DOCSLIB.ORG

Particular Concerns with Regard to the Rotterdam Ides

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Particular Concerns with Regard to the Rotterdam Ides Particular concerns with regard to the Rotterdam ides Background The application of the Convention Approximately six months ago with a view to pointing out concerns with the Whereas the Hague Visby Rules apply Rotterdam Rules before the signing to carriage by sea and contain a few ceremony held in Rotterdam on 23 exceptions, e.g. charterparties, (not September 2009, six of us produced a surprisingly, as these are contracts of paper and circulated it worldwide. The hire as opposed to contracts of carriage) threshold for this Convention coming the Rotterdam Rules are designed to into force is set fairly low with apply to a transport contract that ratifications by only 20 countries needed involves sea carriage in whole or in part. out of about 195 countries worldwide. To The exemptions are wide under Article 6 date only 21 have signed and it remains and Article 80. Again charterparties are to be seen whether any of these 21 will excluded from application, but of more ratify by making the Convention law in concern is the fact that particular types their respective countries. It may well be of trade are exempted or have the power that those 21 who signed are looking to take steps to achieve exemption. Non over their shoulders and wondering liner transportation is exempted in the where the signatures of the rest of the main. The volume contract exemption is world are; and, whether they will be of particular concern and is dealt with entered. later on in this paper. Suffice it to say here that the exemption is effectively a Uniformity is the goal of this convention license to allow the big players to play but already it is apparent that it is in by their own rules. This removes the danger of further splintering maritime central purpose of the Rules, which was law across the globe. All of the to bring back uniformity to carriage of signatories signed up between the date goods by sea. of the signing ceremony on 23 September 2009 and 29 September The Rules introduce the new concept of 2009 apart from Mali which signed on 26 the "maritime performing party" This is a October 2009. This illustrates that those party that conducts its business wholly that have signed already had a mind to within a port area. Therefore, a party sign before the signing ceremony took that collects from the environs of the port place. It also illustrates concern among and delivers inland is not a maritime the wealth of countries that did not sign. performing party, whilst a port operator Why is there such reticence? Below we is a maritime performing party provided aim to set out some of the main reasons its duties do not exceed the boundaries why the Convention is problematic. In of the port. It is, of course, not unusual closing we also answer the question that for a port operator to deal with on has been raised by a number of those carriage inland. The issuer of a transport that support the Convention - what is document involving carriage wholly or the alternative? partly by sea, and the maritime performing party may both be sued such as that described in the example of who is responsible for loading and directly: whereas, an inland carrier above. discharge in road carriage. These duties involved in part of the international are normally those of cargo unless the venture may not be sued directly. This To draw a further comparison with CMR, carrier agrees to be responsible for is, again, a protection for certain sectors cargo may sue the first, last or actual loading and/or discharge. Therefore, the involved in the carriage such as inland carrier, but those carriers may then sue multimodal carrier that takes on waterways, railways and inland road the actual carrier under the successive responsibility for this entire journey will carriers. There are cases where some carrier provisions. Under the Rotterdam be responsible for loading and discharge carriers will be subject to another Rules, the choice is to sue the issuer of whereas the inland carriers in China and Convention that takes precedence over the transport document or maritime the UK will probably not be responsible the Rotterdam Rules under Chapter 17, performing party, but those parties found for loading and discharge. In such a but not always Where the carriage of liable and wishing to sue the party case, the multimodal carrier will be goods involved is by a means other than actually causing the damage for responsible to cargo for damage on by sea which involves a partial sea recovery will have to rely on their terms loading and discharge. Although this movement another Convention may of contract with the underlying carrier damage may have been caused by the override the application of the Rotterdam and perhaps suffer a serious gap in the inland carrier, the multimodal carrier will Rules. For example, a door to door extent of liability recoverable compared be unable to pass down liability. This will carrier may carry goods from Germany with the liability it faces pursuant to the mean that multimodal carriers will have via France via road to the UK inland Rotterdam Rules. to reconsider all sub contracts to ensure involving a channel crossing. If the there are no such gaps in terms of goods stay on wheels throughout the Article 12 raises some problems. This flowdown of responsibility. journey, the CMR Convention would deals with the period of responsibility of override the application of the Rotterdam the carrier. The primary position is that However, as so often happens in this Rules but if the goods come off wheels the carrier is responsible