In the last article concerning the Hague-Visby Rules (The Hague-Visby Rules in modern maritime transport) we have mentioned the need to replace or update the RHV regulation. The new phenomena accompanying the carriage of cargo by sea still evolves. The convention, which was to meet this difficult challenge, became the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (in short RR). Although for almost a decade the Convention has been in many respects an innovative achievement of international maritime legislation in the field of carriage of goods by sea, the principles of the convention have not yet entered into force. The Convention has been signed by 25 countries so far, but only 4 of them have ratified it (Congo, Cameroon, Spain, and Togo). Ratification is required for at least 20 countries to make the Convention valid. The Convention was prepared with the participation of the Polish delegation within the framework of UNCITRAL (United Nations Commission on International Trade Law) and was subsequently adopted by the United Nations General Assembly on December 11, 2008. Apart from Poland, on September 23, 2009 in Rotterdam the Convention was solemnly signed by representatives of Denmark, Greece, Spain, the Netherlands, Norway, Switzerland, and the USA.
The main intention of the 2009 Convention was to update and modernize the existing legal regime governing the institution of carriage of cargo by sea. However, what is important, its creators also undertook attempts to introduce so-called multimodality of transport contracts and normative regulation of the process of the electronification of transport documents. The Rotterdam Rules established the legal basis for electronic commerce (e-commerce), free of paper documents. In terms of multimodal transport, although the conventional regulation in this area is still very modest, the Rotterdam Rules are still a dubious opportunity to unify the legal situation in maritime transport. Therefore, they have not gained wider approval.
The occurrence of multimodal transport
The integration of various modes of transport in the field of carriage of cargo enabled the rapid growth of international trade in goods as well as the development of containerization in maritime transport. This integration allowed for the minimization of costs and time of transport. Earlier the costs and time were increased by the number of small batches of freight, requiring costly and time-consuming handling manipulations. Dissemination of multimodal transport caused the need to modernize the existing maritime transport regulations, which has become one of the elements of a complex transport process. Multimodal transport (also known as combined transport) is the transportation of goods under a single contract, but performed with at least two different modes of transport. In the field of multimodal transport, there is no binding international convention.
From a legal standpoint, multimodal transport creates several problems. Unimodal transports are currently governed by different international conventions concerning a specific mode of transport. As a result, these conventions stipulate different bases for liability and different limitations of liability for the carrier. The solution to this problem has been the so-called network system. The different conventions coexist unchanged - each of the transport sections is subject to the rules contained in international conventions (possibly other legal acts) concerning a specific transport mode. Multimodal transport in the sea part in most countries of Western and Central Europe is now governed by the Hague- Visby Rules, while in the land part - CMR and COTIF conventions. Outside Europe, such transport is mainly regulated by regional conventions. Lack of uniform legal regulations for a complex transport process resulted in the weakening of legal security. Determining the appropriate regulations that will apply to the whole transport or its parts is very difficult to this day. Although the Rotterdam Rules largely have based on the system of existing regulations, they also introduce completely new solutions. RR cover not only the contracts of carriage, in which the cargo is transported entirely by sea but also contracts in which carriage is transported by sea only partially. The Rules apply only if the carriage includes a sea transport; other multimodal carriage contracts which have no carriage by sea are outside of the scope of the Rules. The regulations contained in the Rotterdam Rules, as they were not intended to create a single regime of multimodal transport, can be regarded as implementing the so-called limited network system.
Once again, it must be stressed that the carriage of goods other than by sea is subject to the regulation of separate international conventions. This fact carries a risk of conflict between them and RR. Unimodal conventions include railway transport [Convention on International Carriage by Rail (COTIF)], road transport [Convention on the Contract for the International Carriage of Goods by Road (CMR)], or air transport [the Convention for the Unification of Certain Rules for International Carriage by Air (the Montreal Convention)].
