CONTENTS
Introduction by Jerne Sekolec
Foreword by Rafael Illescas;
Preface;
Table of Cases;
Table of Rules;
Table of Legislation;
Abbreviations;
CHAPTER I;
Introduction and Historical Background to the Rotterdam Rules;
A. Uniformity;
B. The Pragmatic Goals of the Rotterdam Rules;
1. Meeting Industry's Commercial Needs;
2. Updating and Modernising the Law;
3. The Broader Scope of the Convention;
4. Evolutionary Development of the Law;
C. The Prior Regimes Governing the Carriage of Goods by Sea;
1. The Nineteenth Century Regulation of the Carriage of Goods by Sea;
2. The Hague Rules;
3. The Visby Amendments;
4. The Hamburg Rules;
D. The CMI's Preliminary Work on the Rotterdam Rules;
E. The UNCITRAL Working Group's Negotiation of the Rotterdam Rules;
1. The First Reading of the Draft Instrument;
2. The Second Reading of the Draft Convention;
3. The Third Reading;
F. Final Approval of the Rotterdam Rules;
CHAPTER II;
Scope of Application;
A. From Hague to Visby to Hamburg: The Development of the Documentary and Contractual Approaches to the Scope-of-Application Problem;
B. The Introduction of a "Trade Approach";
C. The Strengths and Weaknesses of the Documentary, Contractual, and Trade Approaches;
I. The Documentary Approach;
2. The Contractual Approach;
3. The Trade Approach;
D. The Rotterdam Rules' Combination of the Documentary, Contractual, and Trade Approaches;
E. The General Scope-of-Application Rule: Broad Coverage Under the Contractual Approach;
I. The Contractual Approach;
2. The Internationality Requirements;
3. The Connection with a Contracting State;
F. Using the Documentary and Trade Approaches to Limit the Scope of Application: Exclusions from the Broad General Rule and Exceptions to the Exclusions;
I. The Charter party Exclusion;
2. Defining Liner and Non-Liner Trade;
3. The Treatment of Third Parties in Excluded Transactions;
G. Nationality of the Parties or the Ship;
CHAPTER III;
E-Commerce Concepts and Electronic Transport Records;
A. Functional Equivalency;
I. Origins;
2. Two Methods;
3. The Method of Equalisation of an Electronic Document to Its Paper Equivalent;
4. The Transfer of Rights Method;
B. General Provisions on Electronic Communication;
I. Provisions in the Rotterdam Rules;
2. Other Relevant General Provisions;
C. Electronic Transport Records;
I. The Use and Effect of Electronic Transport Records;
2. Procedures for the Use of Negotiable Electronic Transport Records;
3. Replacement of a Negotiable Transport Document or Negotiable Electronic Transport Record;
CHAPTER IV;
Multimodal Aspects;
A. From "Port to Port" to "Door to Door";
J. Prior Maritime Transport Conventions;
2. The UNCITRAL Negotiations;
3. The Final Text Contract of Carriage and "Maritime Plus" Carrier's Period of Responsibility;
B. The Limited Network Principle;
J. Network System v Uniform System;
2. The Limited Network System and Conflicts of Conventions;
3. Final Text: The Hypothetical Contract Approach;
C. The Limited Network System in Action;
1. Application Only to "Localised Damages";
2. The "Hypothetical Contract" Approach;
3. International Instruments;
4. Mandatory Provisions Governing the Carrier's Liability, Limitation of Liability, and Time for Suit
D. Maritime and Non-maritime Performing Parties;
1. The Broad Regulation of Performing Parties Proposed in Earl y Drafts;
2. The Distinction Between Maritime and Non-maritime Performing Parties;
E. Additional Safeguards to Avoid Conflicts of Conventions;
1. Introduction;
2. The Conflict with the International Conventions for Air Carriage;
3. The Conflict with the International Convention for Road Carriage;
4. The Conflict with the International Convention for Rail Carriage;
5. The Conflict with the International Convention for Inland Waterway Carriage;
CHAPTER V;
Carrier's Liability;
A. The Carrier's Liability Under the Hague, Hague-Visby, and Hamburg Rules;
B. The Carrier's Obligations;
1. The Obligation to Perform the Contract;
2. Generally Applicable Obligations;
3. Specific Maritime Obligations;
4. The Carrier's Period of Responsibility Door-to-door coverage Receipt- The beginning of the arrier's period of responsibility Delivery - The end of the carrier's period of responsibility;
5. Exceptions to the Carrier's Obligations FlO clauses Dangerous goods General Average Sacrifices;
C. Liability for Loss of or Damage to the Goods;
I. The Policy of Article 17 The traditional catalogue of excepted perils Exonerations v presumptions;
2. The Structure of Article 17;
3. Article 17( I) - The Claimant's Prima Facie Case;
4. Article 17(2) - The Carrier's Burden to Prove Absence of Fault;