for the period overly complex set of Rules, pursuant to for the channel crossing, the CMR covered by the transport contract. Article 13 whilst the Rules make the Convention would apply to the road However, Article 12(3) permits the carrier responsible to properly and movement from Germany to France but parties to agree on the time and location carefully receive, load, handle, stow, the Rotterdam Rules would apply from of receipt and delivery of the goods, carry, keep, care for, unload and deliver when the goods come off wheels for the although this ability is limited because the goods pursuant to 13(1), 13(2) channel crossing though to the UK such agreement will be void if the time of allows the shipper and carrier to agree inland destination. Therefore, the receipt of the goods is subsequent to the that loading, handling, stowing and Rotterdam Rules fall short of creating a beginning of their initial loading under unloading be performed by the shipper, fair and reasonable liability system the contract of carriage, or if the time of the documentary shipper or the governing all those involved in the delivery is prior to the completion of their consignee. Such an agreement has to transport venture. A full network liability final loading under the contract of be within the contract particulars. Again, system would have been fair and carriage. In terms of a carriage by road this will involve a wholesale review of reasonable but unfortunately the with a long sea journey in between, e.g. inland transport contracts with sub Convention creates a partial network inland UK by road to Liverpool and then contractors by multimodal contractors liability system or, as some people have by sea to Shanghai with final delivery by taking on primary responsibility door to described it, a maritime plus system road to inland China, this exemption door, The problem with Article 13 is that which causes unfortunate anomalies does not mirror normal custom in terms it does not deal with initial loading and final discharge as does Article 12, so a party who has the ability to prove the liability prevails despite the fact that one multimodal carrier can contract out of issue in question. How would the of those parties (pursuant to Article 61) responsibility at any stage during the shipper be able to prove the liability of may have agreed to pay increased carriage when the goods are being the Carrier under this provision without levels of liability above those provided loaded, handled and stowed or unloaded the full and detailed co operation of the for by the Rules. by express contractual provision. This is Carrier? Even if the Shipper overcomes a watering down of the strict liability this apparently insurmountable burden, Article 25, dealing with deck cargo, is provision under Article 3 of the Hague the Carrier is then able to relieve itself of surprising in its distinction between deck Visby Rules. liability if it can prove that none of the cargo as required by law and in factors in Article 17.5(a) caused the loss, accordance with the contract of carriage Basis of Liability damage or delay or it complied with its or custom, usages or practices of the obligation to exercise due diligence. trade in question on the one hand; and, The basis of liability is set out in Article Therefore the duty of due diligence is carriage in containers or vehicles fit for 17 and this is a good example of the effectively reduced from the standard set deck carriage and the decks are excessive and unnecessary complexity pursuant to the Hague Visby Rules specially fitted to carry such containers that pervades the Rules. The only which would appear to be a or vehicles on the other hand. In respect saving grace is the disappearance of the retrogressive step. of the former, the Carrier is not liable for error in navigation defence which was loss and damage or delay in delivery if long overdue for removal given Articles 18 and 19 deal with liability of such losses are caused by the special advances in technology.
Load more

Recommended publications
  • The Straight Bill of Lading
    THE STRAIGHT BILL OF LADING: DEVELOPMENT OF PRESENTATION RULE IN MAINLAND CHINA AND HONG KONG Liang Zhao TABLE OF CONTENT I. INTRODUCTION .......................................................................... 132 II . THE PRESENTATION RULE IN CHINA .......................................... 133 A. Judicial position before and after the Maritime Code ..... 133 1. Background .............................................................. 134 2. The Judgements ....................................................... 134 3. Comments ................................................................ 136 B. The straight bill of lading in the Maritime Code ............ 136 C. Further development in judicial practice ........................ 137 D. The right of control in the Contract Law ........................ 137 E. The application of right of control in carriage of goods by sea .................................................................... 138 1. Background .............................................................. 139 2. The Judgements ....................................................... 139 3. Comments ................................................................ 140 F. Judiciary interpretation under the right of control .......... 140 III. HONG KONG’S POSITION ........................................................... 142 A. Background of the presentation rule ............................... 142 B. The presentation rule in Carewins v Bright Fortune ....... 143 IV. THE ROTTERDAM RULES’ PRESENTATION RULE AND SOLUTION ..............................................................................