Definition of carriage
The definition of a contract of carriage in the Rotterdam Rules was included in Article 1 point 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. The carriage of other modes of transport, carried out in connection with the maritime section, has only the aforementioned complementary character. Article 26 states that RR provisions do not take precedence over unimodal conventions governing the liability of the carrier if the loss of cargo, damage or event or circumstances causing a delay in its delivery occurred only before loading the goods onto the ship or only after unloading from the ship. It means that concerning the liability of the carrier for the loss of the goods, damage, and delay if they arose during the transport by sea, the regime of the Rotterdam Rules applies. If the mentioned damage had occurred during transport carried out in a different mode of transport, the unimodal convention regime would apply. If the convention grants priority to the unimodal conventions to the liability of the carrier for localizated damage, the Rotterdam Rules will apply, inter alia, in a situation where it is impossible to determine on which part of the carriage the cargo damage occurred. The Carrier shall be liable also when the event causing the damage arose during another mode of transport than by sea but was continued also during the maritime carriage. The Convention does not determine who bears the burden of proof to demonstrate when the damage occurred.
Application of the Rotterdam Rules
The Rotterdam Rules do not affect the application of any of the international conventions that regulate the liability of the carrier for loss of or damage to the goods. It should be recognized that the Rotterdam Rules cannot be considered as a multimodal convention in its current form because they generally regulate transport by sea. The Convention applies only to contracts of carriage concerning liner shipping. Article 6 states that “This Convention does not apply to the following contracts in liner transportation: a) Charter parties; and b) other contracts for the use of a ship or of any space thereon”. There is no doubt that the shipping in the convention does not cover all of the existing cargo transport.
Concerning previous transport regulations, the Rotterdam Rules extend the carrier's liability. The carrier is obliged to exercise due diligence to make and keep the ship seaworthy not only before and at the beginning of the journey, but also during the trip. The carrier is obliged to supervise the load not only when the cargo is on the ship, but also during the entire trip, including other modes of transport. The position of the carrier in the Rotterdam Regulation is slightly weaker than in the RHV and the limit of its liability has increased. Article 59 indicates that “the carrier’s liability for breaches of its obligations under the Convention is limited to 875 units of account per package or other shipping unit, or 3 units of account per kilogram of the gross weight of the goods that are the subject of the claim or dispute, whichever amount is the higher, except when the value of the goods has been declared by the shipper and included in the contract particulars, or when a higher amount than the amount of limitation of liability set out in this article has been agreed upon between the carrier and the shipper”.
It has to be stressed that RR eliminate the " navigational fault exception" which had protected carriers and crew from liability for negligent ship management and navigation. In comparison with the list of premises included in the RHV (17 items), RR contain "only" 15.
Contract of carriage
The shipper shall provide to the carrier, in a timely manner, accurate information required for the compilation of the contract particulars and the issuance of the transport documents or electronic transport records. The shipper is deemed to have guaranteed the accuracy of the information at the time of their receipt by the carrier. If the contract particulars fail to state the apparent order and condition of the goods at the time the carrier or a performing party receives them, the contract particulars are deemed to have stated that the goods were in apparent good order and condition at the time the carrier or a performing party received them (Article 39 item 3).
The Rotterdam Rules, in addition to the shipper, exchange some new types of entities, including documentary shipper or holder. The Convention also contains provisions regarding unlimited liability of the shipper, imposing obligations on him, laying down restrictions on contractual freedom concerning its duties and responsibilities.
The Rotterdam Rules also introduce liability for delay in delivery. However, the necessary time of delivery is defined as reasonable to expect of a diligent carrier. The liability of the carrier for the loss resulting from such delay is limited to the amount of 2.5 times the freight.
What deserves special attention, the Rotterdam Rules introduce several new definitions and concepts unknown to current regulations (including consignor or transport document, which was defined much wider than the bill of lading, including also electronic transport record). In the new Convention, the existing, commonly used terms of transport documents such as a bill of lading or sea waybill have been abandoned. They have been replaced by descriptive names (negotiable transport document or non-negotiable transport document). Both the transport document and the electronic transport record may be negotiable or non-transferable under the terms of the Convention.
