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The Carrier’s Obligations over the Cargo Under the Hague-Visby Rules and the Rotterdam Rules

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The Obligations of the Carrier Regarding the Cargo

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Abstract

This chapter lays down extensively the legal framework of the carrier’s obligations over the cargo. The chapter first establishes where the Hague and Hague-Visby Rules are situated in the nowadays fragmented law on international sea transport. To that end, substantial information is provided as to the development and evolution of the law regulating international carriage of goods by sea, in particular, the Hague/Hague-Visby Rules, the Hamburg Rules, and the Rotterdam Rules. The chapter provides justification why the Hague-Visby Rules, being the leading maritime liability regime, form a central part of the analysis and why at the same time the relevant provisions of the Rotterdam Rules are also extensively covered. In view of the scope and subject matter of this work, Article III rule 2 HVR and Articles 11 and 13 RR quite naturally play a central role in the discussions. However, a more extensive approach is undertaken so that the analysis comprises, among others, the entire Articles II and III HVR in order to understand the rationale behind these provisions and the environment in which they are found and operate.

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Notes

  1. 1.

    Delebecque, Ph. (2010b) Obligations of the Carrier. In: von Ziegler, Al., Schelin, J., Zunarelli, St. The Rotterdam Rules 2008: Commentary to the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, (2010) Alphen aan den Rijn: Kluwer Law International, p. 71.

  2. 2.

    The Hamburg Rules, on the other hand, adopted a different model, upon which the carrier’s obligations are implied under the general provision on liability.

  3. 3.

    The terms “obligations” and “duties” are used interchangeably in the present work.

  4. 4.

    See the Rotterdam Rules, Chapter 4.

  5. 5.

    von Ziegler, Al. (2009) The Liability of the Contracting Carrier. Tex. Int’l. L.J., Vol. 44 (Spring), p. 329 at p. 332.

  6. 6.

    Hristov, B. (1977) The Responsibility of the Sea Carrier in Containerized Shipments, issued by the Library to the Bulgarian Chamber of Commerce and Industry (BCCI), Sofia, signature №105, pp. 4–5 [Original Cyrillic alphabet publication: Божидар Христов – “Отговорност на морския превозвач при контейнерните превози”, Библиотека “Българска търговско- промишлена палата” (БТТП), София (1977), сигнатура №105, стр. 4–5].

  7. 7.

    This was when the bill of lading as a shipping document gained more functions and turned from a mere receipt into a document of title and an evidence of the contract of carriage. See Chap. 1, Sect. 1.2.1.2 above.

  8. 8.

    Astle, W.E. (1980) Shipping and the Law. Fairplay Publications, pp. 1–2.

  9. 9.

    The category broadly referred to as ship-operating countries normally operate a substantial fleet and, naturally, uphold carrier interests. In general, these are industrialized and developed nations such as the USA, the UK, the Netherlands, Germany and Japan. On the other hand, the so-called shipping countries are in favor of cargo interests due to the fact that their nationals are usually shippers or consignees. Most of these countries are developing countries with emerging economies.

  10. 10.

    Walker, R.C. (1963) Regulating Ocean Shipping: Powers and Problems of the Federal Maritime Commission. 51 Cal. Law. Rev. 986.

  11. 11.

    These geographically confusing designations stem from the pre-history of the Hague Rules. In the context of the abovementioned problems in international marine shipping, the International Law Association (ILA), which was founded in 1873 in Brussels and have its Headquarters Secretariat in London, convened a conference in September 1921 to rectify the existing problems. The conference, which took place in the Hague and was highly influenced by the English maritime and transport concepts and ideas, eventually passed draft rules that were called “Hague Rules, 1921, defining the Risks to be assumed by Sea Carriers under a Bill of Lading.” These were seen as an international solution to the unbalanced positions of carriers and shippers. General adoption of the Rules did not, however, materialize and that led to a subsequent Diplomatic Conference held in Brussels in 1922 aimed at passing a convention based on these Rules that would be internationally adopted. The Conference appointed a Committee, which, in October 1923, carried out slight modifications to the Rules. Thus, with some alterations, the Hague Rules became the basis of the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading adopted in Brussels on August 25, 1924. See Gregory, Ch.N. (1922) The Thirtieth Conference of the International Law Association. The Am. J. Int’l L, Vol. 16, No. 3 (July), pp. 451–456 and W.E. Astle – ‘Shipping and the Law’, Fairplay Publications (1980), p. 2.

  12. 12.

    For example, the limit of carrier’s liability was increased under the Visby Protocol and the limitation assumed two formats – one per package or unit and the other one per kilo of gross weight, whichever is the higher (see the Hague Rules, Art. IV rule 5 and Hague-Visby Rules, Art. IV rule 5(a)). Shortly thereafter, the SDR Protocol brought the Rules up to date with the IMF’s current unit of account – the special drawing rights (SDR) which replaced the abandoned gold standard and its unit, the Poincaré franc. The SDR are a unit of account which is based on the weighted average value of several major currencies, and which is less susceptible to inflation.

  13. 13.

    Gaudron, Gummow and Hayne, JJ in Great China Metal Industries Co. Ltd. v. Malaysian International Shipping Cooperation Berhad (The “Bunga Seroja”) [1999] 1 Ll. L. Rep 512.

  14. 14.

    See Sect. 2.3.1 below.

  15. 15.

    Force, R. (2004) Admiralty and Maritime Law. University of Michigan Library, p. 53.

  16. 16.

    Ramberg, J. (1993) Freedom of Contract in Maritime Law. Ll. Mar. & Com. L. Q., pp. 178–191 at p. 179.

  17. 17.

    Ramberg, J. (1993) Freedom of Contract in Maritime Law. Ll. Mar. & Com. L. Q., pp. 178–191 at p. 179.

  18. 18.

    See, for instance, In Re: Missouri Steamship Company (1889) 42 Ch.D 321, 326.

  19. 19.

    For instance, the Harter Act (1893) in the USA, which is said to have laid the foundations of all international maritime legislation that followed; the Sea-Carriage of Goods Act (1904) in Australia; the Water-Carriage of Goods Act (1910) in Canada, and the Shipping and Seamen Act (1908) in New Zealand. The Harter Act, in particular, was the basis for the 1924 Hague Rules. This Act, essentially, prohibited the exoneration of the carrier’s liability for negligence and for errors in exercising due diligence to provide a seaworthy vessel, while on the other hand a limitation of liability was provided in certain instances (e.g. errors of navigation, sea perils, acts of God). This is the quintessence of the Harter Act, namely, that it introduced and codified the sharing of risks between ship interests and cargo interests. The concept of risk sharing between maritime parties was already found in other legal institutes such as marine cargo insurance and general average. Without it, these particular markets would have had a completely different structure and functioning. That is why the Harter Act played such an important role in the development of the law of the carriage of goods by sea.

  20. 20.

    Along with the countries which adopted the Hague Rules, all put together, the total number of states that adhere to the Hague/Hague-Visby Regime exceeds 90.

  21. 21.

    The International Group of P&I Clubs (the Group) is an association of the 13 principal P&I clubs (nonprofit mutual clubs) which insure wide range of third-party liability related to the use and operation of a vessel such as oil pollution, collision, cargo damage, personal injury to passengers and/or crew. These 13 clubs cover collectively about 90–92% of the sea-going vessels tonnage.

  22. 22.

    United Nations Convention on the Carriage of Goods by Sea (1978).

  23. 23.

    http://www.uncitral.org/uncitral/en/uncitral_texts/transport_goods/Hamburg_status.html.

  24. 24.

    Unlike the Hague-Visby Rules, for example, the Hamburg Rules hold the carrier liable for negligence and errors of navigation or management of the ship on behalf of the master, mariner or carrier’s agents (see the Hamburg Rules, Article 5). Also, the time-bar is extended from one to two years (see the Hamburg Rules, Article 20(1)), significantly lessening the possibility that shippers would lose their right of suit because of a time lapse.

  25. 25.

    United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly By Sea.

  26. 26.