    [Show full text]
  • Rotterdam Rules
    Questions and Answers on The Rotterdam Rules (Ver. 2009.10.10) by The CMI International Working Group on the Rotterdam Rules 1 Contents Contents........................................................................................................................2 Preface..........................................................................................................................3 Questions and Answers on the Rotterdam Rules............................................................4 A. Scope of Application, Persons Covered by the Convention, and the Multimodal Aspect...........................................................................................................................4 B. Carrier’s Obligations, Period of Responsibility and Liabilities..................................8 C. Shipper’s Obligations and Liabilities...................................................................... 15 D. Transport Documents, Right of Control and Delivery of the Goods........................ 17 E. Jurisdiction and Arbitration..................................................................................... 18 F. Volume Contracts and Freedom of Contract............................................................ 19 G. Others .................................................................................................................... 21 2 Preface On December 11, 2008, during its 63rd session, the UN General Assembly adopted the “United Nations Convention on Contracts for the International Carriage of Goods Wholly
    [Show full text]
  • The Rotterdam Rules in a Nutshell
    2 BRITANNIA NEWS CONVENTIONS THE ROTTERDAM RULES IN A NUTSHELL What are the Rotterdam Rules? The formal name of the Rotterdam Rules is the United Nations Convention for the International Carriage of Goods Wholly or Partly by Sea, 2008 . The Rules were initially drafted by the Comité Maritime International , then by Uncitral. The current status of the Rules is that the text has been completed in final form and will not now be modified again. Once a convention has reached that stage, it can usually be modified only by the states parties agreeing a new Protocol (Art 95). The Rotterdam Rules are similar to the Hague The Hague Rules, Hague-Visby Rules and receipt and/or the port of loading and/or the Rules, the Hague-Visby Rules and the Hamburg Rules must be denounced by a place of delivery and/or the port of discharge Hamburg Rules in that they aim to fulfil state which signs up to the Rotterdam Rules, is in a contracting state (Art 5). roughly the same function: to secure so that in principle any one state will apply uniformity by way of predictable content in only one set of rules at any given time. The Rotterdam Rules themselves specify that contracts for the carriage of goods by sea, they apply to‘contracts of carriage’ as defined while providing a threshold level of Even if the Convention does enter into force, by Article 1. This is a deceptively simple protection to the parties to the contract of will it achieve its aim of providing uniformity description – and there are a number of carriage.
    [Show full text]
  • The Rotterdam Rules in a European Multimodal Context ELLEN EFTESTØL-WILHELMSSON
    UNIVERSITY OF HELSINKI FACULTY OF LAW The Rotterdam Rules in a European multimodal context ELLEN EFTESTØL-WILHELMSSON LEGAL STUDIES RESEARCH PAPER SERIES Paper No 9 The paper can be downloaded without charge from the Social Science Research Network at http://www.ssrn.com ElectronicElectronic copy copy availableavailable at:at: http://ssrn.com/abstract=1865777http://ssrn.com/abstract=1865777 274 (2010) 16 JIML : THE ROTTERDAM RULES IN A EUROPEAN MULTIMODAL CONTEXT : EFTESTÒL-WILHELMSSON The Rotterdam Rulesin a European multimodalcontext Dr Ellen EftestÖl-Wilhelmsson Scandinavian Institute of Maritime Law, University of Oslo In this article, the Rotterdam Rules' solution of a `mandatory modified network liability system' will be analysed in light of the European Commission's attempt to establish a European regional instrument on multimodal carrier liability. Whether or not the Rotterdam Rules provide a sufficiently effective alternative to the European Commission's objective to see increased use of multimodal transport by providing transport users with a predictable liability system is debatable; it is arguable that despite the incompleteness of the Rotterdam Rules on multimodal carrier liability, the European Commission should not try to navigate around them but rather accept the modified network liability system as a sufficient alternative. 1 The Rotterdam Rules ^ a maritime plus convention1 1.1 One step forward Multimodal transport, normally defined as a contract of carriage involving more than one mode of transport,2 has been on the international regulatory agenda for many years. To date there has been no success in achieving uniformity of law in its international regulation.3 When the new maritime Convention on International Carriage of Goods Wholly or Partly by Sea (the Rotterdam Rules)4 breaks with unimodal tradition and includes `.
