During decades international efforts have been made in order to modernize rules that relate to matters of liability in connection with carriage of goods. The pattern since the beginning has been to create a minimum liability for the carrier by mandatory provisions, whilst the position of the shipper has been more unclear in principle, be it that also here mandatory provisions are found. As the setting is commercial, it is quite interesting to note that freedom of contract is restricted. There has been debate on this issue and questions have been asked whether an international mandatory regime is necessary in today’s world rather than a non-mandatory.
The fact is that different modes of transport have their own liability rules. This is inconvenient as the combination of different modes of carriage under one single contract is an important commercial reality today. There is a clear need to improve the international legislative basis on this point.
The Rotterdam Rules deal primarily with carriage of goods by sea, but it is also partly multimodal, a "maritime plus" liability regime.
In view of carriage of goods by sea, the development has been from the Hague Rules 1924, the Hague-Visby Rules 1968 , the Protocol 1979, and the Hamburg Rules 1978 to the Rotterdam Rules 2008. At the time of writing the Hague and the Hague-Visby Rules are dominating the sea trade and it is not known how the Rotterdam Rules will be implemented in future. In the signing event in Rotterdam in September 2009 there were many States indicating their interest by signing the Convention and the number has increased since. However, the main point is to look at ratifications and numbers. Twenty ratifications are needed for the Rotterdam Rules to enter into force.
For other than sea carriage, there are also international conventions, but not specified in this context.
For multimodal transport there is the Multimodal Convention, 1980, but there is no international success. In practice, multimodal issues are dealt with by contract terms, simultaneously aiming to avoid any breach against the
mandatory rules included in the international liability regimes dealing with different single modes of transport.
It would seem that the process in creating the new liability regime included in the Rotterdam Rules derived from a far-reaching international understanding that reform was and is necessary, not only for sea carriage, but also for multimodal transport. It is quite another matter how different sources are looking at the latest result, the Rotterdam Rules. Many arguments supporting the new rules have been put forward, but there is also a lot of criticism. The new rules seem to be divisive in this respect. On the other hand, whatever one’s personal views are, the fact remains that the real influence of the new regime will be seen by the number of ratifications that would include several nations of importance in relation to the flow of goods, such as the United States and China, and some major European states.
Once accepting the fact that the present dominating regimes in sea carriage are old-fashioned with many gaps, the first question that arises is what a new regime should include. In 2001 Comité Maritime International (CMI) launched a report that was initiated in 1996 named "Draft Instrument for the Carriage of Goods [Wholly or Partly][by Sea]". This was not just an effort to amend existing regimes. The report became the underlying basis for work in Working Group III (WG III) of United Nations Commission on International Trade Law (Uncitral). Preparation started in 2002 and ended in 2008 with the UN Assembly adoption of United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, called the Rotterdam Rules.
I cannot go into details on the background. Instead, the particular matter of scope of application of the new rules is dealt with in the following.
The Rotterdam Rules have a new approach to the scope issue, but is should be remembered that in substantive terms the differences to the old regimes are not that great on all points.
The matter of the scope of application caused a lot of debate in the WG III sessions. To a large part it was a question of how to technically make the provisions as clear as possible, considering that no bill of lading requirement was included in the new regime for its application. The alternative of accepting a similar basis to that of the Hamburg Rules, also not requiring the issuance of a bill of lading for application, was not considered sufficient, as there was a need to both clarify which parts of the liner trade and the non-liner trade were in and which were out.
In trying to find solutions, three alternatives emerged at a seminar i London in early 2004. They were the following:
1) the documentary approach
2) the contractual approach
3) the trade approach.
In the documentary approach, a particular transport document would be required, as the case is with the Hague Rules (a bill of lading or any similar
document of title). In the contractual approach the type(s) of contract would be specified, such as charter parties. In the trade approach a line would be drawn between the type of trade, such as between liner trade and non-liner trade.
It turned out in the WG III sessions and the informal consultations that none of these approaches were available on their own. They might in best of cases work theoretically, but the practical needs would not have been satisfied. It also became clear that there was not a possibility to decrease the scope of application on any point compared with the Hague Rules. This was a difficult preparatory exercise. I know it from the "inside" as I had the unofficial position of chairing the informal consultations in the matter. This activity also included the problematic question of freedom of contract, a very controversial issue, not least noticed by the debate that has followed since the Rotterdam Rules were adopted.1The scope of application issue ended, as most of the other important issues, in a compromise, be it that largely, but not completely, the question was about legal-technical problems. It will be seen below where also substantive issues were at stake. Some sources indicate that the Rotterdam Rules start from the trade approach, but I think that this is not quite the case. It could be said to be the dominating issue, but there are clear elements of the other two theoretical approaches mentioned above. It is important to add that a special type of contract, the volume contract, is dealt with under specific provisions concerning freedom of contract, but the volume contract basically falls under the general scope of application rules.
In order to understand the provisions of the Rotterdam Rules it is necessary to keep in mind the long list of definitions included in article 1. This is also the case with the scope of application provisions.
There are several definitions in article 1 that are relevant for the scope issue.
In article 1.1 , "contract of carriage" is defined as 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.