convention has been adopted by a limited number
of mainly developing countries (or counties which do not have direct access to
the sea) since the Rules tend to favour less the sea carriers who are mostly based
in developed countries.

In order to put some order in the
world of sea transport, a fourth convention has been approved in 2008 although
not yet implemented: The “Rotterdam Rules” or as its full
denomination recites: “The United Nations Convention on Contracts for the
International Carriage of Goods Wholly or Partly by Sea”v. The
Rotterdam 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 become
effective only when they will have been “ratified” by at least 20 countries
while, as of today, they have been ratified by less than 5 countries.

The main points of the Rotterdam
Rules are described in the following lines with a comparison, where meaningful,
with the previous conventions on carriage of goods at sea and in particular
with the Hague-Visby Rules.

Need for uniformity. In the first place, this new convention aspires
to limit the confusion among the different sets of rules which govern the world
of transportation by sea by substituting the older rules. As a matter of fact,
the Rotterdam Rules were drafted by the United Nations Commission on
International Trade Law and approved by the United Nations in order to provide
from the beginning a document shared and discussed among as many countries as
possible.

In second place, the Rotterdam
Rules aim to provide the world of trade with a set of rules more modern which takes
into account today’s complexity and, therefore, not only international sea
transport but also international intermodal transportation that is to say a
transport that, on top than “at least one leg” by sea, includes also at least
one leg transport by road, train, air or inland water.

Coordination with transport conventions covering legs other than sea
legs. In case of possible conflicts among international transport
conventions, article 82 of the Rotterdam Rules establishes that conventions
ruling unimodal (versus “intermodal”)
transport shall prevail over the Amsterdam Rules whenever:

–         
the unimodal rules are not only exclusively
unimodal and,

–         
the liability of the carrier i) has arisen
solely before or after sea carriage and ii) only for those liabilities of the
carrier which would have been ascribed following an international convention
that would have applied mandatorily for that leg of transport (which was not on
sea)vi.

Contractual flexibility: in line with need to rule today’s world, which
is increasing complex, the Rotterdam Rules take into account the need to allow
more flexibility than that allowed by previous conventions. As a matter of
fact, 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 of
carriage is void to the extent that it conflicts with the Rotterdam Rules, on
the other side, often allow the parties to derogate from the general norm by
means of a specific contractual agreement.

Duties and liabilities of the carrier. Under the Rotterdam Rules the
carrier has a number of specific duties.

Duty to issue a transport
document (Art 35) unless the parties have agreed not to.  Art. 3 specifies that any document issued
under the terms of the convention must be in writing there included electronic
writing.

The Rotterdam Rules, maybe a
little bit surprisingly, when referring to the “transport document”, do not use
the well-known and universally used term “bill of lading” but make a
distinction between negotiable and not negotiable transport documents. Apparently,
the Rotterdam Rules do not use the term “bill of lading” because it may
possible that in the future the bill of lading may be substituted by more
modern documents there included electronic documentationvii. In
any case, the bill of lading continues to be one of the documents which the
parties may agree to issue, also in its electronic form.

Duties and liabilities in relation to the goods. As already in part
anticipated hereinabove, one first difference between the Amsterdam Rules and
all other Rules prior to them, is the circumstance that, accordingly to the
previous Rules, the carrier may be liable only from the moment it has loaded
the goods on the ship up to the discharge of the goods ashore or at the
terminal while, on the contrary, the Rotterdam Rules allow the parties involved
to agree that the liability of the carrier can begin from the moment in which the
carrier receives the goods until when the goods are delivered to the receiverviii.  Nevertheless, the Rotterdam Rules also allow
that the following points may be agreed differently by means of contract among
the parties:

–         
the period of responsibility of the carrier which
may restricted to cover only the period from initial loading to the final
unloading (art. 12 (3));

–         
certain operations such as loading, handling, stowing
and unloading which may be excluded from the responsibility of the carrier
(art. 13 (2));

–         
the liability of the carrier, in case of special
cargo or in the relation to the transport of live animals, can be limited or
excluded altogether (art. 81).