    Hooper, Ch.D. (2010) Book Review of “The Rotterdam Rules: A Practical Annotation” and “A New Convention for the Carriage of Goods by Sea – The Rotterdam Rules”, J. Mar. L.& Com., Vol. 41, p. 144, fn. 2.

  27. 27.

    The Convention was adopted through Resolution 63/122 passed by the UN General Assembly.

  28. 28.

    United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, Article 88.

  29. 29.

    See http://www.uncitral.org/uncitral/en/uncitral_texts/transport_goods/rotterdam_status.html for the status of the ratification process.

  30. 30.

    United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, Article 94.1.

  31. 31.

    Strategic goals and recommendations for the EU’s maritime transport policy until 2018 (2009/2095(INI)), text adopted by the European Parliament on 5 May 2010 in Brussels. It can be accessed on: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2010-0128+0+DOC+XML+V0//EN. Document: A7-0114/2010.

  32. 32.

    See the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, Article 89.

  33. 33.

    Thomas, D.Rh. (2009) A New Convention for the Carriage of Goods by Sea – The Rotterdam Rules: An Analysis of the UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea. Lawtext Publishing Limited, Preface, p. v.

  34. 34.

    In common jargon the Convention is also referred to as a “wet multimodal transport” convention, a “maritime multimodal” convention, or a “maritime plus multimodal” convention. See Güner-Özbek, M.D. (2011) The United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea: An Appraisal of the Rotterdam Rules. Hamburg Studies on Maritime Affairs, Springer, p. 140. See also Baatz, Y., DeBattista, Ch., Lorenzon, F., Serdy, A., Staniland, H. & Tsimplis, M. (2009) The Rotterdam Rules: A Practical Annotation. Informa Law, pp. 15–16, para. [5-01].

  35. 35.

    The Rotterdam Rules, Article 1.1: “The contract [of carriage] shall provide for carriage by sea and may provide for carriage by other modes of transport in addition to the sea carriage.”

  36. 36.

    Working Group III on Transport Law, 11th session (New York, March 24 – April 4, 2003). See A/CN.9/WG.III/WP.29, para. 25.

  37. 37.

    Mitsubishi Corporation v Eastwind Transport Ltd and Others (The “Irbenskiy Proliv”) [2005] 1 Ll. L. Rep. 383.

  38. 38.

    Margetson, N.J. (2008) Liability of the carrier under the Hague (Visby) Rules for cargo damage caused by unseaworthiness of its containers. 14 J. Int’l Mar. L., pp. 153–161, at p. 160.

  39. 39.

    See the Harter Act (1893), Sec.191.

  40. 40.

    Shipowners who are not common carriers are liable only as bailees and their liability stretches to loss caused by negligence. That is, a carrier will not be found liable in case it proves that it exercised due care and diligence. See Scrutton, Th.Ed., Boyd, St.C., Burrows, A.S., Foxton, D. (1996) Scrutton on Charterparties and Bills of Lading (20th ed), Sweet & Maxwell, Article 105, pp. 200–201.

  41. 41.

    Forward v. Pittard (1785), K.B.1 Term Report 27.

  42. 42.

    Baughen, S. (2015) Shipping Law (6th ed), p. 88.

  43. 43.

    Notara v. Henderson (1872) L.R. 7 Q.B. 225, pp. 235 and 236. In this case, the plaintiffs shipped beans on board the defendants’ vessel from Alexandria to Glasgow as the bills of lading allowed calling at intermediate ports. After the vessel left the port of Liverpool, she collided without any fault on behalf of the carrier, which constituted an excepted peril under the bills of lading. The vessel had to go back to Liverpool for a repair, where it was discovered that the beans were damaged by sea water ingress. At that point, the plaintiffs requested the wetted cargo to be discharged but the defendant shipowners denied and continued with the carriage of the cargo to its final destination in Glasgow where, however, the beans were already significantly impaired and its value immensely decreased in comparison with the value of the cargo if it had been discharged and dried at Liverpool. Eventually, the court ruled in favor of the shippers. The shipowners had to pay damages as, regardless of the excepted peril, they had breached their duty to take reasonable care (emphasis added) for the goods entrusted to them.

  44. 44.

    A fundamental breach is one that goes to the roots of the contract, and it usually occurs when either party breaches a condition. To the contrary, a breach of a warranty or an innominate term, which does not go to the roots of the contract, is not considered a fundamental breach.

  45. 45.

    It is difficult to outline a comprehensive list of all the various contractual exceptions. For the most frequent ones that appeared before the court, see Scrutton, Th.Ed., Boyd, St.C., Burrows, A.S., Foxton, D. (1996) Scrutton on Charterparties and Bills of Lading (20th ed), Sweet & Maxwell, Articles 106 to 119.

  46. 46.

    Tetley, W. (2004) The Burden and Order of Proof in Marine Cargo Claims.

  47. 47.

    Note that due to the term’s Latin name (onus probandi), it is sometimes also referred to as onus of proof.

  48. 48.

    See Sect. 2.3.1 above.

  49. 49.

    See The “Xantho” (1887) 12 App. Cas. 503.

  50. 50.

    It should be noted that the suggested division of duties is provided merely for reference of the reader and is by no means exhaustive.

  51. 51.

    Thomas, D.Rh. (2009) A New Convention for the Carriage of Goods by Sea – The Rotterdam Rules: An Analysis of the UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea. Lawtext Publishing Limited, Chapter 3, pp. 58–59.

  52. 52.

    Papera Traders co. Ltd. and Others v Hyundai Merchant Marine Co. Ltd. and Another (The “Eurasian Dream”) [2002] 1 Ll. L. Rep. 719, p. 736, para. 128.

  53. 53.

    Kopitoff v. Wilson (1876) 1 Queen’s Bench Division 377, p. 380; Steel v. State Line Steamship Co. (1877) 3 App. Case, p. 86.

  54. 54.

    Comité Maritime International (CMI), The Travaux Préparatoires of the Hague Rules and of the Hague-Visby Rules, p. 145, para. [82].

  55. 55.

    Compania Sud Americana De Vapores SA v Sinochem Tianjin Import and Export Corporation (The “Aconcagua”) [2010] 1 Ll. L. Rep. 1.

  56. 56.

    Parsons Corporation and Others v CV Scheepvaartonderneming Happy Ranger (The “Happy Ranger”) [2006] 1 Ll. L. Rep. 649.

  57. 57.

    Parsons Corporation and Others v CV Scheepvaartonderneming Happy Ranger (The “Happy Ranger”) [2006] 1 Ll. L. Rep. 649, p. 653, para. 19.

  58. 58.

    Papera Traders co. Ltd. and Others v Hyundai Merchant Marine Co. Ltd. and Another (The “Eurasian Dream”) [2002] 1 Lloyd’s Law Reports 719, p. 736, para. 126–127.

  59. 59.

    A statement of Lord Justice Scrutton in F. C. Bradley & Sons Ltd. v Federal Steam Navigation Co. [1926] 24 Ll. L. Rep. 446, p. 454. This statement was maintained also in Eridania S.p.A. and Others v Rudolf A. Oetker and Others (The “Fjord Wind”) [2000] 2 Ll. L. Rep. 191, p. 197.

  60. 60.

    Papera Traders co. Ltd. and Others v Hyundai Merchant Marine Co. Ltd. and Another (The “Eurasian Dream”) [2002] 1 Ll. L. Rep. 719, p. 737, para. 129.

  61. 61.

    Article IV rule 1 prescribes: Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy, and to secure that the ship is properly manned, equipped and supplied, and to make the holds, refrigerating and cool chambers and all other parts of the ship in which goods are carried fit and safe for their reception, carriage and preservation in accordance with the provisions of paragraph 1 of Article III. Whenever loss or damage has resulted from unseaworthiness the burden of proving the exercise of due diligence shall be on the carrier or other person claiming exemption under this article.

  62. 62.

    Riverstone Meat Co Pty. Ltd. v Lancashire Shipping Co Ltd. (The “Muncaster Castle”) [1961] 1 Ll. L. Rep. 57.

  63. 63.

    Maxine Footwear Co Ltd v. Canadian Government Merchant Marine Ltd (The “Maurienne”) [1959] 2 Ll. L. Rep. 105.

  64. 64.

