The United Nations Convention On Contracts For The International Carriage of Goods Wholly or Partly by Sea

The United Nations Convention on Contracts
for the International Carriage of Goods Wholly

or Partly by Sea
.
Meltem Deniz Güner-Özbek
Editor
The United Nations

Convention on Contracts
for the International
Carriage of Goods Wholly
or Partly by Sea
An Appraisal of the “Rotterdam Rules”
Editor
Dr. Meltem Deniz Güner-Özbek
Koç University, School of Law
Rumeli Feneri Yolu
34450 Sanyer-Istanbul, Turkey
dguner@ku.edu.tr
Koç University Faculty of Law Dr. Nüsret-Semahat Arsel International Business Law
Implementation and Research Center
ISBN 978-3-642-19649-2 e-ISBN 978-3-642-19650-8

DOI 10.1007/978-3-642-19650-8
Springer Heidelberg Dordrecht London New York
Library of Congress Control Number: 2011930789
# Springer-Verlag Berlin Heidelberg 2011

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Foreword
At the beginning of 2010, the Koç University Law School’s Dr. Nüsret – Semahat
Arsel International Business Law Implementation and Research Center decided to
organize an international conference in order to thoroughly discuss the “UN
Convention on Contracts for the International Carriage of Goods Wholly or Partly
by Sea”, also known as the “Rotterdam Rules”.
On 11 December 2008, the United Nations General Assembly adopted the
Rotterdam Rules and authorized a signing ceremony for the Convention, which
took place in Rotterdam on 23 September 2009. The intention in adopting the
Rotterdam Rules was to replace the outdated Hague / Hague-Visby Rules, which
were considered inadequate for fulfilling the needs of modern trade, and the
Hamburg Rules, which have proved unpopular with maritime nations. Significant-
ly, the Rotterdam Rules embody contemporary and uniform regulations for modern
door-to-door container shipping and include innovations that the current interna-
tional shipping regime lack. However it should also be acknowledged that the
Convention has been subject to criticism with regard to certain issues.
In this regard, the aforementioned international conference was hosted by the
Dr. Nüsret – Semahat Arsel International Business Law Implementation and Re-
search Center on 6–7 May 2010. The Research Center has also decided to publish
the papers delivered at the Conference as a book, in order to make them available to
legal circles. Accordingly, this book primarily consists of the papers presented at
the conference. One notable addition is a paper submitted by Prof. Francesco
Berlingieri, even though he was unable to attend and present it at the conference.
It must be noted that a significant number of the contributors to the book also
personally took part in the process of drafting the Rotterdam Rules. Turkish lawyers
were also invited to contribute to the drafting process in order to prepare Turkey for
the Rotterdam Rules, though the country is not yet a party to the Convention.
I would like to express my gratitude to Dr. Meltem Deniz Güner-Özbek for her
efforts both in organizing the conference and editing this book. Furthermore I am
grateful to Springer Verlag, who agreed to publish this book, for their interest in the
subject.
Prof. Dr. Tankut Centel

Dean of Koç University Law School
v
.
Preface
It is my great pleasure to edit The United Nations Convention on Contracts for

the International Carriage of Goods Wholly or Partly by Sea, An Appraisal of
the Rotterdam Rules with the intent of disseminating both the insider’s and out-
sider’s evaluations and views on the Rotterdam Rules. The insiders are
Prof. Francesco Berlingieri – infamous doyen of maritime law, who was so kind
as to send his advance paper even though he was not able to attend the conference;
Prof. Michael Sturley – Senior advisor of the U.S. delegation to UNCITRAL
Working Group III and Member of the UNCITRAL Secretariats’s Expert Group
on Transport Law, who has been involved with the Rotterdam Rules since their
earliest stages; Prof. Tomotaka Fujita, – Head of the Japanese Delegation to
UNCITRAL Working Group III and Member of the UNCITRAL Secretariats’s
Expert Group on Transport Law; Prof. Dr. Gertjan van der Ziel – Head of the
Netherland’s Delegation to UNCITRAL Working Group III and Member of the
UNCITRAL Secretariats’s Expert Group on Transport Law; and Dr. Anders
Moellmann – Delegate and Head of the Danish Delegation to UNCITRAL Working
Group III at the 18th through to the 21st Sessions and the 41st Commission Session.
In their papers they provide the background ideas of the Rotterdam Rules, as well as
their individual evaluations and criticism on both general issues and particular topics. On
the other hand, local academics Prof. Dr. Samim Ünan, myself, Prof. Dr. Fehmi Ülgener,
Associate Prof. Dr. Kerim Atamer, Associate Prof. Dr. Hakan Karan, and Assistant Prof.
Dr. Zeynep Derya Tarman have evaluated the Rotterdam Rules from another perspec-
tive taking into account Turkish Law. Discussions at the conference involved interesting
arguments as well as undiscovered issues pertaining to the Rotterdam Rules. We do not
know if or when the Rotterdam Rules will come into force. What we do know is that the
Rotterdam Rules take the basic rules of the Hague-Visby Rules and develops them in
light of modern developments. Even if the Rotterdam Rules do not come into force, they
will nevertheless influence future developments in this area of maritime law.
I am grateful to Koç University Law School Dr. Nüsret – Semahat Arsel
International Business Law Implementation and Research Center for its generous
funding to organize the conference as well as to publish its proceedings. I am also
deeply thankful to Prof. Dr. Tankut Centel, Dean of Koç University Law School, for
his invaluable support in academic work in general and for believing in me in
vii
viii Preface
particular. He has supported me and my international academic activities since my

early academic life.
In addition, I would like to acknowledge my special thanks to my dear colleague
Dr. Zeynep Derya Tarman for her inestimable suggestions and observations. I do
not know how I would have coped without her valuable assistance in preparing for
the conference as well as preparing this book for publication. I also owe thanks to
Anthony Richard Townley for his kind and expeditious assistance in proof-reading
of some of the papers.
Last but not least, I owe gratitude to my family.
Sariyer, January 2011 Dr. Meltem Deniz Güner-Özbek

Koç University School of Law
Contents
1 The History of the Rotterdam Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Francesco Berlingieri
2 General Principles of Transport Law and the Rotterdam Rules . . . . . . 63

Michael F. Sturley
3 The Scope of Application of the Rotterdam Rules and Freedom

of Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Samim Ünan
4 Extended Scope of the Rotterdam Rules: Maritime Plus

and Conflict of the Extension with the Extensions of Other
Transport Law Conventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
Meltem Deniz Güner-Özbek
5 Obligations and Liabilities of the Carrier . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139

M. Fehmi Ülgener
6 Construction Problems in the Rotterdam Rules Regarding

the Identity of the Carrier . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
Kerim Atamer and Cüneyt Süzel
7 Compensation for Damage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201

Anders Møllmann
8 Obligations and Liabilities of the Shipper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211

Tomotaka Fujita
9 Transport Documents in the Light of the Rotterdam Rules . . . . . . . . . . 229

Hakan Karan
ix
x Contents
10 Rights of the Controlling Party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249

Gertjan van der Ziel
11 Jurisdiction and Arbitration Under the Rotterdam Rules . . . . . . . . . . 265

Zeynep Derya Tarman
Chapter 1
The History of the Rotterdam Rules
Francesco Berlingieri
Abstract There are various ways in which the history of the Rotterdam Rules may
be narrated. On another occasion I have chosen the technique of following the
evolution of the provisions throughout the debate in the UNCITRAL Working
Group, indicating the various changes that had taken place and the debates within
the Working Group that had given rise to each change. Since it would not have been
possible within the time allowed to that for all the provisions, I had selected some of
them, including some important definitions. This time I decided instead to report the
global progress of the work, starting from the preparatory work done by the CMI and
then following the work during each session of the UNCITRAL Working Group.
Therefore the main part of this history is organized on the basis of the successive
sessions of the Working Group, providing a summary, based on the reports of each
session prepared by the Secretariat, of the most relevant issues discussed in
each session and of the decisions made. The numbers and titles of the chapters and
articles are those of the draft that at any given time was being considered.
I have annexed to my history a list of the States and of the organizations that
attended the sessions of the Working Group (Annex I) and the tables of contents of
each of the thirteen sessions of the Working Group during which the Draft Instru-
ment was discussed (Annex II).
1.1 The Work of the Comité Maritime International
1. When the Comité Maritime International (CMI) decided, in 1962, to embark

upon the revision of the Hague Rules, it probably did that in a too prudent
manner and avoided tackling the most significant issues, such as that relating to
the exoneration of the carrier’s liability for errors in the navigation and manage-
ment of the ship and that relating to the restriction of the carrier’s obligation to
exercise due diligence to make the ship seaworthy at the time preceding the
Prof. F. Berlingieri
President of Honor of the Comité Maritime International
e-mail: slb@dirmar.it
M.D. G€uner-Özbek (ed.), The United Nations Convention on Contracts for the 1
International Carriage of Goods Wholly or Partly by Sea,
DOI 10.1007/978-3-642-19650-8_1, # Springer-Verlag Berlin Heidelberg 2011
2 F. Berlingieri
commencement of the voyage. Nor was anything more done at the CMI 1963
Stockholm Conference and at the Diplomatic Conference of 1968. Quite to the
contrary, the proposal made by the CMI to extend the scope of application of the
Hague Rules to the shipments bound to Contracting States also was not adopted.
And this has possibly contributed to the adoption in 1978 of the Hamburg Rules. In
any event, that adversely affected the initial uniformity achieved by the Hague
Rules, for several States that were parties to the Hague Rules have not become
parties to the 1968 Protocol (the Hague-Visby Rules) or to the 1979 Protocol that
replaced the Poincaré Franc with the Special Drawing Right, and the Hamburg
Rules created an alternative system that, in addition to being adopted by an
increasing number of countries, almost all being developing States (now 33), gave
rise in some countries, such as the Scandinavian countries and China, to a mixed
national regime, based partly on the Hague-Visby Rules and partly on the Hamburg
Rules. Besides all that, there occurred an unpredictable event, the container revolu-
tion, that slowly replaced the traditional contract of carriage by sea from port to port
with a contract from the door of the shipper to the door of the consignee.
2. The CMI soon realised that it was necessary to proceed to a more substantial
revision of the Hague-Visby Rules and in 1988 decided to place that subject on
the agenda of its next Conference, due to take place in Paris in June 1990. An
International Sub-Committee (I-SC) was created by the CMI Executive Council
with the task of considering what features the uniform maritime law on carriage
of goods by sea should possess in the last decade of the second millennium. The
I-SC submitted to the Conference a report1 in which the following subjects were
considered:
– Identity of the carrier
– Contracts and documents subject to a mandatory regime
– Deck cargo
– Period of responsibility
– Exemptions from liability
– Limits of liability
– Deviation
– Delay
– Damages
After its discussion at the Conference the report was approved with some
amendments2 together with a declaration with which the CMI expressed the hope
that the competent intergovernmental organizations would continue offering to the
CMI the cooperation it had benefited from in the past, in order to enable the CMI to
perform its future work.
1
Comité Maritime International, Paris I, p. 54.
2
Comité Maritime International, Paris II, p. 104.
1 The History of the Rotterdam Rules 3
3. Four years later, in May 1994, the Executive Council of the CMI appointed a
Working Group3 with a mandate to continue the work commenced before the
Paris Conference. That Working Group drew up a questionnaire4 for the CMI
national associations in which their opinion on the best way to find a remedy to
the proliferation of the regimes governing carriage by sea in force in the
maritime world5 was requested and, in the alternative on whether such new
regime should consist of a modernisation of either the Hague-Visby Rules or the
Hamburg Rules or should consist of an entirely new set of uniform rules.
Subsequently the Executive Council created a new International Sub-Committee
giving it the preparation of a study of the most important questions in the area of
carriage of goods by sea and the submission of recommendations on the most
convenient manner of handling them with a view to ensuring international
uniformity as terms of reference. The I-SC chose 22 subjects6 for its consider-
ation and the study of these subjects was carried out during the five subsequent
sessions of the I-SC held in 1995 and 1996.7
4. In 1996 UNCITRAL at its twenty-ninth session considered a proposal to include
in its 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 where no such rules existed and with a view to achieving greater
3
Consisting of Professors Francesco Berlingieri, Rolf Herber, Jan Ramberg and William Tetley.
4
Published in the CMI Yearbook 1995, p. 111.
5
The summary drawn up by the Working Group is published in CMI Yearbook 1995, p. 112.
6
Such subjects were the following:
1. Definitions
2. Scope of application
3. Interpretation
4. Period of application
5. Identity of the carrier
6. Liability of the carrier
7. Liability of the performing carrier
8. Through carriage
9. Deviation
10. Delay
11. Limitation of liability
12. Loss of right to limit
13. Transport document
14. Evidentiary value
15. Liability of the shipper
16. Dangerous cargo
17. Letters of guarantee
18. Notice of loss
19. Time bar
20. Choice of law
21. Jurisdiction
22. Arbitration
7
See the reports of each session, in CMI Yearbook 1996, pp. 343–420 and their summary in CMI
Yearbook 1997, p. 291.
4 F. Berlingieri
uniformity of laws. At that session, the Commission also decided that the
Secretariat should gather information, ideas and opinions as to the problems
that arose in practice and possible solutions to those problems, so as to be able to
present at a later stage a report to the Commission. It was agreed that such
information-gathering should be broadly based and should include, in addition
to Governments, the international organizations representing the commercial
sectors involved in the carriage of goods by sea, such as the CMI, the Interna-
tional Chamber of Commerce (ICC), the International Union of Marine Insur-
ance (IUMI), the International Federation of Freight Forwarders Associations
(FIATA), the International Chamber of Shipping (ICS) and the International
Association of Ports and Harbors (IAPH).
5. In the following year the President and the Past President of the CMI, having
heard about the above decisions, deemed it useful to pay a visit to the Secretary
of UNCITRAL, Dr. Herrmann, with a view to exploring the feasibility of a joint
initiative for the purpose of creating a new uniform legislation meant to replace
both the Hague-Visby Rules and the Hamburg Rules. They tackled the problem
in a very frank manner. They said that the Hague-Visby Rules were at least in
part obsolete and that the Hamburg Rules also, albeit more modern, had been
overtaken by events, such as the container revolution and that it appeared very
unlikely that the traditional maritime countries would be willing to replace the
Hague-Visby Rules with the Hamburg Rules. The meeting was very successful
and marked the peace between the father of the Hague-Visby Rules and the
father of the Hamburg Rules.
6. Following that meeting, in May 1988 the CMI Executive Council created a
working group under the chairmanship of Stuart Beare with the initial mandate, in
consideration of the resolution adopted by UNCITRAL in 1996, of studying the
feasibility of widening the area, covered by the existing conventions on carriage of
goods by sea, to other aspects of the contract of carriage of goods, taking into
account the studies that had already been carried out in the recent years by CMI
working groups and international sub-committees. However on the occasion of a
round table organized by the CMI to which the representatives of the industry had
been invited, great pressure was exerted to include in the study a review of the
liability regime of both the carrier and the shipper also. The Working Group,
named “W.G. on Issues of Transport Law”, drew up a questionnaire8 and on the
basis of the responses received from the National Maritime Law Associations
submitted to the CMI Executive Council an initial report in which it indicated that
the idea of preparing a new Convention intended to replace both the Hague-Visby
Rules and the Hamburg Rules had been widely supported. In view of that, the
Executive Council decided to create without delay an ad hoc International Sub-
Committee and to send delegates to the forthcoming session of UNCITRAL in
order to report on the steps already taken with a view to implementing the
agreement that had been reached with Dr. Herrmann 2 years before.
8
Published in the CMI Yearbook 1999, at p. 132.
7. In the following session of UNCITRAL, held in New York in July 2000, a

colloquium jointly organized by UNCITRAL and CMI took place in New York
on 6 July 2000 with a view to gathering information from the industry about the
problems that existed in the trade and identifying the issues that required special
consideration. Attention was drawn to the various lacunae that existed in the
present uniform legislation, amongst other things, in respect of the increasing
importance in the carriage of containers of the door-to-door transportation, of
the need for rules on electronic equivalents of bills of lading and of the attention
that should be paid to the relation between contracts of carriage and contracts of
sale of goods. The need for a reform of the existing uniform rules was widely
shared by the participants.
8. Meanwhile two sessions of the International Sub-Committee under the chair-
manship of Stuart Beare had already taken place9 and a third one followed that
month,10 during which the liability regime of the carrier and the extension of the
scope of application of the future transport instrument to the land phases of door-
to-door transport were discussed. Such extension received very wide support,
together with the adoption of rules on the electronic equivalent of paper trans-
port documents, at the subsequent Conference of the CMI, held in Singapore in
February 2001, when the preliminary draft of the new instrument, approved by
the International Sub-Committee during its fourth session, held in London on 12
and 13 October 2000, was considered.11 A subsequent session of the I-SC was
held in London on 16–18 July 2001, when amendments to the Draft Instrument
were effected on the basis of the comments and suggestions made during the
Singapore Conference. The amended draft was circulated to all national asso-
ciations for comments, followed by a synopsis of all comments received up to 30
October 2001, whereupon the I-SC held in Madrid on 12 and 13 November 2001
its last session for a final review of the instrument. The Draft Instrument,
accompanied by explanatory notes, after its approval by the CMI Executive
Council was sent to the UNCITRAL Secretariat on 11 December 2001.
1.2 The Work of the UNCITRAL Working Group

on Transport Law
After consideration of a report of the Secretary General on the work of the CMI
I-SC, UNCITRAL had decided to create a working group, called “Working Group
on Transport Law”, to which the task of reviewing the Draft Instrument now at the
9
The first in London on 27 and 28 January 2000 (CMI Yearbook 2000. Singapore I, p. 176) and the
second also in London, on 6 and 7 April 2000 (CMI Yearbook 2000 – Singapore I, p. 202).
10
The third session was held in New York, on 7 and 8 July 2000 (CMI Yearbook 2000 – Singapore I,
p. 234).
11
CMI Yearbook 2001 – Singapore II, p. 532.
6 F. Berlingieri
almost final stage of preparation by the CMI was to be entrusted. As regards the
matters that were supposed to be covered in the Draft Instrument, UNCITRAL
decided that the liability regime should also be included, although the period of
application, at least initially, should be limited to the maritime leg of the carriage.
The Working Group on Transport Law, which was composed of all State
members of UNCITRAL, devoted thirteen sessions to the preparation of the Draft
Convention (initially called Draft Instrument), during which three readings of the
draft have taken place and four subsequent drafts have been prepared.
Ninth session, held in New York from 15 to 26 April 2002
The WG started its work on the Draft Instrument prepared by the CMI in April
2002. Prof. Rafael Illescas from Spain was elected Chairman and Mr. Walter de Sá
Leitão was elected Rapporteur. The CMI Draft Instrument on Transport Law,12 sent
to the UNCITRAL Secretariat on 11th December 2001, was inserted as an annex to
the first UNCITRAL document of the Working Group13 without the introduction
and with only some minor language adjustments to the comments following the
individual provisions. The title of the draft was changed to “Preliminary Draft
Instrument on the Carriage of Goods by Sea”.
The Working Group decided to commence its work by a broad exchange of
views regarding the general policy reflected in the Draft Instrument, rather than
focusing initially on an article-by-article analysis of the Draft Instrument. To assist
in structuring the general discussion, it was agreed that seven themes should be
examined, with reference to each case of the relevant provisions in the Draft Instru-
ment. These were: sphere of application (draft chapter 3); electronic communi-
cation (draft chapters 2, 8 and 12); liability of the carrier (draft chapters 4, 5 and 6);
rights and obligations of parties to the contract of carriage (draft chapters 7, 9
and 10); right of control (draft chapter 11); transfer of contractual rights (draft
chapter 12) and judicial exercise of those rights emanating from the contract (draft
chapters 13 and 14). Upon the suggestion made by one delegation, the Working
Group agreed that a further theme should be added regarding the freedom of
contract (currently dealt with in draft chapter 17) for examination as part of the
thematic analysis of the Draft Instrument.
It is worth mentioning that when the last of the above themes was discussed,
after a general agreement that the exclusion of charter parties would still be
appropriate14 it was stated that the practice of individualized transport agreements
(in practice referred to by expressions such as volume contracts or transport service
contracts) had developed in different industries that shipped goods internationally
and with shippers of different sizes. Such contracts typically resulted from careful
negotiations which addressed matters such as the volume of goods to be transported
(expressed in absolute or relative terms), the period over which the goods would be
12
In CMI Yearbook 2001 – Singapore II, p. 532.
13
Document A/CN.9/WG.III/WP.21.
14
A/CN.9/510, } 62.
transported, various service terms, price, as well as liability issues. Such individu-
ally negotiated contracts varied in their focus, for example, in that some specifically
dealt with liability issues while others did not pretend to modify the generally
applicable liability regime. It was suggested that such contractual arrangements
should be considered by the Working Group with a view to treating them differently
from other transport contracts. Such contracts would include the following special
features: they would be covered by the Draft Instrument but its provisions would
not be mandatory with respect to them; the Draft Instrument, including the liability
provisions would apply fully except to the extent the parties specifically agreed
otherwise; derogations from the otherwise mandatory regime would have to be
individually negotiated and could not be established by standard terms; third
parties, including the consignee (the holder of the bill of lading or the person
entitled to take delivery of the goods on another basis) would be bound by such
individually negotiated terms only if, and only to the extent that, they specifically
agreed to them (for example, by becoming a party to the individually negotiated
contract); such agreement by third persons would have to be specific and could not
be expressed in standard terms.
There followed a specific consideration of draft chapters 1-Definitions, 5-
Obligations of the carrier and 7-Obligations of the shipper. In respect of the
obligations of the carrier the discussion covered, inter alia, article 5.2.2 pursuant
to which the parties may agree that during the period of responsibility of the carrier
certain functions may be performed by or on behalf of the shipper. It was noted that
that provision was designed to accommodate the practice of FIO and FIOS clauses
and the view was expressed that FIO(S) clauses might be appropriate for maritime
(port-to-port) carriage but had no place in the global transport service of door-to-
door transport contracts where it would be agreed that loading and unloading
operations in an intermediary port should be performed by the cargo owner and
that the agreement would shift the risk of those operations on the cargo owner in the
midst of the service. It was thus suggested that the draft provision should be deleted.
That view received considerable support and it was considered that the impact of
those clauses on door-to-door operations needed to be evaluated.15
Tenth session, held in Vienna from 16 to 20 September 2002
Chapter 6 – Liability of the carrier
The WG devoted most of its time to the whole of chapter 6 that included the
provisions now contained in articles 17, 22, 19, 21, 24, 25, 59, 61 and 23. After
consideration of article 6.1.1, corresponding to the present article 17.1, the debate
centred on article 6.1.2, corresponding to article 4.2 (a) and (b) of the Hague-Visby
Rules and the Working Group agreed to delete the exoneration for errors in the
navigation and management and to keep that for fire. There followed a discussion
on the subsequent excepted perils, now listed in article 6.1.3, and two different
approaches were considered, the first being to qualify them as exonerations and the
A/CN.9/510, } 120–127.
15
8 F. Berlingieri
second to qualify them instead as presumptions only, without any decision being
reached in that respect.16 In respect of loss or damage due to a combination of
causes, for which two alternative versions were included in article 6.1.4, preference
was provisionally expressed for the first one, based on article 5.7 of the Hamburg
Rules.17 It is also worth mentioning that in respect of the provisions on calculation
of compensation in article 6.2 the question whether consequential losses were
excluded or not was raised and the only response given was that the intention of
the CMI had been to replicate the Hague-Visby Rules and that in respect of the
provisions on delay in article 6.4 no agreement could be reached on whether to treat
the failure to deliver the goods within the time it would be reasonable to expect of a
diligent carrier as delay, mentioned in square brackets in article 6.4.1.
Eleventh session, held in New York from 24 March to 4 April 2003
Chapters 8, 10, 11, 12, 14, 16 and 17
The WG considered several chapters of the Draft Instrument, namely chapters
8-Transport documents and electronic records, 10-Delivery to the consignee, 11-
Right of control,12-Transfer of rights, 14-Time for suit, 16-Other conventions and
17-Limits of contractual freedom.
Chapter 8 – Transport documents and electronic records
Several comments and suggestions were made in respect of paragraph 3.1
(corresponding to the present article 40) including that of providing that the carrier
should be required to give the reasons of its qualification, thereby avoiding the use
of general clauses such as “said to be” or “said to contain” and that, as regards the
weight of containers, that wording should be added to cover the case where there
was no commercially reasonable possibility of weighing the container.18 Comments
and suggestions were also made on paragraph 3.3 (corresponding to the present
article 41), in particular in respect of the evidentiary effect of the particulars in non-
negotiable documents and it was pointed out that the conclusive evidence rule
already existed with respect to sea waybills in article 5 of the CMI Uniform Rules
for Sea Waybills.19 Finally the novel provision on the identity of the carrier in
paragraph 4.2 (corresponding to the present article 37) was the subject of debate,
and opposite views were expressed on it.20
Chapter 10 – Delivery to the consignee (now Chapter 9)
The provision in paragraph 1 (corresponding to the present article 43) on the
obligation of the consignee to accept delivery where it exercises any of its rights
under the contract of carriage met with considerable support, whereas the subse-
quent part of the paragraph, relating to the rights of the carrier where the consignee
16
A/CN.9/525, } 41.
17
A/CN.9/525, } 46–56.
18
A/CN.9/526, } 36–37.
19
A/CN.9/526, } 44–48.
20
A/CN.9/526, } 56–60.
does not collect the goods, was the subject of differing views and the Secretariat
was asked to prepare a revised draft.21 A careful analysis was then made of
paragraphs 3 (corresponding to the present articles 45–47) and 4 (corresponding
to the present article 48) and the Secretariat was asked to prepare a redraft of both
taking into account the views expressed, even though the Working Group had
reserved to revert on the text of paragraph 3.22
Chapter 11 – Right of control (now Chapter 10)
The adoption on provisions on the right of control was generally felt a welcome
addition to the traditional maritime transport instrument. The individual provisions
were the subject of an initial debate and, as for other articles, the Secretariat was
requested to prepare a revised draft, with possible variants, for the continuation of
the discussion.
Chapter 12 – Transfer or rights (now Chapter 11)
The provisions in that chapter constituted a novel approach, at least with regard to
maritime conventions. It was noted that there were two principal reasons for the
inclusion of a chapter on transfer of rights: first, to ensure that the provisions of
the Draft Instrument were coherent throughout in terms of the issue of liability of
the parties, and second, in order to set out the necessary rules to accommodate the
electronic communication component of the Draft Instrument.
The debate focused in particular on paragraphs 2 and 3 that regulated the liability
of the holders of negotiable transport documents as well as of the transferees of the
rights under a contract of carriage when no negotiable transport document is
issued23 and the Secretariat was asked to prepare a revised draft of such paragraphs
placing them in square brackets.
Chapter 13 – Rights of suit (deleted)
Its paragraph 1, which identifies the parties entitled to assert rights under a contract
of carriage, met with considerable objections and its deletion was strongly sup-
ported. At that stage, however, the Secretariat was only requested to prepare a
revised draft, taking into account the objections that had been raised.24
Chapter 14 – Time for suit (now Chapter 13)
In respect of chapter 14, which provided that the carrier is discharged from all
liability in case suit is not brought within 1 year, an important question of termi-
nology was raised with respect to article 14.1. It was noted that the commentary to
this provision25 stated that the expiration of the time for suit resulted in the
extinguishment of the rights of the potential claimant, and as such, suggested that
chapter 14.1 concerned a prescription period rather than a limitation period. It was
21
A/CN.9/526, } 65–72.
22
A/CN.9/526, } 78–99.
23
A/CN.9/526, } 135–148.
24
A/CN.9/526, } 150–159.
25
A/CN.9/WG.III/WP.21, } 208.
10 F. Berlingieri
noted that this distinction was very important, particularly in civil law systems,
where the law establishing a time period for the extinction of a right would typically
not allow a suspension of the time period. As to whether the lex fori or the lex
contractus would govern the issue of the limitation period, it was pointed out that
certain existing international instruments such as the Rome Convention on the Law
Applicable to Contractual Obligations would lead to the application of the lex
contractus as matters of time for suit for claims arising from the contract of carriage
would be governed by the proper law of the contract. However, in some jurisdic-
tions, the matter would be regarded as one of civil procedure to be governed by the
lex fori. It was suggested that any ambiguity with respect to prescription periods
versus limitation periods should be carefully avoided, in order to ensure predict-
ability of the time for suit provisions.
A discussion then followed on the period of limitation, indicated in the draft as
1 year, and it was decided to place the period within square brackets.26
Chapter 3 – Scope of application (now Chapter 2)
After consideration of chapter 16 (now chapter 17), a general discussion took place
on the scope of application of the instrument and, on the assumption that its scope
would be door-to-door, five different proposals by Italy,27 Canada,28 Sweden,29
the Netherlands30 and the United States,31 were presented. After discussion wide
support was expressed in the Working Group that the scope of application of the
Draft Instrument should be door-to-door rather than port-to-port. Support was
expressed for a uniform system in the door-to-door instrument, and it was suggested
that an effort should be made to achieve such a uniform system. However, there was
broad acceptance that a uniform system was likely unattainable, and support was
expressed in favour of a limited network system. Various means of adopting a
limited network system were discussed, including those suggested in the Italian,
the Canadian and the Swedish proposals, but no firm decision was made by the
Working Group in this regard. Having provisionally agreed that the scope of the
Draft Instrument should cover door-to-door transport, the Working Group pro-
ceeded with a more specific discussion of the following five issues: (a) the type
of carriage covered by the Draft Instrument; (b) the relationship of the Draft
Instrument with other conventions and with domestic legislation; (c) the manner
in which performing parties should be dealt with under the Draft Instrument; (d) the
limits of liability under the Draft Instrument; and (e) the treatment of non-localized
damages under the Draft Instrument.32
26
A/CN.9/526, } 169.
27
A/CN.9/WG.III/WP.25.
28
29
30
A/CN.9/WG.III/WP.28/Add.1.
31
A/CN.9/526, } 226–227.
32
A/CN.9/526, } 240–267.
At the end of such discussions the first reading of the Draft Instrument was
completed, whereupon the Secretariat prepared a revised text of the Draft Instru-
ment for consideration of the Working Group, in which the changes to the text
previously considered, contained in document A/CN.9/WG.III/WP.21, were indi-
cated by underlining and strikeout. Such revised text was circulated as an annex to
a Note by the Secretariat dated 4 September 2003 (document A/CN.9/WG.III/
WP.32). A change was made in the general layout: the provisions were arranged
under the 19 chapters listed below:
1. General provisions
2. Electronic communications
3. Period of responsibility
4. Obligations of the carrier
5. Liability of the carrier
6. Additional provisions relating to the carriage by sea
7. Obligations of the shipper
8. Transport documents and electronic records
9. Freight
10. Delivery to the consignee
11. Right of control
12. Transfer of rights
13. Rights of suit
14. Time for suit
15. Jurisdiction
16. Arbitration
17. General average
18. Other conventions
19. Limits of contractual freedom
A progressive numbering of the articles under each chapter was adopted, the
draft consisting of a total of 89 articles.
Twelfth session, held in Vienna from 6 to 17 October 2003
The Working Group based its discussions on a revised edition of the Draft Instru-
ment prepared by the Secretariat, reference to which will be made as WP.32.33
Title of the instrument
The Working Group considered, as a preliminary matter, the title of the instrument
and in view of the level of consensus that had been achieved in respect of the scope
of application of the Draft Instrument, decided to remove the brackets so that the
Draft Instrument would be called “Convention on the carriage of goods wholly or
partly by sea”.34
33
A/CN.9/544, } 18.
34
12 F. Berlingieri
Core issues selected for discussion

It was then decided to proceed with discussions by grouping matters into core
issues. It was suggested that the first major heading of issues could be “Scope of
application” and that the first sub-set of issues under that heading could be “Conflicts
with international and national legislation”, pursuant to which the following three
groups of issues could be discussed: (1) contract of carriage; (2) performing parties
and network liability and (3) localized and non -localized damage. It was proposed
that the second sub-set of issues under the heading “Scope of application” could be
“Geographical scope of the maritime leg” (article 2 of the Draft Instrument).
It was further proposed that a second major group of issues could be discussed
under the heading “Freedom of contract”, and could consist of the following topics:
the charter party exemption (article 2(3) of the Draft Instrument); treatment of
ocean liner service agreements (OLSAs); mixed contracts of carriage and forward-
ing (article 9); the functional approach (e.g. article 11(2), free in and out, stowed, or
FIOS, clauses); one-way or two-way mandatory provisions (article 88 of the Draft
Instrument); and period of responsibility (article 7). It was stated that the topics in
this group were based on the assumption that the instrument would otherwise be
mandatory.
It was suggested that a third major group of issues could be discussed under the
heading “Carrier obligations and liability”. This group of topics could include
exemptions; limits and tacit amendment procedure; delay; and seaworthiness (as a
continuing obligation). It was proposed that a discussion of these three major
groups of issues could be followed by a discussion of the following four topics:
shippers’ obligations; forum selection and arbitration; delivery of goods; and right
of control.
In preparation of the session the Government of the United States had submitted
the text of a proposal regarding ten aspects of the Draft Instrument for consideration
by the Working Group35 one of which was its scope of application, the suggestion
being made that also certain performing parties, already defined in article 1.17 of
the previous draft, should be subject to the convention. In connection with that
proposal the delegations of Italy and the Netherlands stated that they would support
it, subject to some minor changes. It was proposed that the first change should be
that the provisions of the Draft Instrument apply from the time the goods are taken
over by the carrier to the time of their delivery to the consignee, subject to the
limited network exception contained in article 8 of the Draft Instrument, and that
the reference to national law that appeared in square brackets in that draft provision
should be deleted. It was suggested that such deletion was necessary to avoid the
danger that international law could be superseded by national law. The second
change suggested was that in addition to the carrier, the provisions of the Draft
Instrument should also apply to those performing parties that operate in the port
areas, which were referred to as “maritime performing parties”, for which a defini-
tion would be required. The third suggestion was that the provisions of the Draft
35
Instrument should not apply to performing parties that are not maritime performing
parties. The fourth suggestion was that all the provisions of the Draft Instrument
that make reference to performing parties should be reviewed so that in those
provisions relating to the liability of the carrier for acts or negligence of performing
parties (e.g., draft articles 14(2) and 15(3)) reference should continue to be made to
performing parties generally, whether maritime or not, while in those provisions
that relate to the obligations and the liability of performing parties, reference should
only be made to maritime performing parties. Amongst others, it was suggested that
draft articles 15(1) and 15(4) should be revised to create a direct cause of action
against maritime performing parties only. Similarly, it was suggested that the
“Himalaya” protection of article 15(5) should be extended to maritime performing
parties only.
The Working Group was almost unanimous in support of the exclusion of non-
maritime performing parties from the liability regime of the Draft Instrument as set
out in section I of the proposal of the United States. In addition, there was strong
support in favour of the second aspect of that proposal in deleting the reference to
national law in article 8(b). While a provisional decision was made to retain the
reference to national law in article 8(b) in square brackets pending a final decision
to be made at a future session, it was strongly felt that deletion of the reference to
national law was a necessary component to the overall proposal.36 The Working
Group took note of the fact that the proposal in section I of the United States
document should be regarded as a single package, including both the exclusion of
non-maritime performing parties from the liability regime and the deletion of the
reference to national law in article 8(b).
In connection with the scope of the application the prevailing view, however,
was that the focus of the Draft Instrument on maritime transport should be reflected
in the provision establishing its sphere of application. It was pointed out that the
acceptability of the Draft Instrument might be greater if its scope made it clearly
distinguishable from a purely multimodal transport convention. The initial draft of
the instrument had attempted to establish such a distinction simply by stating that
the Draft Instrument was intended to cover door-to-door transport involving a sea
leg. However, it was agreed by most delegations that a further restriction to the
scope should be introduced by establishing that the Draft Instrument would apply to
door-to-door carriage of goods, whether unimodal or multimodal, provided that
such carriage involved a sea leg and that such sea leg involved cross-border
transport.37
Subsequently it was considered whether certain types of contract should
be excluded from the scope of the instrument and there was broad agreement in
the Working Group that certain types of contracts either should not be covered by
the Draft Instrument at all, or should be covered on a non-mandatory, default basis.
Such contracts would include those that, in practice, were the subject of extensive
A/CN.9/544, } 21.
36
A/CN.9/544, } 56.
37
14 F. Berlingieri
negotiation between shippers and carriers, as opposed to transport contracts that did
not require (or where commercial practices did not allow for) the same level of
variation to meet individual situations. The latter generally took the form of
contracts of adhesion, in the context of which parties might need the protection
of mandatory law.
Diverging views were expressed as to the best legislative technique to be used in
excluding those contracts that should not be covered on a mandatory basis by the
Draft Instrument. One view was that the traditional exception regarding charter-
parties should be maintained in the provision dealing with the scope of the Draft
Instrument. It was suggested that such a traditional exception should be comple-
mented by a treatment of specifically identified types of contracts in respect of
which the provisions of the Draft Instrument should not be mandatory. However, it
was also suggested that such contracts should not be dealt with in draft article 2 but
in chapter 19 dealing with freedom of contract, in which event the references to
“contracts of affreightment, volume contracts, or similar agreements” currently
between square brackets should be moved to chapter 19, with the possible addition
of a reference to “ocean liner service agreements (OLSAs)”.38
Chapter 4 – Obligations of the carrier
The Working Group devoted the last part of the session to the draft articles on the
obligations of the carrier and its liability for loss of or damage to the goods in
chapters 4 and 5 of the revised Draft Instrument. In respect of the liability regime it
was pointed out that a case for cargo damage was, in practice, a four-step process. In
the first step, the cargo claimant was required to establish its prima facie case by
showing that the cargo was damaged during the carrier’s period of responsibility,
but was not required to prove the cause of the damage, and if no further proof was
received, the carrier would be liable for unexplained losses suffered during its
period of responsibility. In the second step, the carrier could rebut the claimant’s
prima facie case by proving an “excepted peril” under article IV.2 of the Hague and
Hague -Visby Rules, and that that peril was the cause of the damage to the cargo. In
step three, the cargo claimant had the opportunity to prove that the “excepted peril”
was not the sole cause of the damage, and that the carrier caused some of the
damage by a breach of its duty to care for the cargo. Once the claimant had shown
that there were multiple causes for the damage, the analysis proceeded to step four,
in which liability for the damage was apportioned between the different causes. It
was suggested that the first three steps of this approach had worked well since their
inception in the Hague Rules, and that this general approach should be preserved in
the Draft Instrument.
As respects the list of the “excepted perils”, the maintenance of which was
deemed advisable, inter alia, in order to preserve the body of law that had developed
with the widespread use of the Hague and Hague-Visby Rules, the Working Group
considered article 14(2) of the second redraft prepared by the informal drafting
A/CN.9/544, } 78.
38
group. The discussion in the Working Group again focused on whether the pre-
ferred approach to the list of “excepted perils” should be one of exoneration from
liability or one based on presumption of non-liability. There was support for the
view that the presumption approach was preferable, while a minority view
expressed a preference for the exoneration approach. A widely held view was
that there was no specific preference for one approach over the other, particularly
if, as expected, the legal outcome would be the same with either approach.39
Finally, as respects the obligations of the carrier, the Working Group agreed,
after discussion, that the obligation of due diligence in respect of seaworthiness
should be a continuing one.40
Thirteenth session, held in New York from 3 to 14 May 2004
Article 18 – Limits of liability
After a general discussion on the provisions on liability of the performing parties
(article 15), delay (article 16) and calculation of compensation (article 17), the
Working Group considered the provisions on the limits of liability in article 18. It
was stated that the words “in connection with the goods” were drawn from article
IV.5(a) of the Hague-Visby Rules, where the intent was to cover losses caused by a
decrease in the market value of goods during a delay, but not to cover economic
loss. It was suggested that if the Draft Instrument was to cover pure economic loss, a
different formulation should be used, such as “the carrier’s liability for loss of or
damage to the goods or for delay in delivery”.41
In respect of the loss of the right to limit, strong support was expressed for
maintaining the reference to the personal act or omission of the person claiming a
right to limit its liability, to the exclusion of acts or omissions of the servants or
agents of that person. With respect to the concern expressed in respect of the
“personal” act or omission of a corporate entity, it was pointed out that such a
“corporate entity” was normally established in the form of a legal person and that
the notion of a “personal act or omission” was well established in maritime law and
understood to encompass the managers of such a legal person. To alleviate that
concern, it was suggested that the words “personal act or omission of” might be
replaced by “act or omission within the privity or knowledge of”.
Chapter 9 – Freight
It was decided to delete the chapter on freight except its article 44 on the clause
“freight prepaid”, to be placed elsewhere (now in chapter 8, article 42).42
39
A/CN.9/544, } 106.
40
A/CN.9/544, } 153.
41
A/CN.9/552, } 42.
42
A/CN.9/552, } 163–164.
16 F. Berlingieri
Fourteenth session, held in Vienna from 29 November to 10 December 2004

Article 14 – Basis of liability
The Working Group reverted to the provisions on the basis of the liability of the
carrier. One of the problems that were discussed was that relating to the allocation
of the burden of proof in the event of unseaworthiness, at that time in article 14.2(c)
and now in article 17.4. The Working Group considered the two alternatives set
out in the proposed text of subparagraph 14(2)(c). It was observed that the first
alternative text of subparagraph 14(2)(c) required the claimant to prove only the
unseaworthiness of the ship or the failure of the carrier to properly man, equip and
supply the vessel or the unfitness of the holds in order to shift the burden of proof
back to the carrier, while the second alternative required the claimant to prove that
the loss, damage or delay was actually caused by one of those failings on the part of
the carrier. Concerns were raised regarding the burden that would be placed on the
claimant in having to prove the causation further to the second alternative approach.
Concerns were also raised with respect to the burden that the first alternative would
place on the carrier, by requiring it to prove both the seaworthiness of the ship and
the cause of the loss. Since support was expressed in the Working Group for each of
the two alternatives, the proposal was made that a compromise position between the
two alternatives being considered in subparagraph 14 (2) (c) could be achieved by
reducing the burden on the claimant to prove causation: the claimant should be
required to prove both the unseaworthiness and that it caused or could reasonably
have caused the loss or damage. Support was expressed in the Working Group for
the adoption of such a compromise position.43
After reconsidering the list of the “excepted perils”,44 the Working Group
devoted its attention to the draft provision on concurring causes, contained in a
Note by the Secretariat.45 The view was expressed that there could be three types of
concurring causes, each of which should be subject to an allocation of liability by
the court pursuant to paragraph (4):
– Those whereby each event could have caused the entire loss, damage or delay,
irrespective of the other causes;
– Those whereby each event caused only a portion of the damage;
43
A/CN.9/572, } 23–24.
44
A/CN.9/572, } 34–66.
45
A/CN.9/WG.III/WP.36. The provision was the following:
4. In case the fault of the carrier or of a person mentioned in article 14 bis has contributed to the
loss, damage or delay together with concurring causes for which the carrier shall not be liable, the
amount for which the carrier shall be liable, without prejudice to its right to limit liability as
provided by article 18, shall be determined [by the court] in proportion to the extent to which the
loss, damage or delay is attributable to its fault. [The court may only apportion liability on an equal
basis if it is unable to determine the actual apportionment or if it determines that the actual
apportionment is on an equal basis.]
– And those whereby each event was insufficient to have independently caused
the damage, but the combined result created the loss, damage or delay.
Attention was, however, drawn to the fact that the Working Group had agreed
that the guiding principle of paragraph (4) should be that it did not deal with the
question of liability as that question was dealt with in paragraphs 14(1) and (2),46
and that paragraph (4) was intended to be confined to the distribution of loss
amongst multiple parties, covering all types of concurring causes. Further, it was
recalled that in earlier discussions, the Working Group had agreed in principle that
when there were multiple causes for loss, damage or delay, it should be left to the
court to allocate liability for the loss based upon causation.
Fifteenth session, held in New York from 18 to 28 April 2005
Chapter 1 – General provisions
Chapter 19 – Limits of contractual freedom
The Working Group considered again the matters of the scope of application and
freedom of contract and after a general discussion on the methodology for the
continuation of the work agreed that consideration of these matters should take
place on the basis of the following key issues: (1) Whether OLSAs should be
included within the scope of application of the Draft Instrument as volume con-
tracts; (2) Under which conditions should it be possible to derogate from the
provisions of the Draft Instrument; (3) Should there be mandatory provisions
from which derogation should never be allowed; (4) Should a derogation applicable
as between the original contracting parties extend to third parties and if so under
what conditions; (5) Whether the present definition of contract of carriage is
appropriate or not; (6) Should a documentary or a non-documentary approach be
adopted for the protection of third parties; (7) Should a “one way” or a “two way”
mandatory approach be adopted.
In respect of issue no. 1 it was decided that the answer should be affirmative.47
In respect of issue no. 2 it was decided that the following derogation scheme
should form the basis for further discussion48:
– The contract should be [mutually negotiated and] agreed to in writing or
electronically;
– The contract should obligate the carrier to perform a specified transportation service;
– A provision in the volume contract that provides for greater or lesser duties,
rights, obligations, and liabilities should be set forth in the contract and may not
be incorporated by reference from another document; and
– The contract should not be [a carrier’s public schedule of prices and services,] a
bill of lading, transport document, electronic record, or cargo receipt or similar
46
A/CN.9/544, } 142.
47
A/CN.9/576, } 14–16.
48
A/CN.9/576, } 17–19.
18 F. Berlingieri
document but the contract may incorporate such documents by reference as

elements of the contract.
In respect of issue no. 3 it was decided that derogation from the seaworthiness
obligation should in no event be permissible.49
In respect of issue no. 4 it was decided that a provision allowing third parties to a
volume contract to expressly agree to be bound by derogations agreed to as between
the original parties should be included, and the drafting of such provision be
entrusted to the informal drafting group.50
In respect of issue no. 5 the discussion focused on whether the international
character of the contract should also include the internationality of the maritime leg
and it was agreed that that should be the case.51
In respect of issue no. 6 attention was drawn to the fact that in some trades and,
in particular, in short shipping trade, commercial practice did not foresee the
issuance of any type of document and that consequently the “documentary
approach”, pursuant to which protection would be granted to third parties holders
of bills of lading issued pursuant to charter parties,52 would deprive third parties
involved in such trades of any protection.53
In respect of issue no. 7 it was decided that only the shipper needed protection
and that, therefore, the liability of the carrier could be contractually increased.
The Working Group subsequently considered the revised version of articles 88
and 89 and draft of the new article 88a that had been prepared by an informal
working group following the discussion of issues nos. 1–4 and the ensuing revised
version of articles 1–454 and decided that such revised version should be used as a
basis for continuation of the discussion at a future session.55
After the end of the fifteenth session, although the second reading of the Draft
Instrument had not been completed, the Secretariat prepared a new text of the Draft
Instrument containing a consolidation of certain revised provisions that had been agreed
upon by the Working Group. Such new text was circulated as Annex I to a Note by the
Secretariat dated 8 September 2005. Changes to the previous text56 have been indicated
in footnotes to that text by reference to the working paper in which such interim revised
text appeared,57 or to the paragraph of the report in which such text appeared.58
Reference to that new edition of the Draft Instrument will be made as “WP.56”.
49
A/CN.9/576, } 20–23.
50
A/CN.9/576, } 24–28.
51
A/CN.9/576, } 29–34.
52
This is at present the case as under article 1(b) of the Hague-Visby Rules and article 2.3 of the
Hamburg Rules.
53
A/CN.9/576, } 36–37.
54
The revised version of such articles may be found in A/CN.9/576, } 52.
55
A/CN.9/576, } 53–109.
56
Contained in A/CN.9/WG.III/WP.32.
57
A/CN.9/WG.III/WP.36, A/CN.9/WG.III/WP.39, A/CN.9/WG.III/WP.44, and A/CN.9/WG.III/
WP.47.
58
A/CN.9/572 and A/CN.9/576.
Sixteenth session, held in Vienna from 28 November to 9 December 2005

Chapter 16 – Jurisdiction
Chapter 17 – Arbitration
The Working Group considered first the chapters on jurisdiction and arbitration in
WP.56. As regards jurisdiction one of the provisions that deserved particular
attention was that on choice of court agreements in article 76 of WP.56. The
discussion, however, was based on subsequent drafting suggestions received from
some delegations59 and since various observations were made on such text, the
Working Group decided that article 76 should be further revised in the light of the
observations that had been made. There followed a short discussion on chapter 17
on arbitration.
Chapter 8 – Obligations of the shipper
Subsequently the Working Group considered the chapter on the obligations of the
shipper (chapter 8 in WP.56). There was general support for including the chapter
on shippers’ obligations in the Draft Convention as it reflected the current context in
which the contract of carriage required the shipper and carrier to cooperate to
prevent loss of or damage to the goods or to the vessel. The view was expressed
that obligations in the contract of carriage had evolved over the years beyond mere
acceptance to carry goods and payment for such carriage. It was said that this
cooperation between the shipper and the carrier should be reflected in the Draft
Convention.
One of the issues that received particular attention was that relating to the
liability of the shipper for loss due to delay. There was support for the view that
delay was particularly problematic as a basis for the shipper’s liability, since it
could expose the shipper to enormous and potentially uninsurable liability. For
example, a shipper who failed to provide a necessary customs document could
cause the ship to be delayed, and could be liable not only for the loss payable to
the carrier, which could include enormous consequential damages, but also for the
losses of all of the other shippers with containers on the ship. As a consequence,
the suggestion was made that the shipper’s liability for delay should be deleted from
the draft text. It was also observed that if delay was retained in the text, a reasonable
limitation should be placed on the liability of the shipper.
The suggestion was also made that such a limitation on the liability of the
shipper for consequential losses should exist in any event, as, for example, the
shipper could be held responsible for broad, but likely insurable, liability for
damage to the ship. However, the difficulties associated with arriving at a reason-
able means of determining such a limitation on liability were also outlined. There
was a general agreement that such a limitation should be at a high enough level so
as to provide a strong enough incentive for the shipper to provide accurate infor-
mation to the carrier, but that it should be foreseeable and low enough so that the
potential liability would be insurable.
The amended text may be found in A/CN.9/591, } 20.