Art. 13 of the Rotterdam Rules
imposes to the carrier a general duty of care similar to that of Art III r.2 of
the Hague-Visby Rules. However, the obligation of seaworthiness of the carrier
in 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-Visby
Rulesix.

In so far as the determination of
the liability of the carrier is concerned, the Rotterdam Rules state that the
carrier is liable for loss of, or damage to the goods or delay in the delivery
if the claimant proves that this was caused during the period of the carrier’s
responsibility (Art 17.1). Moreover, the claimant does not have to prove the
lack of due diligence of the carrier but it is instead up to the carrier to
avoid all or part of its liability by proving that the cause of the loss is i) not
attributable to its fault (or to the fault of any person listed in Art 18) or
that ii) the cause of the damage or loss falls within the list of defences at
Art 17(3)x.
The defences listed at Art 17(3) of the Rotterdam Rules are similar to those
under Art IV r.2 of the Hague-Visby Rules (there included the “Act of God”) but
there are some notable differences and in particular that the “error of
navigation or management of the ship” Art IV r.2(a) has been omittedxi.

However, if a claimant can prove
that the fault of the carrier, or person referred to in Art 18, caused or
contributed to the loss, the carrier will remain liable for all or part of the
loss notwithstanding any applicable defence under Art 17(3).

It is important to note that the
Rotterdam Rules, even in cases of damages that on the basis of the previous
Conventions would have been ascribable in full to the liability of the carrier
and, in particular, in cases of unseaworthiness, allow for a principle of
proportional allocation of the liability between the carrier and the shipper
provided that the carrier is able to prove the responsibility of the latter.
This is an important change compared to the Hague-Visby Rules since the
Rotterdam Rules may impose, at least in theory, a higher liability on the
shipperxii .

Finally, the upper limit amount
of the carrier’s liability is higher than that set out under the terms of the
Hague, Hague-Visby and Hamburg Rules. Under the terms of the Rotterdam Rules, this
liability is limited to the higher between i) 875 Special Drawing Rights (“SDR”)1 units
per package or ii) 3 SDR units per kilogram of the gross weight (Art 59). The
liability for economic loss due to delay is limited to 2,5 times the freight
payable on the goods delivered but must be no greater than the limits under Art
59 xiii.
Nevertheless, the Rotterdam Rules allow for the parties to agree a different
compensation 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 Rotterdam
Rules, the shipper has also more specific liabilities than in the previous
conventions. For example, the shipper is responsible for the preparation and
delivery of the goods, in respect of a series of documents and instructions which
must 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”. The
Rotterdam Rules specifically define maritime performing party as a party that
performs or undertakes to perform any of the carrier’s obligations during the
period between the arrival of the goods at the port of loading of a ship and
their departure from the port of discharge of a ship. An inland carrier is a
maritime performing party only if it performs or undertakes to perform its
services exclusively within a port areaxv. It is
widely 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 freight
forwarders when they perform “any of the carrier’s obligations under a contract
of carriage with respect to the receipt, loading, handling, care and unloading
or delivery of the goods”xvi.

Article 19 of the Rotterdam Rules
imposes liability for cargo loss or damage on a maritime performing party
provided that the circumstance that caused the loss, damage or delay took place
during the period between the arrival of the goods at the port of loading of
the ship and their departure from the port of discharge from the ship and
either:

–         
while the maritime performing party had custody
of the goods or

–         
at any other time to the extent that it was
participating in the performance of any of the activities contemplated by the
contract of carriage.

It is important to note that all
the other conventions prior to the Rotterdam rules do not contain any similar
provision regarding the liability of ports and terminalsxvii.

