The Rotterdam Rules Revolution
1
The Rotterdam Rules Revolution
Will the Rotterdam Rules have the regulatory impact upon ‘multimodal carriage’ their creators intended?
By Joshua Hawes ANR 624431
Abstract
The United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, informally the Rotterdam Rules, were conceived in 1996 with a view to establishing a truly international convention for ‘carriage by sea’. One that would harmonize and unify the ‘patch work’ of legislation that operates in one form or another around the world. Harboring an overarching objective to legislatively modernize ‘international maritime transport’, an industry largely governed by an 80‐year‐old statute, namely the Hague‐Visby Rules. The focus later expanded to include the issue of liability, further complicating an already exorbitant task.
Released in 2009, after more than a decade of meticulous drafting, the Rotterdam Rules are now delicately poised between ratification, thus achieving their lofty goals, or simply remaining dormant, a lifetime in the legislative abyss of soft law, forever destined for academic postulation and possible ridicule.
1 Zappa, F., Ship Arriving Too Late to Save a Drowning Witch (album cover), Barking Pumpkin, 3 May 1982 Table of Contents
Pages
I. Introduction 3
II. Creation of the Rotterdam Rules 4 ‐ 5
III. Regulatory history of carriage by sea 6 ‐ 8
IV. Contracts of carriage wholly or ‘partly’ by sea and 9 ‐ 21 multimodal transport
V. Critical acclaim of the Rotterdam Rules 22 ‐ 30
VI. Harmonization, unification, modernization, and liability 31 ‐ 33
VII. Conclusion 34 ‐ 35
VIII. References
• Legislation 36 • Articles 37 ‐ 38 • Cover Art 38 • Appendices 39 ‐ 40
Acknowledgements
Many thanks to Professor Vermeulen and the International Business Law team for an enjoyable and challenging year. A special mention to Professor Pejovic for his lecture series in Maritime Law, which were my source of inspiration for this paper.
2 I. Introduction
The United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, hereafter referred to as the ‘Rotterdam Rules’, or the ‘Convention’, seeks to standardize the contract for the international carriage of goods wholly or partly by sea, hereafter referred to as the ‘Contract of Carriage’.
Upon ratification, the Convention will undoubtedly be a landmark development in maritime law and a significant development in the realm of international trade. However there is some doubt when the Convention will be ratified if at all. Ironically legislators of the industry have been perennially accused of adopting a reactionary approach to regulation, further clouding the industry’s likely response to proactive regulation. Without underestimating the impact of such an intangible aspect we will direct our attention to assessing more tangible aspects including:
• The uncertainty concerning the practical impact of the Rules; • The Convention heeding goals with cross‐purposes; and • Whether the legislators have overreached.
In order to make this assessment we have selected one part of the Convention for further exploration, namely multimodal transport. Interestingly multimodal transport, made prominent by the inception of the ‘containerization age’, approaches the legislative ‘chopping‐block’ from a unique angle, having not been considered previously in maritime law.
We aim to conclude with an insight on the prospect of ratification. In the event this insight bodes poorly for the Convention, suggest amendments, be they technical or philosophical that may improve the prospect of ratification. But first a brief review of the industry’s regulatory history and the creation of the Rotterdam Rules.
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II. Regulatory history of carriage by sea
“The history of the law of carriage of goods by sea is the history of the gradual introduction of mandatory rules on liability. By the late nineteenth century, freedom of contract was being used broadly and forcefully by ship‐owners to unduly diminish their liabilities for cargo loss or damage. To combat such practice, in 1893 the United States introduced the Harter Act, a mandatory regime governing trade with the country following in 1924 with the signing of the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading (the Hague Rules), which presently forms the foundation of the law on carriage of goods by sea.”2
The Hague Rules 1924, originally adopted as voluntary rules in 1921, came into force at a time when tramp steamers were in operation. Tramp steamers ‘steamed’ at 6‐ 10 knots on 6‐10 tons of coal a day, with a deadweight tonnage (“DWT”) capacity of 6‐10,000. By the mid‐1940’s over two thousand Liberty ships had been constructed, with the capacity for a maximum speed of 11.5 knots and a capacity of 10,685 DWT. During this era, cargo was still handled by ‘ship’s gear’ that was often prone to breakdowns. This method of operation dictated the style of disputes, which were commonly over delays that resulted in additional expenses, termed ‘laytime and demurrage’. Jumping ahead a further 50 years to the twenty‐first century, the Emma Maersk was launched. A ship capable of speeds in excess of 25.5 knots, and a capacity to carry some 11,000 20ft containers for an impressive total of 157,000 DWT. 3
The inception of the ‘containerization age’, not contemplated in 1924, has demanded commercial changes, which have precipitated door‐to‐door Contracts of Carriage that provide for modern day logistics. Typically, containers are discharged from the ship, loaded onto trucks and taken directly to inland depots. The legislative response to such developments first came in the form of the Tokyo Rules, initiated by the Comite Maritime International (“CMI”) and adopted in 1969: 4
“These Rules formed the basis on which the container shipping industry developed its contracts for combined, or multimodal, transport on a network basis which took account of the liability provisions in unimodal regimes for other modes of transport, in particular road and rail.” 5
Further legislative action came in the form of the Hamburg Rules 1978, introducing the concept of ‘actual carrier’. Actual carriers are those parties, other than the carrier, who perform carrier duties. Importantly, providing that the carrier remains vicariously liable for the actions of the actual carrier. Curiously the Hamburg Rules
2 Zekos, Dr G. I., Documentation in the 2007 Draft convention on the carriage of goods wholly or partly by sea, Neptunus, revue electronique, Centre de droit maritime et oceanique de Nantes, Page 1‐2, Volume 14, 2008/1 3 Beare, S., The Need for Change and the Preparatory Work of the CMI, Page 2, October 2010 4 Ibid: 3 5 Ibid: 3 4 only apply in context of port‐to‐port transport, leaving many activities considered in door‐to‐door contracts at the mercy of national laws. 6
UK lawyer Stuart Beare is of the firm opinion it is necessary to expand the concept “to take account of door‐to‐door transport contracts and the many parties involved in modern transport logistics.” 7 Therefore in respect of multimodal transport the challenge in the hands of the Rotterdam Rules is clear. That is, clarify the lines of liability for the parties involved with the goods between their arrival at the port of loading of a ship and their departure from the port of discharge of a ship. 8
Beare is also of the opinion that the solutions developed by industry, in response to ship construction and operation, have been done so in a ‘piecemeal’ fashion, with such ‘ad hoc’ solutions creating inconsistency and legal uncertainty. Calling for an international regime that draws together the industry “into a single up‐to‐date and comprehensive code.” 9
Undisputedly, the shipping industry is truly global, with some 50,000 merchant ships currently in operation, responsible for the carriage of approximately 90% of world trade.10 Whilst the age old adage “if it ain’t broke, don’t fix it” may still ring true there is strong movement to suggest legislative action is entirely necessary to keep pace with modern trade, encompassing “the growing efficiency of shipping with the development of faster ships, quicker port turn‐arounds, the use of ecommerce and e‐ communication…”11
The Hague Rules 1924 sought to resolve the perennial conflict between the carrier and shipper regarding the balance of freight and liability. This was followed by the Visby Rules 1968, which established a minimum liability standard, providing that any clause in the Contract of Carriage that reduces the carrier liability below the minimum liability standard be null and void.12 Then followed the Hamburg Rules 1978, largely chastised for increasing the liability of carriage. The question remains, what are, or will the Rotterdam Rules 2009 be renowned?