59
20 F. Berlingieri
Chapter 10 – Delivery to the consignee

Finally, the Working Group considered the provisions on delivery of the goods and,
in that connection the provisions on the right of the parties to determine the period
of responsibility of the carrier, now contained in article 12.3 and those on the FIO
clauses now contained in article 13.2. That was done following a document of the
Netherlands in the form of a questionnaire on the above provisions, submitted in
order to facilitate their consideration during the sixteenth session.60 In this connec-
tion it is worth mentioning the discussion that took place in respect of provisions
now in articles 12.3 and 13.2, at that time contained in articles 11.6 and 14.2. It was
observed that draft paragraph 11(6) was intended to operate in concert with draft
paragraph 14(2) in an effort to provide a solution for the treatment of FIO(S)
clauses, which, in some States, determined the period of the responsibility of the
carrier. There was support for the view that draft paragraph 6 would not be
acceptable if draft paragraph 14(2) was deleted, but that read together with draft
paragraph 14(2), the two provisions established an acceptable approach to FIO(S)
clauses. It was explained that the combined effect of these provisions was to clarify
the responsibilities of the shipper and the carrier who agreed that the loading,
stowing and discharging of the goods would be carried out by the shipper. In that
case, the shipper would be liable for any loss due to its failure to effectively fulfill
those obligations, and the carrier would retain responsibility for other matters
during loading and discharge, such as a duty of care regarding the goods, since
the carrier’s period of responsibility would be governed by the contract of carriage.
In addition, it was observed that the current text of draft paragraph 14(2)
restricted the obligations that could be contracted out by the carrier to the shipper
or other parties to those listed in draft paragraph 14(2). Further, the view was
expressed that draft paragraph 11(6) was helpful since it made clear that loading
and discharging took place during the period of responsibility of the carrier. It was
noted that FIO(S) clauses were most commonly used in non-liner carriage, which
fell outside the scope of application of the Draft Convention, but that the Draft
Convention could be applicable to contracts of carriage in non-liner transport by
way of the operation of draft article 10 (now article 7).
Consideration of the chapter on delivery could not, however, be completed
during that session.
Seventeenth session, held in New York from 3 to 13 April 2006
Chapter 11 – Right of control
The Working Group continued the second reading of the Draft Instrument and
considered the provisions in chapter 11 on “Right of control” (now chapter 10 on
“Rights of the controlling party”). In respect of article 54 (now article 50), which at
that time was conceived as a definition (its title in fact clearly indicated that
approach, being “Definition of the right of control”) the attention focused on its
paragraph (b), the importance of which was explained as a protection of the seller in
60
case of insolvency of the buyer, as a consequence of which the seller could be

compelled to change the destination of the goods,61 and the prevailing view was
that that should basically be a right of the controlling party and not merely a
variation of the contract subject to agreement with the carrier, but, being such, its
exercise should be limited to situations where the instructions may be carried out by
the carrier without adversely affecting the schedule of the ship. It was therefore
decided that of the two alternative bracketed phrases – “before the arrival at the
place of destination” and “at an intermediate port or place en route” – the second
should be adopted.62 Equally interesting is the debate in respect of article 56.1 (now
article 51.2): the concern was expressed that its original text might not adequately
protect the interests of the FOB seller of the goods when the shipper was the
controlling party and the FOB seller was only the consignor, and not the shipper
and it was consequently decided to adopt a text similar to that that appears in article
51.1(a).63 A lengthy debate then followed in respect of the termination of the right
of control and at the end it was decided that it should terminate upon actual delivery
of the goods.64
Chapter 10 – Delivery to the consignee
There followed the resumption of the discussion on the chapter on delivery of the
goods, that could not be completed during the previous session. The first provision
that was considered was that in article 49(c), now in article 47.2(b); that, however,
has a more limited scope of application since it is conditional to an express
statement in the negotiable transport document or negotiable electronic transport
record that the goods may be delivered without the surrender of the document or
record. The debate is, however, worth mentioning, since it indicates the reason why
that exception to the general rules was felt necessary. When concerns were raised
since that provision would run counter the long-standing principle of the need for
presentation and surrender of the bill of lading, it was pointed out that the regime
was intended to prevent abuses of the bill of lading system, for example, those
relating to the deliberate non-production of documents of title in order to use them
as promissory notes without a maturity date, and that the controlling party’s
production of the bill of lading in order to provide the instructions to the carrier
did not necessarily entail surrender of the bill of lading to obtain delivery of the
goods. In response to a query regarding whether the FOB seller would be ade-
quately protected, it was said that in the case of an FOB sale, the FOB seller would
be protected, because it would also be the holder of the negotiable document or
electronic transport record, and therefore it would also be the controlling party that
would give delivery instructions to the carrier.
The subsequent provision considered by the Working Group, that it is worth
mentioning in this paper, is that on the liability of the carrier for goods that remain
61
A/CN.9/594, } 15.
62
A/CN.9/594, } 15.
63
A/CN.9/594, } 24.
64
A/CN.9/594, } 32–25 and 68–71.
22 F. Berlingieri
undelivered, at that time in a separate article – draft article 53 – and now in

paragraph 5 of article 48. In article 53 of WP.56 the liability of the carrier existed
in the same conditions in which the right to limit liability is lost. A large number of
delegations expressed dissatisfaction with the low standard of liability of the carrier
as set out in draft article 53, which required intentional or reckless behaviour to hold
the carrier liable for loss of undeliverable goods. At the same time, it was generally
felt that the standard of liability should not be as high as that under draft article 17,
on the general liability of the carrier for loss of or damage to the goods during its
period of responsibility, since under draft article 53, the carrier was left with the
custody of the goods due to the default of the consignee in failing to accept delivery.
There was strong support in the Working Group for the view that the standard of
liability of the carrier should be somewhere between that of draft article 17 and that
of the current text in draft article 53.65 That approach was adopted by the Working
Group and the Secretariat was requested to prepare a new draft based in such
decision.66
Chapter 3 – Scope of application
Chapter 20 – Validity of contractual stipulations
The next subject was the scope of application and freedom of contract that had
already been debated during the fourteenth and fifteenth sessions, and in respect of
which proposals had been made by the delegations of Finland67 and the Nether-
lands.68 As it had been done previously, an agenda was agreed on the manner in
which the debate should be organized, such agenda being the following:
(a) Proposed deletion of draft paragraph 8 (1)(c) of the Draft Convention pursuant
to which the convention would apply where the parties so agree;
(b) New text proposed to clarify draft article 9 (now article 6) which articulated the
scope of application of the Draft Convention;
(c) New proposed text for draft article 10 (now article 7), on the protection of third
parties to contracts of carriage outside of the scope of application of the Draft
Convention, and in particular, whether it was acceptable to define them without
reference to transport documents or electronic transport records;
(d) New proposed draft paragraph 20.4 (now article 4), to further clarify scope of
application with respect to maritime performing parties;
(e) Further consideration of draft paragraph 94.2 (now deleted) on the mandatory
application of certain provisions of the Draft Convention with respect to
shippers and other parties;
(f) Modified text of draft paragraph 95.1 (now article 80.2), on the conditions for
the exercise of freedom of contract in the case of volume contracts;
65
A/CN.9/594, } 108–109.
66
A/CN.9/594, } 113.
67
68
(g) Further consideration of draft paragraph 95.4 (now article 4) mandatory provi-
sions of the Draft Convention from which there could be no derogation;
(h) Modified text of draft paragraph 95.5(b) (now article 80.4), on the conditions
under which third parties could consent to be bound by the terms of a volume
contract;
(i) The appropriateness of the text of draft paragraph 95.5(c) (now deleted) which
placed the burden of proof on the party claiming the benefit of the volume
contract; and
(j) Any additional issues regarding the scope of application and freedom of con-
tract that were of concern to the Working Group.
On the issues from (a) to (h) above, the following decisions were adopted by the
Working Group:
– As to (a): to delete article 8.1(c) wherein reference was made as a connecting
factor to the agreement of the parties69;
– As to (b): to replace the text of article 9 with that contained in the proposal by
Finland in A/CN.9/WG.III/WP.61 at para. 2370;
– As to (c): to replace the text of article 10 with that contained in the proposal by
Finland in A/CN.9/WG.III/WP.61 at para. 3671;
– As to (d): to insert in the article on the liability of performing parties the text of
paragraph 5 contained to replace the text of article 9 with that contained in the
proposal by Finland in A/CN.9/WG.III/WP.61 at para. 4472;
– As to (e): to maintain article 94.2 on the mandatory character of the obligations
and liability of the shipper73;
– As to (f): to accept article 95.1 (now article 80.2) as amended by Finland in
A/CN.9/WG.III/WP.61 at para. 4974;
– As to (g): to accept article 95.4 (now article 80.4) as amended by Finland in
A/CN.9/WG.III/WP.61 at para. 4975;
– As to (h): to accept the policies underlying article 95.5(b) as it appeared in
A/CN.9/WG.III/WP.61 at para. 49 and to request the Secretariat to prepare a
new draft taking into account the views expressed by the Working Group.76
Chapter 8 – Obligations of the shipper
There followed a debate on the obligations of the shipper, a subject already considered
during the thirteenth and sixteenth sessions. Inter alia, the problem of liability of the
shipper for delay, reference to which appeared in square brackets in draft article 31,
69
A/CN.9/594, } 128.
70
A/CN.9/594, } 133.
71
A/CN.9/594, } 140.
72
A/CN.9/594, } 145.
73
A/CN.9/594, } 153.
74
A/CN.9/594, } 157.
75
A/CN.9/594, } 162.
76
A/CN.9/594, } 163–167.
24 F. Berlingieri
was again the subject of an extensive debate. Although there was support for retaining
the provisions of the Draft Convention dealing with the shipper liability for delay, there
were nevertheless strong objections to the inclusion of consequential damages for
delay for both shippers and carriers in the Draft Convention. It was indicated that such
inclusion might create enormous, open-ended liability exposure for shippers. For
instance, it was explained, a shipper’s failure to provide a document might prevent
the unloading of a single container loaded with goods of small value, and this in turn
might prevent the entire ship of containers from arriving and unloading at its port of
destination. In that case, it was added, while reasons of fairness would suggest that the
carrier should be able to recover from that shipper the damages for delay for which the
carrier was responsible to other shippers with containers on board, if the shipper was to
be held fully liable to the carrier for all damages caused by its delay of the vessel, its
liability could not only have a devastating financial impact on it but would also be
uninsurable. It was added that the difficulties surrounding the establishment of a
reasonable and logical liability limit that could be applied to the shipper’s liability
for damages due to delay, as well as of a liability regime that allowed for insurability of
the potential risks associated with damages for delay, supported the deletion of liability
for delay on the part of the shipper from the Draft Convention. It was further indicated
that, in order to ensure fairness and balance in the Draft Convention, liability for
consequential damages for delay should likewise be eliminated from the carrier’s
liability to shippers, except as the parties to a shipment may expressly agree, since
holding carriers liable to shippers for delay exposed them to significant potential
liabilities in the same manner as holding shippers liable to carriers would.
Furthermore, it was said that in order to maintain a fair balance in the Draft
Convention, it was essential to include a mirror provision establishing liability for a
shipper who caused the delay and exposed a carrier to losses resulting from delay
claims against it by other shippers, and that because carrier liability for delay
damages would be limited, such shipper liability should also be subject to a
reasonable limitation. However, it was added that efforts to develop an acceptable
limitation on shipper liability for damages for delay had proven to be an extremely
difficult task, since a limitation based on the freight paid by the offending shipper
was deemed to be unreasonably low by carrier interests, while shipper interests
found other formulations, such as full responsibility for damages for delay to all
other shippers on the vessel, unreasonably high. It was concluded that the only
equitable resolution to this dilemma would be to remove the concept of liability for
damages for delay from the Draft Convention with regard to shippers and, unless
they agreed in a contract of carriage or volume contract on a date certain for
delivery of the cargo, for carriers as well. While support was expressed for the
concerns about the difficulties in drafting a satisfactory text, it was therefore
suggested that the ideal solution to address the liability for delay under the Draft
Convention would not consist of limiting such liability for the carrier, but to leave
the matter under the domain of national law for all types of loss due to delay. It was
further suggested that in order to fully exclude claims for economic loss under the
proposal, it might not be sufficient to simply eliminate references to “delay” in the
Draft Convention, but it might also be necessary to include a provision barring any
claim in this regard by the carrier against the shipper.
However no decision could be reached by the Working Group and it was
therefore agreed that the consideration of the problem should continue at a future
session.
Eighteenth session, held in Vienna from 6 to 17 November 2006
Chapter 9 – Transport documents and electronic transport records
The Working Group continued its consideration of chapter 9 on transport docu-
ments (now chapter 8) .The first article to be considered was article 40-Deficiencies
in contract particulars (now article 39) and doubts were raised as to whether the
expression “shall be considered to be” used in paragraph 2 was appropriate, since it
could be construed as creating a conclusive evidence, as it should or merely a
rebuttable presumption and in order to clarify this point the suggestion was made to
replace it with “shall be deemed to be”.77 That is relevant for the interpretation of
that expression throughout the Convention.
A thorough analysis was then made of the provision on the identity of the carrier
that had been placed in square brackets in article 40 as its paragraph 3 (now article
37). In that connection the drafting proposal made by the Italian delegation78 was
considered by the Working Group. By way of introduction, it was explained that the
various aspects of that proposal were intended to deal principally with three
perceived problems in connection with the identification of the carrier in transport
documents and electronic transport records. The first problem was said to be when
the face of the transport document or electronic transport record was unclear and
contained, for example, only the trade names of the carrier or the name of the
carrier’s booking agents, rather than identifying the carrier. It was suggested that, in
keeping with the identification of the carrier requirements of articles 23(a)(i) and
26 (a)(i) of the Uniform Customs and Practices for Documentary Credits 500 (UCP
500), draft paragraph 38(1)(e) regarding the necessary contract particulars should
be modified to read: “the name and address of a person identified as the carrier”.
General support was expressed in the Working Group for this proposal, however it
was recalled that the UCP 600 would soon be made public and should be reviewed
to ensure the consistency of the Draft Convention in this regard.
The second practical problem intended to be addressed was said to be the
situation where the information in small print on the reverse side of a transport
document in the so-called “identity of carrier” clause conflicted with the informa-
tion identifying the carrier on the face of the document. In order to solve this
ambiguity, it was proposed that a provision be inserted into the Draft Instrument
ensuring that the information regarding the identification of the carrier on the face
of the transport document or electronic transport record would prevail over contra-
dictory information on the reverse side. Support was expressed for this proposal in
A/CN.9/616, } 16, the existing text of paragraph 3 being maintained.

77
78
26 F. Berlingieri
the Working Group, with the caveat that care should be taken in the drafting of the
provision to ensure that appropriate text was inserted to find an equivalent for the
“reverse side” of an electronic transport record.
The third practical problem was the situation when, despite existing require-
ments, the identity of the carrier remained unclear in the transport document or
electronic transport record such as, for example, in the case where the document or
record was signed by or on behalf of the master, without stating the basis of the
master’s authority. In such cases, it was proposed that the fallback position for the
identification of the carrier should be that the registered owner be presumed to be
the carrier, unless the owner identified the bareboat charterer, or unless the owner
or the bareboat charterer defeated the presumption by identifying the carrier.
A corollary of the acceptance of this aspect of the proposal was an extension of
the limitation period for the commencement of actions by the claimant in such
cases. General support was expressed in the Working Group for this effort to find a
compromise solution to the persistent problem of the identification of the carrier.
Further, support was expressed in principle for the particular approach to the
problem that had been taken in the proposal.
However, concerns were expressed regarding the presumption that the registered
owner of the ship was the carrier. It was thought that such an approach to the
identification of the carrier could be particularly troublesome in the context of
multimodal transport, where the registered owner of the ship might not have any
knowledge regarding the other legs of the transport. Further, it was said to be
erroneous to assume that the registered owner could easily have access to the
necessary information to rebut the presumption that it was the carrier.
At the end of the discussion the Working Group decided that the above drafting
proposal, contained in paragraphs 3 and 4 of WP.79 should be adopted into the text
of the Convention, the existing text of paragraph 3 being maintained in square
brackets and that, in addition, the Secretariat should prepare a revised text of the
approach to the identity of the carrier issue in draft paragraph 3 based on the
principles enunciated in paragraph 5 of WP.79.79
There followed the consideration of draft article 41-Qualifying the description of
the goods in the contract particulars (now article 40), of draft article 42-Reason-
able means of checking and good faith, in respect of which it was decided to include
its paragraph (a) in a revised version of draft article 41 (it is now included in article
40.3(a)) and to delete its paragraphs (b) and (c),80 and of draft article 43-Prima facie
and conclusive evidence (now article 41-Evidentiary effect of contract particulars).
Reference is worth being made to the debate that took place in respect of draft
article 43 and, more specifically, to variant B of its subparagraph (b)(ii), which
extended the conclusive evidence rule to mere receipts in the following terms:
A/CN.9/616, } 28.
79
A/CN.9/616, } 44.
80
(ii) if no negotiable transport document or no negotiable electronic transport record has

been issued and the consignee has purchased and paid for the goods in reliance of the
description of the goods in the contract particulars.
After consideration of the proposal to include an express reference to non-

negotiable transport documents that indicate that they must be surrendered in
order to obtain delivery, the proposal was made to redraft article 43 as follows:
Except as otherwise provided in article 44, a transport document or an electronic transport
record that evidences receipt of the goods is prima facie evidence of the carrier’s receipt of
the goods as described in the contract particulars; and
(a) Proof to the contrary by the carrier in respect of any contract particulars relating to the
goods shall not be permissible, when such contract particulars are included in:
(i) A negotiable transport document or a negotiable electronic transport record that is
transferred to a third party acting in good faith, or
(ii) A non-negotiable transport document or a non-negotiable electronic transport
record that indicates that it must be surrendered in order to obtain delivery of the
goods and is transferred to the consignee acting in good faith.
(b) Proof to the contrary by the carrier vis-à-vis the consignee, acting in good faith, shall
equally not be permissible in respect of contract particulars relating to the goods
included in a non-negotiable transport document or a non-negotiable electronic trans-
port record, when such contract particulars are furnished by the carrier. For the purpose
of this paragraph the number and type of containers is deemed to be information
furnished by the carrier.
A concern was raised that the definition of a transport document or electronic

transport record in sub-paragraph (b) was very broad and could include a mere
receipt. The question was raised as to whether it was appropriate that a non-
negotiable transport document that merely evidenced receipt should be covered in
draft paragraph (b), given that a mere receipt was issued only as evidence of receipt
as between the shipper and carrier and nothing more. A sea waybill, on the other
hand, was a different type of non-negotiable document in that it evidenced the
contract of carriage, and identified the consignee. However, the view was expressed
that mere receipts should sometimes be properly included in draft paragraph (b),
depending on their nature. Further, it was noted that most domestic legal regimes
contained a general principle preventing parties from presenting evidence contrary
to statements made by them. Finally, it was observed that, under its terms, this draft
paragraph was unlikely to operate frequently, since mere receipts would not often
have a function in the relationship between the carrier and the consignee.
After discussion, the Working Group decided that the compromise proposal, as
amended with respect to the closing line of paragraph (b), was acceptable in
substance and that the Secretariat should prepare a text taking account of the
comments made for consideration at a future session.
Chapter 8 – Obligations of the shipper (now Chapter 7 – Obligations of the shipper
to the carrier)
The Working Group then considered again the problem of the shipper’s liability for
delay. It was suggested that there were three possible approaches that could be
taken in the text of the Draft Convention with respect to the treatment of liability for
28 F. Berlingieri
pure economic loss or consequential damages caused by delay on the part of the
shipper or the carrier:
– Option one: no liability for delay on the part of the shipper or the carrier81;
– Option two: retain carrier liability for delay but delete shipper liability for
delay82;
– Option three: retain carrier and shipper liability for delay and find an appropriate
limitation level for shipper liability.83
After considering the possible methods to limit the shipper’s liability for delay84
it was decided that the approach to the treatment of liability for pure economic loss
or consequential damages caused by delay on the part of the shipper or the carrier
set out as “option three” should be pursued as the optimal approach for the Draft
Convention, subject to the Working Group’s ability to identify an appropriate
method to limit the liability of the shipper for pure economic loss or consequential
damages caused by delay.
Chapter 14 – Right of suit
The next subject was chapter 14 and the Working Group decided that that chapter
should be deleted in its entirety.85
Chapter 15 – Time for suit
The Working Group then proceeded to consider chapter 15-Time for suit (now chapter
13) and in respect of draft article 69-Limitations of actions (now article 62- Period of
time for suit) decided that the time period should be 2 years and should apply both to
claims against the carrier and the shipper, no suspensions or interruptions of the period
being allowed except as agreed by the parties.86 After reviewing draft article 70-
Commencement of limitation period (now moved to paragraph 2 of article 62),87 71-
Extension of limitation period (now article 63),88 72-Action for indemnity (now article
64) and 73-Counterclaims (subsequently deleted),89 the Working Group considered
new draft article 74-Actions against the bareboat charterer (now article 65-Actions
against the person identified as the carrier) and decided that the text of that article
should be retained in square brackets and be revised in accordance with its decision in
relation to draft article 40.3.90
81
For the discussion of this option see A/CN.9/616, } 88–89.
82
83
84
See their analysis in A/CN.9/616, } 94–99.
85
A/CN.9/616, } 114–118.
86
A/CN.9/616, } 119–133.
87
A/CN.9/616, } 134–143.
88
A/CN.9/616, } 144–147.
89
A/CN.9/616, } 148–155.
90
A/CN.9/616, } 156–157.
Chapter 13 – Limitation of liability (now Chapter 12 – Limits of liability)

The subsequent chapter examined during the eighteenth session was chapter 13-
Limitation of liability. The limitation level to be indicated in the draft article 64
(now article 59) gave rise to different views, some delegations supporting the
maintenance of the Hague-Visby limits, others suggesting the adoption of the
Hamburg limits.91 The discussion of the issue of the limits in case of non-localized
loss or damage was postponed to a subsequent session.92
After discussion of the limit for loss caused by delay, the Working Group
considered draft article 66-Loss of the right to limit liability (now article 61-Loss
of the benefit of limitation of liability) and a number of delegations expressed great
dissatisfaction with the inclusion of the word “personal” before the phrase “act or
omission” in paragraph 1, believing that it made it too difficult for the cargo
claimant to prove that the conditions for the provision had been fulfilled and thus
for the carrier’s limitation on liability to be exceeded. The Working Group recalled
that the issue of whether or not to include this term in the paragraph had been
discussed at length during its thirteenth session, and it decided against overturning
the decision that it had made at that time.93
The last provision discussed was draft article 104 on the procedure for the
amendment of the limitation amounts,94 but no decision was reached.95
Chapter 7 – Additional provisions relating to subsequent stages of carriage (now
Chapter 6)
There followed a general discussion on the relation of the Draft Instrument with
other conventions and on the problem of conflict of conventions at the end of which
it was decided to maintain the scheme of draft article 27-Carriage preceding or
subsequent to sea carriage (now article 26) and instead to delete draft article 89-
International instruments governing other modes of transport and draft article 90-
Prevalence over earlier conventions.96
Chapter 16 – Jurisdiction (now Chapter 14)
The last chapter to be considered during that session was chapter 16-Jurisdiction in
respect of which the proposal for a reservation or clause to “opt in” the chapter was
made. There was support for such a proposal and it was decided that a draft text
setting out the various approaches in more detail should be prepared.97
91
A/CN.9/616, } 162–174.
92
A/CN.9/616, } 175.
93
A/CN.9/552, } 59–60.
94
A proposal for the revision of article 104 had been made by the United States in A/CN.9/WG.III/
WP.77.
95
A/CN.9/616, } 205–215.
96
A/CN.9/616, } 229–235. The text of such articles was the following:
Article 90. Prevalence over earlier conventions
[As between parties to this Convention, it prevails over those][Subject to article 102, this
Convention prevails between its parties over those] of an earlier convention to which they may
be parties [that are incompatible with those of this Convention].
97
A/CN.9/616, } 246–252.
30 F. Berlingieri
The Working Group agreed to complete consideration of any outstanding issues

from its second reading, including freedom of contract, and to commence its third
reading of the Draft Convention at its nineteenth session.98
Although the second reading had not yet been completed, a revised text of the
Draft Convention with the consolidation of the changes agreed was prepared by the
Secretariat and circulated as an annex to its Note of 13 February 200799reference
to which will be made as “WP.81”.
Nineteenth session, held in New York from 16 to 27 April 2007
During that session the Working Group when considering the provisions contained
in a given chapter also considered the definitions in article 1 that were relevant to
that chapter. Thus in relation to chapter 1, it considered and adopted the definitions
of “carrier”, “shipper” and “goods”.
A question was raised as to the meaning of the terms “or otherwise” in article 4, that
followed the phrase “whether the action is founded in contract, in tort” and it was
suggested that those words were helpful to encompass claims other than contractual
or tort claims such as claims in restitution or arising out of quasi-contract. It was
agreed that the term should be retained to ensure that the draft article was broad
enough to cover situations that might arise in different legal systems.
The Working Group then considered the provisions on the scope of application and
in respect of the two alternatives that appeared in square brackets in article 6,
“contracts” and “contractual arrangements”, and agreed to adopt the latter provided
it was established that it consisted of a clarification and did not have any substantive
effect on the scope of that article.100
Chapter 5 – Obligations of the carrier (now Chapter 4)
After reviewing the provisions in chapter 3-Electronic transport records as well as
those in chapters 4-Period of responsibility and 5-Obligations of the carrier (now
merged in chapter 4), the Working Group considered in chapter 6-Liability of the
carrier for loss, damage or delay draft article 17-Basis of liability and confirmed its
previous decision to maintain the list of excepted perils.101 In this respect the
discussion focused on draft sub-paragraph (g), wherein after reference to latent
defects there followed in square brackets the words “ship” and “means of trans-
port”. It was proposed that both the variants that appeared in square brackets should
be deleted along with the words “in the”, thus leaving the text substantially as it
appeared in article 4(2)(p) of the Hague-Visby Rules. Concern was expressed that
choosing the “ship” variant would unduly restrict the previously broader approach
98
A/CN.9/616, } 280.
99
100
A/CN.9/621, } 21.
101
A/CN.9/621, } 68–71.
in the Hague-Visby Rules that included, for example, cranes, but that the alternative
“means of transport” was too broad, even though the Draft Convention was
intended to be a “maritime plus” convention. While some support was expressed
for each of these two variants, the prevailing view was that the best approach was to
retain the approach taken in the Hague-Visby Rules and delete both variants.
In respect of the liability of the carrier for other persons the Working Group
considered whether it would be advisable to retain paragraph 2 of draft article 18,
pursuant to which the liability of the carrier would exist only when the performing
party’s or other person’s act or omission is within the scope of its contract,
employment or agency and strong support was expressed for the deletion of that
paragraph in order to leave such matters to national law.102
The Working Group proceeded to consider the proposal103 to clarify, by adding a
new paragraph 3 to article 18, that a carrier would not be liable for loss of or damage
to the goods to the extent that it was attributable to an act or omission of another
shipper. It was noted that the proposal was aimed at addressing the concern
expressed at an earlier session that, under the Draft Convention, carriers might
nevertheless be found liable to other shippers with goods on board that vessel for a
delay caused by only one shipper. The Working Group was, however, of the view
that the proposed text was unnecessary as its content was already adequately
covered by the liability regime set out in draft article 17.
Draft article 20-Liability of maritime performing parties provided in its para-
graph 4 the Himalaya protection to them and to other persons that were identified in
three different phrases all in square brackets. The Working Group decided to adopt
the text that ensured the more extensive protection and to consider which might be
the best location for the provision that is now contained in article 4.104
In respect of draft article 24-Notice of loss, damage or delay the legal effect of
the notice was again discussed.105 Concern similar to that expressed during the
thirteenth session of the Working Group106 was reiterated regarding the operation
of draft paragraph 1. There was support for the view that paragraph 1 was unneces-
sary since the issuance of the notice to the carrier or the performing party, or the
failure to provide such a notice, did not affect the respective burdens of proof of the
carrier and of the claimant as set out in the general liability regime in draft article
17. Moreover, it was noted that in some jurisdictions, the provision on which this
draft article was based, article 3.6 of the Hague Rules, had caused confusion and
had led some courts to conclude that failure to provide such a notice resulted in the
loss of the right to claim for loss or damage pursuant to the instrument. As such, the
Working Group was urged to delete draft paragraph 1, and, failing that, to make it
102
A/CN.9/621, } 77.
103
Contained in A/CN.9/WG.III/WP.85, } 3.
104
A/CN.9/621, } 89–97.
105
It had previously been discussed during the thirteenth session (A/CN.9/552, } 65).
106
A/CN.9/552, } 65.
32 F. Berlingieri
clear that failure to provide the notice under the draft provision was not intended to
have a special legal effect.
In response, it was noted that the draft paragraph was not intended to attach a
specific legal effect to the failure to provide notice. Nevertheless, the draft provi-
sion was intended to have the positive practical effect of requiring notice of the loss
or damage as early as possible to the carrier, so as to enable the carrier to conduct an
inspection of the goods, assuming there had been no joint inspection. While there
was no agreement in the Working Group to reverse its earlier decision to retain the
draft paragraph, there was agreement that draft paragraph 1 was not intended to
affect the rights of cargo interests to make claims under the Draft Convention, and
that it was in particular not intended to affect the liability regime and burdens of
proof set out in draft article 17.
Definitions of “performing party” and “maritime performing party” in article 1
After consideration of draft chapter 7-Additional provisions relating to particular
stages of carriage (now chapter 6), the Working Group reverted to the definitions in
article 1 and considered the definitions of “performing party” and “maritime
performing party”. In connection with such latter definition a proposal was made
that rail carriers, even if performing services within a port, should be excluded from
the definition of “maritime performing party.” Concern was expressed that the
consequences of a blanket exemption for rail carriers had not been fully considered.
One issue raised was the problem that a catalogue of carriers of various types might
seek to be similarly exempted from the scope of application of the Draft Convention.
Further, it was questioned why such an exemption should be limited to rail carriers.
Some support was expressed for the view that the proposed exemption should also
extend to road carriers and possibly to inland barges. As a consequence of those
remarks that proposal did not receive sufficient support.
Revised definitions of “performing party” and “maritime performing party”
were subsequently considered and adopted by the Working Group, together with
revised articles 18 and 19.107
Chapter 19 – Validity of contractual terms” (now Chapter 16)
Draft chapter 16 was the next subject considered by the Working Group and in that
chapter draft article 89-Special rules for volume contracts (now article 80) was the
subject of particular attention.
There was wide support within the Working Group for the notion of freedom of
contract and the need to incorporate in the Draft Convention provisions that took
into account commercial reality, in particular the growing use of volume contracts.
There was support for the view that shippers were not exposed to any significant
risk of being deprived of the protection afforded by the Draft Convention since
shippers were free to enter into volume contracts and negotiate their terms or,
alternatively, to ship goods under a transport document fully covered by the Draft
Convention. The choice between one or the other option was within each shipper’s
107
A/CN.9/621, } 141.
commercial judgement. However, there was strong support for the proposition that,
while generally desirable in the case of parties with equal bargaining power,
unlimited freedom of contract might in other cases deprive the weaker party,
typically small shippers, of any protection against unreasonable unilateral condi-
tions imposed by carriers. It was further felt that, as presently drafted, draft article
89, when read in conjunction with the definition of volume contracts in draft article 1,
paragraph 2, did not afford the desirable level of protection. And the Working
Group was urged to consider proposals to remedy that situation. Those proposals108
included the following elements. First, the definition of volume contracts in draft
article 1, paragraph 2, should be amended so as to provide for a minimum period
and a minimum quantity of shipments, or at least require such shipments to be
“significant”. Second, the substantive condition for the validity of a volume con-
tract (that is, that it should be “individually negotiated”), and the formal condition
for validity of derogations (that the derogation should be “prominently” specified),
as provided in draft article 89, paragraph 1, should be made cumulative, rather than
alternative, so as to make it clear that both parties to the contract must expressly
consent to the derogations. However, the prevailing view within the Working
Group was that the current text of draft article 89 reflected the best possible solution
to address those concerns in a manner that preserved a practical and commercially
meaningful role for party autonomy in volume contracts. After extensive consider-
ation of the various views expressed, the Working Group rejected the proposal to
reopen the previously-agreed compromise and approved the text of draft article 89
that had previously been accepted in April 2006.109
Chapter 6 – Liability of the carrier for loss, damage or delay (now Chapter 5)
Article 21 – Delay
Liability for delay in delivery was subsequently the subject of further consideration by
the Working Group and a compromise solution, consisting of the restriction of the
carrier’s liability for delay only where the time for delivery is agreed between the
parties and in the deletion of the shipper’s liability due to the failure to find a suitable
means to limit its liability, met with the wide support of the Working Group.110
Chapter 7 – Additional provisions relating to particular stages of carriage
Article 26 – Carriage preceding or subsequent to sea carriage
There followed the consideration by the Working Group of draft article 26-Carriage
preceding or subsequent to sea carriage and of draft article 84-International conven-
tions governing the carriage of goods by air (now article 82-International conventions
governing the carriage of goods by other modes of transport). In respect of draft article
26 it was agreed to delete the reference to national law and allow Contracting States
that wished to apply mandatory national law to inland cases of loss of or damage to
goods to do so by means of a declaration made in accordance with draft article 94 (now
108
See A/CN.9/WG.III/WP.88 and A/CN.9/612.
109
See A/CN.9/594, } 154–170.
110
A/CN.9/621, } 180–184.
34 F. Berlingieri
article 91).111 In respect of draft article 84, although the suggestion had been made to
extend its scope of application also to other conventions, such as the CMR, the
Working Group decided to approve it as drafted.112
Chapter 8 – Obligations of the shipper to the carrier (now Chapter 7)
Finally, draft chapter 8 was again considered by the Working Group and following the
decision to delete reference to delay, to avoid any interpretation of implied liability for
delay and ensure the preservation of applicable law on shipper’s delay, a proposal was
made to add language along the following lines to draft article 30, paragraph 1: “The
term ‘loss’ referred to in this article or in article 31 or article 32 does not include the
loss caused by delay. Nothing in this Convention prevents the carrier from claiming
shipper liability for delay under the applicable law”. It was explained that the first
sentence of that proposal was intended to clarify that there was no implied cause of
action against the shipper for delay under the Draft Convention, and the second
sentence was intended to clarify that any applicable national law relating to the
question of shipper’s delay remained unaffected. Although some support was
expressed for that clarifying text, the Working Group did not accept it, nor did it
definitely approve the gist of the proposal, but decided that “references to delay
contained in paragraph 1 be deleted with the possible inclusion of text clarifying
that the applicable law relating to shipper’s delay was not intended to be affected”.113
Twentieth session, held in Vienna from 15 to 25 October 2007
In continuation of the second reading of the Draft Convention the Working Group
considered chapter 9-Transport documents (now chapter 8) draft article 42(c) that
set out the rules on the evidentiary effect of contract particulars included in a non-
negotiable transport documents or electronic transport record in the text prepared
by the Secretariat after the previous session,114 wherein the more limited eviden-
tiary effect in respect of such type of documents or records was more clearly set out
and such amended draft was approved.115
Chapter 10 – Delivery to the consignee (now Chapter 9 – Delivery of the goods)
The Working Group then considered in chapter 10 (now chapter 9) draft article 44-
Obligation to accept delivery (now article 43) in the amended text prepared by the
Secretariat.116 In considering that text the Working Group expressed concern that the
reference to a consignee exercising “any” of its rights under the contract of carriage
might be too broad and a suggestion was made to delete the word “any”. This was
accepted by the Working Group.117 Of the articles regulating delivery the debate
111
A/CN.9/621, } 185–192.
112
A/CN.9/621, } 204–206.
113
A/CN.9/621, } 237.
114
A/CN.9/WG.III/WP.94, } 1.
115
A/CN.9/642, } 9–14.
116
A/CN.9//WG.III/WP.94, } 3.
117
A/CN.9/642, } 23.
focused in particular on draft article 49-Delivery when a negotiable transport docu-

ment or a negotiable electronic transport record is issued (now article 47) and, in
particular, on its sub-paragraphs (d)-(g). It was observed that the scheme set out
therein was intended to address the current problem of delivery of the goods without
presentation of the negotiable transport document or negotiable electronic transport
record. It was noted that, as discussed in previous sessions, the problem was a
structural one arising from the requirements of the underlying sales contract and the
length of modern voyages, and that it was frequently encountered in certain trades,
such as in the oil industry. It was said that the entire scheme of subparagraphs (d), (e),
(f) and (g) was based on the modern ability of the carrier to communicate with the
holder regardless of its location, and that the onus was thus on the carrier to search for
the controlling party or the shipper in order to obtain delivery instructions. There
followed a debate between those who supported those provisions and those who
instead requested their deletion because they would undermine the bill of lading
system.118 Amongst the various proposals that were made it is worth mentioning,
because of its subsequent implementation, the suggestion that the operation of sub-
paragraphs (d), (e), (f) and (g) could be limited to those situations where a negotiable
transport document or electronic transport record had been issued that stated on the
document or electronic record itself that the goods to which it related could be
delivered without presentation of the negotiable transport document or electronic
transport record. It was thought that such an approach would give sufficient warning
to the holder that, in some cases, delivery could be made to another person. A
mechanism proposed for the implementation of that suggestion was that a phrase
could be inserted prior to subparagraphs (d), (e), (f) and (g) along the following lines:
“If a negotiable transport document or electronic transport record that states on its face
that the goods may be delivered without presentation of the document or electronic
record, the following rules apply:”.119 The decision of the Working Group was at that
stage to retain the text of sub-paragraphs (d), (e), (f) and (g) and while some minor
changes that had been suggested be implemented into the text, the proposal previously
mentioned should appear in a footnote to the text.120
Chapter 11 – Rights of the controlling party (now Chapter 10)
The discussion that took place is worth mentioning in respect of the requirements
for the transfer of the rights of control when a negotiable transport document is
issued, set out in draft article 53.3(b) and (c) (now article 51.3(b) and (c)), such
requirements consisting mainly in the transfer and respectively in the production of
all originals. It was suggested that the operation of subparagraphs 3(b) and 3(c) of
draft article 53, too, should be limited to cases where the negotiable transport
document expressly stated that more than one original had been issued. However
in response to that suggestion, it was observed that the two provisions in question
had different purposes. Under draft article 49, subparagraph (c), if more than one
118
A/CN.9/642, } 53–56.
119
A/CN.9/642, } 63.
120
A/CN.9/642, } 67. See footnote 123 to draft article50(d) of A/CN.9/WG.III/WP.101 at p. 35.
36 F. Berlingieri
original of the negotiable transport document has been issued, the carrier who
delivered the goods to the holder of one original transport document would be
discharged from liability vis-à-vis the possible holders of the other transport
document. In the context of paragraph 3 of draft article 53 the transfer of the
right of control to a third party might instead adversely affect the rights of the
holder of the remaining transport documents, as the holders who acquired rights in
good faith were generally protected under the Draft Convention. The Working
Group was therefore urged to carefully consider the desirability of aligning the
entire draft article 49, subparagraph (c), with paragraph 3 of draft article 53 and the
Secretariat was requested to consider the desirability of such alignment.
When draft article 54-Carrier’s execution of the instructions (now article 52)
was considered, the view was expressed that its paragraph 2 exposed the controlling
party to a potentially substantial liability. It was, therefore, suggested that the
Working Group should consider ways to limit the controlling party’s exposure,
for instance by limiting its liability under paragraph 2 of draft article 54 to
foreseeable additional expenses or liability. There was general agreement within
the Working Group that the controlling party could indeed be protected against
exorbitant reimbursement claims by inserting the word “reasonable” before “addi-
tional expenses”. However, the Working Group was divided in respect of a possible
limitation of the controlling party’s obligation to indemnify the carrier against loss
or damage that the carrier might suffer as a result of executing the controlling
party’s instructions and one of the suggestions made was to add words such as
“reasonably foreseeable” before the words “loss or damage”, or requiring the
carrier to give notice or warn the controlling party about the possible magnitude
of loss or damage that the carrier might suffer in carrying out the instructions
received from the controlling party. Having considered the various views that were
expressed, the Working Group agreed that the word “reasonable” should be inserted
before or after “additional” in paragraph 2, but that it would be preferable to refrain
from introducing a requirement of foreseeability as a condition for the controlling
party’s obligation to indemnify the carrier under paragraph 2 of draft article 54.
Chapter 12 – Transfer of rights (now Chapter 11)
Special attention was paid to paragraph 2 of draft article 60-Liability of the holder
(now article 58) and the opinions of the delegations differed as to whether that
provision should be maintained or not. In support of its maintenance it was stated
that since the draft had achieved harmonization regarding transfer of rights, it was
thought to be appropriate that harmonization regarding the transfer of liabilities
such as that set out in paragraph 2 should also be sought. However, there was also
support in the Working Group for the deletion of paragraph 2 as being too
controversial for its content to be agreed upon in a timely fashion for completion
of the Draft Convention. In response, it was suggested that paragraph 1 of draft
article 60 already indicated that the holder was subject to a certain amount of
liability, and that paragraph 2 actually operated to limit that potential liability to the
obligations contained in the transport document or electronic transport record and
that simple deletion of paragraph 2 would not necessarily remove all liability on the
holder pursuant to the Draft Convention. The final decision was therefore to adopt
the first of the two texts in square brackets.121
Chapter 13 – Limitation of liability (now Chapter 12 – Limits of liability)
In respect of the provisions on limits of liability the alternatives considered, and
discussed at some length, by the Working Group were (a) adoption of the limits of
the Hague-Visby Rules, (b) adoption of the limit of the Hamburg Rules, and (c) limits
higher than those of the Hamburg Rules, such higher limits being suggested as either
920 SDR or 1,200 SDR per package and 8.33 SDR per kilogram.122 The provisional
conclusions of the Working Group were to insert in draft article 62 the Hamburg Rules
limits and to adopt for liability for delay a limit of 2.5 times the freight.123
Chapters 15 – Jurisdiction and 16 – Arbitration (now Chapters 14 and 15)
When, after a short review of draft chapter 14-Time for suit (now chapter 13),the
Working Group considered chapters 15 and 16 the attention focused on the choice
between the reservation approach and the “opt-in” approach already considered at
the eighteenth session.124 Attention was drawn to the fact that due to institutional
reasons regarding competencies within a regional economic integration organiza-
tion, it was explained that the reservation approach would have entailed the need for
such organization to ratify the Draft Convention on behalf of its member States:
possibly a very lengthy procedure that could be subject to potential blockages in
approval. The “opt-in” approach, would instead allow the member States of that
organization to ratify the Convention independently, thus allowing for greater
speed and efficiency in the ratification process, and avoiding the possibility that
the chapter on jurisdiction could become an obstacle to broad ratification. After the
“partial opt-in” alternative had been considered too complex an approach to retain
in the text, the decision was in favour of the total “opt-in” approach.
After the twentieth session, at which the second reading of the Draft Convention
was completed, a revised draft of the Convention, consisting of a consolidation of
the revised provisions, was prepared by the Secretariat125 for consideration by the
Working Group prior to submitting the text for consideration by the Commission at
its forty-first session in June-July 2008.
Twenty-first session, held in Vienna from 14 to 25 January 2008
The Working Group devoted this session to the third reading of the Draft Conven-
tion and considered its provisions in their progressive order, save for article 1, the
definitions being set out therein being considered in connection with the provisions
in which the terms defined appeared for the first time. Reference will be made
hereafter only to the chapters and the article in respect of which significant com-
ments and changes were made during that last session of the Working Group.
121
A/CN.9/642, } 129.
122
A/CN.9/642, } 161.
123
A/CN.9/642, } 166.
124
A/CN.9/616, } 246–252.
125
38 F. Berlingieri

In connection with the review and approval of article 5 the Working Group also
approved the definitions of “contract of carriage”, “carrier”, “shipper” and “goods”
provided for in paragraphs 1, 5, 8 and 24 of article 1.
In connection with the review and approval of article 6 the Working Group also
approved the definitions of “liner transportation” and “non-liner transportation”,
used in article 6 of article 1.
In connection with the review of article 7 it was proposed that the concept of
“consignor” used in that article as defined in paragraph 10 of article 1 should be
deleted so as to make the Draft Convention less complicated126 and consequently
be deleted throughout the Draft Convention, whereas the definitions of “holder” and
“consignee” provided for in paragraphs 11 and 12 of article 1 were approved.
Chapter 3 – Electronic transport records
In connection with the review and approval of chapter 3 the Working Group also
approved the definitions of “transport document”, “negotiable transport document”,
“non-negotiable transport document”, “electronic transport record”, “negotiable
electronic transport record”, “non-negotiable transport record”, and “issuance”
and “transfer” of a negotiable transport record provided for in paragraphs 15, 16,
17, 19, 20, 21 and 22 of draft article 1.
In connection with draft article 12-Period of responsibility of the carrier concerns
were raised regarding the interaction of the phrase “and subject to article 14,
paragraph 2” in the chapeau of paragraph 3, and the phrase “and without prejudice
to the other provisions in chapter 4” in draft article 14, paragraph 2. In particular, it
was suggested that the presence of both phrases in the Draft Convention could raise
a conflict between the two provisions that would have unintended consequences. In
order to ensure that draft articles 12.3 and 14.2 operated as intended, so as not to
allow for the period of loading or unloading pursuant to draft article 14.2 to be
outside the carrier’s period of responsibility, as is currently the case in some
jurisdictions, it was proposed and agreed that the phrase “and subject to article
14, paragraph 2” in the chapeau of paragraph 12.3 be deleted.
In connection with draft article 13-Transport beyond the scope of the contract of
carriage concerns were raised regarding the clarity of the text, particularly with respect
to the phrase in the first sentence “and in respect of which it is therefore not the carrier”,
and regarding the whole of the second sentence and the meaning of the phrase “the
126
The rationale for the proposal was the following: (1) the consignor did not have any obligations
and had only one right under the Draft Convention, which was the right to obtain a receipt upon its
delivery of the goods to the carrier pursuant to subparagraph (a) of draft article 37; (2) there were
no practical difficulties reported regarding the issuance of a receipt for the consignor that might
require it to be dealt with on a uniform basis in the Draft Convention; (3) confusion with other
transport conventions and some national laws could be avoided; and (4) the term “transport
document” could also be simplified and be aligned with actual maritime practice. Broad support
was expressed for this proposal (A/CN.9/645, } 21).
period of the contract of carriage”. Although some support was expressed for the
provision as drafted, there was strong support for the view that the current text was
unclear, and several proposals were made with the goal of addressing those concerns.
Chapter 5 – Liability of the carrier for loss, damage or delay
In connection with draft article 22-Delay (now article 21) the proposal to delete it
and consequently to delete any reference to delay throughout the Convention was
reiterated but was not accepted.127
In connection with draft article 26-Deck cargo on ships (now article 25) the Working
Group was reminded that a proposal had been made128 to adjust the definition of
“container” by adding to it the term “road cargo vehicle”, and that that change would
primarily have an effect on draft articles 26.1 and 2 and 62.3 (now articles 25.1 and
59.2). Road cargo vehicles are in fact often carried overseas in large numbers, usually
on specialized trailer carrying vessels designed to carry both such vehicles and contain-
ers either on or below deck. It was explained that the current text of the Draft
Convention treated road cargo vehicles pursuant to draft article 26(c), rather than
grouping them with containers pursuant to draft article 26.1(b), such that the carrier
might not be liable for damage to the goods in road cargo vehicles due to the special risk
of carrying them on deck as part of the category in paragraph (c). Road cargo vehicles
should instead be treated in the same fashion as containers, such that the normal
liability rules would apply to them regardless of whether they were carried on or
below deck. Adjusting the definition of “container” so as to include road cargo vehicles
would ensure that it would not be possible to consider a road cargo vehicle as one unit
pursuant to draft article 62.3, but that, as in the case of containers, each package in the
road cargo vehicle could be enumerated for the purposes of the per package limitation
on liability. That particular problem had been raised by the International Road Trans-
port Union (IRU)129 as being of particular concern. Further, adjusting the definition of
“container” as proposed could have the additional benefit of treating containers and
road cargo vehicles in an equitable fashion. An additional proposal was made to extend
the definition of “container” to include not only “road cargo vehicles”, but to include
“railroad cars” as well. While railroad cars were seldom carried on deck, the inclusion
of that term in the definition of “container” could have certain advantages, for example,
in respect of the shipper’s obligation to properly and carefully stow, lash and secure the
contents of containers pursuant to draft article 28. It was pointed out that, regardless of
whether or not the definition of “container” in the Draft Convention was to include
“road cargo vehicles” and “railroad cars”, they would in any event need to be fit for
carriage on deck and this should be reflected in paragraph 1(b) of draft article 26. There
was general agreement in the Working Group that the carrier should only be allowed to
127
A/CN.9/645, } 64–67.
128
See A/CN.9/WG.III/WP.102.
129
40 F. Berlingieri
carry on deck road cargo vehicles and railroad cars that were fit for such carriage and
that the ship’s deck should be specially fitted to carry them.
Chapter 7 – Obligations of the shipper to the carrier
In connection with the review and approval of articles 32 and 34 the definitions of
“contract particulars” and “documentary shipper” in paragraphs 23 and 9 of article
1 were approved.
Article 1 – Definitions
In connection with the review and approval (save for the deletion of the reference to
the “consignor” and the consequential amendments) of draft article 37- Issuance of
the transport document or the electronic transport record the following definitions
in article 1 were considered and certain amendments, as indicated below, were
agreed:
– “transport document” (para. 15): the words “by the carrier or a performing
party” and “satisfies one or both of the following conditions” were deleted and
the conjunction “or” between (a) and (b) was replaced by “and”;
– “negotiable transport document” (para. 16): approved;
– “non-negotiable transport document” (para. 17): approved;
– “electronic communication” (para. 18): approved;
– “electronic transport record” (para. 19): approved, subject to its alignment with
the amended definition of “transport document”;
– “negotiable electronic transport record” (para. 20): approved;
– “non-negotiable electronic transport record” (para. 21): approved;
– “issuance” and “transfer” (para. 22): it was decided to define the two terms
separately as they now appear in paras. 21 and 22.