Time limit for taking action. According to article 62, any action will
need to be taken within two years from delivery or from when the delivery
should have taken place. This time limit applies to both claims by the carrier
against the shipper and to claims by the shipper against the carrier. Also set
off (compensation) between different liabilities is allowed.

The receiver, in its turn, must
notify the carrier of any loss due to delay in the delivery within 21 days
since the date in which the delivery has actually occurredxviii.

Electronic documents. Some commentatorsxix refer
enthusiastically about the circumstance that Art. 8 of the Rotterdam Rules
allow for electronic documents acknowledging the development of technology in
the international carriage of goods so favouring increased securities, decrease
of 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 of
goods industry which, in this respect, is much less developed than other
industries. Moreover, it is possible to forecast the development of a specific
industry which will design and envisage new software and technical systems that
will help the implementation of the Rotterdam Rules. As a matter of fact,
systems for managing electronic documents such as the Bill Of Lading Electronic
Registry Organization (BOLERO), have already been in existence for over a
decade but they are not working efficiently and they need to be reformed and
updated.

Jurisdiction and arbitration. The Hague and Hague-Visby Rules did
not have any rules concerning jurisdiction while the Hamburg Rules left large
freedom in selecting the court where to raise the litigation. The Rotterdam
Rules contain jurisdiction rules which apply only if the State has i) ratified
the convention and ii) it has declared that intends to accept the rules stated
in the Rotterdam Rules. When these two conditions are met, the party who intend
to begin a litigation or an arbitration can choose a court among one of the
following locations:

i)                   
the domicile of the carrier;

ii)                  
the place of receipt; or

iii)                
the place of delivery of the goods stipulated
under the contract of carriage; or

iv)                
the port where the goods are initially loaded on
a ship or finally discharged from a ship.

In this case too, the Rotterdam
Rules 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 Republic
of the Congo, Spain, Togo and Cameroonxxi while
they will not come into force until when it will have been ratified by at least
20 countries.

Some further information about
their process of ratification can be gathered on the Rotterdamrules.comxxii  the “official” internet site of the Rules
which, honestly speaking, looks quite desolated and almost abandoned. In 2013
the Netherlands have started the process of ratification. In the same year, the
Dutch Minister of Security and Justice asked the governments of Belgium,
France, Germany and the United Kingdom to comment on their intentions to ratify
the Rotterdam Rules. Belgium indicated not to be at the forefront of the
ratification process and France and Germany had not yet begun any ratification
process. The United Kingdom informed to have set up a Working Group of parties
representing the British maritime industry to advice the UK government with
regard to ratification of the Rotterdam Rules. However, these representatives
could not reach consensus. The UK will therefore await the international
developments and for other large maritime and trade nations to ratify the
Rotterdam Rules first.

Overall the situation does not
appear particularly bright.

The USA seem to be a step forward
in ratifying the Rules or, at least, to have plans in this respect since many
US operators have shown a strong interest in them. Unfortunately, the process
has been halted by ports, terminals and similar operators who fear that being
labelled as “maritime performing party” under the terms of Art. 19 of the
convention, will impose upon them new liabilities that today they do not bearxxiii.

Concerns about the Rotterdam Rules. Concerns about the Rotterdam
Rules are several and wide-spread. In the first place the Rules must fight a generalized
resistance 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 as
against the about 10 of the Hague and the Hague-Visby Rules and the 34 of the
Hamburg Rules which have all been in place for several decades and are very
well known by operators.

Beside what is above, there are a
number of factors that inspire caution or even mistrust by operators against
the Rotterdam Rules. The most important are:

–         
its complexity since it aims at regulating not
only sea carriage but also intermodal transport;

–         
its flexibility, since parties can derogate to
it by way of contract, also adds to its complexity;

–         
due to its complexity and to the fact that it is
a new convention, a very high level of litigation and arbitration is expected;

–         
the circumstances that it partly shifts
liabilities between shippers and carriers and also imposes liabilities on new
subjects such as, for example, the maritime performing parties;

These are only some of the main criticisms
to the Rotterdam Rules. The European Shippers’ Council, the body which “represents the logistic interests of
manufacturers, retailers and wholesalers, collectively referred to as shippers”xxiv has
drafted a list of eight points against the Rulesxxv

In a similar way, the British
International Freight Associationxxvi
(BIFA) has it too listed in a documentxxvii eight
reasons to be against the Rotterdam Rules and to lobby the UK government in
order to prevent their approval or at least to delay it.