6 Ibid: 3 7 Ibid: 3 8 Ibid: 3 9 Ibid: 4 10 International Chamber of Shipping, Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (the “Rotterdam Rules”), Page 1, Position Paper, 2009 11 Ibid 12 Hague‐Visby Rules ‐ The Hague Rules as Amended by the Brussels Protocol 1968, Article III, Paragraph 8: “Any clause, covenant, or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or damage to, or in connection with, goods arising from negligence, fault, or failure in the duties and obligations provided in this article or lessening such liability otherwise than as provided in these Rules, shall be null and void and of no effect. A benefit of insurance in favour of the carrier or similar clause shall be deemed to be a clause relieving the carrier from liability.” 5
III. Creation of the Rotterdam Rules
Initiated by the United Nations Commission on International Trade Law (“UNCITRAL”), “The Rotterdam Rules were adopted by Resolution 122 of the 63rd session of the United Nations General Assembly on 11th December 2008 and were opened for signature in Rotterdam on 23rd September 2009”13 at a signing ceremony in Rotterdam, The Netherlands. There were 1614 original signatory states representing over 25 percent of the world trade volume. Which is significant when compared to the Hamburg Rules that attracted 34 signatory states representing only 5 percent of world trade volume.15 Since the signing ceremony the Convention has attracted a further 816 signatories, making a total of 24 signatory states. To date, Spain is the only signatory state to ratify the Convention.17
Dubbed a maritime plus regime by virtue of its “broad geographic scope of application in that it applies to international contracts of carriage with an international maritime leg where the place of receipt, loading, delivery or discharge is situated in a contracting state.” 18 The Rotterdam Rules aim is twofold:
• “first to modernise the regime generally for the traditional “tackle‐to‐tackle” and “port‐to‐port” carriage of goods and • secondly, to introduce innovative solutions to meet the demands of carriage of goods on “door‐to‐door” terms by which the carrier undertakes responsibility for not only the maritime leg but also the intermediate and final land, inland waterway or air leg, from receipt of the goods from the shipper until final delivery to the receiver.”19
Mindful to adorn a heightened vigilance when dealing with commentary from the very body that commissioned the Convention, namely UNCITRAL, we outline the following summary (of a factual nature) regarding the events leading up to the signing ceremony:
“Origin of the Convention
• 34th Session of UNCITRAL – 2001
13 Beare, S., The Need for Change and the Preparatory Work of the CMI, Page 1, October 2010 14 Congo, Ghana, Nigeria, Spain, Denmark, Greece, Norway, Switzerland, France, Guinea, Poland, Togo, Gabon, Netherlands, Senegal, and United States 15 Lannan, K. (Secretary of Working Group on Transport Law), The United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (the “Rotterdam Rules”), Page 9, United Nations Commission on International Trade Law 16 Madagascar, Armenia, Cameroon, Niger, Mali, Luxembourg, Democratic Republic of Congo, and Sweden 17 Lemay, T. (Principal Legal Officer), Spain ratifies the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, Press Release ‐ United Nations Information Service, 24 January 2011 18 International Chamber of Shipping, Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (the “Rotterdam Rules”), Page 2, Position Paper, 2009 19 Ibid 6 o Consultations had indicated that work could usefully commence towards an international instrument that would: . Modernize the law of carriage . Take into account the latest technological developments . Eliminate legal difficulties that had been identified o UNCITRAL established the Working Group on Transport Law to consider the project: . Consider the preliminary text received from CMI . Broad mandate: including liability issues and the feasibility of door‐to‐door coverage . Moved the project from the industry phase to the intergovernmental negotiation stage
Adoption of the Convention
• Draft Approved – July 2008 – 41st session of United Nations Commission on International Trade Law (UNCITRAL) • Adopted – 11 December 2008– 63rd Session of United Nations General Assembly • Opened for signature 23 Sept 2009 in Rotterdam • Recommended Convention be known as the Rotterdam Rules • Called upon all Governments to consider becoming party to the Convention”20
Moving now to the substantive elements, which provide the foundation for our exploration into the multimodal transport. We propose to use UNCITRAL’s assessment of the multimodal transport aspect as the basis for determining what their objectives were in designing the convention. That is, in terms of multimodal transport, UNCITRAL purports that the Convention provides for modern containerized shipping throughout, with door‐to‐door shipments made possible under a single contract of carriage, and a single legal regime,21 whilst preserving existing unimodal transport regimes.22 This assessment translates clearly as objectives, which we will set aside for further analysis in the following chapter.
Seemingly the cornerstone of UNCITRAL’s sales pitch is for countries to resist the urge to look shortsightedly at ones (countries) bottom line. That is, a strict financial analysis with lines undoubtedly forming between ‘carrier’ nations and ‘shipper’ nations. “Historically, the international legal regimes governing the carriage of goods by sea have certainly been seen in that light – with the Hague and Hague‐Visby Rules being considered too carrier‐friendly, and the Hamburg Rules being considered too much in favour of shippers.”23 UNCITRAL implores countries to shed the shackles of history, seeing beyond the classic ‘us versus them’ approach in support of
20 Lannan, K. (Secretary of Working Group on Transport Law), The United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (the “Rotterdam Rules”), Pages 5 and 7, United Nations Commission on International Trade Law 21 Ibid: 18 22 Ibid: 22 23 Lannan, K. (Legal Officer with the UNCITRAL Secretariat), New Regime, Maritime Gateway, Page 13, December 2009 7 harmonizing the system, dubbed “an essential factor in the development of sustainable mobility and transport.”24 UNCITRAL conclude in saying that the “potential gains for all participants are great, but failure to seize this unique opportunity will mean a continuation of the cumbersome and costly status quo – or worse – for many years to come.”25 It remains to be seen if this sentiment is accurate or washed with the propaganda of one too close to the source.
As an aside, Article 94(1) of the Convention provides that:
“This Convention enters into force on the first day of the month following the expiration of one year after the date of deposit of the twentieth instrument of ratification, acceptance, approval or accession.”
Furthermore, Article 89 provides for the mandatory denunciation of other conventions upon the Rotterdam Rules entering into force. Article 89 (2) specifically identifies the Hamburg Rules for such denunciation.26
24 Ibid: 14 25 Ibid: 14 26 Rotterdam Rules ‐ Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea 2009, Article 89, Paragraph 2: “A State that ratifies, accepts, approves or accedes to this Convention and is a party to the United Nations Convention on the Carriage of Goods by Sea concluded at Hamburg on 31 March 1978 shall at the same time denounce that Convention by notifying the Secretary‐General of the United Nations to that effect, with a declaration that the denunciation is to take effect as from the date when this Convention enters into force in respect of that State.” 8 IV. Contracts of carriage wholly or ‘partly’ by sea
The key word in the Convention’s title, indeed for our purposes, is the word ‘partly’ as this insinuates an application to multimodal transport.27 The resolution adopted by the General Assembly (Appendix 1) invoking the Convention outlines several pertinent points regarding multimodal transport, namely:
“Concerned that the current legal regime governing the international carriage of goods by sea lacks uniformity and fails to adequately take into account modern transport practices, including containerization, door‐to‐door transport contracts and the use of electronic transport documents, …
Noting that shippers and carriers do not have the benefit of a binding and balanced universal regime to support the operation of contracts of carriage involving various modes of transport, …
Recognizing that all States and interested international organizations were invited to participate in the preparation of the draft Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea and in the fortyfirst session of the Commission, either as members or as observers, with a full opportunity to speak and make proposals”
It is uncontested that the importance of multi‐modal transport is largely due to “the unimagined growth in containerised trade and the increasing practice whereby the operator undertakes the entire transport of goods from receipt from shipper’s premises to final delivery.”28 Nor is it contested that the present unimodal maritime liability regimes29 are inadequate for the liability and documentary challenges presented by multimodal transport. 30
When the Hague Rules were adopted in 1921, goods were normally received and delivered alongside the vessel, termed tackle‐to‐tackle. This was reflected in the rules regarding ‘period of responsibility’ of the carrier. Later it proved necessary for carriers to receive and deliver goods in its port warehouses (or that of its agents) in order to avoid delays. Whilst the ‘actual’ period of responsibility became wider, port‐ to‐port, the ‘legal’ period of application in the Hague Rules and later the Hague‐ Visby Rules remained tackle‐to‐tackle.31 “Consequently the liability of the carrier in respect of loss of or damage to the goods occurring between receipt of the goods and
27 Sea, road, rail, air, or inland waterway 28 International Chamber of Shipping, Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (the “Rotterdam Rules”), Page 1, Position Paper, 2009 29 Hague, Hague‐Visby and the Hamburg Rules 30 Berlingieri, F., Multimodal Aspects of the Rotterdam Rules, Page 2 31 Ibid: 1 9 their loading on board the ship and as well as between completion of discharge and delivery was governed by the applicable national law.”32
The period of responsibility outlined under the respective maritime liability regimes, is as follows:
HAGUE‐VISBY RULES HAMBURG RULES ROTTERDAM RULES Article 1 Article 4 Article 12 (e) “Carriage of goods” Period of responsibility Period of responsibility of the covers the period from the 1. The responsibility of the carrier time when the goods are carrier for the goods under 1. The period of responsibility loaded on to the time they this Convention covers the of the carrier for the goods are discharged from the period during which the under this Convention begins ship. carrier is in charge of the when the carrier or a goods at the port of loading, performing party receives the during the carriage and at goods for carriage and ends the port of discharge. when the goods are delivered.
It is now settled that the period of application provided in Article 1(e) of the Hague‐ Visby Rules is “from the beginning of loading of the goods on the ship to the completion of their discharge from the ship,” 33 hence tackle‐to‐tackle. In circumstances when “the carrier takes the goods in charge before their loading on board and delivers them to the consignee in a warehouse of the port of discharge, there are periods when the goods are in the custody of the carrier to which the Hague‐Visby Rules do not apply. That creates uncertainty, because the rules applicable may vary from port to port.” 34
The Hamburg Rules seek to address such uncertainty, providing that the period of application be extend to include the “port of loading, during the carriage and at the port of discharge,”35 which logically cures any uncertainty in a port‐to‐port contract. However, “this is not the case in a door‐to‐door contract or when the terminals of the carrier are outside the port area, because the rules applicable would be different.”36
With the exception of when the carrier must hand the goods over to an authority in the place of receipt or in the place of deliver, the Rotterdam Rules provide that “the period of application and the period of responsibility of the carrier coincide with that during which the carrier is in charge of the goods, wherever he receives and delivers them.”37 In the case of door‐to‐door contracts the Rotterdam Rules’ application is considerably wider than that of the Hague‐Visby Rules and the Hamburg Rules.
32 Ibid: 1 33 Berlingieri, F., A Comparative Analysis of The Hague‐Visby Rules, The Hamburg Rules And The Rotterdam Rules, Pages 5 and 6 34 Ibid 35 Hamburg Rules: Article 4 36 Berlingieri, F., A Comparative Analysis of The Hague‐Visby Rules, The Hamburg Rules And The Rotterdam Rules, Pages 5 and 6 37 Ibid 10 The Rotterdam Rules’ application to carriage by modes of transport other than sea is provided as follows:
ROTTERDAM RULES Article 1 Definitions For the purposes of this Convention: 1.“Contract of carriage” means a contract in which a carrier, against the payment of freight, undertakes to carry goods from one place to another. The contract shall provide for carriage by sea and may provide for carriage by other modes of transport in addition to the sea carriage.
Article 5 General scope of application 1. Subject to article 6, this Convention applies to contracts of carriage in which the place of receipt and the place of delivery are in different States, and the port of loading of a sea carriage and the port of discharge of the same sea carriage are in different States, if, according to the contract of carriage, any one of the following places is located in a Contracting State: (a) The place of receipt; (b) The port of loading; (c) The place of delivery; or (d) The port of discharge.