    Smith, Hogg & Co., Ltd. v. Black Sea & Baltic General Insurance Company, Ltd. (The “Librum”) [1940] 67 Ll. L. Rep. 253.

  65. 65.

    Smith, Hogg & Co., Ltd. v. Black Sea & Baltic General Insurance Company, Ltd. (The “Librum”) [1940] 67 Ll. L. Rep. 253, p. 260.

  66. 66.

    Smith, Hogg & Co., Ltd. v. Black Sea & Baltic General Insurance Company, Ltd. (The “Librum”) [1940] 67 Ll. L. Rep. 253, p. 258.

  67. 67.

    Riverstone Meat Co Pty. Ltd. v Lancashire Shipping Co Ltd. (The “Muncaster Castle”) [1961] 1 Ll. L. Rep. 57.

  68. 68.

    Tetley, W. (2008) Marine Cargo Claims (4th ed). Les Editions Yvon Blais Inc., Vol. 1, p. 11.

  69. 69.

    Whereas subsections (a) and (b) require information as furnished by the shipper, in the third instance the carrier shall take steps to ascertain the apparent order and condition of the goods. Equally important, the proviso at the end of the rule suggests that, with regard to subsections (a) and (b), the carrier is not bound to sign a bill of lading if it has reasonable grounds to suspect that the figures are not accurate or if it is unable to check them.

  70. 70.

    Sparka, F. (2009) Jurisdiction and Arbitration Clauses in Maritime Transport Documents. Springer, Hamburg Studies on Maritime Affairs, Vol. 19, p. 42.

  71. 71.

    Sparka, F. (2009) Jurisdiction and Arbitration Clauses in Maritime Transport Documents. Springer, Hamburg Studies on Maritime Affairs, Vol. 19, p. 42.

  72. 72.

    Aikens, R., Lord, R. & Bools, M. (2006) Bills of Lading. Informa Law, London, p. 84, para. 4.47.

  73. 73.

    Elders Grain Company Ltd and Another v The Vessel “Ralph Misener” and Others [2005] 666 Ll. Mar. L.N. 2(1).

  74. 74.

    American Risk Management Inc and Anr v APL Co Pte Ltd and Others (The “Eagle Strength” and “Hyundai Pioneer”) [2003] 605 Ll. Mar. L.N. 1(2).

  75. 75.

    Treitel, G.H. & Reynolds, Fr. M.B. (2005) Carver on Bills of Lading (2nd ed). Sweet & Maxwell Ltd, p. 584, para. 9-152.

  76. 76.

    Aikens, R., Lord, R. & Bools, M. (2006) Bills of Lading. Informa Law, London, p. 264, para. 10.179.

  77. 77.

    Trafigura Beheer BV v Golden Stavraetos Maritime Inc. (The “Sonia”) [2002] 590 Ll. Mar. L. N. 1.

  78. 78.

    Trafigura Beheer BV v Golden Stavraetos Maritime Inc. (The “Sonia”) [2003] 614 Ll. Mar. L. N. 1.

  79. 79.

    Bulk & Metal Transport (UK) LLP v Voc Bulk Ultra Handymax Pool LLC (The “Voc Gallant”) [2009] 1 Ll. L. Rep. 418.

  80. 80.

    China Ocean Shipping Co. v The owners of the vessel “Andros” (The “Xingcheng” and “Andros”) [1987] 2 Ll. L. Rep. 210.

  81. 81.

    This wording covers the definitions given in Art. I(b), and as such it will exclude a mate’s receipt from the scope of this provision.

  82. 82.

    UCP 500 (1993 Revision), Art. 23(a)(ii) on marine/ocean bills of lading.

  83. 83.

    See, for example, Sect. 2.4.3 on Article III rule 2 and particularly the judgment “Pyrene v. Scindia” as well as Sect. 4.5.1.3 on fundamental breach and Sect. 4.5.4 on the carrier’s defenses against claims regarding deck cargo.

  84. 84.

    Baughen, S. (2003) Defining the Ambit of Article III r.8 of the Hague Rules: Obligations and Exceptions Clauses. 9 JIML 2, pp. 115–122.

  85. 85.

    See Chap. 1, Sect. 1.2 above.

  86. 86.

    For the difference between contract of carriage and contract for carriage, see Aikens, R., Lord, R. & Bools, M. (2006) Bills of Lading. Informa Law, London, p. 233, para. 10.79.

  87. 87.

    Article VI reads: Notwithstanding the provisions of the preceding articles, a carrier, master or agent of the carrier and a shipper shall in regard to any particular goods be at liberty to enter into any agreement in any terms as to the responsibility and liability of the carrier for such goods, and as to the rights and immunities of the carrier in respect of such goods, or his obligation as to seaworthiness, so far as this stipulation is not contrary to public policy, or the care or diligence of his servants or agents in regard to the loading, handling, stowage, carriage, custody, care and discharge of the goods carried by sea, provided that in this case no bill of lading has been or shall be issued and that the terms agreed shall be embodied in a receipt which shall be a non-negotiable document and shall be marked as such.

    An agreement so entered into shall have full legal effect.

    Provided that this article shall not apply to ordinary commercial shipments made in the ordinary course of trade, but only to other shipments where the character or condition of the property to be carried or the circumstances, terms and conditions under which the carriage is to be performed are such as reasonably to justify a special agreement.

  88. 88.

    Maxine Footwear Co Ltd v. Canadian Government Merchant Marine Ltd (The “Maurienne”) [1959] 2 Ll. L. Rep. 105.

  89. 89.

    Comité Maritime International (CMI), The Travaux Préparatoires of the Hague and Hague-Visby Rules, p. 185, para. [83].

  90. 90.

    Cadbury Schweppes Plc and Others v Nigerian National Shipping Line Ltd and Another (The “River Ngada”) [2001] 570 Ll. Mar. L. N. 1.

  91. 91.

    Leigh and Sillivan Ltd. v. Aliakmon Shipping Co. Ltd. (The “Aliakmon”) [1983] 1 Ll. L. Rep. 203.

  92. 92.

    Leigh and Sillivan Ltd. v. Aliakmon Shipping Co. Ltd. (The “Aliakmon”) [1983] 1 Ll. L. Rep. 203, p. 208: “It is true that without such a system she could not carry steel and timber in the same holds; but this I have classified as a complaint about stowage rather than seaworthiness.”

  93. 93.

    The “Imvros” [1999] 1 Ll. L. Rep. 848, p. 851.

  94. 94.

    Pyrene Company Ltd. v Scindia Steam Navigation Company Ltd. [1954] 1 Ll. L. Rep. 321, p. 328.

  95. 95.

    Pyrene Company Ltd. v Scindia Steam Navigation Company Ltd. [1954] 1 Ll. L. Rep. 321, p. 328.

  96. 96.

    Great China Metal Industries Co. Ltd. v. Malaysian International Shipping Cooperation Berhad (The “Bunga Seroja”) [1999] 1 Ll. L. Rep. 512, point 34.

  97. 97.

    Wilson, J.F. (2010) Carriage of Goods by Sea (7th ed). Longman, p. 191.

  98. 98.

    Albacora S.R.L. v. Westcott & Laurance Line, Ltd. (The “Maltasian”), [1966] 2 Ll. L. Rep. 53, p. 58.

  99. 99.

    G. H. Renton & Co., Ltd. V. Palmyra Trading Corporation of Panama (The “Caspiana”) [1956] 2 Ll. L. Rep. 379. This interpretation is upheld by Lord Pearce in Albacora S.R.L. v. Westcott & Laurance Line, Ltd. (The “Maltasian”) [1966] 2 Ll. L. Rep. 53. The view is further supported also in Hilditch Pty Ltd v Dorval Kaiun KK (The “Golden Lucy 1”) (No 2) [2008] 741 Ll. Mar. L.N. 1.

  100. 100.

    Albacora S.R.L. v. Westcott & Laurance Line, Ltd. (The “Maltasian”), [1966] 2 Ll. L. Rep. 53, pp. 58 and 62.

  101. 101.

    Hendrikse, M.L., Margetson, N.H., & Margetson, N.J. (2008) Aspects of Maritime Law: Claims under Bills of Lading. Kluwer Law International, p. 77.

