Two particular circumstances influenced the development of the new Convention. There may be differing views as to whether they should be described as strengths or weaknesses. I shall endeavour to show that they are two important strengths.
First the new Convention was developed against the background of three existing international regimes. Most states in the world have adopted the Hague Rules, the Hague-Visby Rules or the Hamburg Rules and each regime has its strong adherents. The supporters of the Hague and Hague-Visby Rules argue that these regimes are well tried and understood and govern the majority of world trade. The supporters of the Hamburg Rules have argued, albeit with only limited success, that the Hamburg Rules are a much more modern regime both in concept and in substance and that their widespread adoption would result in a substantially updated regime for the international carriage of goods by sea.1The new Convention was developed against the background of these competing views. Insofar as it develops and harmonises the Hague, Hague-Visby and the Hamburg Rules, this can fairly be described as one of the new regime’s strengths.
Second, the project had its origins at the 29th Session of the UNCITRAL Commission in 1996, when it considered a proposal to include in its work programme a review of current practices and laws in the area of carriage of
goods by sea with a view to establishing the need for uniform rules where no such rules existed, and with a view to achieving greater uniformity of law.2Whilst this proposal was couched in very wide terms, it did not, by implication, include a review of the Hague, Hague-Visby and Hamburg Rules. It arose out of UNCITRAL’s work on electronic commerce. This work exposed the fact that existing national laws and international conventions had left significant gaps regarding issues such as the functions of bills of lading and sea waybills, the relationship between those documents and the rights and obligations between the seller and buyer of goods, and the legal position of entities that provided financing to a party to the contract of carriage.
Differing views were expressed on this proposal and the Commission did not include consideration of the suggested issues on its agenda at that stage. It did however decide that the UNCITRAL Secretariat should be the focal point for gathering information, ideas and opinions as to the problems that arose in practice and possible solutions to them. It was subsequently agreed that the CMI should take the lead and the CMI established a Steering Committee which in a report of May 1998 developed the issues and identified the topics that should be studied by a CMI Working Group set up for this purpose.3The topics identified by the Steering Committee did not include the liability regime.
It was noted at the 32nd Session of the UNCITRAL Commission in 1999 that the exercise on which the CMI was engaged would at a later stage include a re-evaluation of principles of liability to determine their compatibility with a broader area of rules on the carriage of goods. At the 34th Session in 2001 the Commission decided to establish a working group to consider the project (to be named "Working Group on Transport Law", which became Working Group III) and it was expected that the Secretariat would prepare for the Working Group a preliminary working document containing drafts of possible solutions for a future legislative instrument. It was only at this Session that the Commission decided that the working document should include issues of liability.4Such a document had been in the course of preparation by the CMI and in December 2001 the CMI was able to deliver to the UNCITRAL Secretariat a Draft Instrument on Transport Law (the CMI Draft)5. The Draft instrument annexed to Working Paper 21 is substantially in the form of the CMI Draft. In accordance with the original brief given to the CMI, the CMI Draft included five chapters which covered areas not then covered by an international regi-
me, but in which the CMI considered that greater uniformity would be desirable. These chapters included provisions relating to freight, delivery to the consignee, the right of control, the transfer of rights incorporated in a transport document and rights of suit against the carrier. Moreover the chapter on transport documents and electronic records included material which considerably expanded the relevant provisions in the existing conventions. In the course of the negotiations in Working Group III the provisions on freight and rights of suit were largely deleted, but the provisions on delivery to the consignee, the right of control, the transfer of rights under a negotiable transport document or record and the extensive provisions on transport documents and electronic records, albeit with substantial amendments from the original drafts, remain in the new Convention.
I have thus explained how the wide ranging and ambitious preliminary working document was conceived. However at the first session of Working Group III in April 2002, there was general consensus in the Working Group "that the purpose of its work was to end the multiplicity of the regimes of liability applying to carriage of goods by sea and also to adjust maritime transport law to better meet the needs and realities of international maritime transport practices".6It is my belief that if the original brief to the CMI had been framed in these terms, the emphasis of the CMI’s work would inevitably have fallen on a review of the liability regimes and associated questions relating to transport documents. Such a review, initially only of the Hague and Hague-Visby regimes,7had been proceeding in the CMI since 1988, albeit not continuously, under the leadership of Professor Francesco Berlingieri and had culminated in a report which he prepared in 1999.8
Such a brief could have been fulfilled simply by perfecting this work, as certain commercial interests urged at the time. In fact this work was the basis on which the chapters in the CMI Draft on the obligations and liability of the carrier were prepared. However if the emphasis of the project had been on the liability regime from the outset, the chapters dealing with delivery to the consignee, the right of control and the transfer of rights might well not have been included, or included only in an attenuated form. The way in which the new Convention was conceived opened a unique opportunity to achieve increased uniformity in these areas. Admittedly this has resulted in a longer and perhaps more complex Convention, but I would submit that the achievement of this increased uniformity is one of the Convention’s strengths.
I will now come back to my first point about developing and harmonising the Hague, Hague-Visby and Hamburg regimes.
The Hamburg Rules are wider in their scope of application than the Hague and Hague-Visby Rules. First the Hamburg Rules are applicable, subject to the specific provisions of article 2, to all contracts for the carriage of goods by sea, whilst the Hague and Hague-Visby Rules only apply if the contract of carriage is covered by a bill of lading or similar document of title. Second the Hamburg Rules apply to the whole period during which the carrier is in charge of the goods, not only during the carriage, but also at the port of loading and at the port of discharge. The Hague and Hague-Visby Rules cover only the period from the time the goods are loaded onto the ship until the time they are discharged from it.
The Explanatory Note on the Hamburg Rules prepared by the UNCITRAL Secretariat notes that in the 1970s more and more goods were being carried under non-negotiable documents, rather than bills of lading, and that carriers were often taking and retaining custody of goods in port before and after the actual sea carriage. The Hamburg Rules also recognise the advent of electronic commerce by providing that a signature to a bill of lading may be made by any mechanical or electronic means if not inconsistent with the national law of its place of issue.
The carriage of goods under non-negotiable documents was considered by the CMI and at its 34th Conference in Paris in 1990 and a short set of rules, known as the "CMI Uniform Rules for Sea Waybills", were adopted for voluntary incorporation into contracts of carriage not covered by a bill of lading or similar document of title.9These Rules apply to the contract of carriage any international convention, such as the Hague, Hague-Visby or Hamburg Rules, or national law, that would have been compulsorily applicable if a bill of lading or similar document of title had been issued. They thus achieve a degree of harmonisation between negotiable and non- negotiable documents as regards the parties’ rights and responsibilities. The Rules also contain specific provisions regulating the right of control and delivery to the consignee under non-negotiable documents. These Rules have been widely adopted.10
The Rotterdam Rules build on the Hamburg Rules and the CMI Uniform Rules for Sea Waybills. The Rotterdam Rules create a single uniform regime which governs both negotiable and non-negotiable transport documents that evidence or contain a contract of carriage that falls within the requirements of article 5.
During the course of the work by the CMI on sea waybills the question of uniform rules for electronic bills of lading was raised and a separate...