2. This Convention applies without regard to the nationality of the vessel, the carrier, the performing parties, the shipper, the consignee, or any other interested parties.
Therefore the Rotterdam Rules apply to a contract for carriage by sea and additional legs by other modes of transport provided the sea leg is international. Moreover “if the contract is wholly by sea, only the port of loading and the port of discharge are relevant; if the contract is partly by sea, also the place of receipt and the place of delivery, that do not coincide with the port of loading and the port of discharge, are relevant and it suffices that anyone of them be in a Contracting State; provided, however, that the sea leg be international.”38
In view of some of the challenges leveled at the Rotterdam Rules, particularly those concerned with its impact upon other international conventions, it is timely to note that the Rotterdam Rules have been conceived “only with a view to regulating contracts of carriage by sea in which the carrier agrees to extend its services also to the transportation by other modes that precedes and follows carriage by sea”39 and not a multimodal instrument in the traditional sense.40 It follows that “carriage by other modes must only be a complement to carriage by sea.” 41 Extending the scope of application accordingly “was prompted by the awareness that such extension would respond to the needs of the trade, for already in 2002 about fifty per cent of containers carried by sea were carried door‐to‐door.”42
38 Ibid: 53 39 Berlingieri, F., Multimodal Aspects of the Rotterdam Rules, Page 2 40 Berlingieri, F., A Comparative Analysis of The Hague‐Visby Rules, The Hamburg Rules And The Rotterdam Rules, Page 53 41 Berlingieri, F., Multimodal Aspects of the Rotterdam Rules, Page 2 42 Berlingieri, F., A Comparative Analysis of The Hague‐Visby Rules, The Hamburg Rules And The Rotterdam Rules, Page 53 11 In order to determine whether the Rotterdam Rules generate an equitable distribution of ‘obligations and liabilities’ it is first necessary to see how the parties are defined, and in turn what rights the respective parties are afforded in light of the Conventions’ provision for door‐to‐door contracts:
ROTTERDAM RULES Article 1. Definitions ...... 6. (a) “Performing party” means a person other than the carrier that performs or undertakes to perform any of the carrier’s obligations under a contract of carriage with respect to the receipt, loading, handling, stowage, carriage, care, unloading or delivery of the goods, to the extent that such person acts, either directly or indirectly, at the carrier’s request or under the carrier’s supervision or control. (b) “Performing party” does not include any person that is retained, directly or indirectly, by a shipper, by a documentary shipper, by the controlling party or by the consignee instead of by the carrier.
7. “Maritime performing party” means a performing party to the extent that it 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 area.
Article 12 Period of responsibility of the carrier 1. The period of responsibility of the carrier for the goods under this Convention begins when the carrier or a performing party receives the goods for carriage and ends when the goods are delivered.
Article 18 Liability of the carrier for other persons The carrier is liable for the breach of its obligations under this Convention caused by the acts or omissions of: (a) Any performing party; (b) The master or crew of the ship; (c) Employees of the carrier or a performing party; or (d) Any other person that performs or undertakes to perform any of the carrier’s obligations under the contract of carriage, to the extent that the person acts, either directly or indirectly, at the carrier’s request or under the carrier’s supervision or control.
The concept of a ‘performing party’ is introduced, a subspecies of which is a ‘maritime performing party’. Whilst both a performing party and a maritime performing party can perform or undertake to perform any of the carrier’s obligations “with respect to the receipt, loading, handling, stowage, carriage, care, unloading or delivery of the goods,”43 a maritime performing party does so exclusively within a port area.44 As eluded to earlier, Article 12 extends the period of liability to make provision for door‐to‐door contracts, whilst Article 18 makes the carrier vicariously liable for acts (or omissions) that presumably make the
43 Rotterdam Rules: Article 1.6 44 Rotterdam Rules: Article 1.7 12 completion of the said door‐to‐door contracts possible, namely “the acts of its employees, agents and subcontractors.”45
Turning now to the type of liability imposed by the respective maritime liability resumes, and the theoretical impact from the changes proposed in the Rotterdam Rules:
HAMBURG RULES ROTTERDAM RULES Article 10. Article 19. Liability of the carrier and actual carrier Liability of maritime performing parties 1. Where the performance of the carriage or 1. A maritime performing party is subject to the part thereof has been entrusted to an actual obligations and liabilities imposed on the carrier, whether or not in pursuance of a liberty carrier under this Convention and is entitled to under the contract of carriage by sea to do so, the carrier’s defences and limits of liability as the carrier nevertheless remains responsible for provided for in this Convention if: the entire carriage according to the provisions (a) The maritime performing party received the of this Convention. The carrier is responsible, in goods for carriage in a Contracting State, or relation to the carriage performed by the delivered them in a Contracting State, or actual carrier, for the acts and omissions of the performed its activities with respect to the actual carrier and of his servants and agents goods in a port in a Contracting State; and acting within the scope of their employment. (b) The occurrence that caused the loss, damage or delay took place: (i) during the 2. All the provisions of this Convention period between the arrival of the goods at the governing the responsibility of the carrier also port of loading of the ship and their departure apply to the responsibility of the actual carrier from the port of discharge from the ship; (ii) for the carriage performed by him. The while the maritime performing party had provisions of paragraphs 2 and 3 of article 7 custody of the goods; or (iii) at any other time and of paragraph 2 of article 8 apply if an to the extent that it was participating in the action is brought against a servant or agent of performance of any of the activities the actual carrier. contemplated by the contract of carriage.
3. Any special agreement under which the 2. If the carrier agrees to assume obligations carrier assumes obligations not imposed by this other than those imposed on the carrier under Convention or waives rights conferred by this this Convention, or agrees that the limits of its Convention affects the actual carrier only if liability are higher than the limits specified agreed to by him expressly and in writing. under this Convention, a maritime performing Whether or not the actual carrier has so party is not bound by this agreement unless it agreed, the carrier nevertheless remains bound expressly agrees to accept such obligations or by the obligations or waivers resulting from such higher limits. such special agreement. 3. A maritime performing party is liable for the 4. Where and to the extent that both the breach of its obligations under this Convention carrier and the actual carrier are liable, their caused by the acts or omissions of any person liability is joint and several. to which it has entrusted the performance of any of the carrier’s obligations under the 5. The aggregate of the amounts recoverable contract of carriage under the conditions set from the carrier, the actual carrier and their out in paragraph 1 of this article. servants and agents shall not exceed the limits of liability provided for in this Convention. 4. Nothing in this Convention imposes liability on the master or crew of the ship or on an 6. Nothing in this article shall prejudice any employee of the carrier or of a maritime right of recourse as between the carrier and performing party. the actual carrier. Article 20
45 Guzmán, J. V. et al., The Rotterdam Rules ‐ A Latin‐American Response to the “Declaration of Montevideo”, Page 7, 27 October, 2010, Buenos Aires 13 Joint and several liability 1. If the carrier and one or more maritime performing parties are liable for the loss of, damage to, or delay in delivery of the goods, their liability is joint and several but only up to the limits provided for under this Convention.
2. Without prejudice to article 61, the aggregate liability of all such persons shall not exceed the overall limits of liability under this Convention.
The Hamburg Rules embody the protection often called “Himalaya protection”46, named after the ship involved in an English case in which House of Lords “acknowledged that if the contract of carriage contained an agreement that gave exemption for the benefit the carrier’s employees, it was effective to protect the employees.”47 Moreover, the Hamburg Rules were the first liability regime to regulate the performance of the ‘actual carrier’ or subcontractor. Providing that all “provisions of the Convention (Hamburg Rules) governing the responsibility of the carrier also apply to the responsibility of the actual carrier for the carriage performed by him.” 48
Similarly the Rotterdam Rules impose ‘joint and several’ liability upon subcontractors for damage, loss or late delivery of goods to occur while in their period of responsibility49, substituting ‘actual carrier’ for ‘maritime performing party’.50 A subtle yet important difference that extends the application of the liability regime to “other actors in the transport chain, such as ports, stevedores, ship agents, warehouse operators in ports and freight forwarders (when handling goods in the port area).” 51
This may be perceived as an encumbrance upon the ‘other actors’ by inhibiting their present freedom of contract to mitigate liability to suit at the hands of the shipper or consignee. However, “nowadays in many jurisdictions such freedom of contract is considerably restricted and the protection of the Convention for matters such as limitation of liability and time for suit may be greater than that they might obtain otherwise.” 52 What is more, ‘maritime performing parties’ can also avail themselves of the defenses available to carriers under the Convention. Whilst from a pro‐ Convention source, a useful summary of the advantages to extending the application
46 Fujita, T., Performing Parties and Himalaya Protection, Colloquium on the Rotterdam Rules, Page 4, 21 September 2009 47 Ibid: Footnote 6 ‐ Adler v Dickson (The Himalaya), [1954] 2 Lloyd's Rep 267, [1955] 1 QB 158 [1] 48 Berlingieri, F., A Comparative Analysis of The Hague‐Visby Rules, The Hamburg Rules And The Rotterdam Rules, Pages 45 and 46 49 Guzmán, J. V. et al., The Rotterdam Rules ‐ A Latin‐American Response to the “Declaration of Montevideo”, Page 7, 27 October, 2010, Buenos Aires 50 Berlingieri, F., A Comparative Analysis of The Hague‐Visby Rules, The Hamburg Rules And The Rotterdam Rules, Pages 45 and 46 51 Guzmán, J. V. et al., The Rotterdam Rules ‐ A Latin‐American Response to the “Declaration of Montevideo”, Page 7, 27 October, 2010, Buenos Aires 52 Berlingieri, F., A Comparative Analysis of The Hague‐Visby Rules, The Hamburg Rules And The Rotterdam Rules, Pages 58 and 59 14 of the Rotterdam Rules to all persons providing services ancillary to carriage by sea53 is that it ensures uniformity and certainty in an area presently left to national laws and freedom of contract, the limitations of both may vary from port to port.54
Because the Rotterdam Rules encroach upon territory that may already be regulated it is necessary to outline the hierarchy should a conflict arise:
ROTTERDAM RULES Article 26. Carriage preceding or subsequent to sea carriage When loss of or damage to goods, or an event or circumstance causing a delay in their delivery, occurs during the carrier’s period of responsibility but solely before their loading onto the ship or solely after their discharge from the ship, the provisions of this Convention do not prevail over those provisions of another international instrument that, at the time of such loss, damage or event or circumstance causing delay: (a) Pursuant to the provisions of such international instrument would have applied to all or any of the carrier’s activities if the shipper had made a separate and direct contract with the carrier in respect of the particular stage of carriage where the loss of, or damage to goods, or an event or circumstance causing delay in their delivery occurred; (b) Specifically provide for the carrier’s liability, limitation of liability, or time for suit; and (c) Cannot be departed from by contract either at all or to the detriment of the shipper under that instrument.