  102. 102.

    This reference shows again the interrelation between the Rules and common law. See Sect. 2.3 above.

  103. 103.

    For an opposing view, see Justice Wright’s reasoning in Gosse Millard v. Canadian Government Merchant Marine Ltd., [1927] 2 K.B. 432, p. 434: “The words “properly discharge” in Art. III., r. 2, mean, I think, “deliver from the ship’s tackle in the same apparent order and condition as on shipment,” unless the carrier can excuse himself under Art. IV …” However, such a construction of the rule is not upheld by subsequent judgments.

  104. 104.

    Gatoil International Inc. v. Tradax Petroleum Ltd. Same v. Panatlantic Carriers Corporation (The “Rio Sun”) [1985] 1 Ll. L. Rep. 350.

  105. 105.

    Parsons Corporation and Others v CV Scheepvaartonderneming Happy Ranger (The “Happy Ranger”) [2006] 1 Ll. L. Rep. 649, p. 664, para 70–71.

  106. 106.

    Aikens, R., Lord, R. & Bools, M. (2006) Bills of Lading. Informa Law, London, p. 254, para. 10.146.

  107. 107.

    Great China Metal Industries Co. Ltd. v. Malaysian International Shipping Cooperation Berhad (The “Bunga Seroja”) [1999] 1 Ll. L. Rep. 512, point 90.

  108. 108.

    See Sect. 2.3.1 above on the carrier’s responsibilities and liabilities over the cargo under common law.

  109. 109.

    Compania Sud Americana De Vapores SA v Sinochem Tianjin Import and Export Corporation (The “Aconcagua”) [2010] 1 Lloyd’s Law Reports 1.

  110. 110.

    See Grill v General Iron Screw Collier Company (1866) L.R. 1 C.P. 600.

  111. 111.

    Hilditch Pty Ltd v Dorval Kaiun KK (The “Golden Lucy 1”) (No 2) [2008] 741 Ll. Mar. L.N. 1.

  112. 112.

    Pyrene Company Ltd. v Scindia Steam Navigation Company Ltd. [1954] 1 Lloyd’s Law Reports 321.

  113. 113.

    G. H. Renton & Co., Ltd. V. Palmyra Trading Corporation of Panama (The “Caspiana”) [1956] 2 Lloyd’s Law Reports 379.

  114. 114.

    Jindal Iron and Steel Co. Ltd. and Others v Islamic Solidarity Shipping Co Jordan Ltd. (The “Jordan II”) [2005] 1 Ll. L. Rep. 57.

  115. 115.

    Jindal Iron and Steel Co. Ltd. and Others v Islamic Solidarity Shipping Co Jordan Ltd. (The “Jordan II”) [2005] 1 Ll. L. Rep. 57, p. 63.

  116. 116.

    It should be noted that internationally there is no dominant view as to the legality of the free-in/free-out agreements. For the confronting national views on the validity of the FIOST clause, see Chap. 3, Sect. 3.3 below.

  117. 117.

    Yuzhny Zavod Metall Profil LLC v Eems Beheerder B.V. (The “Eems Solar”) [2013] 2 Ll. L. Rep. 489.

  118. 118.

    Balli Trading Ltd. v Afalona Shipping Co. Ltd. (The “Coral”) [1993] 1 Ll. L. Rep. 1, p. 5.

  119. 119.

    Ismail v Polish Ocean Lines (The “Ciechocinek”) [1976] 1 Ll. L. Rep. 489.

  120. 120.

    De Favoriet, SCN 19 januari 1968, NJ 1968, 20; Schip en Schade [1968], p. 51 No. 19–20.

  121. 121.

    Pyrene Company Ltd. v Scindia Steam Navigation Company Ltd. [1954] 1 Lloyd’s Law Reports 321.

  122. 122.

    See Cheng, Chia-Jui (ed) (1988) Clive M. Schmitthoff’s Selected Essays on International Trade Law. Martinus Nijhoff Publishers, London, p. 292; and Balli Trading Ltd. v Afalona Shipping Co. Ltd. (The “Coral”) [1993] 1 Ll. L. Rep. 1.

  123. 123.

    Pyrene Company Ltd. v Scindia Steam Navigation Company Ltd. [1954] 1 Lloyd’s Law Reports 321, pp. 327–328.

  124. 124.

    Pyrene Company Ltd. v Scindia Steam Navigation Company Ltd. [1954] 1 Lloyd’s Law Reports 321, p. 329: “Only the most enthusiastic lawyer could watch with satisfaction the spectacle of liabilities shifting uneasily as the cargo sways at the end of a derrick across a notional perpendicular projecting from the ship’s rail.”

  125. 125.

    Pyrene Company Ltd. v Scindia Steam Navigation Company Ltd. [1954] 1 Lloyd’s Law Reports 321, pp. 328–329.

  126. 126.

    Filikos Shipping Corporation of Monrovia v Shipmair B.V. (The “Filikos”) [1983] 1 Lloyd’s Law Reports 9, p. 11: “I am not satisfied that the effect of cl. 4 [a free-out clause] is to eliminate the discharge stage from the contract of carriage and give delivery of the cargo to the charterer-consignee in situ in the holds.” (Sir John Donaldson, M.R.).

  127. 127.

    The “Arawa” [1977] 2 Ll. L. Rep. 416.

  128. 128.

    P&O Nedlloyd B.V. v Arab Metals Co and Others (The “UB Tiger”) [2006] 1 Ll. L. Rep. 111.

  129. 129.

    Bugden, P.M. & Lamont-Black, S. (2010) Goods in Transit and Freight Forwarding (2nd ed). Thomson Reuters, pp. 340–341.

  130. 130.

    See Baughen, S. (2010) Misdelivery Claims Under Bills of Lading and International Conventions for the Carriage of Goods by Sea. In: Thomas, D.Rh. (ed) (2010) The Carriage Of Goods By Sea Under The Rotterdam Rules (1st ed) (2010). Informa Law from Routledge, Chapter 9, para. 9.14–9.16.

  131. 131.

    Article III rule 6 HVR.

  132. 132.

    van der Ziel, G. (2010) Delivery of the Goods. In: von Ziegler, A., Schelin, J. & Zunarelli, S. (eds) (2010) The Rotterdam Rules 2008: Commentary to the United Nations Convention on Contracts for the International Carriage of Goods Wholly Or Partly by Sea. Kluwer Law International, pp. 189–218, at p. 189.

  133. 133.

    Lagos Group Ltd and Others v Talgray Shipping Inc (The “MV Hamilton I”) [2002] 580 Ll. Mar. L. N. 3.

  134. 134.

    The first sentence of Article III rule 4 reads: “Such a bill of lading shall be prima facie evidence of the receipt by the carrier of the goods as described in accordance with paragraph 3 (a), (b) and (c).”

  135. 135.

    Schoenbaum, Th.J. (2011) Admiralty and Maritime Law (5th ed). Thomson Reuters, Volume 1, Chapter 10, p. 884 at § 10–25.

  136. 136.

    Thomas, D.Rh. (ed) (2009) A New Convention for the Carriage of Goods by Sea – The Rotterdam Rules: An Analysis of the UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea. Lawtext Publishing Limited, Chapter I, p. 3.

    Thomas, D.Rh. (ed) (2009) A New Convention for the Carriage of Goods by Sea – The Rotterdam Rules: An Analysis of the UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea. Lawtext Publishing Limited, Chapter I, p. 9, fn. 71.

  137. 137.

    van Hooydonk, E. (ed) (2003) English and Continental Maritime Law: After 115 Years of Maritime Law Unification, a Search for Differences between Common Law and Civil Law. Maklu-Uitgevers NV, Antwerpen-Apeldoorn, p. 73.

  138. 138.

    FAL Oil Co. Ltd. and Another v Petronas Trading Corporation Sdn Bhd (The “Devon”) [2004] 2 Ll. L. Rep. 282.

  139. 139.

