The New Rotterdam Rules A Legal Point of View A presentation by Dr. Dieter Schwampe, Dabelstein & Passehl, Hamburg/Germany IUMI Professional Partners since 2010 2
Agenda Background and Development Main Aspects of the Rotterdam Rules Structure of the Rotterdam Rules Main Features of the Rotterdam Rules 3
Background and Development: Where we come from 1924 Hague Rules 1968 Visby Amendments 1978 Hamburg Rules 4
Background and Development: Where we are today - Hague Rules (pure) Americas: Anguilla, Antigua and Barbuda, Argentina, Bahamas, Belize, Bolivia, Cuba, Grenada, Guyana, Jamaica, Paraguay, Peru, Saint Kitts and Nevis, Saint Lucia, São Tomé and Príncipe, USA Africa/Middle East: Algeria, Angola, Cabo Verde, Cote d Ivoire, DR Congo, Guinea-Bissau, Iran, Israel, Kuwait, Madagascar, Mauritius, Mozambique, Seychelles, Somalia Europe: Croatia, Cyprus, Germany, Ireland, Portugal, Slovenia, Asia/Oceania: East Timor, Fiji, Malaysia, Nauru, Papua New Guinea, Solomon Islands, Tuvalu Source: German Insurance Association (GDV) 5
Background and Development: Where we are today - Hague-Visby Rules Americas: Ecuador, Mexico, Africa/Middle East: Syria Europe: Andorra, Belgium, Denmark, Finland, France, Greece, Italy, Monaco, Netherlands, Norway, Poland, Russia, Sweden, [Spain], Switzerland, United Kingdom Asia/Oceania: Australia, Japan, New Zealand, Singapore, Sri Lanka, Tonga Source: German Insurance Association (GDV 6
Background and Development: Where we are today - Hamburg Rules Americas: Barbados, Chile, Guinea, St. Vincent and the Grenadines Africa/Middle East: Burkina Faso, Congo, Egypt, Gambia, Jordan, Cameroon, Kenya, Lebanon, Lesotho, Malawi, Morocco, Nigeria, Senegal, Sierra Leone, Tanzania, Tunisia, Uganda, Zambia Europe: Austria, Czech Republic, Hungary, Romania, Slovakia Asia/Oceania: Georgia Source: German Insurance Association (GDV 7
Background and Development: Historical characteristics Model bill of lading rather than ocean transport convention No application without a bill of lading Only application to the bill of lading, not to the underlying contract of affreightment 8
Background and Development: On the Way to Rotterdam 1990: UNCITRAL Secretariat requests CMI to prepare a study Subject: Electronic Data Interchange (EDI) as a basis for electronic trade EDI as means for transfer of title to the goods traded focus broadened: From EDI to transport document 9
The Main Aspects of the Rotterdam Rules Focus on Trade rather than transport Transport as an essential to facilitate trade Transport law in line with practices and requirements of modern trade Rules on liability important, but only one aspect of international trade 10
The Main Aspects of the Rotterdam Rules Maritime plus : from sea transport to integrated transport Multimodal, but linked to sea transport From tackle to tackle (Hague-Visby) via Port to Port (Hamburg) to door to door Transport law follows insurance practice Delineation to other transport conventions 11
The Structure of the Rotterdam Rules Ch. 1: General Provisions: Definitions and form requirements Ch. 2: Scope of application Ch. 3: Electronic transport records Ch. 4-6: Obligations and liability of the carrier Ch. 7: Obligations of the shipper Ch. 8: Transport documents and electronic records Ch. 9: Delivery of Goods Ch. 10: Rights of the controlling party Ch. 11: Transfer of rights Ch. 12: Limits of Liability Ch. 13-15: Time for suit; Jurisdiction; Arbitration Ch. 16-18:Validity of contractual terms; final clauses 12
Main features and innovations of the Rotterdam Rules Scope of Application - Art. 5 RR: this Convention applies to contracts of carriage in which the place of receipt and the place of delivery are in different States, RR apply if any of the following is located in a Convention state: (a) the place of receipt; (b) the port of loading; (c) the place of delivery; (d) the port of discharge. 13
Main features and innovations of the Rotterdam Rules Period on responsibility - Art. 12 RR: 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. 14
Scope of application (door-to-door principle) Hague-Visby Rules Hamburg Rules Rotterdam Rules From Loading Port of loading Place of receipt/ loading To Discharging Port of discharging Place of destination/ discharging
Main features and innovations of the Rotterdam Rules Delineation to other conventions: Art. 26 If loss/damage occur prior to or after sea transport, Convention does not prevail over other conventions, that - would have applied in case of a separate contract - provides for 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. 16