1
As against 666.67 in the Hague-Visby Rules and 835 of the Hamburg Rules

i
The Hague Rules Url: http://www.admiraltylawguide.com/conven/haguerules1924.html

ii
The Hague-Visby Rules Url: https://www.first.dk/media/6204/Hague.pdf

iii
The Hague Visby Rules, Wikipedia Url:  https://en.wikipedia.org/wiki/Hague%E2%80%93Visby_Rules

iv
The Hamburg Rules, Url: http://www.uncitral.org/pdf/english/texts/transport/hamburg/hamburg_rules_e.pdf

v
The Rotterdam Rules. Url: http://www.uncitral.org/pdf/english/workinggroups/wg_3/CTCRotterdamRulesE.pdf

vi
“UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT” (Geneva) REVIEW OF
MARITIME TRANSPORT 2009. Url: http://unctad.org/en/docs/rmt2009ch6_en.pdf#page=2

vii
“THE ROTTERDAM RULES IN A NUTSHELL” by BRITANNIA NEWS CONVENTIONS. Url: https://eprints.soton.ac.uk/170957/1/the_rotterdam_rules_in_a_nutshell.pdf

viii
Marine Insight. Url: https://www.marineinsight.com/maritime-law/rotterdam-rules-redefining-and-introducing-the-electronic-bill-of-lading/

ix
Fisher solicitors. Url: http://www.fisherslondon.com/pages/news/index.asp?NewsID=38

x
“UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT” (Geneva) REVIEW OF
MARITIME TRANSPORT 2009. Url: http://unctad.org/en/docs/rmt2009ch6_en.pdf#page=2

xi
  Fisher solicitors. Url:
http://www.fisherslondon.com/pages/news/index.asp?NewsID=38

xii
“UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT” (Geneva) REVIEW OF
MARITIME TRANSPORT 2009. Url:
http://unctad.org/en/docs/rmt2009ch6_en.pdf#page=2

xiii
Fisher solicitors. Url: http://www.fisherslondon.com/pages/news/index.asp?NewsID=38

xiv
“Volume contract” means a contract of carriage that provides for the carriage
of a specified quantity of goods in a series of shipments during an agreed
period of time. The specification of the quantity may include a minimum, a
maximum or a certain range. From the definitions of the Rotterdam Rules http://www.uncitral.org/pdf/english/texts/transport/rotterdam_rules/Rotterdam-Rules-E.pdf

xv
“United Nations Convention on Contracts for the International Carriage of Goods
Wholly or Partly by Sea” (“Rotterdam Rules”). Url: http://www.uncitral.org/pdf/english/texts/transport/rotterdam_rules/Rotterdam-Rules-E.pdf

xvi
“The Rotterdam Rules Revolution” by Joshua Hawes. Url:  http://arno.uvt.nl/show.cgi?fid=128604

xvii
“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=2

xix
“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.pdf

xxi
United Nations Commission on international Trade Law (UNICITRAL) http://www.uncitral.org/uncitral/en/uncitral_texts/transport_goods/rotterdam_status.html

xxii
http://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/

xxiv

About

xxv
“The Rotterdam Rules Revolution” by Joshua Hawes. Url:  http://arno.uvt.nl/show.cgi?fid=128604

xxvi
https://bifa.org/home

xxvii
“So what are the Rotterdam Rules?” By BIFA. URL: https://bifa.org/_attachments/Resources/1003_S4.pdf

 

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