    Rhesa Shipping Co SA v Edmonds (The “Popi M”) [1985] 2 Ll. L. Rep. 1. The fallacy in this noncargo-related case was that the trial Judge (Bingham J.) was balancing on the probabilities whether the ship Popi M sunk off in calm seas and fair weather either as a result of a collision with a submarine or due to the wear and tear of the ship’s hull. The choice between the highly-improbable submarine theory and the wear-and-tear theory, which he deemed virtually impossible, was considered to be wrong reasoning at the appeal. The House of Lords quoted Sir Arthur Conan Doyle’s character Sherlock Holmes telling Dr. Watson “when you have eliminated the impossible, whatever remains, however improbable, must be the truth”, and pointed out that Sherlock Holmes’ reasoning, however logical, cannot lead to a proper fact finding process. Instead of being compelled by the dilemma between choosing an extremely improbable cause and a virtually impossible one, Bingham J. should have ruled that the claimant shipowners had failed to discharge the burden of proof which lay on them.

  140. 140.

    See Chap. 1, Sect. 1.2.2 above.

  141. 141.

    This is expressly stipulated in the second sentence of Article V: ”The provisions of these Rules shall not be applicable to charter parties, but if bills of lading are issued in the case of a ship under a charter party they shall comply with the terms of these Rules.” This is developed further in the definition of a “contract of carriage” in Article I(b): “including any bill of lading […]issued under or pursuant to a charter party from the moment at which such bill of lading or similar document of title regulates the relations between a carrier and a holder of the same.”

  142. 142.

    Contracts of sale and the International Commercial Terms (Incoterms) go beyond the scope of the current work and, therefore, they will not be addressed.

  143. 143.

    See Chap. 1, Sect. 1.2.1.3 above on the effect of the Clause Paramount on the bill of lading.

  144. 144.

    Clause 8(a), lines 103–105, of NYPE 93 provides: “[T]he Charterers shall perform all cargo handling, including but not limited to loading, stowing, trimming, lashing, securing, dunnaging, unlashing, discharging, and tallying, at their risk and expense, under the supervision of the Master.”

  145. 145.

    Girvin, S. (2007) Carriage of Goods by Sea (2nd ed). Oxford University Press, p. 529.

  146. 146.

    This is recognized by Devlin J. in “Pyrene v Scindia”. See Sect. 2.4.3.4, footnote 124 above.

  147. 147.

    Nikaki, Th. (2009) The Loading Obligations of Voyage Charterers. In: Thomas, D.Rh. (ed) (2009) The Evolving Law and Practice of Voyage Charterparties, Informa Law, p. 60.

  148. 148.

    Farenco Shipping Co Ltd v Daebo Shipping Co Ltd (The “Bremen Max”) [2009] 1 Ll. L. Rep. 81.

  149. 149.

    Laemthong International Lines Company Ltd v Artis (The “Laemthong Glory”) [2005] 1 Ll. L. Rep. [2005] 100.

  150. 150.

    Great Eastern Shipping Co Ltd v Far East Chartering Ltd and Another (The “Jag Ravi”) [2012] 1 Ll. L. Rep. [2012] 637.

  151. 151.

    See Chap. 3 on the FIOS(T) clause below.

  152. 152.

    See the Hague-Visby Rules, Art I(e) and “Pyrene v Scindia”.

  153. 153.

    United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea.

  154. 154.

    Thomas, D.Rh. (ed) (2009) A New Convention for the Carriage of Goods by Sea – The Rotterdam Rules: An Analysis of the UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea. Lawtext Publishing Limited, Chapter I, p. 30.

  155. 155.

    Such an example is the Maritime Code of the People’s Republic of China (1993).

  156. 156.

    Nikaki, Th. (2010) The Carrier’s Duties under the Rotterdam Rules: Better the Devil You Know?. Tul. Mar. L. J., Vol. 35, No 1 (Winter), p. 1.

  157. 157.

    Pallarés, L.S. (2011) A Brief Approach to the Rotterdam Rules: between Hope and Disappointment. 35 J. Mar. L. & Com. 453, p. 455.

  158. 158.

    Note that some authors emphasize on the division between “unification” and “harmonization” – the former being the adoption of similar substantive rules by sovereign states, whereas the latter signifies the adoption of the same rules which cannot be altered by national interpretation – and point to “harmonization” as to the more accurate of the two. Yet, the current work follows the terminology laid down in the Rules and, hence, the term “uniformity” shall be employed hereby. See Honka, H. (2004) The Legislative Future of Carriage of Goods by Sea: Could it not be the UNCITRAL DRAFT?.

  159. 159.

    Article 2 of the Rotterdam Rules provides that: “In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade.”

  160. 160.

    Berlingieri, F. (2004) Uniform Interpretation of International Conventions. Ll. Mar. & Com. L. Q 153, p. 154.

  161. 161.

    Sturley, M.F., Fujita, T. & van der Ziel, G. (2010) The Rotterdam Rules: The UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea. Sweet & Maxwell, p. 3, para. 1.012.

  162. 162.

    The Rotterdam Rules, Chapter 1, Article 1.5.

  163. 163.

    Thomas, D.Rh. (ed) (2009) A New Convention for the Carriage of Goods by Sea – The Rotterdam Rules: An Analysis of the UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea. Lawtext Publishing Limited, Chapter 3, p. 56.

  164. 164.

    The Hamburg Rules, Part I, Article 1.2: “’Actual carrier’ means any person to whom the performance of the carriage of the goods, or of part of the carriage, has been entrusted by the carrier, and includes any other person to whom such performance has been entrusted.”

  165. 165.

    The term “person” is perceived to include both natural persons and legal persons such as companies, corporations and different types of entities. See Atamer, K. (2010) Construction Problems in the Rotterdam Rules regarding the Performing and Maritime Performing Parties. 41 J. Mar. L. & Com. 469, p. 475.

  166. 166.

    The Rotterdam Rules, Chapter 1, Article 1.6.

  167. 167.

    Thomas, D.Rh. (ed) (2009) A New Convention for the Carriage of Goods by Sea – The Rotterdam Rules: An Analysis of the UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea. Lawtext Publishing Limited, Chapter 3, p. 57.

  168. 168.

    Sturley, M.F., Fujita, T. & van der Ziel, G. (2010) The Rotterdam Rules: The UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea. Sweet & Maxwell, Chapter V, p. 135, para. 5.150.

  169. 169.

    The Rotterdam Rules, Chapter 1, Article 1.7.

  170. 170.

    A sea carrier assumes the status of a maritime performing party, under the Rotterdam Rules, where the sea carriage has been subcontracted to it by the contractual carrier.

  171. 171.

    Smeele, F. (2010) The Maritime Performing Party in the Rotterdam Rules 2009. 2010–1/2 EJCCL 72, p. 81.

  172. 172.

    Atamer, K. (2010) Construction Problems in the Rotterdam Rules regarding the Performing and Maritime Performing Parties. 41 J. Mar. L. & Com. 469, p. 478.

  173. 173.

    The Rotterdam Rules, Chapter V, Article 19.

  174. 174.

    For the problems posed by a demise clause or an identity of carrier clause, see Chap. 1, Sect. 1.2.2.3, footnote 86 above.

  175. 175.

    The Rotterdam Rules, Article 20, para 1: “If the carrier and one or more maritime performing parties are liable for the loss of, damage to, or delay in delivery of the goods, their liability is joint and several but only up to the limits provided for under this Convention.”

  176. 176.

    These insights of the author of this work are to a large extent due to personal discussions with Professor Gertjan van der Ziel – Professor Emeritus of Transport Law, Erasmus University Rotterdam and Head of the Netherlands Delegation to UNCITRAL WG Transport Law.

  177. 177.

    Delebecque, Ph. (2010b) Obligations of the Carrier. In: von Ziegler, A., Schelin, J. & Zunarelli, S. (eds) (2010) The Rotterdam Rules 2008: Commentary to the United Nations Convention on Contracts for the International Carriage of Goods Wholly Or Partly by Sea. Kluwer Law International, p. 71, at p. 74.

  178. 178.

    Nikaki, Th. (2008) The Fundamental Duties of the Carrier under the Rotterdam Rules. 14 JIML 512, p. 513.

  179. 179.

