Abstract
Unlike previous maritime transport law conventions, the Rotterdam Rules contain considerable number of detailed provisions on the shipper’s obligations and liabilities. They include the obligations to deliver the goods ready for carriage and to provide proper information, fault based liability as the general rule and special rules with regard to dangerous goods and information for the contract particulars. Although it was sometimes observed that they impose onerous liabilities on the shipper, this paper raises a basic question: whether and to what extent are shipper’s obligations and liabilities are substantially affected under the Rotterdam Rules compared with the current regime? After close examination of the relevant provisions in Chapter 7 of the Rotterdam Rules, it concludes that the shipper’s obligations and liability are not substantially increased under the Rotterdam Rules.
A part of this paper is included in: The Rotterdam Rules: The U.N. Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, Sturley et al. (2010) Sweet & Maxwell, London.
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Notes
- 1.
International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, 1924.
- 2.
The Hague Rules as amended by the Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, 1968 (Visby Protocol) and Protocol Amending the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, 1979 (SDR Protocol).
- 3.
The shipper’s guarantee on the accuracy of the information with respect to the goods (article III (5)), shipper’s exoneration for loss or damage sustained by the carrier resulting from any cause that was not the shipper’s fault (article IV(3)) and the shipper’s liability resulting from dangerous goods (article IV(6)).
- 4.
United Nations Convention on the Carriage of Goods by Sea, 1978.
- 5.
The basis of the shipper’s liability (article 12) and special rules for dangerous cargo (article 13).
- 6.
For instance, European Shipper’s Council states "Shipper obligations are far more onerous than previous conventions. See, “View of the European Shippers’ Council on the Convention on Contracts for the International Carrying of Goods Wholly or Partly by Sea also known as the ‘Rotterdam Rules’” (April 23, 2009) [hereafter “European Shipper’s Council Position Paper”] (http://www.europeanshippers.com/docs/esc-position-paper-rotterdam-rules-march09.doc).
- 7.
See, for example, Olebakken (2007–2008), p. 305.
- 8.
The nature of the shipper’s possible liability might differ among jurisdictions. Some legal systems might analyze it as liability in torts, for example, while others might analyze it as a kind of implicit and auxiliary contractual obligation.
- 9.
See “Transport Law: Preliminary draft instrument on the carriage of goods by sea”, U.N. doc. no. A/CN.9/WG.III/WP.21 [hereafter “Draft WP.21”], art. 7.6.
- 10.
See “Provisional redraft of the articles of the draft instrument considered in the report of Working Group III on the work of its thirteenth session (A/CN.9/552)”, U.N. doc. no. A/CN.9/WG.III/WP.39, § 18. The reason of the insertion was explained that “‘Delay’ arises by virtue of creating a mirror provision of draft article 14 [article 17 in the final text]” (ibid, footnote 78) Please note that article 17 refers to “loss of the goods”, “damage to the goods” and “delay in delivery”, while article 30 “loss or damage”. The term “loss or damage” in article 30 is used in a quite different manner than in article 17. It is a general concept which can include “loss or damage caused by delay”. Therefore, it was not logical to add “delay” to “loss or damage” in order to create a mirror provision of carrier’s basis of liability.
- 11.
See “Transport Law: Draft convention on the carriage of goods [wholly or partly] [by sea]”, U.N. doc. no. A/CN.9/WG.III/WP.81, as corrected by Transport Law: Draft convention on the carriage of goods [wholly or partly] [by sea], Corrigendum, U.N. doc. no. A/CN.9/WG.III/WP.81/Corr.1 art. 31.
- 12.
See Report of Working Group III (Transport Law) on the work of its sixteenth session (Vienna, 28 November – 9 December 2005), U.N. doc. no. A/CN.9/591 (2006), as corrected by Report of Working Group III (Transport Law) on the work of its sixteenth session: Corrigendum, U.N. doc. no. A/CN.9/591/Corr.1 (2006) [hereafter “16th Session Report”], § 143–146.
- 13.
See Report of Working Group III (Transport Law) on the work of its seventeenth session (New York, 3–13 April 2006), U.N. doc. no. A/CN.9/594 (2006) [hereafter “17th Session Report”], § 199–207; Report of Working Group III (Transport Law) on the work of its eighteenth session (Vienna, 6–17 November 2006), U.N. doc. no. A/CN.9/616 (2006) [hereafter “18th Session Report”], § 83–113; Report of Working Group III (Transport Law) on the work of its nineteenth session (New York, 16–27 April 2007), U.N. doc. no. A/CN.9/621 (2007) [hereafter “19th Session Report”], § 233–243.