Article 42 – Qualifying the information relating to the goods in the contract
particulars (now article 40)
The view was expressed that article 42 left a possible gap, namely, in situations
where the goods were delivered in a closed container but the carrier had actually
inspected them. It was thought that the best manner to deal with that problem was to
add the phrase “or are delivered in a closed container but the carrier or the
performing party has in fact inspected the goods” after the phrase “in a closed
container” in the chapeau of paragraph 3. That proposal was accepted.
Chapter 9 – Delivery of the goods.
Article 45 – Obligation to accept delivery (now article 43)
In paragraph 1 it was decided to replace the words “the consignee that exercises its
rights under the contract of carriage” with “the consignee that demands delivery of
the goods under the contract of carriage”. Very strong reservations were instead
made in respect of paragraph 2 that provided that when the parties have made an
agreement under article 14.1 (now article 13.2) the consignee shall do so properly
and carefully,130 and it was decided to delete it.
Article 49 – Delivery when the electronic equivalent of a non-negotiable transport
document that requires surrender is issued
Article 49 was deleted since, unlike the document provided for in draft article 48,
there was no existing practice of using the electronic equivalent of a non-negotiable
transport document that required surrender that required support in the text of the
Draft Convention.131
Article 50 – Delivery when a negotiable transport document or negotiable elec-
tronic transport record is issued (now article 47).
The initial words of its para. 1 “Without prejudice to article 45” were deleted as
unnecessary and potentially misleading.132
Chapter 12 – Limits of liability
After further discussions on the limits of liability133 an attempt was made by a large
number of delegations for the resolution of the outstanding issues relating, in
addition to the limits, to the possible reference to national law in article 27 in
respect of the carriage preceding or subsequent to sea carriage (now article 26) and
to freedom of contract in respect of volume contracts. The terms of the package
were the following134:
1. The limitation amounts to be inserted into paragraph 1 of draft article 62 would
be 875 SDR per package and 3 SDR per kilogram and the text of that paragraph
would be otherwise unchanged;
2. Draft article 99, that contained provisions on the amendment of the limitation
amounts, and paragraph 2 of draft article 62, that aimed at applying the higher
limitation amount if the carrier cannot establish whether or not loss, damage or
delay occurred during the carriage by sea or during the carriage preceding or
subsequent to the sea carriage, would be deleted;
3. No draft article 27 bis would be included in the text providing for a declaration
provision to allow a Contracting State to include its mandatory national law in a
provision similar to that in draft article 27135; and
4. The definition of “volume contract” in paragraph 2 of article 1 would be accepted.
In respect of item (1) of the proposal the levels of limitation suggested were
favourably considered by the majority of the delegations but were considered
unreasonably high by some delegations and too low by others. However, following
130
A/CN.9/645, } 145–151.
131
A/CN.9/645, } 157.
132
A/CN.9/645, } 158.
133
A/CN.9/645, } 183–194.
134
A/CN.9/645, } 197.
135
See footnote 56, A/CN.9/WG.III/WP.101.
42 F. Berlingieri
the agreement regarding the compromise package, the proposed new text of draft
article 62 (now article 59) was approved.
In respect of item (2) of the proposal, the initial debate indicated a support for the
first part of the proposal whereas there did not appear to be a sufficient support for
the second part,136 although a decision was deferred until final consideration of all
the items of the package. At the end of the debate however, the Working Group
agreed to delete paragraph 2 of draft article 62 as well as paragraphs 2 and 3 of draft
article 27 in which reference was made to article 62.2.
In respect of item (3) the deletion of article 27 bis was accepted.
In respect of item (4), as will be indicated below in connection with the report of the
discussions on chapter 16, although the proposal regarding draft article 83 (now article
80) had not been considered acceptable, a different proposal was ultimately accepted.
Chapter 16 – Validity of contractual terms
Since the fourth item of the package previously mentioned was considered wholly
unsatisfactory by several delegations, in the interest of obtaining a broader consen-
sus in support of the issue of freedom of contract, the following revised text of draft
article 83 was proposed by a number of delegations:
Article 83. Special rules for volume contracts
1. “Notwithstanding article 82, as between the carrier and the shipper, a volume contract to
which this Convention applies may provide for greater or lesser rights, obligations, and
liabilities than those imposed by this Convention.
2. A derogation pursuant to paragraph 1 is binding only when:
(a) The volume contract contains a prominent statement that it derogates from this
Convention;
(b) The volume contract is (i) individually negotiated or (ii) prominently specifies the
sections of the volume contract containing the derogations;
(c) The shipper is given an opportunity and notice of the opportunity to conclude a
contract of carriage on terms and conditions that comply with this Convention
without any derogation under this article; and
(d) The derogation is not (i) incorporated by reference from another document or (ii)
included in a contract of adhesion that is not subject to negotiation.
3. A carrier’s public schedule of prices and services, transport document, electronic
transport record, or similar document is not a volume contract pursuant to paragraph 1
of this article, but a volume contract may incorporate such documents by reference as
terms of the contract.
4. Paragraph 1 of this article does not apply to rights and obligations provided in articles
15, paragraphs (1)(a) and (b), 30 and 33 or to liability arising from the breach thereof,
nor does paragraph 1 of this article apply to any liability arising from an act or omission
referred to in article 64.
5. The terms of the volume contract that derogate from this Convention, if the volume
contract satisfies the requirements of paragraphs 1 and 2 of this article, apply between
the carrier and any person other than the shipper provided that:
(a) Such person received information that prominently states that the volume contract
derogates from this Convention and gives its express consent to be bound by such
derogations; and
136
A/CN.9/645, } 197.
(b) Such consent is not solely set forth in a carrier’s public schedule of prices and
services, transport document, or electronic transport record.
6. The party claiming the benefit of the derogation bears the burden of proof that the
conditions for derogation have been fulfilled.
It was stated137 that the proposal provided additional explicit protection to

shippers, with the intention that the amended text would address the concerns
expressed by some during the previous sessions of the Working Group.138 In light
of the many competing interests that were balanced as part of the attempts to clarify
the concepts expressed in draft article 83 in WP.101, there was strong support for
the view that, at such a late stage of its deliberations, it would be highly unlikely
that the Working Group would be in a position to build an equally satisfactory
consensus around a different solution. The Working Group was strongly urged not
to take that direction and not to revert to proposals that in that past had failed to gain
broad support, since that might in turn result in a failure to find sufficient support for
the improved text, with its expanded protection for shippers. With respect to the
contents of the proposal, the following explanations were provided:
– Paragraph 1 had been split into two paragraphs with the chapeau of the former
text of draft article 83 constituting paragraph 1 of the proposal;
– Paragraph 2 of the proposal enumerated the cumulative preconditions for a
derogation from the Draft Convention;
– Paragraph 2(c) was new text that provided shippers with the opportunity, and the
requirement that they be given notice of that opportunity, to conclude a contract
of carriage on the terms and conditions that complied with the Draft Convention
without any derogation;
– Paragraph 2(d) prohibited the use of a contract of adhesion in setting out such
derogations; and
– The definition of “volume contracts” in paragraph 2 of draft article 1 would be
maintained without amendment.
Strong support was expressed for the proposal as containing a number of
clarifications of the previous text which were key to establishing an appropriate
balance between the rights of shippers and carriers in the negotiation of volume
contracts. Further, the clarifications and refinements in the revised text were said to
contribute greatly to the understanding of the provision and to the overall protection
offered to shippers against possible abuses pursuant to the volume contract provi-
sion. In particular, delegations that had most often and consistently expressed
concerns regarding the provision of adequate protections for shippers in the volume
contract provisions on several previous occasions expressed complete satisfaction
with the proposed refinements of the draft article. Others speaking in support of the
proposed text emphasized the importance of finding an adequate and flexible means
A/CN.9/645, } 244.
137
See, for example, A/CN.9/642, } 279–280; and A/CN.9/621, } 161–172.

138
44 F. Berlingieri
for the expression of party autonomy in order to assure the success of a modern
transport convention, while at the same time ensuring that any party whose interests
could be open to abuse was adequately protected.
Following a lengthy discussion on the proposal for refined text for draft article
83, the Working Group approved the substance of the text of draft article 83 set out
in paragraph 243 above.
The proposal to amend the definition of volume contract instead did not find
sufficient support.
Finally, the Working Group approved the title of the Draft Convention with the
inclusion of the phrase “contracts for the international”, the complete title being,
therefore “United Nations Convention on contracts for the international carriage of
goods wholly or partly by sea”.
Fourty-first session of the Commission, held in New York, 16 June-3
July 2008139
Item 4 of the Agenda was “Finalization and approval of a Draft Convention on
contracts for the international carriage of goods wholly or partly by sea.” A full
report of the debates may be found in A/63/17 under item III-B, paragraphs 15–305,
pages 5–59. A summary of the most significant debates in respect of certain
provisions will follow. Special attention will be paid to the changes decided by
the session.
Article 1 – Definitions
As a possible solution to the concerns expressed with respect to the operation of the
volume contract provision, it was suggested that the definition of “volume contract”
in draft article 1, paragraph 2, could be adjusted in order to narrow the potential
breadth of the volume contract provision. In particular, the view was expressed that
if a specific number of shipments or containers or a specific amount of tonnage of
cargo were to be added to the definition, it could provide additional protection, so
that parties actually entering into volume contracts would clearly be of equal
bargaining power. Some support was expressed for that suggestion. However, the
Commission noted that previous attempts by the Working Group to find a workable
solution that would provide greater specificity to the definition of “volume con-
tract” had not met with success, and agreed that the definition of “volume contract”
should be retained as drafted, and that the compromise reached by the Working
Group140 should therefore be maintained.
139
General Assembly-Official Records, Sixty-third session Supplement No.17 – A/63/17.
140
See A/CN.9/645, } 196–204.

Article 12 – Period of responsibility of the carrier
Several different interpretations of the provisions of this article were suggested,141
but after extensive efforts to clarify the text “to resolve the apparent ambiguity” the
Commission took note that it had not been possible to reconcile the different
interpretations of the provisions and the substance of the article was approved.142
That does not seem to have been a very satisfactory result and it is suggested that a
thorough study of this article must be made with the view to establishing whether
really alternative interpretations are possible or not.
Article 13 – Transport beyond the scope of the contract of carriage
A debate took place as to whether this provision was really necessary or not and
the conclusion was that it should be deleted.143
Chapter 5 – Liability of the carrier for loss, damage or delay
Article 18 (now article 17) – Basis of liability
Paragraph 3, enumerating the excepted perils, has been the subject of a further
debate.
The Commission agreed that the paragraph should not be deleted. The Commis-
sion was aware of the depth of the discussions and of the careful compromise that
had been achieved with the current text and felt that that compromise would be
jeopardized by the proposed deletion of paragraph 3 of the draft article, a provision
which in the view of many delegations was an essential piece of an equitable liability
regime. Furthermore, it was generally felt that the objections raised to paragraph 3
resulted from a misunderstanding of its practical significance. Paragraph 3 was in fact
part of a general system of fault liability and the circumstances listed therein were
typically situations where a carrier would not be at fault. Even more importantly, the
list in paragraph 3 was not a list of instances of absolute exoneration of liability, but
merely a list of circumstances that would reverse the burden of proof and would create
a rebuttable presumption that the damage was not caused by the carrier’s fault. The
shipper still retained the possibility, under paragraphs 4 and 5 of the draft article, to
prove that the fault of the carrier caused or contributed to the circumstances invoked
by the carrier, or that the damage was or was probably the result of the unseaworthi-
ness of the ship. Even many of those who had originally opposed the list in paragraph 3
in the Working Group were now, as a whole, satisfied of the adequacy of the liability
system set forth in draft article 18.
Also paragraphs 4, 5 and 6 had given rise to some discussion. It was argued that
the shipper would have difficulty proving unseaworthiness, improper crewing,
equipping or supplying, or that the holds were not fit for the purpose of carrying
goods, as required by paragraph 5. And that the combined effect of paragraphs 4, 5
and 6 was to change the general rule on allocation of liability in a manner that was
141
A/63/17, } 39–41.
142
A/63/17, } 42–43.
143
A/63/17, } 45–53.
46 F. Berlingieri
likely to affect a significant number of cargo claims and disadvantage shippers in

cases where there was more than one cause of the loss or damage and a contributing
cause was the negligently caused unseaworthiness of the vessel. However, there
was ample support for retaining paragraphs 4, 5 and 6 of the draft article as they
currently appeared. The burden placed on the shipper, it was noted, was not as great
as had been stated. In fact, nothing in the draft article required the shipper to submit
conclusive proof of unseaworthiness, as the burden of proof would fall back on the
carrier as soon as the shipper had showed that the damage was “probably” caused
by or contributed to by unseaworthiness. Paragraph 6, too, had been the subject of
extensive debate within the Working Group and the current text reflected a com-
promise that many delegations regarded as an essential piece of the overall balance
of draft article 18. The prevailing and strongly held view was that over the years of
extensive negotiations the Working Group had eventually achieved a workable
balance between the interests of shippers and carriers and that the draft article
represented the best compromise that could be arrived at. It was considered that it
would be highly unlikely that a better result could be achieved at such a late stage of
the negotiations. Moreover, the draft article was part of an overall balance of
interests, and any changes in its substance would necessitate adjustments in other
parts of the Draft Convention, some of which were themselves the subject of
delicate and carefully negotiated compromises.
Article 27 (now article 26) – Carriage preceding or subsequent to sea carriage
A proposal was made in the Commission to reinstate the reference to “national law”
in draft article 27, or to include a provision in the Draft Convention allowing a
Contracting State to make a declaration including its mandatory national law in
draft article 27. In support of the text as drafted, it was observed that the inclusion of
“national law” in draft article 27 was quite different from including international
legal instruments. In the case of international instruments, the substance of the
legislation could be expected to be quite well known, transparent and harmonized,
thus not posing too great an obstacle to international trade. In contrast, national law
differed dramatically from State to State, it would be much more difficult to
discover the legal requirements in a particular domestic regime, and national law
was much more likely to change at any time. It was suggested that those factors
made the inclusion of national law in draft article 27 much more problematic and
would likely result in substantially less harmonization than including international
instruments in the provision.
Chapter 7 – Obligations of the shipper to the carrier
Article 36 – Cessation of the shipper’s liability
Questions were raised in the Commission regarding the rationale for the inclusion
of draft article 36 in the text, particularly in the light of the generally permissive
approach of the Draft Convention to freedom of contract. While it was recalled that
certain delegations in the Working Group had requested the inclusion of a provision
on the cessation of the shipper’s liability, the Commission was of the general view
that the provision was not necessary in the text and could be deleted. The Commis-
sion agreed to delete article 36 from the text of the Draft Convention.
Article 38 (now article 36) – Contract particulars
In response to the proposal to mention further particulars, that would be required by
the consignee, such as the name of the ship, the ports of loading and unloading and
the date on which the carrier or a performing party received the goods, or the
approximate date of delivery, it was pointed out that the draft article was concerned
only with mandatory contract particulars without which the transport could not be
carried out and which were needed for the operation of other provisions in the Draft
Convention. Nothing prevented the parties from agreeing to include other particulars
that were seen as commercially desirable to be mentioned in the transport document.
It was further noted, however, that the proposed addition contemplated some
factual information, such as the name of the vessel, the port of loading or unloading
or the approximate date of delivery, which, at the moment of issuance of the
transport documents, the parties might not yet know. One of the primary interests
of the shipper, it was said, would usually be to obtain a transport document as soon
as possible, so as to be able to tender the transport document to the bank that issued
the documentary credit in order to obtain payment in respect of the goods sold.
However, the issuance of the transport document would unnecessarily be delayed if
all the additional information proposed for inclusion in the draft article were to be
made mandatory. It was explained that in the case of multimodal transport, for
instance, several days might elapse between the departure of the goods from an
inland location and their actual arrival at the initial port of loading. Some more time
would again pass before the goods were then carried by another vessel to a hub port,
where they would be again unloaded for carriage to a final destination. In such a
situation, which was quite common in practice, usually only the name of the first
vessel or of the feeder vessel was known at the time when the transport document
was issued. In addition to that, the ports of loading and unloading were often not
known, as large carriers might allocate cargo among various alternative ports on the
basis of financial considerations (such as terminal charges) or operational consid-
erations (such as availability of space on seagoing vessels). The Commission was
sensitive to the arguments advanced in favour of keeping the list of requirements in
draft article 38 within the limits of commercial reasonableness.
Nevertheless, there was wide agreement that some additional requirements
might be appropriate in order to place the shipper and the consignee in a better
position to meet the demands of banks issuing documentary credit or to make the
logistical and other arrangements necessary for collecting the goods at destination.
It was pointed out that in view of the relationship between draft articles 38 and 41,
an expanded list would not negatively affect trade usage, as the transport document
could still be validly issued even without some information not being available
before the beginning of the carriage. The Commission also recognized that some
elements might necessitate some qualification as regards, for instance, their avail-
ability at the time of issuance of the transport document.
48 F. Berlingieri
The proposal to insert into the text of draft article 38 the following paragraph
was adopted by the Commission:
2 bis. The contract particulars in the transport document or the electronic
transport record referred to in article 37 shall furthermore include:
(a) The name and address of the consignee, if named by the shipper;
(b) The name of a ship, if specified in the contract of carriage;
(c) The place of receipt and, if known to the carrier, the place of delivery;
(d) The port of loading and the port of discharge, if specified in the contract of carriage.
Chapter 9 – Delivery of the goods
Article 45 – Obligation to accept delivery
Concerns in line with the general comment expressed in respect of chapter 9 were
also raised with respect to draft article 45. While there was some support for that
approach, the focus of concern in respect of the draft provision was the phrase “the
consignee that exercises its rights”. It was suggested that that phrase was too vague
in terms of setting an appropriate trigger for the assumption of obligations under the
Convention. It was suggested that that uncertainty could be remedied by deleting
the phrase at issue and substituting for it: “the consignee that demands delivery of
the goods”. After discussion, the Commission decided to adopt that amendment.
With that amendment, the Commission approved the substance of draft article 45
and referred it to the drafting group.
Article 50 (then 49 and now 47) – Delivery when a negotiable transport document or
negotiable electronic transport record is issued
The concerns that had been expressed during the twentieth session were repeated
and it was proposed to adopt the solution that had been suggested, pursuant to which
the chapeau of the former article 50 and sub-paragraphs (a) to (c) would become
paragraph 1, whereas the subsequent sub-paragraphs (d) to (h) would become part
of paragraph 2 and would be made applicable only when the negotiable transport
document or negotiable electronic transport record states that the goods may be
delivered without the surrender of the negotiable transport document or negotiable
electronic transport record.144
There were some suggestions for adjustments to the proposed new text of draft
article 49 including that of adding in the chapeau of paragraph 2 the word
“expressly” before the word “states”. A concern was also raised with respect to
whether the interrelationship between the new paragraph 2 and draft article 50 was
sufficiently clear. In order to remedy that concern, the Commission agreed to insert
the phrase “without prejudice to article 50, paragraph 1” at the start of paragraph 2.
Subject to the insertion of the words “without prejudice to article 50, paragraph 1”
in the beginning of paragraph 2 and of the word “expressly” before the word
“states” in that same sentence, the Commission approved the substance of the
new draft article 49 and referred it to the drafting group.
144
A/63/17, } 146–152.
Article 51 (then 50 and now 48) – Goods remaining undelivered

Some drafting suggestions were made to improve the provision. With the addition of a
requirement in draft article 50, subparagraph 2 (b), along the lines of that of draft
article 52, subparagraph 2 (c), that the destruction of the goods by the carrier be carried
out in accordance with the law or regulations of the place where the goods were
located at the time, the Commission approved the substance of draft article 50.
Chapter 12 – Limits of liability
Article 62 (then 61 and now 59) – Limits of liability
The Commission heard expressions of concern that the proposed levels for the
limitation of the carrier’s liability were too high and that there was no commercial
need for such high limits, which were said to be unreasonable and unrealistic. There
was some support for those concerns, in particular given that a number of delegations
felt that the level of limitation of the Hague-Visby Rules was adequate for commercial
purposes. It was said that it would have been possible for some delegations to make an
effort to persuade their industry and authorities of the desirability of accepting liability
limits as high as those set forth in the Hamburg Rules, as an indication of their
willingness to achieve consensus. It was also felt, however, that the levels now
provided for in the draft article were so high as to be unacceptable and they might
become an impediment for ratification of the Convention by some countries, which
included large trading economies. The Commission heard a proposal, which received
some support, for attempting to broaden the consensus around the draft article by
narrowing down the nature of claims to which the liability limits would apply in
exchange for flexibility in respect of some matters on which differences of opinion had
remained, including the applicability of the Draft Convention to carriage other than
sea carriage and the liability limits. The scope of the draft article, it was proposed,
should be limited to “loss resulting from loss or damage to the goods, as well as loss
resulting from misdelivery of the goods”. It was said that such an amendment would
help improve the balance between shipper and carrier interests, in view of the fact that
the liability of the shipper was unlimited.
The Commission did not agree to the proposed amendment to paragraph 1, which
was said to touch upon an essential element of the compromise negotiated at the
Working Group. The Commission noted and confirmed the wide and strong support
for not altering the elements of that general compromise, as well as the expressions
of hope that ways be found to broaden its basis of support even further.
Chapter 16 – Validity of contractual terms
Article 83 (then 82 and now 80) – Special rules for volume contracts
Concern was expressed that, since a large number of contracts for the carriage of
goods could fall into the definition of a volume contract, derogation from the
obligations of the Draft Convention would be widespread and could negatively
affect smaller shippers. It was suggested that possible remedies to reduce the
breadth of the provision could be to restrict the definition of “volume contract”
and to further protect weaker parties to the contract of carriage by requiring that the
requirement in draft article 82 subparagraph 2 (b), that the volume contract be
50 F. Berlingieri
individually negotiated or that it prominently specify the sections of the contract

containing any derogations, should be amended to be conjunctive rather disjunc-
tive. The proposal was also made to allow States to make a reservation with respect
to draft article 82. It was, however, noted, that delegations at the final session of the
Working Group had succeeded in amending the text of the draft provision through
the addition of draft subparagraphs 2 (c) and (d). In doing so the Working Group
had achieved a compromise acceptable to many of the delegations that had previ-
ously expressed their concerns regarding the protection of parties with weaker
bargaining power.145 The Commission expressed support that the compromise
that had been reached should be maintained and it approved the substance of
draft article 82 and referred it to the drafting group.
Chapter 17 – Matters not governed by this Convention
Article 85 (then 84 and now 82) – International Conventions governing the car-
riage of goods by other modes of transport
It was pointed out that draft article 84 preserved only the application of interna-
tional conventions that governed unimodal carriage of goods on land, on inland
waterways or by air that were already in force at the time that the Convention
entered into force. That solution was said to be too narrow. Instead, the Draft
Convention should expressly give way both to future amendments to existing
conventions as well as to new conventions on the carriage of goods on land, on
inland waterways and by air. It was noted, in that connection, that an additional
protocol to the Convention on the Contract for the Carriage of Goods by Road (the
“CMR”) dealing with consignment notes in electronic form had recently been
adopted under the auspices of the Economic Commission for Europe and that
such amendments were common in the area of international transport. The Con-
vention concerning International Carriage by Rail and Appendix B to that Conven-
tion containing the Uniform Rules concerning the Contract for International
Carriage of Goods by Rail (the “CIM-COTIF”), for instance, had an amendment
procedure as a result of which the 1980 Convention (“COTIF”) had been replaced
with the 1999 version. Furthermore, the Draft Convention should also preserve the
application of any future convention on multimodal transport contracts.
Following informal consultations, it was proposed that the following phrase be
inserted into the chapeau of the draft provision, after the phrase “enters into force”:
“including any future amendment thereto”. Subject to the inclusion of a phrase
along those lines, the Commission approved draft article 84 and referred it to the
drafting group.
The Convention was adopted by the General Assembly of the United Nations at
its 67th plenary meeting on 11 December 2008 with the resolution reproduced
below:
145
See A/CN.9/645, } 196–204.
Resolution Adopted by the General Assembly

United Nations Convention on Contracts for the International
Carriage of Goods Wholly or Partly by Sea
The General Assembly,
Recalling its resolution 2205 (XXI) of 17 December 1966, by which it established
the United Nations Commission on International Trade Law with a mandate to
further the progressive harmonization and unification of the law of international
trade and in that respect to bear in mind the interests of all peoples, in particular
those of developing countries, in the extensive development of international
trade,
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,
Noting that the development of international trade on the basis of equality and
mutual benefit is an important element in promoting friendly relations among
States,
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 opportu-
nities for previously remote parties and markets, thus playing a fundamental role
in promoting trade and economic development, both domestically and interna-
tionally,
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,
Recalling that, at its thirty-fourth and thirty-fifth sessions, in 2001 and 2002, the
Commission decided to prepare an international legislative instrument govern-
ing door-to-door transport operations that involve a sea leg,
Recognizing that all States and interested international organizations were invited
to participate in the preparation of the Draft Convention on Contracts for the
International Carriage of Goods Wholly or Partly by Sea and in the forty-first
session of the Commission, either as members or as observers, with a full
opportunity to speak and make proposals,
Noting with satisfaction that the text of the Draft Convention was circulated for
comment to all States Members of the United Nations and intergovernmental
organizations invited to attend the meetings of the Commission as observers,
and that the comments received were before the Commission at its forty-first
session,
52 F. Berlingieri
Taking note with satisfaction of the decision of the Commission at its forty-
first session to submit the Draft Convention to the General Assembly for its
consideration,
Taking note of the Draft Convention approved by the Commission,
Expressing its appreciation to the Government of the Netherlands for its offer to
host a signing ceremony for the Convention in Rotterdam,
1. Commends the United Nations Commission on International Trade Law for
preparing the Draft Convention on Contracts for the International Carriage of
Goods Wholly or Partly by Sea;
2. Adopts the United Nations Convention on Contracts for the International Car-
riage of Goods Wholly or Partly by Sea, contained in the annex to the present
resolution;
3. Authorizes a ceremony for the opening for signature to be held on 23 September
2009 in Rotterdam, the Netherlands, and recommends that the rules embodied in
the Convention be known as the “Rotterdam Rules”;
4. Calls upon all Governments to consider becoming party to the Convention.
67th plenary meeting 11 December 2008
Annex I
States (Members and Observers) and International

Organizations Attending the Session of the Working Group
This document indicates the sessions at which representatives of States members of

UNCITRAL and observers from other States as well as observers from international
organizations have attended. The document is based on the information contained
in the reports of the sessions.
Representatives of States Members of the Working Group and Observers from

Other States146
Afghanistan: 15th
Algeria: 10th, 12th, 14th, 16th, 17th, 18th, 19th, 20th, 21st, 41st
Angola: 9th, 21st, 41st
Antigua and Barbuda: 12th, 14th
Argentina: 10th, 12th, 13th, 14th, 16th, 17th, 18th, 19th, 20th, 21st, 41st
Australia: 9th, 10th, 11th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st, 41st
Austria: 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st, 41st
Bahrain: 41st
Belarus: 41st
Belarus: 9th, 11th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st
Belgium: 14th, 41st
Benin: 13th, 18th, 19th, 20th, 21st, 41st
Bolivia: 12th, 20th, 21st, 41st
Brazil: 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st, 41st
Brunei Darussalam: 13th
Bulgaria: 12th, 18th, 21st
Burkina Faso: 9th, 11th, 13th 18th, 19th, 20th, 21st, 41st
Burundi: 19th
Cameroon: 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 19th, 20th, 21st, 41st
Canada: 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st, 41st
Chile: 9th, 13th, 15th, 18th, 19th, 20th, 21st, 41st
China: 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st, 41st
Ciad: 41st
Colombia: 9th, 10th, 11th, 12th, 13th, 15th, 16th, 17th, 18th, 19th, 20th, 41st
Congo (Democratic Republic of): 14th, 18th, 19th, 20th, 21st, 41st
Congo: 18th, 19th, 20th, 21st, 41st
146
The States indicated in italics were non member States throughout the whole period during
which the sessions have been held.
54 F. Berlingieri
Costa Rica: 12th, 19th

Côte d’Ivoire: 9th, 19th, 20th, 21st, 41st
Croatia: 14th, 15th, 16th, 17th, 18th, 21st, 41st
Cuba: 12th, 13th, 14th, 15th, 16th, 17th
Cyprus: 9th, 19th, 41st
Czech Republic: 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st, 41st
Denmark: 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st, 41st
Dominican Republic: 16th, 17th, 18th, 19th, 20th
Ecuador: 9th, 13th, 15th, 19th, 41st
Egypt: 21st, 41st
El Salvador: 19th, 20th, 21st, 41st
Ethiopia: 15th, 41st
Fiji: 9th, 11th, 13th, 41st
Finland: 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st, 41st
France: 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st, 41st
Gabon: 11th, 18th, 19th, 20th, 21st, 41st
Germany: 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st,
41st
Ghana: 10th, 19th, 20th, 21st, 41st
Greece: 10th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st, 41st
Guatemala: 15th, 19th, 20th, 41st
Guinea: 41st
Holy See: 15th, 19th, 41st
Honduras: 9th, 41st
India: 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st, 41st
Indonesia: 14th, 16th, 17th, 18th, 19th, 20th, 21st, 41st
Iran (Islamic Republic of): 9th, 10th, 13th, 16th, 17th, 18th, 19th, 20th, 21st, 41st
Iraq: 15th, 16th, 17th, 18th
Israel: 41st
Italy: 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st, 41st
Japan: 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st, 41st
Jordan: 9th
Kenya: 9th, 10th, 11th, 13th, 15th, 19th, 41st
Korea (Republic of): 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th,
20th, 21st, 41st
Kuwait: 10th, 12th, 13th, 14th, 15th, 16th, 17th, 19th, 20th, 41st
Latvia: 14th, 16th, 17th, 18th, 19th, 20th, 41st
Lebanon: 10th, 11th, 12th, 19th, 20th, 21st
Lesotho: 19th
Libyan Arab Jamahiriya: 10th, 18th, 41st
Lithuania: 9th, 10th, 11th, 12th, 13th, 14th, 15th
Macedonia (the former Republic of Yugoslav): 41st
Madagascar: 15th, 41st
Malaysia: 18th, 19th, 41st
Malta: 41st
Marshall Islands: 11th

Mexico: 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st, 41st
Moldova (the Republic of): 19th, 41st
Mongolia: 13th, 15th
Morocco: 11th, 12th, 15th, 16th, 17th, 19th, 41st
Myanmar: 41st
Namibia: 20th, 21st
Netherlands: 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th,
21st, 41st
New Zealand: 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 41st
Nicaragua: 13th, 20th
Niger: 11th, 19th, 20th, 21st, 41st
Nigeria: 13th, 14th, 16th, 17th, 18th, 19th, 20th, 21st, 41st
Norway: 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st, 41st
Pakistan: 15th, 18th, 19th
Panama: 16th, 17th, 19th
Paraguay: 41st
Paraguay: 9th, 11th
Peru: 9th, 10th, 13th, 14th, 16th, 17th, 18th, 19th
Philippines: 9th, 10th, 11th, 13th, 15th, 16th, 17th, 18th, 19th, 20th, 41st
Poland: 21st, 41st
Portugal: 20th, 21st
Qatar: 13th, 15th
Romania: 10th, 14th, 16th, 17th, 18th, 19th, 20th, 21st, 41st
Russian Federation: 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th,
20th, 21st, 41st
Rwanda: 14th
Saudi Arabia: 14th, 19th, 20th, 21st, 41st
Senegal: 9th, 10th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st, 41st
Serbia and Montenegro: 15th, 41st
Sierra Leone, 11th
Singapore: 9th, 10th, 12th, 13th, 14th, 15th, 16th, 17th, 19th, 20th, 21st, 41st
Slovakia: 10th, 14th, 18th, 20th, 21st, 41st
Slovenia: 14th, 20th, 21st, 41st
South Africa: 14th, 15th, 19th, 21st, 41st
Spain: 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st, 41st
Sri Lanka: 12th, 15th
Sudan, 10th, 13th
Sweden: 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st, 41st
Switzerland: 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th,
21st, 41st
Syrian Arab Republic: 10th
Tanzania (United republic of): 20th
Thailand: 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st,
41st
56 F. Berlingieri
Tunisia: 9th, 10th, 12th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st
Turkey: 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st, 41st
Uganda: 15th, 19th, 41st
Ukraine: 10th, 15th, 18th, 19th
United Kingdom of Great Britain and Northern Ireland: 9th, 10th, 11th, 13th, 16th,
17th, 18th, 20th, 21st
United States of America: 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th,
19th, 20th, 21st
Uruguay: 12th
Venezuela: 9th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st
Vietnam: 11th
Yemen: 10th, 12th, 14th, 18th, 19th, 20th
Zimbabwe: 19th
International Organizations
(a) United Nations system:

Asian-African Legal Consultative Organization: 13th
International Maritime Organization (IMO): 10th
Special Representative of the Secretary-General on human rights and transna-
tional corporations and other business enterprises and the World Bank: 41st
United Nations Conference on Trade and Development (UNCTAD): 9th, 10th,
11th, 12th, 14th, 16th, 17th, 18th, 20th, 21st
United Nations Economic Commission for Europe (UNECE): 9th, 12th, 14th,
16th, 17th, 18th
(b) Intergovernmental organizations:
African Union: 15th
Asian-African Legal Consultative Organization: 19th, 41st
Comunidad Andina: 9th
Council of the European Union: 15th, 16th, 17th, 18th, 20th
European Commission (EC): 10th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st
European Community World Customs Organization (WCO): 41st
Hague Conference on Private International Law (HCCH): 16th, 17th
Intergovernmental Organisation for International Carriage by Rail (OTIF):
10th, 11th, 12th, 13th, 16th, 17th, 18th, 20th, 21st
League of Arab States: 21st
Organisation for Economic Co-operation and Development (OECD): 10th
(c) International non-governmental organizations:
Advisory Council of the United Nations Convention on Contracts for the
International Sale of Goods: 41st
American Arbitration Association: 41st
American Bar Association: 41st
Asociación Americana de Derecho Internacional Privado: 41st
Association of American Railroads (AAR): 11th, 12th, 13th, 14th, 15th, 16th,
17th, 18th, 19th, 20th, 21st, 41st
Association of the Bar of the City of New York: 41st
Baltic and International Maritime Council (BIMCO): 10th, 11th, 12th, 13th,
14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st, 41st
Center for International Environment Law: 41st
Center for International Legal Studies (CILS): 11th, 12th, 18th, 41st
Comité International des Transports Ferroviaires (CIT): 10th, 16th, 17th
Comité Maritime International (CMI): 9th, 10th, 11th, 12th, 13th, 14th, 15th,
16th, 17th, 18th, 19th, 20th, 21st, 41st
European Law Student’s Association, The (ELSA): 10th, 16th, 17th, 18th, 19th,
21st
European Shippers’ Council (ESC): 16th, 17th, 18th, 19th, 20th, 21st, 41st
Federación Latinoamericana de Bancos: 41st
Ibero-American Institute of Maritime Law (IAIML): 19th
Institute of International Banking Law and Pratice: 41st
Institute of International Container Lessors (IICL): 11th
Instituto Iberoamericano de Derecho Marı́timo: 9th, 10th, 11th, 12th, 13th, 41st
International Association of Ports and Harbors: 41st
International Bar Association: 41st
International Chamber of Commerce (ICC): 13th, 14th, 15th, 16th, 17th, 18th,
19th, 21st
International Chamber of Shipping (ICS): 9th, 10th, 11th, 12th, 13th, 14th,
16th, 17th, 18th, 19th, 20th, 21st, 41st
International Council for Commercial Arbitration: 41st
International Federation of Freight Forwarders Associations (FIATA): 9th,
10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st, 41st
International Group of Protection and Indemnity (P & I) Clubs: 9th, 10th, 11th,
12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st, 41st
International Institute for Sustainable Development: 41st
International Multimodal Transport Association (IMMTA): 9th, 10th, 11th,
12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 41st
International Road Transport Union (IRU): 18th
International Swaps and Derivates Association: 41st
International Union of Marine Insurance (IUMI): 9th, 11th, 12th, 13th, 14th,
15th, 18th, 19th
Kuala Lumpur Regional Centre for Arbitration: 41st
London Court of International Arbitration: 41st
Maritime Organization of West and Central Africa (MOWCA): 19th, 20th
Private International Law Interest Group of the American Society of Interna-
tional Law: 41st
Transportation Intermediaries Association (TIA): 13th
Transportation Intermediaries Association: 9th, 11th
Union internationale des avocats (UIA): 9th, 41st
World Association of Former United Nations Interns and Fellows Inc.: 9th
World Maritime University, The (WMU): 19th, 20th, 21st, 41st
58 F. Berlingieri
Annex II
Prospectus of the Reports of the Sessions of the UNCITRAL Working Group and
of the Report of the Forty-First Session of the U.N. Commission on International
Trade Law
NINTH SESSION, New York, 15–16 April 2002 (A.CN.9/510)
Preliminary considerations
Sphere of application
Electronic communications
Obligations ad liability of the carrier
Obligations and liability of the shipper
Freight
TENTH SESSION, Vienna, 16–20 September 2002 (A.CN.9/525)
Liability of the carrier (article 6)
Freight (article 9)
ELEVENTH SESSION, New York, 24 March-4 April 2003 (A.CN.9/526)
Transport documents and electronic records (article 8)
Delivery to the consignee (article 10)
Right of control (article 11)
Transfer of rights (article 12)
Rights of suit (article 13)
Time for suit (article 14)
General average (article 15
Other conventions (article 16)
Limits of contractual freedom (article17
Scope of application of the Draft Instrument
NOTE OF THE SECRETARIAT dated 4 September 2003 enclosing a revised Draft Instrument on
the carriage of goods [wholly or partly] [by sea] (A/CN.9/WG.III/WP.32)
TWELFTH SESSION, Vienna, 6–17 October 2003 (A.CN.9/544)

Title of the Draft Instrument
Consideration of the core issues of the Draft Instrument
– Scope of application and performing parties
– Scope of application and localized or non-localized damage (article 18.2)
– Scope of application: definition of contract of carriage and treatment of the
maritime leg (article 1a and 2)
– Exemptions from liability, nautical fault and burdens of proof (article 14)
– Obligations of the carrier in respect of the voyage by sea (article 13)
– Liability of performing parties (article 15)
THIRTEENTH SESSION, New York, 3–14 May 2004 (A.CN.9/552)

– Liability of the carrier (articles 15–21)
– Additional provisions relating to carriage by sea (articles 22–24)
– Obligations of the shipper (articles 25–32)
– Freight
FOURTEENTH SESSION, Vienna, 29 November-10 December 2004 (A/CN.9/572)
– Basis of the carrier’s liability (article 14)
– Freedom of contract (articles 1, 1, 88 and 89)
– Jurisdiction (articles 72–75bis)
FIFTEENTH SESSION, New York, 18–18 April 2005 (A/CN.9/576)
– Scope of application and freedom of contract ((articles, 1,2, 88, 88a and 89)
– Jurisdiction (articles 72–75bis)
– Arbitration
– Electronic commerce-revised provisions (articles 2–6, 33, 35)
– Right of control
– Transfer of rights
NOTE OF THE SECRETARIAT dated 4 September 2003 enclosing a revised Draft Instrument on
the carriage of goods [wholly or partly] [by sea] in which a number of revisions to the
previous draft were consolidated (A/CN.9/WG.III/WP.56) (at that time the second reading
was still in progress.
SIXTEENTH SESSION (Vienna, 28 November-9 December 2005

– Jurisdiction (chapter 16)
– Arbitration (chapter 17)
– Obligations of the shipper (chapter 8)
– Delivery of goods (chapter 10)
SEVENTEENTH SESSION, New York, 3–13 April 2006
– Right of control (chapter 11)
– Transfer of rights (chapter 12)
– Delivery to the consignee (chapter 10)
– Liability of carrier and shipper for breach of obligations not governed by the
instrument
– Scope of application, freedom of contract and related provisions (articles 8–10,
20, 94–96, 29–31 and 33)
EIGHTEENTH SESSION, Vienna, 6–17 November 2006 (A/CN.9/594)
– Transport documents and electronic transport records (chapter 9)
– Obligations of the shipper (chapter 8)
– Rights of suit (chapter 14)
– Time for suit (chapter 15)
– Limitation of carrier’s liability (chapter 13)
60 F. Berlingieri
– Relation with other conventions (articles 27, 89 and 90)

– Basis of limitation of liability (article 64)
– General average (chapter 18)
SECOND READING COMPLETED
NOTE OF THE SECRETARIAT dated 11 February 2007 enclosing a revised Draft Instrument on
the carriage of goods [wholly or partly] [by sea] in which a further revisions to the
previous draft were consolidated (A/CN.9/WG.III/WP.81).
NINETEENTH SESSION, New York, 16–27 April 2007 (A/CN.9/621)

– General provisions (chapter 1)
– Scope of application (chapter 2)
– Electronic transport records (chapter 3)
– Period of responsibility (chapter 4)
– Obligations of the carrier (chapter 5)
– Liability of the carrier for loss, damage or delay (chapter 6)
– Additional provisions relating to particular stages of carriage (chapter 7)
– Validity of contractual terms (chapter 19)
– Obligations of the shipper to the carrier (chapter 8)
TWENTIETH SESSION, Vienna, 15–25 October 2007 (A/CN.9/642)
– Transports documents and electronic transport records (chapter 9)
– Delivery of the goods (chapter 10)
– Rights of the controlling party (chapter 11)
– Transfer of rights (chapter 12)
– Limits of liability (chapter 13)
– Time for suit (chapter 14)
– General average (chapter 17)
– Other conventions (chapter 18)
– Final clauses (chapter 20)
– Volume contracts (article 89)
NOTE OF THE SECRETARIAT dated 14 November 2007 enclosing a revised Draft Instrument on
the carriage of goods [wholly or partly] [by sea] in which a additional revisions to the
previous draft were consolidated (A/CN.9/WG.III/WP.101).
TWENTY-FIRST SESSION, Vienna, 14–25 January 2008 (A/CN.9/645)

– General provisions (chapter 1)
– Scope of application (chapter 2)
– Electronic transport records (chapter 3)
– Obligations of the carrier (chapter 4)

– Liability of the carrier for loss, damage or delay (chapter 5)
– Additional provisions relating to particular stages of carriage (chapter 6)
– Obligations of the shipper to the carrier (chapter 7)
– Delivery of the goods (chapter 9)
– Rights of the controlling party (chapter 10)
REPORT OF THE UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW FORTY-
FIRST SESSION, New York, 16 June-3 July 2008 (A/63/17)
Chapter III. Finalization and approval of a Draft Convention on contracts for the
international carriage of goods wholly or partly by sea
A. Introduction
B. Consideration of draft articles
C. Report of the drafting group
D. Decision of the Commission and recommendation to the General Assembly
.
Chapter 2
General Principles of Transport Law
and the Rotterdam Rules
Michael F. Sturley{
Abstract Now that the United Nations has adopted the Convention on Contracts
for the International Carriage of Goods Wholly or Partly by Sea, popularly known
as the Rotterdam Rules, and over twenty nations have signed the Convention, the
ratification process is well underway.
Several important principles are reflected in the Rotterdam Rules. Foremost
among these is the desire to achieve broad uniformity in the law governing the
international carriage of goods. The importance of uniformity is well recognized,
but the current status is unsatisfactory. The Rotterdam Rules now offer the
only realistic possibility for an internationally uniform regime in the foreseeable
future.
To encourage international uniformity, the Rotterdam Rules were drafted to
achieve a broad consensus – both among nations and among commercial interests.
Achieving a broad consensus generally required compromise solutions to difficult
problems, but when compromise was impossible it was sometimes necessary to
omit topics from the Convention.
The Rotterdam Rules are also designed to meet the industry’s practical needs.
Shippers, carriers, insurers, transportation intermediaries, and others involved in the
This paper represents an updated and revised version of: General Principles of Transport Law and
the Rotterdam Rules, 2010 European Journal of Commercial Contract Law 98. Some of the
material in this paper is also included in the first chapter of: 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.
{
Prof. Sturley served as the Senior Adviser on the United States Delegation to Working Group III
(Transport Law) of the United Nations Commission on International Trade Law (UNCITRAL); as
a member of the UNCITRAL Secretariat’s Expert Group on Transport Law; and as the Rapporteur
for the International Sub-Committee on Issues of Transport Law of the Comité Maritime Interna-
tional (CMI) and for the CMI’s associated Working Group. But he writes here solely in his
academic capacity and the views expressed are entirely his own. They do not necessarily represent
the views of, and they have not been endorsed or approved by, any of the groups or organizations
(or any of the individual members) with which (and with whom) he has served.
Prof. M.F. Sturley
The University of Texas at Austin, TX, USA
e-mail: MSturley@law.utexas.edu
64 M.F. Sturley
industry actively participated in the negotiation and drafting of the Convention to

ensure that it met their needs.
Perhaps the most pressing practical need was to update and modernize the law.
Existing regimes are out-of-date and fail to cover essential subjects. For example,
the new Convention addresses serious gaps in existing law by facilitating electronic
commerce and recognizing modern developments in commercial practice.
In the final analysis, the Rotterdam Rules make a number of important changes
in the law, but they are still evolutionary not revolutionary. The new Convention is
directly based on existing models and years of practice under the existing regimes.
2.1 Introduction
It has been a real pleasure to participate in this outstanding conference on the

