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The Hamburg Rules do not give the freedom to the arbitrators or the arbitration panel to decide the issue by applying lex mercatoria or principles of equity (ex aequo et bono) since Art 22(4) states that ‘the arbitrator or arbitration tribunal shall apply the rules of this convention’.
The future of the Hamburg Rules
The shipowning interests, regardless of the incorporation of Hamburg provisions in their maritime code, such as China and Australia, are still reluctant to make the Hamburg Rules in their entirety a part of their law, which suggests that they are still holding on to the past with an iron grip. Objections based on high insurance costs as a result of increase in liability amounts and the dropping of negligence in navigation exception, as well as uncertainty in litigation, are still vehemently rehearsed. The political origins of the instrument have also played a dominant role in its dismissal as an undesirable convention. The mandatory application of the Hamburg Rules to outward and inward shipments is arguably the factor most likely to make the force of the Hamburg Rules felt, but this will take time since the impact of the nations who are contracting states on world trade is negligible. However, it must be pointed out that a number of countries who have not ratified the Hamburg Rules have, nonetheless, amended their maritime codes to reflect some of the provisions of their maritime code. Notable among these are China, Australia and Sweden. In the meantime, another convention affecting carriage of goods by sea (considered briefly in the following section) has appeared on the maritime scene, which may displace the existing conventions and may succeed in harmonising the law on sea carriage in a more satisfactory manner.
The Rotterdam Rules (The UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea)
The UN adopted the text of its new convention, the UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (hereinafter ‘the Convention’), on 11 December 2008.54 The Resolution adopted by the General Assembly also recommended that the rules embodied in the Convention be called the ‘Rotterdam Rules’. The Convention requires twenty ratifications, acceptances, approvals or accessions to come into force.55 Once a state becomes a party to this Convention, it will have to denounce the other conventions it may be a party to (e.g., the Hague Rules, the Hague-Visby Rules or the Hamburg Rules).56
The initial initiative for this Convention is traceable to 1996.57 The Commission, informed of the gaps in the existing international legal framework in respect of bills of lading and seaway bills, their relation to the rights and obligations of the seller, the buyer and the parties providing financing, and the uncertainties caused by the emergence of electronic communication, asked the
54Resolution adopted by the General Assembly, A/Res/63/122, 2 February 2009.
55Art 94.
56Art 89.
57See paras 210–14 UN Document A/CN 9 WG III WP21. See Girvin, ‘The 37th Comité Maritime International Conference: a report’ [2001] LMCLQ 406, for a review of the developments that took place in respect of the draft international transport convention. See also Sturley, ‘The proposed amendments to the Carriage of Goods by Sea Act’ (1996) 18 Houston Journal of International Law 609; Sturley, ‘The proposed amendments to the Carriage of Goods by Sea Act: an update’ (2000–01) 13 University of San Francisco Maritime LJ 1.
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Secretariat to solicit views and possible solutions from states and international organisations (both inter-governmental and non-governmental) representing parties with an interest in international carriage of goods by sea. An invitation was extended to the CMI, who expressed their willingness to co-operate. In 1998, they were charged with the task of obtaining and analysing views from interested parties. In 2000, in a transport law colloquium jointly held by the Secretariat of UNCITRAL and CMI, the Commission supported their continued co-operation and requested they produce a report identifying the issues on which further work by the Commission was required. The report, put before the Commission in 2001, resulted in the setting up of the Working Group on Transport Law.The Secretariat, charged with preparing possible draft solutions for consideration by the Working Group on Transport Law in April 2002, produced the Preliminary Draft Instrument on the Carriage of Goods by Sea. This underwent various amendments and the final version was adopted in 2008.