- 14.
See, e.g., 16th Session Report, supra note 12, § 143; 17th Session Report, supra note 13, § 201–207.
- 15.
The possible risk scenarios for the shipper’s liability for delay are carefully examined in the report submitted by Swedish delegation. “Shipper’s liability for delay: Document presented for the information of the Working Group by the Government of Sweden”, U.N. doc. no. A/CN.9/WG.III/WP.74, § 17–19.
- 16.
See 18th Session Report, supra note 13, § 105–106, 113. During the negotiation in 19th Session, a limitation amount of 500,000 SDR per incident was proposed. See “Shipper’s Obligations: Drafting proposal by the Swedish delegation”, U.N. doc. no. A/CN.9/WG.III/WP.85, § 7.
- 17.
th Session Report, supra note 13, § 180.
- 18.
See 19th Session Report, supra note 13, § 237.
- 19.
See, Baughen (2009), pp. 184–185.
- 20.
“Shipper’s Obligations: United States Proposal on Chapter 8, U.N. doc. no. A/CN.9/WG.III/WP.69”, § 14 proposed the following text to address the concern: “Damages recoverable from the shipper by the carrier under this chapter for any loss or damage, for a breach of any obligation established hereunder, or under an indemnity or guarantee provided for in this chapter, shall not include damages for delay of a vessel or in delivery of goods loaded on a vessel other than physical damage caused by delay.”
The possible inclusion of such text is discussed in the 19th session when the reference to “delay” was deleted from article 30. However, the Working Group rejected the text. 19th Session Report, supra note 13, § 235–237. It seems that the delegations assumed that the deletion of the term “delay” was sufficient to exclude any liability for loss caused by delay under the Convention.
In this author’s judgment, the UNCITRAL Working Group made mistakes twice. First, it included the term “delay” to article 30 for the wrong reason (See, supra note 10). Second, it failed to understand the implication of the deletion of the term “delay”. These mistakes caused different interpretations of article 30. Infra note 707 and the accompanying text.
- 21.
- 22.
Prior conventions require only proof of the shipper’s fault, not any specific breach of an obligation under the convention. See Hague-Visby Rules article IV(3); Hamburg Rules article 12.
- 23.
It was once discussed whether the Convention should include an explicit provision to clarify the point. See, 18th Session Report, supra note 13, § 107–108, 113 although the final text does not contain it. See also, Baughen (2009), supra note 19, p. 185.
- 24.
The burden of proof is also not sufficiently clear under Article IV(3) of the Hague-Visby Rules.
- 25.
See 19th Session Report, supra note 13, § 222–230, 239–242.
- 26.
The Hamburg Rules Article 12 which provides “The shipper is not liable for loss sustained by the carrier or the actual carrier, or for damage sustained by the ship, unless such loss or damage was caused by the fault or neglect of the shipper, his servants or agents.” imposes the burden of proof on the carrier.
- 27.
See, 19th Session Report, supra note 13, § 225, 227.
- 28.
- 29.
As is noted in § 8.3.1.2, this is an important difference compared with the previous conventions and with the carrier’s liability under the Rotterdam Rules.
- 30.
See 16th Session Report, supra note 12, § 111–112.
- 31.
Please note that the holder of a negotiable transport document may be subject to the same liabilities as the shipper pursuant to article 58(2).
- 32.
During the deliberation in the UNCITRAL Working Group, it was discussed whether the Convention should address the obligation of the consignee in connection with the activities under FIO clause. Proposed article 45(2) of Draft Convention prepared for the 21st Session of the Working Group (January 2008) required the consignee to act “properly and carefully” when unloading the goods under a FIO clause (“Transport Law: Draft convention on the carriage of goods [wholly or partly] [by sea]”, U.N. doc. no. A/CN.9/WG.III/WP.101). That draft provision, however, caused serious debate. On the one hand, it was argued that this obligation should not be imposed without the consignee’s consent because the FIO clause between the shipper and the carrier cannot automatically bind the consignee. On the other hand, there was opposition to requiring the consignee’s consent because it could contradict both the theory of a contract for the benefit of a third party and also the current practice under FIO clauses. See Report of Working Group III (Transport Law) on the work of its twenty-first session (Vienna, 14–25 January 2008), U.N. doc. no. A/CN.9/645 (2008) [hereafter “21st Session Report”], § 145–147. Ultimately UNCITRAL decided to delete the proposed article 45(2) to leave the consignee’s obligations to be decided under national law. See 21st Session Report, § 150.
- 33.
