Navigating the Rotterdam rules

Autor:Kate Lannan
Cargo del Autor:B.A., LL.B., B.C.L., LL.M, is a Legal Officer with the UNCITRAL Secretariat in Vienna, Austria
Páginas:195-212

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1. Introduction

In July 2008, following its 41st session, the United Nations Commission on International Trade Law (UNCITRAL) approved the draft text of the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea.2The text was subsequently adopted by the UN General Assembly on 11 December 2008.3The General Assembly resolution that adopted the Convention also authorized that it be opened for signature at a ceremony to take place in Rotterdam, the Netherlands, on 23 September 2009. In light of its place of opening for signature, and in keeping with the tradition of maritime transport conventions, the General Assembly recommended that the Convention should be known as the "Rotterdam Rules."4Moreover, with a view to establishing the global nature intended for the new Convention, the General Assembly called upon all Governments to consider becoming party to the Convention.5

This article is intended to give a brief description of the background and history of the Rotterdam Rules, as well as to provide a summary of some of the more important innovations that the Convention will bring when it enters into force.6

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2. Current context

It is well known that the current legal regime governing the international carriage of goods by sea is characterized by complexity, a lack of uniformity and a failure to take into account modern developments in the industry due to the age of the existing conventions. Currently, three separate international treaties govern international maritime transport: the Hague Rules,7which date from 1924, the Hague-Visby Rules8, which date from 1968, and the Hamburg Rules,9which date from 1978.

While each of these conventions has achieved a certain level of international acceptance, none has managed to establish a uniform global regime for maritime transport. The Hague Rules,10which are now over 80 years old, have achieved the greatest level of international acceptance, but have not been uniformly implemented or applied, and do not adequately take into account modern transport practices. Attempts have been made to modernize the regime through the negotiation of the 1968 Visby Protocol11and, later, the Hamburg Rules.12While the Hamburg Rules were appropriate to the era in which they were negotiated, they have not been universally embraced, and have been successful in achieving only a certain level of harmonization amongst the States in which they are in force.13Adding to the lack of uniformity in terms of international law, certain States have resorted to relying on their national law to either fill the legal gaps of the existing regimes, or as a substitute for them altogether. Other States or groups of States have pursued, or are currently pursuing, regional solutions.

This highly fragmented set of rules characterized by competing, and sometimes overlapping, international, regional and domestic regimes, has denied commercial actors the predictability and transparency that they require to do

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business internationally. The result has been legal and commercial uncertainty, increased commercial transaction costs and an overall loss of efficiency.

In addition, two extremely important aspects of the modern transport industry are not currently taken adequately into account by the existing outdated regimes. First, the rapid increase in the volume of container transport, which first made its appearance just over 50 years ago, has dramatically changed the face of the maritime transport industry. Modern use of container transport has made it possible to move goods more quickly, more inexpensively and more efficiently from their place of manufacture to their final destination. This often requires the combination of several different modes of transport to allow for door-to-door movement under a single contract of carriage. However, the period of the carrier’s responsibility under the current international legal regimes governing the carriage of goods by sea cannot accommodate such movements: it is limited to port-to-port coverage in the case of the Hamburg Rules, and to tackle-to-tackle carriage in the case of the Hague and Hague-Visby Rules.

Secondly, modern commerce is increasingly turning to paperless transactions. Needless to say, given the age of the existing international maritime transport conventions and the relatively recent ascent of electronic transactions, none of the existing conventions offers a reliable legal basis for the replacement of traditional transport documents with more efficient electronic transport records.

Furthermore, the existing international maritime transport regimes - whether pursuant to the Hague, the Hague-Visby or the Hamburg Rules - leave a number of important aspects of international maritime carriage unregulated and, therefore, subject to national law as a means of filling the legal gaps. This resort to national law has also had a negative effect on overall harmonization in the field.

These and other concerns convinced industry, and then Governments, that the time had come to take a fresh look at the international regime governing the maritime carriage of goods. Importantly, however, that reassessment has not consisted of rewriting the law applicable to international maritime transport. Conscious of the various applicable legal regimes around the world, and of the need to harmonize them, the Rotterdam Rules build upon the legal pillars established by the existing conventions. Moreover, the Convention aims at enhancing legal certainty by codifying decades of case law and industry practice and by clarifying earlier texts where necessary. The Rotterdam Rules thus represent a comprehensive instrument governing international contracts of carriage that does more than merely expand the existing liability regime to include contracts for door-to-door carriage and electronic transport documents.14

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3. History of the convention

The seeds for the Rotterdam Rules were actually sown in UNCITRAL’s Working Group on Electronic Data Interchange (EDI). In 199415and again in 1995,16the EDI Working Group had suggested to the Commission17at its annual session that preliminary work should be undertaken on "the issue of negotiability and transferability of rights in goods in a computer-based environment." Of course, that issue had presented a particularly difficult problem for some time, and solutions to it had not yet been found. In 1995, the Commission endorsed the EDI Working Group’s recommendation that a background study in respect of such work should proceed, with a particular emphasis on maritime transport documents. The Commission also noted that the Secretariat should take into account work that was then underway in other international organizations, including the Comité Maritime International (CMI),18and that the cooperation of other such relevant organizations and industry groups should therefore be sought.

In 1996, at its 29th session, the Commission was presented with a proposal to include in the UNCITRAL work programme "a review of current practices and laws in the area of the international carriage of goods by sea, with a view to establishing the need for uniform rules in the areas where no such rules existed and with a view to achieving greater uniformity of laws than had so far been achieved."19It was suggested that existing national laws and international conventions left significant gaps regarding issues such as the functio"...Concerned that the current legal regime governing the international carriage of goods by sea lacks uniformity and fails to adequately take into account modern transport practices, including containerization, door-to-door transport contracts and the use of electronic transport documents,

...Convinced that the adoption of uniform rules to modernize and harmonize the rules that govern the international carriage of goods involving a sea leg would enhance legal certainty, improve efficiency and commercial predictability in the international carriage of goods and reduce legal obstacles to the flow of international trade among all States,

Believing that the adoption of uniform rules to govern international contracts of carriage wholly or partly by sea will promote legal certainty, improve the efficiency of international carriage of goods and facilitate new access opportunities for previously remote parties and markets, thus playing a fundamental role in promoting trade and economic development, both domestically and internationally, [and]

Noting that shippers and carriers do not have the benefit of a binding and balanced universal regime to support the operation of contracts of carriage involving various modes of transport...".

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ning of bills of lading and seaway bills, the relation of those transport documents to the rights and obligations between the seller and the buyer of the goods, and to the legal position of banks and financial institutions involved in the underlying sales transaction. Some States had provisions on those issues, but they were disparate, whilst others had none at all, creating obstacles to the free flow of goods and resulting in increased transaction costs. Further, there was a desire to explore uniform provisions in light of the growing use of electronic means of...

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