    [Show full text]
  • In Maritime Transport of Goods
    ‘ROTTERDAM RULES’ IN MARITIME TRANSPORT OF GOODS On 23 September 2009, the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea will be signed in Rotterdam. This UN convention, called ‘the Rotterdam Rules’, describes the rights and obligations of parties involved in the carriage of goods by sea. The convention provides more clarity about who is responsible for what, when and where in maritime transport and how far these responsibilities extend. The application of the Rotterdam Rules facilitates international trade and leads to savings in costs. The Rotterdam Rules will replace the Hague Rules (1924), the Hague-Visby Rules and the Hamburg Rules (1978), as these conventions have become outdated. Developments such as the carriage of goods in containers and electronic data transfer do not feature in these conventions. As a result, gaps have occurred in law and every judge has to reinvent the law individually. National or regional law making is not efficient, as 90% of shipping takes place internationally. With the new convention, the rules will internationally be in line again. Clarification concerning liability What do the Rotterdam Rules change? In the case of a stranded ship, a stolen container or damage to a shipment, the Rotterdam Rules establish more clearly who is responsible and accountable for what. Unlike the old conventions, other parties in the chain, such as stevedores, may now be jointly liable with the carrier. The carrier’s liability for damage to the cargo has been increased. The shipper’s obligations are also more clearly defined, such as its obligation to have the goods ready for transport in a timely manner.
    [Show full text]
  • The Rotterdam Rules – Sinking Ship Or Maiden Voyage?
    StudZR 3/2010 419 Madeleine Martinek* The Rotterdam Rules – Sinking Ship or Maiden Voyage? Abstract StudZR3/2010 The existing legal chaos of maritime transport regimes with outdated pro- visions in all the instruments has incited the project of creating a modern, global convention for maritime carriage of goods: The Convention on the Contract of International Carriage of Goods Wholly or Partly by Sea (so called Rotterdam Rules). The Rotterdam Rules – Sinking Ship or MaidenMartinek Voyage? This paper seeks to give a description of the background and history of the Rotterdam Rules. It emphasizes the importance of uniformity of rules and illuminates the status quo of the existing old-fashioned legal framework. By focusing on the content of the Convention the paper concerns itself with the question whether the Rotterdam Rules are likely to achieve har- monization across the global trading environment of the 21st century. * The author is a third year law student at the University of Heidelberg and student assistant to Professor Dr. Dr. h. c. Herbert Kronke at the Institute of Foreign and International Private and Business Law. This paper was written for the seminar on “Transnational Commercial Law” conducted by Professor Kronke. 95 420 StudZR 3/2010 I. Introduction – The state of the art 1. Importance of sea carriage – The need for uniform rules “Shipping is truly the lynchpin of the global economy. Without shipping, interconti- nental trade, the bulk transport of raw materials and the import and export of afford- able food and manufactured goods would simply not be possible.”1 This statement clearly expresses the significance of sea carriage in today’s global world: About 90 % of world trade is carried by the international shipping industry on some 50,000 mer- chant ships trading internationally, transporting every kind of cargo.2 Not only the increasing industrialisation but also advances in technology have made shipping an efficient and expeditious mode of transport.