Main features and innovations of the Rotterdam Rules Liability regime: similar structure as Hague-Visby - separation of rules on obligations and liability - ch. 4: carrier s obligations / ch. 5: carrier s liability Ch. 4: Responsibility of the Carrier - distinction between general duty of care Art. 13: The carrier shall properly and carefully receive, load, handle, stow, carry, keep, care for, unload and deliver the goods. and seaworthiness Art. 14: The carrier is bound before.. the voyage by sea to exercise due diligence to: (a) Make and keep the ship seaworthy 17
Main features and innovations of the Rotterdam Rules Liability regime: similar structure as Hague-Visby - separation of rules on obligations and liability - ch. 4: carrier s obligations / ch. 5: carrier s liability Ch. 4: Responsibility of the Carrier - distinction between general duty of care Art. 13: The carrier shall properly and carefully receive, load, handle, stow, carry, keep, care for, unload and deliver the goods. - and seaworthiness Art. 14: The carrier is bound before, at the beginning of, and during the voyage by sea to exercise due diligence to: (a) Make and keep the ship seaworthy 18
Main features and innovations of the Rotterdam Rules Liability regime: similar structure as Hague-Visby - separation of rules on obligations and liability - ch. 4: carrier s obligations / ch. 5: carrier s liability Ch. 4: Responsibility of the Carrier - distinction between general duty of care Art. 13: The carrier shall properly and carefully receive, load, handle, stow, carry, keep, care for, unload and deliver the goods. - and seaworthiness Art. 14: The carrier is bound before, at the beginning of, and during the voyage by sea to exercise due diligence to: (a) Make and keep the ship seaworthy 19
Main features and innovations of the Rotterdam Rules Maritime Performing Party: Maritime performing party means a performing party to the extent that it performs 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. 20
Main features and innovations of the Rotterdam Rules Liability of the Maritime Performing Party, Art. 19: - same obligations and liability and same defences as a carrier, if: - goods received for carriage or delivered in a Contracting State, or - activities performed in a port in a Contracting State; 21
Limitation of liability Hague-Visby Rules Hamburg Rules Rotterdam Rules 2 SDR per KG 2.5 SDR per KG 3 SDR per KG 666.67 SDR per package 835 SDR per package 875 SDR per package
Main features and innovations of the Rotterdam Rules Obligations of the shipper/receiver Condition of the goods, Art. 27 (1): - goods must be able to withstand the intended carriage - goods will not cause harm to persons or property. Information on dangerous nature of goods, Art. 32 (no fault) liability for dangerous goods, Art. 30 (2): 23
Main features and innovations of the Rotterdam Rules Obligations of the shipper/receiver Obligation to accept delivery, Art. 43 (1): When the goods have arrived at their destination, the consignee that demands delivery of the goods under the contract of carriage shall accept delivery of the goods. 24
Main features and innovations of the Rotterdam Rules Obligations of the shipper/receiver Obligation to accept delivery, Art. 43 (1): When the goods have arrived at their destination, the consignee that demands delivery of the goods under the contract of carriage shall accept delivery of the goods. 25
Main features and innovations of the Rotterdam Rules Documents: (non-) negotiable transport documents (~ bill of lading) (non-) negotiable electronic transport record - No rules, just a frame work for agreements, Art. 9 problematic: Art. 47.2: Delivery without presentation of a negotiable document 26
Main features and innovations of the Rotterdam Rules Controlling party, Art. 51: - shipper - any other party designated in the contract of carriage Rights of a controlling party, Art. 50 - give or modify instructions in respect of the goods - obtain delivery of the goods - The right to replace the consignee by any other person including the controlling party. 27
Main features and innovations of the Rotterdam Rules Mandatory application any contractual terms is void which aims at: - excluding or limiting obligations or liability of the carrier or the maritime performing party - excluding or limiting or increasing obligations or liability of the shipper, consignee, controlling party, holder or documentary shipper 28
My own personal résumé: The rules are modern, but long and complicated They may lead to years of national litigation with differing results That may be lawyer s paradise But: Probably they are the last opportunity for real unification. For this reason they deserve support despite justified criticism on certain technical aspects 29
Thank you for your attention Please address questions and suggestions to: d.schwampe@da-pa.com 30