Rotterdam Rules. I thank Koç University, its Faculty of Law, and the Dr N€usret-
Semahat Arsel International Business Law Implementation and Research Centre for
organizing such a successful event. Not only were the substantive portions of the
conference of great interest but all the logistical details were executed without a
single glitch. The speakers all enjoyed superb hospitality and we are all grateful for
such gracious hosts.
I also thank those who attended the conference. Distinguished academics,
prominent practitioners, and dedicated students were all well-represented in the
audience, and they engaged in the discussion at a very high level. The conference
offered a learning opportunity for all who participated – speaker and audience alike.
2.2 Background
The long-awaited and much-anticipated “United Nations Convention on Contracts

for the International Carriage of Goods Wholly or Partly by Sea”,1 which will be
known as the “Rotterdam Rules”,2 was formally adopted by the U.N. General
Assembly on 11th December 2008.3 It has been open for signature since
1
The final text of the Convention [hereinafter Convention or Rotterdam Rules] is annexed to
General Assembly Resolution 63/122, U.N. Doc. A/RES/63/122 (11 Dec. 2008). It was also
annexed to Report of the United Nations Commission on International Trade Law, 41st Session,
U.N. GAOR, 63rd Sess., Supp. No. 17, Annex I, U.N. Doc. A/63/17 (2008) [hereinafter Commission
Report].
2
See General Assembly Resolution 63/122, supra note 1, } 3.
3
See id. } 2.
2 General Principles of Transport Law and the Rotterdam Rules 65
23rd September 2009 (when the first sixteen nations4 signed the Convention at the
formal signing ceremony in Rotterdam).5
This new convention represents the culmination of 8 years of intensive work by
the U.N. Commission on International Trade Law (UNCITRAL) and its Working
Group III on Transport Law,6 which followed almost 4 years of preparatory work
by the Comité Maritime International (CMI).7 It will enter into force after twenty
countries have ratified it.8 Several countries are already well advanced in the
ratification process, including the United States. As this paper goes to press,
however, it appears that Spain is the closest to ratifying the new convention. The
Spanish government transmitted the convention to parliament on 6th May 2010.9
The Rotterdam Rules were created to govern the legal relationship between
carrier interests and cargo interests10 in the context of international shipments that
travel at least in part by sea. If they succeed, the new Rules will supersede not only
the prior multilateral conventions – the Hague Rules,11 the Hague-Visby Rules,12
4
The sixteen countries to sign on the opening day were Congo, Denmark, France, Gabon, Ghana,
Greece, Guinea, the Netherlands, Nigeria, Norway, Poland, Senegal, Spain, Switzerland, Togo,
and the United States.
5
Now that the formal signing ceremony is complete, the Convention remains open for signature at
U.N. headquarters in New York. See Rotterdam Rules art. 88(1). The first five countries to sign in
New York were Armenia, Cameroon, Madagascar, Mali, and Niger. Other countries have made
statements suggesting that they plan to sign the Convention soon.
6
The primary source material for the UNCITRAL Transport Law project can be found on the
UNCITRAL web site (www.uncitral.org), which contains – in the six official U.N. languages – not
only the final text of the Rotterdam Rules but also each preliminary draft of the Convention as it
was negotiated, the reports of each meeting of Working Group III, the reports of the full
Commission meetings, the formal proposals made by each delegation, and all of the other
documents that were filed with UNCITRAL.
7
See generally Sturley (2003), pp. 65, 68–75 (discussing the background to the UNCITRAL
Transport Law project, including the CMI’s preparatory work) [hereinafter Sturley, Interim
View]. The CMI is a non-governmental organization founded in the late nineteenth century that
was the primary force in developing uniform international approaches to maritime law problems
for most of the twentieth century. Cf. Sturley (1991), pp. 1, 9–10 [hereinafter Sturley, History].
8
See Rotterdam Rules art. 94(1).
9
By coincidence, 6th May 2010 is the very day that this paper was presented at the Koç University
conference.
10
In the simplest case, the Rotterdam Rules regulate the relationship between the carrier and the
shipper. Other carrier interests include the “performing parties” that fulfill some of the carrier’s
obligations under the contract of carriage. Other cargo interests include those who succeed to the
shipper’s rights under the contract of carriage. Cf. infra part VI-C.
11
International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading,
Aug. 25, 1924, 120 L.N.T.S. 155 [hereinafter Hague Rules].
12
The phrase “Hague-Visby Rules” describes the Hague Rules, supra note 11, as amended by the
1968 Visby Amendments, Protocol to Amend the International Convention for the Unification of
Certain Rules of Law Relating to Bills of Lading, Feb. 23, 1968, 1977 Gr. Brit. T.S. No. 83 (Cmnd.
6944) (entered into force June 23, 1977). In many countries, the 1968 Hague-Visby Rules have
been further amended by the 1979 Special Drawing Right (SDR) Protocol. Protocol Amending the
66 M.F. Sturley
and the Hamburg Rules13 – but also national14 and regional15 alternatives that
supplement or partially replace those international regimes in some parts of the
world.
The Rotterdam Rules contain no formal “Statement of Principles”,16 but it is still
possible to discern a number of important principles motivating the Convention.
Many of these principles have been evident throughout international transport law
regimes dating back to the Hague Rules. Others are more recent innovations, or
have been applied less regularly over the years. To help understand the Rotterdam
Rules, in this paper I will note a few of these principles, and discuss their impact on
the creation of the new Convention.
2.3 Uniformity
Like its predecessors,17 the Rotterdam Rules were motivated in large part by the
desire to achieve broad uniformity in the law governing the international carriage of
goods. The need for uniformity was implicit or explicit throughout the negotiations,
and this importance is reflected both in the opening clauses of the resolution that
formally adopted the Convention18 and in article 2 of the text. The first opening
clause recalls the General Assembly’s resolution establishing UNCITRAL “with a
mandate to further the progressive harmonization and unification of the law of
International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading,
Dec. 21, 1979, 1984 Gr. Brit. T.S. No. 28 (Cmnd. 9197) (entered into force Feb. 14, 1984).
13
United Nations Convention on the Carriage of Goods by Sea, Mar. 31, 1978, 1695 U.N.T.S. 3
[hereinafter Hamburg Rules].
14
China, for example, adopted a Maritime Code, which came into force in 1993, that draws from
both the Hague-Visby and Hamburg Rules, along with uniquely Chinese solutions to certain
problems. See generally Li (1993). Although China is a particularly prominent example, it is not
the only nation to have made significant modifications to the uniform international texts.
15
For example, the four Nordic countries – Denmark, Finland, Norway, and Sweden – revised their
maritime codes to incorporate major elements from the Hamburg Rules into their pre-existing
Hague-Visby systems. See generally, e.g., Ramberg (1994).
16
Perhaps the closest analogue would be the opening clauses of the resolution that formally
adopted the Convention. See General Assembly Resolution 63/122, supra note 1. These opening
clauses are mentioned from time to time in this paper. See, e.g., infra text following note 18.
Article 2 may also be seen as representing a statement of general principle. It directs those
interpreting the Convention to have “regard . . . to its international character and to the need to
promote uniformity in its application and the observance of good faith in international trade.”
Rotterdam Rules art. 2. See infra notes 19–21 and accompanying text.
17
The value of having uniform international rules to allocate liability for the risk of the loss of or
damage to goods carried by sea has been recognized at least since the nineteenth century. The
International Law Association (the sponsor of the conference at which the original Hague Rules
were adopted) first tackled the subject in 1882. See Sturley, History, supra note 7, at pp. 6–8
(discussing nineteenth century efforts to achieve uniformity).
18
See supra note 16 (discussing the opening clauses).
international trade”; the next clause expresses concern over the current lack of
uniformity; and the fourth and fifth clauses explain why the General Assembly is
convinced that greater uniformity would be beneficial.
Article 2 of the text explicitly directs a court or arbitration panel interpreting the
Convention to have “regard . . . to its international character and to the need to
promote uniformity in its application . . ..”19 Many factors have contributed to the
breakdown in uniformity under prior conventions (such as the Hague and Hague-
Visby Rules). One contributing factor has undoubtedly been the tendency of
national courts to construe those conventions with less concern for achieving
international uniformity in the application of the regime and more concern for
preserving consistency with other aspects of national law.20 Article 2, following the
example of a very similar provision in the Hamburg Rules,21 is intended to counter
that trend.
2.3.1 The Importance of Uniformity
The goal of achieving greater international uniformity is so well-known,22 not only

for maritime law but for any international private law convention, that it does not
require extended discussion here.23 As the US Supreme Court recognized in its last
case construing The Hague Rules, “conflicts in the interpretation of the Hague
Rules not only destroy aesthetic symmetry in the international legal order but
impose real costs on the commercial system the Rules govern.”24
19
Rotterdam Rules art. 2.
20
See generally Sturley (1987).
21
Hamburg Rules art. 3. While the Hamburg Rules expressly refer to the regime’s “international
character” and “the need to promote uniformity” – concepts that article 2 of the Rotterdam Rules
addresses in very similar terms – the Rotterdam Rules also stress “the observance of good faith in
international trade.” Rotterdam Rules art. 2.
22
The importance of international uniformity in the law governing the international carriage of
goods has been widely recognized. See, e.g., Riverstone Meat Co. v. Lancashire Shipping Co. (The
Muncaster Castle), 1961 A.C. 807, 840 (“I think it is very important in commercial interests that
there should be [international] uniformity of construction . . .”) (quoting R.F. Brown & Co.
v. Harrison, 137 L.T. 549, 556, 43 L.T.R. 633 (C.A. 1927) (Atkin, L.J.)); Boyd et al. (2008).
Indeed, both UNCITRAL and the CMI exist to promote uniformity. See General Assembly
Resolution 2205 (XXI) (establishing UNCITRAL with the mandate to further the progressive
harmonization and unification of the law of international trade); CMI Constitution art. 1 (declaring
CMI’s “object . . . is to contribute by all appropriate means and activities to the unification of
maritime law in all its aspects”).
23
For a summary of the arguments and evidence supporting the need for greater uniformity in this
field, see, e.g., Sturley (1995), pp. 553, 556–559 [hereinafter Sturley, Uniformity].
24
Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 537, 1995 AMC 1817, 1824
(1995).
68 M.F. Sturley
Some portion of the cargo transported in international trade will inevitably

be lost or damaged en route. The role of the legal system in this context is to
allocate financial responsibility for those losses. In the process, it influences the
actions of shippers, carriers, and other participants in a transaction. A carrier’s
decision concerning its appropriate level of care25 during carriage will be based
at least in part on its potential liability. Shippers will be similarly influenced in
deciding how carefully goods should be prepared for shipment and the extent
to which they will insure goods. Insurers must decide the terms on which
coverage will be offered, potential buyers of the cargo must determine the
protection that they require, and bankers financing a transaction must know the
extent to which they can depend on a security interest in the goods. And all
these decisions will be based in part on the liability regime that allocates the
risk of loss.
If the law is uniform, all participants will know that their liability (or recovery)
will be the same wherever a dispute is resolved. Results will be more predictable,
litigation will thus be less necessary, and the parties will be able to make their
underlying business decisions in confidence, knowing what law will be applied if
loss or damage occurs. The chairman of the International Chamber of Commerce
(ICC) Bill of Lading Committee clearly expressed the commercial interest in
uniformity when he was advocating for the adoption of the Hague Rules in the
1920s. In testimony favoring the United States’ ratification of the Hague Rules, he
explained:
[I]n the view of the [ICC,] uniformity is the one important thing. It does not matter so much
precisely where you draw the line dividing the responsibilities of the shipper and his
underwriter from the responsibility of the carrier and his underwriter. The all-important
question is that you draw the line somewhere and that that line be drawn in the same place
for all countries and for all importers.26
The practical factors motivating the ICC’s desire for uniformity over 80 years
ago are just as strong today. With uniformity and predictability, the law more
efficiently allocates the risks of cargo loss or damage. At the very least, greater
uniformity tends to keep the law from interfering with the flow of trade.
25
An unsophisticated observer might think that more care is always better than less care, but that is
not true at least in this context. To take an obvious example, a carrier would be foolish to spend
£1000 in extra precautions to ensure that a package worth only £500 arrived safely at its
destination. The legal system should encourage participants to exercise an appropriate level of
care, but that will rarely be the maximum care possible.
26
International Convention for the Unification of Certain Rules in Regard to Bills of Lading for the
Carriage of Goods by Sea: Hearing on Executive E Before a Subcommittee of the Senate
Committee on Foreign Relations, 70th Cong., 1st Sess. 3 (1927) (statement of Charles S. Haight),
reprinted in 3 The Legislative History of the Carriage of Goods by Sea Act and the Travaux
Pre´paratoires of the Hague Rules 327 (Michael F. Sturley ed. 1990).
2.3.2 The Current Status of Uniformity
The current situation is widely regarded as unsatisfactory. The Hague-Visby Rules

provide the dominant international legal regime today, but some major commercial
nations are not parties to that regime. The United States (the nation with the single
largest share of world trade) may be the most prominent example, but it is hardly
alone.27 China (with about a quarter of the world’s population and a growing
proportion of its trade) operates under a Maritime Code that combines selected
elements from the Hague-Visby and Hamburg Rules with unique Chinese provi-
sions.28 Recognizing the problems, individual nations have already begun to
develop their own, non-uniform, solutions.29
The Hamburg Rules entered into force (for the countries that had ratified them)
in 1992. Although over thirty countries are now parties to the Hamburg Rules,30
they represent in the aggregate only a very small proportion of world trade. None of
the major commercial or maritime powers has ratified them. Indeed, a third of the
parties to the Hamburg Rules are land-locked. More significantly, it does not appear
that any major commercial or maritime power is likely to become a party to the
Hamburg Rules at this late date. Despite the vocal advocates who continue to press
for the Hamburg Rules, they simply do not offer any realistic prospect of becoming
the uniform regime that the world needs.
If the Rotterdam Rules are not widely adopted, it is likely to be at least a generation
before the international community would be prepared to again undertake the effort to
reform the law governing sea carriage. In the meantime, national and regional
alternatives31 would be likely to supply the pressing need to update and modernize
the law.32 It is self-evident that these non-uniform responses could not provide the
needed uniformity. Moreover, they could well make the effort to achieve uniformity
more difficult the next time the international community did attempt the task.
2.4 Achieving a Broad Consensus
As noted above,33 the primary goal of the Convention is to harmonize the governing
law when possible. For the Rotterdam Rules to succeed in this respect, nations that
currently adhere to one of the old regimes (such as the Hague, Hague-Visby, or
27
See generally Sturley, Uniformity, supra note 23, at pp. 561–564.
28
See generally Li, supra note 14, at pp. 209–211; Sturley, Uniformity, supra note 23, at
pp. 561–562.
29
See, e.g., Sturley, Uniformity, supra note 23, at pp. 560–570.
30
For a list of the countries that are parties to the Hamburg Rules, see, e.g., 2009 CMI Yearbook
546.
31
Cf. supra notes 14–15, 29 and accompanying text.
32
Cf. infra notes 92–126 and accompanying text.
33
See supra notes 17–21 and accompanying text.
70 M.F. Sturley
Hamburg Rules) – or to a unique national variation of one of the old regimes – will
need to replace their existing laws with the single new regime. Uniformity, by its
very nature, is more valuable the more broadly it is achieved. The Convention seeks
to facilitate this process by proposing compromise solutions that can be accepted by
most nations. The results were occasionally complex34 or inelegant,35 but that was
often the price that needed to be paid to achieve the more important goal.
Achieving a broad consensus sometimes required a delicately balanced compro-
mise on a complex legal issue. Several examples could illustrate this point well, but
I will mention only two. The UNCITRAL Working Group was deeply divided on
the proper approach to take in defining the Convention’s scope of application.36
Some delegates preferred the familiar “documentary” approach that had been
adopted in the Hague Rules and continued in the Hague-Visby Rules.37 Others
favored the “contractual” approach that the Hamburg Rules had introduced to
maritime law.38 And a third group supported a proposed new “trade” approach.39
Chapter 2 of the Convention40 adopted a delicate compromise that drew on the
strengths of each of the three approaches, thus proving acceptable to all three
groups.41
The Working Group was even more deeply divided on a host of separate
questions that relate to the broad issue of defining the basis of the carrier’s liabil-
ity.42 To detail just one aspect of the debate, many were convinced that the
traditional list of carrier defenses should be treated as exonerations from liability
while many others were equally convinced that the carrier defenses should be
nothing more than rebuttable presumptions of non-liability.43 Similarly deep
34
Sometimes it was necessary to adopt a complex solution because the demands of a complex
industry required such a solution. Cf. infra notes 72–91 and accompanying text.
35
Cf. infra note 86 and accompanying text.
36
For a more detailed discussion of the issues and the Working Group’s resolution of those issues,
see Sturley (2005). Prof. Dr. Samim Unan€ is addressing “Scope of Application of Rotterdam
Rules” as part of the present conference.
37
See, e.g., Report of Working Group III (Transport Law) on the Work of Its Fourteenth Session,
} 84, U.N. Doc. A/CN.9/572 (2004) [hereinafter Fourteenth Session Report].
38
See, e.g., id. } 85.
39
See, e.g., id. } 86.
40
Rotterdam Rules arts. 5–7.
41
See, e.g., Fourteenth Session Report, supra note 37, } 89.
42 €
Prof. Dr. Fehmi Ulgener is addressing “Obligations and Liability of Carrier” as part of the
present conference.
43
See, e.g., Report of the Working Group on Transport Law on the Work of Its Ninth Session, } 45,
U.N. Doc. A/CN.9/510 (2002) [hereinafter Ninth Session Report]; Report of Working Group III
(Transport Law) on the Work of Its Tenth Session, U.N. Doc. A/CN.9/525, } 41 (2002) [hereinafter
Tenth Session Report]; Report of Working Group III (Transport Law) on the Work of Its Twelfth
Session, U.N. Doc. A/CN.9/544, } 87, 90, 92, 97, 102, 106, 119, 129 (2003) [hereinafter Twelfth
Session Report]; see generally Sturley, Interim View, supra note 7, at p. 96.
divisions concerned such issues as the burdens of proof,44 the limits of particular
defenses,45 and even whether the traditional “catalogue” of defenses should be
retained at all.46 In the end, article 17 resolved the exoneration-presumption debate
by focusing on the functional effect of each defense without regard to the label
attached to it. That approach became one element of a larger – and again delicately
balanced – compromise that was acceptable to the entire Working Group.47
At other times, the legal analysis was entirely straight-forward but the Working
Group needed to agree on a compromise about how to implement it. For example,
every delegation agreed that the carrier’s liability would be subject to a package or
weight-based limitation,48 that claimants would have a limited period in which to
bring their actions,49 and that a time limit would apply to the receiver’s obligation
to give the carrier notice of non-apparent damage.50 But what would those limits
be? The package and weight-based limitation amounts were particularly difficult to
negotiate,51 but they were ultimately resolved when the Working Group accepted
figures that were much higher than some delegates thought justifiable and much
lower than other delegates had advocated. These figures, in turn, were part of a
larger compromise proposal that thirty-three delegations jointly introduced at the
end of the Working Group’s final session.52 It covered not only the limitation
amounts but also a proposed “expedited amendment” procedure,53 a proposal to
treat “non-localized” loss or damage as if it had occurred on the leg with the highest
limitation amount,54 a proposal to include mandatory national law (along with
44
See, e.g., Tenth Session Report, supra note 43, } 46–56; Fourteenth Session Report, supra note
37, } 23–25, 29–33, 71–73; Report of Working Group III (Transport Law) on the Work of Its
Nineteenth Session, } 73, U.N. Doc. A/CN.9/621 (2007) [hereinafter Nineteenth Session Report].
45
See, e.g., Report of Working Group III (Transport Law) on the Work of Its Thirteenth Session,
U.N. Doc. A/CN.9/552, } 94–98 (2004) [hereinafter Thirteenth Session Report]; Fourteenth
Session Report, supra note 37, } 36–66; Nineteenth Session Report, supra note 44, } 69–70;
Report of Working Group III (Transport Law) on the Work of Its Twenty-first Session, U.N.
Doc. A/CN.9/645, } 54 (2008) [hereinafter Twenty-first Session Report].
46
Cf. infra note 134.
47
See, e.g., Fourteenth Session Report, supra note 37, } 10–80.
48
49
See id. art. 62(1).
50
See id. art. 23(1).
51
For a detailed “interim report” on this negotiation, see Sturley (2007).
52
See Twenty-first Session Report, supra note 45, } 197.
53
See Draft Convention on the Carriage of Goods [Wholly or Partly] [by Sea], U.N. Doc. A/CN.9/
WG.3/WP.101, art. 99 (2007) [hereinafter Draft Convention WP.101]; Draft Convention on the
Carriage of Goods [Wholly or Partly] [by Sea], U.N. Doc. A/CN.9/WG.3/WP.81, art. 99 (2007)
[hereinafter Draft Convention WP.81]. Cf. Hamburg Rules art. 33.
54
See Draft Convention WP.101, supra note 53, art. 62(2); Draft Convention WP.81, supra note
53, art. 62(2).
72 M.F. Sturley
international instruments) within the network provision,55 and the “volume contract”
definition.56 Even after the Working Group accepted this compromise package,57
some delegations were still unhappy with the limitation amounts.58 But the Working
Group had achieved the broadest consensus possible.
On some issues it proved impossible to reach a compromise solution that would
attract sufficient support. When that happened, the contentious subject was gener-
ally dropped from the agenda. The Working Group usually concluded that it was
more important to complete the project and address the core issues than to attempt
more than could be accomplished at the risk of becoming so bogged down that the
entire project failed. The early drafts considered by the Working Group, for
example, had an entire chapter addressing freight.59 During the second reading,
however, the Working Group agreed to delete most of that chapter.60 Other subjects
were similarly considered and deleted.61 Indeed, the process of deleting contentious
proposals continued to the very end of the negotiations. At the 2008 Commission
meeting, when UNCITRAL approved what ultimately became the final draft of
the Convention, it proved sufficiently difficult to reach a consensus on two
55
At the 2007 spring session in New York, there had been strong support in the Working Group for
a compromise proposal to extend the network provision by allowing a country to declare when
ratifying the Convention that it would treat its own mandatory national law in the same way as
another international instrument when applying the provision that ultimately became article 26 of
the Rotterdam Rules. See Nineteenth Session Report, supra note 44, } 189–190. At the 2007 fall
session in Vienna, however, the Working Group “reverse[d] its decision.” Report of Working
Group III (Transport Law) on the Work of Its Twentieth Session, } 163(e), U.N. Doc. A/CN. 9/642
(2007); see also id. } 166.
56
See Rotterdam Rules art. 1(2). The “volume contract” definition had been highly controversial
during the Working Group’s negotiations. See Report of Working Group III (Transport Law) on
the Work of Its Seventeenth Session, } 154–170, U.N. Doc. A/CN.9/594 (2006); Nineteenth
Session Report, supra note 44, } 161–172.
57
See Twenty-first Session Report, supra note 45, } 196–203.
58
Two delegations complained that the limitation amounts were too high. See id. } 199. Two others
argued that they were still too low, and that other aspects of the compromise unduly favored
carriers. See id. } 200–201.
59
See Preliminary Draft Instrument on the Carriage of Goods by Sea, U.N. Doc. A/CN.9/WG.III/
WP.21, ch. 9 (arts. 9.1–9.5) (2002) [hereinafter Preliminary Draft Instrument]; Draft Instrument
on the Carriage of Goods by Sea, U.N. Doc. A/CN.9/WG.3/WP.32, ch. 9 (arts. 41–45) (2003)
[hereinafter Draft Instrument WP.32].
60
See Thirteenth Session Report, supra note 45, } 164. The only provision that survived to the final
text became article 42 of the Convention, which addresses “freight prepaid” clauses. Cf. Draft
Instrument WP.32, supra note 59, art. 44 (addressing “freight prepaid” clauses). A provision
addressing “cesser” clauses, which had originally been in the freight chapter, see id. art. 43(2),
survived almost until the end, but it was finally deleted by the Commission. See infra note 62 and
accompanying text.
61
See, e.g., Report of Working Group III (Transport Law) on the Work of Its Fifteenth Session,
} 154–155, U.N. Doc. A/CN.9/576 (2005) [hereinafter Fifteenth Session Report] (deciding to
delete Draft Instrument WP.32, supra note 59, art. 75, which addressed lis pendens, because
“a rule on lis pendens would be extremely difficult to agree upon, given the complexity of the
subject matter and the existence of diverse approaches . . . in the various jurisdictions”).
relatively minor articles that the Commission decided to delete them entirely rather
than take the risk that the controversy on either one of them might undermine the
Convention.62
It proved impossible to reach a broadly acceptable compromise on the closely
related issues of jurisdiction and arbitration63 because a number of countries held
very strong but conflicting views on the proper resolution of the subject. At one
extreme, nations and industry groups sympathetic to carrier interests, along with
nations that are commonly named in choice-of-court and arbitration agreements,
argued that the Convention should include no provision on jurisdiction or arbitra-
tion (except, perhaps, one that routinely enforced choice-of-court and arbitration
agreements). Not surprisingly, the United Kingdom was a prominent member of
this coalition.64 At the other extreme, nations and industry groups sympathetic to
cargo interests, along with nations that regulate jurisdiction and arbitration domes-
tically or as parties to the Hamburg Rules,65 insisted that the Convention should
follow the example of the Hamburg Rules to protect a cargo claimant’s ability to
seek recovery in a reasonable forum of its choice (notwithstanding a choice-of-
court or arbitration agreement).66 Between those two extremes, a number of nations
sought a more balanced compromise between cargo and carrier interests.67
Although a broadly acceptable compromise was impossible, jurisdiction and
arbitration were too important to be completely omitted from the Convention.68 The
solution was not only to harmonize the law to the extent possible in independent
62
See Commission Report, supra note 1, } 45–53 (deciding to delete Draft Convention WP.101,
supra note 53, art. 13, which addressed transport beyond the scope of the contract of carriage); id.
} 109–110 (deciding to delete Draft Convention WP.101, supra note 53, art. 36, which addressed
cesser clauses).
63
Asst Prof. Dr. Zeynep Derya Tarman is addressing “Jurisdiction and Arbitration” as part of the
present conference.
64
See, e.g., Comments by the United Kingdom of Great Britain and Northern Ireland Regarding
Arbitration, U.N. doc. no. A/CN.9/WG.III/WP.59 (2005).
65
See Hamburg Rules arts. 21–22.
66
Some of the discussion in favor of a Hamburg-style approach in the jurisdiction context is
summarized at Ninth Session Report, supra note 43, } 61; Fourteenth Session Report, supra
note 37, } 132; Fifteenth Session Report, supra note 61, } 158; Report of Working Group III
(Transport Law) on the Work of Its Eighteenth Session, } 254, U.N. Doc. A/CN.9/616 (2006)
[hereinafter Eighteenth Session Report]. For the arbitration context, see, e.g., Fourteenth
Session Report, supra note 37, } 155; Report of Working Group III (Transport Law) on the
Work of Its Sixteenth Session, } 89, U.N. Doc. A/CN.9/591 (2006) [hereinafter Sixteenth
Session Report].
67
Some of the discussion in favor of a compromise approach in the jurisdiction context is
summarized at Fourteenth Session Report, supra note 37, } 135; Fifteenth Session Report,
supra note 61, } 157; Sixteenth Session Report, supra note 66, } 21. For the arbitration context,
see, e.g., Fourteenth Session Report, supra note 37, } 156; Sixteenth Session Report, supra note
66, } 85, 90.
68
One might also say that the Working Group could not even agree to omit jurisdiction and
arbitration from the Convention because some delegations believed so strongly that it needed to be
included.
74 M.F. Sturley
chapters on jurisdiction69 and arbitration,70 but to accommodate those nations that

were not prepared to accept any compromise. Thus the final article in each chapter
permits each nation ratifying (or otherwise becoming a party to) the Convention to
decide for itself whether it will be bound by that chapter.71 The “opt in” solution
proved to be the only acceptable compromise among the three entirely different
positions. The solution met the needs of those countries that firmly believed that
jurisdiction and arbitration needed to be covered, it harmonized the law to the
maximum extent that nations were willing to accept harmonization, and it never-
theless preserved the status quo for those nations that were unwilling to accept any
change. Most importantly, it ensured that the inclusion or omission of these subjects
would not interfere with any nation’s ability to accept the remainder of the
Rotterdam Rules.
2.5 Meeting Industry’s Commercial Needs72
Many have criticized the Hamburg Rules as the product of a political process in
which a majority of those negotiating that convention were more concerned about
achieving political goals than meeting commercial needs.73 Although political
considerations inevitably play a role whenever governments are involved in making
important decisions, and political considerations can manifest themselves in many
forms, the negotiation and drafting of the Rotterdam Rules were particularly
attuned to practical and commercial needs. Indeed the preeminence given to the
industry’s commercial needs when the Rules were negotiated forcefully demon-
strated that UNCITRAL had learned from the Hamburg experience. By recognizing
the importance of meeting industry’s commercial needs, it harkened back to the era
of the Hague Rules (and before), largely abandoning the less pragmatic attitude that
had arisen more recently.
From the beginning, UNCITRAL made a point of reaching out to commercial
interests. Indeed, when the Commission first considered the Transport Law project
it directed the Secretariat to consult with organizations that act on behalf of various
segments of the industry, including the CMI, the ICC, the International Union of
Marine Insurance (IUMI), the International Federation of Freight Forwarders
Associations (FIATA), the International Chamber of Shipping (ICS), and the
69
Rotterdam Rules arts. 66–74.
70
Id. arts. 75–78.
71
See id. art. 74 (jurisdiction); art. 78 (arbitration).
72
The second opening clause of the General Assembly resolution that formally adopted the
Convention, see supra note 16, implicitly recognized the importance of meeting industry’s
commercial needs when it expressed concern “that the current legal regime . . . fails to adequately
take into account modern transport practices”.
73
See generally Frederick (1991), p. 81.
International Association of Ports and Harbours (IAPH).74 Thereafter, representa-

tives from relevant international organizations attended every meeting of the CMI’s
International Sub-Committee,75 and commercial observers were active participants
at every session of the UNCITRAL Working Group.
Commercial interests not only had a seat at the table so that their views could be
heard, but the Working Group listened to those views and took them seriously. Most
of the national delegations that were active in the negotiations either included
expert industry representatives as members of the delegation76 or consulted regu-
larly with industry representatives between sessions.77 When those experts with
practical experience expressed strong views, therefore, the Working Group heard
their message and responded accordingly.
Among other things, this meant that proposals that might have made perfect
sense on a theoretical or logical level were abandoned when it became clear that the
affected industries opposed them. Two examples illustrate that influence particu-
larly well. Under article 19, “maritime performing parties” are liable on the Con-
vention’s terms for their own faults on the same basis as carriers (and receive the
same benefits as carriers).78 Early in the process, the draft text proposed that inland
carriers (non-maritime performing parties) should be subject to the same rule.79 But
that proposal was abandoned80 – and the text was amended to clarify that inland
carriers do not qualify as maritime performing parties81 – when railroads and road
carriers opposed it.82
74
See Report of the United Nations Commission on International Trade Law on the Work of Its
Twenty-Ninth Session, U.N. GAOR, 51st Sess., Supp. No. 17, } 215, U.N. Doc. A/51/17 (1996)
[hereinafter UNCITRAL Twenty-Ninth Session Report], reprinted in 1996 CMI Yearbook 355.
75
See, e.g., Sturley, Interim View, supra note 7, at pp. 69–72 (describing the work of the CMI’s
International Sub-Committee on Issues of Transport Law). Reports of individual meetings of that
Sub-Committee are reprinted in the CMI Yearbook. See, e.g., Report of the First Meeting of the
International Sub-Committee on Issues of Transport Law, 2000 CMI Yearbook 176.
76
Over the course of the negotiations, the two largest delegations in the Working Group were those
from China and the United States. Each of these countries had a large delegation precisely because
it included industry experts to advise the government representatives. Even some of the smaller
delegations also included industry experts that attended the meetings. Denmark, for example,
regularly sent two delegates to the Working Group – one a government representative and one
from industry.
77
Although China and the United States included industry experts on their delegations, see supra
note 76, each country also prepared for Working Group sessions by meeting with an even broader
range of industry experts. Most other countries that were particularly active in the negotiations also
consulted regularly with industry experts at home.
78
79
See, e.g., Preliminary Draft Instrument, supra note 59, art. 6.3.1(a); Draft Instrument WP.32,
supra note 59, art. 15(1).
80
See Twelfth Session Report, supra note 43, } 23, 161.
81
82
See, e.g., Proposals by the International Road Transport Union (IRU), U.N. Doc. A/CN.9/WG.
III/WP.90, at } 1 (2007); Drawing up of a New Convention on the Carriage of Goods by Sea
and Extending This Convention to Door-to-Door Transport Operations (Comments on Behalf of
76 M.F. Sturley
Under article 80, “volume contracts” are subject to the Convention as a default
rule but the parties have the freedom of contract to opt out of most of that coverage
if they so choose.83 At a “Round Table” discussion in London (attended by a
number of delegates),84 it was informally suggested that the text would be more
logical if charterparties were subject to the same rule. That suggestion was also
quickly abandoned when several non-governmental organizations representing
carrier interests expressed their strong opposition.85
As a result of the pragmatic process and the focus on pragmatic goals, the
Rotterdam Rules are very much a pragmatic convention. Some academic observers
have criticized them for being inelegant or complex,86 and that may be a fair
comment (although not fair criticism). The goal was never to achieve elegance
and simplicity. The guiding principle was to improve the law so that it can better do
the job that it is supposed to do – facilitate maritime commerce.
When considering the industry’s commercial needs, it is important not to take
too narrow a view. Advocates for a particular commercial interest might first
consider whether the Convention will help or hurt a party in litigation once a loss
has occurred. Thus a lawyer who regularly represents P&I clubs defending cargo
claims might evaluate whether a carrier’s liability is likely to be higher or lower in a
typical case, just as a lawyer who regularly represents cargo insurers in subrogation
actions might evaluate whether recoveries are likely to be higher or lower in typical
cases.87
The underlying business interests, however, should recognize that reforming the
cargo liability regime is not a zero-sum game in which winners must be balanced
against losers. Shippers and carriers alike will benefit from a more modern Con-
vention that provides answers to the questions arising in practice, just as shippers
and carriers alike will benefit from greater uniformity. That point was made
particularly well by Knud Pontoppidan when he discussed the final text of the
Rotterdam Rules at the CMI’s most recent conference in October 2008.88
the IRU) in Compilation of Replies to a Questionnaire on Door-to-Door Transport and Additional

Comments by States and International Organizations on the Scope of the Draft Instrument, U.N.
Doc. A/CN.9/WG.III/WP.28, at p. 43 (2003); Comments on Behalf of the Association of American
Railroads (AAR) Relating to the Preliminary Draft Instrument on the Carriage of Goods by Sea in
Compilation of Replies, supra, at p. 32. For a good illustration of the influence on this issue that
the railroads exerted over an individual delegation, see Proposal of the United States of America
on the Definition of “Maritime Performing Party,” U.N. Doc. A/CN.9/WG.III/WP.84, } 1–2
(2007).
83
84
See generally Sturley (2008a) 461, 473 & nn.133–134 (describing the London Round Table)
[hereinafter Sturley, Transport Law for the Twenty-First Century].
85
The traditional charterparty exclusion was accordingly retained. See Rotterdam Rules art. 6.
86
See, e.g., Tetley (2008), p. 625, 626.
87
Alternatively, some lawyers on both sides are likely to consider the impact that the new
Convention will have on their own practices, with less regard for their clients’ best interests.
88
See Pontoppidan (2009), p. 282. Mr. Pontoppidan is the Executive Vice-President of AP Moller-
Maersk AS.
He expressly acknowledged some of the many ways in which the Rotterdam Rules
impose greater responsibility on carriers (as compared to the Hague-Visby
regime),89 including the loss of the navigational fault exception90 and the large
increase in the package and weight limitation amounts.91 But he nevertheless
strongly supported the prompt ratification of the new Convention because the
benefits to carriers of greater uniformity under a modern regime outweigh the
greater burdens that the Rotterdam Rules place on carriers such as Maersk.
2.6 Updating and Modernizing the Law92
One primary purpose of the Rotterdam Rules is to update and modernize the
existing legal regimes that govern the carriage of goods (which includes filling in
some of the gaps that have been identified in practice over the years). One of the
ways in which the Rotterdam Rules update and modernize the law is to expand the
range of issues addressed by the Convention. Even with this broader coverage,
however, it is important to recognize that the Rotterdam Rules are still limited in
their scope.
2.6.1 Updating the Outdated Regimes
As many observers have recognized, all the existing regimes are significantly in
need of modernization. The Visby Protocol, which is over 40 years old, is seriously
dated.93 It was negotiated in the early days of the container revolution94 when
contracts for door-to-door multimodal transport were not yet the norm. Moreover, it
did not overhaul the Hague Rules (which were then already over 40 years old), but
instead amended them in limited respects.95 The core of the Hague-Visby regime is
not the 1968 Visby Protocol but the 1924 Hague Rules, which were not particularly
89
See 2009 CMI Yearbook at pp. 287–288.
90
Compare Rotterdam Rules art. 17 with Hague-Visby Rules art. 4(2)(a).
91
Compare Rotterdam Rules art. 59(1) with Hague-Visby Rules art. 4(5).
92
The second and fourth opening clauses of the General Assembly resolution that formally adopted
the Convention, see supra note 16, recognized the goal of updating and modernizing transport law,
including filling the gaps that exist under current law.
93
See, e.g., van der Ziel (2002), p. 265.
94
See generally Levinson (2006) (discussing the impact of the container revolution); Cudahy
(2006) (same).
95
See generally Sturley, Transport Law for the Twenty-First Century, supra note 84, at
pp. 466–467 (discussing the negotiation of the Hague-Visby Rules).
78 M.F. Sturley
“modern” even in the 1920s.96 The Hamburg Rules are only 10 years younger, and
in any event they did very little to update the Hague-Visby Rules.97
The Hamburg Rules admittedly introduced some innovations that proved influ-
ential in the latest negotiations. The most obvious may have been the elimination of
the navigational fault exception found in article 4(2)(a) of the Hague and Hague-
Visby Rules.98 More significant innovations were expanding the scope to cover
inbound and outbound shipments,99 and introducing special rules for jurisdiction
and arbitration that sought to guarantee a cargo claimant’s right to have claims
resolved in a convenient forum.100 On a more technical level, the Hamburg Rules
distinguished between the “carrier” (i.e., the person that undertakes to transport the
goods) and a person that actually performs the carriage,101 covered contracts of
carriage in which no bill of lading had been issued,102 recognized paperless
transactions,103 and expressly addressed liability for delay.104
Unfortunately, the Hamburg Rules were also noteworthy for what they failed to
do. More than two decades into the container revolution (and the accompanying
growth of door-to-door multimodal transport), for example, the Hamburg Rules
expanded the Hague and Hague-Visby tackle-to-tackle scope only to port-to-port
coverage.105 Although ships increasingly carried dangerous goods that were not
even contemplated when the Hague Rules were negotiated, the Hamburg Rules’
96
The Hague Rules were substantially based on a 1910 Canadian statute that was modeled on the
1893 Harter Act, which was passed to address problems that began to arise at the beginning of
the steam era. See generally Sturley, History, supra note 7, at pp. 4–17 (discussing situation in the
nineteenth and early twentieth centuries).
97
On the two critical issues of facilitating e-commerce and addressing the needs of multimodal
transport, the Hamburg Rules did nothing and next to nothing. See generally Sturley, Transport
Law for the Twenty-First Century, supra note 84, at pp. 468–469 (discussing some of the
limitations of the Hamburg Rules). The Hamburg Rules’ response to the container revolution
was little different than Hague-Visby’s. See id. at 468 & nn.80–82 (comparing the Hague-Visby
and Hamburg Rules).
98
See Hamburg Rules art. 5(1).
99
See Hamburg Rules art. 2(1). Although the CMI’s draft of the Visby Protocol called for
expanding the scope to cover inbound and outbound shipments, the diplomatic conference rejected
this proposal. See generally Sturley, Transport Law for the Twenty-First Century, supra note 84, at
pp. 466–467 (discussing the negotiation of the Hague-Visby Rules).
100
See Hamburg Rules arts. 21–22.
101
Hamburg Rules art. 1(2) recognizes the “actual carrier.” See also id. art. 10. The concept is
expanded in the Rotterdam Rules as the “performing party.” See Rotterdam Rules art. 1(6). Assoc.
Prof. Dr. Kerim Atamer is addressing “Identity of Carrier and Performing Party” as part of the
present conference.
102
See Hamburg Rules art. 1(6); see also id. art. 18.
103
The Hamburg Rules did not anticipate e-commerce, of course, but they did recognize that
telegrams and telexes should be recognized as “writings.” See id. art. 1(8).
104
See id. art. 5(1)-(2).
105
See id. art. 4; see also id. art. 1(6) (effectively excluding inland portion of multimodal contracts
from coverage).
treatment of shippers’ liability is not substantially different from the Hague treat-
ment.106
The Rotterdam Rules address the prior conventions’ failure to keep pace with
modern business practices in a number of specific ways. While none of the existing
regimes facilitate electronic commerce, for example, the Rotterdam Rules address
this modern trend not only with a separate chapter devoted to the subject107 but
throughout the text.108 While none of the existing maritime regimes address the
rights and responsibilities of the person with the right to control the goods, the
Rotterdam Rules include a separate chapter to fill this gap.109 While the existing
regimes govern on a tackle-to-tackle110 or port-to-port111 basis, failing to address
the modern needs of multimodal contracts, the Rotterdam Rules instead apply on a
door-to-door basis if the parties’ contract runs that far.112
Updating and modernizing the law was not simply a guiding principle for
UNCITRAL’s Transport Law project, the entire project grew out of the perceived
need to update and modernize. The initial seeds were planted in the context of
UNCITRAL’s Electronic Data Interchange (EDI) project. In June 1996, as part of
the EDI project, the Commission discussed a proposal to
review . . . 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 has so far been
achieved.113
In conjunction with this discussion, the Commission noted:

[E]xisting national laws and international conventions left significant gaps regarding issues
such as the functioning of the 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 the entities that provided financing to a party to the contract of
carriage.114
106
See id. arts. 12–13.
107
See Rotterdam Rules arts. 8–10 (chapter 3).
108
See generally, e.g., Alba (2009) (discussing provisions of the Convention that facilitate elec-
tronic commerce).
109
See generally, e.g., van der Ziel (2009) (discussing the Convention’s treatment of the right of
control and the controlling party). Prof. Dr. van der Ziel is addressing “Right of Control and
Controlling Party” as part of the present conference.
110
See Hague-Visby Rules art. 1(e).
111
See Hamburg Rules art. 4; see also id. art. 1(6) (effectively excluding inland portion of
multimodal contracts from coverage).
112
See generally, e.g., Fujita (2009), p. 349 (discussing the Convention’s comprehensive treatment
of multimodal contracts).
113
UNCITRAL Twenty-Ninth Session Report, supra note 74, } 210, reprinted in 1996 CMI
Yearbook 354.
114
Id.
80 M.F. Sturley
The Commission accordingly authorized the UNCITRAL Secretariat to start

gathering information on these matters with a view to deciding “on the nature and
scope of any future work that might usefully be undertaken by [UNCITRAL].”115
With this mandate, the Secretariat invited the CMI to begin the preparatory work
for a new convention and the project was underway.
2.6.2 Expanding the Range of Issues
Adequately updating transport law requires a much broader convention than the
Hague, Hague-Visby, or Hamburg Rules. Many provisions in the final text of the
Rotterdam Rules illustrate the extensive need to update current law. Chapters 3,116
9,117 10,118 and 11119 address issues that have been entirely omitted from prior
maritime conventions. Chapter 8 resolves issues concerning transport documents
and electronic transport records that have created real problems in practice but that
prior conventions did not include.120 Even on liability issues, the Rotterdam Rules
cover a broader range of issues. Chapter 7 resolves issues of shipper liability more
fully than prior maritime conventions,121 and chapter 5 addresses not only the
carrier’s liability but also the liability of maritime performing parties.122
The need to update the law to facilitate electronic commerce explains a large
share of the new subjects covered by the Rotterdam Rules. Industry is moving in the
direction of greater e-commerce, but current law impedes that progress to the extent
that the law fails to furnish a framework that provides an adequate basis for
e-commerce (however it may develop). Chapter 3 takes an important step by permit-
ting the use of electronic transport records if the parties wish to use them, but that
115
Id. } 215, reprinted in 1996 CMI Yearbook 355.
116
Chapter 3, which consists of articles 8–10, addresses electronic transport records, a subject that
was not even contemplated when the prior maritime conventions were negotiated. Assoc. Prof.
Dr. Hakan Karan is addressing “Transport Documents and Electronic Transport Records” as part
of the present conference.
117
Chapter 9, which consists of articles 43–49, addresses delivery, a key concept that prior
maritime conventions left undefined. Article 4(2) of the Hamburg Rules comes closest to
providing any useful guidance.
118
Chapter 10, which consists of articles 50–56, addresses the rights of the controlling party,
a concept that prior maritime conventions did not recognize. Prof. Dr. van der Ziel is addressing
“Right of Control and Controlling Party” as part of the present conference.
119
Chapter 11, which consists of articles 57–58, addresses the transfer of rights, a subject beyond
the scope of prior maritime conventions that has generally been governed by national law.
120
Compare Rotterdam Rules arts. 35–42 with Hague Rules arts. 3(3)-(5), 3(7); Hague-Visby
Rules arts. 3(3)-(5), 3(7); Hamburg Rules arts. 14–18.
121
Compare Rotterdam Rules arts. 27–34 with Hague Rules arts. 4(3), 4(6); Hague-Visby Rules
arts. 4(3), 4(6); Hamburg Rules arts. 12–13. Prof. Tomotaka Fujita is addressing “Obligations and
Liability of Shipper” as part of the present conference.
122
See Rotterdam Rules arts. 1(7), pp. 19–20.
solves only part of the problem. Before commercial parties will make the investment
necessary to rely on e-commerce substitutes for bills of lading, they will need to know
that the law provides predictable answers to such issues as the rights of the controlling
party and transfer of rights – issues that Chaps. 10 and 11 now address.123
The Rotterdam Rules’ wider period of carrier responsibility – full door-to-door
coverage (rather than tackle-to-tackle coverage under the Hague and Hague-Visby
Rules or port-to-port coverage under the Hamburg Rules) when the contract of
carriage extends that far124 – is similarly a pragmatic innovation that is necessary to
modernize the law. Separate legal regimes for each leg of a multimodal journey
may have made sense in the days when each leg was performed under a different
contract, but the commercial world has long since moved past that business model.
It is time for the legal community to catch up with commercial reality. As the
Supreme Court of the United States recently observed in the context of a multi-
modal bill of lading, “[c]onfusion and inefficiency will inevitably result if more
than one body of law governs a given contract’s meaning.”125 Thus the Rotterdam
Rules provides that its legal regime will govern the relationship between the shipper
and the carrier (the two contracting parties) throughout the entire performance of a
multimodal contract that includes appropriate carriage by sea.126
2.6.3 Limitations on the Scope of the Rotterdam Rules
Although the Rotterdam Rules are much broader than prior maritime conventions, it
is nevertheless important to recognize that the Convention is still limited. Most
obviously, the scope is limited to the transportation issues that arise out of the
shipper-carrier relationship. The Convention does not address issues of property
law, for example. Chapter 10 identifies the party that has the power to give instruc-
tions to the carrier,127 but it does not address who has a property interest in the
goods. Similarly, the Convention does not address issues of agency law. Article 19
123
Many of the other new provisions in the Rotterdam Rules were also necessary to update the law.
Article 80’s treatment of volume contracts was controversial because of the policy choices that
UNCITRAL made, but some treatment of volume contracts (and other contractual forms that did
not previously exist in common practice) was necessary to bring the law into the twenty-first
century. We no longer live in an era when bills of lading and charterparties are the sole contracts of
carriage in everyday use. Cf. Rotterdam Rules arts. 1(1) (providing a “contract of carriage”
definition that is not limited to bills of lading and similar documents of title), 6(1)(b) (providing
for contracts other than charterparties that provide for the use of a ship or any space thereon).
124
Compare Rotterdam Rules art. 12 with Hague Rules art. 1(e); Hague-Visby Rules art. 1(e);
Hamburg Rules art. 4(1).
125
Norfolk Southern Railway Co. v. James N. Kirby, Pty Ltd., 543 U.S. 14, 29, 2004 AMC 2705,
2715 (2004).
126
Of course, the contract must otherwise satisfy the scope-of-application requirements.
See Rotterdam Rules arts. 5–7.
127
See supra note 118 and accompanying text.
82 M.F. Sturley
establishes a cargo claimant’s right to recover from a maritime performing party,128

but nothing in the Convention addresses the relationship between the carrier and its
performing parties (except to the extent that their relationship is established by a
contract of carriage that itself satisfies the requirements of chapter 2129).
Indeed, it would be illogical for the Rotterdam Rules to address issues such as
property and agency. The Convention is intended to govern the contractual rela-
tionship between carriers (along with some related parties, such as maritime
performing parties) and shippers (along with parties that derive their rights from
shippers, such as consignees and controlling parties). Like its predecessors, it does
not govern relationships between cargo interests, such as the relationship between
two shippers or the relationship between a shipper and a consignee. Nor does it
govern relationships between two carrier interests. Property issues generally arise in
the context of the relationship between a seller (often the shipper in the transport
contract) and a buyer (often the consignee) or lender (often the holder of a
negotiable transport document). Agency issues generally arise in the context of
the relationship between the principal parties and their subcontractors.
Although the Rotterdam Rules are strictly limited in their scope to the shipper-
carrier relationship, they do not govern every aspect of even that relationship. Most
obviously, the Convention does not govern the shipper’s obligation to pay freight,
which is one of the core obligations under the contract. Even for subjects that are
within the Convention’s ambit, a great many specific issues are left to national law.
For example, article 17 addresses burdens of proof but it does not address the
standard of proof. Thus it is left to otherwise applicable law to determine whether a
party must carry its burden with a preponderance of the evidence, clear and
convincing evidence, proof beyond a reasonable doubt, or some other standard.
Similarly, the application of the Convention turns on the existence of a contract for
carriage, but issues of contractual validity are left to otherwise applicable law. In
any action to recover damages under the Convention, central issues may include
causation, foreseeability, and the plaintiff’s right to sue, but once again the Con-
vention does not address those issues.
2.7 Evolutionary Development of the Law
If we pay attention to the big picture, the changes to existing law are not (and were
not intended to be) earth-shaking. The Rotterdam Rules are deliberately evolution-
ary, not revolutionary. The focus is on updating and modernizing the existing legal
128
Assoc. Prof. Dr. Kerim Atamer is addressing “Identity of Carrier and Performing Party” as part
of the present conference.
129
It is very common for an NVOC to contract with a shipper for a multimodal carriage with a sea
leg and then sub-contract with an ocean carrier to perform that sea leg. To the extent that the other
requirements of chapter 2 are satisfied, both the multimodal contract (in which the NVOC is the
carrier) and the sub-contract for the sea leg (in which the NVOC is the shipper) are subject to the
Convention.
regimes that govern the carriage of goods,130 filling in some of the gaps that have
been identified in practice over the years,131 and harmonizing the governing law
when possible.132 Indeed, the Working Group rejected proposals to address more
revolutionary subjects (or at least more controversial subjects on which harmoniza-
tion would have been difficult).133
The Rotterdam Rules were not negotiated and drafted in a vacuum. Many
provisions in the Convention were included either to preserve the jurisprudence
that has developed during decades of experience with the Hague and Hague-Visby
Rules134 or to avoid any implication that changes may have been intended by the
deletion of a well-known provision.135 Even the entirely new provisions were
written with an eye on the years of practice under the existing regimes.136
To be sure, particular aspects of the Convention will involve more significant
changes for some countries than for others. To the extent that generalization is
possible, the Rotterdam Rules draw largely on the Hague-Visby and Hamburg
Rules, incorporating significant elements from each. Those countries that have
already adopted a national law incorporating major Hague-Visby and Hamburg
elements are therefore less likely to see significant changes in their legal systems
under the new regime (although from the very nature of a compromise, every
country can expect some significant changes to be made). On the other hand,
130
131
See supra text after note 92.
132
133
134
Article 17(3), for example, preserves most of the familiar catalogue of defenses that was
originally included in article 4(2) of the Hague Rules – despite frequent debates over whether
such a list is necessary. See, e.g., Tenth Session Report, supra note 43, } 39; Twelfth Session
Report, supra note 43, } 117–118; Fourteenth Session Report, supra note 37, } 35; Nineteenth
Session Report, supra note 44, } 68. The Nordic countries have gone so far as to eliminate most of
the catalogue from their domestic Hague-Visby legislation on the ground that it is unnecessary.
See generally, e.g., Ramberg, supra note 15, at 1223 (explaining that the elimination was not a
substantive change because the general fault provision would preserve the omitted defenses in
any event). But UNCITRAL for the most part retained the catalogue on the grounds that it did
no harm in countries in which it was unnecessary and provided a real benefit in those countries
that had a well-developed jurisprudence under the catalogue. See, e.g., Tenth Session Report,
supra note 43, } 39; Twelfth Session Report, supra note 43, } 118; Fourteenth Session Report,
supra note 37, } 35.
135
Article 79(1)(c), for example, preserves the ban on benefit-of-insurance clauses that was
originally included in article 3(8) of the Hague Rules. See also, e.g., Hamburg Rules art. 23(1).
Benefit-of-insurance clauses have not been a problem in practice for over ninety years. See Sturley
(2008b), } 165, at pp. 16–28 & n.2 (7th rev. ed.). But UNCITRAL did not wish to risk resurrecting
the problem by repealing the well-established prohibition.
136
Article 24, for example, largely abrogates the common-law deviation doctrine. Although no
similar provision appears in prior maritime conventions, that article is a direct response to the
practice that has developed in some countries under prior law. See, e.g., Thirteenth Session Report,
supra note 45, } 100–102.
84 M.F. Sturley
those countries that still adhere to the Hague Rules are likely to see greater
changes.
Because the Rotterdam Rules are built on existing foundations, very little about
them is completely new. One of the most visible reforms – elimination of the
heavily criticized “navigational fault” exception137 – is not even a change in law for
those countries that have adopted the Hamburg Rules138 (and it will not represent
much of a change in practice in those countries whose courts rarely uphold the
defense139). Perhaps the most significant change in the new Convention is extend-
ing the period of responsibility (in appropriate cases) to full door-to-door cover-
age.140 Although that innovation is not currently in force in other transport law
conventions, it is still not particularly remarkable. Courts have for decades been
upholding contractual clauses that extend the maritime regime inland.141 The
Rotterdam Rules simply take this common commercial choice and give effect to
it with the force of the Convention. Even the volume contract provision,142 which
was long controversial within the Working Group, grows out of the recognition in
the Hague, Hague-Visby, and Hamburg Rules that some contracts in which the
parties are more likely to have equal bargaining power (i.e., charterparties) need not
be subject to the regime on a mandatory basis.143
Even with respect to those issues that have been entirely omitted from prior
maritime conventions,144 the Rotterdam Rules were not written on a clean slate.
Although no international uniform law governed those issues, they are still subject
to legal regimes (generally under domestic law). That patchwork of conflicting laws
does a poor job of providing international traders with uniform and predictable laws
that can govern their transactions consistently, wherever they do business, but it at
least gave the UNCITRAL Working Group some functioning models on which the
delegates could base new proposals.
137
See Tenth Session Report, supra note 43, } 35–36; see also Sturley, Interim View, supra note 7,
at p. 95 (discussing the Working Group’s early decision to eliminate the navigational fault
defense).
138
See Sturley, Interim View, supra note 7, at p. 95 (noting the Hamburg Rules’ elimination of the
navigational fault defense).
139
See, e.g., Sturley, Uniformity, supra note 23, at p. 577 (noting that “the navigational fault
defense is rarely, if ever, successful in the United States”).
140
Compare Rotterdam Rules art. 12(1) (providing for door-to-door coverage) with Hague-Visby
Rules art. 1(e) (establishing tackle-to-tackle coverage); Hamburg Rules art. 4(1) (establishing port-
to-port coverage). See generally, e.g., Sturley, Interim View, supra note 7, at pp. 76–79 (discussing
the Working Group’s early discussion of the choice between port-to-port and door-to-door
coverage).
141
See, e.g., Norfolk Southern Railway Co. v. James N. Kirby, Pty Ltd., 543 U.S. 14, 2004 AMC
2705 (2004) (upholding inland extension of U.S. COGSA to govern liability for train derailment
on basis of clause paramount in multimodal bill of lading).
142
Rotterdam Rules art. 80.
143
See Hague Rules art. 5; Hague-Visby Rules art. 5; Hamburg Rules art. 2(3).
144
2.8 Conclusion
Looking back at the long process required for the preparation of the Rotterdam
Rules and considering the principles that motivate them, it is tempting to view
ourselves as being at the conclusion of the story. In truth, however, we have
witnessed only the prologue. UNCITRAL has finished drafting the new regime,
the United Nations has adopted the formal Convention, and more than twenty
nations have formally signed it. The next step is for the world’s governments to
decide that their countries should become parties to the Convention. When twenty
nations have done so, the Rotterdam Rules finally enter into force. Then it will be
possible to start witnessing the principles discussed here in the pragmatic real world
in which the Rotterdam Rules were designed to operate.
References
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Maxwell Ltd, Andover
Cudahy BJ (2006) Box boats: how container ships changed the world. Fordham University Press,
New York
Frederick DC (1991) Political participation and legal reform in the international maritime rule-
making process: from the Hague rules to the Hamburg rules. JMLC 22:81
Fujita T (2009) The comprehensive coverage of the new convention: performing parties and the
multimodal implications. Tex. Int’l. L.J. 44:349
Levinson M (2006) The box: how the shipping container made the world smaller and the world
economy bigger. Princeton University Press, Princeton
Li L (1993) The maritime code of the People’s Republic of China. LMCLQ 204:209
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international carriage of goods wholly or partly by sea. CMI Yearb:282
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conflicts of interpretation. Va J Int’l L 27:729
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26:556
Sturley MF (2003) The United Nations Commission on International Trade Law’s Transport Law
Project: an interim view of a work in progress. Tex. Int’l. L.J. 39:65
Sturley MF (2005) Solving the scope-of-application puzzle: contracts, trades, and documents in
the UNCITRAL transport law project. JIML 11:1:22
Sturley MF (2007) Setting the limitation amounts for the UNCITRAL transport law convention:
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Sturley MF (2008a) Transport law for the twenty-first century: an introduction to the preparation,
philosophy, and potential impact of the Rotterdam Rules. JIML 14:461
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Sturley MF, Fujita T, van der Ziel G (2010) The Rotterdam Rules: the U.N. convention on
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Tetley W (2008) Some general criticisms of the Rotterdam rules. JIML 14:626
van der Ziel G (2002) The UNCITRAL/CMI draft for a new convention relating to the contract of
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van der Ziel G (2009) Chapter 10 of the Rotterdam rules: control of goods in transit. Tex. Int’l. L.J.
44:375
Chapter 3
The Scope of Application of the Rotterdam
Rules and Freedom of Contract
€
Samim Unan
Abstract Scope of application of the Rotterdam Rules is one of the most discussed
issues. The Rotterdam Rules use maritime-plus approach by extending the period of
responsibility of the carrier beyond tackle-to-tackle and port-to-port while still
allowing the parties to agree on the otherwise. The Rules are applied both for
inbound and outbound traffic while requiring that both the entire transport and sea
leg must be international. Most importantly Rotterdam Rules cover not only liabil-
ity issues but contract of carriage extensively.
3.1 Introduction
The scope of application and the freedom of contract are among the most debated
issues concerning the “Rotterdam Rules”.
Every approach to a legal problem must commence with establishing the appli-
cable rules. Therefore the first thing to consider in relation to this new Convention is
to determine if a particular issue should be subject to the Rotterdam Rules (or under
which conditions these Rules should be applied).
Once it is established that a specific transportation issue falls within the scope of
the Rotterdam Rules, the next task would be to ascertain the extent to which the
principle of freedom of contract can enable the parties to derogate for that specific
transportation issue from the operation of the Rules.
On the other hand, the scope of application of the Rotterdam Rules would also
have to be clarified in relation to other international regulations that cover the
carriage of goods.
The scope of the application of the Rotterdam Rules will be examined below within
the framework of the foregoing considerations. Additionally, the compulsory nature
€
Prof. Dr. S. Unan
Galatasaray University, Istanbul, Turkey
and
Istanbul Bilgi University, Turkey
e-mail: asamim@unan.av.tr
88 €
S. Unan
of these international regulations will also be examined briefly, taking into account
the fact that it constitutes an important issue in relation to the scope of application.
3.2 Basic Conditions of Application
The scope of application of the Rotterdam Rules has been set out as a separate section
in chapter 2, which consists of three articles (Articles 5, 6 and 7). Whereas Article 5
states the scope of application generally, Article 6 provides some specific exclusions
and Article 7 extends the application of the Convention to certain related parties.
3.2.1 General Scope of Application (Rotterdam Rules Art. 5)
Article 5 of the Rotterdam Rules reads as follows:

1. Subject to article 6, this Convention applies to contracts of carriage in which the place
of receipt and the place of delivery are in different States, and the port of loading of a
sea carriage and the port of discharge of the same sea carriage are in different States, if,
according to the contract of carriage, any one of the following places is located in a
Contracting State:
(a) The place of receipt;
(b) The port of loading;
(c) The place of delivery; or
(d) The port of discharge.
2. This Convention applies without regard to the nationality of the vessel, the carrier, the
performing parties, the shipper, the consignee, or any other interested parties.
The Rotterdam Rules have been designed as an instrument covering the transport
of goods from “door to door”. Such an approach is much more preferable over the
“port to port” solution of the Hamburg Rules and the “tackle to tackle” solution of
the Hague Rules, which progressively became insufficient for current practical
needs. Moreover, the “door to door” carriage is nowadays the overriding type of
transportation. However, as the Rotterdam Rules were not designed to cover all
types of international multimodal transport, it should not be considered as a
substitute for previous, but not applied, multimodal transport rules (MAN-
KOWSKI, Scope of Application and Freedom of Contract, paper presented at the
Conference The Rotterdam Rules Appraised, September 24–25, 2009, Erasmus
Universiteit Rotterdam (unpublished), V-1, 2 and 3).
Today, it is no longer realistic to divide multimodal transportation, which has
always been regarded as a “whole” by the related parties, into maritime and non-
maritime parts. Besides that, containers are opened and inspected these days outside
the port area on land. As such, the current regulations are far behind the actual
industry practice (MANKOWSKI, V-2).
By way of contrast, the Rotterdam Rules regulate the complete relationship
between the carrier and the shipper. Not only do they regulate the carrier’s liability,
but also set out provisions for the liabilities and responsibilities of the shipper
(MANKOWSKI, III-1).
3 The Scope of Application of the Rotterdam Rules and Freedom of Contract 89
The Rotterdam Rules reflect a compromise between representatives of those

countries that prefer a traditional “port to port” solution, and those, who favour a
complete “multimodal” regulation. The answer to the question whether the Rotterdam
Rules offer more advantage than inconvenience may vary from person to person in the
same way as some people will see a glass half filled with water as either half-full or
half-empty.
In the course of the drafting process of the Rotterdam Rules, three different
approaches regarding their scope of application have been suggested, each based
on, respectively, the
– Transport document issued
– Type of contract
– Type of trade
However, none of those separate approaches was adopted exclusively, and a
mixed regulation has instead been considered as being more appropriate: The
Rotterdam Rules are a mixture of contractual and documental approaches
(HONKA, United Nations Convention on Contracts for the International Carriage
of Goods wholly or partly by Sea, – Scope of Application and Freedom of Contract
– Colloquium on the Rotterdam Rules, Rotterdam September 21, 2009, p. 3). The
transport document is the primary decisive factor in order to determine the scope of
application of the Rules, though the type of the issued document should also be
considered under certain conditions.
Since the Hague and Hague-Visby Rules contain only provisions regarding car-
riage under bills of lading, their applicability has decreased over time due to the
widespread use of sea waybills and electronic documentation. At the point reached
with the Hamburg Rules following on from the Hague and Hague-Visby Rules, the
application of international regulations is not bound to the concept of a transport
document (especially not a negotiable document), but the transport contract deter-
mines the scope of application. From this point of view, it may perhaps even be argued
that the Rotterdam Rules represent a step back. The result is that the Rotterdam
Rules are applied also to carriages under sea waybills, under documents evidencing
only the receipt of the goods by the carrier or under combined transport bills of lading.
In order to understand Article 5 of the Rotterdam Rules properly, it is necessary to
go back first to the definition of the term “contract of carriage”. According to Article 1
(1) of the Rotterdam Rules:
“Contract of carriage” means 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.
The full name officially attached to the Rotterdam Rules has been set as the “United
Nations Convention on Contracts for the International Carriage of Goods Wholly or
Partly by Sea” (hereinafter also referred to as “the Convention”). The word “partially”
is a reference to transport before or beyond the sea carriage. Under the Rotterdam
Rules, the contract of carriage must provide for a section of transport by sea, but other
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modes of transport are not mandatory. Nevertheless, if such additional modes of

carriage were agreed to by the parties, the Rotterdam Rules shall still apply to those
modes as well. But it should not be thought that the Rotterdam Rules apply in every
case of a carriage by sea combined with other segments, to the other transport segment
in the same way as they do to transport by sea. For transport by means other than by
sea, different rules may apply as stated in Articles 26 and 82(a) Rotterdam Rules.
Conversely, transport by sea may also be subject to rules other than the Rotter-
dam Rules according to Article 82(b), (c) and (d).
The reason for the strict requirement of a transport by sea lies in the fact that
most of the multimodal transports have a sea (even ocean) leg on their route. In
most cases, the significant part of the transportation is performed at sea.
Therefore, it is emphasized that the Rotterdam Rules have provisions for “wet
multimodal transport”. The correct expression would be “transport transmari-
time multimodal” (MANKOWSKI, V-3).
To apply the Rotterdam Rules, it is sufficient to agree upon a transport by sea in
the contract of carriage. It is not necessary to actually transport the goods by sea.
Optional transports by sea are also within the scope of the Convention. On the
contrary, if a contract of carriage does not contain a transport by sea but the
transport is nevertheless performed by sea (such as a contract where a 200 container
has been agreed with a forwarder to be transported from Copenhagen to Geneva and
the transport type has been left open and if the forwarder agrees with a ship owner to
transport this container by sea – for this example see STURLEY, Scope of Appli-
cation under the Rotterdam Rules, Illustration 4 – www.ecla.org/documents/scope
of application-illustrations/eclawebcast September 23, 2009), the Rotterdam Rules
should not be applied (but cases where the parties are deemed to have changed the
initial contract to transport by sea should be seen within the scope of application of
the Rotterdam Rules). Therefore, the conclusive element is not the actual transport,
but the contract (MANKOWSKI, V-3; HONKA, pp. 2–3).
If the contract of carriage does not contain any reference to the type of carriage
but the freight corresponds only to the customary freight for transport by sea, it can
be interpreted that the parties have tacitly agreed upon transport by sea (for a good
example of such case see STURLEY, Illustration 2: Ten containers to be carried
from New York to Cape Town and that the agreed total freight for such carriage
does not cover even one of the containers to be carried by air). Another similar
situation is when the parties have not agreed on a transport type, but the carriage
unit agreed upon is customary for transport by sea, it can be concluded by way of
interpretation that the parties have agreed upon transport by sea.
Since the Rotterdam Rules are applied to a contract of carriage, the existence of
such a contract within the meaning of the Convention must first be established.
Article 1(1) Rotterdam Rules states that a contract of carriage must contain provi-
sions for the payment of freight. Therefore, carriages for advertisement purposes
without any payment against carriage are outside the scope of application of the
Rotterdam Rules (STURLEY gives the following example in Illustration 1 regard-
ing such a carriage for advertisement: The carriage by sea of works of art of the
Vatican Art Collection without payment is only for advertisement).
In principle, a towage agreement should neither be considered as a contract of

carriage within the meaning of the Rotterdam Rules. But in a decision of the
Turkish Supreme Court it is stated that provisions pertaining to the contract of
carriage had to be applied to an object – in the concrete case, a ship wreck – that had
sunk during towage in the Black Sea (Yargıtay 11. Hukuk Dairesi – 11th Civil
Chamber of the Turkish Supreme Court – 14.2.2002 E.2001/9499; K. 2002/1223).
In that case the related parties disagreed on the question as to whether the contract
should be qualiﬁed as a contract of towage or as a contract of carriage. This question
arose because the insurance taken for the wreck that was being towed towards a
Turkish port was “cargo insurance”. The defendant cargo insurers rejected the claim
for the loss of the tow on the ground that there was in the insurance contract a total
loss clause obliging the insurers to indemnify only if the carrying vessel was also
lost. However the tugboat had not suffered any loss. The claimant tow-owners
alleged that the clause invoked by the defendant insurers were meaningless in case
of towage and therefore should not apply. The Supreme Court held that the clause
was valid and dismissed the claim. Also, the so-called “heavy lift contracts” (such as
the salvage and taking ashore of a warship which sunk after an explosion) may also
cause debates about their regulation by the Rotterdam Rules.
If the contract of carriage is totally silent with regard to the type of transport, the
Rotterdam Rules must not be applied since in such a case one cannot speak of an
agreement for the carriage by sea. However, it is possible to hold by way of
interpretation that the parties have an implied intention for the carriage by sea –
at least as an option.
Cases where the type of the transport is left undetermined in the contract of
carriage are very common in Turkish practice. Containers to be transported to
Middle Europe are sometimes carried by land, and other times carried by a
combination of land+sea+land. For instance, it is not unusual to transport cargo
from Bursa to Cesme by land, then from Cesme to Trieste by sea (Ro-Ro) and from
Trieste to Germany by land. In such cases the shipper might believe that the
transport will be performed exclusively by land, although the land transport vehicle
is at least for a part of the voyage carried on a ship. In some cases the trailer of such
vehicle is loaded and is received at the end of the sea leg by a trailer truck and the
trailer is connected to this truck to be transported to the final destination point. The
shipper is in many cases not informed about the sea leg of the carriage and there are
no provisions in the contract of carriage in respect of the partial – sea transport.
(Regarding the example above, Rotterdam Rules Article 82(b) and CMR Article 2
(1) state that for damages occurring during sea transit, the CMR will be applied.
However under the conditions cited in CMR Article 2(1) – if the damage occurred
without the fault of the carrier and only due to the nature of the carriage by sea and
during sea transport – the Rotterdam Rules may prevail over the CMR).
The sea leg of the carriage does not have to be the longest leg of the whole
transport. Besides, it is not necessary that the leg(s), other than the sea leg, come
before or after the sea transport (MANKOWSKI, V-3). But it is not clear what is
exactly meant by this. A transport by land in the “middle” of the transport by sea
would be after the first and before the second leg of the sea transport.
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Rotterdam Rules Article 5 adopts the “double internationality” principle. This

principle states that:
– For the sea carriage the port of loading and port of discharge must be in different
states.
– In addition, the place of receipt and place of delivery must be in different states.
A contract which covers two different carriages by sea between the ports of state
A and between the ports of state B (and which has a transport by land beyond the
borders in between) will not be subject to the Rotterdam Rules (for example see
STURLEY, Illustration 10: Contract of carriage covers [i] carriage by sea from
Honolulu to Seattle which are both ports of the United States; [ii] land transport
between Seattle and Vancouver and [iii] carriage by sea from Vancouver to
Montreal which are both ports of Canada). However, it cannot be considered as
an appropriate solution that the Rotterdam Rules are not applied in such cases.
Conversely, cargo that is carried [i] from Berlin to Antwerp by land; [ii] from
Antwerp to Montreal by sea and [iii] from Montreal to Chicago by rail (STURLEY,
Illustration 11) is within the scope of the application of the Rotterdam Rules. The
place of receipt by the carrier of the cargo (Berlin) and the place of delivery to the
consignee (Chicago) are in two different States and also the sea leg of the carriage is
performed between ports of different States (Belgium and Canada).
A classic example to explain the double internationality would be as follows:
A contract of carriage covers a carriage by truck from Vancouver (Canada) to
Seattle (USA) to be loaded onto a ship for Hawaii (USA) where the carriage ends
(MANKOWSKI, II-4). Based on the fact that the sea leg of the carriage is not
international, the Rotterdam Rules will not be applied. During the preparatory works
for the Rotterdam Rules, the tendency was to consider the carriage as a whole in
order to determine the internationality. This tendency changed later and the criterion
of “double internationality” has since been adopted within the meaning of the
Rotterdam Rules. This conceptual change has been based on the assumption that
carriage by sea is mainly undertaken on an international level, while carriage by sea
between two ports of the same state is considered to be rather seldom (MAN-
KOWSKI, II-4). However, Turkey might be mentioned as but one exception to
such assumption, because of the importance of cabotage shipments in that country.
It is now proposed to change the example above as follows: The contract of
carriage covering the land transport of goods form Seattle to Vancouver and from
there by ship to Alaska would not be subject to the Rotterdam Rules (STURLEY,
Illustration 8). Because, although the sea leg of this carriage is between two different
countries (USA–Canada), the place of receipt by the Carrier (USA) and the place of
delivery of the cargo (USA) are in the same State. The double internationality
principle does not (by the wording of the Rotterdam Rules) come within the
application. (“. . .the place of receipt and the place of delivery are in different States,
and the port of loading. . . and the port of discharge . . . are in different States”). Thus
a contract for (maritime) carriage only from Vancouver to Alaska would be subject
to Rotterdam Rules, but the addition of Seattle-Vancouver leg to such carriage
(maritime “plus”) would exclude their application. It seems doubtful whether this
would constitute an appropriate solution.
Conformity with the double internationality condition is not sufficient per se to apply
the Rotterdam Rules. It is also compulsory to have a connection to one of the “Signatory
States”. The Rotterdam Rules explicitly mention such requirement of connection by
providing that the place of receipt for carriage of the cargo (by the carrier or its
representatives) or the port of loading or the port of discharge or the place of delivery
(to the consignee at the end of the carriage) must be in one of the “Signatory States”.
The place of receipt by a carrier for a door-to-door transport is usually a place inland. In
the same way, the place of delivery to the consignee is also usually a place inland.
Those assumptions led to a simplified solution: the Rotterdam Rules shall apply if the
place of receipt of the cargo or the place of delivery to the consignee is in the territory of
a Signatory State. The materialization of one of those conditions shall be sufficient.
A “Signatory State” is a State which has signed, ratified, accepted, approved
the Rotterdam Rules or acceded to the Rotterdam Rules (Rotterdam Rules Art. 88
(2) and (3)) and which has become thereby bound by the international convention
(STANILAND in The Rotterdam Rules, A practical Annotation by BAATZ/
DEBATTISTA/LORENZON/SERDY/STANILAND/TSIMPLIS, 2009, 5-05).
The Rotterdam Rules are applied to inbound and outbound carriages. There is no
difference between goods transported from abroad into the country or from the
country abroad. It is sufficient if the loading or discharging ports are within the
territory of Signatory States. One of the reforms made to the Hague-Visby Rules is
that the discharge port has also become a connection point, which will so extend the
scope of application of the Rotterdam Rules (MANKOWSKI, II-1). If the port of
discharge is subject to the option of one of the parties to the contract of carriage or is
to be chosen among different ports within the same range, it is sufficient that the
discharge port selected is situated within the territory of a Signatory State.
The Rotterdam Rules do not define the term “port”. Here, the generally accepted
meaning of the term should be decisive. As a rule, the “official limits” of a port are
relevant, provided that the port in question is used by ocean vessels (MANKOWSKI,
II-1). Such a port may also be an inland port, if it complies with this criterion (as the
port of Galati in Romania on the Danube River). Since the scope of the Rotterdam
Rules is determined on the basis of the contract of carriage between the relevant
parties, it would not be the actual port of loading or discharge, but the contractual port,
which would prevail in determining the scope of application (MANKOWSKI, II-1).
The place of receipt or the place of delivery of the cargo may be within or outside
the territory of a State. Oil rigs or terminals in open sea can also comply with the
definition of a loading (or discharging) place. Therefore, when an oil search
company makes a “heavy lift” contract with a ship owner in order to carry the oil
search platform by a specially designed vessel from the far shores of Texas to
Nigeria (STURLEY, Illustration 13), this relationship would be subject to the
Rotterdam Rules (provided that the contract in question qualifies as a contract of
carriage in the sense of Rotterdam Rules 1(1)).
The receipt of the cargo by the carrier for transport purposes and the delivery of the
cargo to the consignee mean traditionally the transfer of the possession over the goods
(in the first case by the shipper and in the second by the carrier). Here, too, the contract
and not the current situation shall be relevant. The place of receipt and the place of
delivery will be determined according to the provisions of the contract and the
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application of the Rotterdam Rules will be depend on this determination (MAN-

KOWSKI, II-2; DELEBECQUE, DMF 2006, s. 693). However, it is still open to
discussion as to whether the operations carried out in container terminals are subject to
the Rotterdam Rules or not (MANKOWSKI, II-2, footnote 12 and related text).
The application of the Rotterdam Rules does not depend on the nationality of the
parties or the ship. The parties to the contract of carriage and the carrying vessel may
have the same nationality, which does not prevent the application of the Rotterdam
Rules. It may cause confusion that Art. 5(2) Rotterdam Rules mentions the “nation-
ality of the vessel”, which can either mean the State of registration or the flag State of
the vessel. The best solution is to accept that for the purposes of this provision, both
the State of registration and the flag State are meant so that the Rotterdam Rules will
be applied without having regard to the State in which the vessel is registered or to the
flag she flies (STANILAND, 5-07).
Therefore, where a Chinese shipper contracts with a Chinese carrier, the carriage
of goods from Shanghai to Seattle in order to be delivered to Chinese consignees by a
vessel flying the Chinese flag (STURLEY, Illustration 17), will be subject to the
Rotterdam Rules.
3.2.2 Specific Exclusions from the Application
Art. 6 Rotterdam Rules provides as follows:

1. This Convention does not apply to the following contracts in liner transportation:
(a) Charter parties; and
(b) Other contracts for the use of a ship or of any space thereon.
2. This Convention does not apply to contracts of carriage in non-liner transportation
except when:
(a) There is no charter party or other contract between the parties for the use of a ship
or of any space thereon; and
(b) A transport document or an electronic transport record is issued.
“Liner transportation” has been defined in Art. 1(3) Rotterdam Rules as follows:
“Liner transportation” means a transportation service that is offered to the public through
publication or similar means and includes transportation by ships operating on a regular
schedule between specified ports in accordance with publicly available timetables of
sailing dates.”
As a basic principle, the Rotterdam Rules are applicable to “liner transportation”

but not to “non-liner transportation”. Transportation that is not falling within the
ambit of “liner transportation” has been defined in the Convention (through a rare
method though) as “non-liner transportation”, which is not entirely an adequate
definition. Yet by considering the components of “liner transportation”, one can
define the “non-liner transportation” as a kind of transportation that does not
contain the following elements, being:
– Offered to the public
– Through publication or similar means
– Transportation by ships operating on a regular schedule between specified ports

– With publicly available timetables of sailing dates
While all of the elements above need to be absent for a transportation to be
defined as non-liner, the Drafters of the Rotterdam Rules initially intended that
only the absence of the third component (a service by vessels between specific
ports on a scheduled time) would suffice to define non-liner transportation (STA-
NILAND, 6-02).
Charter party contracts in relation to liner transportation or slot charter and
space charter contracts are not subject to the Rotterdam Rules (MANKOWSKI,
IV; HONKA, p. 4).
Considering the definitions below, the slot and space charter contracts corre-
spond to the “partial charter” contracts (charter party under which any defined space
in the vessel or any specified amount of the vessel’s carrying capacity is left to the
use of the charterer) under Turkish Law.
Space Charter
A voyage charterparty under which the space charterer has the right to use only part of the
vessel’s capacity.
Slot Charter
A time or voyage charter under which the slot charterer has the right to use only a specified
amount of the ship’s container carrying capacity. In container liner trades, such charters
may be reciprocal (“cross slot charters”) between operators/carriers, in order to share
capacity.
If the contract of carriage made with the carrier is within the scope of application of
the Rotterdam Rules, such application does not cease if the carrier concludes further
contracts with sub-contractors who are not subject to the Rotterdam Rules. Therefore,
a “slot charter” contract between a carrier and a sub-carrier does not affect the
application of the Rotterdam Rules between the carrier and the shipper. For example:
A manufacturer enters into a contract with a carrier in order to have transported ten
containers of goods from Shanghai to Rotterdam. The carrier uses a sub-carrier, with
whom he has a pre-existing slot charter contract, to perform the initial contract
(STURLEY, Illustration 11).
The situation is similar for non-liner transportation. However, in order to ensure
a parallel application to the Hague and Hague-Visby Rules, it is stipulated that the
Rotterdam Rules shall apply in cases where a transport document or electronic
transport record is issued provided there is not any charter party relationship
between the parties (HONKA, p. 4).
Contrary to the Hague and Hague-Visby Rules, the Rotterdam Rules are neverthe-
less applied even in the absence of any transport document. In other words, the
Rotterdam Rules do not provide for the issuance of a transport document as a
prerequisite. This is a similarity that the Rotterdam Rules have with the Hamburg
Rules. Therefore the following situation (STURLEY, Illustration 16) would be within
the scope of application of the Rotterdam Rules: For a voyage from Singapore to
Dakar, there is sufficient space on a vessel because one charterer did not fill its
capacity. The ship owner concludes a special (“ad hoc”) last minute contract with a
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shipper that the goods will be delivered in such manner as advised 72 h prior to arrival
to Dakar. There are no transport documents issued. In this example the conditions
set forth in the Art. 5 Rotterdam Rules are met (the carriage is an international
carriage) and there is no question about any “special exemptions” mentioned in
Art. 6 Rotterdam Rules. Especially, there is not any charter party relationship as
mentioned in the Art. 6(1)(a) and 6(2)(b) Rotterdam Rules. Moreover Art.7 (first
sentence) states that the Rotterdam Rules apply to the relationship between the third
party consignee and carrier. The third party consignee is defined in Rotterdam Rules
Article 1(11) as “a person entitled to delivery of the goods under a contract of carriage
or a transport document or electronic transport record”. The relationship between
the third party consignee, who has the right of taking delivery of the goods pursuant
to the “ad hoc” contract of carriage, and the carrier would be subject to the Conven-
tion even if the special contract of carriage does not comply with Art. 6.
The “on demand” carriage, where a special cargo is carried without any charter
party being signed, constitutes the exemption to the rule that carriages made
without transport documents are subject to the Rotterdam Rules. The Rotterdam
Rules apply in such cases only if a contract of carriage in the sense of Art. 1(1)
exists (HONKA, p. 5). For example, a ship owner, who specialises in the carriage of
automobiles, is using his vessel between the East coast ports of the USA and the
West African ports to carry used automobiles. The voyages only take place if the
shippers supply the vessel with sufficient vehicles. The carrier (ship owner) issues a
bill of lading to the shipper as evidence of the carriage relationship (STURLEY,
Illustration 14). In such a case, the Rotterdam Rules apply because, according to
Art. 6(2), although non-liner transportations are outside the scope of application of
the Rotterdam Rules, there is an exemption to that rule where there is no charter
relationship and a transport document is issued. Therefore the example cited falls
within the exemption. Here it is a question of the initial relationship between the
parties to the contract of carriage. But Art. 7 (last sentence) would not apply since
according to Art. 6(2), the contract of carriage is subject to the Rotterdam Rules.
3.2.3 Extension of the Scope of Application for the Benefit

of Certain Parties
The Rotterdam Rules Art. 7 is to the effect that:

Notwithstanding article 6, this Convention applies as between the carrier and the con-
signee, controlling party or holder that is not an original party to the charter party or other
contract of carriage excluded from the application of this Convention. However, this
Convention does not apply as between the original parties to a contract of carriage
excluded pursuant to article 6.
The Rotterdam Rules protect third party consignees in the same way as the
Hague-Visby and Hamburg Rules (HONKA, p. 5).
As emphasized above, the third party transport document-holder for non-liner
transportations is under the protection of the Rotterdam Rules.
On the other hand, regardless of the existence or absence of a transport docu-

ment, third parties that are expressively mentioned in the Convention, also benefit
from the Rotterdam Rules in cases of non-liner transportations. Art. 7 mentions
such protected third parties as “consignee”, “controlling party” or “holder”.
Where a carriage is outside the scope of application of the Rotterdam Rules (for
example because the dispute arose under a slot charter contract), if the transport
document is transferred to a third party, the third party may rely on the Rotterdam
Rules. The following example might illustrate the point: A manufacturer concludes
a contract with a carrier for a liner ship operating between the USA and European
States to use a capacity of 20 containers of that ship for each voyage. For each
container a separate bill of lading is issued (STURLEY, Illustration 15). It shall be
assumed that some bills of lading are kept by the shipper (manufacturer) to enable
his agent to take delivery of the goods in Europe and that some are transferred to
third party consignees. The relationship between the carrier and the third party
(consignees) is subject to the Rotterdam Rules according to Art. 7. On the contrary,
however, bills of lading that are held by the shipper (agent) are not subject to the
Rotterdam Rules due to Art. 6(1)(b) and 7 (last sentence).
3.3 Matters Not Governed by the Convention
Chapter 17 of the Rotterdam Rules is entitled “Matters not governed by the Rotterdam
Rules” and regulates the issues that are left outside the scope of application of the
Rotterdam Rules or that may be governed by other rules than the Convention.
3.3.1 International Conventions Regarding the Carriage

of Goods by Other Means of Transportation
The relationship between the Rotterdam Rules and other international conventions
will be studied in detail under a separate heading (please see part IV below).
3.3.2 Global Limitation of Liability
According to Art. 83 of the Rotterdam Rules:

Nothing in this Convention affects the application of any international convention or
national law regulating the global limitation of liability of vessel owners.
3.3.3 General Average

Nothing in this Convention affects the application of terms in the contract of carriage or
provisions of national law regarding the adjustment of general average.
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3.3.4 Passengers and Luggage

This Convention does not apply to a contract of carriage for passengers and their luggage.
3.3.5 Damage Caused by Nuclear Incident
According to Art. 86 of the Rotterdam Rules, the “liability for damage caused by
nuclear incident” may not be subject to the Convention under certain circumstances.
No liability arises under the Convention for damage caused by a nuclear incident
if the operator of a nuclear installation is liable for such damage:
(a) Within the frame of the international conventions stated in Art. 86(a) of the
Rotterdam Rules (1960 Paris Convention and amendments; 1963 Vienna Con-
vention and amendments or 1997 Supplementary Compensation for Nuclear
Damage) or,
(b) Under national law applicable to the liability for such damage provided that
such law is in all respects as favourable in relation to liability as the Conven-
tions cited above.
3.4 Compulsory Nature of the Convention
3.4.1 Invalid Terms
Chapter 16 of the Rotterdam Rules regulates the “Validity of Contractual Terms” in

three articles. As a matter of fact, a negative expression would have been more
appropriate as a title, because all three articles actually define the conditions of
“invalidity” of the contractual provisions.
Art. 79 of the Rotterdam Rules holds void all contracts excluding or limiting the
obligations of the carrier or the maritime performing party on the one side, and the
parties related to the goods (shipper, consignee, controlling party, holder or docu-
mentary shipper) on the other side.
1. Unless otherwise provided in this Convention, any term in a contract of carriage is void
to the extent that it:
(a) Directly or indirectly excludes or limits the obligations of the carrier or a maritime
performing party under this Convention;
(b) Directly or indirectly excludes or limits the liability of the carrier or a maritime
performing party for breach of an obligation under this Convention;
or
(c) Assigns a benefit of insurance of the goods in favour of the carrier or a person
referred to in article 18.
2. Unless otherwise provided in this Convention, any term in a contract of carriage is void
to the extent that it:
(a) Directly or indirectly excludes, limits or increases the obligations under this
Convention of the shipper, consignee, controlling party, holder or documentary
shipper; or
(b) Directly or indirectly excludes, limits or increases the liability of the shipper,
consignee, controlling party, holder or documentary shipper for breach of any of
its obligations under this Convention.
In the field of maritime law, for the safety of trade, it has always been considered
necessary to protect the parties related to the goods through the enactment of
compulsory provisions. Further, compulsory provisions are deemed to be useful
also for establishing trust in the transport document (bill of lading) representing the
goods (HONKA, p. 7).
In order to avoid that an issue becomes subject to compulsory provisions, the
common method previously used was simply to omit that issue from the interna-
tional regulation. However, this is not possible under the Rotterdam Rules, which
do not merely set out limited rules for transport documents, but rather regulate the
contract of carriage in its entirety (MANKOWSKI, VI-1).
It is also accepted today that the liability of the carrier should be regulated through
provisions applicable compulsorily. However, the approach that the carrier is stronger
than the shipper and that the shipper should therefore be protected by compulsory
provisions is slowly losing support due to a growing recognition for the opposite
perspective. As a result, an exemption has been adopted for the liability of the carrier
in relation to “volume contracts”. On the other hand, contrary to the Hague-Visby and
Hamburg Rules, not only the liability of the carrier and the maritime performing
party, but also the liability of the parties related to the goods (shipper, consignee,
controlling party, holder and documentary shipper) has been regulated by way of
compulsory provisions. This should be seen as a normal development for a Conven-
tion aimed at regulating the carriage relationship as a whole (MANKOWSKI, VI-2).
Art. 79(1) of the Rotterdam Rules does not list situations that are excluded from
the compulsory provisions and prefers the expression “unless otherwise provided in
this Convention”. Art. 13(2) of the Rotterdam Rules must be regarded as the most
important provision in order to step outside the regulations of the Convention
(MANKOWSKI, VI-3. But this author refers to Art. 14 instead of Art. 13(2) of
the Rotterdam Rules). Indeed, Article 13(2) of the Rotterdam Rules is the provision
that allows agreeing on the FIO(S) clause and therewith permits to narrow down
Art. 12(3) of the Rotterdam Rules stating that the compulsory liability of the carrier
comprises the period between the initial loading and completion of the discharge.
It is prohibited to exclude or limit wholly or partially the “obligations and
liabilities” of the carrier and the maritime performing party, though it is possible
to impose higher obligations by changing the obligations regime. In other words,
with regard to the responsibility of the carrier and the maritime performing party,
there is an unchangeable regulation only against parties related to the goods. This
reflects the customary solution in maritime law. There is no compulsory regulation
regarding the other performing parties.
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On the other hand, the situation regarding the parties related to the goods is
different. Their liability may not be lessened or extended. The fact that the liability
of the parties related to goods cannot be extended (a solution different from the
liability of the carrier and the maritime performing party) must be seen as a success
for them (MANKOWSKI, VI-3).
Arts. 79(1)(a),(b) and 79(2)(a),(b) of the Rotterdam Rules contain the wording
“directly or indirectly”. The word “indirectly” has been placed in the text in order to
prevent the elimination of the compulsory provisions through the insertion of
special clauses (for example an “applicable law” clause which may result in the
exclusion of the Rotterdam Rules) (HONKA, p. 8).
The definitions of the terms used under Art. 79 of the Rotterdam Rules in relation
to the parties involved (carrier, maritime performing party, shipper, consignee,
controlling party, holder, and documentary shipper) are provided under Art. 1 of
the Rotterdam Rules.
3.4.2 Special Rules for Volume Contracts
The Rotterdam Rules contain a special article on “Volume Contracts” (Art. 80):
1. Notwithstanding article 79, as between the carrier and the shipper, a volume contract to
which this Convention applies may provide for greater or lesser rights, obligations and
liabilities than those imposed by this Convention.
2. A derogation pursuant to paragraph 1 of this article is binding only when:
(a) The volume contract contains a prominent statement that it derogates from this
Convention;
(b) The volume contract is (i) individually negotiated or (ii) prominently specifies the
sections of the volume contract containing the derogations;
(c) The shipper is given an opportunity and notice of the opportunity to conclude a
contract of carriage on terms and conditions that comply with this Convention
without any derogation under this article; and
(d) The derogation is neither (i) incorporated by reference from another document nor
(ii) included in a contract of adhesion that is not subject to negotiation.
3. (. . .)
4. Paragraph 1 of this article does not apply to rights and obligations provided in articles
14, subparagraphs (a) and (b), 29 and 32 or to liability arising from the breach thereof,
nor does it apply to any liability arising from an act or omission referred to in article 61.
5. The terms of the volume contract that derogate from this Convention, if the volume
contract satisfies the requirements of paragraph 2 of this article, apply between the
carrier and any person other than the shipper provided that:
(a) Such person received information that prominently states that the volume contract
derogates from this Convention and gave its express consent to be bound by such
derogations; and
(b) Such consent is not solely set forth in a carrier’s public schedule of prices and
services, transport document or electronic transport record.
The party claiming the benefit of the derogation bears the burden of proof that the
conditions for derogation have been fulfilled.
The volume contract has been defined in Art. 1(2) of the Rotterdam Rules as
follows:
“Volume contract” means a contract of carriage that provides for the carriage of a
specified quantity of goods in a series of shipments during an agreed period of time. The
specification of the quantity may include a minimum, a maximum or a certain range.
On the other hand, Art. 80(3) of the Rotterdam Rules provides for a special
regulation in respect of its application:
A carrier’s public schedule of prices and services, transport document, electronic transport
record or similar document is not a volume contract pursuant to paragraph 1 of this article,
but a volume contract may incorporate such documents by reference as terms of the contract.
Volume contracts constitute the exemption to the compulsory provisions of the

Rotterdam Rules. The parties may decide to increase or lessen the respective
obligations that arise under a volume contract, or even cancel these altogether.
However the conditions to determine a different contractual regime that would be
inconsistent with the Rotterdam Rules are very strict.
Here it is important to emphasize the different approaches between the USA and
Europe. The Europeans are concerned that the ramifications for small-scale shippers will
be severe in cases where such compulsory regulations are abandoned. The Americans, on
the contrary, taking into consideration the customary applications in the USA, put forward
that, as a rule, the parties of the volume contract (carrier and shipper) are on equal trading
bargaining power and that the compulsory provisions may therefore be set aside. The
difficulty to conciliate these opinions and evaluations is obvious and understandable. The
conclusion is that the volume contract is left out of the compulsory regime, but the pre-
conditions required to deviate from the Rotterdam Rules are held very strict.
The system set forward in Art. 80.2(a), (b) and (c) of the Rotterdam Rules in respect
of the “validity of contractual rules for volume contracts” can best be described
as fulfilling the function of “brace and belt” at the same time (HONKA, p. 12).
First, a volume contract is a contract of carriage and a contract of carriage within
the meaning of the Rotterdam Rules must contain a sea leg. If there is no sea leg in
the transportation, the Rotterdam Rules cannot be applied and therefore the appli-
cation of the special rules for volume contracts will be also excluded (LORENZON
in The Rotterdam Rules, A practical Annotation by BAATZ/ DEBATTISTA/
LORENZON/ SERDY/ STANILAND/ TSIMPLIS, 2009, 80-02). On the other
hand, a volume contract not falling within the scope of liner transportation will
be subject to the Rotterdam Rules only for protecting third parties. For a volume
contract of a mixed nature constituting partially liner transportation, it is necessary
to evaluate each shipment and reach a conclusion separately for each case
(HONKA, p. 14).
The key specifications of the volume contracts are the following (Art. 1(2) of the
Rotterdam Rules):
– Specified quantity of cargo
– Carriage in a series of shipment
– An agreed period of time
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If the quantity is not specified, one cannot speak of a volume contract. It is not
necessary that the shipments be successive. On the other hand, there is no restriction
as to the length of the period of time agreed upon.
The components cited in the definition for volume contracts have been widely
criticized on the grounds that they may cause uncertainty and may easily be avoided
(LORENZON 80-01). As an example on this issue, the following might be men-
tioned: The parties agree to ship a container on the first day and a second container
the next day. This agreement can be regarded as a volume contract (at least
literally). Although the judge is free to consider that such a contract is signed
only to avoid the Rotterdam Rules and to decide that the contract is void due to the
breach of compulsory provisions (HONKA, pp. 13–14), it is not always easy to
come to the conclusion that a contract fulfilling the requirements of the definition
adopted in the international convention is entered into with the goal to avoid the
compulsory rules. A declaration of a minimum number of containers was put
forward under the Draft Instrument of the Convention, but it has never been
adopted. Finally, not only contracts of carriage for big quantities (for example an
important contract of affreightment for crude oil), but also contracts for derisory
quantities (for example an individually negotiated shipment of two containers of
charcoal bags per month for a quarter) may be excluded from the compulsory
provisions of the Rotterdam Rules (LORENZON, 80-01).
For the provisions of a volume contract deviating from the Rotterdam Rules to
be valid, the conditions of Art. 80(2)(a)-(d) of the Rotterdam Rules must all be met.
– First, the volume contract must specify explicitly those sections of the contract,
which contain derogations from the Rotterdam Rules.
– Second, the volume contract must have been individually negotiated or must
specify explicitly the sections of the contract containing the derogations from
the Rotterdam Rules. Although it has been suggested that these conditions
should have been cumulative and not alternative, such a suggestion has not
been seen necessary having regard to the third condition (HONKA, p. 15). The
first option (individually negotiated) means that the standard references are
not sufficient, and that “all” provisions derogating from the Convention must
be negotiated “one by one”. The alternative option is to highlight the relevant
different provisions. Art. 80(2)(b) of the Rotterdam Rules is criticized, (and
rightly so in our opinion), on the following aspects (see LORENZON, 80-04):
l In practice all contracts of carriage contain provisions that were individually
negotiated. This is even true for a “booking note” – especially if the carriage
is subject to more than one shipment.
l The Rotterdam Rules require only a statement in respect of the specific
provisions that derogate. It is therefore not necessary to provide any further
particulars as to their content. It would be sufficient to mention a note like
“the following clauses 34, 36 and 47”.
– Third, the shipper must have the opportunity to conclude a contract in complete
compliance with the Rotterdam Rules and the shipper must be informed about
such opportunity. This condition aims to obtain the unaffected consent of the
shipper in cases of derogation from the Rotterdam Rules. It can be thought that the
third condition is not necessary in relation to the second condition above. How-
ever, during the preparatory work, the idea to provide broader protection to the
shipper has gained more weight. Therefore, the shipper has been given the
complete opportunity to choose between a contract complying with the Rotterdam
Rules or a contract that contains differing provisions. In order to provide for this
opportunity of choice, it is also ruled that the shipper must be informed about such
option. In practice, the carrier may inform a prospective shipper about these
options (strict compliance with the Rotterdam Rules or derogations) by offering
two different amounts of freight (HONKA, p. 15).
– Fourth, provisions that differ from the operation of the Rotterdam Rules must not
be incorporated by reference to another document nor included in a contract of
adhesion that was not subject to negotiation. It is reported that volume contracts in
the USA usually do not contain any separate provision regarding the liability and
this issue is regulated by reference to tariffs (MANKOWSKI, VI-4). Art. 80(2)(d)
of the Rotterdam Rules prohibits this practice aimed to avoid compulsory rules.
The same provision also prohibits differing provisions that may be inserted in
a contract of adhesion. Although “contract of adhesion” is not defined in the
Rotterdam Rules, this expression can be attributed the meaning given to it in the
law of consumer protection or in a more accurate approach in the law of general
conditions of business (contracts in which one of the parties did not have any
influence on the content or has not participated in the negotiations). The best
example for a contract of adhesion is the bill of lading. The clauses relieving the
carrier of its liabilities inserted in bills of lading shall not be sufficient to create the
intended result. On the other hand, there may well be cases where the contract of
adhesion is imposed by the shipper. All provisions lifting the liability of the shipper
in such a contract of adhesion shall be equally invalid (MANKOWSKI, VI-4).
Even in respect of volume contracts, derogation from certain rules is not
permitted. According to Art. 80(4) of the Rotterdam Rules, the obligation of the
carrier to make and keep the vessel seaworthy (Rotterdam Rules Art. 14) is one of
those provisions. However Art. 80(4) of the Rotterdam Rules does not have any
reference to Art. 14(c) regarding the cargoworthiness (LORENZON, 80-08). On the
other hand, the shipper’s obligation to provide information, instructions and docu-
ments (Rotterdam Rules Art. 29) and to declare, mark and label the dangerous
goods cannot be set aside either. These are called the “super compulsory provi-
sions” (MANKOWSKI, VI-4; HONKA, p. 14). The liability deriving from these
super compulsory provisions is also super compulsory.
The option to derogate from the compulsory provisions for volume contracts is
specifically regulated regarding parties other than the carrier and the shipper. It
would not be appropriate that these (third) parties are subjected to a contract that
has been agreed to beyond their control. Therefore, different rules will apply to
parties other than the carrier and the shipper only if:
– The party in question has been informed about and such party has explicitly
given its consent to those different rules.
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– The said consent is not only expressed in a carrier’s public schedule of prices
and services, transport document or electronic transport record, but in another
form. In this regard, Art. 3 of the Rotterdam Rules will be applied. According to
this provision, such consent must be given in writing or, if the parties so agreed,
through an electronic transport record.
It is reported that the “explicit consent” condition under English law is not met
by a mere acceptance of the transport document or by signing (a copy of) this
document as proof of acceptance. Therefore clauses such as “by accepting/receiv-
ing this document, the party related to the goods has accepted all rules, which
derogate from the Rotterdam Rules” would not comply with the condition set forth
in Art. 80(5)(a) of the Rotterdam Rules regarding the explicit consent (LOREN-
ZON, 80-10). This conclusion should also be valid for Turkish law. However,
according to the Turkish Supreme Court’s consistent decisions, arbitration clauses
–which are subject to written form in Turkish law, and must therefore be signed by
all the concerned parties to be valid – are binding on third parties to whom the bill
of lading containing such clauses is transferred (for example Yargitay 11. Hukuk
Dairesi – 11th Civil Chamber of the Turkish Supreme Court- 04.10.2004 E.2004/
189; K. 2004/9234 – 06.5.2002 E.2002/216; K. 4357 – 01.7.2008 E.2007/1590;
K.2008/8780). It remains to be seen whether such an approach will be maintained
under the Rotterdam Rules in the future.
According to Art. 80(6) of the Rotterdam Rules, the party claiming the benefit
of the derogation bears the burden of proof that the conditions for derogation have
been fulfilled. This is the repetition of a principle of law (HONKA, p. 18).
3.4.3 Special Rules for Live Animals and Certain Other Goods

Notwithstanding article 79 and without prejudice to article 80, the contract of carriage may
exclude or limit the obligations or the liability of both the carrier and a maritime
performing party if:
(a) The goods are live animals (. . .) or
(b) The character or condition of the goods or the circumstances and terms and conditions
under which the carriage is to be performed are such as reasonably to justify a special
agreement (. . .)
3.5 Interaction with Other Conventions
Arts. 26 and 82 must also be taken into consideration in relation to the scope of
application of the Rotterdam Rules. Art. 26 sets out under the heading of “Carriage
preceding or subsequent to sea carriage” and Art. 82 provides under the heading of
“International conventions governing the carriage of goods by other modes of
transport” detailed regulations. In some cases the Rotterdam Rules conflict with
other international conventions, therefore such provisions are considered necessary

(MANKOWSKI, V-4).
When loss of or damage to goods, or an event or circumstance causing a delay in their
delivery, occurs during the carrier’s period of responsibility but solely before their loading
onto the ship or solely after their discharge from the ship, the provisions of this Convention
do not prevail over those provisions of another international instrument that, at the time of
such loss, damage or event or circumstance causing delay:
(a) Pursuant to the provisions of such international instrument would have applied to all or
any of the carrier’s activities if the shipper had made a separate and direct contract
with the carrier in respect of the particular stage of carriage where the loss of, or
damage to goods, or an event or circumstance causing delay in their delivery occurred;
(b) Specifically provide for the carrier’s liability, limitation of liability, or time for suit; and
(c) Cannot be departed from by contract either at all or to the detriment of the shipper
under that instrument.