    See Sect. 2.4.1 above for a summary of the duties owed by the carrier under the Hague-Visby Rules.

  180. 180.

    Delebecque, Ph. (2010a) Obligations and Liability Exemptions of the Carrier. European Journal of Commercial Contract Law 2010–1/2, p. 88.

  181. 181.

    Nikaki, Th. (2010) The Carrier’s Duties under the Rotterdam Rules: Better the Devil You Know?. 35 Tul. Mar. L. J. 1.

  182. 182.

    See Sect. 2.4.1.1 above.

  183. 183.

    See Sect. 2.4.1.1 above.

  184. 184.

    Working Group III (Transport Law), 9th session (New York, 15–26 April 2002), A/CN.9/WG.III/WP.21, para. 61.

  185. 185.

    UNCITRAL Report of the Working Group III (Transport Law) on the work of its 9th session, A/CN.9/510 of 7 May 2002, para. 43.

  186. 186.

    Sturley, M.F., Fujita, T. & van der Ziel, G. (2010) The Rotterdam Rules: The UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea. Sweet & Maxwell, Chapter V, p. 85, para. 5.023.

  187. 187.

    For the term overriding obligations, see Sect. 2.4.1.1 above.

  188. 188.

    Margetson, N.J. (2010) Some Remarks on the Allocation of the Burden of Proof under the Rotterdam Rules as Compared to the Hague (Visby) Rules. In: Thomas, D.Rh. (ed) (2010) The Carriage Of Goods By Sea Under The Rotterdam Rules. Informa Law from Routledge, Chapter 10, para. 10.62.

  189. 189.

    The Rotterdam Rules, Chapter 4, Article 14 (c).

  190. 190.

    In comparison, Article III rule 1 of the Hague-Visby Rules lays down how the contract of carriage should be carried out but there is no provision that explicitly states that the carrier must perform the core obligation under the contract of carriage, which is to carry the goods.

  191. 191.

    Article 1.1 states: “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.

  192. 192.

    See Sect. 2.5.4.3 below.

  193. 193.

    The reason why Article 11 speaks of “place of destination” instead of “port of discharge” is that the Convention must be in line with its maritime plus character, and, accordingly, the carrier’s cargo-related obligation to carry and deliver the goods may extend even to a non-sea leg of the carriage if the last mode of carriage is not a sea-going vessel.

  194. 194.

    Sturley, M.F., Fujita, T. & van der Ziel, G. (2010) The Rotterdam Rules: The UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea. Sweet & Maxwell, p. 80, para. 5.012.

  195. 195.

    Delebecque, Ph. (2010b) Obligations of the Carrier. In: von Ziegler, A., Schelin, J. & Zunarelli, S. (eds) (2010) The Rotterdam Rules 2008: Commentary to the United Nations Convention on Contracts for the International Carriage of Goods Wholly Or Partly by Sea. Kluwer Law International, p. 71, at p. 76.

  196. 196.

    Sturley, M.F., Fujita, T. & van der Ziel, G. (2010) The Rotterdam Rules: The UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea. Sweet & Maxwell, p. 81, para. 5.012, fn. 36.

  197. 197.

    A/CN.9/WG.III/WP.21, para. 17; A/CN.9/WG.III/WP.21, para. 93; A/CN.9/544, para. 31.

  198. 198.

    See Sect. 2.4.3 above.

  199. 199.

    See Article 13.1 of the Rotterdam Rules.

  200. 200.

    See A/CN.9/WG.III/WP.21, para. 17; A/CN.9/WG.III/WP.21, para. 93; A/CN.9/544, para. 31. (id. footnote 193).

  201. 201.

    Working Group III (Transport Law), 9th session (New York, 15–26 April 2002), A A/CN.9/510, para. 117.

  202. 202.

    See Sect. 2.4.3.1 above on the meaning of the term “properly and carefully” in Article III rule 2 of the Hague-Visby Rules.

  203. 203.

    Article 13.2 of the Rotterdam Rules allows parties to agree that part of these duties can be delegated to the shipper, the documentary shipper or the consignee.

  204. 204.

    See Sect. 2.4.3.1 above on the interpretation of the term “properly and carefully.”

  205. 205.

    Pyrene Company Ltd. v Scindia Steam Navigation Company Ltd. [1954] 1 Lloyd’s Law Reports 321 p. 328.

  206. 206.

    The Rotterdam Rules, Chapter 7, Article 27.2.

  207. 207.

    The word “discharge” is substituted by the drafters with “unload” for stylistic purposes since the former term belongs specifically to maritime terminology, whereas the door-to-door scope of the Rotterdam Rules may require the carrier to unload the goods during a non-sea leg. That is why a more common term, such as “unload”, was deemed more appropriate. See Working Group III (Transport Law), 9th session (New York, 15–26 April 2002), A A/CN.9/510, para. 117.

  208. 208.

    See Sect. 2.5.5 below.

  209. 209.

    Baatz, Y., DeBattista, Ch., Lorenzon, F., Serdy, A., Staniland, H. & Tsimplis, M. (2009) The Rotterdam Rules: A Practical Annotation, Informa Law, Chapter 4, p. 38.

  210. 210.

    Thomas, D.Rh. (ed) (2009) A New Convention for the Carriage of Goods by Sea – The Rotterdam Rules: An Analysis of The UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea. Lawtext Publishing Limited, Chapter 4, p. 92.

  211. 211.

    The Rotterdam Rules dedicate an entire chapter (Chapter 9) to the problem of delivery of the goods, as particular rules can be found in Articles 45–47 related to delivery of the goods in the various instances when a negotiable or a nonnegotiable transport document is issued.

  212. 212.

    Thomas, D.Rh. (ed) (2009) A New Convention for the Carriage of Goods by Sea – The Rotterdam Rules: An Analysis of The UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea. Lawtext Publishing Limited, Chapter 4, p. 94.

  213. 213.

    Thomas, D.Rh. (ed) (2009) A New Convention for the Carriage of Goods by Sea – The Rotterdam Rules: An Analysis of The UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea. Lawtext Publishing Limited, Chapter 4, p. 94, fn. 26. See Nikaki, Th. (2008) The Fundamental Duties of the Carrier under the Rotterdam Rules. 14 JIML 512, p. 515.

  214. 214.

    See Sect. 2.5.5 below on the period of responsibility of the carrier under the Rotterdam Rules.

  215. 215.

    Francesco Berlingieri – ‘Multimodal Aspects of the Rotterdam Rules’, p. 6. Retrieved from: http://www.rotterdamrules2009.com/cms/uploads/Def.%20tekst%20F.%20Berlingieri%2013%20OKT29.pdf.

  216. 216.

    Although eventually deleted from the Rotterdam Rules, this is an existent practice in international trade, acknowledged by UNCITRAL (9th Session Report, para 41–42), whereby a carrier issues a through B/L purely to satisfy the needs of the cargo interests (for example, a CIF or CFR seller) to show that he conforms to the requirements of the contract of sale to provide transportation up to the final destination set in the sale contract. The through B/L will indicate the contractual carriage between point of shipment and point of destination but it will also indicate a further final destination, for which the carrier has not undertaken as it will be a third-party carrier which will perform the carriage. In case of such a third-party shipment, the obligations of the carrier to carry and deliver will end upon the completion of the contractual voyage under the contract of carriage. This will be the point of destination under the contract of carriage but it will also be an intermediate destination under the sale contract. With regard to the successive carriage up to the final destination, transportation will take place under an independent contract of carriage, in which the carrier will contract only as a freight-forwarding agent of the shipper (the CIF/CFR seller) and will undertake that the goods will be shipped by a third party. See: Alexander Von Ziegler – ‘The Liability of the Contracting Carrier’, Texas International Law Journal, Vol. 44, Spring 2009, p. 329 at pp 335–336.

  217. 217.

    The word “keeping” was added to the definition of a “performing party” in Article 1(6)(a) as it had been omitted. On the other hand, Article 19(1)(b) had a more serious technical error which was due to a fault in the renumbering of the items within subparagraph (b). The new language of the article included the words “and either” at the end of Article 19(1)(b)(i). See Sturley, M. (2012) Amending the Rotterdam Rules: Technical Corrections to the U.N. Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea. 18 JIML 423.