Scope of application
The Rotterdam Rules apply to contracts of carriage where the port of loading or place of acceptance and the port of discharge or the place of delivery are located in different states.58 There is no requirement that both the places/ports are in contracting states. It is sufficient if one of the states is a contracting state, thus creating the potential for the Rules to have wide applicability. ‘Contract of carriage’, compared with other sea transport conventions, is defined widely to include not only carriage by sea, but also carriage by other modes of transport used in addition to the sea carriage.59 In other words, the Rotterdam Rules bring door-to-door transport within its ambit. For instance, where the goods are carried partly by sea and partly by road and the port of delivery is in a contracting state, then the Rotterdam Rules will be applicable. There are, however, a number of international conventions relating to carriage by other modes.60 To avoid potential conflicts, the Rotterdam Rules make way for network liability. So where a non-sea leg part of the carriage would have attracted the application of a mandatory international convention (had a separate contract for that leg of the journey been made between the carrier and the shipper) and if the loss, damage or delay was caused in that segment, then the carrier’s liability will be determined by the other international convention.61 A similar approach to combined transport is also to be found in other transport conventions.62
Unlike the Hague-Visby Rules, the Rotterdam Rules do not require any specific document (i.e., a bill of lading or similar document to be issued) to trigger its applicability. It applies to all transport documents,63 such as waybills and negotiable transport documents, such as bills of lading, although the Rules refrain from using the phrase ‘bill of lading’. Instead, it adopts the phrase ‘negotiable transport document’ defined in Art 1(16) as ‘a transport document that indicates, by wording such as “to order” or “negotiable” or other appropriate wording recognised by the law applicable to the document, that the goods have been consigned to the order of the shipper, to the order of the consignee, or the bearer, and is not explicitly stated as being “non-negotiable” or
58Art 5(1).
59Art 1(1).
60For further on this see Chapters 10, 11, 12 and 13.
61Art 26. This type of liability is often called network liability.
62See Chapter 13.
63It is defined in Art 1(14) as follows:
. . . means a document issued under a contract of carriage by the carrier that:
(a)evidences the carrier’s or a performing party’s receipt of goods under a contract of carriage;
(b)evidences or contains a contract of carriage.
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“not negotiable” ’. As in the Hague-Visby and Hamburg Rules, charterparties are excluded from the Rotterdam Rules.64
The Rotterdam Rules recognise electronic versions of transport documents (negotiable and non-negotiable), and, where such electronic transport records65 are used, Art 9 requires that procedures for methods of issuing and transferring the record, ensuring their integrity, method for the holder to demonstrate that he is the holder, and confirmation of delivery to holder are in place. Further details or indications of acceptable procedures are not provided, which is disappointing since it may result in divergent approaches in different jurisdictions. The transport industry itself is likely to take steps in harmonising the procedures.The CMI Rules on Electronic Bills of Lading or the BOLERO Rules may provide the necessary framework.66
One of the noticeable features of the Rotterdam Rules is the adoption of some new terminology67 and a move away from hitherto established terms – for example, ‘bill of lading’ and ‘actual carrier’ being the most obvious. The adoption of new phrases may be viewed with some caution by states considering ratification since it has the potential to cause uncertainties in interpretation. Nonetheless, it has to be said that this move away from established terminology found in the context of sea carriage is justifiable since the Rotterdam Rules go beyond simply sea carriage to include the utilisation of another mode of transport.
The Rotterdam Rules are not applicable to gratuitous carriage since Art 1(1) specifies that the contract made by a carrier for carrying goods is to be against payment of freight. Goods for the purposes of the Rules are merchandise, wares and articles of all kinds and also include the packing and containers that are supplied by the shipper.68
The Rotterdam Rules apply to all types of cargo. However, like the Hamburg Rules, there are specific provisions in respect of deck cargo and live animals. The carrier is allowed to carry goods on deck where:
•required by statutory rules and regulation,
•they are carried in containers or vehicles and the decks are adequately fitted for carrying these containers and vehicles,
•the shipper and carrier have agreed in their contract of carriage or
•there is usage or practice to do so in a particular trade.69
In the event of permitted deck carriage, the carrier is not liable for any loss or damage to the goods caused by the special risks inherent in the carriage of deck cargo. However, where there is unauthorised deck carriage, the carrier will lose his entitlement to the list of defences provided by Art 17, if the loss or damage to the goods have been caused as a result of deck carriage.To illustrate, if sacks of sand
64Art 6. Note that the Rotterdam Rules make a distinction between liner transportation and volume contract. Liner transportation, according to Art 1(3), refers to transportation service that is offered to the public through publication or similar means and includes transportation by ships operating on a regular schedule between specified ports in accordance with publicly available timetable of sailing dates. Volume contract, conversely, according to Art 1(2), means a contract of carriage that provides for carriage of a specified quantity of goods in a series of shipments during an agreed period of time.