Nothing in this Convention affects the application of any of the following international
conventions in force at the time this Convention enters into force, including any future
amendment to such conventions that regulate the liability of the carrier for loss of or
damage to the goods:
(a) Any convention governing the carriage of goods by air to the extent that such conven-
tion according to its provisions applies to any part of the contract of carriage;
(b) Any convention governing the carriage of goods by road to the extent that such
convention according to its provisions applies to the carriage of goods that remain
loaded on a road cargo vehicle carried on board a ship;
(c) Any convention governing the carriage of goods by rail to the extent that such
convention according to its provisions applies to carriage of goods by sea as a
supplement to the carriage by rail; or
(d) Any convention governing the carriage of goods by inland waterways to the extent that
such convention according to its provisions applies to a carriage of goods without
trans-shipment both by inland waterways and sea.
Art. 26 of the Rotterdam Rules applies to damage or delay incurred while the
goods are outside the vessel, whereas Art. 82(b), (c) and (d) cover the sea leg of the
carriage.
Art. 26 undermines the “maritime plus” principle. For an international conven-
tion claiming to regulate not only the sea leg but at the same time the other legs of
the carriage as well, it is a weakness to refer to the provisions of other international
conventions.
Art. 82 seems to adopt the “land plus” (or “minus maritime” or “dry multi-
modal”) principle. Sea carriages subject to Art. 82 may step outside the ambit of the
Rotterdam Rules in certain cases. Especially for Turkey, it is important that, as a
rule, according to Art. 2(1) CMR during Ro-Ro carriage, the CMR will be applied
even for damages occurring on the sea.
In particular, the following points must be mentioned in order to determine the
restricted scope of application of the Rotterdam Rules (in favor of other interna-
tional conventions) in relation to Art. 26:
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– Provisions of other international conventions (provided that the applicable

conditions are met) will be applied to the extent that they do not contradict
with the operation of the Rotterdam Rules. In other words it is no question of
applying the other conventions as a whole instead of the Rotterdam Rules.
– To apply Art. 26, damage must occur before or after the sea leg of the carriage.
The Rotterdam Rules are applied in cases where damage spreads both to the sea
leg and land transportation or where it cannot be determined at which stage the
damage had incurred.
– In practice, it is usually not possible to determine when the damage was incurred
in container carriage. The container is sealed at the beginning of the journey
when received by the carrier and only opened at final destination upon delivery
to the consignee. Therefore, the Rotterdam Rules may have a wide scope of
application in respect of containers.
Pursuant to Art. 26, the Rotterdam Rules are excluded in cases falling within the
scope of the compulsory provisions of any other international convention. On
the contrary however, compulsory provisions of national laws do not hinder the
application of the Rotterdam Rules.
In the light of the above mentioned explanations, the Rotterdam Rules have the
primary provisions to be applied in cases where:
– The damages occur in more than one leg of the carriage;
– The time of the damage cannot be determined; and
– The damage is not within the scope of any other international convention
(MANKOWSKI, V-4).
Chapter 4
Extended Scope of the Rotterdam Rules:
Maritime Plus and Conflict of the Extension
with the Extensions of Other Transport Law
Conventions
Meltem Deniz G€
uner-Özbek
Abstract United Nations Convention on Contracts for the International Carriage of

Goods Wholly or Partly by Sea extends the period of responsibility beyond the
traditional “tackle-to-tackle” and even relatively modern “port-to-port” period.
Increasing containerized transport necessitates such extension; however there are
other international conventions governing other modes of transport that also
extends their scope beyond their boundaries. As a result of such extensions of the
international transport conventions, scope of conventions may overlap. In order to
overcome such overlaps United Nations Convention on Contracts for the Interna-
tional Carriage of Goods Wholly or Partly By sea devised “conflict preventing” and
“conflict resolving” provisions in their articles 26 and 82 respectively.
4.1 Introduction
The container revolution has provided the transport industry with the most efficient
method of moving goods over long distances.1 The growth in containerization
together with technological developments has resulted in considerable change in
world transport. International goods are being increasingly transported on a door-
to-door basis as a result of globalization.2 Foreign companies invest in factories and
assemble plants located in regions with lower labor costs and good access to trade
routes.3 Door-to-door transport involving more than one mode of transportation
allows parties, particularly those with cargo interests, to deal with only one party;
that is, the multimodal transport operator and thus provide a seamless and efficient
method of supply chain management.
1
Schoenbaum (2004), p. 589.
2
Multimodal Transport: The Feasibility of An International Legal Instrument, Report by the
UNCTAD Secretariat, UNCTAD/SDTE/TLB/2003/1, p. 4.
3
Id.
Ass’t. Prof. Dr. M.D. G€
uner-Özbek
Koç University, School of Law, Istanbul, Turkey
e-mail: dguner@ku.edu.tr
108 M.D. G€uner-Özbek
Door-to-door transport includes transportation mechanisms such as multimodal,

intermodal, or combined transport. As this paper will examine multimodal transport
in a special context, the focus will be on multimodal transport.
The most authoritative definition of multimodal transport can be found in the
United Nations Convention on Multimodal Transport of Goods, 1980. Art. 1 (1) of
the Convention defines multimodal transport as follows:
International multimodal transport means the carriage of goods by at least two different
modes of transport on the basis of a multimodal transport contract from a place in one
country at which the goods are taken in charge by the multimodal transport operator to
a place designated for delivery situated in a different country. . . .
Other definitions in relation to multimodal transport can be found in the Termi-

nology on Combined Transport issued by the United Nations Economic Commission
for Europe (UNECE).4 Similar to the Multimodal Convention, the glossary defines
multimodal transport as the “carriage of goods by two or more modes of transport”. On
the other hand, the glossary defines intermodal transport as “the movement of goods in
one and the same loading unit or road vehicle, which uses successively two or more
modes of transport without handling the goods themselves in changing modes” while
defining combined transport as “intermodal transport where the major part of the
European journey is by rail, inland waterways or sea and any initial and/or final legs
carried out by road are as short as possible”. The glossary is intended for the work of
the European Community, the European Conference of Ministers of Transport
(ECMT) and the UNECE. Its purpose was to determine the meaning of the terms
currently in use, and to make them more easily understandable by the increasing
number of people who use them, Definitions in the glossary are not applicable in their
strictest sense to the legal and statistical fields, whose relevant documents of reference
already exist.5 Therefore this paper will use the term multimodal transport as defined
by the Multimodal Convention of 1980 and the glossary of the UNECE.
Despite the enormous increase in multimodal transport,6 the current practice of
multimodal transport in terms of documentation and liability rules is a patchwork
due to various international conventions, national legislations, contractual arrange-
ments and commercial practices. Another patch to this structure may be added in the
future: the United Nations Convention on Contracts for the International Carriage of
Goods by Sea that was signed on September 23, 2009 in Rotterdam and was named
the Rotterdam Rules in accordance with the recommendation of the United Nations
General Assembly.7 The Rotterdam Rules have been structured in such a way that
they may have multimodal implications under certain circumstances although they
have not been directly aimed at regulating multimodal transport.
4
Terminology on Combined Transport, Note by the Secretariat, TRANS/WP.24/2000/1 (1 February
2000), p. 4.
5
Id., p. 1.
6
See reports prepared by the UNCTAD since 1968 at http://www.unctad.org/Templates/Page.asp?
intItemID¼2618&lang¼1 (accessed 10 October 2010).
7
A/RES/63/122.
4 Extended Scope of the Rotterdam Rules 109
This paper examines the scope of the Rotterdam Rules and their possible multi-
modal effects that may arise in relation to the extensions preceding and subsequent to
the sea carriage. Furthermore the paper reviews the possible conflicts of the Rotter-
dam Rules with other transport law conventions arising from such extension.
4.2 State of the Transport Operations
4.2.1 Efforts to Regulate Multimodal Transports
Since the early twentieth century, several attempts have been made to achieve unifor-
mity in the area of multimodal transport. The first effort goes back to the 1911 and 1913
conferences of the Comite Maritime International (CMI).8 These pre-Hague Rules9
attempted to regulate an international affreightment code that failed due to British and
American resistance to the concept.10 Instead, the Hague Rules were adopted. Later, in
1948, the subject of uniformity in transport was again introduced and picked up by the
ICC in 1949 to create an international through bill of lading.11 Signatory States of the
CMR Convention12 also desired to have uniformity in international through transport.
The Institute of Unification of Private Law (UNIDROIT) produced a draft convention
(1957–1963).13 The CMI also prepared a draft convention known as “Tokyo Rules”.
The CMI and the UNIDROIT unified two drafts in a single text in 1970 known as the
“Rome Draft”. The Rome Draft further refined and developed the drafts, which became
the Transport Combine de Merchandise (TCM) Draft in 1972 but did not progress any
further. On the other hand the United Nations Conference on Trade and Development
(UNCTAD) began to work on the multimodal transport in 1973. After 7 years of
extensive deliberations the United Nations Convention on Multimodal Transport of
Goods (MT) was adopted in 1980. However, the MT Convention failed to attract wide
international support.
4.2.2 International Unimodal Transport Conventions
A multimodal operation is made up of a number of unimodal stages of transport.

Each of these stages is either subject to international convention or national law.
8
Nassari (1988), p. 4 fn. 17 and authors cited there.
9
International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading
Brussels, 1924. The Convention entered into force in 1931.
10
Id.
11
Id.
12
Convention on the Contract for the International Carriage of Goods by Road, 1956.
13
Mankabady (1983), p. 121.
International conventions which are applicable to unimodal transports are the

Hague Rules, Hague/Visby Rules,14 its SDR Protocol15 and the Hamburg Rules16
for transport by sea; CMR for transport by road; COTIF/CIM17 as amended by the
Vilnius Protocol for transport by rail and the Warsaw18 and Montreal Conven-
tions19 for transport by air. Although some of these unimodal conventions extend
their scope to multimodal transport there is no uniform multimodal liability system.
Thus the liability for each stage of transport is determined by the relevant unimodal
convention or national law and creates a discrepancy in the multimodal transport
operator’s liability.
4.2.3 Period of the Application of the Current Maritime

Transport Conventions
The Hague Rules were adopted in 1924, the Hague/Visby Rules in 1968 and the
Hamburg Rules in 1978. The Hague and Hague/Visby Rules apply “from the time
when the goods are loaded on to the time when they are discharged from the ship”.20
This rule is known as “tackle to tackle” and traditionally means from the moment
when the ship’s tackle is hooked on at the loading port until the moment when the
ship’s tackle is unhooked at the discharging port.21 Before mechanical cranes were
invented heavy cargo was loaded on board vessels using the ship’s “tackle”. Delegates
at the 1924 Diplomatic Conference accepted that the Hague Rules should cover only
international aspects of maritime transport and not supplant national laws that applied
to activities taking place entirely within a single state. On this premise, national laws
governed damage occurring prior to loading or after discharge while laws recognized
internationally governed damage occurring during the voyage. Accordingly, the
Hague Rules govern rights and responsibilities of parties only when goods are on
board ship, or, to use the phrase in common use, from “tackle to tackle”.
14
Protocol to Amend the International Convention for the Unification of Certain Rules of Law
Relating to Bills of Lading, Brussels 1968. The Protocol entered into force in 1977.
15
Hague/Visby Rules were further amended by the Protocol Amending the International Conven-
tion for the Unification of Certain Rules of Law Relating to Bills of Lading, Brussels 1977 that
changed the basic unit of account of the Hague/Visby Rules.
16
United Nations Convention on the Carriage of Goods by Sea, Hamburg 1978. The Convention
entered into force in 1992.
17
Convention concerning International Carriage by Rail (COTIF) of 9 May 1980 in the version of
the Protocol of Modification of 3 June 1999 and Uniform Rules Concerning the Contract of
International Carriage of Goods by Rail (CIM – Appendix B to the Convention).
18
Convention for the Unification of Certain Rules Relating to International Carriage by Air, 1929.
19
Convention for the Unification of Certain Rules for International Carriage, 1999.
20
Tetley (2008), p. 25; Hague-Hague/Visby Rules art.1(b), 1(e), and 2.
21
Tetley (2008), p. 25.
In liner practice, however, the carrier (through its employees, agent, or indepen-
dent operator) takes custody of the goods to be transported before they can be loaded
on the vessel and keeps them in its possession after they are unloaded. In line with
this practice, the Hamburg Rules extended the period of responsibility. According to
art. 4.1 “The responsibility of the carrier for the goods under this Convention covers
the period during which the carrier is in charge of the goods at the port of loading,
during the carriage and at the port of discharge.” Despite the fact that the Hamburg
Rules failed to attract a large number of countries, they still resulted in an adverse
effect on the uniformity achieved previously by the Hague Rules.
4.2.4 The Need for a Change
The Hague Rules were adopted 86 years ago. Commercial practices and the
maritime industry have changed remarkably since then. Amendments adopted by
the Visby Rules 42 years ago made only a few changes to the Hague Rules. The
relatively younger Hamburg Rules, 32 years old, have made some substantial
changes; however, they were not attractive to the states. Neither the drafters of
the Hague Rules nor the drafters of the Visby and Hamburg Rules could anticipate
the container revolution or anticipate the impact of the container revolution on
modern commercial practices.22 Because containerized traffic in the liner trade is
usually structured as door-to-door operations, technological developments23 could
be expected to increase the frequency of such operations in the future. Thus, an
update was necessary to harmonize and modernize transport law rules.24
4.3 Drafting History25 of the Rotterdam Rules

and the Idea of a Door-to-Door Concept
4.3.1 Early Stage
Against the background mentioned above, the CMI started an investigation in 1988
on the question of the uniformity of the law of the carriage of goods by sea. The
outcome of the investigation necessitated a substantial revision of the Hague and
22
Sturley (2007–2008), pp. 255–256.
23
Such as electronic commerce and improved logistics facilities.
24
See Michael F. Sturley, General principles of transport law and the Rotterdam Rules in the
previous parts of this book.
25
For a review of the history of the Rotterdam Rules see Francesco Berlingieri, History of the
Rotterdam Rules, in the previous parts of this book.
the Hague-Visby Rules and the issue was placed on the agenda of the XXXIVth
International Conference of the CMI in Paris in 1990.26 In 1994 the CMI Executive
Council established a Working Group to consider the problems of the various
regimes dealing with the carriage of goods by sea, a questionnaire was prepared
for distribution to the National Maritime Law Associations, and a summary of the
responses to the questionnaire was published in 1995. Following this an interna-
tional sub-committee was established. The Sub-Committee prepared five reports
that were published in the CMI Yearbooks.27
On the other hand, the twenty-ninth session of the United Nations Commission
on International Trade Law (UNCITRAL) in 1996 proposed that the UNCITRAL
should include in its work program a review of current practices and laws in the area
of international carriage of goods by sea in order to both show the need for uniform
rules and to achieve greater uniformity than had so far been accomplished. Autho-
rities of the CMI and the UNCITRAL then met to discuss possible cooperation of
both organizations.
Subsequently a Working Group on Issues of Transport Law was organized by
the CMI Assembly in 1998–1999. The Working Group prepared another question-
naire and sent the new questionnaire to the national maritime law associations in
1999. In the same year a new international Sub-Committee was created to consider
the replies to the questionnaire. The International Sub-Committee prepared a draft
instrument based upon the analysis of the replies.28
4.3.2 Door-to-Door Concept in the CMI Draft Outline

Instrument
The Draft Outline Instrument29 considered door-to-door transport; however it did

not define the carrier’s liability, rather it left the issue open for further consider-
ation. Chap. 3 entitled “Period of Responsibility” and Chap. 1 entitled “Definitions”
provided the following definition:
3.1. Subject to the provisions of paragraphs 3.2. and 3.3 below the responsibility of the
carrier for goods under this instrument covers the period from the time that the carrier has
received the goods from the consignor in the place of receipt until the time that the goods
are delivered by the carrier to the consignee in the place of delivery. . . . .
26
A Brief History of the Involvement of the CMI From the Initial Stages of The Preparation of The
UNCITRAL Draft Convention on Contracts for The International Carriage of Goods Wholly or
Partly by Sea, CMI Yearbook, 2007, p. 252; Berlingieri, History of the Rotterdam Rules, earlier in
this book.
27
Yearbooks 2000 onwards can be found at http://www.comitemaritime.org/year_news.htm
(accessed 19 October 2010).
28
CMI Yearbook 2000, pp. 122–171.
29
Id.
and
1.1. “Contract of carriage” means a contract under which the contracting carrier, against
payment of freight, undertakes to carry the goods wholly or partly by sea from one place to
another. . . .
In order to accommodate modern practice in containerized trade, the Draft

Outline Instrument was applied from the time of receipt to the time of delivery
irrespective of geographical locations of such places. Where the place of receipt and
place of delivery were inland and involved movement by inland vehicles or crafts
such movements were considered only to the extent that they were subsidiaries to
sea carriage.30 However, delegates found it difficult to determine whether the
movement on land was a subsidiary to that by sea.31 Therefore many delegates
suggested that future instrument should contain provisions applying to the full
scope of the carriage whether the inland movement is subsidiary to that by sea or
not as long as a carriage by sea was provided at some stage.32
The Draft Outline Instrument was discussed at the CMI Conference in Singapore
in 2001.33 This discussion was not in detail; the Conference rather focused on the
main issues, one of which was the period of responsibility.
The discussions generated considerable support for extending the period of
responsibility to inland carriage preceding or subsequent to maritime carriage.34
The formula adopted must permit the period of responsibility to be limited to the
“tackle-to-tackle” or the “port-to-port” period for cargo that is carried on a tackle-
to-tackle or port-to-port basis as is often the case in the bulk trades.35 Moreover,
most of the Conference delegates agreed that if the period of responsibility is to be
extended beyond the traditional “tackle-to-tackle” period, there must be a sea leg
involved.36 Some delegates, on the other hand, supported the alternative view that
the period of responsibility should be extended only to the port-to-port period as in
the Hamburg Rules.37
Additional discussions focused on uniform liability and network liability.38
Delegates who had supported the idea that uniform liability regime govern the
carriage preceding or subsequent to maritime carriage, primarily relied on the
reasons proposed in the Door to Door Transport Paper.39 Furthermore they
claimed that a uniform liability regime was a desirable long-term objective.40
30
CMI Yearbook, 2000, Door to Door Transport, p. 118.
31
Id.
32
Id.
33
CMI Yearbook 2001, p. 182 ff.
34
Id., p. 183.
35
Id.
36
Id.
37
Id.
38
Infra pp. 120 ff.
39
CMI Yearbook 2000, pp. 118–121.
40
CMI Yearbook 2001, p. 183.
However, the network system has attracted more attention because in the short term
it is easily achievable and does not create inconsistencies with existing unimodal
law conventions.41
The Assembly of the CMI requested that the International Sub-Committee cover
the possibility of its application to other forms of carriage associated with the
carriage by sea also.42 Accordingly, the Draft was revised in light of these conclu-
sions and a Revised Draft Outline Instrument,43 together with a Consultation Paper,
was circulated to all national associations and a number of international organiza-
tions for comment. After responses to and comments on the Draft Instrument were
analyzed, a Provisional Draft Instrument was prepared. The Provisional Draft
Instrument was circulated to all national associations and the international organi-
zation for further consideration. The comments received were evaluated at the
International Sub-Committee’s meeting in November 2001 and amendments result-
ing from the comments were made to the text.44
4.3.3 Delegation of the Draft Instrument to the UNCITRAL
The Draft Instrument was submitted by the CMI to UNCITRAL in December 2001.
The UNCITRAL Commission established a working group, i.e. “Working Group
on Transport Law” to consider the project.45 The Commission decided that the
considerations in the working group should initially cover port-to-port transport
operations; however, the working group would be free to study the desirability and
feasibility of dealing with door-to-door transport operations also, or certain aspects
of those operations, and, depending on the results of those studies, to recommend to
the Commission an appropriate extension of the working group’s mandate.46
The Draft Instrument47 was considered at the ninth, tenth and eleventh sessions
of the UNCITRAL Working Group III on Transport Law.48 It was then revised by
the UNCITRAL secretariat in accordance with the decisions made at these three
sessions.49 A number of core issues arising out of WP 3250 were considered by
41
Such as the CMR in European countries and even in Middle Eastern countries.
42
CMI Yearbook 2001, p. 188.
43
Draft Outline Instrument (The May Draft), 31 May 2001, id. p. 357.
44
CMI Draft Instrument on Transport Law, id. p. 532 ff.
45
Report of the United Nations Commission on International Trade Law on its thirty-fourth session
25 June-13 July 2001, General Assembly Official Records Fifty-Sixth Session Supplement No. 17
(A/56/17), } 345.
46
Id.
47
48
For these documents see www.uncitral.org.
49
A/CN.9/WGIII/WP.32. The footnotes to this document to a large extent summarize the salient
points made in the discussions at the ninth, tenth and eleventh sessions, and explain the changes
made to the CMI Draft.
50
A/CN.9/WGIII/WP.32.
Working Group III at its twelfth session in Vienna in October 2003.51 At the twelfth
session delegates had before them a written proposal from the Government of the
Netherlands on the door to door application of the Draft Instrument and from the
Government of the United States on ten separate aspects of it.52
4.3.4 Consideration of Working Group III of the Period

of Responsibility
4.3.4.1 The First Draft of the Instrument
At the ninth session the Working Group undertook a preliminary review of the
provisions of the Draft Instrument.53 By placing [4.2.1 Carriage preceding or
subsequent to sea carriage. . .] in square brackets the relevant provision with regard
to the period of responsibility proposed the following:
4. PERIOD OF RESPONSIBILITY
4.1.1 Subject to the provisions of article 4.3, the responsibility of the carrier for the goods
under this instrument covers the period from the time when the carrier or a performing party
has received the goods for carriage until the time when the goods are delivered to the
consignee.
. . .. . .
[4.2.1 Carriage preceding or subsequent to sea carriage
Where a claim or dispute arises out of loss of or damage to goods or delay occurring solely
during either of the following periods:
(a) from the time of receipt of the goods by the carrier or a performing party to the time of
their loading on to the vessel;
(b) from the time of their discharge from the vessel to the time of their delivery to the
consignee; and, at the time of such loss, damage or delay, there are provisions of an
international convention that
(i) according to their terms apply to all or any of the carrier’s activities under the contract
of carriage during that period, [irrespective whether the issuance of any particular docu-
ment is needed in order to make such international convention applicable], and
(ii) make specific provisions for carrier’s liability, limitation of liability, or time for suit, and
(iii) cannot be departed from by private contract either at all or to the detriment of the
shipper, such provisions, to the extent that they are mandatory as indicated in (iii) above,
prevail over the provisions of this instrument.]
[4.2.2 Article 4.2.1 applies regardless of the national law otherwise applicable to the
contract of carriage.]
This article provided for as minimal a network54 system as possible. The draft
instrument was only displaced where a convention that constituted mandatory law
51
A/CN.9/544.
52
A/CN.9/WGIII/WP.33 and 34 respectively.
53
Transport Law Preliminary Draft Instrument on the Carriage of Goods by Sea, A/CN.9/WG.III/
WP.21.
54
See infra pp. 120–121.
for inland carriage was applicable to the inland leg of a door-to-door carriage, and
was clear that the loss or damage in question occurred solely in the course of the
inland carriage. In other words, where the damage occurred during more than one
leg of the door-to-door carriage or where it could not be ascertained where the loss
or damage occurred, the Draft Instrument would apply to the whole door-to-door
transit period. The Draft Instrument would yield only to mandatory provisions of an
international convention. The construction of the article assumes that conflicts with
mandatory treaties applicable on land will be resolved. The Draft Instrument was
not aimed at constituting a fully-fledged multimodal regime but rather a maritime
regime that took into account the reality that the maritime carriage of goods was
frequently preceded or followed by land carriage.55
4.3.4.2 Review of the Working Group
At the ninth session, the Working Group had before it the comments prepared by
UNECE56 and UNCTAD57 and devoted considerable attention to the period of
responsibility.58 The Working Group mainly deliberated on whether the carrier’s
liability was to be restricted to port-to-port transport operations or whether, if the
contract of carriage also included land carriage before or/and after the sea carriage,
the carrier’s liability should extend to the entire contract, i.e. the door-to-door
concept.59 Although draft art. 4.2.1 was presumed to avoid any conflict with the
treaties governing land carriage in cases where sea carriage was complemented by
one or more land carriages, the Group found that a more detailed consideration and
refinement was necessary.60
On the other hand, it was necessary to consider the dangers of such extension as
well as the specific needs of land transport. In order to avoid possible conflicts
55
A/CN.9/510, } 28.
56
United Nations Economic Commission for Europe. The UNECE secretariat welcomed UNCI-
TRAL’s initiative to harmonize and modernize maritime transport law. With regard to the study of
the desirability and feasibility of dealing with door-to-door transport operations, The UNECE
secretariat recommended that this work should be carried out in close cooperation with all interested
parties. Further UNECE found it questionable that the liability rules drafted merely considering
maritime transportation extended to other modes of transport. The UNECE also commented that it
was necessary to make provisions with regard to relationship between the Draft Instrument and
conventions governing inland transport which may have been applicable. Consequently, according
to UNECE further study was needed. A/CN.9/WG.III/WP.21/Add.1 Annex I.
57
United Nations Commission on Trade and Development. The UNCTAD stated the concern that
Draft Instrument has been drawn up by the representatives of only maritime interests, namely
CMI, without broad consultation of parties involved with and experienced in the other modes of
transportation. The UNCTAD also found it improper that the Draft Instrument did not provide
uniform liability throughout all stages of transport. A/CN.9/WG.III/WP.21/Add.1.
58
A/CN.9/510, } 26–32.
59
Id.
60
Id. } 32.
between the Draft Instrument and other multilateral instruments (in particular those
instruments that contained mandatory rules applicable to land transport), the Draft
Instrument should have provided appropriate mechanisms.
At its tenth session, due to insufficient time, the Working Group deferred its
consideration of draft art. 4 and the remaining provisions of the Draft Instrument
until its next session.61
The eleventh session Working Group resumed its review of the period of
responsibility in the Draft Instrument. There was extensive debate on the issue.
Italy,62 Canada,63 Sweden,64 the Netherlands,65 the United States,66 the Interna-
tional Federation of Freight Forwarders Associations (FIATA),67 the Association of
American Railroads68 (AAR), the Intergovernmental Organization for International
Carriage by Rail (OTIF),69 the International Chamber of Shipping (ICS),70 and the
International Group of Protection and Indemnity Clubs (P&I Clubs)71 made state-
ments and/or suggestions on the scope of application. The UN Secretariat also
submitted a note on the scope of the draft instrument.72 There was broad support for
a door-to-door scope and limited network system believing that it suited the needs
and demands of the industry’s best.73 However, some corrections to the limited
network system in the Draft Instrument were necessary. There was also some
support for uniform liability but the Working Group thought it unattainable as it
had deviated too much from the practices of commercial parties.74
After having agreed that the scope of the Draft Instrument should have covered
door-to-door transport, the Working Group proceeded with the following five
issues75:
(a) The type of carriage covered by the Draft Instrument;
(b) The relationship of the Draft Instrument with other conventions and with
domestic legislation;
61
A/CN.9/525, } 123.
62
A/CN.9/526 } 220. Italy was in favor of uniform system. However, later on it had changed its
position and favored of limited network system. UNA/CN.9/544.
63
A/CN.9/526 } 221.
64
Id. } 222.
65
Id. } 224.
66
Id. } 226.
67
Id. } 228.
68
Id. } 229.
69
Id. } 230.
70
Id. } 231.
71
Id. } 232.
72
73
A/CN.9/526 } 239.
74
Id. } 224, 239.
75
Id. } 240.
(c) The manner in which performing parties should be dealt with under the Draft
Instrument;
(d) The limits of liability under the Draft Instrument; and
(e) The treatment of non-localized damages under the Draft Instrument.
After discussions, the Working Group agreed – on a provisional basis – that the
Draft Instrument should cover any type of multimodal carriage involving a sea leg.
Internationality of the carriage should be assessed on the basis of the contract.76 The
next issue was to correlate the relationship of the Draft Instrument with other
transport conventions and with domestic legislation. Paragraph 4.2.1 of the Draft
Instrument had not solved the issue of conflict of conventions.77 Accordingly, the
text of art. 4.2.1. was retained as a conflict resolving provision, but a separate
conflict of convention provision was also prepared.78 With regard to the relation-
ship between the Draft Instrument and national law a conclusion could not be
reached. As there had been wide support for reference to a national law, national
law in square brackets was inserted.79 With regard to treatment of performing
parties, limitation of liability and treatment of non-localized damages further
consideration was necessary.80 Particularly, the treatment of performing parties
was important because it would shape the entire instrument and could help in the
solutions to other problems, one of them having been subparagraph 4.2.1. on
carriage preceding or subsequent to sea carriage.
At the twelfth session, the Working Group continued to consider the scope of
application and performing parties as having been core issues in the Draft Instru-
ment.81
Two articles on the conflict of conventions were drafted at the sixteenth session
in accordance with the request of the Working Group at the eleventh session.82 The
Working Group could not discuss the issue of relationship between the Draft
76
Id. } 244.
77
Id. } 246.
78
Id. } 244.
79
Former art. 4.2. became art.8 and art.8.1.(b) read that “. . ..from the time of their discharge from
the vessel to the time of their delivery to the consignee; and, at the time of such loss, damage or
delay, there are provisions of an international convention [or national law] that . . .” A/CN.9/WG.
III/WP.32.
80
A/CN.9/526 } 241–267.
81
A/CN.9/544 } 20 ff.
82
“Article 89. International instruments governing other modes of transport.
Subject to article 92, nothing contained in this Convention prevents a Contracting State from
applying any other international instrument which is already in force on the date of this Conven-
tion and that applies mandatorily to contracts of carriage of goods primarily by a mode of transport
other than carriage by sea.”
“Article 90. Prevalence over earlier conventions.
[As between parties to this Convention, it prevails over those][Subject to article 102, this
Convention prevails between its parties over those] of an earlier convention to which they may
be parties [that are incompatible with those of this Convention].”A/CN.9/WG.III/WP.56.
Convention and other conventions until its eighteenth session. At that session
articles on the conflict of conventions were deleted.83 The reason was that art. 27,
which was originally art. 4.2.1. on the carriage preceding or subsequent to sea
carriage, was sufficient to solve the conflict with other conventions and these
articles would confuse and obscure the intended operation of the Draft Instru-
ment.84 Instead, it was decided to introduce clarifications to ensure the proper
application of the limited network system and resolve possible conflict between
the Draft Convention and the Montreal Convention.85 In accordance with this
decision a provision on the conflict with air carriage was drafted.86 Subsequently,
this provision was found insufficient and was improved in order to avoid specific
conflicts not only with air transport but all unimodal transport conventions.87 A
final touch was given to the Draft to narrow its scope.88
4.3.4.3 Comments of the UNCTAD
The UNCTAD Secretariat prepared a study of the implementation of the law and
regulations applicable to multimodal transport.89 Following that study, an Ad Hoc
Expert Meeting on Multimodal Transport was convened, which reviewed the
existing situation in terms of the regulation of multimodal transport. As there are
greatly diverse regulations at the international level the meeting delegates sug-
gested that the UNCTAD secretariat study the feasibility of a new international
instrument, taking into account the views of all interested parties, both public and
private. Accordingly, the UNCTAD Secretariat circulated a questionnaire to all
83
A/CN.9/616 } 235.
84
A/CN.9/616 } 216–235.
85
Id. } 225, 235.
86
Art. 84. “Nothing in this Convention prevents a Contracting State from applying the provisions
of any other international convention regarding the carriage of goods by air to the contract of
carriage when such international convention according to its provisions applies to any part of the
contract of carriage.” A/CN.9/WG.III/WP.81.
87
“Nothing in this Convention prevents a Contracting State from applying the provisions of any of
the following conventions in force at the time this Convention enters into force:
(a) Any convention regarding the carriage of goods by air to the extent such convention
according to its provisions applies to the carriage of goods by different modes of transport;
(b) Any convention regarding the carriage of goods by land to the extent such convention
according to its provisions applies to the carriage of land transport vehicles by a ship; or
(c) Any convention regarding the carriage of goods by inland waterways to the extent such
international convention according to its provisions applies to a carriage without trans-shipment
both on inland waterways and on sea.” A/CN.9/642 } 232.
88
Art. 85 “. . . (b) Any convention governing the carriage of goods by road to the extent that such
convention according to its provisions applies to the carriage of goods that remain loaded on a
vehicle carried on board a ship; (c) Any convention governing the carriage of goods by rail to the
extent that such convention according to its provisions applies to carriage of goods by sea as a
supplement to the carriage by rail; or . . .”. A/CN.9/WG.III/WP.101.
89
UNCTAD/SDTE/TLB/2 and UNCTAD/SDTE/TLB/2 /Add.1.
Governments and the industry as well as to all interested intergovernmental and

non-governmental organizations and a number of experts on this subject.90
Responses to the questionnaire91 revealed that a large majority considered the
present legal framework of multimodal transport unsatisfactory and costly. The vast
majority considered an international instrument to govern liability arising from
multimodal transport desirable and indicated that they would support any concerted
effort. The views were divided on the most suitable approach: two thirds of
respondents seemed to prefer a new instrument to govern multimodal transport or
a revision of the 1980 Multimodal Convention. A number of respondents favored
the UNCTAD/ICC Rules which are used in commercial contracts. While a small
number of respondents supported the extension of an international sea carriage
regime to all contracts of multimodal transports involving a sea-leg, another small
number of respondents suggested an extension of an international road carriage
regime to all contracts of multimodal transport involving a road leg to be the most
appropriate approach. Except for the maritime transport sector, there was only
limited support for the approach adopted in the Draft Instrument.
Views were divided among the uniform, network, and modified systems with
regard to the system of liability. Support for the uniform liability system and
network or modified systems were roughly equal. The UNCTAD presented this
study to the Working Group.92
4.3.4.4 Proposal by the Netherlands
In preparation for the twelfth session of Working Group III, the Netherlands
submitted a proposal concerning the scope and structure of the Draft Instrument.
According to the Netherlands, as the majority of maritime contracts these days
cover door-to-door carriage, the extension of the scope of the Draft Instrument to
carriage preceding or subsequent to sea carriage fits well in modern practice.93 The
practice of door-to-door carriage could be seen in other modes too; thus, the
conventions relating to these other modes, particularly the newest ones, reflect a
“unimodal plus” approach. The Netherlands, however, stated that the “maritime
plus” approach as in the Draft Instrument might create problems if it conflicted with
other conventions.94 The scope provisions of the existing non-maritime conven-
tions were generally not sufficiently clear, i.e. whether they were related to certain
90
For the questions of the questionnaire see Multimodal Transport, UNCTAD/SDTE/TLB/2003/1,
p. 26.
91
The UNCTAD Secretariat received 109 responses. Of these 69 were from Governments and 49
were from industry representatives Responses of the industry reflect the views of all interested
parties, i.e. transport service operators, freight forwarders, logistics services and terminal opera-
tors, insurers, shippers, and other users of transport services. Id., p. 3.
92
93
A/CN.9/WG.III/WP.33 } 1.
94
Id. } 2,3.
types of the contract or certain modes of the carriage. This was particularly
problematic with regard to CMR.95 The limited network system as reflected in
the Draft Instrument had avoided the possible conflicts to the largest possible
extent; however with respect to non-liability matters possible conflicts have
remained. The Netherlands recommended that the “unimodal plus” approach
deserved further attention and study.96
4.3.4.5 Proposal by the United States
In preparation for the twelfth session of Working Group III, the United States of
America also submitted a proposal. The proposal considered ten aspects of the
Draft Instrument. Two of these aspects were the scope of application and
performing parties. The United States stated its support for a door-to-door regime
on a uniform liability system between the contracting parties, subject to limited
network exceptions.97 This meant that the contracting carrier’s liability to the cargo
interest would have been resolved under the Draft Instrument except that the
network principle was applied to supersede these provisions. The United States
recommended that in order to have maximum degree of uniformity the network
principle must be kept narrow as in the Draft Instrument. The United States further
stated that the Draft Instrument should provide substantive liability rules for
“maritime performing parties”98 while it should not create new causes for action
or have preempted existing causes of action. That is to say liability of an inland
carrier should be based on existing law.99
4.4 Liability Systems Governing Multimodal Transport
The type of liability system governing multimodal transport is a key issue and
probably the most important. There are principally three systems of liability under
multimodal transport contracts.
95
A/CN.9/WG.III/WP.33 } 1,34.
96
Id. } 28. In the Netherlands view if the outcome of such a study had been in favor of an unimodal
plus system, then the art.4.2 of the Draft Instrument should have been replaced by a conflict of
convention provision, that took account of the application of other transport conventions at the
option of the parties to the contract of carriage. Id.
97
98
Such as ocean carrier, stevedore working in the port area, and maritime terminal operators.
Id. } 6.
99
In some countries this is regional unimodal convention such as CMR while in others it may be
mandatory or non-mandatory domestic law governing inland carriage.
4.4.1 Uniform System of Liability
Under the uniform liability system the single liability regime applies irrespective of
the unimodal stage of transport during which loss, damage, or delay occurs. It is no
matter if the loss can or cannot be localized. This type of liability system is simple
and transparent because the applicable liability rules are predictable from the outset
and do not depend on the identification of the stage where a loss occurs.100 This is
particularly advantageous for the cargo interest and consignor/consignee, as car-
rier’s liability vis-à-vis a cargo claimant would be uniform throughout a multimodal
transaction
The uniform system of liability however, is disadvantageous for the carrier as it
shifts the risk of unpredictability on the carrier.101 The carrier would not be able to
take advantage of potentially less onerous liability rules which may otherwise apply
to a particular mode of transport during which loss occurs. The contracting carrier
would be liable to the cargo claimant under uniform rules and when he seeks
recourse against any responsible unimodal subcontracting carrier, his recourse for
action would be subject to applicable unimodal rules, which, sometimes, may be
less onerous. Moreover, the problems of location of damage, liability gap, and
gradual occurrence of damage would arise in such a recourse action.102 Such a
uniform system may also conflict with provisions of existing unimodal conventions
in relation to the basis of liability, limitation of liability, time bar and other
issues.103
4.4.2 Network System of Liability
Under the network system of liability different rules apply depending on the
unimodal stage of transport during which loss, damage or delay occurs. If the loss
cannot be localized there is an alternative or a fall-back rule. In practice, standard
form contracts provide fall-back rules that are more in favor of the carrier where a
loss cannot be localized. This system of liability is advantageous for a carrier
whereas it is disadvantageous for the consignor/consignee. Particularly in the
container trade, locating the loss or damage and thus the identifying the unimodal
leg where it occurred is difficult.104 Moreover, the loss or damage may occur
100
Multimodal Transport: The Feasibility of An International Legal Instrument, Report by the
101
Door-to-door Transport, CMI Yearbook 2000, p. 120.
102
Id. p. 121.
103
Id.
104
Door-to-door Transport, CMI Yearbook 2000, p. 119; Hancock (2008), p. 488.
gradually over more than one leg.105 Consequently, there may be liability gaps
between the applications of the various unimodal regimes.106
It is clear that in such a case neither an incidence nor the extent of a carrier
liability is predictable. Therefore, a cargo claimant bears extra burden, i.e.
increased insurance premiums as well as higher claim costs.
4.4.3 Modified System of Liability
Due to shortcomings of both systems, a modified system has been adopted in

practice. In a modified system, some rules apply irrespective of the unimodal
stage of transport at which loss, damage or delay occurs, but application of other
rules depend on the unimodal stage of transport where loss, damage or delay
occurs.107 This system provides a compromise or middle-way between a uniform
and a network system and by various arrangements a system may be more uniform
or network-like.108
The advantage of the modified system is that it provides a workable consensus,
taking into account conflicting views and interests. However the disadvantage of
this system is that the application of its provisions may be complex.
Both the Multimodal Transport Convention 1980 and UNCTAD/ICC Rules for
Combined Transport Documents comprise a modified system.109 Accordingly, the
Rules set out the basis for liability, preserve the nautical fault, error in management
and fire defenses in respect of goods carried by sea and inland waterways, and
state that the limitation of liability provided by the compulsory unimodal regimes
would apply if the loss or damage is localized. If the loss, damage or delay is
not localized either the Hague-Visby limits or the CMR limits, if there is no sea leg,
will apply.110
105
Id.; id.
106
Id.; id.
107
Multimodal Transport: The Feasibility of an International Legal Instrument, Report by the
108
Id.
109
UNCTAD/ICC Rules for Combined Transport Documents published by the International
Chamber of Commerce in 1992 (ICC Publication number 298). The Rules are based on both the
CMI Tokyo Rules and Multimodal Transport Convention, 1980.
110
Its relevant articles state as follows:
4.1. The responsibility of the MTO for the goods under these Rules covers the period from the
time the MTO has taken the goods in his charge to the time of delivery. . . .
5.1. Subject to the defenses set forth in rule 5.4. and Rule 6, the MTO shall be liable for loss of or
damage to the goods, as well as for delay in delivery, if the occurrence which caused the loss,
damage or delay in delivery took place while the goods where in his charge as defined in Rule 4.1.,
unless the MTO proves that no fault or neglect of his own, his servants or agents or any other person
referred to in Rule 4 has caused or contributed to the loss, damage, or delay in delivery. However, the
Although the Multimodal Transport Convention of 1980 did not attract a

sufficient number of countries, the UNCTAD/ICC Rules have been success-
ful. The Multidoc 95111 issued by the BIMCO112 and FBL 92113 issued by the
MTO shall not be liable for loss following from delay in delivery unless the consignor has made a
declaration of interests in timely delivery which has been accepted by the MTO. . ..
6.1. Unless the nature and value of the goods have been declared by the consignor before the
goods have been taken in charge by the MTO and inserted in the MT document, the MTO shall in
no event be or become liable for any loss of or damage to the goods in an amount exceeding the
equivalent of 666,67 SDR per package or unit or 2 SDR per kilogram me of gross weight of the
goods lost or damage, whichever is the higher. . . .
6.3. Notwithstanding the above-mentioned provisions, if the multimodal transport does not,
according to the contract, include carriage of goods by sea or by inland waterways, the liability of
the MTO shall be limited to an amount not exceeding 8.33 SDR per kilogramme of gross weight of
the goods lost or damaged.
6.4. When the loss of or damage to the goods occurred during one particular stage of multimodal
transport, in respect of which an applicable international convention or mandatory national law
would have provided another limit of liability if a separate contract of carriage had been made for
that particular stage of transport, then the limit of the MTO’s liability for such loss or damage shall
be determined by reference to the provisions of such convention or mandatory national law.
111
Accordingly it provides that:
“10(a) The responsibility of the MTO for the Goods under this Contract covers the period from
the time the MTO has taken the Goods into his charge to the time of delivery . . .
12(a) Unless the nature and value of the Goods have been taken in charge by the MTO and
inserted in the MT Bill of Lading, the MTO shall in no event be or become liable for any loss of or
damage to the Goods in an amount exceeding:
(i) when the Carriage of Goods by Sea Act of the United States of America, 1936 (US COGSA)
applies USD 500 per package or customary freight unit; or
(ii) When any other law applies, the equivalent of 666,67 SDR per package or customary freight unit
or two SDR per kilogram of gross weight of the goods lost or damaged, whichever is the higher.
12 (c) Notwithstanding the above-mentioned provisions, if the Multimodal Transport does not,
according to the Contract, include carriage of Goods by sea or by inland waterways, the liability of
the MTO shall be limited to an amount not exceeding 8.33 SDR per kilogram of gross weight of
the Goods lost or damaged.
(d) In any case, when the loss of or damage to the goods occurred during one particular stage of the
Multimodal Transport, in respect of which an applicable international convention or mandatory
national law would have provided another limit of liability if a separate contract of carriage had
been made for that particular stage of transport, then the limit of the MTO’s liability for such loss or
damage shall be determined by reference to the provisions of such convention or mandatory national
law.”
112
The Baltic and International Maritime Council.
113
Standard Conditions (1992) governing the Fiata Multimodal Transport Bill of Lading. The
relevant articles provide that:
“6.1. The responsibility of the Freight Forwarder for the goods under these conditions covers the
period from the time the Freight Forwarder has taken the goods in his charge to the time of their
delivery. . . .
8.3. Subject to the provisions of subclauses 8.4. to 8.9. inclusive, the Freight Forwarder shall in
no event be or become liable for any loss of or damage to the goods in an amount exceeding the
equivalent of 666.67 SDR per package or unit or 2 SDR per kilogramme of gross weight of the
goods lost or damaged, whichever is the higher, unless the nature and value of the goods shall have
FIATA114 have incorporated these Rules. The Combiconbill,115 also issued by

BIMCO, set similar rules but is based on the 1973 ICC Rules for Combined
Transport Document.116
4.5 Examination of Article 26 and Article 82

in the Rotterdam Rules
4.5.1 The Scope of Application of the Rotterdam Rules
The scope of the Rotterdam Rules was one of the most debated issues in the
discussions of the Working Group. Art. 5.1 defines the scope:
been declared by the Consignor and accepted by the Freight Forwarder before the goods have been
taken in his charge, or the ad valorem freight rate paid, and such value is stated in the FBL by him,
then such declared value shall be the limit. . . .
8.5. Notwithstanding the above mentioned provisions, if the multimodal transport does not,
according to the contract, include carriage of goods by sea or by inland waterways, the liability of
the Freight Forwarder shall be limited to an amount not exceeding 8.33 SDR per kilogramme of
gross weight of the goods lost or damaged.
8.6. a) When the loss of or damage to the goods occurred during one particular stage of the
multimodal transport, in respect of which an applicable international convention or mandatory
national law would have provided another limit of liability if a separate contract of carriage had
been made for that particular stage of transport, then the limit of the Freight Forwarder’s liability
for such loss or damage shall be determined by reference to the provisions of such convention or
mandatory national law.
b) Unless the nature and value of the goods shall have been declared by the Merchant and
inserted in this FBL, and the ad valorem freight rate paid, the liability of the Freight Forwarder
under COGSA, where applicable, shall not exceed US$ 500 per package or, in the case of goods
not shipped in packages, per customary freight unit.”
114
International Federation of Freight Forwarders Association and it stands for Fédéeration Inter-
nationale des Associations de Transitaires et Assimilés in French.
115
Combined Transport Bill of Lading. Its relevant provisions provide that:
9 (1).The Carrier shall be liable for loss of or damage to the goods occurring between the time
when he receives the goods into his charge and the time of delivery. . . .
10(3) Compensation shall not, however, exceed two Special Drawing Rights per kilogram of
gross weight of the goods lost or damaged. . . .
11 (1) Notwithstanding anything provided for in Clauses 9 and 10 of this Bill of Lading, if it can
be proved where the loss or damage occurred, the Carrier and the Merchant shall, as to the liability
of the Carrier, be entitled to require such liability to be determined by the provisions contained in
any international convention or national law, which provisions: (a) cannot be departed from by
private contract, to the detriment of the claimant, and (b) would have applied if the Merchant had
made a separate and direct contract with the Carrier in respect of the particular stage of transport
where the loss or damage occurred and received as evidence thereof any particular document
which must be issued if such international convention or national law shall apply. (2) Insofar as
there is no mandatory law applying to carriage by sea by virtue of the provisions of sub-clause 11
(1), the liability of the Carrier in respect of any carriage by sea shall be determined by the
International Brussels Convention 1924 as amended by the Protocol signed at Brussels on
February 23rd 1968 – The Hague/Visby Rules.
116
Door-to-Door Transport, CMI Yearbook 2000, p. 120.
Subject to article 6, this Convention applies to contracts of carriage in which the place of
receipt and the place of delivery are in different States, and the port of loading of a sea
carriage and the port of discharge of the same sea carriage are in different States, if, according
to the contract of carriage, any one of the following places is located in a Contracting State:. . .
while art. 1.1. defines a contract of carriage as:

Contract of carriage means 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.
Accordingly the two principal elements of the scope of the Rotterdam Rules are
that there must be a contract of carriage by sea and this carriage by sea must be an
international one. Furthermore, there may be a carriage or carriages by mode or
modes other than sea carriage as well as a place of receipt and/or a place of delivery
that are different from the port of loading or unloading.
4.5.1.1 Internationality of the Carriage
Art. 5 requires “double internationality” of the carriage.117 Double internationality

means both the entire carriage and the sea carriage must be international.118 Thus, for
instance, the Rotterdam Rules apply to a carriage from Odessa, Ukraine to Istanbul,
Turkey by sea then to Drama, Greece by land but does not apply to a carriage from
Bursa, Turkey to Istanbul, Turkey by sea then to Drama, Greece by land.
4.5.1.2 Contractual Approach
The contractual approach119 means that the Rotterdam Rules apply to a certain type
of contract with specific economic and operational characteristics. This type of
contract involves the carriage of goods wholly or partly by sea, which in current
practice frequently calls for door-to-door carriage. This means that the goods may
be carried not only by sea, but also by other modes of transport preceding and/or
subsequent to the sea carriage. It should be noted that the contractual approach is
not unique. Most of the existing international transport conventions, such as
Hamburg Rules, CMR, COTIF/CIM 1999, CMNI and Montreal Convention follow
the contractual approach, to a greater or lesser degree.120
117
Peter Mankowski, Scope of Application and Freedom of Contract, paper presented at the
Conference Rotterdam Rules Appraised, September 24–25, 2009, Erasmus Universiteit Rotterdam
(unpublished), p. 3.
118
Id.
119
Other approaches are documentary approach, used in Hague Rules, and trade approach. A/CN.
9/572 } 84–86.
120
Ulfbeck (2009), p. 4.
Furthermore, as long as the contract of carriage provided that the goods would be
carried by sea, the Rotterdam Rules would apply even if the goods were not actually
so carried.121 As the contract could identify a port of loading and a port of discharge
in different States, the Rotterdam Rules would apply, even if the goods had not
actually been loaded or discharged at those named ports.122 Alternatively, if the
contract of carriage failed to mention any of the places or ports listed in art. 5,
subparagraphs 1 (a)-(d), it would be possible to infer that the Rotterdam Rules
would not apply, even though the goods might, in fact, have been carried by sea in a
manner that would have complied with the Rules requirements.123 From time to
time many contracts, for good commercial reasons, have left the means of transport
open, either entirely or between the number of possibilities. In that regard, if the
contract did not specify the mode or had left the specification to the carrier’s option,
it might be assumed that the Rotterdam Rules would not apply, unless a requirement
for carriage by sea could be implied.124
4.5.1.3 Maritime Plus
The Rotterdam Rules apply to door-to-door transports, i.e. they apply to the whole
carriage if the carriage includes ancillary modes before or after sea carriage. The scope
of application of the Rotterdam Rule to door-to-door contracts of carriage is described
as a “maritime plus” approach, since the common factor for the application of the
Draft Instrument is a sea leg.125 That is to say if there is no sea leg involved the
Rotterdam Rules will not apply. In terms of liability, the Rules have chosen to apply a
“limited network liability” system for such a “maritime plus” approach.126
4.5.2 Conditions for the Operation of Article 26
4.5.2.1 The Limited Network Liability System

and the Hypothetical Contract
In Europe the network or the limited network system has been the starting point for
the regulation of multimodal transport.127 Existing conventions and legislations are
based on this system. The contractual approach taken in the European transport
121
A/63/17 } 21.
122
Id.
123
Id.
124
Id.
125
A/CN.9/WG.III/WP.29 } 8
126
A/CN.9/526 } 219–239.
127
Ulfbeck, p. 47
conventions has had an impact on the network system.128 The network system in
Europe focuses on the liability of the contracting carrier and does not deal with the
direct liability of the subcontracting carrier.129 Generally, unimodal conventions do
not regulate the direct liability of the subcontracting carrier; therefore the network
principle cannot be formulated by reference to any unimodal rules governing the
liability of the subcontracting carrier because no such rules exist. Instead, reference
is made to the rules that would govern the liability of the subcontracting carrier if
the shipper and subcontracting carrier had been directly contracted. Consequently,
the contractual approach necessitates the concept of “the hypothetical contract”.
This technique was also applied in drafting the Rotterdam Rules. The Rotterdam
Rules are intended to adjust maritime transport to modern reality by adopting a
door-to-door regime. According to art. 12.1 the period of responsibility of the
carrier is as follows:
The period of responsibility of the carrier for the goods under this Convention begins when
the carrier or a performing party receives the goods for carriage and ends when the goods
are delivered.
For the application of the network liability system art. 26 was also included.
Accordingly art. 26130 reads that
When loss of or damage to goods, or an event or circumstance causing a delay in their
do not prevail over those provisions of another international instrument that, at the time of
such loss, damage or event or circumstance causing delay:
(a) Pursuant to the provisions of such international instrument would have applied to all or
any of the carrier’s activities if the shipper had made a separate and direct contract with the
carrier in respect of the particular stage of carriage where the loss of, or damage to goods, or
an event or circumstance causing delay in their delivery occurred;
(b) Specifically provide for the carrier’s liability, limitation of liability, or time for suit; and
(c) Cannot be departed from by contract either at all or to the detriment of the shipper under
that instrument.
In other words, the article states that where the damage is localized and there is a
relevant transport convention applicable to that stage, the specific rules of that
convention will apply.131 Likewise, by reason of that other transport convention,
certain issues of the carrier’s liability will be determined in a hypothetical contract
128
Id. p. 48. In fact this is the approach taken by the traditional transport law conventions. Fujita
(2009), p. 366.
129
Id.
130
The language used in the earlier version of the art. 26, art. 4.2.1. at that time, see supra p. 113,
meant that another transport convention would apply if according to its own terms it had to apply
to the inland part of the multimodal carriage. van der Ziel (2009), p. 987; Krijin Haak, Carriage
Preceding or Subsequent to Sea Carriage under the Rotterdam Rules, paper presented at the
(unpublished), p. 3.
131
van der Ziel (2009), p. 983.
between the shipper and the carrier of this other form of transport. Otherwise the
Rotterdam Rules will apply throughout the voyage. In that case the liability will be
uniform.
The following is an example of such a situation: Goods are carried from China to
North Iraq through the port of Mersin in Turkey. The goods from China to Turkey
are carried by sea, then from Mersin to the North Iraq by road. Damage occurs
during the road carriage from Mersin to Iraq. According to the hypothetical contract
technique if the shipper had made a separate and direct contract with the carrier in
respect of the particular stage of the carriage where loss of or damage to goods or
delay in delivery occurred, the liability rules of CMR would have applied to this
damage because both Turkey and Iraq are party to the CMR Convention and the
damage occurred during the hypothetical CMR contract stage.
4.5.2.2 There Must Be an International Instrument Applicable

to the Period Preceding or Subsequent to Sea Carriage
Under the hypothetical contract technique art. 26 applies if another transport

instrument applied to the inland part of multimodal transport. The Draft prepared
at the sixteenth session at its art. 27132 provided that:
1. When a claim or dispute arises out of loss of or damage to goods or delay occurring solely
during the carrier’s period of responsibility but:
(a) Before the time of their loading on to the ship;
(b) After their discharge from the ship to the time of their delivery to the consignee; and, at
the time of such loss, damage or delay, provisions of an international convention [or
national law]: . . ..
In order to improve the wording it was redrafted133 and became art. 26:
1. When loss of or damage to goods, or an event or circumstances causing a delay in their
do not prevail over those provisions of another international instrument [or national law]
that, at the time of such loss, damage or event or circumstance causing delay: . . .
The difference between these two versions is that the word convention in the
former has been changed to instrument in the latter. The reason for this change was
to include the mandatory regulations of regional organizations.134 All relevant
international instruments in this context were regarded as international conventions,
for example, a regulation issued by a regional economic integration organiza-
tion.135 In other words, both current conventions such as CMR, COTIF/CIM and
a future EU regulation would fall under this article. From such wording it is also
132
It was art. 27 at that time.
133
134
A/CN.9/WG.III/WP.81 fn. 88.
135
A/CN.9/645 } 84.
clear that not only the existing instruments but also future possible instruments fall
under this provision. In other words, the principle is that relevant provisions of the
instrument that are in force at the time the loss, damage or delay occurred will be
applicable. For instance, although there is no EU-wide regulation on multimodal
transport, the EU has been planning to have one. If the EU makes a regulation in the
future, this Instrument will be applicable under art. 26.
Furthermore, only applicable instruments are international ones; national law
does not apply.136 Art. 26 of the Rotterdam Rules also contained a reference to
“national law” in square brackets. After long and extensive discussions, the refer-
ence to “national law” was deleted137 because the substance of the international
instrument could be quite well known, transparent and harmonized whereas
national law varies from state to state. Thus, it would be difficult to discover
requirements of particular national law. Furthermore, national law is more likely
to change any time. Consequently, the inclusion of national law would have posed a
great obstacle to international trade.138
4.5.2.3 The Loss, Damage or Delay Must Occur Solely During the Period
Preceding or Subsequent to Sea Carriage
For the limited network system to apply, the damage must have occurred during the
period before or after the sea carriage. In this respect there were three choices: the
place where the damage was caused, where it occured, or where it was detected.139
The place of occurrence was determined to be the proper choice.140 The place
where damage occurs is a factual matter.141 Further, it is usually relatively easy to
establish and may produce the fairest results.142
It is clear from the wording that the loss or damage in question must have
occurred solely in the course of the carriage preceding or subsequent to sea carriage.
This means that where the damage occurred during more than one leg of the
carriage or where it cannot be proved where the loss or damage occurred,
the Rotterdam Rules will be applicable to the whole door to door transit
136
van der Ziel (2009), p. 984.
137
A/CN.9/621 } 189–192; A/CN.9/642, } 163, 166.
138
A/63/17 } 92–98.
139
140
Id.
141
Id.
142
Id.; van der Ziel (2009), p. 987. The time of detection has been found to produce an imbalanced
result because detection is often after delivery. The place where the damage is caused may be
before the voyage begins, e.g. in case of the damage caused by the shipper having the cargo badly
stowed in a container. The most serious objection against the place where the damage is caused is
that the question of proper causation according to the applicable law has to be resolved before it
can be determined whether the provisions of this draft instrument or of another convention are
applicable. A/CN.9/WG.III/WP.21 } 53.
period.143 For instance, if frozen meat has begun to defrost prior to loading onto
a ship and has defrosted while on the ship the Rotterdam Rules will be
applicable to the whole period of carriage.144
4.5.2.4 Applicable Provisions of the International Instrument Must