  218. 218.

    Article 7, paragraph 2 of the Vienna Convention on the Law of Treaties provides:

    2. Where the treaty is one for which there is a depositary, the latter shall notify the signatory States and the contracting States of the error and of the proposal to correct it and shall specify an appropriate time-limit within which objection to the proposed correction may be raised. If, on the expiry of the time-limit:

    (a) no objection has been raised, the depositary shall make and initial the correction in the text and shall execute a procés-verbal of the rectification of the text and communicate a copy of it to the parties and to the States entitled to become parties to the treaty;

    (b) an objection has been raised, the depositary shall communicate the objection to the signatory States and to the contracting States.

  219. 219.

    The author owes these observations to Professor Gertjan van der Ziel.

  220. 220.

    The draftsmen of UNCITRAL’s Working Group III (Transport Law) admit that the FIOS clause is a useful provision that takes into account commercial practice, which, however, regulates an area of law that is fraught with discrepancies among legal systems. See UNCITRAL Report of Working Group III (Transport Law) on the work of its twenty-first session (Vienna, 14–25 January 2008), A/CN.9/645, para 46.

  221. 221.

    Article I (e) of the Hague-Visby Rules prescribes: “‘Carriage of goods’ covers the period from the time when the goods are loaded on to the time they are discharged from the ship.”

  222. 222.

    Sturley, M.F., Fujita, T. & van der Ziel, G. (2010) The Rotterdam Rules: The UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea. Sweet & Maxwell, p. 62, para. 4.008.

  223. 223.

    Berlingieri, F. (2009) A Comparative Analysis of the Hague-Visby Rules, the Hamburg Rules and the Rotterdam Rules, p. 6.

  224. 224.

    Working Group III (Transport Law), 9th session (New York, 15–26 April 2002), A A/CN.9/510, para. 28.

  225. 225.

    Working Group III (Transport Law), 9th session (New York, 15–26 April 2002), A A/CN.9/510, para. 28.

  226. 226.

    See Sect. 2.4.3.5 above.

  227. 227.

    In that second scenario the burden of proof shifts back on the defendant carrier who may try to prove that this event or circumstance is not attributable to his fault or to the fault of any person for whom he is liable.

  228. 228.

    In the latter scenario the carrier may, under Article 17.5(b), either prove that there is no causal connection between the unseaworthiness of the vessel and the loss, damage or delay, or prove that he exercised due diligence to make and keep the ship seaworthy.

  229. 229.

    See Robert C. Herd & Co. v Krawill Machinery Corp. [1959] 1 Lloyd’s Rep. 305, p. 308 and p. 308, fn. 3: “The legislative history of the [COGSA] Act shows that it was lifted almost bodily from the Hague Rules of 1921, as amended by the Brussels Convention of 1924, 51 Stat. 233.” […] “The Hague Rules as amended by the Brussels Convention were, in turn, based in part upon the pioneering Harter Act of 1893, 27 Stat. 445, 46 U.S.C. Sects 190–196. See H. R. Re. No. 2218, 74th Cong., 2d Sess. 7.”

  230. 230.

    International Convention for the Unification of Certain Rules in Regard to Bills of Lading for the Carriage of Goods by Sea: Hearing on Executive E Before a Subcommittee of the Senate on Foreign Relations, US Senate, 70th Congress, 1st Session. 3 (1927) (statement of Charles S. Haight, chairman of the ICC, advocating for the US ratification and adoption of the Hague Rules). In: Sturley, M.F. (1990) 3 The Legislative History of the Carriage of Goods by Sea Act and the Travaux Préparatoires of the Hague Rules (n 14), p. 327.

  231. 231.

    The Group A.P. Moller-Maersk AS has a variety of businesses primarily in the field of transportation, logistics and energy, and is the largest container ship and supply vessel operator in the world as well as an undisputed leader in the international shipping industry.

  232. 232.

    Pontoppidan, K. (2009) Shipowners’ View on the UNCITRAL Convention on Contracts for the International Carriage of Goods Wholly or Partly By Sea. CMI YEARBOOK ANNUAIRE 2009, Athens II, Documents of the Conference, p. 282.

  233. 233.

    The Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (The “Rotterdam Rules”). A position paper by the ICS. Retrieved from: http://www.uncitral.org/pdf/english/texts/transport/rotterdam_rules/ICS_PositionPaper.pdf.

  234. 234.

    Delebecque, Ph. (2010a) Obligations and Liability Exemptions of the Carrier. European Journal of Commercial Contract Law 2010–1/2, p. 93.

  235. 235.

    A chronological list of the signatory states and the status of the ratification process of the Convention is available at: http://www.uncitral.org/uncitral/en/uncitral_texts/transport_goods/rotterdam_status.html.

  236. 236.

    Thomas, D.Rh. (ed) (2009) A New Convention for the Carriage of Goods by Sea – The Rotterdam Rules: An Analysis of The UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea. Lawtext Publishing Limited, Chapter I, p. 2.

References

  • Aikens, R., Lord, R., & Bools, M. (2006). Bills of lading. London: Informa Law. ISBN-13: 978-1843114383.

    Google Scholar 

  • Astle, W. E. (1980). Shipping and the law. Fairplay Publications.

    Google Scholar 

  • Atamer, K. (2010). Construction problems in the Rotterdam Rules regarding the performing and maritime performing parties. Journal of Maritime Law and Commerce, 41, 469.

    Google Scholar 

  • Baatz, Y., DeBattista, C., Lorenzon, F., Serdy, A., Staniland, H., & Tsimplis, M. (2009). The Rotterdam Rules: A practical annotation. Informa Law. ISBN: 1843118246.

    Google Scholar 

  • Baughen, S. (2003). Defining the ambit of Article III r.8 of the Hague Rules: Obligations and exceptions clauses. Journal of International Maritime Law, 9(2), 115–122.

    Google Scholar 

  • Baughen, S. (2010). Misdelivery claims under bills of lading and international conventions for the carriage of goods by sea. In D. R. Thomas (Ed.), The carriage of goods by sea under the Rotterdam Rules (1st ed.). Informa Law from Routledge, Chapter 9.

    Google Scholar 

  • Baughen, S. (2015). Shipping law (6th ed.). Routledge-Cavendish.

    Google Scholar 

  • Berlingieri, F. (2004). Uniform interpretation of international conventions. Lloyd’s Maritime and Commercial Law Quarterly, 153.

    Google Scholar 

  • Berlingieri, F. (2009). A comparative analysis of the Hague-Visby Rules, the Hamburg Rules and the Rotterdam Rules. A paper delivered at the General Assembly of the AMD in Marrakesh on November 5–6, 2009. Retrieved from: http://www.uncitral.org/pdf/english/workinggroups/wg_3/Berlingieri_paper_comparing_RR_Hamb_HVR.pdf

  • Bugden, P. M., & Lamont-Black, S. (2010). Goods in transit and freight forwarding (2nd ed.). Thomson Reuters. ISBN: 978-1-84703-772-5.

    Google Scholar 

  • Cheng, C.-J. (Ed.). (1988). Clive M. Schmitthoff’s selected essays on international trade law. London: Martinus Nijhoff Publishers.

    Google Scholar 

  • Comité Maritime International (CMI)., The Travaux Préparatoires of the Hague Rules and of the Hague-Visby Rules.

    Google Scholar 

  • Delebecque, P. (2010a). Obligations and liability exemptions of the carrier. European Journal of Commercial Contract Law, (1/2).

    Google Scholar 

  • Delebecque, P. (2010b). Obligations of the carrier. In A. von Ziegler, J. Schelin, & S. Zunarelli (Eds.), The Rotterdam Rules 2008: Commentary to the United Nations Convention on contracts for the international carriage of goods wholly or partly by sea (p. 71). Kluwer Law International. ISBN: 9789041131485.

    Google Scholar 

  • Force, R. (2004). Admiralty and maritime law. University of Michigan Library.

    Google Scholar 

  • Girvin, S. (2007). Carriage of goods by sea (2nd ed.). Oxford University Press. ISBN: 978-0-19-876458-8.