65Art 1(17) defines electronic transport record as information in one or more messages issued by electronic communication under a contract of carriage by a carrier, including information logically associated with the electronic transport record by attachments or otherwise linked to the electronic transport record contemporaneously with or subsequent to its issue by the carrier, so as to become part of the electronic transport record, that: (a) evidences the carrier’s or a performing party’s receipt of goods under a contract of carriage; and (b) evidences or contains a contract of carriage.
66See Chapter 6.
67See p 299 on ‘performing party’.
68Art 1(26).
69See Art 25 (1) (a)–(c).
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strapped to pallets are carried on deck, in the absence of usage or agreement, and are lost in heavy seas, the carrier will not be entitled to raise, for instance, the defence of perils, dangers and accidents of the sea allowed under Art 17(3)(b).
In respect of live animals, Art 81 permits the exclusion or limitation of liability, but this will be ineffective if the claimant proves that loss, damage or delay in delivery resulted from an act or omission of carrier or those who acted on his behalf ‘done with the intent to cause such loss of or damage to the goods or such loss due to delay or done recklessly and with knowledge that such loss or damage or such loss due to delay would probably result’. The language used is largely similar to that found in Art 25 of Warsaw Convention as amended by the Hague Protocol, and no doubt the jurisprudence that has developed in relation to that provision will be of some relevance.70
Carrier’s responsibilities, liabilities and rights
As will become apparent from the following paragraphs, the framework adopted by the Rotterdam Rules is influenced by the existing sea carriage conventions, the Hague-Visby Rules and the Hamburg Rules, and other transport conventions, such as the CIM Rules on rail transportation.71 The result certainly is an odd mixture that may indeed act as a disincentive when it comes to the question of its ratification. It will be interesting to monitor over the next few years the reception of the Rotterdam Rules by the cargo owning interests and shipowning interests since, as will become more apparent in subsequent sections, the carrier seems to be placed under a fairly onerous burden, even though a number of defences are available to him.
Definition of carrier
Like the Hamburg Rules, a distinction is drawn between a ‘carrier’ and an ‘actual carrier’, except the Rotterdam Rules use the phrase ‘performing party’, which is wider in ambit. A carrier is ‘a person who enters into a contract of carriage with a shipper’.72 This is designed to include a range of persons from the freight forwarder and charterer to the shipowner who signs the contract of carriage. A performing party, conversely, is one ‘who performs or undertakes to perform any of the carrier’s obligation with respect to the receipt, loading, handling, stowage, carriage, care, unloading or delivery of the goods directly or indirectly, at the carrier’s request or under the carrier’s supervision or control’.73 This is designed to include a range of actors, from stevedores and providers of warehousing facilities to other transport operators. Performing party is classified further into a ‘maritime performing party’ and refers to a party who performs any of the carrier’s obligations at the port of loading or at the port of discharge – for instance, a party who offers lightering services to the carrier. It is also possible that an inland carrier might offer services exclusively within the port area – for instance, where the goods have to be transported from a ship to a warehouse at the perimeters of the port. Such a carrier would also be regarded as a maritime performing party according to Art 1(2)(7).74
70See Chapter 10.
71See Chapter 12 for further on the CIM Rules.
72Art 1(2)(5).
73Art 1(2)(6).
74For further on the liability of the carrier and the maritime performing party, see the subsequent section, ‘Responsibilities and liabilities of carrier and maritime performing party’.