Relate to Liability and Must Be Mandatory
The proposed limited network system in the Rotterdam Rules only applies to
provisions directly relating to the liability of the carrier, including limitation and
time for suit. Provisions in other instruments that may indirectly affect liability,
such as jurisdiction provisions, are not affected.145 Also many other legal provi-
sions mandatorily applicable to inland transport were not intended to be replaced by
the Rotterdam Rules because they are directed specifically to inland transport rather
than to a contract involving carriage by sea. For instance, consignment note
requirements of the CMR may apply between the carrier and sub-carrier, but their
application to the main contract of carriage regulated by the Rotterdam Rules are
inconsistent with the document (or electronic record) required by the Rules for the
whole journey.146 Likewise the provisions of the CMR relating to the right to give
instructions to the carrier (articles 12–14) have been applied only to the relation
between carrier and sub-carrier (in which relation the carrier is “sender”).
Furthermore, as expressly provided in art. 26(c), these provisions on the liability
of the carrier’s limitation of liability or time for suit must be mandatory in
character.147 Mandatory in character means that otherwise these provisions cannot
be agreed to. The mandatory character can be one sided or two sided.148
4.5.3 Is the Inland Carrier Liable Under the Rotterdam Rules?
The treatment of performing parties in the Rotterdam Rules was an important

matter that would have shaped the entire instrument. After lengthy discussions
land carriers were mainly out of the scope of the Rotterdam Rules. Articles 18 and
19 respectively provide that:
143
144
Berlingieri (2009).
http://www.rotterdamrules2009.com/cms/uploads/Def.%20tekst%20F.%20Berlingieri%2013%
20OKT29.pdf, pp. 5–6 (accessed 21 October 2010); van der Ziel (2009), pp. 986–987.
145
146
Id.
147
Berlingieri (2009), p. 6.
148
van der Ziel (2009), p. 986.
18. The carrier is liable for the breach of its obligations under this Convention caused by the acts
or omissions of: (a) Any performing party; . . . (c) Employees of the carrier or a performing party;
and
19. A maritime performing party is subject to the obligations and liabilities imposed on the
carrier under this Convention and is entitled to the carrier’s defenses and limits of liability
as provided for in this Convention if:. . .
Taken together, the articles emphasize that it is the contracting carrier who is
responsible for performance of the entire carriage.149 Furthermore, art. 1.7 states
that “an inland carrier is not a maritime performing party as long as it performs or
undertakes to perform its services outside a port area”.150 Thus such an inland
carrier neither becomes liable under the Rotterdam Rules nor is listed in art. 4 of the
Rules as a person who can enjoy Himalayan protection.151 His liability will
continue to be governed by existing law, whichever regional unimodal convention
or mandatory or non-mandatory domestic law it would be. The Rotterdam Rules
excluded the inland carriers because the industry both in Europe and in North
America did not want it.152
4.5.4 Burden of Proof and Possible Favorable Impact

of Art. 26 on the Carrier’s Liability
Art. 17 of the Rotterdam Rules in its subsections 1 and 2 provides that:

1. The carrier is liable for loss of or damage to the goods, as well as for delay in delivery, if
the claimant proves that the loss, damage, or delay, or the event or circumstance that caused
or contributed to it took place during the period of the carrier’s responsibility as defined in
chapter 4.
2. The carrier is relieved of all or part of its liability pursuant to paragraph 1of this article if
it proves that the cause or one of the causes of the loss, damage, or delay is not attributable
to its fault or to the fault of any person referred to in article 18.
Accordingly, the onus is on the carrier to prove the cause of the damage. It is said
that art. 26 is an exception to this general rule. Both carrier and shipper or consignee
may invoke its application.153 Furthermore, in most cases of inland transport the
cause of damage is obvious such as road accidents or theft. In such a case the burden
of proof is not an issue as the facts of the case are clear.
149
van der Ziel (2009), p. 991.
150
A/CN.9/526 } 251–256; A/CN.9/544 } 20–27; Proposal by the United States of America
A/CN.9/WG.III/WP.34 } 5–9; A/63/17 } 79–80.
151
A/CN.9/616 } 220, 222–233; A/CN.9/621 } 132, 134–135.
152
The industry stated that there was well established practice of inland transport. A/CN.9/WG.III/
WP.84; A/CN.9/WG.III/WP.90; For a criticism of such desire see Sturley (2009), pp. 35 ff.
153
Berlingieri (2009), p. 6.
Additionally limits under the Rotterdam Rules may result in a more favorable
outcome than the limits under the inland transport conventions.154 At the outset, the
inland liability regime seems to be more favorable to cargo interests.
Convention Limitation
CMR 8,33 SDR/kg (art. 23)
COTIF/CIM 17 SDR/kg (art. 40)
Rotterdam Rules 3 SDR/kg or 875 SDR/unit (whichever is higher) (art. 59)
However, particularly in the multimodal carriage of containerized packed goods

the limits of the Rotterdam Rules may be higher than the limits under the road
transport convention if the package weighs less than 105 kg.
Convention Limitation
CMR 100 kg 8.33 SDR ¼ 833 SDR
Rotterdam Rules 100 kg 3 SDR ¼ 300 SDR lower than per package unit 875 SDR;
instead of 300 SDR 875 is payable under the Rotterdam Rules
Obviously in such a case the carrier has an interest in proving that the damage
occurred during the inland stage.155
4.5.5 Resolving the Conflicts Between the Conventions
Art. 26 was prepared as a conflict resolving provision with a minimal limited

network system of liability; however later on it became apparent that there might
still be overlap. The reason was that unimodal transport conventions contained
certain multimodal dimensions and the Rotterdam Rules, the Draft Instrument at
that time, gave preference only to specific provisions of applicable unimodal
conventions.156 These specific provisions are carrier’s liability, limitation of liabil-
ity and time for suit. However, due to the multimodal dimensions of the other
transport conventions both the Rotterdam Rules and any other relevant transport
convention may be applicable to the same contract of carriage. Art. 82 solves the
conflict in such a case.
4.5.5.1 Operation of Article 82
When both art. 26 and 82 are taken together art. 26 serves as a conflict avoiding
provision. When art. 26 cannot overcome conflicts then art. 82 comes into play.157
154
Id. p. 5; van der Ziel (2009), p. 990.
155
van der Ziel (2009), p. 990.
156
A/CN.9/526 } 220, 222, 246. For the text of the provision see supra p. 113.
157
For a review of case law in Europe see Haak, p. 8.
This issue is considered one of the most difficult subjects of the Rotterdam Rules.158
Art. 82 reads as follows:
Nothing in this Convention affects the application of any of the following international
conventions in force at the time this Convention enters into force, including any future
amendment to such conventions that regulate the liability of the carrier for loss of or
damage to the goods:
(a) Any convention governing the carriage of goods by air to the extent that such conven-
tion according to its provisions applies to any part of the contract of carriage;
(b) Any convention governing the carriage of goods by road to the extent that such
convention according to its provisions applies to the carriage of goods that remain
loaded on a road cargo vehicle carried on board a ship;
(c) Any convention governing the carriage of goods by rail to the extent that such
convention according to its provisions applies to carriage of goods by sea as a
supplement to the carriage by rail; or
(d) Any convention governing the carriage of goods by inland waterways to the extent that
such convention according to its provisions applies to a carriage of goods without trans-
shipment both by inland waterways and sea.
Accordingly four categories of conventions have priority over the Rotterdam

Rules. In other words if any conflict arises between the Rotterdam Rules and the
four categories of conventions, the relevant convention rather than the Rotterdam
Rules will apply. Any such conflict can arise because of the scope rules of the
conventions.
Applicable Provisions Are Not Restricted to the Provisions on the Liability

for Loss of or Damage to Goods
Art. 82 states that “Nothing in this Convention affects the application of any of the
following international convention . . . that regulate the liability of the carrier for
loss of or damage to the goods”. One may think that art. 82 limits the scope to the
provisions on the liability of carriers only; other issues such as transport documents,
rights of control, shipper’s liability, delivery, transfer of rights, jurisdiction and
arbitration remain outside.159 A review of the drafting history of art. 82 does not
reveal the intention clearly. Previous versions of art. 82 do not consist of such
restrictions. Concerns on the scope provisions of the other transport law conven-
tions was the basis for the drafting of art. 82. However in order to solve all conflicts
arising from the overlap of the scope provisions the article should not be confined to
liability provisions only. “That regulate the liability of the carrier for loss of or
damage to the goods”, probably, reflects the customary construction of the transport
law conventions as they primarily regulate issues of carrier’s liability.
158
van der Ziel (2009), p. 993.
159
Erik Rosaeg, Conflicts of the Conventions in the Rotterdam Rules, paper presented at the
(unpublished), pp. 10–11.
Conventions That Have Priority Over the Rotterdam Rules
Conventions Governing the Carriage of Goods by Air

At the negotiations of the Rotterdam Rules, air and sea combination in the same
carriage had been stated as a rare occasion.160 However due to the scope provisions
of the Montreal Convention a clarification was found necessary.161 Art. 38 of the
Montreal Convention is titled Combined Carriage and provides that
1. In the case of combined carriage performed partly by air and partly by any other mode of
carriage, the provisions of this Convention shall, subject to paragraph 4 of Article 18, apply
only to the carriage by air, provided that the carriage by air falls within the terms of Article 1.
Furthermore art. 18(4) and art. 1 mentioned in art. 38 state, respectively, that:
The period of the carriage by air does not extend to any carriage by land, by sea or by inland
waterway performed outside an airport. If, however, such carriage takes place in the
performance of a contract for carriage by air, for the purpose of loading, delivery or
transshipment, any damage is presumed, subject to proof to the contrary, to have been
the result of an event which took place during the carriage by air. If a carrier, without the
consent of the consignor, substitutes carriage by another mode of transport for the whole or
part of a carriage intended by the agreement between the parties to be carriage by air, such
carriage by another mode of transport is deemed to be within the period of carriage by air.
and
This Convention applies to all international carriage of persons, baggage or cargo per-
formed by aircraft for reward.
Consequently, there may be cases162 where both the Montreal Convention and
the Rotterdam Rules apply. In such cases the Montreal Convention rather than the
Rotterdam Rules will apply.
It is to be noted that although the Drafters of the Rotterdam Rules considered
only the Montreal Convention conflicting with the Rotterdam Rules Convention for
the Unification of Certain Rules Relating to International Carriage by Air, 1929 the
Warsaw Convention is still applicable in some States and will continue to be
applicable until all parties to it ratify the Montreal Convention. The Warsaw
Convention in its articles 31, 18(3) and 1 contain provisions similar to that of the
Montreal Convention mentioned above.
Conventions Governing the Carriage of Goods by Road

In Europe international carriage of goods by road is regulated by the CMR. The
CMR has been very successful and has expanded over the years.163 The CMR
160
A/CN.9/616 } 234.
161
Id. 220.
162
For the specific instances see Hancock, p. 494.
163
For an evaluation of this success see Bon-Garcin (2006).
governs transport operations not only in Europe but also in Asia, Maghreb, and
Middle East.164
The CMR in its articles 1 and 2 provides, respectively, that
1.1. This Convention shall apply to every contract for the carriage of goods by road in vehicles
for reward, when the place of taking over of the goods and the place designated for delivery, as
specified in the contract, are situated in two different countries, of which at least one is a
Contracting country, irrespective of the place of residence and the nationality of the parties.
and
2.l. Where the vehicle containing the goods is carried over part of the journey by sea, rail,
inland waterways or air, and, except where the provisions of article 14 are applicable, the
goods are not unloaded from the vehicle, this Convention shall nevertheless apply to the
whole of the carriage. Provided that to the extent it is proved that any loss, damage or delay in
delivery of the goods which occurs during the carriage by the other means of transport was
not caused by act or omission of the carrier by road, but by some event which could only have
occurred in the course of and by reason of the carriage by that other means of transport, the
liability of the carrier by road shall be determined not by this Convention but in the manner in
which the liability of the carrier by the other means of transport would have been determined
if a contract for the carriage of the goods alone had been made by the sender with the carrier
by the other means of transport in accordance with the conditions prescribed by law for the
carriage of goods by that means of transport. If, however, there are no such prescribed
conditions, the liability of the carrier by road shall be determined by this Convention.
Art. 2 speaks mainly about roll-on roll-of (ro-ro) transport. There are several ro-
ro lines both serving to and/or from Turkish ports in the Black Sea, Mediterranean
and Aegean Sea regions. Here is an example of the conflict of the CMR and the
Rotterdam Rules: Cargo loaded on a truck in Kiev, Ukraine, carried to Odessa,
Ukraine by road, from Odessa to Zonguldak, Turkey by ferry; and from Zonguldak
to Ankara, Turkey by road. Cargo damaged in an accident from Zonguldak to
Ankara. Turkey is a party to the CMR; assume that it is also party to the Rotterdam
Rules. Both the CMR and the Rotterdam Rules are applicable to such a case as long
as the cargo is not unloaded from the truck. Art. 82 (b) gives priority to the CMR in
such a case.165
Convention Governing the Carriage of Goods by Rail

In Europe transport by rail is regulated by the COTIF/CIM. In art. 1 the CIM
contains provisions having multimodal effect. Accordingly they state as follows:
} 1 These Uniform Rules shall apply to every contract of carriage of goods by rail for
reward when the place of taking over of the goods and the place designated for delivery are
situated in two different Member States, irrespective of the place of business and the
nationality of the parties to the contract of carriage.
164
See status of the CMR at http://www.unece.org/trans/conventn/legalinst_25_OLIRT_CMR.
html (accessed 21 October 2010).
165
It is stated that it is the discretion of the Court. Fujita (2009), p. 365.
} 3 When international carriage being the subject of a single contract includes carriage by
road or inland waterway in internal traffic of a Member State as a supplement to transfron-
tier carriage by rail, these Uniform Rules shall apply.
} 4 When international carriage being the subject of a single contract of carriage includes
carriage by sea or transfrontier carriage by inland waterway as a supplement to carriage by
rail, these Uniform Rules shall apply if the carriage by sea or inland waterway is performed
on services included in the list of services provided for in Article 24 } 1 of the Convention.
Turkey is a party the Convention and the list mentioned in art. 24 includes lines
Samsun, Turkey- Constance, Romania and Derince, Turkey- Constance, Romania. If
the cargoes are transported by the lines listed, both the Rotterdam Rules and the
COTIF/CIM are applicable. Here again the Rotterdam Rules give priority to the CIM.
Convention Governing the Carriage of Goods by Inland Waterways
Carriage by inland waterway within Europe is governed by the Budapest Conven-

tion on the Contract for the Carriage of Goods by Inland Waterway (CMNI).166 The
CMNI in its art. 1 and 2 consists of provisions having multimodal effect. Turkey is
not a party to the Convention; but it is stated that Turkey considers ratification of the
CMNI.167 If both Conventions are applicable to the contract of carriage, again the
CMNI prevails over the Rotterdam Rules.
Convention Must Be in Force at the Time the Rotterdam Rules Enter into Force
Both the language and the scope of art. 82 are different from those of art. 26. The
conventions mentioned in art. 82 must be in force when the Rotterdam Rules enter
into force. Any future amendments to such conventions also fall under the art. 82.
However, a completely new convention is out of the application of art. 82. By
contrast art. 26 comprises any instrument that will be regulated in the future.
Furthermore, art. 82 consists of only conventions; it does not consist instruments
as in art. 26. Therefore, any future “instrument” of the EU does not fall under art. 82.
4.6 Conclusion
The multimodal transport industry is a sophisticated industry. In order to meet

the needs of the modern transport operations the Rotterdam Rules extended their
scope to other modes of carriages preceding or subsequent to the sea carriage.
Parties to the contract of carriage under the Rotterdam Rules are, however, free to
restrict its scope to port-to-port or tackle-to-tackle. The extension gives rise to very
complex issue of conflicts with other conventions. In order to overcome conflicts the
166
22 June 2001. The Convention entered into force 1 April 2005.
167
Arat (2010).
Rotterdam Rules have a two tier system: conflict avoiding art. 26 and conflict
solving art. 82. When the conditions of the art. 26 are met liability rules of the
other instrument apply rather than the Rotterdam Rules. When both the Rotterdam
Rules and other transport conventions are applicable to the same contract due to the
respective scope provisions, other conventions prevail over the Rotterdam Rules.
The problem itself is complex one and solving it will be even more complex.
Obviously the transport industry needs modernization and uniformity. However, it
is often stated that transport industry needs simple legal rules. If this is really what
industry desires the best way could be to abolish all unimodal conventions and
introduce one that would cover each and all modes of transport in the future.
References
Arat E (2010) Tuna Nehri’nde Seyr€ usefer ve T€urkiye. http://www.mfa.gov.tr/tuna-nehri_nde-

seyrusefer-ve-turkiye.tr.mfa. (Accessed 29 Oct 2010)
Berlingieri F (2009) Multimodal aspects of the Rotterdam Rules. Paper presented at the collo-
quium of the Rotterdam Rules 2009, De Doelen, (Accessed 21 September 2009)
Bon-Garcin I (2006) The 50th anniversary of the CMR convention – future and perspectives of
international road transport. Unif. L. Rev.: 698–714
multimodal implications. Tex. Int’l. L.J. 44:349
Hancock C (2008) Multimodal transport and the new UN convention on the carriage of goods.
JIML 14:484
Mankabady S (1983) The multimodal transport of goods convention: a challenge to unimodal
transport conventions. ICLQ 32:120
Nassari K (1988) The multimodal convention. JMLC 19:231
Schoenbaum TJ (2004) Admiralty and maritime law, vol 1, 4th edn, Thomson West
Sturley MF (2007–2008) The UNCITRAL carriage of goods convention: changes to existing law.
CMI Yearb:255
Sturley MF (2009) Maritime cases about train wrecks: applying maritime law to the inland damage
of ocean cargo. JMLC 40:1
Tetley W (2008) Marine cargo claims, 4th edn, Thomson Carswell
Ulfbeck V (2009) Multimodal transports in the United States and Europe – global or regional
liability rules? Tul. Mar. L.J. 34:37
van der Ziel G (2009) Multimodal aspects of the Rotterdam Rules. Unif. L. Rev. 14:981
Chapter 5
Obligations and Liabilities of the Carrier
€
M. Fehmi Ulgener
Abstract The Rotterdam Rules follow the model of the Hague-Visby Rules by
imposing specific obligations on the carrier, such as to load, handle and stow
the goods. However, the Rotterdam Rules impose two further obligations resulting
from the extended scope of the Rotterdam Rules: they are the obligations to receive
and deliver the goods. Furthermore, under the Rotterdam Rules the carrier is bound
to exercise due diligence to make and keep the ship seaworthy not only at the
commencement of the voyage but also during the entire voyage by sea.
5.1 Introduction
The Rotterdam Rules is an international convention in order to frame new regula-

tions for the carriage of goods including the sea leg. Since these rules provide many
new features, this essay will assess, besides the responsibility of the carrier the
substance, progress and the main concepts of the Convention.
5.1.1 Substance of the Rotterdam Rules
The main purpose of the Rotterdam Rules which are founded upon the works of the
UNCITRAL (“United Nations Commission on International Trade Law”) is set
forth as follows:
1. Since the beginning of the twentieth century, many States, including Turkey,
have provided rules, within the frame of conventions and principles, for carriage
by sea and for the liability of the carrier, one of the most important components
€
Prof. Dr. M.F. Ulgener
Istanbul University, Faculty of Law, Istanbul, Turkey
and
Legal Counsel for Turkish Chamber of Shipping, Istanbul, Turkey
e-mail: fehmi@ulgener.com
140 €
M.F. Ulgener
of the carriage by sea. However, there is an existing need for the modernization
of those rules in harmony with the needs of the current day.
2. Another important aim of the convention is (“regional”) harmonization. Despite
the fact that the Hague Rules have provided this harmonization partially, these
rules, as previously mentioned, are based on principles that are more than a
hundred years old. Therefore, the main purpose of this Convention is to render
the Rotterdam Rules, in the form of a modern structure, effective in as many
States as possible.
3. Furthermore, the Convention includes all kinds of carriage, including the sea
leg, and aims to cover all types of carriage under the roof of a single legislation
(“single liability regime”).
4. As a result of the above mentioned purposes, it is also aimed to anticipate any
dispute that may arise as also the result of such dispute.
5. Finally, as with all international conventions, the Rotterdam Rules aim to
increase the trust in international trade.
The Rotterdam Rules have been framed to provide a modern and combined legal
system, which covers the door-to-door carriage of goods by sea; therefore, in
common parlance, this convention is also referred to as the “maritime plus” or
“wet multi-modal transport” convention.
On the basis of the points mentioned above there is every reason to assess the
Rotterdam Rules as a general convention concerning carriage which also includes
the “door-to-door” carriage, in parallel to the modernised classic principles of
maritime law regarding liability.
5.2 Obligations of the Carrier
Chapter 4 article 11 of the Rotterdam Rules states that “the carrier shall, subject to
this Convention and in accordance with the terms of the contract of carriage, carry
the goods to the place of destination and deliver them to the consignee”. These
obligations of the carrier which are more of a general nature compared to those in the
Hague and Hague-Visby Rules, are set forth in the following articles of Chapter 4.
5.2.1 Period of Responsibility of the Carrier
Chapter 4 article 12.1 of the convention states that the period of responsibility of the
carrier for the goods begins when the carrier (or a performing party) receives the
goods for carriage and ends when the goods are delivered.
Different from other conventions pertaining to the carriage of goods, the Rotterdam
Rules expressly provides the boundaries for the period of responsibility of the carrier.
Therefore, the convention has defined the period as one where the carrier is in
actual possession of the goods as a compulsory provision; and states expressly that
5 Obligations and Liabilities of the Carrier 141
the period of responsibility cannot be less than the period of possession, which is an
appropriate provision.
Chapter 4 article 13.1 of the convention provides the specific obligations of the
carrier.1 According to this:
The carrier shall, during the period of its responsibility as defined in article 12, and subject
to article 26, properly and carefully receive, load, handle, stow, carry, keep, care for, unload
and deliver the goods.
Paragraph 2 of the same article (notwithstanding paragraph 1 of this article and

without prejudice to the other provisions in Chapter 4 and to Chapters 5–7 and
referring to the contract particulars) states that
the carrier and the shipper may agree that the loading, handling, stowing or unloading of the
goods is to be performed by the shipper, the documentary shipper or the consignee.
It is clearly understood that this article aims to open the door, within the frame of
the convention, for the “FIOST” or “Free in – Liner Out” regulations, which are
commonly exercised in maritime transportation.
5.2.2 Providing for the Seaworthiness of the Vessel
As is well known, the Hague and Hague-Visby Rules provided a regime where the
carrier’s main obligation was to ensure the seaworthiness, roadworthiness and
cargoworthiness at the beginning of the voyage. As generally accepted in the
doctrine, in cases where the ship becomes unworthy for any of the conditions
mentioned therein and for any reason at the beginning of the voyage, it is deemed
as that the carrier could not provide the ship in a worthy condition.
The same issue has been regulated under the Rotterdam regime in Chapter 4
article 14. According to this article:
The carrier is bound before, at the beginning of, and during the voyage by sea to exercise
due diligence to:
(a) Make and keep the ship seaworthy;
(b) Properly crew, equip and supply the ship and keep the ship so crewed, equipped and
supplied throughout the voyage; and
(c) Make and keep the holds and all other parts of the ship in which the goods are carried,
and any containers supplied by the carrier in or upon which the goods are carried, fit and
safe for their reception, carriage and preservation.
1
HAGUE-VISBY: III.2. “Subject to the provisions of Article IV, the carrier shall properly
and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried.”
ROTTERDAM: Art.12.1. “The period of responsibility of the carrier for the goods under this
Convention begins when the carrier or a performing party receives the goods for carriage and
ends when the goods are delivered” Art.13.1.: “The carrier shall during the period of its
responsibility as defined in article 12, and subject to article 26, properly and carefully receive,
load, handle, stow, carry, keep, care for, unload and deliver the goods”.
142 €
M.F. Ulgener
The subject provision is expanded by the Rotterdam Rules in favour of the

carrier. As grounds for such expansion it is argued that during the period when the
Hague regime was created, the carrier had more of control over the ship. However,
as of now the carrier is not only liable to maintain the ship seaworthy, cargoworthy
and roadworthy before and at the beginning of a voyage, but is also liable to provide
such conditions during the voyage.
The provision regarding the seaworthiness of the ship is a compulsory
provision, such that article 80.4, which lists the exemptions to the compulsory
provisions explicitly states that the compulsory attribute of article 14.a and
14.b may not be revoked. On the other hand, article 14.c, which deals
with the cargoworthiness of the ship is excluded from the scope of appli-
cation. If the other conditions are satisfied, the regime of the convention may
be changed.
Agreeing to the main idea that the responsibility of the carrier over the ship in
modern maritime customs extends over the whole voyage, we are of the opinion
that the liability to provide seaworthiness of the ship before the commencement
of the voyage is more important and, therefore, should be interpreted in a
stricter manner against the carrier. On the other hand, the continuation of
the seaworthiness of the ship during the voyage may be interpreted in a broader
manner, since the carrier will only be liable for those decisions it made or
for those which it should have made during the voyage. Considering that the
captain has the control over the ship during the voyage, it is understandable
that the liability before the voyage is more provable than the liability
during the voyage (broad interpretation of liability before the voyage, strict
interpretation of liability during the voyage).
5.3 Liability of the Carrier
The Rotterdam Rules, different from the Hague and Hamburg Rules, framed
provisions not only for the carriage of goods by sea, but also for the door-to-door
carriage; and thus aims (so far as possible) to cover all types of carriage under the
roof of a single legislation (“single liability regime”).
Different liability regimes within the bills of lading for stages other than the sea
leg (damage on land), will have to change with the coming into force of the
Rotterdam Rules. An exception to this is set forth under article 26; stating that
the Rotterdam Rules will not be applicable when the provisions of another interna-
tional instrument (such as CMR) is applied. On the other hand, in consideration of
the fact that it is not always easy to determine where and when the damage or loss
occurred, it seems unavoidable that the parties have to go through long negotiations
to determine which international instrument, and therewith which liability regime,
is to be applied in their favour.
5.3.1 Systems Regarding the Liability of the Carrier
5.3.1.1 Generally
The liability of the carrier for the damage or the loss to the cargo has been a
matter of discussion since the end of the nineteenth century when maritime trade
started to evolve. As already known, the carriers were more powerful compared
to the cargo interests, and they had the opportunity to insert into the contracts
ultimate non-liability clauses, so much so that by the end of the nineteenth and
the beginning of the twentieth century the carrier had almost no liability. To
prevent such practices and to ensure a rightful solution, the liability of the carrier
was regulated under the roof of an international convention and therewith
some compulsory and binding provisions have become effective in regard to
the carrier.
5.3.1.2 Comparison of the Systems
The Hague and Hague-Visby Rules
In accordance with the Hague and Hague-Visby Rules (and therefore the Turkish
Commercial Code – TCC)
l The carrier is liable before and at the beginning of the voyage to exercise due
diligence to make the ship seaworthy, cargoworthy and roadworthy. If the
damage or loss is caused due to any unseaworthiness, the carrier has to prove
that it has exercised due diligence before and at the beginning of the voyage as
otherwise the carrier will be liable for such damage or loss.
l Besides this, the carrier shall properly and carefully load, handle, stow, carry,
keep, care for and discharge the goods carried (Art. III.2, TCC Art. 1061).
The carrier has the right to prove its non-liability under the Hague Rules, and
accordingly, the circumstances under Art. IV.2.a-q are listed as grounds for
such non-liability. However, the proof is only an indication that one of the
circumstances listed in the above mentioned subparagraphs had come about.
The only way to reverse this, in other words to prove the liability of the
carriers, is for the cargo interests to prove that the damage or loss did not come
about due to any of the circumstances mentioned above but had come about
due to fault of the carrier or any other person’s actions for which the carrier
is liable.
Therefore, the Hague Rules provide a presumption that the carrier is not liable.
The burden of proof to show that the above mentioned circumstances had come
about is on the carrier.
The non-liability conditions expressed therein are conditions where the carrier or
any other persons’ actions for which the carrier is liable has no control, with two
exceptions:
144 €
M.F. Ulgener
1. The first exception is where the damage or loss arises from an act or fault of the
crew members in the navigation or the management of the ship. Therefore in
which case even if the crew member is at fault for neglect, the carrier may be
exempt from liability.
2. The second exception is fire. If the carrier is not personally responsible in regard
to the fire, it is not liable for any damages or loss due to fire.
Hamburg Rules
As mentioned above, the Hamburg Rules provides a regime giving more protection
to the cargo interests.
The carrier is liable for any damage or loss in the Hamburg regime, if it cannot
prove due diligence exercised by itself and any other persons the actions of whom it
is liable for (including due diligence to render the ship worthy). Economical
damages for delay are included.
Therefore, the carrier is liable for damages or loss caused by delay due to
negligence or any other fault of the persons’ actions for which the carrier is liable
from the beginning upon the receipt of the goods by the carrier at the port of
loading (different from the Hague Rules where it would begin from the time of
loading on the ship) until the delivery of the goods at the port of discharge to the
consignee or port authority (differently from the Hague Rules where it would end at
the time of discharge from the ship)(Art. 4):
The Hamburg Rules placed the burden of proof on the carrier, who is liable to
prove due diligence and care.
Therefore, different from the Hague Rules, it is deemed a presumption in the
Hamburg Rules that the carrier is liable.
Another difference between the two conventions related to the goods is the lack
of a list in the Hamburg Rules, which states the non-liability cases of the carrier.
Therefore, even in the case when any of the instances in Art. IV. 2 of the Hague
Rules come about, the carrier would be liable unless it proves due diligence and
care in its actions, as mentioned above.
The only exception for the non-liability of the carrier in the Hamburg Rules is
the circumstance of fire. Accordingly, the burden of proof in the event of fire rests
on the cargo interests to show that the carrier or those persons for whose actions it is
liable was at fault or guilty of neglect (Art. 5.4).
Rotterdam Rules
The Rotterdam Rules regulate a broader field in comparison to the above mentioned
conventions. Those rules become effective upon receipt of the goods by the carrier
and cover the time and the period of voyage until the arrival at the place of delivery
(with exception to the circumstances within the scope of any other international
convention); and therefore naturally include all other types of carriage.
The carrier’s obligation to render the ship worthy at the beginning of the voyage
in the Hague and Hague-Visby Rules also exists in the Rotterdam Rules. However,
the obligation is not limited to the beginning of the voyage but also extends to the
continuation of the voyage (Art. 14).
The Rotterdam Rules
– are in line with the Hamburg Rules since they also include damage for delay.
– are on the other hand parallel to the Hague Rules regarding the presumption of
liability, as to claim damages the burden of proof is on the claimant in the
Rotterdam Rules who should prove the fault or neglect of the carrier or of those
persons whose actions the carrier is liable for (Art. 18).
Therefore, we observe that the Rotterdam Rules deem the carrier non-liable as a
presumption (Parallel to the Hague Rules).
5.3.2 Liability of the Carrier Under the Rotterdam Rules
The liability with respect to the damage or loss to the goods and the damage or loss
due to delay in the delivery, under the Rotterdam Rules, is set forth below and the
carrier must avoid such liability under the circumstances listed below.
Phase 1: (Regarding the Goods)
(Art. 17.1)
The carrier is liable for loss of or damage to the goods, as well as for delay in
delivery.
In order to hold the carrier liable, the claimant must prove that the damage had
come about during period of the carrier’s liability.
In such cases, the carrier may choose one of the two alternatives to apply:
Phase 2: (Carrier)
(Art. 17.2.)
Proving the absence of fault: The carrier is relieved of all or a proportionate part
of its liability when it proves the absence of its fault for any damages subject to a
claim which is raised from its fault or the faults of those persons whose actions the
carrier is liable for.
OR
(Art. 17.3)
Circumstances exempt from liability: Art. 17.3 of the Convention enlists the
classical circumstances of maritime law which are exempt from liability, in a
modernised way.
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Accordingly, the carrier, in respect of the liability mentioned under paragraph 1,

may prove its non-liability under paragraph 2 as it may also put forward the fact that
the following circumstance or the circumstances enlisted under the article caused
the damage, loss or delay or that such circumstances have contributed to such
damage, loss or delay:
(a) Act of God;
(b) Perils, dangers, and accidents of the sea or other navigable waters;
(c) War, hostilities, armed conflict, piracy, terrorism, riots, and civil commotions;
(d) Quarantine restrictions; interference by or impediments created by govern-
ments, public authorities, rulers, or people including detention, arrest, or
seizure not attributable to the carrier or any person referred to in article 18;
(e) Strikes, lockouts, stoppages, or restraints of labour;
(f) Fire on the ship;
(g) Latent defects not discoverable by due diligence;
(h) Act or omission of the shipper, the documentary shipper, the controlling party,
or any other person for whose acts the shipper or the documentary shipper is
liable pursuant to article 33 or 34;
(i) Loading, handling, stowing, or unloading of the goods performed pursuant to
an agreement in accordance with article 13, paragraph 2, unless the carrier or a
performing party performs such activity on behalf of the shipper, the docu-
mentary shipper or the consignee;
(j) Wastage in bulk or weight or any other loss or damage arising from inherent
defect, quality, or vice of the goods;
(k) Insufficiency or defective condition of packing or marking not performed by or
on behalf of the carrier;
(l) Saving or attempting to save life at sea;
(m) Reasonable measures to save or attempt to save property at sea;
(n) Reasonable measures to avoid or attempt to avoid damage to the environment; or
(o) Acts of the carrier in pursuance of the powers conferred by articles 15 and 16.
Phase 3: (Regarding the Goods)
(Art. 17.4; 17.5 and 17.6)

Notwithstanding article 17.3, the carrier is liable for all or part of the loss,
damage, or delay:
(a) (17.4) If the claimant proves that the fault of the carrier or of a person referred to
in article 18 caused or contributed to the event or circumstance on which the carrier
relies; or
(b) (17.4) If the claimant proves that an event or circumstance not listed in paragraph 3 of
this article contributed to the loss, damage, or delay, (and the carrier cannot prove that
this event or circumstance is not attributable to its fault or to the fault of any person
referred to in article 18).
(c) (17.5) Unseaworthiness of the ship: The carrier is also liable, notwithstanding paragraph 3
of this article, for all or part of the loss, damage or delay if the claimant proves that the loss,
damage or delay was or was probably caused by or contributed to by the unseaworthiness
of the ship; the improper crewing, equipping, and supplying of the ship; or that the ship is
not cargoworthy (and the carrier is liable if the carrier is unable to prove either that: none
of the events or circumstances referred under this subparagraph of this article caused the
loss, damage, or delay; or it complied with its obligation to exercise due diligence). (If the
carrier is partially relieved from its liability according to this article, the carrier will only
be liable for the damage, loss or delay attributable to its fault and negligence).
5.3.3 Comparison of the Non-liability in the Hague System

and the TCC Art. 1063
Assessing the Rotterdam Rules in the light of the non-liability conditions under the
Hague Rules leads us to the following conclusions:
1. NOT MENTIONED IN THE ROTTERDAM RULES: “If the damage is a
consequence of a navigational fault or fault in the management the ship. . .”
(TCC Art. 1062/2). This non-liability clause regarding the liability of the
carrier is not mentioned in the Rotterdam Rules. The non-existence of such a
clause, which is of significant importance in the Hague system, in the Rotter-
dam Rules is considered to have an adverse effect for the carrier.
The carrier will not be able to escape from liability, in cases of damage or loss,
by claiming that the navigational fault or fault in the management of the ship
was caused by the fault or neglect of the crew members.
The reason for the existence of such a non-liability clause is on the ground that
after the carrier has made the ship seaworthy and roadworthy, it completes its
final liability of exercising due diligence by crewing the ship with the required
number and class of crew members; and that it does not have control over the
acts and decisions of the crew members after this, during the voyage.
The reason for omitting the non-liability clause, on the other hand, is on the
ground that modern technologies, such as ISM which provide and control
navigational safety, allow the carrier to have continuous control over the
actions and decisions of the crew members.
Although it is sufficient in the Hague Rules for the carrier to provide a
seaworthy ship in order to be relieved of liability due to the fault and neglect
of the crew members, the Hamburg and Rotterdam Rules do not allow the
carrier to be relieved of liability for damage and loss due to faults or neglect of
the crew members even when the carrier proves the seaworthiness.
The carrier may be relieved from such liability if it is able to prove that the
damage and loss, which is the subject of the claim, did not arise from or was not
caused by its fault or the faults of those persons whose actions the carrier is
liable for. Therefore, within the frame of the Rotterdam Rules, the carrier is
never relieved from the liability in cases of damage or loss arising or resulting
from fault or neglect in the navigation or the management of the ship. The P&I
Clubs are, therefore, forced to raise their premiums, since they are the ones that
have to cover the difference in the level of liability between the Hague and the
148 €
M.F. Ulgener
Rotterdam Rules. As it is seen here, the Rotterdam Rules will inevitably cause a
financial disadvantage to the carrier.
On the contrary, it needs to be mentioned that the maritime industry supported
these rules with the expectation that it would achieve “unification” and that
organisations such as BIMCO and significant ship-owners such as Maersk have
expressed their favourable opinions. Also the support of the seafaring nations
like Norway, Netherlands and Greece proves the tendency for such support.
2. Fire (TCC Art. 1062/2): The fire-defence regarding the liability of the carrier
for damage or loss to the goods exists in all three conventions despite some
differences in regard to the carrier’s liability.
Especially in the system of the Hague Rules (and therefore the Turkish Com-
mercial Code) it is stated that the carrier is not liable for any damage or loss due
to fire, unless such liability is proven to have arisen from the personal fault of
the carrier at the beginning of the voyage.
The Rotterdam Rules preferred a slightly different system.
– Despite the fact that the carrier may claim non-liability for reason of fire
according to Art. 17.3
The claimant may still, under Art. 17.4, claim the carrier is liable upon
production of proof of the fault of the carrier or any other persons whose
actions the carrier is liable for in respect of the fire.
In other words, while the carrier is liable in the Hague regime for its personal
faults, in the Rotterdam regime the carrier is liable not only for its own, but also for
the fault of those persons whose actions it is liable for.
3. Perils, dangers, and accidents of the sea or other navigable waters: (Rotterdam
Rules Art. 17.3.b: Perils, dangers, and accidents of the sea or other navigable
waters) This non-liability clause is parallel to the Hague Rules and provides an
important exception to the liability of the carrier. This and the fact that the
following liability provisions hereunder are almost parallel to those of the Hague
system give us the strong impression that this similarity provides a milder
liability system between the carrier and the shipper. As is already known, such
non-liability clauses did not exist in the Hamburg Rules. The Rotterdam Rules
also included the “Act of God” clause to the list (Art. 17.3.a) and therewith
managed to put perils of sea and the Act of God clauses into one article.
4. War, hostilities, riots and civil commotions, act of public enemies, arrest or
seizure under legal process of authorities and quarantines: This non-liability
clause should be considered parallel to the definition made in Hague Rules. The
Rotterdam Rules also include the terms “piracy” and “terrorism” to this article
and thereby allows for adaptation to today’s needs and expands the scope of its
application. Therefore, the Rotterdam Rules should not be considered as a
one sided convention, but more of a regime that provides harmonization to
the needs of today’s transportation. For instance, defence with regard to the
technical defects are not included in the Rotterdam Rules under certain
grounds, but instead includes the risks of “terrorism” and “piracy” under
other grounds. (Rotterdam Rules Art. 17.3.c.: War, hostilities, armed conflict,
piracy, terrorism, riots, and civil commotions)
5. Seizure under legal process: Taking the foregoing article together with this
issue, it is seen that the Rotterdam Rules have parallel provisions to the Hague
Rules again. (Rotterdam Rules Art. 17.3.d: Quarantine restrictions; interference
by or impediments created by governments, public authorities, rulers, or people
including detention, arrest, or seizure not attributable to the carrier or any
person referred to in article 18).
6. Strikes or lock-outs or stoppage or restraint of labour: (Rotterdam Rules 17.3.
e: Strikes, lockouts, stoppages, or restraints of labour) The Rotterdam Rules are
parallel to the Hague Rules on this issue.
7. Act or omission of the shipper or owner of the goods, its agent or representa-
tive: (Rotterdam Rules 17.3.h: Act or omission of the shipper, the documentary
shipper, the controlling party, or any other person for whose acts the shipper or
the documentary shipper is liable pursuant to article 33 or 34) The number
of the persons causing such condition of non-liability amongst the cargo
interests has been increased while the roles of the newly introduced persons
(documentary shipper or controlling party) have been harmonized.
8. Saving or attempting to save life or property at sea: (Rotterdam Rules 17.3.
l-m: Saving or attempting to save life at sea; Reasonable measures to save or
attempt to save property at sea). This is parallel to the Hague Rules.
9. Wastage in bulk or weight or any other loss or damage arising from inherent
defect, quality or vice of the goods: (Rotterdam Rules 17.3.g: Latent defects
not discoverable by due diligence / 17.3.j.: Wastage in bulk or weight or
any other loss or damage arising from an inherent defect, quality, or vice of
the goods / 17.3.k: Insufficiency or defective condition of packing or mark-
ing not performed by or on behalf of the carrier). This is parallel to the
Hague Rules.
10. NOT MENTIONED IN THE ROTTERDAM RULES: All other damages arising
from causes other than the carrier’s personal fault or the fault of those persons
whose actions the carrier is liable for: at first glance it seems like that the non-
liability circumstance in the form of the rule of “Ejusdem generis” in the Hague
Rules has not been mentioned in the Rotterdam Rules. After a closer look it is
seen that this is not exactly the case. The relevant provision under the Hague
Rules states that “the burden of proof shall be on the person claiming the
benefit of this exception”. Since the carrier is the beneficiary of this provision,
the burden of proof is on the carrier to show that neither the personal fault of the
carrier nor the fault of those persons the actions of whom the carrier is liable
is the cause of the loss or damage. This system has the same mechanism as
article 17.2 of the Rotterdam Rules; therefore, the subject circumstance under
the Hague Rules has not been removed, but has been placed as an individual
provision under the convention.
Besides, the conditions set out under article 17.3 of the Rotterdam Rules do not
exits in the Hague Rules and, thus, are newly developed non-liability clauses that
150 €
M.F. Ulgener
are included in the Convention parallel to the carrier’s advantage and in keeping
with the needs of the maritime industry.
1. Article 17.3.i: Loading, handling, stowing, or unloading of the goods performed
pursuant to an agreement in accordance with article 13, paragraph 2, unless the
carrier or a performing party performs such activity on behalf of the shipper, the
documentary shipper or the consignee. As is known, these activities, as a rule,
should be performed by the carrier. However in practice these are transferred in
many cases to the interested parties.
It is a fact that the cargo interests perform activities such as loading, handling,
stowing, unloading (including costs and liability) apart from merely delivering
the goods to the ship and receiving the goods at the ship by records such as
FIOST, Free-out.
The validity of the non-liability clauses related to these phases in the Hague
regime could only be made effective by an implied interpretation even in case of
the existence of such conditions; in other words, it was only possible to accept
the validity of such non-liability clauses on carriage contracts or bills of lading
where there was a FIOST clause included therein. However, these caused many
disputes and wrong interpretations in practice which led to unfavourable results
for the carrier.
This issue has been included explicitly in the text of the Rotterdam Rules
without leaving any room for mis-interpretation; and if these mentioned activ-
ities are not performed by the carrier, then it is not held liable for the damage or
loss incurred during these phases. Surely, the limitation of this liability is
provided in the same article under paragraphs 4 and 5. These paragraphs have
previously been explained herein above.
2. Article 17.3.n: Reasonable measures to avoid or attempt to avoid damage to the
environment; this paragraph has been included in the Rotterdam Rules parallel
to the increasing environmental consciousness. According to this article, the
carrier is not liable for damage or loss to the goods caused by its reasonable
measures to avoid or attempt to avoid damage to the environment.
3. Article 17.3.o: Acts of the carrier in pursuance of the powers conferred by
articles 15 and 16.: According to article 15, the carrier (or a performing party)
may take all reasonable precautions (including rejecting the goods for carriage,
returning the goods, unloading or rendering the goods harmless) if the goods are,
or reasonably appear likely to become an actual danger to persons, property or
the environment during the carrier’s period of responsibility. For such reasons
as explained, the carrier is not liable for the damage or loss to the goods during
these phases. This provision corresponds closely to IV.6 of the Hague-Visby.
It is important to mention article 16 of the Convention here. This article enables
the carrier or a performing party, in a way, to have the opportunity to and the
right of exercise with respect to the goods within the frame of general average.
According to this provision the carrier or a performing party may take all
reasonable precautions with respect to the goods at sea where such precaution
is reasonably taken for the common safety or for the purpose of preserving from
peril human life or other property involved in voyage. In such case, the carrier is
not liable for any damage or loss caused to the goods. This provision is explicit
in the Rotterdam Rules whereas in the Hague Rules, they are impliedly applied.
5.3.4 Limits of Liability
5.3.4.1 Limited Liability
The limits of liability of the carrier are stated in Chapter 12 of the Rotterdam Rules.
The first article of this chapter is article 59 under the heading “limits of liability”.
1. Subject to articles 60 and 61.1, the carrier’s liability for breaches of its obliga-
tions under the Rotterdam Rules is limited to 875 units of account per package or
other shipping unit, or 3 units of account per kilogram of the gross weight of the
goods that are the subject of the claim or dispute, whichever amount is the
higher, except when the value of the goods has been declared by the shipper and
included in the contract particulars, or when a higher amount than the amount of
limitation of liability set out in this article has been agreed upon between the
carrier and the shipper.
2. When goods are carried in a container, pallet or similar article of transport or on
another article of transport used to consolidate goods, the packages or shipping
units enumerated in the contract particulars as packed in or on such article of
transport or vehicle are deemed packages or shipping units.
3. The unit of account referred to in this article is the “Special Drawing Right” as
defined by the International Monetary Fund. The amounts referred to in this
article are to be converted into the national currency of a State according to the
value of such currency on the date of judgement or award or the date on which
the parties amicably settled. The value of a national currency, in terms of the
Special Drawing Right, of a Contracting State that is a member of the Interna-
tional Monetary Fund is to be calculated in accordance with the method of
valuation applied by the International Monetary Fund in effect on the date in
question for its operations and transactions. The value of a national currency, in
terms of the Special Drawing Right, of a Contracting State that is not a member
of the International Monetary Fund is to be calculated in a manner to be
determined by that State.
Article 60 provides the “Limits of liability for loss caused by delay”.
Subject to article 61, paragraph 2, compensation for loss of or damage to the
goods due to delay shall be calculated in accordance with article 22 and liability for
economic loss due to delay is limited to an amount equivalent to two and a half
times the freight payable on the goods delayed. The total amount payable pursuant
to this article and article 59, paragraph 1, may not exceed the limit that would be
established pursuant to article 59, paragraph 1, in respect of the total loss of the
goods concerned.
152 €
M.F. Ulgener
The increased limited liability amount in the Hamburg Rules has been raised
even more in the Rotterdam Rules. Here is a summary of comparison:
Hague-Visby Rules
Package Limitation 666.7 SDR
Weight Limitation per Kg 2 SDR
Hamburg Rules2
Package Limitation 835 SDR
Weight Limitation per 2.5 SDR
Rotterdam Rules3
Package Limitation 875 SDR
Weight Limitation per 3 SDR
5.3.4.2 Loss of the Benefit of Limitation of Liability and Calculation