    Google Scholar 

  • Gregory, C. N. (1922). The thirtieth conference of the international law association. The American Journal of International Law, 16(3), 451–456.

    Google Scholar 

  • Güner-Özbek, M. D. (2011). The United Nations Convention on contracts for the international carriage of goods wholly or partly by sea: An appraisal of the Rotterdam Rules. Hamburg Studies on Maritime Affairs, Springer. ISBN: 978-3-642-19649-2.

    Google Scholar 

  • Hendrikse, M. L., Margetson, N. H., & Margetson, N. J. (2008). Aspects of maritime law: Claims under bills of lading. Kluwer Law International. ISBN 13: 9789041126238.

    Google Scholar 

  • Honka, H. (2004). The legislative future of carriage of goods by sea: Could it not be the UNCITRAL DRAFT? Retrieved from: http://www.scandinavianlaw.se/pdf/46-4.pdf

  • Hooper, C. D. (2010). Book review of “The Rotterdam Rules: A Practical Annotation” and “A New Convention for the Carriage of Goods by Sea – The Rotterdam Rules”. Journal of Maritime Law and Commerce, 41.

    Google Scholar 

  • Hristov, B. (1977). The responsibility of the sea carrier in containerized shipments, issued by the Library to the Bulgarian Chamber of Commerce and Industry (BCCI), Sofia, signature №105 [Original Cyrillic alphabet publication: Божидар Христов – “Отговорност на морския превозвач при контейнерните превози”, Библиотека “Българска търговско-промишлена палата” (БТТП), София (1977), сигнатура №105].

    Google Scholar 

  • International Convention for the Unification of Certain Rules in Regard to Bills of Lading for the Carriage of Goods by Sea: Hearing on Executive E Before a Subcommittee of the Senate on Foreign Relations., US Senate, 70th Congress, 1st Session. 3 (1927) (statement of Charles S. Haight, chairman of the ICC, advocating for the US ratification and adoption of the Hague Rules). In Sturley, M.F. (1990) 3 The Legislative History of the Carriage of Goods by Sea Act and the Travaux Préparatoires of the Hague Rules (n 14), p. 327.

    Google Scholar 

  • Margetson, N. J. (2008). Liability of the carrier under the Hague (Visby) Rules for cargo damage caused by unseaworthiness of its containers. Journal of International Maritime Law, 14, 153–161.

    Google Scholar 

  • Margetson, N. J. (2010). Some remarks on the allocation of the burden of proof under the Rotterdam Rules as compared to the Hague (Visby) Rules. In D. R. Thomas (Ed.), The carriage of goods by sea under The Rotterdam Rules. Informa Law from Routledge, Chapter 10.

    Google Scholar 

  • Nikaki, T. (2008). The fundamental duties of the carrier under the Rotterdam Rules. Journal of International Maritime Law, 14, 512.

    Google Scholar 

  • Nikaki, T. (2009). The loading obligations of voyage charterers. In D. R. Thomas (Ed.). The evolving law and practice of voyage charterparties. Informa Law. ISBN: 978-1-84311-808-4.

    Google Scholar 

  • Nikaki, T. (2010). The carrier’s duties under the Rotterdam Rules: Better the devil you know? Tulane Maritime Law Journal, 35(1).

    Google Scholar 

  • Pallarés, L. S. (2011). A brief approach to the Rotterdam Rules: Between hope and disappointment. Journal of Maritime Law and Commerce, 35, 453.

    Google Scholar 

  • Pontoppidan, K. (2009). Shipowners’ view on the UNCITRAL Convention on contracts for the international carriage of goods wholly or partly by sea. CMI YEARBOOK ANNUAIRE 2009, Athens II, Documents of the Conference, p. 282. Retrieved from: http://www.comitemaritime.org/Uploads/Yearbooks/YBK_2009.pdf

  • Ramberg, J. (1993). Freedom of contract in maritime law. Lloyd’s Maritime and Commercial Law Quarterly, pp. 178–191.

    Google Scholar 

  • Schoenbaum, T. J. (2011). Admiralty and maritime law (5th ed.). Thomson Reuters.

    Google Scholar 

  • Scrutton, T. E., Boyd, S. C., Burrows, A. S., & Foxton, D. (1996). Scrutton on charterparties and bills of lading (20th ed.). Sweet & Maxwell. ISBN-10: 0421525800.

    Google Scholar 

  • Smeele, F. (2010). The maritime performing party in the Rotterdam Rules 2009. European Journal of Commercial Contract Law, 72(1/2).

    Google Scholar 

  • Sparka, F. (2009). Jurisdiction and arbitration clauses in maritime transport documents (Vol. 19). Springer, Hamburg Studies on Maritime Affairs.

    Google Scholar 

  • Sturley, M. F. (2012). Amending the Rotterdam Rules: Technical corrections to the U.N. Convention on contracts for the international carriage of goods wholly or partly by sea. Journal of International Maritime Law, 18(6), 423.

    Google Scholar 

  • Sturley, M. F., Fujita, T., & van der Ziel, G. (2010). The Rotterdam Rules: The UN Convention on contracts for the international carriage of goods wholly or partly by sea. Sweet & Maxwell. ISBN: 978-1-84703-734-3.

    Google Scholar 

  • Tetley, W. (2004). The burden and order of proof in marine cargo claims. Retrieved from: http://www.mcgill.ca/maritimelaw/sites/mcgill.ca.maritimelaw/files/burden.pdf

  • Tetley, W. (2008). Marine cargo claims (Vol. 1, 4th ed.). Les Editions Yvon Blais Inc. ISBN: 978-2-89635-126-8.

    Google Scholar 

  • The Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (The “Rotterdam Rules”). A position paper by the ICS. Retrieved from: http://www.uncitral.org/pdf/english/texts/transport/rotterdam_rules/ICS_PositionPaper.pdf

  • Thomas, D. R. (Ed.). (2009). A new convention for the carriage of goods by sea – The Rotterdam Rules: An analysis of The UN Convention on contracts for the international carriage of goods wholly or partly by sea. Lawtext Publishing Limited. ISSN 1478-8586.

    Google Scholar 

  • Treitel, G. H., & Reynolds, F. M. B. (2005). Carver on bills of lading (2nd ed.). Sweet & Maxwell Ltd. ISBN13: 9780421877009.

    Google Scholar 

  • UNCITRAL. Report of the Working Group III (Transport Law) on the work of its 9th session, A/CN.9/510 of 7 May 2002.

    Google Scholar 

  • van der Ziel, G. (2010). Delivery of the goods. In A. von Ziegler, J. Schelin, & S. Zunarelli (Eds.), The Rotterdam Rules 2008: Commentary to the United Nations Convention on contracts for the international carriage of goods wholly or partly by sea (pp. 189–218). Kluwer Law International.

    Google Scholar 

  • van Hooydonk, E. (Ed.). (2003). English and Continental maritime law: After 115 years of maritime law unification, a search for differences between common law and civil law. Antwerpen-Apeldoorn: Maklu-Uitgevers NV.

    Google Scholar 

  • von Ziegler, A. (2009). The liability of the contracting carrier. Texas International Law Journal, 44, 329.

    Google Scholar 

  • Walker, R. C. (1963). Regulating ocean shipping: Powers and problems of the Federal Maritime Commission. California Law Review, 51, 986.

    Google Scholar 

  • Wilson, J. F. (2010). Carriage of goods by sea (7th ed.). Longman. ISBN-13: 9781408218938.

    Google Scholar 

  • Working Group III. (Transport Law), 9th session (New York, 15–26 April 2002), A/CN.9/WG.III/WP.21.

    Google Scholar 

  • Working Group III. on Transport Law, 11th session (New York, March 24 – April 4, 2003), A/CN.9/WG.III/WP.29.

    Google Scholar 

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  1. Private International Law, University of Groningen, Groningen, The Netherlands

    Ilian Djadjev

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Djadjev, I. (2017). The Carrier’s Obligations over the Cargo Under the Hague-Visby Rules and the Rotterdam Rules. In: The Obligations of the Carrier Regarding the Cargo. Springer, Cham. https://doi.org/10.1007/978-3-319-62440-2_2

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