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Responsibilities and liabilities of carrier and maritime performing party
The carrier is under an obligation to carry the goods to its destination and deliver them to the consignee.75 The period of responsibility runs from the time the goods are received to the time they are delivered.76 The question of when goods have been received or delivered will depend on the circumstances. Regulations at the place of delivery or place of receipt may determine when these events occur. So for instance, if the regulations require that the goods be collected for transportation from an authority, then the carrier will assume responsibility from the moment he collects from that authority. In the absence of such regulations, the parties may agree the precise time and location for receipt or delivery.77
Two positive obligations are imposed on the carrier by the Rotterdam Rules that are reminiscent of the carrier’s obligations under the Hague-Visby Rules.78 One is in relation to care of cargo, the other in relation to seaworthiness. As for care of cargo, the carrier, during his period of responsibility, must properly and carefully receive, load, handle, stow, carry, keep and care for, unload and deliver the goods.79 The obligation in respect of seaworthiness refers to both the physical safety of the ship and cargoworthiness – that is, the state of the ship to carry the cargo. The carrier is required to exercise due diligence in making the ship80 seaworthy, properly crew and equip it and ensure that the parts of the ship in which the goods are carried or the containers81 supplied by the ship are fit and safe for their reception, carriage and preservation.82 This obligation to exercise due diligence, unlike the Hague-Visby Rules, is a continuous obligation – that is, the obligation runs from before through during the voyage.83 This is a major departure and is likely to be perceived as heavily weighted against the carrier. This continuous obligation will be reflected in higher insurance costs, thus resulting in higher freight rates. In light of the current economic downturn, carriers in shipowning countries are highly likely to lobby strongly against the Rotterdam Rules. Higher insurance cost was a reason often advanced by shipowning states against the Hamburg Rules.
As for the carrier’s liability, the approach adopted may come across as a strange combination of the liability schemes found in the Hamburg Rules and the Hague-Visby Rules. Like the Hamburg Rules, the carrier is liable for loss or damage to the goods or delay in delivery during his period of responsibility. The onus is on the carrier to prove that the cause or one of the causes of the loss, damage or delay is not attributable to his fault or the fault of the performing party, the ship’s crew or master of employees, be they his or the performing party’s.84 However, then Art 17(3) gives the carrier an opportunity to point to one of the events listed in it to relieve himself of liability. This is an alternative to proving absence of fault. The list contained in Art 17(3) largely resembles Art IV(2) of the Hague-Visby Rules but does not include the highly criticised negligence in navigation or management of ship and the catch-all exception found in Art IV(2). There are some innovative provisions as well, one in particular regarding reasonable measures to avoid damage to the environment. Equally, some of the language used in the defences is couched in more modern language – for instance, there is no reference to ‘restraint of princes’. Instead, it is ‘interference by or impediments created by government, public authorities, rulers ...85
75Art 11.
76Art 12.
77Ibid.
78See Chapter 8.
79Art 13(1).
80‘Ship’ is defined in Art 1(25) as any vessel used to carry goods by sea.
81‘Container’ is defined in Art 1(26) as any types of container, transportable tank or flat, swapbody, or any similar unit load used to consolidate goods, and any equipment ancillary to such unit load.
82Art 14.
83Ibid.
84Arts 17(1) and (2).
85Art 17(2)(e).