The concept of a non-negotiable transport document is undoubtedly more capacious than the sea waybill. Transport document means a document issued under a contract of carriage by the carrier that evidences the carrier’s or a performing party’s receipt of goods under a contract of carriage and evidences or contains a contract of carriage (Article 1 item 14). Straight bill of lading was considered to be a special type of documents which, like a negotiable transport document, mean the right to possess a cargo and can be transferred from the shipper to the recipient. If no transport document had been issued in a given transport contract, the Rotterdam Rules would apply directly. The Convention allows the possibility of carriage based on an electronic transport record, which is not accompanied by the issuing of any bill of lading (or other documents).
Procedures for the use of electronic documentation
The Convention of 2009 contains comprehensive regulations on the procedures for the use of electronic documentation. It is worth mentioning that the commercial practice for many years shows that paper trading in maritime transport is becoming increasingly ineffective. The form of a paper bill of lading is also not considered as safe as it used to be. Existing electronic bill of lading systems have created the possibility of direct communication by numerous entities with carriers. The rule introduced by the Rotterdam Rules is also the equivalence of the document and electronic form of transport documents. It means that the parties can decide, by contract, how they document their rights in the field of rights to transported cargo. On the other hand, there is the possibility of flexible conversion of transport documents from traditional - with a material carrier (negotiable transport document) to electronic (electronic negotiable transport records).
The new period of limitation of claims
RR extend the time that legal claims can be filed to two years following the day the goods were delivered or should have been delivered. The Convention allows parties to so-called Volume Contracts to opt-out of some liability rules set in the Convention.
Jurisdiction and arbitration
The Rules contain fairly detailed regulations regarding the validity and effectiveness of the jurisdiction and arbitration clauses included in the transport contracts. These regulations can be considered as beneficial for the loading side. In some cases, they enable the pursuit of cargo claims outside the courts and arbitration tribunals indicated in the bill of lading. The provisions of the Convention thus allow the recipient to bypass the jurisdiction and arbitration clauses included in the bills of lading and to enforce cargo claims from foreign carriers not according to foreign law, but before other courts.
The Rotterdam Rules, in comparison to earlier transport conventions, are undoubtedly a complicated regulation, which makes their adaptation to national legal systems much more difficult. Their practical application is complicated by the unique volume and detail of regulation (RR has as many as 96 articles, while RHV has only 16). It is also impossible to ignore the fact that in the case of many regulations, RR provisions create conflict with the regulations of unimodal conventions.
RR are considered as a fragmentary regulation, not a fully legal regime of carriage of goods by sea. In principle, the Rules only apply to transport contracts concluded on regular shipping, with minor exceptions. These factors may have led to a small amount of ratification by countries. As a result, most of the economically developed countries still accept and apply the system resulting from the Hague-Visby Rules. Establishing a system of regulation that reconciles the views of "traditionalists" of maritime law with "innovators" has been a challenge for legislators for many years. However, the resolution of 23.03.2010 of the European Parliament adopted a position that encourages member states to ratify the Rotterdam Rules. Increasingly, it is postulated, instead of ratifying the Convention, to develop the so-called hybrid solution, combining legal solutions existing under the RHV, Hamburg Rules and Rotterdam Rules. The ratification of the RR would, first and foremost, necessitate changes to the Maritime Code of 2001 as well as other legal regulations due to the lack of convergence of some solutions. It would be necessary to denounce the earlier Rules simultaneously.
Support for the new Convention has been expressed by organizations such as BIMCO (Baltic and International Maritime Council), ICC (International Chamber of Commerce), FIATA, ITF (International Transport Workers' Federation) and ECSA (European Community Shipowners Associations). In addition to his followers, RR also has opponents. Reservations were issued, among others European Shippers' Council. The voices of opposition concerned, inter alia, regulation of multimodal transport, the uncertainty of interpretation of new concepts and removal of institutions with many years of maritime traditions such as the bill of lading. It has been also criticized to limit the carrier's liability and not to limit the responsibility of the shipper.
However, many solutions from the Convention we should assess positively. Let's hope that the discussion among entities involved in the carriage of goods by sea, as well as between countries that are parties to international maritime trade would allow reaching the necessary compromise. The development of a uniform legal regime on the transport of cargo by sea, taking into account the ever-changing needs, should now be a priority objective of maritime legislation.Legal adviser Mateusz Romowicz
Legal Marine - Legal Consultancy Gdynia