5. Article 17(3) -The Catalogue of Defences, Navigational fault, Fire, Salvage, Acts of the shipper
Shipper's obligations, Dangerous goods and general average;
6. Article 17(4) - Overcoming the Carrier's Defences;
7. Article 17(5) - The Treatment of Unseaworthiness;
8. Article 17(6) - Allocation of Responsibility in Multiple Causation Cases;
D. Liability for Delay in Delivery;
I. Liability for Delay Under the Hague, Hague-Visby, and Hamburg Rules;
2. The Rotterdam Rules' Focus on Economic Loss/Consequential Damages;
3. The Evolution of the Delay Provision in the Rotterdam Rules;
4. Carrier Liability for Delay Under Article 21;
E. Deck Cargo;
I. Deck Cargo Under the Hague, Hague-Visby, and Hamburg Rules;
2. Deck Cargo Under the Rotterdam Rules;
3. The Carrier's Liability for Deck Cargo;
F. Performing Parties;
1. The Definition of Performing Parties, A person other than the carrier, Performing or undertaking to perform, The carrier's obligations, Acting for the carrier;
2. Employees as Performing Parties;
3. Maritime Performing Parties Port-to-port operations Inland carriers;
4. The Obligations and Liabilities of Maritime Performing Parties;
5. Vicarious Liability;
The carrier's vicarious liability for performing parties, Maritime performing parties' vicarious liability;
6. Extending the Convention's Defences and Limitations Historical development, Automatic Himalaya protection under the Rotterdam Rules, Article 4's protection for the carrier, Article 4's protection for third parties, Article 4's exclusion of non-maritime performing parties, Article 4's protection for the shipper, Contractual modification of the carrier's obligations, or limitations, G. Notice Requirements;
1. Notice Requirements in the Hague, Hague-Visby, and Hamburg Rules;
2. Notice Requirements in the Rotterdam Rules Notice of apparent damages, Notice of non-apparent damages, The effect of the presumption, Joint inspections, Notice of loss due to delay, Performing parties, Reasonable facilities, H. Calculation of Damages;
I. Limitation of Liability;
1. Limitation of Liability for the Loss of or Damage to the Goods Package or unit limitation
Weight-based limitation of liability, The interaction of package/unit and weight-based limitations
Declarations of higher value;
2. Limitation of Liability for Delay;
3. Limitation Amounts, Package/unit and weight-based limitation amounts, The interaction of package/unit and weight-based limitations, Limitation amounts for delay, The network system for localised damages, Non-localised damages;
4. Breaking the Limitation Amounts Burden of proof, Personal fault, Intentional or reckless conduct
Intentional or reckless conduct in delay cases, Deviation;
5. The Interaction of Limitation Under the Rotterdam Rules and Global Limitation;
CHAPTER VI;
Shipper's Obligations
A. General Obligations of the Shipper;
I . Shipper's Obligation to Deliver the Goods for Carriage The General Obligation to Deliver the Goods
Containerised Cargo;
2. Activities under FlO Clause;
3. The Shipper's Obligation to Provide Information, Instructions, and Documents;
B. The Basis of the Shipper's Liability;
1. Breach of Obligation as the Prerequisite for Shipper's Liability: Article 30(]);
2. Other Parties Whose Acts or Omissions Are Attributable to the Shipper;
3. Loss or Damage Loss or Damage Sustained by the Carrier, Loss or Damage Caused by Delay;
4. Fault-Based Liability as the General Rule: Article 30(2);
5. Concurring Causes;
C. The Obligation to Provide Information Necessary for the Compilation of the Contract Particulars;
I. Basis of Liability Regarding the Accuracy of Information;
2. Information Necessary for Compilation of Contract Particulars;
3. Guarantee of the Accuracy of Information;
4. Material Misstatement by the Shipper;
D. Dangerous Goods;
I. Introduction;
2. "Dangerous Goods";
3. Situations Covered by the Dangerous Goods Article;
4. Obligations under Article 32 The Obligation to Disclose the Dangerous Nature or Character of the Goods, The Obligation to Mark and Label Dangerous Goods;
Causation;
E. The Liability of the Documentary Shipper;
F. The Practical Impact of the Shipper's Obligations Chapter;
CHAPTER VII;
Transport Documents;
A. Terminology;
I . Transport Documents and Electronic Transport Records;
2. Negotiable and Non-Negotiable Documents and Records;
B. The Carrier's Duty to Issue a Document or Record;
1. The Requirements Defining the Carrier's Duty;
2. The Use of an Electronic Transport Record;
3. Types of Documents and Records;
C. The Person to Whom a Document or Record Must be Issued;