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Like the Hamburg Rules, there is no specific provision on deviation.The long list of defences in Art 17(3), however, provides for saving or attempting to save life at sea (Art 17(3)(l)) and reasonable measures to save or attempt to save property at sea (Art 17(3)(m)). The question of whether the defences or limitations provided by the Rotterdam Rules are available in the event of deviation is settled in favour of the carrier by Art 24, which provides:
When pursuant to applicable law a deviation constitutes a breach of the carrier’s obligations, such deviation in itself shall not deprive the carrier or a maritime performing party of any defences or limitation of this Convention, except to the extent provided in article 61.86
Seaworthiness, however, is a fundamental obligation on the carrier’s part in the Rotterdam Rules. So, despite of the defences available to carrier, if the claimant proves that unseaworthiness, improper crewing, equipping and supplying of the ship, the lack of fitness of the containers or parts of the ship for the reception and carriage of the goods caused or contributed to the loss, damage or delay, the carrier will be liable, unless he can show otherwise. The onus is then on the carrier to show, for instance, that he had exercised due diligence in providing a seaworthy ship or that it was not poor equipping of the ship that caused the loss.87
The carrier’s liability includes the acts and omission of the performing party, as well as the employees of the performing party.88 The maritime performing party is also subject to the obligations and liabilities imposed on the carrier. In return, however, he is entitled to the carrier’s defences and limits of liability.89 The maritime performing party only assumes these obligations provided he received the goods in a contracting state or delivered them in a contracting state or performed any of the obligations in respect of the goods in a contracting state and the occurrence that caused the loss, damage or delay took place:
•during the period between the arrival of the goods at the port of loading of the ship and their departure from the port of the discharge,
•while the maritime performing party of the goods had custody of the goods or
•at any other time to the extent that it was participating in the performance of any of the activities contemplated by the contract of carriage.90
By way of illustration, a stevedore who loads in a non-contracting state would not be subject to the Rotterdam Rules’ scheme of obligations and liabilities, whereas a stevedore loading in a contracting state who damages the goods in the process of loading – that is, while the goods are in his custody – would be liable under the Rotterdam Rules.
The Rotterdam Rules also impart certain rights to the carrier. For instance, the shipper’s91 failure to provide information regarding dangerous goods, to furnish particulars that are accurate, to pack the goods properly and lash the contents of the container properly, as a result of which the carrier suffers loss or damage, means that the shipper will be liable to the carrier.92
86See p 309 on loss of limitation of liability.
87Art 17(5).
88Arts 18(a) and (c).
89Art 19(1).
90Art 19(2).
91‘Shipper’ is defined in Art 1(8) as a person that enters into a contract of carriage with a carrier. There is a further classification introduced by the Rules, and that is a ‘documentary shipper’ defined in Art 1(9) as a person, other than the shipper, that accepts to be named as the ‘shipper’ in the transport document or electronic transport record. This may become relevant, for instance, in extending right of control over the goods to persons other than the shipper.
92See Arts 27, 29, 30, 31 and 32.
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Documentary responsibilities
In the absence of agreement or custom, usage or practice of the trade, the shipper is entitled to a non-negotiable transport document or electronic record or a negotiable transport document or electronic record.93 Article 36 expects such documents to contain a number of particulars. These include the description of the goods, the leading marks for identification, number of packages, name and address of carrier,94 date on which goods received for carriage or date on which date loaded or date of issue of transport record, apparent order and condition of goods (which are to be based on a reasonable external inspection of the packaged goods at the time goods delivered for carriage and any additional inspection conducted by the carrier or other performing party at the time the transport document is issued).95
The Rotterdam Rules require that the transport document issued is signed and, where an electronic transport record is issued, the signature is to be an electronic signature.96 The carrier has the opportunity to qualify the information included in the transport document or record, according to Art 40. So, he can indicate that he does not assume responsibility for the accuracy of the information where he has actual knowledge or reasonable ground to believe that a material statement made in the document or record is false or misleading.97 The particulars on the transport document/ record are to be treated as prima facie evidence, but proof to the contrary will be inadmissible if they are transferred to an endorsee or consignee acting in good faith.98
Shipper’s liabilities
As made apparent in the section of carrier’s liabilities and rights, the shipper has a number of obligations in respect of packing, providing particulars, informing the carrier of the dangerous nature of the goods and marking them suitably. Any loss or damage caused as a result of insufficiency or inaccuracy will result in the shipper becoming liable. The onus for proving loss or damage as a result of the breach of the obligations by the shipper is on the carrier.99 If the shipper can establish that one of the cause or causes is not attributable to its fault, then, according to Art 30(2), he will be relieved of all liability or part of the liability. The liability of the shipper includes the acts or omissions of his employees, agents and sub-contractors to whom the performance of any of the obligations has been entrusted. This, however, does not include the acts or omissions of the carrier or the performing party acting on behalf of the carrier to whom the shipper has entrusted the performance of his obligations.100
As stated earlier (see Art 1(8)) the Rotterdam Rules recognise a documentary shipper. This documentary shipper is subject to the shipper’s obligations and liabilities but can also avail of the rights and defences available to the shipper.