    [Show full text]
  • Differences Between Various Rules for Carriage Of
    A COMPARATIVE ANALYSIS OF THE HAGUE-VISBY RULES, THE HAMBURG RULES AND THE ROTTERDAM RULES * FRANCESCO BERLINGIERI This comparative analysis will be divided in the following three parts: I. Matters regulated by the Hague-Visby Rules, the Hamburg Rules and the Rotterdam Rules II. Matters regulated by the Hamburg Rules and the Rotterdam Rules III. Matters regulated only by the Rotterdam Rules I. Matters regulated by the Hague-Visby Rules, the Hamburg Rules and the Rotterdam Rules 1. Definition of contract of carriage.........................................................Page 2 2. Geographical Scope of application ........................................................ “ 3 3. Exclusions from the scope of application................................................ “ 4 4. Period of application and period of responsibility of the carrier ............ “ 5 5. Obligations of the carrier....................................................................... “ 6 6. Liability of the carrier and allocation of the burden of proof.................. “ 8 7. Liability of the carrier for other persons ................................................ “ 13 8. Liability of servants, agents and independent contractors ...................... “ 14 9. Notice of loss, damage or delay.............................................................. “ 16 10. Obligations and liability of the shipper .................................................. “ 18 11. Contract documents ............................................................................... “ 24 12.
    [Show full text]
  • Examiners' Report
    EXAMINER’S REPORT JULY 2020 LOGISTICS AND MULTI-MODAL TRANSPORT 1. For each term or abbreviation, the student should cover the following: The meaning of the term/abbreviation Its context/origin A detailed description of what it represents Its significance in multimodal transport and the supply chain The following are specific points to which the student should refer for each of the six parts of the question: (a) Rotterdam Rules - Explanation of the role of the Rotterdam Rules as a cargo liability convention (analogous to Hague Visby, Hamburg Rules) - Reason for the development of Rotterdam Rules - Main changes from previous conventions - Current situation re: ratification/entry into force - Why the Rotterdam Rules are relevant to multimodal transport (b) THC Stands for Terminal Handling Charge Charge made in a Liner tariff or contract, which covers the movement of the container on or off a vessel and may cover movement(s) within the terminal Set by the carrier and paid by the customer (historically set by conferences) Normally in local currency per container (explain when different rates apply) Can also refer to the charge raised by the container terminal on the container line in accordance with their contract An important cost/revenue item in a multimodal shipment (c) Letter of Credit A letter from a bank guaranteeing the payment from a buyer to a seller under a contract of sale Purpose is to facilitate international trade, giving assurance that the seller will be paid, and the buyer will receive the goods Provide a brief explanation of the mechanism, and particularly the role of documents (including the bill of lading) in the process Types of letter of credit, e.g.
    [Show full text]
  • THE ROTTERDAM RULES SOME CONTROVERSIES Stuart Beare
    THE ROTTERDAM RULES SOME CONTROVERSIES Stuart Beare It is not possible to draft a convention which contains 96 articles and updates a regime first established ninety years ago without attracting some controversy. Some provisions in the Rotterdam Rules have not appeared before in an international convention and inevitably the need for regulating these matters will be questioned. Provisions that change familiar provisions in the existing regimes will provoke questions about the need for such changes. This morning I attempted to explain why there was a need to change the existing regimes to take account of the major changes that have taken place in the industry over the past fifty years and I highlighted some of the provisions in the Rotterdam Rules that reflect these changes. Not all of these provisions are seriously controversial, but the general criticism has been made that the Rotterdam Rules are too long and too complex. However by adopting the CMI Draft as the basis for its work, UNCITRAL Working Group III implicitly set itself the task of preparing a comprehensive instrument and the complexity of the Rotterdam Rules to a large extent reflect the complexity of the modern industry. I shall begin by concentrating on two topics that were not the subject of detailed presentations this morning. I mentioned door-to-door transport in the context of my general remarks about the “container revolution”. As I pointed out, in the container trade the carrier’s period of responsibility under the contract of carriage often extends to cover some carriage by road or rail before or after the carriage by sea.