Before analyzing the operation of the ‘conflict provisions’ it is important to note the international instruments governing carriage of goods by air, road, rail, and inland waterways, namely, the:
• Convention for the Unification of Certain Rules for the International Carriage by air, 1999 (“Montreal Convention” or “Air Convention”); • Convention on the Contract for International Carriage of Goods by Road, 1956, as amended by the 1978 Protocol (“CMR” or “Road Convention”); • Convention concerning International Carriage by Rail (“COTIF” or “Rail I Convention”) of 9 May 1980 in the version of the Protocol of Modification of 3 June 1999 to its Appendix B, containing Uniform Rules concerning the Contract of International Carriage of Goods by Rail (“CIM” or “Rail II Convention”); and • Budapest Convention on the Contract for the Carriage of Goods by Inland Waterway, 2000 (“CMNI or Inland Waterway Convention”).
Prima facie the words ‘do not prevail’55 provide that the provisions of the above conventions apply if, and only to the extent, the provisions of the Rotterdam Rules are in conflict with them.56 However the actual operation of the provision is more complicated.
Article 26 outlines three conditions for its operation:
53 Exclusively within a port area in a Contracting State 54 Berlingieri, F., A Comparative Analysis of The Hague‐Visby Rules, The Hamburg Rules And The Rotterdam Rules, Pages 58 and 59 55 Rotterdam Rules: Article 26 56 Berlingieri, F., Multimodal Aspects of the Rotterdam Rules, Page 4 15
1. “When loss of or damage to goods, or an event or circumstance causing a delay in their delivery, occurs… solely before their loading onto the ship or solely after their discharge from the ship”
Arguably, to identify the timing of the event occasioning loss or damage is difficult, if not impossible, especially in the container trade where the loss or damage is often concealed within the container.57
ROTTERDAM RULES Article 12 Period of responsibility of the carrier 1. The period of responsibility of the carrier for the goods under this Convention begins when the carrier or a performing party receives the goods for carriage and ends when the goods are delivered.
Article 17 Basis of liability 1. The carrier is liable for loss of or damage to the goods, as well as for delay in delivery, if the claimant proves that the loss, damage, or delay, or the event or circumstance that caused or contributed to it took place during the period of the carrier’s responsibility as defined in chapter 4.
The combination of Article 12(1) and Article 17(1) provide a ‘general rule’ whereby the shipper only has the burden of proving that the ‘event’ occurred during the period of the carrier’s responsibility, which begins when the goods are received and ends when goods are delivered. “Article 26 is, therefore, an exception to such general rule, since the burden of proving that the conditions for its application have materialized lies on the party who invokes its application.”58 Such burden turning upon the evidence available to establish the timing of the ‘event’, which we have already considered to be very difficult if not insurmountable, save for the use of routine inspections at every juncture the goods change hands during the period of the carrier’s responsibility. Conceivably to implement such a system would be expensive, and impractical bordering upon nonsensical.
2. “… such international instrument would have applied to all or any of the carrier’s activities if the shipper had made a separate and direct contract with the carrier in respect of the particular stage of carriage where the loss of, or damage to goods, or an event or circumstance causing delay in their delivery occurred;”
Keeping in mind the conflict provisions of the Rotterdam Rules are only subservient to other international instruments in the event of a conflict and the period of application is exclusively to the port area, the incidence of conflict is very limited. For example in the case of carriage by road or rail in Europe the other international instruments applicable are the Road Convention, Rail I Convention, and Rail II Convention. However since these instruments only apply to international transport, “the Rotterdam Rules apply in full to carriage by road or rail within the port area and
57 Ibid: 6 58 Ibid: 6 16 to national carriage from the port area to a final destination outside such area.”59
3. “… the carrier’s liability, limitation of liability, or time for suit… Cannot be departed from by contract either at all or to the detriment of the shipper under that instrument.”
We have established that the incidence whereupon the Rotterdam Rules yield to another instrument is small, made smaller still by limiting the application of other provisions that provide for the carrier’s liability, namely, liability, limitation of liability and time of suit. Therefore, the Rotterdam Rules apply without exception to matters other than carrier’s liability, including:
• “Article 3 ‐ Form requirements, • Article 7 ‐ Application to certain parties, • Article 8 ‐ Use and effect of electronic transport records, • Article 9 ‐ Procedures for use of negotiable electronic transport records, • Article 10 ‐ Replacement of negotiable transport document or negotiable electronic transport record, • Article 11 ‐ Carriage and delivery of the goods, • Article 13 ‐ Specific obligations, • Article 14, ‐ Specific obligations applicable to the voyage by sea, and • Article 15 ‐ Goods that may become a danger.”60
Additionally the Rotterdam Rules apply to the other activities performed in the port area such as transportation and handling of the goods, watching and storage that is not presently governed by any international convention.61
By virtue that the loss, damage or delay must occur solely during a leg other than the sea leg cures many of the potential conflicts purely because the carriage is only national. However this alone is not sufficient to avoid all potential conflicts with the other international conventions:62
ROTTERDAM RULES Article 82. International conventions governing the carriage of goods by other modes of transport Nothing in this Convention affects the application of any of the following international conventions in force at the time this Convention enters into force, including any future amendment to such conventions, that regulate the liability of the carrier for loss of or damage to the goods: (a) Any convention governing the carriage of goods by air to the extent that such convention according to its provisions applies to any part of the contract of carriage; (b) Any convention governing the carriage of goods by road to the extent that such convention according to its provisions applies to the carriage of goods that remain loaded on a road cargo vehicle carried on board a ship;
59 Berlingieri, F., A Comparative Analysis of The Hague‐Visby Rules, The Hamburg Rules And The Rotterdam Rules, Page 54 60 Berlingieri, F., A Comparative Analysis of The Hague‐Visby Rules, The Hamburg Rules And The Rotterdam Rules, Page 54 61 Ibid 62 Ibid 17 (c) Any convention governing the carriage of goods by rail to the extent that such convention according to its provisions applies to carriage of goods by sea as a supplement to the carriage by rail; or (d) Any convention governing the carriage of goods by inland waterways to the extent that such convention according to its provisions applies to a carriage of goods without trans‐ shipment both by inland waterways and sea.
Article 82 makes a bold opening, stating that nothing in the Rotterdam Rules affects the application of any international convention regulating carriage of goods by air, road, rail, or inland waterway. However, having already explored Article 26 and its operation, we now know that other international conventions have a very narrow application in the realm of the Rotterdam Rules, diminishing yet not eliminating the incidence of conflict. We will now explore the provision for such anomalies, addressing each mode of transport in turn:
82 “(a) Any convention governing the carriage of goods by air to the extent that such convention according to its provisions applies to any part of the contract of carriage;”
Thus providing a blanket provision that the Rotterdam Rules shall not prevail over the Air Convention, including any future amendment, that applies to any part of the contract of carriage.
The only discrepancy to have surfaced concerns the limit of liability. The Rotterdam Rules provides for 3 Special Drawing Rights (“SDRs”) per kilogram or 875 SDRs per package or other shipping unit. Contrarily the Air Convention makes provides for 17 SDRs per kilogram. A package weighing 50 kilograms equates to 875 SDRs under the Rotterdam Rules, whereas the Air Convention equates to 850 SDRs. However the Air Convention is comparatively higher for packages weighing over 51.7 kilograms, arguably not a weight frequently carried by air, with the equilibrium point being 51.47 kilograms where both conventions equate to 875 SDRs. 63
82 “(b) Any convention governing the carriage of goods by road to the extent that such convention according to its provisions applies to the carriage of goods that remain loaded on a road cargo vehicle carried on board a ship;”
Where Article 82(a) has a general scope, Article 82(b) has a very limited scope, tailored to the specific situation where the goods remain loaded on a road cargo vehicle carried on board a ship, a situation also envisaged in the Road Convention: 64
Road Convention Article 2 1. Where the vehicle containing the goods is carried over part of the journey by sea, rail, inland waterways or air, and, except where the provisions of article 14 are applicable, the goods are not unloaded from the vehicle, this Convention shall nevertheless apply to the whole of the carriage. Provided that to the extent that it is proved that any loss, damage or delay in delivery of the goods which occurs during the carriage by the other means of transport was not caused by an act or omission of the carrier by road, but by some event
63 Ibid: 56 64 Ibid: 55 18 which could only have occurred in the course of and by reason of the carriage by that other means of transport, the liability of the carrier by road shall be determined not by this Convention but in the manner in which the liability of the carrier by the other means of transport would have been determined if a contract for the carriage of the goods alone had been made by the sender with the carrier by the other means of transport in accordance with the conditions prescribed by law for the carriage of goods by that means of transport. If, however, there are no such prescribed conditions, the liability of the carrier by road shall be determined by this Convention.