93 |
Art 35. |
94 |
In the absence of not including the identity of the carrier, Art 37 addresses the issue of how the carrier is to be identified. |
|
If the ship’s name is indicated in the contract particulars, then the registered owner of the ship will be presumed to be the |
|
owner. See Chapter 8. |
95See Art 36 for a full list of particulars. See also Art 31.
96Art 38. For more on electronic signature, see Chapter 4.
97Art 40(1).
98See Art 41.
99Art 30(1).
100Art 34.
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Contracting out
Any stipulation that indirectly or directly excludes or limits the obligations or liability of the carrier or the maritime performing party for breach of an obligation under the Rotterdam Rules is void.101
Liability limits
The amount of limitation set by the Rotterdam Rules is greater than that of the Hamburg Rules. The SDR is the unit of account, and the carrier’s liability is limited to an amount equivalent to 875 units of account per package or other shipping unit, or 3 units of account per kilogram of the gross weight.102 Where the shipper has declared the value of the goods or when a higher amount than the amount of limitation of liability has been agreed between the carrier and the shipper, the liability amounts set by Art 59 do not apply.
Economic loss caused by delay in delivery is recognised by the Rotterdam Rules, and liability for such loss due to delay is limited to an amount equivalent to two and one-half times the freight payable on the goods delayed.103
The defences and limits set out in the Rotterdam Rules are available to the carrier, as well as others, such as the maritime performing party, the master, crew and employees of the maritime performing party, and are applicable regardless of whether the action is founded in contract, tort or otherwise.104
Calculation of liability – package or shipping unit
Liability is calculated in terms of shipping unit or package, and in this it is no different from the Hamburg Rules. So, if goods are carried in containers, for instance, it is important to enumerate the number of units packed within the containers, otherwise the container will be treated as one unit.105
Loss of liability limits
The entitlement to limit liability is, however, lost in certain circumstances – for instance, where the claimant proves that the loss resulting from a breach of the obligations under the Rules is attributable to a personal act or omission of the person (e.g., carrier, master or crew, performing party) claiming a right to limit done with the intent to cause such loss or recklessly and with knowledge that such loss would probably result.106 This is equally the case where there is delay in delivery.107
101Art 79. Note that there are special rules for live animals and particular goods (Art 81) and volume contracts (Art 82).
102Initially the Hague-Visby Rules liability amount was suggested but it met with a great deal of opposition.
103Art 60.
104Art 4.
105See Chapter 8 on calculating liability where containers are used.
106Art 61(1).
107Art 61(2). See Chapter 10 on interpretation of a similarly worded provision.
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Time limitation
The time for instituting an action, be it arbitral or judicial, is no different from the Hamburg Rules. It is two years,108 although the party against whom the claim is brought can extend the period during the running of the period with a declaration to the claimant. There is no limit placed on the number of times such an extension may be extended further.109
The period for the purposes of Art 62(1) commences from the day the carrier has delivered the goods. It is possible that the carrier may have delivered only part of the goods or has delivered no goods at all. In these circumstances, the commencement is the last day on which the goods should have been delivered.110 Where there is an action for indemnity, it can be instituted after the two-year limit set by Art 62(1) but within the time allowed by the law applicable of the jurisdiction where the action is brought or within ‘ninety days commencing from the day when the person instituting the action for indemnity has either settled the claim or has been served with the process in the action against itself’.111 This provision is no different from the Hamburg Rules.112
Choice of forum
Like the Hamburg Rules, the Rotterdam Rules provide for a choice of forum for both judicial and arbitral proceedings. For judicial proceedings, according to Art 66, an action against the carrier can be instituted in a court that is competent according to the law of the state and within its jurisdiction, where one of the following places are located:
•The domicile of the carrier, (Art 66(a))
•The place of receipt agreed in the contract of carriage, (Art 66(a))
•The place of delivery agreed in the contract of carriage, (Art 66(a))
•The port where the goods are initially loaded or the port where the goods are finally discharged from the ship (Art 66(a)) or
•The competent court or courts designated by agreement between the shipper and the carrier (Art 66(b)).113
As for an action against the maritime contracting party, the choice is more limited and restricted to the domicile of the maritime performing party or the ports where the goods are received/delivered by the maritime performing party or the port in which the maritime performing party performs its activities in relation to the goods.114
When it comes to arbitral proceedings, there is a number of choices available and these include the place designated in the arbitration agreement, or the place of the domicile of the carrier, the place of receipt/delivery agreed in the contract of carriage or the port where goods are loaded/ discharged from the ship.115
108Art 62(1).