    [Show full text]
  • The Rotterdam Rules an Attempt to Clarify Certain Concerns That Have Emerged
    THE ROTTERDAM RULES AN ATTEMPT TO CLARIFY CERTAIN CONCERNS THAT HAVE EMERGED The Authors of this paper have become aware of certain concerns that have been expressed by some Organizations in respect of the Rotterdam Rules and their fitness to respond in a satisfactory and balanced manner to the requirement of modern trade and wish to reassure those Organisations that their concerns are not justified, as they hope to be able to clarify in this paper. The views they have expressed herein by the Authors, who are all former delegates of Governments that have attended the sessions of the UNCITRAL Working Group on Transport Law, are personal views and do not bind in any manner the Governments they had the honour to represent during the sessions of the Working Group. The reports and papers that will be considered are the following: 1. Report of the fifty-first session of the Working Party on Intermodal Transport and Logistics of the U.N. Economic and Social Council1; 2. A document of the European Shipper’s Council with an analysis of the Rotterdam Rules2; 3. A paper of the Working Group on Sea Transport of FIATA being Annex two to FIATA’s document MTJ/507 of 26 March 2009; 4. The Position Paper of the European Association for Forwarding Transport Logistic and Customs Services-CLECAT. 1. The Report of the Working Party on Intermodal Transport and Logistics of the U.N. Economic and Social Council 1.1. The Regional v. Worldwide Unification of Transport Law The Working Party, after having mentioned (in paragraphs 39-41) the Rotterdam Rules and having expressed generally their dissatisfaction about them, invites UNECE member States and professional organizations to examine how, under present circumstances, “an appropriate civil liability system, covering also short sea shipping, could be devised addressing the concerns of European intermodal transport operators and their clients”.
    [Show full text]
  • Performing Parties and Himalaya Protection
    Colloquium on the Rotterdam Rules September 21, 2009 Performing Parties and Himalaya Protection Tomotaka Fujita I. Introduction ........................................................................................................................1 II. Who Is Liable under the Rotterdam Rules? ....................................................................2 III. Whose Acts or Omissions Are Attributable to the Carrier? ..........................................4 IV. Who Is Entitled to a Defense and Limitation?: Himalaya Protection ..........................4 V. Employee as a Performing Party? ....................................................................................5 VI. Conclusion ........................................................................................................................6 I. Introduction I am very much honored to have an opportunity to give a presentation at this historic signing ceremony for the new Convention on Contracts for the International Carriage for Goods Wholly or Partly by Sea. I sincerely express my gratitude to the organizer of this event and I am grateful to the participants who came here from many places of the world. The title of my talk is “Performing Parties and Himalaya Protection”. Unlike other speeches today (“Obligation of the Carrier”, “Obligation and Liability of the Shipper”, etc.), the title itself needs explanation for those who are not familiar with the topic. Even for maritime lawyers, “performing party” is not a familiar word. Therefore, I think it is necessary
    [Show full text]
  • Rotterdam Rules Key Provisions
    ROTTERDAM RULES KEY PROVISIONS 1. Scope of Application (Chapter 2) / Freedom of Contract (Validity of Contractual terms) (Chapter 16) Essentially the scope of the Convention extends to contracts of carriage used in “liner” transportation (as defined in the Convention) in which the place of receipt and delivery and the port of loading and discharge of the goods are in different states and one of the states has ratified the Convention. It does not extend to charterparties or contracts for the use of or space on a ship such as slot charters. In order to accommodate the United States, parties to “volume contracts” (defined as contracts of carriage that provide for the carriage of a specified quantity of goods in a series of shipments during an agreed period of time) are permitted to derogate from the Convention provided notice is given in accordance with strict criteria set out in the Convention. The Convention expressly provides that its scope does not extend to contracts of carriage in non-liner transportation other than to transport documents (which term includes bills of lading). This reflects the position under the Hague/Hague-Visby Rules. The Convention is not limited to tackle-to-tackle and port-to-port movements but extends to multimodal contracts of carriage where there is a sea leg contemplated under the contract of carriage. Where loss or damage occurs solely during multimodal carriage other than during a sea leg, the Convention will apply unless some other existing international unimodal instrument is compulsorily applicable (e.g. CMR) to the extent that the unimodal instrument contains provisions providing for a carrier’s liability, limitation of liability and time for suit.
    [Show full text]