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MAR160 Assignment 2 Student No
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Requiring twenty endorsements for accession (Art
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230), the
Rotterdam Rules sought to focus less on a liability regime, but rather more on
progression related to carriage of goods and international trade (Britannia News
Convention, 2010)
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6)
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Practical in the sense that it represents a copious composite of the different views
inherent to the diverse interest groups, i
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carriers, freight forwarders, shippers,
insurance companies and governments (Mbiah, n
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As Article 94 addresses,
ratification by signing states signifies a denouncement of predecessor conventions,
such as the Hague-Visby and Hamburg Rules, making the Rotterdam Rules legally
binding in the relevant ambit
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In addition to the notion
that minority regime, more often than not, falls under the category ‘carrier-friendly’
or ‘cargo-friendly’ (Britannia News Conventions, 2010)
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133)
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In addition to the Rotterdam Rules regime’s



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MAR160 Assignment 2 Student No
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As implied in Article 14, the carrier’s
obligation to make the ship sea- and cargo worthy is a continuing one, as opposed to
the Hague-Visby regime
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Moreover,
the time bars for pursuing legal action has been extended compared to the HagueVisby Rules
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61 (1)),
the shipper will have seven days to declare a loss or damage and two years (2) to
bring claims against a carrier, or vice versa (Adamsson, 2011), leaving ‘ample’ time
to investigate proceedings, even leaving room for extensions by declaration
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Chapter 5, Article 17 (6) in the Rotterdam Rules express a claimants obligation to
prove a carrier’s contribution to the damage, as a result the carrier must only prove an
absence of fault or apply one of the listed exceptions under Article 17 (3)
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Nevertheless, the provision increasing
carrier’s liability limit makes it feasible to deem the Rotterdam Rules as ‘cargofriendly’
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While ‘units’ are recognisably defined in Article 59 (2) as SDR’s, this augmentation
represents an approximately 31, 25% increased package limit and 50% increased
kilogram limit from Article IV, Rule 5 (a) of the Hague-Visby Rules, yet remaining
under the international conventions on carriage of goods by land or air’ limit (Clarke
2013, p
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On balance, The Rotterdam Rules ultimately bears carrier-friendly
characteristics whereas the modification of the ‘fire exemption’ frees the carrier from
liability if the cause is unclear and that the carrier is exempt from liability by ‘act of
omission’ if not only the shipper (owner and their agents and servants) is liable, but
also if the documentary shipper, controlling party and agents acting on behalf of them
are (Clarke 2013, p
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Additionally, the increased rights of the carrier in relation to
dangerous cargo expressed in Articles 15 and 16
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Dependent on
the courts understanding, cargo interests could experience loss in cases where the



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MAR160 Assignment 2 Student No
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Interestingly, these are only
some of many innovations that together compose the Rotterdam Rules
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Whereas the Hague-Visby Rules connect the notion of a contract of carriage to
the bill of lading, and the Hamburg Rules define it similarly to the Rotterdam Rules,
the description of a carrier’s obligation differ in some ways (Berlingieri, 2009)
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1 (6)), the Rotterdam Rules describes it as “from one place to
another” (Art
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Reflecting the multimodal and door-to-door properties of the latter (Berlingieri,
2009)
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d
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However, pursuant to Article 35, the application
of the Rotterdam Rules is not conditioned on the issuance of a transport document if
the parties so agree not to or common practice makes this nonessential
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Particulars supplied by the shipper, the carrier and lastly, particulars
addressing specific circumstances, mainly information regarding the shipper’s
consignee and the carrier’s port calls, place of receipt and name of the ship
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235)
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1 (18)) are extensively described in Chapter 3 and crossreferenced in Articles 35, 36, 37, 38, 39, 40, 41, 45, 47, 51, 57 and 58
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d
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principally intended to bring international transport law into the 21st century,
recognising that the electronic documentation must unmistakably replicate the
fundamental functions of their paper-equivalent
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It
seems as if the Convention’s documentary and contractual approach aims to make the
electronic alternative naturally self-generating
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The reason for this modernisation is
to cope with the rising variation of bills of lading in sea carriage transactions, i
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sea
waybills, negotiable, non-negotiable and straight bills of lading or variants of such
expressions (Mbiah, n
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Whereas a negotiable transport document, such as a bill of
lading, refers to a transport document that may be conveyed and endorsed by a third
party while cargoes are in transit (delivery without production), a non-negotiable
transport document must be explicitly stated as being such or “not negotiable” (Art
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Further provisions regarding the delivery under any such documents are set out
in Article 47; subparagraph 1 and 2, mainly concerning the shipper and carrier’s
obligations under whichever circumstance, such as the carrier’s obligation to act upon
instructions given by the shipper or documentary shipper (Art 47, 2 (b))
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The Rotterdam Rules novelty maritime provisions regarding ‘volume contracts’ first
materialised following a proposal put forward by the US in the negotiation process
(Adamsson, 2011)
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However, this contract format, defined in Article 1; subparagraph 2 as contracts
providing “carriage of a specified quantity of goods in a series of shipments during an
agreed period of time”, may offer either the carrier or the shipper greater or lesser