109Art 63.
110Art 62(2).
111Art 64(b).
112See Art 20(5).
113Note that the court chosen by agreement is to be regarded as exclusive jurisdiction only in volume contracts (Art 67). A party who is not a party to the volume contract is bound by an exclusive jurisdiction clause only if it is included in the transport document/record or he has notice or the court is one of the places designated in Art 66(a) or the law of the court seised recognises that he may be bound by the exclusive choice of court agreement.
114Art 68.
115Art 75(1)–(3). Note also the provisions in respect of volume contracts in Art 75(4).
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Innovative provisions
The Rotterdam Rules also focus on areas hitherto unaddressed by the other sea transport conventions. These relate to delivery, rights of control and transfer of rights dealt with in Chapters 9, 10 and 11 regarding the Rules, respectively. The inclusion of aspects of cargo transportation,such as delivery, means that the contracting parties do not have to look to the applicable law to determine the scope of their obligations and liabilities in respect of delivery thus bringing about a greater degree of harmonisation.
Taking delivery first, the consignee is placed under an obligation to accept delivery116 and also acknowledge receipt of the goods if the carrier or performing party so require.117 Failure to provide this receipt may result in non-delivery.118 The delivery must be at the time and place agreed, although the rules on how delivery is to be affected and to whom will depend on the type of transport document. So, where a negotiable transport document has been issued, delivery will take place on surrender of the negotiable transport document and the holder119 of the document properly identifying itself.120 Where the transport document is a non-negotiable transport document that requires surrender, delivery can take place when the consignee properly identifies itself and against the surrender of the non-negotiable transport document.121
It is possible that goods remain undelivered for a number of reasons – for example, where the consignee or holder of the transport document has not been able to meet the stipulations required for delivery122 or the regulations at the port of discharge disallows the delivery of the goods to the consignee. In such circumstances, Art 48 enables the carrier to take a number of actions in respect of the goods, such as sell or destroy the goods or warehouse the goods at the risk of the person entitled to the goods provided he gives reasonable notice of the intended action.123
The Rotterdam Rules also impart some rights of control over the goods in limited circumstances, and these include the right to replace the consignee by any other person, including the controlling party, or the right to obtain delivery at a scheduled port during the carrier’s entire period of responsibility.124 The controlling party is normally the shipper, unless at the time of the conclusion of the carriage another person has been nominated by the shipper. The other persons for these purposes are the documentary shipper or the consignee. The right of control can, however, be transferred to another person, but, for it to become effective, it has to be notified to the carrier. Certain formalities also need to be followed by the controlling party to exercise this right of control, and these are to be found in Art 51(2)–(4). The right of control over the goods while they are in the carrier’s hands is not an entirely new concept and is also found in non-sea transport conventions.125
116Art 43.
117Art 44.
118Ibid.
119Holder is defined in Art 1(10) as:
(a)A person that is in possession of a negotiable transport document; and (i) if the document is an order document, is identified in it as the shipper or the consignee, or is the person to which the document is duly endorsed; or (ii) if the document is a blank endorsed order document or bearer document, is the bearer thereof; or
(b)The person to which a negotiable transport document has been issued or transferred in accordance with the procedures referred to in Article 9, paragraph 1.
120Art 45(1).
121Art 46, see also Art 45 for delivery when no negotiable transport document or negotiable electronic transport is issued.
122See Arts 45, 46 and 47.
123Art 48(1)–(3).
124Art 50.
125See Chapters 11 and 12.