D. The Contract Particulars;
1. Information about the Goods as Furnished by the Shipper;
2. Information Furnished by the Carrier; Apparent order and condition of the goods, Name and address of the carrier, Date, Number of originals;
3. Optional Information ,Consignee, Ship, Places or ports of receipt, loading, discharge, and delivery;
E. Identity of the Carrier;
1. The General Rule;
2. The Contract Particulars;
3. When No Person Is Identified in the Contract Particulars Presumption against the registered owner or the bareboat, charterer, Time bar;
F. Signature;
I. Signature in a Transport Document;
2. Signature in an Electronic Transport Record;
G. Deficiencies in the Contract Particulars;
1. General Rule;
2. Default Rule for the Date in Contract Particulars;
3. Default Rule for Apparent Order and Condition of the Goods;
H. Qualifying the Information Relating to the Goods;
1. When the Carrier Must Qualify the Information;
2. When the Carrier May Qualify the Information: Non-Containerised Cargo;
3. When the Carrier May Qualify the Information: Containerised Cargo, Description, leading marks, quantity, Weight;
4. The Effect of the Qualifying Clauses;
I. The Evidentiary Effect of the Contract Particulars;
I. The Evidentiary Effect as Between Parties;
2. The Evidentiary Effect as Between the Carrier and a Third Party, Negotiable transport documents
Non-negotiable transport documents;
3. The Freedom to Increase the Evidentiary Value of a Transport Document;
1. The Effect of the Statement "Freight Prepaid";
CHAPTER VIII;
Delivery of the Goods;
A. Definitions;
I. Consignee;
2. Holder;
3. Delivery;
B. The Obligation to Accept Delivery;
C. The Obligation to Acknowledge Receipt;
D. Delivery Under an Ordinary Non-Negotiable Document or Record, or in the Absence of Any Document or Record;
I. The Carrier's Obligation to Deliver;
2. The Duty to Advise the Carrier of the Name and Address of the Person to Whom the Goods Must Be Delivered;
3. Procedures When the Goods Are Not Deliverable;
4. The Carrier's Discharge;
E. Delivery When a Non-negotiable Transport Document that Requires Surrender Is Issued;
I. The Evolution of Article 46;
2. The Substantive Rules of Article 46;
F. Delivery When a Negotiable Transport Document Is Issued;
I. Rule of Application of Article 47;
2. The Heart of the Classic Bill of Lading System;
3. More Than One Original Having Been Issued;
G. Goods Remaining Undelivered;
I. Scope of Application;
2. Carrier's Rights Relating to Undelivered Goods;
3. Conditions and Procedures for the Carrier When; Acting Under Article 48, Reasonable notice
Local law and regulation, Proceeds of sale;
4. Carrier's Liability;
H. An Alternative to Delivery Against a Letter of Indemnity;
1. The Chapeau of Article 47(2);
2. Delivery on Instruction of the Shipper or Documentary Shipper;
3. The Status of Persons Who Become Holders After Delivery Genuine delay, Lack of knowledge;
4. The Standard for the Shipper's "Reasonable Effort";
5. The Effectiveness of Article 47(2);
I. Retention of Goods;
CHAPTER IX;
Rights of the Controlling Party;
A. The Relationship between Chapter 10 and the Law of Sale and the Law of Property;
B. The Exercise and Extent of the Right of Control;
C. The Identity of the Controlling Party;
I . Non-Negotiable Transport Documents and Electronic Transport Records; Undocumented Shipments;
2. Non-Negotiable Transport Documents Requiring Surrender;
3. Negotiable Transport Documents;
4. Negotiable Electronic Transport Records;
D. Transfer of the Right of Control;
I. Non-Negotiable Transport Documents and Electronic Transport Records; Undocumented Shipments;
2. Negotiable Transport Documents;
3. Negotiable Electronic Transport Records;
4. Non-Negotiable Transport Documents Requiring Surrender;
E. The Carrier's Execution of Instructions
1. The Carrier's Obligation to Follow the Controlling Party's Instructions;
2. Exceptions to the Carrier's Obligation;
3. The Controlling Party's Responsibility for Additional Expense, Loss, or Damage;
4. The Carrier's Liability;
F. Delivery Pursuant to the Controlling Party's Instructions;
G. Variations to the Contract of Carriage;
H. Providing Additional Information, Instructions, or Documents to the Carrier;
I. Variation by Agreement;
1. The Relationship Between the Right of Control and E-Commerce;
CHAPTER X;
Rights and Obligations of Third Parties;
A. Transfer of Rights under a Negotiable Transport Document or Negotiable Electronic Transport Record;
1. Negotiable Transport Documents Rights Incorporated in the Document Methods of Transfer;
2. Negotiable Electronic Transport Records;