The contract particulars in the transport document or electronic transport record referred should include the name and address of the consignee only if it is named by the shipper (article 36(3)(a)). The name of the person to whose order the transport document or electronic transport record is to be issued is irrelevant for a non-negotiable transport document or a non-negotiable electronic transport record or a “bearer document” or a “bearer electronic transport record.”
- 34.
The issue is whether the shipper’s liability under article 4(6) of the Hague-Visby Rules is qualified by article 4(3), which declares fault-based liability for the shipper. The British courts, answering in the negative, have interpreted article 4(6) as imposing strict liability (Effort Shipping Co. v. Linden Management S.A. (The “Giannis NK”), [1998] 1 Lloyd’s Rep. 337). One of the U.S. courts also reached the same conclusion (Senator Linie GmbH & Co. KG v. Sunway Line, 291 F.3d 145 (2d Cir. 2002)).
- 35.
Draft WP.21, supra note 9, § 116; see also “Report of the Working Group on Transport Law on the work of its ninth session (New York, 15–26 April 2002)”, U.N. doc. no. A/CN.9/510 (2002), § 163.
- 36.
See Draft WP.21, supra note 9, arts. 7.3, 7.5.
- 37.
See “Report of Working Group III (Transport Law) on the work of its thirteenth session (New York, 3–14 May 2004)”, U.N. doc. no. A/CN.9/552 (2004), § 146–148.
- 38.
See, e.g., Effort Shipping Co. v. Linden Management S.A. (The “Giannis NK”), [1998] 1 Lloyd’s Rep. 337 (holding a cargo of ground-nut extraction meal pellets to be “dangerous” under article 4(6) of the Hague Rules).
- 39.
The Hague and the Hague-Visby Rules regulate the shipment of “goods of an inflammable, explosive or dangerous nature to the shipment” (Article IV(6)) and the Hamburg Rules the shipment of “dangerous goods” (Article 13). It is not clear whether these conventions cover the situation where the goods look reasonably dangerous but in fact are not.
- 40.
The Hague and the Hague-Visby Rules provide that the shipper is liable “for all damages and expenses directly or indirectly arising out of or resulting from such shipment” (Article IV(6)) and the Hamburg Rules “for the loss resulting from the shipment of such goods” (Article 13(2)(a)).
- 41.
See 16th Session Report, supra note 12, § 168, 19th Session Report, supra note 13, § 252.
- 42.
See INCOTERMS 2000, FOB, The buyer’s obligation B3.
- 43.
The current text was created from the first sentence of article 34 of draft text prepared for 16th session of the UNCITRAL Working Group (November–December 2005) (“Transport Law: Draft convention on the carriage of goods [wholly or partly] [by sea]”, U.N. doc. no. A/CN.9/WG.III/WP.56) which reads as follows:
If a person identified as “shipper” in the contract particulars, although not the shipper as defined in paragraph 1(h), [accepts] [receives] [becomes a holder of] the transport document or electronic transport record, then such person is (a) [subject to the responsibilities and liabilities] imposed on the shipper under this chapter and under article 59, and (b) entitled to the shipper’s rights and immunities provided by this chapter and by chapter 14.
No change in substance was intended. See 19th Session Report, supra note 13, § 255–256.
- 44.
See § 8.3.2. For example, improper packaging by the shipper (breach under article 27(1)) might constitute “fault” in the context of torts.
- 45.
See § 8.5.2.5.
- 46.
See, the European Shipper’s Council Position Paper, supra note 6, Diamond (2009), supra note 21, p. 491.
- 47.
Olebakken, supra note 7, suggests that although shipper's unlimited liability under national law does not seem to have caused serious problems, the pure that shipper's liability is regulated in an international convention may give rise to more claims against the shipper. She continues that this may in turn make current the need for limitation of shipper's liability, preferably on international level. The author, however, is quite skeptical if there is any significant difference in claimant's behavior depending on whether the cause of action is given by the international or domestic.
References
Baughen S (2009) Obligations owed by the shipper to the carrier. In: Thomas DR (ed) A new convention for the carriage of goods by sea: the Rotterdam Rules. Lawtext Publishing, Oxford, pp 169–189
Diamond A (2009) The Rotterdam Rules. LMCLQ 445
Hooper CD (2009) Obligations of the shipper to the carrier under the Rotterdam Rules, Chap 7. Unif. L. Rev:885
Olebakken IH (2007–2008) Background paper on shipper's obligations and liabilities. CMI Yearb:300
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Fujita, T. (2011). Obligations and Liabilities of the Shipper. In: Güner-Özbek, M. (eds) The United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-19650-8_8
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