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MAR160 Assignment 2 Student No
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Conditions of the right to derogate under volume contracts
are further specified in subparagraphs 2, 3 and 6
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And furthermore, must clearly designate place of litigation (Art
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These
contracts or “tonnage agreements”, however vague in wording, are quite innovative
with respects to the Hague-Visby Rules in that they would not be governed by a bill
of lading, making them inapplicable under the predecessor convention (Adamsson,
2011)
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d
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81 (a))
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Interestingly, a sub-contractor, henceforth referred
to as ‘performing party’, acting either directly or indirectly to perform a carrier’s
obligations under a contract of carriage (Art
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The basic principals of the Himalaya clause were
incorporated in the Rotterdam Rules’ notion of a maritime performing party
(Berlingieri, 2009) where the carrier’s duties, defences and limits of liability extended
(Art
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1 (7))
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These provisions are not highly different from
those set out in Article 10 of the Hamburg Rules
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MAR160 Assignment 2 Student No
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And unlike
the Hague-Visby Rules, include jurisdictional provisions, such as those in Article 66
and 68 that sets out a jurisdictional scope of application in actions against a carrier or
its maritime performing party
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The general scope of
application is subjected to Article 5 that, geographically, determines the relevant
ambit (1) as the place of receipt (a) or delivery (c) and the port of loading (b) or
discharge (d) in a Contracting state or the domicile of either party (Art
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In its freedom to select forum provisions, expressed in Chapters 14 and 15, the
Rotterdam Rules liberate parties to individually agree on place of litigation and
arbitration, separating itself from provisions set out in the Hamburg Rules (ICS, n
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Nor does it bind contracting states to its jurisdictional provisions, only those who
make declarations to that effect (Arts
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There is however, in Article 73, provisions regarding
Contracting states’ obligation to recognise and enforce judgements held in other
courts governed under the Rules, albeit subparagraph 3 allow for derogation on
grounds of national law
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Though extending to carriage beyond
the sea leg, the Rotterdam Rules are not fully multimodal in that there must be a
seaborne aspect to the transit, however minor (Wilson 2010, p
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Despite its
applicability to contracts of carriage (Art
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6, 1 (a)), and other contracts used in
liner transport (1) from its scope
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Furthermore,
like the Hamburg Rules and unlike the Hague-Visby Rules does the Rotterdam Rules
apply to both inward and outward maritime carriage, and distinctively provides doorto-door coverage, effectually solving difficulties with other overlapping or conflicting
transport conventions
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MAR160 Assignment 2 Student No
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The definition is, of course, deliberately
worded to apply to carriage preceding or following the sea leg (Clarke 2013, p
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Naturally extending beyond other conventions for a multimodal application,
conditioned by Article 26, the carrier’s period of liability also concerns parts of the
journey assumed by performing parties not constituting sea-carriage (Adamsson,
2011), essentially making every part of the voyage pending delivery covered within
the Conventions ambit and some party’s designated period of responsibility
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Though the
delivery provisions are generally familiar, the provisions regarding negotiable
transport documents provides the carrier with a practical endpoint of responsibility
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10) absolving the carrier of liability when acting accordingly,
notwithstanding information in the transport document (Britannia News Convention,
2010)
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11) regularly occur when goods
are sold in transit under a negotiable transport document, effectually making the
carrier fully reliant on the duty to provide information, instructions and documents
(Arts
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1 (9)), to which the shippers duties, liabilities and defences apply (Art
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Whereas the shipper’s other duties are further expressed in Chapter 7, so are the
liabilities, in greater detail than predecessor conventions (Berlingieri, 2009)
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Conversely, strict liability befalls the
negligence of Article 31, and the provisions regarding dangerous goods in Article 32
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As defined as the documentary shipper in Article 1 (9), “the
person, other than the shipper, that accepts to be named as “shipper””
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this may prove to be problematic if not properly documented, as denial to the
acceptance of being named is highly feasible in cases of liability (Britannia News
Convention, 2010)
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In cases where the contracts of carriage exclude
the carrier’s identity, the claimant may pursue the registered ship-owner (Art
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Relevantly, the carrier is always accountable under the Rotterdam Rules, as well as
the Hamburg Rules, for loss, damage or delay resulting from fault of the carrier, its
servants or agents during its period of responsibility
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Though the Rotterdam Rules provisions regarding the carrier’s duties does not
majorly deviate from those set out in the Hague-Visby Rules or Hamburg Rules,
Article 17; subparagraph 6 sets out how partial liability for loss, damage or delay is
appointed accordingly in cases where there are one or more attributing causes to that
loss as set out in Article 17
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To avoid delays, primarily in liner transportation, agents of the carrier continued
carriage beyond the sea leg, which made the period of responsibility greater than
other conventions period and scope of application
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These
mainly concern limitation and allocation of liability in that Article 60 sets out the
compensational limits due to delay (2 ½ the freight payable on the goods delayed) and
Article 61 (2) strips the carrier of its right to limitation if proven that the delay was a
result of a personal act or omission intended to cause loss
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However, what the Rotterdam Rules constitute as “delay”
may prove favourable for the carrier
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By opting out of expressly or impliedly
isolating a delivery date delay provisions become obsolete (Britannia News
Convention, 2010)
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There are, under the Hague-Visby regime, periods when the carrier is in custody of
the goods that, legally, is not consider being within their period of responsibility
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If the
carrier or its performing party is proven to be in supervision of the goods when the
loss, damage or delay occurred, the burden of proof moves to the carrier, who may or
may not attribute the loss to exceptions set out in Article 17 (2) and (3)
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However apparent some of the innovative provisions seem to be as a recipe for
confusing, it seems sensible to modernise and reintroduce certain laws and terms to
ensure continuous progression
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Article 25 sets out what is permissible in this respect by the right to limit
liability only if in accordance with trade practice (1 (c)) or permitted by the shipper
(5), required by any regulations (1 (a)) or when goods are transported in or on
containers or vehicles (1 (b)) (Berlingieri, 2009)
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The novel provisions regarding
loss, damage or delays due to justifiably and unjustifiably carried deck cargo are also
set out in subparagraph 3, 4 and 5
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133), responding well to the needs that led to its creation
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Many of these are original, extensive and decidedly complex, with
numerous cross-referencing and, in some cases, relatively vague wording, which
could lead to difficulties related to interpretation as well as application
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MAR160 Assignment 2 Student No
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, 2011
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Faculty of law; Lund University
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lub
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se/luur/download?func=downloadFile&recordOId=2292311&fileOId
=2371531 (viewed 10 January 2016)