The construction of Article 82(b) thus conforms with the Road Convention, which shall apply to the whole journey where the vehicle containing the goods is carried over part of the journey by sea, rail, inland waterways or air, provided the goods are not unloaded from the vehicle.
Again a discrepancy lies in the calculation of limits of liability, with the Road Convention applying a rate of 8.33 SDRs per kilogram. The equilibrium point lies at 105.04 kilograms, with the Road Convention producing comparatively lower SDRs if the weight is less. For example, a package weighing 50 kilograms equates to 416.50 SDRs under the Road Convention, whereas the Rotterdam Rules equates to 875 SDRs. 65
The other potential conflict concerns defective packaging:
ROAD CONVENTION ROTTERDAM CONVENTION Article 10 Article 30 The sender shall be liable to the carrier for Basis of shipper’s liability to the carrier damage to persons, equipment or other goods, 1. The shipper is liable for loss or damage and for any expenses due to defective packing of sustained by the carrier if the carrier proves that the goods, unless the defect was apparent or such loss or damage was caused by a breach of known to the carrier at the time when he took the shipper’s obligations under this Convention. over the goods and he made no reservations concerning it. 2. Except in respect of loss or damage caused by a breach by the shipper of its obligations pursuant to articles 31, paragraph 2, and 32, the shipper is relieved of all or part of its liability if the cause or one of the causes of the loss or damage is not attributable to its fault or to the fault of any person referred to in article 34.
3. When the shipper is relieved of part of its liability pursuant to this article, the shipper is liable only for that part of the loss or damage that is attributable to its fault or to the fault of any person referred to in article 34.
Article 34 Liability of the shipper for other persons The shipper is liable for the breach of its obligations under this Convention caused by the acts or omissions of any person, including employees, agents and subcontractors, to which it has entrusted the performance of any of its obligations, but the shipper is not liable for acts
65 Ibid: 55 19 or omissions of the carrier or a performing party acting on behalf of the carrier, to which the shipper has entrusted the performance of its obligations.
Arguably Article 34 of the Rotterdam Rules can be interpreted in such a way bringing it in line with the provision made in Article 10 of the Road Convention. That is, if the carrier knew or ‘ought’ to have known of the defect, the shipper is absolved of liability. Nevertheless it appears any discrepancy is inconspicuous.66
82 “(c) Any convention governing the carriage of goods by rail to the extent that such convention according to its provisions applies to carriage of goods by sea as a supplement to the carriage by rail; or”
Article 82(c) lies somewhere between the general scope of Article 82(a) and the narrow specificity of Article 82(b). Providing that Rail Conventions shall prevail if the sea leg is deemed supplementary to the carriage by rail. For example, “in a contract of carriage by rail from Paris to London the carriage of the railroad cargo vehicle on a ship across the Channel is a “supplement to the carriage by rail” but in a door‐to‐ door contract from Singapore to Zurich via Genoa the carriage by sea from Singapore to Genoa can hardly be qualified as a “supplement” to the carriage by rail from Genoa to Zurich.”67 Distance may be determining factor in such qualification.68
In so far as limit of liability is concerned the same discrepancies apply as discussed with the Road Convention, because the same SDR to kilogram rate applies to rail carriage. Similarly the obligations of the ‘sender’ mirror that of Article 10 of the Road Convention, and so, the same comments also apply. 69
82 “(d) Any convention governing the carriage of goods by inland waterways to the extent that such convention according to its provisions applies to a carriage of goods without trans‐shipment both by inland waterways and sea.”
Installation of ‘trans‐shipment’ as the factor to appease conflict relates to the Budapest Convention, which confers importance upon trans‐shipment, together with the transport document that supports such carriage, and the distance of carriage: 70
BUDAPEST CONVENTION Article 2 Scope of application … … … … … … 2. This Convention is applicable if the purpose of the contract of carriage is the carriage of goods, without transshipment, both on inland waterways and in waters to which maritime regulations apply, under the conditions set out in paragraph 1, unless:
66 Ibid: 54 67 Ibid: 55 68 Ibid: 55 69 Ibid: 55 70 Ibid: 56 20 (a) A marine bill of lading has been issued in accordance with the maritime law applicable, or (b) The distance to be travelled in waters to which maritime regulations apply is the greater.
Accordingly, the Budapest Convention will apply unless a marine bill of lading is issued, or the distance travelled invokes its application. Given that a transport document equivalent to a marine bill of lading is made mandatory under the Rotterdam Rules, and the distance travelled by sea will almost always be greater than that by inland waterways, the possibility for conflict is minuscule.71
It is worthy to note that the Rotterdam Rules do not list the international instruments considered in the construction of the conflict provisions, yet from the discussions above it is relatively easy to identify such instruments. It may have served to increase the transparency of the provisions had the instruments been listed, however it is also easy to understand why the instruments were not listed. For instance, the U.N. Convention on the Liability of Operators of Transport Terminal in International Trade 1991, not yet in force, is still catered for by the generality of the provisions. Thus minimizing the need for legislative amendments to account for amendments to those instruments considered in the creation of the Convention and those instruments still to come into force.72
A further and final consideration in this chapter is the extension of the conflict provisions to national laws. However extending the application of national laws, to activities performed within the port areas, could potentially allow contracting states to “enact new laws governing carriage by modes of transport other than carriage by sea, thereby unilaterally preventing the application of the Rotterdam Rules.”73 Thus swiftly quashing the notion by virtue of the Pandora’s box of conflict that could be opened.74
71 Ibid: 56 72 Berlingieri, F., Multimodal Aspects of the Rotterdam Rules, Page 4 73 Ibid: 5 74 Ibid: 5 21
V. Critical acclaim of the Rotterdam Rules
The European Shippers’ Council (“the ESC”) “takes issue with many of the features of the new regime… and fears that it could put some shippers in a worse position than that of the pre‐1924 liability environment, before introduction of the original Hague Rules.”75
The ESC’s general issues with the Rotterdam Rules are summarized as follows:
I. “conflict with other conventions II. present unequal obligations and liabilities between shippers and carriers III. present a risk that carriers’ may reduce significantly their own limits of liability and obligations under so‐called ‘volume contracts IV. make proving fault harder for the shipper V. make it increasingly difficult for shippers to successfully make a claim for damages VI. make shipper obligations far more onerous VII. may deter shippers from integrating short‐sea shipping into their door‐to‐ door logistics VIII. due to obligations and limits of liability being worse than under individual modal conventions”76
Specifically, the ESC notes that the “history of multimodal transport is littered with failed attempts at legislation. In the early 1970s, the proposed TCM Convention/Tokyo Rules failed to reach an outcome. In 1980 the UN made another attempt with the UN Convention on Multimodal Transport but nearly 30 years later it is no nearer entry into force than at the outset. The Rotterdam Rules could follow the same path.”77 In the same vein ESC also suggests that conflicts with other international conventions arising from ratification may result in industry participants substituting short‐sea services for alternative means to avoid increased obligations and responsibilities imposed by the Rotterdam Rules.78
At the heart of ESC’s concerns are volume contracts. Which allegedly provide inadequate safeguards, thus availing carriers the opportunity “to derogate from virtually all the provisions of the Rules to the potential detriment of the shipper.” 79 Seemingly unraveling over a century of legal evolution whereby mandatory rules on liability have been gradually introduced. Leading to ESC’s conclusion regarding the Rotterdam Rules that there “is nothing in the final text which justifies a departure
75 European Shippers’ Council, View of the European Shippers’ Council on the Convention on Contracts for the International Carrying of Goods Wholly or Partly by Sea also known as the ‘Rotterdam Rules’, Page 1, March 2009 76 Ibid 77 Ibid: 6 78 Ibid: 2 79 Ibid: 6 22 from the status quo of Hague‐Visby Rules for the majority of shippers who represent the preponderant trade interest of the majority of European states.”80
The National Industrial Transportation League (“the League”) addresses the issues raised against the Rotterdam Rules in ESC’s published view, chastising their advocacy of a European regional convention that would apply to multimodal carriage in its stead.81 In stark contrast to ESC’s position the League82 supports the adoption and ratification of the Rotterdam Rules both in the United States and globally, proffering that the Convention “takes account of present‐day shipping arrangements and commercial practices involving sea carriage, and would replace the decades old patchwork of liability regimes currently applied by trading nations.”83 Moreover, proclaiming that to proceed toward a regional convention, as suggested by the ESC, would only “perpetuate the application of outdated and inconsistent cargo liability rules around the world.”84
Before reviewing the League’s response further it appears pertinent to mention that the League “served as an industry advisor to the United States delegation involved in the negotiation of the Rotterdam Rules. In this regard, the League actively participated in all of the negotiating sessions before UNCITRAL between the Spring of 2002 and the Spring of 2008, which ultimately led to the adoption of the draft Convention by the UN General Assembly.”85 Which goes to say that; either the League may be biased toward the Convention because it played a hand in its creation; it may have a better understanding of the Convention because it played a hand in its creation; or a combination of both. The following passage leaves no shred of doubt over the League’s allegiance, putting us on alert for traces of ‘salesmanship’:
“The League believes that the Rotterdam Rules carefully balance the affected maritime and other interests and reflect a package of reforms that will result in significant benefits for shippers, carriers, and other stakeholders, when viewed as a whole. The ESC, in contrast, did not engage in the complex and delicate treaty negotiations until the very end of the process and now mistakenly evaluates the new Convention in a piecemeal fashion. Not having participated in the negotiation of the treaty, the ESC also misunderstands many of the provisions of the new Convention.”86
