General Introduction
The most recent initiative in the field of carriage of goods by
sea is the United Nations Commission on International Trade Law
(‘UNCITRAL’) Draft Convention on Contracts for the International
Carriage of Goods Wholly or Partly by Sea (published October
2008). This draft convention has attracted a lot of interest as
well as criticism, since it effects various parties in the
maritime industry. This Convention is also known as the
Rotterdam Rules.
A new international regime regulates carriage of goods by sea
was stimulated by the need for harmonisation and since the
current international regime do not satisfy the modern
requirements and exigencies. In order to counter this situation
the Comite Maritime International (‘CMI’) formulated a ‘Draft
Instrument on Transport Law’ which was requested by the UNCITRAL
and handed over to them in December 2001.
The first
reading of the draft was completed in March 2003 while the third
and final review was done in Vienna between the 14th and the
25th of January 2008. The text was adopted by the UN General
Assembly in Athens, Greece in October 2008 and the convention
will be open for ratification in September 2009 at Rotterdam.
Main Elements
When
examining the draft convention, one can immediately notice the
resemblance between such convention and the Australian and US
legislation which are a hybrid form, incorporating parts of The
Hague Visby Rules and the Hamburg Rules. The final draft
consists of eighteen chapters and a hundred articles.
Scope of Application
The Draft Convention applies to contracts of carriage where,
against a payment of freight, a carrier undertakes to carry
goods from one place to another. The scope of application is
much wider than its predecessors. As a matter of fact it applies
to those contracts of carriage where the place of receipt, or
the port of loading or discharge, or place of delivery is a
Contracting State. Hence the Rotterdam Rules, unlike The Hague,
Hague-Visby and Hamburg Rules covers door-to-door transport.
Responsibility of the Carrier
This convention limits the responsibility of the carrier from
“when the carrier or a performing party receives the goods for
carriage and ends when the goods are delivered.” Hence this the
period of responsibility is that of tackle-to-tackle as is the
case under the Hague and Hague-Visby Rules.
Under the Draft Convention, the parties to the contract of
carriage can agree that certain activities such as loading,
handling, stowing, discharging can be performed at the risk of
the shipper or consignee, rather than of the carrier. This is
different from the position in previous international
conventions, where the parties could not discharge liability but
this can be seen as being a bargaining tool to satisfy the wants
and needs of both the shipper and the carrier.
Liability of the Carrier
A very interesting point about this draft convention is how it
tackles the basis of the liability of the carrier under Article
18. The liability is still based on the fault of the carrier,
however the burden of proof is reversed i.e. unlike under the
Hamburg Rules where the carrier had to prove that he took all
the necessary precautions, under the Draft Convention, the
carrier has to prove that there was no fault on his part. The
list of exceptions which are found under the Hague Visby Rules
are inserted under Article 18.3, however omitting the exception
regarding negligence in the navigation or management of the
vessel.
The Hague
Visby Rules and the Hamburg Rules influenced the limitation of
liability of the carrier as found under the Draft Convention .
There are also specific provisions regulating the carriage of
deck cargo , the carriage of live animals and also deviation .
Thus it seems as though the UNCITRAL is trying to achieve a
state of compromise between the various conventions as well as
national legislations in order to devise a uniform convention on
the carriage of goods by sea.
Diverse Opinions
A few
months prior to when the Rotterdam Rules are open for
ratification, most of the major parties in the maritime industry
have stated their views on the effect that such rules will have
on the industry. The two opposite parties can be identified as
on the one hand US shippers and the major global container
lines, while opposite them there are EU shippers, freight
forwarders and multi-modal operators.
US
shippers and the major global container lines are sustaining
that with the coming into force of the Rotterdam Rules, there
will finally be uniformity in the carriage of goods by sea. The
fact remains that these rules try to regulate all aspect of
carriage of goods and this would signify a single instrument
incorporating all the rules. As a matter of fact the Rotterdam
Rules have sometimes been described as being a global convention
for multimodal transport.
This
support is not shared on the other hand by the freight
forwarders who sustain that the new rules provide for more
uncertainties and instead of providing uniformity, it will be
another carriage of goods convention alongside the others such
as the Hague, Hague-Visby and Hamburg Rules. The Rotterdam Rules
seem to create more complications than solutions and leaves room
for regional interpretation thus moving further away from
harmonisation.
European
shippers have also outlined what in their opinion are the
defects of the Rotterdam Rules. On the top of their list are the
limitations to liability which seem biased in favour of the
carrier. Also, private conditions will override the convention
and such conditions are used quite often in the maritime
industry, thus the effects of the Rotterdam Rules will be
limited.
All of
these conflicting views are leaving various states uncertain as
to whether to ratify this convention or not. Maritime countries
such as Malta, Cyprus, Greece and Holland have much to dwell
upon until September 2009 when the Rotterdam Rules will be open
for ratification.