BERLINGIERI, F
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A comparative analysis of the Hague-Visby Rules, The
Hamburg Rules and The Rotterdam Rules
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uncitral
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pdf

BRITANNIA NEWS CONVENTIONS, 2010
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Place of publication unknown: Publisher unknown (viewed 10 January 2016)
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, 2013
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United Kingdom: Hart Publishing Ltd

EFTESTOL-WILHELMSSON, E
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European Sustainable Carriage of Goods:
The Role of Contract Law
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d
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Place of publication unknown: Publisher unknown (viewed
14 January 2016)
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, n
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Updating the rules on International carriage of goods by sea: The
Rotterdam Rules (pdf
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Available at:
http://www
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org/Uploads/Rotterdam%20Rules/Paper%20of%20Kofi
%20Mbiah
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Non-negotiable transport documents instead of bills of lading
(viewed 13 January 2016)
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rhinotrans
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WILSON, J
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Carriage of Goods by Sea
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Edinburgh Gate: Pearson
Education Limited

Legislative references:

Article 1; subparagraph 1, 2, 6, 7, 9, 13, 16, 18





Article 39

Article 3

Article 40

Article 5; subparagraph 1 (a), (b), (c), (d) and 2

Article 41

Article 6; subparagraph 1 (a)

Article 45

Article 7

Article 47 and subparagraph 1, 2 (b, c)

Chapter 3

Chapter 10

Article 12 and subparagraph 3

Article 51

Article 14

Chapter 11

Article 15

Article 57

Article 16

Article 58

Article 17; subparagraph 2, 3, 4, 5, 6

Article 59; subparagraph 1, 2

Article 19; subparagraph 4

Article 60

Article 20

Article 61; subparagraph 1, 2

Article 21

Chapter 14

Article 23; subparagraph 4

Article 66a and subparagraph 1

Article 25; subparagraph 1 (a, b, c), 3, 4, 5

Article 68 (a)

Article 26

Article 73 and subparagraph 3

Chapter 7

Article 74

Article 27

Chapter 15

Article 28

Article 78

Article 29

Article 80; subparagraph 1, 2, 3, 6

Article 31

Article 81 (a)

Article 32

Article 91

Article 33

Article 92

Article 34

Article 94

The Rotterdam Rules:

Chapter 8
Article 35
Article 36; subparagraph 1, 2, 3



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MAR160 Assignment 2 Student No

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