Prior to the conception of the Convention the League “was actively engaged in both
80 Ibid: 6 81 National Industrial Transportation League, Response of the National Industrial Transportation League to the European Shippers’ Council Position Paper on the Rotterdam Rules, Page 1 82 Ibid: 2 – “The majority of the League’s members are shippers and receivers that own or control the goods being transported and delivered. NITL’s shipper members span a multitude of industries, such as retail, automotive, petroleum, chemicals, paper, computer, and electronics, among others, and use all modes of transportation for the shipment of raw materials and finished products. Many NITL members are importers and exporters that ship their products around the globe using multimodal transportation arrangements that involve transportation by sea.” 83 Ibid 84 Ibid 85 Ibid 86 Ibid: 2 23 domestic and international efforts to reform the U.S. Carriage of Goods By Sea Act (“COGSA”),”87 which is based on the 1924 Hague Rules and was adopted in the United States as domestic legislation in 1936.88 However, once the idea of a new international convention became a realistic possibility the League quickly moved in support, convinced that a multi‐national approach applying a uniform set of rules globally was a better alternative.89 In pursuit of this initiative the League sought to forge some common ground between its members, largely shippers and receivers, and those represented by the World Shipping Council (“WSC”) whom are largely ocean liner carriers. Note that, historical differences between shippers and carriers have hampered previous attempts “to achieve broad acceptance of any of the existing maritime liability treaties currently in effect (i.e. Hague Rules, Hague‐Visby Rules, Hamburg Rules).”90 Both parties motivated by the shared view that “the existing patchwork of cargo liability rules applied around the world resulted in inefficiencies, inconsistencies, unpredictability, and increased litigation expenses”91 struck an agreement in September 2001 setting forth what is described as a ‘package of compromises’92 intended to streamline the creation of an international instrument.93
Contrary to ESC’s contention that “shippers would be better served by the status quo and that the new Convention would place shippers in a worse position than that of the pre‐1924 liability environment”94 the League lists the following benefits stemming from the Rotterdam Rules:
• “Eliminate the nautical fault defense, which currently allows carriers to escape liability based on the negligent navigation or management of the vessel. • Expand the carrier’s due diligence obligation to apply during the entire voyage by sea, not just at the beginning of the voyage. • Increase the liability protection afforded to shippers to 875 SDRs per package or 3 SDRs per kilogram, limits which are significantly higher than those provided under any existing maritime cargo liability regimes, including the Hague‐Visby and Hamburg Rules and U.S. COGSA. • Eliminate limits of liability if the contracting carrier or a maritime performing party engages in reckless or intentional acts. • Include liability protection for shippers arising from economic losses incurred as a result of deliveries delayed beyond an agreed upon time in the amount of two and one‐half times freight. • Allow shippers and carriers to contract for customized liability arrangements that reflect the shipper’s individual business requirements in volume contracts, but require parties that choose to derogate from the Convention to adhere to procedures that protect companies with smaller volumes of cargo.
87 Ibid: 3 88 Ibid: 3 89 Ibid: 3 90 Ibid: 3 91 Ibid: 4 92 Ibid: 4 93 Ibid: 4 94 Ibid: 6 24 The rules prohibit derogation from certain key carrier and shipper obligations (e.g. carrier’s seaworthiness obligation and shipper’s dangerous goods obligations). • Permit countries to opt‐in to apply new rules governing jurisdiction and arbitration which would allow the claimant to select the place of adjudication of cargo claims in certain cases, based on a list of potential locations which bear a significant relationship to the involved contract of carriage. This would limit the application of jurisdiction clauses selected by carriers in their bills of lading. • Extend the statute of limitations applicable to civil claims from one to two years. • Apply to door‐to‐door (i.e. inland point‐to‐inland point) shipments. • Recognize the increasing use of electronic commerce for shipping transactions (e.g. bills of lading and transport documents) and sets forth new rules governing their use.”95
In addressing some of ESC’s specific concerns, the League generally adopts the view that the ESC demonstrates “a lack of understanding of the workings of the new Convention.” 96 The League rebuts the ESC’s contention that the door‐to‐door scope of the Rotterdam Rules will conflict with the Road and Rail Conventions. Thus confirming our understanding of the express carve‐out provided, for the Road and Rail Conventions, in the conflict provisions. Whilst the ESC do raise a valid point in asserting that difficulties may arise where it is unclear when the damage occurred. 97 The League correctly points out “this possibility exists today under the patchwork of maritime liability rules that exist under Hague‐Visby, Hamburg, and COGSA, among other national regimes.” 98
Similarly, the League rejects ESC’s assertion that shippers “may be discouraged from engaging in short‐sea shipping since such arrangements may be governed by the new Convention…”99 as opposed to the Road and Rail Conventions. Suggesting that such concern should be directed at the limited scope of the Road and Rail Conventions, further suggesting, “the economics of short‐sea shipping arrangements will be the primary factor in determining whether shippers engage in such practices.”100
The League concludes that, “the resulting Convention is not (and should not be) more favorable to either shippers or carriers but rather reflects a balance of the potentially competing interests.” 101 Additionally, and more poignant for our purposes, the League confirms its opposition to the development of a European multimodal convention. Stating that it would be “a giant step backwards, and would undermine the international community’s attempt to update cargo liability rules applicable to sea carriage and increase efficiencies and harmony through the widespread adoption
95 Ibid: 5 ‐ 6 96 Ibid: 6 ‐ 7 97 Ibid: 6 ‐ 7 98 Ibid: 6 ‐ 7 99 Ibid: 6 ‐ 7 100 Ibid: 6 ‐ 7 101 Ibid: 15 ‐ 16 25 of a uniform regime.”102 Proclaiming that the Rotterdam Rules provide the opportunity to achieve these important objectives.103
The European Association for Forwarding, Transport, Logistic and Custom Services (“CLECAT”) acknowledges the intermodal nature of containerization, which necessitates a convention that encompasses modern logistics. However CLECAT is largely critical of the attempt made by the Rotterdam Rules to do so, labeling the Convention as “complex and, to some extent, unmanageable.” 104 CLECAT fails to see what benefits of the Convention when compared with the old liability schemes of the Hague rules, the Hague‐Visby rules or the Hamburg rules. Moreover, CLECAT adopted the view that uncertainty created by the added complexity, both in legal and judicial terms, “will end up adding a new liability regime side by side with existing ones, thus increasing confusion, rather than mitigating it.”105 Furthermore, such complexity and uncertainty may lead to a variety of interpretations from jurisdiction to jurisdiction, which contradicts several key objectives of the Convention, namely, harmonization and simplification.106
CLECAT’s specific concerns, which understandably gravitate toward multimodal transport, are as follows:
• “The RR are far too complex (much longer and richer in exceptions than any other existing transport convention) to be readily understandable for users and third parties, including brokers and insurers. Our perception is that insurance and protection will become more expensive, if these rules are adopted;
• The limitations to liability seem to work in one direction only, without offering shippers or freight forwarders any mitigation;
• Freight forwarders are frequently engaged in various capacities in the seaports. The RR now introduce the new concept of the ‘maritime performing party’ (Art. 1.7 and Art. 19), which could apply to a forwarder who simply turns up at the port to collect a container and leave. From the time it enters the port area till the time it leaves, even though it has nothing to do with the maritime leg, it would become a maritime performing party, caught by the force of RR provisions, unless CMR (Convention on the Contract for the International Carriage of Goods by Road applies, i.e. the box comes over on wheels. This point alone is able to create an unprecedented number of litigations;
• Multipurpose cargo terminals engaged as distribution centres in logistics operations would strongly oppose a sort of maritime law injection into their
102 Ibid: 15 ‐ 16 103 Ibid: 15 ‐ 16 104 European Association for Forwarding, Transport, Logistic and Custom Services, RE: 2008 ‐ United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea ‐ the "Rotterdam Rules", Page 1, Position Paper, 11 May 2009, Brussels 105 Ibid 106 Ibid 26 business, which presumably will be governed by more sophisticated liability regimes that may be incompatible with the rules;
• We also expect that in those states, where stevedoring and warehousing enterprises are owned by the governments, the RR will not be ratified without exceptions, in order to avoid an escalation of liability insurance premiums;
• The Convention is only a partial network system whereas freight forwarders always sought a full network system. This means that only mandatory conventions override (such as CMR), but private conditions do not (If for example goods were shipped on wheels from Germany to the UK, CMR would apply, but if the goods were in a box and shipped off wheels from Calais port to the UK, the RR would apply from Calais port edge to the UK and CMR from Germany to Calais port edge. What operators would do in this situation now is sub‐contract on CMR privately, so CMR covers door to door, but the RR would override the off wheels section as it is not a mandatory applicable convention. The result is that operators would be prevented from actually achieving back to back cover.) Private conditions are however very frequent and have served the industry without complaint for decades. Eventually the confusion created by conflicting conventions and/or private contractual rules may escalate into mind‐fraying litigations in conflicting jurisdictions;”107
Picking up upon CLECAT’s concern regarding the operation of the Convention’s conflict provisions, namely Article 26 and Article 82. Article 82(b) provides that the Road Convention (CMR) shall apply to the whole journey where the vehicle containing the goods is carried over part of the journey by sea, provided the goods are not unloaded from the vehicle. Prima facie the provision for conflict appears very narrow, however this is the same situation envisaged in the Road Convention108, begging the question if CLECAT’s claim of deficiency levelled at the Rotterdam Rules is misdirected.