B. Liability of the Holder of a Negotiable Transport Document or Electronic Record;
I. When the Holder Does Not Exercise Any Right;
2. When the Holder Exercises Any Right Exercising Any Right, The Obligations Involved, Incorporated" or "Ascertainable", Assumption by the Holder;
3. Conclusion;
CHAPTER XI;
Time for Suit;
A. Basic Rules;
I . Claims Subject to the Time Limitation;
2. The Time-for-Suit Period;
3. The Commencement of the Time Period;
4. The Nature of the Limitation;
5. Set-off;
6. Suspension or Interruption;
B. Extension of Time for Suit;
I . Extension by Declaration;
2. Special Allowance for Indemnity Action;
3. Special Allowance for Indemnity Action against the Person;
Identified as the Carrier Under Article 37;
CHAPTER XII;
Jurisdiction and Arbitration;
A. From Hague and Vi sby to Hamburg: The Shift from National;
Law to Detailed International Regulation of Jurisdiction and Arbitration;
B. The Context of the Jurisdiction and Arbitration Debate in the Negotiation of the Rotterdam Rules;
C. The Principal Compromise: Optional Chapters on Jurisdiction and Arbitration;
D. The General Rule for Jurisdiction: The Claimant's Choice Among Reasonable Forums;
I. Competent Court;
2. The List of Permissible Forums;
3. The Carrier's "Domicile";
4. The Place of Receipt;
5. The Initial Port of Loading and the Final Port of Discharge;
6. The Place of Delivery;
7. The Designated Forum;
8. Removal;
E. Situations in Which Exclusive Choice-of-Court Agreements Are Enforced;
I . Exclusive Choice-of-Court Clauses for the Immediate Parties to a Volume Contract ;
2. Enforcement of Exclusive Choice-of-Court Clauses Against Third Parties;
3. Post-Dispute Agreements and Waiver;
F. Actions Against Maritime Performing Parties;
I. The List of Permissible Forums;
2. Consolidation;
G. Additional Bases of Jurisdiction;
H. Recognition and Enforcement of Foreign Decisions;
1. The Theory and Purpose of the Arbitration Chapter;
1. The General Rule for Arbitration;
K. Special Rules for Arbitration;
I. Arbitration Clauses Binding the Immediate Parties to a Volume Contract;
2. Enforcement of Arbitration Clauses Against Third Parties;
3. Arbitration Clauses in the Non-Liner Trade;
4. Post-Dispute Agreements and Waiver;
CHAPTER XIII;
Validity of Contractual Terms;
A. Historical Background;
1. The Hague Rules and Mandatory Regulation of Contracts for the Carriage of Goods by Sea;
2. Developments Since the Hague Rules;
3. The Changing Environment in the Late Twentieth Century;
B. General Rules: Mandatory Regulation;
I. The Obligations and Liabilities of the Carrier and Maritime Performing Parties Terms excluding or the limiting the obligations or liabilities of the carrier or a maritime performing party Benefit of insurance clauses;
2. The Obligations and Liabilities of the Shipper, Consignee, Controlling Party, Holder, or ocumentary Shipper Excluding or limiting the obligations or liabilities of the shipper etc. Increasing the obligations or liabilities of the shipper, etc.;
C. Live Animals and Certain Other Goods;
I. Special Rules for Live Animals;
2. Special Rules for Extraordinary Commercial Shipments;
D. Special Rules for Volume Contracts;
1. Drafting History The CMI's preparatory work UNCITRAL's early discussions From OLSAs to volume contracts The final compromise;
2. Derogation Requirements Between Contracting Parties "Volume contract" Prominent statement on derogation, Individual negotiation or prominent specification, Opportunity for a contract on "Convention terms", Incorporation by reference or contract of adhesion, Public schedule of price and services, transport document, electronic transport record, or similar document;
3. Non-Derogable Provisions;
4. Requirements for Derogation Vis-a-Vis Third Parties;
5. Burden of Proof;
F. Summary of the Freedom of Contract under the Rotterdam Rules;
1. The Obligations and Liabilities of the Carrier;
2. Freedom with Respect to Volume Contracts;
3. The Obligations and Liabilities of the Shipper;
4. Protection of Third Parties;
CHAPTER XIV;
Miscellaneous Provisions;
A. Matters Not Governed by the Convention;
I. Global Limitation of Liability;
2. General Average;
3. Passengers and Luggage;
4. Damage Caused by a Nuclear Incident;
B. Final Clauses;
1. Signature, Ratification, Acceptance, Approval, and Accession;
2. Entry into Force;
3. Denunciation of the Hague, Hague-Visby, and Hamburg Rules;
4. Reservations and Declarations;
5. Revisions and Amendments of the Convention;
6. Denunciation of the Convention;
7. Domestic Territorial Units and Regional Economic Integration Organisations;
Appendix;
Index