Furthermore, the notion of a full network system was briefly entertained in Chapter IV in consideration of extending the conflict provisions to national laws. The conclusion being that extending the application of national laws, to activities performed within the port areas, could give rise to a Pandora’s box of conflict. New laws could be enacted, unilaterally preventing the application of the Rotterdam Rules.109
In conclusion CLECAT suggests that future attempts in developing an acceptable transport convention should be mindful to be:
• “as simple and universal as possible, • with few and carefully weighed exceptions, • serving all parties in contract without interfering with third parties, and
107 Ibid: 2 108 Convention on the Contract for International Carriage of Goods by Road, 1956, as amended by the 1978 Protocol – Article 2 109 Berlingieri, F., Multimodal Aspects of the Rotterdam Rules, Page 5 27 • last but not least, be realistic in terms of liabilities and limitations that must be mirroring other parties’.”110
This rather idealistic conclusion borders upon being unrealistic. Further and finally, CLECAT contends that ratification of the Rotterdam Rules will “make the supply chain more complex and unwieldy and contribute to foster protectionism instead of free trade.”111
The International Chamber of Shipping (“ICS”) predicts that shipowners will incur a significant increase in the cost of cargo liability claims by virtue of certain provisions of the Convention, namely:
• “Loss of the right to the nautical fault defence; • Extension of the obligation to exercise due diligence to make the ship seaworthy; • Higher limits of liability;” 112
However, generally in support of the Rotterdam Rules, ICS outlines several provisions that balance the increased liability for shipowners:
• “As stated, the Convention modernises the liability regime for carriage of goods by sea and also, importantly, addresses the lacuna that presently exists for maritime carriage where there is also multimodal carriage and a sea leg, and regulates such carriage.
…
• The beneficial aspects of existing non‐maritime conventions which are known and well‐understood and applicable to EU Member States in particular, are retained. Specifically, the new Convention adheres to the concept of “network” liability whereby liability and the applicable limits of liability for loss and damage to the goods occurring before or after the sea‐leg will be determined by any unimodal Convention compulsorily applicable to the relevant mode of transport where the loss or damage occurs, e.g. CMR and COTIF.
• The Convention provides a much needed solution for the problem of how to deal with “concealed damage” during multimodal carriage by providing that where it is not known when the damage took place and on which mode of transport, the Convention will govern liability and limits of liability, etc.
...
110 Ibid: 3 111 Ibid: 3 112 International Chamber of Shipping, Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (the “Rotterdam Rules”), Page 3, Position Paper, 2009 28 • The Convention allows parties in the liner trade greater freedom of contract where this is appropriate while at the same time giving mandatory protection where needed. For example, it permits volume contracts in liner traffic to derogate from the Convention by contractual arrangement and according to certain strict conditions to ensure that all parties are adequately protected before embarking on terms outside of the Convention.
…
• The Convention provides for a much improved regime for deviation when compared with the Hague Visby Rules, in that where under a national law there is a deviation, the Convention will not deprive the shipowner of the right to defences and limitations;
• The Convention contains comprehensive and more systematic provisions on carrier and shipper liability and provides a balanced allocation of risk between these parties.” 113
ICS acknowledges that the Rotterdam Rules “seek to facilitate and regulate modern trade practices...”114 and represent “distinct improvements over existing regimes.”115 Identifying that having the said improvements encased in one international convention is an important factor in leading “shipowners to believe that this instrument is the most effective mechanism to govern international maritime carriage of goods and that it should be supported by all States in the interests of achieving international uniformity and certainty.”116
The ‘Declaration of Montevideo’ is a written response to the Rotterdam Rules, originally produced in Spanish. The Declaration alleges an overt Common Law influence in the Convention’s design and is largely critical of how it seeks to address multimodal transport, condemning its ratification. Notably, the Declaration contends that the Convention represents “… a step back of the rules and practices in multimodal transport, when excluding other means of transport when ocean carriage is not present: it only regulates the sea leg and linked segments (maritime plus).”117
In what is proclaimed to be a “more objective view”118, entitled ‘A Latin‐American Response to the “Declaration of Montevideo”’, it is suggested that multimodal transport operators, namely freight forwarders, and not ocean carriers that will bear the brunt of any change. Moreover a single convention with a comprehensive regulation of multimodal transport, might be desirable from a strictly legal perspective, it is unlikely that the international trade and transport community share the same view.119
113 Ibid: 3 ‐5 114 Ibid 115 Ibid: 5 116 Ibid: 5 117 Guzmán, J. V. et al., The Rotterdam Rules ‐ A Latin‐American Response to the “Declaration of Montevideo”, Page 5, 27 October, 2010, Buenos Aires 118 Ibid: 19 119 Ibid: 5 ‐6 29
Furthermore, whilst currently none of the international transport conventions fully regulate multimodal transport, arguably conflict shall arise with any convention that attempts to do so exclusively.120 It was evident from our analysis of the conflict provisions of the Rotterdam Rules that, by design, should the Rotterdam Rules come into force the incidence of conflict would be next to none. Be that as it may, it appears a cogent argument that:
“Each country shall analyze whether the ratification of the Rotterdam Rules would be in conflict with any agreement or domestic legislation governing the multimodal transport contract, and if so, whether it is appropriate that this regime is replaced, at least in part, by the new Convention. In such an analysis it is advisable to take into account that the multimodal transport contract is essentially international, and therefore it is desirable that an instrument of broad international scope and application regulates the subject.”121
Returning now to the polarized view expressed in the Declaration, it appears noteworthy that “60% of Latin American countries have not ratified any of the existing international conventions on the contract for the carriage of goods by sea (Hague Rules, Hague–Visby Rules, Hamburg Rules).”122 From this evidence it could be deduced that Latin‐America123 may not be the ideal torch bearer to lead the industry toward a truly international resume.
120 Ibid: 5 ‐6 121 Ibid: 5 ‐6 122 Ibid: 2 123 Ibid: 2, Footnote 5 ‐ According to the definition of the Dictionary of the Real Academia de la Lengua, "Latin American" is the name given to "all American countries colonized by Latin nations, namely Spain, Portugal or France." However, they are usually identified as "Latin" American countries where the Spanish or Portuguese are the official languages, or the languages spoken predominantly by the population. Following these guidelines, for the purposes of this document we have deemed as Latin Americans the following countries: Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Paraguay, Panama, Peru, Puerto Rico, Dominican Republic, Uruguay and Venezuela. 30
VI. Harmonization, unification, modernization, and liability
A review of the literature documenting the development of the Convention following its conception in 1996 clearly reflects the inclusion of liability is one of four objectives, namely harmonization, unification, modernization, and liability. There is a strong argument to suggest that the omission of any reference to liability as an objective in the Resolution or the preamble to the Convention was strategic with a view to making it more palatable. Nor was safety raised as a benefit to flow from the named objectives, proclaiming efficiency and contractual certainty as the main benefits to flow from such objectives. This omission, be it anomalistic or strategic, can be refuted on the basis that modernization adequately covers the scope of the Convention, which will inevitably touch upon aspects of liability. Be that as it may, for our purposes it serves to recognize all four objectives separately to best examine the dynamics affecting the ratification process.
As eluded in the Introduction we suggested that it is distinct possibility that the Convention heeds goals with cross‐purposes. A famous biblical verse provides that “No man can serve two masters…”124, which arguably carries weight in these circumstances. Moreover, from a lay perspective one could assume that harmonization and unification could be achieved without too much controversy, simply by transcribing the active provisions into one body of legislation and omitting inactive or outdated provisions. Similarly, modernization is ‘simply’ a task of mirroring the current practical operation of the modern day with legislation that supports and controls it accordingly. Leaving only the issue of liability, which is arguably the most contentious ‘master’ of the four.
Using our exploration of multimodality as a litmus test for the remainder of the Convention it could be said, without supporting or chastising the stance, the creators of the Rotterdam Rules went beyond their engagement in their attempts to modernize the legislation. Harking back to the initial sentiment regarding the publics’ petulance for the general reactivity of the industries regulators. It is a distinct possibility that regulators have misread or at least misguided a proactive approach toward the objective of liability, which was in fact indicated for the realm of modernization.
Via a press release, coinciding with the signing of the Rotterdam Rules, the International Chamber of Shipping Council; the European Community Shipowners’ Associations; the Baltic and International Maritime Council; and the World Shipping Council threw their weight behind the Convention, urging signatory states to “… ratify the convention soonest so as to ensure their early entry into force.”125 Predictably, promoting the unification, harmonization and modernization benefits on cargo liability at the international level. Interestingly, promoting rapid acclimation
124 New Testament: Matthew 6:24 125 International Chamber of Shipping et al., The Rotterdam Rules ‐ Wide Support by States at Signing Ceremony in Rotterdam, Page 3, 23 September 2009 31 as “… the only way to avoid divisive and contradictory national and regional legislation.”126 Appearing to adopt the view that, whilst the Rotterdam Rules may have deficiencies, global acceptance will outweigh such deficiencies. Seemingly, a view not shared by signatory states, save for Spain.
The industries apparent reluctance to ratify the Rotterdam Rules can be attributed to any number of factors. The International Federation of Freight Forwarders Associations (“FIATA”) identifies the Convention’s complexity as the main protagonist. Hampering the industry with increased transaction costs predicated upon misunderstandings and misinterpretations that also undermine any chance of successfully unifying the law. 127 Whilst FIATA concede there are some benefits to the Rotterdam Rules, further declaring such benefits can by achieved simply via “amendments of or Protocols to the Hague Rules, the Hague‐Visby Rules or the 1978 Hamburg Rules.”128
Interesting the International Chamber of Shipping categorically eliminates the industries desire to preserve the status quo as a factor, intimating that change is inevitable:
“There seems little doubt that, if the Rotterdam Rules are not ratified, the status quo of existing regimes will not remain because they do not meet the needs of today’s trading environment, the likelihood being, in particular, that the USA would enact its own domestic legislation. That would be regionalism, and would result in lack of uniformity and conflicts between liability regimes leading to legal uncertainty and legal and administrative costs incurred in navigating the various legal jurisdictions. International trade would inevitably suffer as result.
To all those involved in international trade, uniform international solutions are of vital importance and regionalism must be avoided. The Rotterdam Rules represent the only international solution. They provide a considerable number of valuable provisions to the advantage of international trade, which clearly outweigh the small number of less attractive provisions. Accordingly, the Rotterdam Rules should be supported, promoted and quickly ratified.”129
This overview appears to be reflected in the political arena with further pressure emanating from the incumbent ‘EU‐wide’ multimodal solution at the hands of the EU Commission. The inception of such a solution is likely to prevent EU Member States from ratifying the Rotterdam Rules, which will undoubtedly have a snowball affect upon other key states.
126 Ibid 127 International Federation of Freight Forwarders Associations, FIATA Position on the UN Convention on Contracts for the International Carriage of Goods wholly or partly by Sea (the “Rotterdam Rules”), Page 1, Doc. MTI/507 128 Ibid: 5 129 International Chamber of Shipping, Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (the “Rotterdam Rules”), Page 5, Position Paper, 2009 32 The ICS advocate resisting such developments, which are likely to foster conflicting, if not overlapping, regional rules. Suggesting the industry must lever off the unprecedented number of States “(representing shipping and shipper interests and all major trading nations), Industry representatives and academics” 130 whom participated in the creation of the Convention to see that it comes into effect. Concluding that “It is only by showing strong political support that the attempts to introduce conflicting and overlapping regional rules will be eliminated – an absolute priority for not only the international shipping industry but all interests and ultimately, for the consumer.”131
130 Ibid: 2 131 Ibid: 2 33
VII. Conclusion
The Rotterdam Rules, touted to revolutionize the system governing carriage by sea, may well have been served to adopt a revolutionary approach in presenting their solution. Just like if someone were buying a car they would want to see what makes the engine tick, so to a country contemplating signing or ratifying the Rotterdam Rules. With that said UNCITRAL might have generated goodwill in pointing out any pitfalls of the Convention.
For starters the preamble to the Convention itself could have adopted a more objective undertone including a reference to the word that shall not be uttered for fear of its negative connotations – liability. We are not saying UNCITRAL was wrong in advancing the ‘greater good’ spiel. We are saying the ‘greater good’ spiel may have been more effective had they drawn attention to any oil leak, describing the pink elephant in the room rather then hoping people will look past, or fail to see it.
Are signatories of the convention engaged in a “Mexican stand‐off”, unsure of the practical impact of ratification, eager to preserve the status quo? Alternatively, but to the same affect, are signatories reticent be to be among the first to ratify for fear of isolating themselves as a trading nation? Whichever the real reason stifling the coordination of the Conventions signatories, change to the status quo of the industry is a forgone conclusion with the US likely to implement its own regional plan, signaled back in 1993, likewise the EU with its own multimodal solution. Thus placing greater responsibility upon the shoulders of the Rotterdam Rules, which arguably represent the last attempt to obtain agreement upon an international regime.132
Does the Convention heed goals with cross‐purposes, undermining any amount of meticulous drafting, creative or otherwise? The difficulties presented by such a large task with numerous goals could very well be interpreted as heeding goals with cross‐ purposes. An interpretation merely amplified by an industry with a jaded regulatory history, highly averse to change.
Have regulators merely overreached? There are cogent arguments to suggest that the legislators were guilty of overreaching, stepping beyond the objectives of the initiative. However, particularly in relation to multimodal transport concerning ‘loss or damage to the goods before their loading onto the ship or after their discharge from the ship’, the Rotterdam Rules incorporated existing concepts and extended the carriers period of responsibility together with the protection mechanisms, as carriers currently seek to do by contract.133 Therefore, it could also be argued that such a step was, and is entirely necessary.
It is possible our stance has been colored by the persuasive and potentially subjective commentary in favor of the Rotterdam Rules, however it stands to reason that all interested parties partook, or at least were provided with the opportunity to
132 Ibid: 2 133 Beare, S., The Need for Change and the Preparatory Work of the CMI, Page 3, October 2010 34 partake, in the creation of the Convention. In view of the Conventions provision for multimodal transport we applaud its ingenuity and support the sentiment that failing to engage in the creation of the Convention only to later ‘play the devil’s advocate’ should be admonished.
In light of the problems faced by the Rotterdam Rules, ratification appears unlikely. Moreover, the hasty ratification called for by some sectors of the industry, impossible. Whilst ratification of the Rotterdam Rules may not have the necessary momentum to prevent the duality of resumes foreshadowed by both the EU and US, its impact may not fall far short of that intended by its creators. Granted it may not stand as a beacon for the evolution of the law regulating carriage by sea however, it should in our opinion, stand (at the very least) as a tool of guidance for current adjudication and future legislative attempts. Representative of both the direction envisaged by the UN, and the countries to have contributed to its creation.
35 VIII. References
Shipping Legislation134
• The Harter Act of the United States, 13 February 1893 (Harter Act)
• International Convention for the Unification of Certain Rules of Law relating to Bills of Lading, 25 August 1924 (Hague Rules)
• Carriage of Goods by Sea Act of the United States, 16 April 1936 (COGSA)
• The Hague Rules as Amended by the Brussels Protocol 1968 (Hague‐Visby Rules)
• III Draft Convention on Combined Transport, 1969 (Tokyo Rules)
• Convention on the Carriage of Goods by Sea, 1978 (Hamburg Rules)
• Convention on International Multimodal Transport of Goods, 24 May 1980
• Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, 2009 (Rotterdam Rules)
Other Legislation
• Convention on the Contract for International Carriage of Goods by Road, 1956, as amended by the 1978 Protocol (CMR)
• Convention concerning International Carriage by Rail, 9 May 1980 (COTIF)
• Convention on the Liability of Operators of Transport Terminal in International Trade, 1991
• Convention concerning International Carriage by Rail (above) in the version of the Protocol of Modification of 3 June 1999 to its Appendix B, containing Uniform Rules concerning the Contract of International Carriage of Goods by Rail (CIM)
• Convention for the Unification of Certain Rules for the International Carriage by Air, 1999 (Montreal Convention)
• Budapest Convention on the Contract for the Carriage of Goods by Inland Waterway, 2000 (CMNI)
134 Listed in chronological order, with those specifically related to maritime law appearing first 36 Articles135
• Beare, S., The Need for Change and the Preparatory Work of the CMI, October 2010 (www.comitemaritime.org)
• Berlingieri, F., A Comparative Analysis of The Hague‐Visby Rules, The Hamburg Rules And The Rotterdam Rules (www.uncitral.org)
• Berlingieri, F., Multimodal Aspects of the Rotterdam Rules (www.rotterdamrules2009.com)
• European Association for Forwarding, Transport, Logistic and Custom Services, RE: 2008 ‐ United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea ‐ the "Rotterdam Rules", Position Paper, 11 May 2009, Brussels (www.uncitral.org)
• European Shippers’ Council, View of the European Shippers’ Council on the Convention on Contracts for the International Carrying of Goods Wholly or Partly by Sea also known as the ‘Rotterdam Rules’, March 2009 (www.comitemaritime.org)
• Fujita, T., Performing Parties and Himalaya Protection, Colloquium on the Rotterdam Rules, 21 September 2009 (www.rotterdamrules2009.com)
• Guzmán, J. V. et al., The Rotterdam Rules ‐ A Latin‐American Response to the “Declaration of Montevideo”, 27 October, 2010, Buenos Aires (www.comitemaritime.org)
• Honka, H., United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly By Sea ‐ Scope of Application and Freedom of Contract, CMI ‐ Colloquium on the Rotterdam Rules ‐ Rotterdam, 21 September, 2009 (www.rotterdamrules2009.com)
• International Chamber of Shipping, Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (the “Rotterdam Rules”), Position Paper 2009 (www.uncitral.org)
• International Chamber of Shipping et al., The Rotterdam Rules ‐ Wide Support by States at Signing Ceremony in Rotterdam, 23 September 2009 (www.uncitral.org)
• International Federation of Freight Forwarders Associations, FIATA Position on the UN Convention on Contracts for the International Carriage of Goods wholly or partly by Sea (the “Rotterdam Rules”), Doc. MTI/507 (www.uncitral.org)
135 Listed in alphabetical order 37 • Lannan, K., (Legal Officer with the UNCITRAL Secretariat) New Regime, Maritime Gateway, December 2009 (www.comitemaritime.org)
• Lannan, K. (Secretary of Working Group on Transport Law), The United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (the “Rotterdam Rules”), United Nations Commission on International Trade Law (www.comitemaritime.org)
• Lemay, T. (Principal Legal Officer), Spain ratifies the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, Press Release ‐ United Nations Information Service, 24 January 2011 (www.unis.unvienna.org)
• National Industrial Transportation League, Response of the National Industrial Transportation League to the European Shippers’ Council Position Paper on the Rotterdam Rules, (www.uncitral.org)
• Zekos, Dr G. I., Documentation in the 2007 Draft convention on the carriage of goods wholly or partly by sea, Neptunus, revue electronique, Centre de droit maritime et oceanique de Nantes, Volume 14, 2008/1 (www.droit.univ‐ nantes.fr)
Cover Art
• Zappa, F., Ship Arriving Too Late to Save a Drowning Witch (album cover), Barking Pumpkin, 3 May 1982
38 Appendix I
39
40