of Compensation
Article 61, the last article of the chapter, provides the “Loss of the benefit of
limitation of liability”.
1. If the claimant proves that the loss resulting from the breach of the carrier’s
obligation was attributable to a personal act or omission, neither the carrier nor
any of the persons referred to in article 18 is entitled to the benefit of the
limitation of liability as provided in article 59 or as provided in the contract of
carriage (therefore, the carrier must be personally at fault. The right to limit the
liability continues in cases where persons, for whose acts the carrier is liable,
have acted with the intent to cause such loss or recklessly and with knowledge
that such loss would probably result).
2. The same provision is also mentioned for losses due to delay. According to this
article neither the carrier nor any of the persons mentioned in article 18 is
entitled to the benefit of the limitation of liability as provided in article 60 if
the claimant proves that the delay in delivery resulted from a personal act or
omission of the person, claiming a right to limit done with the intent to cause the
loss due to delay or recklessly and with knowledge that such loss would
probably result. (The carrier must be personally at fault).
Article 22 explains the method of calculation of compensation without prejudice
to the provisions under article 59 which provides provisions regarding the limits of
liability. According to this article, if the carrier or maritime performing party is
under threat of losing its rights in article 59 to limit the liability, such compensation
must be calculated under the following criteria:
2
The liability of the carrier for delay, is limited to the freight amount of the delayed goods 2½,
which should not exceed the total freight amount as agreed in the contract of carriage.
3
The liability of the carrier for delay in cases of economic loss is limited to the freight amount of
the delayed goods 2½.
(22.1.) The compensation payable by the carrier for loss of or damage to the goods is
calculated by reference to the value of such goods at the place and time of delivery
established in accordance with article 43.
(22.2.) The value of the goods is fixed according to the commodity exchange price or, if
there is no such price, according to their market price or, if there is no commodity exchange
price or market price, by reference to the normal value of the goods of the same kind and
quality at the place of delivery.
(22.3.) In case of loss of or damage to the goods, the carrier is liable for payment of any
compensation when the carrier and the shipper have agreed to calculate compensation in a
different manner within the limits of chapter 16.
.
Chapter 6
Construction Problems in the Rotterdam Rules
Regarding the Identity of the Carrier
Kerim Atamer and C€

uneyt S€
uzel
Abstract This paper addresses Articles 37 and 65 of the Rotterdam Rules regard-
ing the identity of the carrier and the additional time for suit. Firstly, a detailed
working example is set out on the basis of current industry practice in order to
demonstrate the practical problems. This is followed by a description of the drafting
history of these rules. The three alternatives adopted under Art. 37 are distinguished
as the “identified carrier”, “presumed carrier” and “proven carrier”. Each alterna-
tive is critically scrutinized in the light of the drafting history, their interaction with
the remaining definitions and Articles of the Rotterdam Rules, as well as their
projected application in practice. The same analysis is then conducted for the
additional period. In conclusion, it is established that the final wording of these
provisions does not fully reflect the true intention of the Drafters. Therefore, it is
submitted that, as the rules stand today, more complications are likely to arise than
be solved.
6.1 Introduction
The United Nations (UN) Convention of 11 December 2008 “on Contracts for the
International Carriage of Goods Wholly or Partly by Sea”1 was signed on 23
1
As for an excellent summary of the preparatory work see Sturley (2009), pp. 1 et seq.; see also von
Ziegler (2009), p. 346. As for general comments see, among others, Tetley (2008a), p. 625.
K. Atamer (*)
Director, Dr. N€usret-Semahat Arsel Research Center for International Business Law, Koc Univer-
sity, Istanbul, Turkey
and
Associate Professor Dr., Maritime, Insurance and Transport Law, Koc University, Istanbul,
Turkey
e-mail: katamer@ku.edu.tr
C. S€uzel
Research Assistant for Maritime, Insurance and Transport Law, Istanbul Bilgi University,
Istanbul, Turkey
e-mail: csuzel@bilgi.edu.tr
156 K. Atamer and C. S€uzel
September 2009 in Rotterdam.2 Therefore, the rules embodied in the Convention

have been formally coined as the “Rotterdam Rules”.3 The signing of the Rotter-
dam Rules has not yet attracted much reaction from the involved States,4 most of
which would still appear to be considering whether to ratify the Rotterdam Rules.5
Not surprisingly, however, the floodgates have been opened wide for scholarly
review of and comment on the Rotterdam Rules.6 Exclusive attention will be paid in
this paper to the provisions of the Rotterdam Rules on the “identity of the carrier”.7
The first author’s views and criticism in respect of the closely related subjects of the
“performing party” and the “maritime performing party”8 have already been set out
elsewhere,9 and will not be repeated here. All references in this paper to Articles
(Art.) without further qualification are to the provisions of the Rotterdam Rules,
except where noted otherwise.
6.2 The Problem
6.2.1 Working Example
In order to lay out the problem as it arises in real life, it might be helpful to approach
the matter on the basis of a working example compiled from contractual arrange-
ments as they currently exist in practice. Assuming that a leasing company (lessor)
2
Pursuant to the General Assembly Resolution A/RES/63/122 sect. 3 (www.un.org/ga/63). As for
certified true copies of the Rotterdam Rules in all UN languages see http://treaties.un.org/doc/
Publication/CTC/Ch_XI_D_8.pdf (13 August 2010).
3
As for the first published translation of the Rotterdam Rules into Turkish see Suzel and Damar
(2010), p. 149.
4
As at 13 August 2010, the Rotterdam Rules have been signed by 21 States in accordance with Art.
88(1). The first 16 States to sign at the ceremony in Rotterdam were Congo, Denmark, France,
Gabon, Ghana, Greece, Guinea, the Netherlands, Nigeria, Norway, Poland, Senegal, Spain,
Switzerland, Togo and the United States of America. Since then, Armenia, Cameroon, Madagas-
car, Mali and Niger have joined as signatories. As such, the signatories so far are, with one
exception, all African (11) and European (9) States. As for the status of signatures, see http://
treaties.un.org.
5
As at 13 August 2010, the Rotterdam Rules have not been ratified by any State.
6
An updated and comprehensive bibliography on the Rotterdam Rules is available at http://www.
uncitral.org/uncitral/en/publications/bibliography_rotterdam_rules.html (13 August 2010).
7
Generally on this issue see Sturley (2006), pp. 426 et seq.; Zunarelli (2009), at pp. 1013–1020;
Lorenzon (2009), at pp. 108–110; Baatz (2009), at pp. 208–210; Thomas (2009), at pp. 71–72;
Williams (2009), at pp. 202–203; Diamond (2009), at p. 508.
8
As for studies on the performing and maritime performing parties see Sturley (2003), p. 230;
Berlingieri (2009), at pp. 54–55; Fujita (2009), at pp. 368–373; von Ziegler (2009), p. 351; Smeele
(2010), p. 72; Thomas (2008), at pp. 498–500; Diamond (2009), pp. 489–491; Delebecque (2003),
at p. 215; Ramberg (2009), at p. 279; Zunarelli (2009), pp. 1020–1023.
9
Atamer (2010b), pp. 469 et seq.
6 Construction Problems in the Rotterdam Rules 157
has registered its container ship in Panama,10 this company will become, thereby,
the registered owner of the ship. Assume further that the leasing company con-
cludes a financial leasing agreement with a Turkish shipping company and has the
agreement registered in Panama, as well. The agreement may be on the BARECON
2001 form11 with Part IV (Hire/Purchase Agreement) in place. In its material part,
clause (cl.) 10(b) reads as follows:
The Charterers shall at their own expense and by their own procurement man (. . .), the
Vessel (. . .). The Master, officers and crew of the Vessel shall be the servants of the
Charterers for all purposes whatsoever, even if for any reason appointed by the Owners.
Upon delivery of the ship in accordance with cl. 3(c), the bareboat charterer
obtains possession of the ship.
The Turkish bareboat charterer, in turn, enters into a time charter agreement with
a Maltese shipping company that operates a liner service between ports in the
Mediterranean Sea and North America. The time charter is on the NYPE 93 form,12
Art. 8(a) of which says that :
The Master shall be (. . .) under the orders and directions of the Charterers (. . .) and the
Charterers shall perform all cargo handling, including but not limited to loading, stowing,
trimming, lashing, securing, dunnaging, unlashing, discharging, and tallying, at their risk
and expense, under the supervision of the Master.
Assume further that, in accordance with standard practice, Art. 30(a) has been
modified to the effect that the time charterer is given unrestricted right to issue and
sign its own bills of lading.
The Maltese time charterer will be assumed to have entered into a management
agreement with a company seated in England on the basis of the SHIPMAN 98
form,13 Art. 3.3 of which reads:
The Managers shall provide the commercial operation of the Vessel, (. . .) which includes
(. . .): (i) (. . .) conclusion (. . .) of (. . .) contracts relating to the employment of the Vessel.
(. . .) (ii) arranging of the proper payment to Owners (. . .) of all (. . .) freight (. . .).
On the basis of this provision, the English manager concludes in its own name
contracts for the carriage of containers in the liner service offered under the
10
As for registration in Panama see, among others, Coles and Watt (2009), pp. 253 et seq.
Registration in Panama has become increasingly popular among Turkish leasing companies, who
seek to avoid the extensive catalogue of maritime liens, which are admitted under Turkish law.
11
BIMCO Standard Bareboat Charter, issued by The Baltic and International Maritime Council; as
for detailed studies see, among others, Davis (2005); Dimigen (2000); Athanassopoulou (2005),
pp. 106 et seq.
12
New York Produce Exchange Form, issued by the Association of Ship Brokers and Agents (USA),
Inc. (latest amendment 14 September 1993); as for detailed studies see, among others, Coghlin
et al. (2008); Stahl (1989); Athanassopoulou (2005), pp. 150 et seq.
13
BIMCO Standard Ship Management Agreement, issued by The Baltic and International Mari-
time Council; as for detailed discussions see, among others, Willingale (1998); Athanassopoulou
(2005), pp. 199 et seq.
logo of the Maltese time charterer, and issues even freight invoices. Indeed, it
has become quite common for a ship manager to enter into contracts without
disclosing its principal and collecting the freight in a bank account opened in its
own name.
On the other hand, it is to be assumed that an importer in the United States of
America (USA) concludes a sales contract with an Italian seller on CIF terms. The
seller approaches a German freight forwarding company that operates a world-wide
network of transportation and logistics. The Italian seller and the German forwarder
conclude a contract for the carriage of the goods.14 The forwarding agreement
may have been concluded on the basis of the FIATA Model Rules.15 Art. 7.1 reads
as follows:
The Freight Forwarder is subject to liability as principal not only when he actually performs
the carriage himself by his own means of transport (performing Carrier), but also if, by
issuing his own transport document or otherwise, he has made an express or implied
undertaking to assume Carrier liability (contracting Carrier).
However, the Freight Forwarder shall not be deemed liable as Carrier if the Customer
has received a transport document issued by a person other than the Freight Forwarder and
does not within a reasonable time maintain that the Freight Forwarder is nevertheless liable
as Carrier.
These rules appear in similar terms in the FIATA Bill of Lading,16

The German forwarder books space for the container with the English manager,
who collects the freight and issues the invoice. A bill of lading is issued and signed
by the English manager with the remark “as agents” without further qualification.17
The name of the carrier does not appear on the bill of lading. The bill of lading is
endorsed and transferred to the American buyer. On the voyage, the cargo is lost at
sea due to negligent stowage. The American buyer is indemnified by its Swiss
insurer, who thereby becomes subrogated to the recovery claim of the buyer. The
Swiss insurer would now wish to bring legal action. The basis of the recovery
claim will be the bill of lading, which was signed “as agents” without identifying
any specific party as the carrier. As such, the insurer will have a very hard
time to decide as to who ought to be sued in the capacity as carrier. Extensive
consideration has been given to this kind of problem and related issues in
14
As for a comprehensive survey of several standard conditions see Glass (2004), chapter 2; as for
a commentary of the German standard conditions see, among others, Koller (2010), pp. 794 et seq.
15
FIATA (International Federation of Freight Forwarders Associations) Model Rules for Freight
Forwarding Services, as for the text see www.fiata.com (13 August 2010).
16
Definition in the FIATA Bill of Lading: “Freight Forwarder” means (. . .) who (. . .) assumes
liability for the performance of the (. . .) contract as a carrier.”
17
As for the issuance and signing of bills of lading see, among others, Coghlin et al. (2008), } 21;
Cooke et al. (2007), } 18; Aikens et al. (2006), } 3.53 et seq., 3.60 et seq.
6.2.2 Definitions
According to the definition given in Art 1(5), the carrier is18 “a person that enters
into a contract of carriage with a shipper”. On the opposite end of the chain, the
shipper is defined as “a person that enters into a contract of carriage with a carrier”
(Art. 1[8]). It follows that “the Drafters of the Rotterdam Rules” (Drafters) consid-
ered the carrier and the shipper as the parties to the “contract of carriage”. This
contract is understood to be “a contract in which a carrier, against the payment of
freight, undertakes to carry goods from one place to another” (first sentence of Art.
1[1]). The mode of transport is further qualified in the second sentence of Art. 1(1),
according to which the carrier’s undertaking of carriage must include at least one
part by sea19 and may include other modes of transport as well. “Freight” is defined
independently in Art. 1(28) as “the remuneration payable to the carrier for the
carriage of goods under a contract of carriage”, which is essentially a repetition of
the first sentence of Art. 1(1) from the perspective of the payment. On the basis of
these definitions, the “contract of carriage” could be described as a contract entered
into between the carrier, who undertakes to carry goods from one place to another at
least partially by sea, and the shipper, who undertakes to pay the freight as
remuneration for the carrier’s undertaking. As for the “carrier”, it appears that the
Drafters had in mind the first party to undertake the transport in full, without
derogating this undertaking, fully or partly, to third parties under sub-contracts.
Thus, the carrier and the shipper are the original two contracting parties, undertak-
ing reciprocally carriage and payment. Against the background of this basic under-
standing, the functions and definitions of all the other players envisaged by the
Rotterdam Rules will have to be identified.20
The obligations of the carrier are set out in chapter 4. According to the primary
rule of Art. 11, the carrier shall carry the goods to the place of destination and
deliver them to the consignee. This fundamental obligation is further refined and
specified in the subsequent provisions of chapter 4, and elsewhere in the Rotterdam
Rules. Any and all of these obligations may be freely delegated by the carrier to
third parties (Art. 1[6] and [7]).21 Persons involved in any of the carrier’s obliga-
tions at any stage of the door-to-door carriage are referred to as “performing
parties”. These would include, among many others, land, rail, air and inland
waterway carriers to and from the port of loading or discharge. If a specific
18
As for the definition of the carrier under the Rotterdam Rules see Atamer (2010b), pp. 475–476.
19
Art. 6 limits the scope of application of the Rotterdam Rules to certain types of contracts for the
carriage of goods wholly or partly by sea. However, those restrictions, and their corresponding
definitions in Art. 1, are not relevant to the problems discussed in this paper.
20
This would include, not only the performing and maritime performing parties on the carrier’s
side, but also persons on the shipper’s side, such as the “documentary shipper” (Art. 1[9]), the
“holder” (Art. 1[10]) and the “controlling party” (Art. 1[13]).
21
Generally on this issue see Atamer (2010b), pp. 475 et seq., as well as the sources listed in supra
fn. 8.
performing party further satisfies the requirements of Art. 1(7), it would qualify,
additionally, as a maritime performing party. Roughly, these are involved only in
the port-to-port phase of the transport, such as the registered owner, operator,
bareboat, time and voyage charterer or manager of the ship, stevedores, port
authorities or warehouses within the port. It follows that, in a case such as the
working example, the freight forwarder as carrier is allowed to delegate any and all
obligations under the contract of carriage to other parties. As such, the forwarder
may enter into sub-contracts with a rail carrier for the carriage of the goods from the
shipper’s premises to the port by rail, with a warehouse operator for the storage of
the goods at the port of loading, with a stevedoring company for the loading, lashing
and securing the goods on board the ship, with an owner, operator, any charterer or
manager of a ship for the carriage to the port of discharge, and then with a road
carrier for the transport to and delivery at the premises of the consignee. The carrier
remains liable for the breach of obligations of all performing and maritime
performing parties (Art. 18).
The identity of the carrier as the original contracting party would usually be
known to the shipper as the other party to the contract. However, this may not
necessarily be so, particularly in cases such as the working example, where the
carrier is represented by intermediaries, including agents and managers, who omit
to disclose their principal. In such cases, even the shipper may face trouble in
identifying properly the carrier as its contracting counterparty. At the port of
discharge, the problem becomes only worse. The “consignee” is qualified as “a
person entitled to delivery of the goods under a contract of carriage or a transport
document or electronic transport record” (Art. 1[11]). According to Art. 1(14), (18)
and Art. 35, a “transport document or electronic transport record” (transport
document or record) is to be issued by the carrier. Art. 1(23) says that “any
information relating to the contract of carriage or to the goods (including terms,
notations, signatures and endorsements) that is in a transport document or an
electronic transport record” is considered as “contract particulars”, which should
include “the name and address of the carrier” (Art. 36[2][b]). Accordingly, if
every transport document and record was to name explicitly who the carrier
under Art. 1(5) is, the consignee would actually be protected sufficiently. However,
it has been held in Art. 39[1] that the absence of such information will not by itself
affect the validity of the transport document or record. It follows that the consignee,
to whom the goods ought to be delivered, may not be in a position to identify who
the carrier actually is. In practice, this does happen frequently if and whenever the
consignee is not the party to the contract of carriage.22 Given that the carrier
may delegate its obligations freely to third parties, the consignee, who is not a
contracting party, might run into trouble in finding the proper carrier, if the
transport document or record failed to include the name of the carrier.23
22
This would be the case, in particular, under all CIF, CFR and related contracts of sale and
purchase.
23
Sturley has described such carriers as “phantom carriers” see Sturley (2006), p. 426.
Looking at the working example, the Swiss insurer may have pursued meticu-
lous research into the parties involved on the ship’s side and may even have
established all the relevant contractual arrangements: who would have to be sued
as carrier? The contract of carriage was concluded with the freight forwarder who
had thereby become the carrier under Art. 1(5). However, as the forwarder is not
named in the bill of lading, on what basis and against whom can the American
consignee and its subrogated Swiss insurer pursue the cargo claim? The bill of
lading is signed by the manager “as agents”. However, the manager has not
disclosed the time charterer as its principal, but has collected the freight. This
might be seen in some jurisdictions as an undertaking by the manager as carrier. If,
on the contrary, the principal of the manager was to be identified as the Maltese
time charterer, then this charterer might be found liable as carrier for the negligent
stowage of the container. Assume, however, that the loss was caused by unsea-
worthiness; further complications may arise, as seaworthiness is undertaken by the
owner as against the bareboat charterer, and by the latter as against the time
charterer. In any event, the absence of any name from the bill of lading might
also be construed in some jurisdictions to the effect that the owner of the ship is
bound thereby. In the working example, this would mean that the financial lessor of
the ship as registered in Panama is held liable under a bill of lading, with which it
had nothing to do whatsoever.
In order to overcome these and similar practical difficulties, the Rotterdam Rules
have introduced Art. 37, consisting of three paragraphs. The rules set out in each of
these paragraphs attempt to address a different scenario. For the purposes of this
paper, these three alternatives will be referred to as the “identified carrier” (Art. 36
[2][b] and Art. 37[1]), the “presumed carrier” (Art. 37[2]) and the “proven carrier”
(Art. 37[3]), which will now be considered in more detail.
6.3 Drafting History
The first draft24 of the Rotterdam Rules was finalised and published by the Comité
Maritime International (CMI) in late 2001 as the “Draft Instrument on Transport
Law”25 (CMI Draft). This Draft was transformed by the UN Commission on
International Trade Law26 (UNCITRAL) into a “Preliminary Draft Instrument”
([2002] Draft WP.21) with a detailed commentary.27 The Working Group III (WG)
of UNCITRAL proceeded on the basis of this Draft. The “failure to identify the
24
Earlier stages of the preparations are summarised by Sturley (2009), pp. 11–14.
25
Text reproduced in (2001) CMI Yearbook 532; [2002] Lloyd Mar Com Law Q 418.
26
All documents and other preparatory materials, which have been produced or circulated within
UNCITRAL, will be referred to hereinafter in accordance with their UN Document numbers. The
entire material is readily available at www.uncitral.org (Working Group III).
27
As for the text see A/CN.9/WG.III/WP.21.
carrier” had been first addressed in the CMI Draft,28 albeit within square brack-
ets, in the second sub-paragraph of Art. 8.4 on “Deficiencies in the contract
particulars”.29 Discussions on this provision commenced at the 11th Session30 of
the WG. Since the proposed draft was found unsatisfactory, the WG adjourned
detailed discussions in order to consider alternatives to remedy this problem.
Therefore, the sub-paragraph was still kept in square brackets.31 Following the
WG’s initial meetings, the Secretariat of UNCITRAL (Secretariat) decided to
prepare the first revised Draft32 ([2003] Draft WP.32). In this Draft, the provi-
sion was then moved to Art. 36(3) within square brackets.33 However, before the
matter could be reconsidered, the Secretariat published a new version of the
Draft ([2005] Draft WP.56) by way of preparation for the 16th Session; there,
the provision appeared as Art. 40(3) still in square brackets.34 The 16th Session
also passed by without any discussions on the provision. Then, in preparation for
the 17th Session, the USA submitted a Document relating to transport documents
and electronic transport records, which summarised, among others, the drafting
history of and opposing views on the provision.35 Prior to the same Session, the
Italian delegation also submitted a proposal36 ([2006] Proposal WP.70) addres-
sing amendments to be made to Art. 40(3)37 and suggesting that the square
brackets be removed. Nevertheless, the matter did not come up for discussion at
the 17th Session.
Thereafter, the issue was taken up by the Governments of Italy and the Nether-
lands, who submitted a joint drafting proposal38 ([2006] Proposal WP.79) exclusively
in respect of Art. 40(3), which was to be considered at the 18th Session. In this
proposal, it was suggested for the first time that Art. 40(3) should become an
independent new provision carrying the title “Identity of carrier”.39 This proposal
28
As for the discussions held at the CMI’s International Sub-Committee on Uniformity of the Law
of the Carriage of Goods by Sea see (1995) CMI Yearbook, pp. 237–238; (1996) CMI Yearbook,
pp. 374–375 and 391–394; (1997) CMI Yearbook, p. 289 and pp. 310–316; (1998) CMI Yearbook,
pp. 169–171. See further (2000) CMI Yearbook, p. 186, 214, 257, 283 for the discussions at the
CMI’s International Sub-Committee on Issues of Transport Law by Sea and for both see Sturley
(2006), at pp. 428 et seq.
29
A/CN.9/WG.III/WP.21 } 156 et seq.
30
A/CN.9/526 } 56 et seq.
31
A/CN.9/526 } 60.
32
A/CN.9/WG.III/WP.32; as for this Draft see Sturley (2009), p. 15 with fn. 113.
33
A/CN.9/WG.III/WP.32 p. 41 with fn. 137.
34
A/CN.9/WG.III/WP.56 pp. 34–35 with fn. 148 and p. 109 with fn. 469.
35
A/CN.9/WG.III/WP.62 } 27–34.
36
37
A/CN.9/WG.III/WP.70 } 3–5.
38
39
See A/CN.9/WG.III/WP.79 } 7.
substantially influenced the drafting process of what has later become Art. 37(1)40
and the second and third sentences of Art. 37(2).41
At the 18th Session,42 finally, detailed discussions on Art. 40(3) commenced on
the basis of the [2005] Draft WP.56 in conjunction with the [2006] Proposal WP.79.
At this Session, the WG decided to adopt the fourth paragraph of the [2006]
Proposal WP.79.43 However, Art. 40(3) was still maintained in square brackets
for the time. On the basis of these discussions, the WG gave instructions to the
Secretariat for the preparation of a new draft of Art. 40.44
The updated Draft ([2007] Draft WP.81)45 was prepared for consideration at the
19th Session. In this Draft, the provision finally appeared independently as Art.
38,46 consisting of three paragraphs without square brackets.47 The first paragraph
was a modified text of the [2006] Proposal WP.7948 and was accepted by the WG as
drafted.49 As for the second paragraph, two alternative wordings were suggested.
Variant A was the former Art. 40(3) of the [2005] Draft WP.56,50 whereas Variant
B was a new text compiled in accordance with the [2006] Proposal WP.79.51 After
discussions, the WG accepted Variant B.52 The last paragraph was new.53 The WG
stressed the inconsistency of language in Art. 38(3) as compared to the reasons for
drafting this provision,54 and requested the Secretariat to redraft the relevant
paragraph.55
By way of preparation for the 21st and final Session of the WG, the Secretariat
compiled all agreed issues and incorporated further suggestions into the [2007]
Draft WP.101.56 In this latest incarnation, the provision was renumbered as Art. 39
40
41
42
See A/CN.9/616 } 17 et seq.
43
A/CN.9/616 } 28.
44
A/CN.9/616 } 28.
45
46
Art. 38 was placed between the provisions on contract particulars (Art. 37) and on signature
(Art. 39), as suggested in the [2006] Proposal WP.79 } 7.
47
See A/CN.9/WG.III/WP.81 p. 31 with fn. 118–122.
48
See A/CN.9/WG.III/WP.81 p. 31 with fn. 119.
49
A/CN.9/621 } 288.
50
51
As indicated in A/CN.9/WG.III/WP.81 p. 31 with fn. 121, [2006] Proposal WP.79 (A/CN.9/WG.
III/WP.79 } 5) was taken into consideration in the drafting period.
52
A/CN.9/621 } 288.
53
The purpose of this paragraph was to ensure that cargo interests remained free to advance their
claims against the carrier, whom they believe to be responsible, see A/CN.9/WG.III/WP.81 p. 31
with fn. 122. This paragraph was drafted based on the WG discussions in A/CN.9/616 } 23 et seq.
54
See A/CN.9/WG.III/WP.81 p. 31 with fn. 122.
55
A/CN.9/621 } 288.
56
and slightly adjusted by the Secretariat.57 At its 21st Session, the WG approved the
substance of Art. 39 and referred it to the Drafting Group.58
The Secretariat prepared the final wording in collaboration with the Drafting
Group. The text so prepared was distributed as an attachment to the Report on the
21st Session ([2008] Draft 645).59 At its 41st Session,60 the Commission took note
of a statement to the effect that the policy adopted in Art. 39 was unsatisfactory.61
Nevertheless, the provision was approved in substance without any discussions
being reported.62 Following the Commission’s decision to delete Art. 1363 and Art.
3664 of the [2008] Draft 645, the provision was renumbered as Art. 37.65 In the final
stages of the preparations,66 no further changes were made to Art. 37.
6.4 Identified Carrier (Art. 37[1])
The first alternative under the Rotterdam Rules to “identify the carrier” is set out in
Art. 37(1) in the following terms:
If a carrier is identified by name in the contract particulars, any other information in the
transport document or electronic transport record relating to the identity of the carrier shall
have no effect to the extent that it is inconsistent with that identification.
Apparently, for this rule to come into operation, the first requirement is that
the “contract particulars” identify “a carrier”. The “contract particulars” are
defined in Art. 1(23) as information “in” the transport document or record. The
“name and address of the carrier” as a contract particular is listed explicitly in
Art. 36(2)(b). It follows that Art. 37(1) is triggered if the transport document or
record identified “a carrier” by name. Once this precondition is satisfied, “any
other information” in the same transport document or record relating to the
identity of the carrier will be disregarded “to the extent that it is inconsistent
with that identification.” As such, the information in the transport document or
record will be treated as conclusive evidence. These components of the provision
will now be analysed in more detail.
57
See A/CN.9/WG.III/WP.101 p. 28 with fn. 85 and 86.
58
A/CN.9/645 } 132.
59
Annex to A/CN.9/645 pp. 60 et seq.
60
A/63/17.
61
A/63/17 } 122.
62
A/63/17 } 123.
63
A/63/17 } 53.
64
A/63/17 } 110.
65
A/63/17 p. 125.
66
Summarised by Sturley (2009), pp. 23–24.
6.4.1 Contract Particulars (Art. 36[2][b])
6.4.1.1 The Rule
According to the general principle set out in Art. 35, the carrier is required to issue a
transport document or record upon receipt of the goods (Art. 12[1]). The carrier
might be relieved from this obligation by way of an agreement of the parties or by
the custom, usage or practice of the particular trade. If a transport document or
record was to be issued, its contents are specified in Art. 36. The first paragraph of
this provision lists the information to be supplied by the shipper (Art. 36[1]). Then,
Art. 36(2) sets out the entries to be made on the basis of the carrier’s own
knowledge. The second item in this group reads: “[t]he name and address of the
carrier”. Accordingly, it is suggested that the carrier identifies itself in the document
or record, which is to be issued upon receipt of the goods. This provision already
existed in the CMI Draft.67 Upon the [2006] Proposal WP.79,68 the relevant sub-
paragraph was amended69 to read “the name and address of a person identified as a
carrier”.70 At the 19th Session, the former version of the provision was reinstated in
order to avoid misinterpretation,71 and to achieve consistency with the Uniform
Customs and Practices for Documentary Credits 600 (UCP 600).72 Notwithstanding
the fact that the information to be included in the transport document and record
was considered mandatory even at the very last stage of the preparations,73 the
provision remains a suggestion only, because the absence of this information does
not affect the validity of the document (Art. 39[1]). In such cases, the supplemen-
tary rules in Art. 37(2) come into operation in respect of the identity of the carrier. It
ought to be kept in mind that, because of the door-to-door application of the
Rotterdam Rules, Art. 35 may already become applicable at the inland premises
of the shipper, when the goods are picked up for, say, the road or rail carriage to the
port of shipment.
67
Art. 8.2.1(e), see A/CN.9/WG.III/WP.21 } 133.
68
69
A/CN.9/616 } 28.
70
The reason for the proposed amendment was the importance of the identification of the carrier in
the transport document, since most transport documents contain only the name of the carriers’
booking agent or trade name, see A/CN.9/WG.III/WP.79 } 3.
71
It was explained that the phrase “name and address of a person identified as a carrier” might be
confusing, and pointed out that the intention of the WG had not been to create a new concept,
which might be coined as the “documentary carrier”. Therefore, the wording was changed again,
see A/CN.9/621 } 276. Zunarelli, relying on Art. 1(9) defined the documentary carrier as “the
person, other than the carrier, that accepts to be named as “carrier” in the transport document”, see
Zunarelli (2009), p. 1019.
72
A/CN.9/621 } 276.
73
See A/63/17 } 114.
6.4.1.2 “Name”
In order for Art. 37(1) to apply, the contract particulars must identify the carrier by
“name”. In the course of the preparatory work, concerns were expressed over the
reference to the “name”, as it might be confusing in other official versions of the
Rotterdam Rules.74 Nevertheless, it was clarified75 that the term was used on
purpose to indicate that the actual name of the carrier is the essential element in
this provision. As for a “natural person” (Art. 1[29][b]) acting as carrier, the “name”
would be the first and family names as registered and available from the certificates
of identification. In many jurisdictions, the contract of carriage would qualify as a
commercial contract. As such, the natural person might also be listed in a commer-
cial registry. In respect of “a company or other legal person or association of natural
or legal persons” (Art. 1[29][a]), the “name” ought to be the title as registered with a
commercial or companies’ registry, or other registry of legal persons. In this
connection, trading names such as “A Fishname Lines” or “Transatlantic Whatso-
ever Services” could not be qualified as the carrier’s “name” unless the trading
name is entered with a public registry, which would identify the person operating
under that name, in which case the transport document or record must also give
information of such registration. In the drafting process, it was also pointed out that
a logo or other circumstantial evidence would not be sufficient.76 It is submitted
that, should the logo clearly indicate a “name”, Art. 37(1) would still operate.
6.4.1.3 “Address” as Opposed to “Domicile”
Address
Another information that might be included under Art. 36(2)(b) is referred to as the
“address” of the carrier. This term had been used already in Art. 8.2.1(e) of the CMI
Draft and still appears in several provisions of the Rotterdam Rules.77 During the
preparatory work, it was proposed to amend Art. 36(2)(b) in accordance with the
requirements set forth under the Uniform Customs and Practices for Documentary
Credits 500 (UCP 500).78 At that time, the UCP 600 was not yet published,79 and
the WG intended to elicit consistency therewith.80 However, neither the UCP 50081
74
A/CN.9/621 } 280.
75
A/CN.9/621 } 280.
76
A/CN.9/621 } 280.
77
Art. 36(2)(b); Art. 36(3)(a); Art. 37(2); Art. 45(b); Art. 67(1)(a); Art. 75(3).
78
It was indicated that the proposed draft is in compliance with the requirements set out in Art. 23
(a)(i) and 26(a)(i) of the UCP 500, see A/CN.9/WG.III/WP.79 } 3 with fn. 2.
79
A/CN.9/616 } 18.
80
A/CN.9/621 } 277.
81
Art. 23(a)(i) on marine/ocean bill of ladings, 26(a)(i) on multimodal transport documents.
nor the UCP 60082 requires that the address of the carrier ought to be indicated in
the transport document. Instead, the name of the carrier alone is deemed to be
sufficient for the purposes of letters of credits. Nevertheless, the term “address” was
maintained in the Rotterdam Rules, without being defined.
Domicile
On the other hand, Art. 1(29) has adopted the term “domicile”, which is then used in
Art. 66(a)(i), Art. 68(a) and Art. 75(2)(b)(i) to describe the jurisdiction of courts and
tribunals, where claims against the carrier and a maritime performing party may be
brought. According to Art. 1(29)(a), the domicile of a company or other legal
person or association of natural or legal persons is defined as the “(i) statutory
seat or place of incorporation or central registered office, whichever is applicable,
(ii) central administration or (iii) principal place of business”. As for natural
persons, the domicile describes the “habitual residence”, pursuant to Art. 1(29)
(b). Nowhere in these definitions has the word “address” been used. As such, there
is a substantial discrepancy in the terminology.
Drafting History
The reason for this discrepancy is to be found in the drafting process. Whereas the
expression “address” had already been used in the CMI Draft, the provisions on
jurisdiction and arbitration were prepared at subsequent stages. On the basis of
discussions at the 11th Session of the WG, the Secretariat was instructed to draft
provisions on this issue.83 The first draft so prepared referred to the “principal place
of business or habitual residence” (Art. 72[a] Variants A and B).84 This draft was
considered at the 14th Session. At the outset of the discussions, attention was drawn
to the discrepancy between the terminology in the new draft and the use of
“address” in earlier provisions.85 Then, however, the term “domicile” was brought
up as a new alternative, to be considered at subsequent meetings.86 At the 15th
Session, general agreement was achieved to prepare the provision on the basis of
the terminology used in the “Brussels I” European Regulation.87 Subsequent work
82
Art. 19(a)(i) on transport documents covering at least two different modes of transport, and
Art. 20 (a)(i) on bill of lading.
83
A/CN.9/526 } 159 at p. 45.
84
A/CN.9/WG.III/WP.32 at pp. 65 and 66.
85
A/CN.9/572 } 122.
86
A/CN.9/572 } 122–124.
87
Council Regulation (EC) No. 44/2001 (22 December 2000) on jurisdiction and the recognition
and enforcement of judgments in civil and commercial matters (Official Journal L 12 of 16 January
2001); see A/CN.9/576 } 115–116.
proceeded on this basis.88 However, the inconsistency as between the simultaneous

use of “address” and “domicile” would not appear to have been revisited.
The Problem
As such, whereas the “address” of the carrier is to be indicated in the transport

document or record, legal proceedings against the carrier will be commenced at the
designated “domicile”. Are these two terms interchangeable? In legal terms, it
would appear that “address” is used loosely to describe the location of a person;
however, “domicile” is defined in the Rotterdam Rules as the place where a person
will be subject to legal proceedings. If so, it is certainly of significant importance to
establish whether the transport document or record is to identify the “address” or
“domicile” of the carrier, if these were to be different places. As a matter of
practice, many shipowners have their domicile, as described in Art. 1(29)(a), in
one Country, but maintain several trading posts around the world, which are
inserted as “address” into bills of lading. Given that the “address” in the transport
document or record is used in the vast majority of the cases as the place to serve
legal proceedings on the carrier, the term “address”, as used in Art. 36(2)(b) and
elsewhere, would probably have to be construed as “domicile” throughout the
Rotterdam Rules. Indeed, an “address” would be of little assistance to the prospec-
tive claimant if legal proceedings may not be commenced there because it was
found to be different from the domicile. It would have been helpful if the Drafters
had clearly set out their intention that the transport document or record ought to
indicate the place where proceedings against the carrier may be commenced.
Against the background of these comments, wherever reference is made in the
following text to the “address”, it will have to be questioned whether this would not
have to be understood as the “domicile”.
6.4.2 Conclusive Evidence
6.4.2.1 Drafting History
Art. 37(1) provides that if the carrier is identified by name in the contract particu-
lars, any other information in the transport document or record relating to the
identity of the carrier has no effect to the extent that it is inconsistent with that
identification. As such, whoever is named on the front page of the document or
record will be treated as the carrier under Art. 1(5). Because of the reference to the
A/CN.9/WG.III/WP.56 p. 11 with fn. 25; A/CN.9/591 } 16–17; A/CN.9/WG.III/WP.81 p. 11

88
with fn. 20; A/CN.9/WG.III/WP. 101 p. 10 with fn. 5.

“contract particulars”, this phrase has to be applied in conjunction with Art. 36(2)(b).89
The CMI Draft did not include a corresponding provision. During the informal
consultations, delegates questioned whether the standard “identity of carrier clause”
(IOC clause), which usually appears in small print on the reverse side of bills of
lading, would be allowed to contradict any other information in the transport
document or record.90 In the [2006] Proposal WP.79, a suggestion was made to
avoid possible conflicts between the front and back sides of the document.91
Subsequently, the proposal was approved by the WG92 and was accepted as Art.
37(1) in the later stages of the drafting process with minor linguistic changes.93
6.4.2.2 The Rule
Where a person is named explicitly as the carrier in the transport document or

record, Art. 37(1) would appear to work in a way that this person will be treated as
the party to the contract of carriage, as defined in Art. 1(5), irrespective of whether
that person actually concluded the contract with the shipper. If the party named in
the document or record had not entered into the contract with the shipper, it will
nevertheless be assumed to have done so. As such, the information in the document
or record will operate as conclusive evidence against the party so named therein. It
ought to be emphasized that the identification in the transport document or record
will create an irrefutable presumption only against the party so named therein,
whereas the “claimant” would still be entitled to prove under Art. 37(3) who the
carrier actually was. This alternative will be discussed later.94
6.4.2.3 Problems
The “name” must be identified in the contract particulars (Art. 37[1]). The contract
particulars are the information “in” a transport document or record (Art. 1[23]). As
such, Art. 37(1) comes into operation only, if the name is identified in a transport
document or record. The transport document and record are both “issued by the
89
As to which see supra 6.4.1.
90
91
92
A/CN.9/616 } 28.
93
The [2006] Proposal WP.79 contained the phrase “. . . on the face of the transport document or
electronic record. . . any information on the reverse side of the transport document or electronic
record. . .”, see A/CN.9/WG.III/WP.79 } 4. This wording was amended as “. . .any other
information in the transport document or electronic transport record. . .” in the [2007] Draft
WP.81, see A/CN.9/WG.III/WP.81 p. 31. The reason for this amendment was to ensure that the
same result is achieved for both transport documents and records, see A/CN.9/WG.III/WP.81
with fn. 119.
94
See infra 6.6.
carrier” (Art. 1[14] and [18]), and shall be signed by the carrier or a person acting on
its behalf (Art. 38[1]). Putting all these pieces together, it would appear to follow
that the conclusive evidence under Art. 37(1) can actually arise only if it was the
carrier itself that has issued the transport document or record, named itself therein
and signed it or had it signed on its behalf. Taking the working example, if the
freight forwarder did issue the bill of lading upon receipt of the goods, then, and
apparently only then, the freight forwarder will be conclusively treated as the
carrier. If so, several difficult questions would arise.95
First, if the carrier had not issued any transport document or record, but a
performing party did so for its own part of the carriage, would such a document
or record be taken into consideration within the scope of Art. 37(1)? Taking the
working example, if the forwarder issued no document, but a bill of lading was
signed by the time charterer and endorsed by the shipper to the consignee, would
the time charterer be treated as the carrier, notwithstanding that the carrier under
Art. 1(5) was actually the freight forwarder? Given that the wording of Art. 37(1) is
not limited to carriage by sea, the same question might arise also in respect of
waybills issued by subcontracted carriers for the road, rail, air or inland waterway
legs. On the basis of a literal construction of the provision, a bill of lading or waybill
issued by a performing party would not qualify as a “transport document or record”
as defined in Art. 1[14] and [18] as well as Art. 38(1), because that party is not “the
carrier”. Such an outcome, however, would not appear to have been envisaged by
the Drafters. Perhaps a distinction ought to be made as to whether the consignee has
lawfully received that document or record, and has applied for delivery of the goods
on the basis thereof. Indeed, looking at the definition of the consignee in Art. 1(11)
and the provisions on delivery of the goods in chapter 9, the document or record,
against presentation of which the consignee applies for receipt of the goods, ought
to be decisive. If so, the better view might be that such a document or record would
also be covered by Art. 37(1), provided that it was issued by a performing party that
identified itself as the carrier. On the other hand, if the document or record issued by
any performing party was never lawfully obtained by the consignee, Art. 37(1)
would not appear to apply, at all.
Second, if the carrier and a maritime performing party have both issued docu-
ments or records with conflicting information, which document or record would
override? In the working example, if the freight forwarder as carrier had issued a
through bill of lading upon receipt of the goods at the inland premises of the
shipper, and the time charterer had issued an ocean bill of lading naming itself in
bold letters on the front page as carrier, which document will be taken into
consideration? Again, going by the definition of the consignee in Art. 1(11) and
the provisions on delivery in chapter 9, it will have to be assumed that the document
or record, on the basis of which delivery is effected, ought to prevail.
Third, whereas Art. 36(2)(b) suggests that the name of “the carrier” is inserted,
Art. 37(1) purports to be already applicable if “a carrier” is identified. Turning to
95
See also Zunarelli (2009), p. 1016.
the working example, if the freight forwarder as carrier under Art. 1(5) issued the
bill of lading but named the manager, time or even bareboat charterer as the carrier,
would Art. 37(1) still be applicable? Put generally, does Art. 37(1) also operate in
cases where the carrier has named “a carrier” other than itself as “the carrier” in the
transport document or record? Alternatively, if, in the working example, the time
charterer issued the bill of lading but named either incorrectly the manager or
correctly the freight forwarder as the carrier, would the conclusive evidence arise
thereby? In general terms, would Art. 37(1) apply in cases where the transport
document or record issued upon loading of the goods was not issued by or on behalf
of the person named therein as the carrier? It is submitted that in all these cases, it
will depend ultimately on whether or not the party that issued and signed the
transport document or record had authority to create the irrefutable presumption
under Art. 37(1) against the party named therein as carrier. If such authority was
missing, no presumption can arise under Art. 37(1) at all.
The detailed reports about the long drafting process would not appear to contain
any references at all to either of these questions.
6.4.2.4 Name Without Address
Against the background of the drafting history, it would appear that, in order for
Art. 37(1) to apply, it is sufficient that the contract particulars include only the
“name” of the carrier, omitting the “address”. As such, even if the address of the
carrier was absent from the contract particulars, the appearance of the name alone
would still serve as an identification of the carrier. However, this understanding
might be in conflict with the wording of Art. 37(2), which will be considered in its
own context further below.96
6.4.3 Validity of IOC Clauses Under Art. 37(1)
Many bills of lading and sea waybills carry on their reverse side an IOC clause,97
according to which the owner of the vessel is deemed to be the carrier. Such clauses
are liable to cause substantial ambiguity if and whenever the “name of the carrier”
is already printed or inserted on the front page of the document. In recent decisions,
96
See infra 6.5.3.1 “Missing Address”.
97
A typical IOC clause, as considered in Homburg Houtimport B.V. v. Agrosin Private Ltd. And
Others (The “Starsin”) [2003] 1 Lloyd’s Law Reports 571 (H.L.), would read as follows: “The
contract evidenced by this Bill of Lading is between the merchant and the owner of the vessel (. . .).
If the ocean vessel is not owned or chartered by demise to the company or line by whom this Bill of
Lading is issued (. . .) this Bill of Lading shall take effect only as a contract of carriage with the
owner (. . .)”.
the House of Lords in the United Kingdom98 and the Bundesgerichtshof in the
Federal Republic of Germany99 have declined to give effect to such clauses.100
The Drafters of Art. 37(1) have stated repeatedly101 that the purpose of this
provision is to overrule such clauses and channel cargo claims against the carrier
identified by name in the contract particulars. It follows that, whoever is named
explicitly in the transport document or record as the carrier will be so treated, to the
exclusion of any inconsistent or conflicting other information therein. Perhaps it
has been the Drafters’ exclusive focus on this very issue, which would explain the
absence from the reports of any discussion on the questions addressed earlier in this
paper.
6.4.4 Cargo Claims Only?
Art. 37(1) has the effect that whoever is named in the transport document or record
will be treated as the carrier. It has been identified that this rule was drafted with
cargo claimants and IOC clauses in mind. However, the wording is not restricted to
this particular scenario, as indeed the provision is set out in chapter 8 of the Rotterdam
Rules on documentation, as opposed to chapter 5 on liability. As such, it may well be
argued that the scope of application of Art. 37(1) is not limited to cargo claims. If the
carrier had in fact issued the document or record naming itself as such, no problems are
to arise if Art. 37(1) was to be applied to any and all claims under the Rotterdam Rules
by or against the carrier. However, the picture may slightly change, if the cargo was
delivered on the basis of a document or record, which was issued by a performing party
describing itself as the carrier. In this alternative, treating the performing party as
carrier for every dispute under the Rotterdam Rules may, once again, go beyond the
limits of what the Drafters had foreseen.
6.5 Presumed Carrier (Art. 37[2])
6.5.1 Wording
As already mentioned, the absence or inaccuracy of the name of the carrier does not
of itself render invalid the transport document or record (Art. 39[1]). However, a
98
Homburg Houtimport B.V. v. Agrosin Private Ltd. And Others (The “Starsin”) [2003] 1 Lloyd’s
Law Reports 571 (H.L.).
99
BGH (15 February 2007), Transportrecht 2007, 119.
100
As for a comparative law analysis in respect of the IOC clause see Smeele (2010), } 6 and the
sources listed there in fn. 16.
101
See, e.g., A/CN.9/526 } 56; A/CN.9/WG.III/WP.62 } 33; A/CN.9/WG.III/WP.79 } 4; A/CN.9/
616 } 19; A/CN.9/621 } 280.
supplementary rule is required for such cases as to how to identify the carrier. Such
a rule is set out in the second paragraph of Art. 37, as follows:
2. [a] (1st sentence) If no person is identified in the contract particulars as the carrier as
required pursuant to article 36, subparagraph 2 (b), [b] but the contract particulars
indicate that the goods have been loaded on board a named ship, [c] the registered
owner of that ship is presumed to be the carrier, [d] unless it proves that the ship was
under a bareboat charter at the time of the carriage and it identifies this bareboat charterer
and indicates its address, [e] in which case this bareboat charterer is presumed to be the
carrier. [f] (2nd sentence) Alternatively, the registered owner may rebut the presumption
of being the carrier by identifying the carrier and indicating its address. [g] (3rd sentence)
The bareboat charterer may rebut any presumption of being the carrier in the same
manner.102
The wording of this provision is slightly ambiguous. At first sight, it would

appear that three rules are set out in three separate sentences. On close scrutiny,
however, it is noted that 2[a] and 2[b] are actually applicable as preconditions, not
only to the first, but also to the second and third sentences. Thus, the chain of logic
followed in these rules might be summarised in the following terms: If both 2[a] and
2[b] are satisfied, the registered owner of the ship is deemed to be the “carrier”
according to 2[c]. Once this first presumption is established, two options arise for
the registered owner: it may either prove under 2[d] that the ship was bareboat
chartered, or it may prove under 2[f] who the carrier actually is. If alternative 2[d]
was chosen, the bareboat charterer, instead of the registered owner, will now be
deemed to be the “carrier” under 2[e]. If this presumption did arise, the bareboat
charterer is provided with only one alternative remedy under 2[g] to the effect that it
may “rebut any presumption in the same manner”. It is to be assumed that the
phrase “in the same manner” refers back to 2[f], so that the bareboat charterer is
given the option to identify the “carrier” and indicate its address. The provision
does not say, however, what would happen if either the registered owner under 2[f]
or the bareboat charterer under 2[g] did identify a third party wrongfully.
6.5.2 Drafting History
The origins of these rules are to be found in Art. 8.4.2 of the CMI Draft.103 During the
preparatory work, this proved to be one of the most controversial provisions,104 which
was therefore kept in square brackets for the longer part of the discussions,105 until
102
The sentence numbers and letters in square brackets have been supplied for immediate
reference in the following discussion.
103
See A/CN.9/WG.III/WP.21 } 156 et seq.
104
A/CN.9/WG.III/WP.21 } 156; A/CN.9/WG.III/WP.62 } 27, } 31; Sturley (2006), p. 427.
105
The article was in square brackets in A/CN.9/WG.III/WP.21 } 156 et seq.; A/CN.9/WG.III/
WP.32 p. 41; A/CN.9/WG.III/WP.56 p. 109.
these were finally removed and a separate provision was drafted.106 In the course of the
drafting stages, the presumptions created by Art. 37(2)[c] and [e] were hotly
debated.107 It was argued that the registered owner may not be involved in the
performance of the contract at all.108 By way of example, it was found unfair that a
financial institution, having no connection whatsoever with the contract, would be
deemed as carrier, just because it would have been registered as the owner due to
financing arrangements.109 The better approach was explained as placing responsibility
on the shipper, who entered into the contract of carriage, to know the identity of the
carrier as its counterparty.110 Objections were also raised against the provision because
of the door-to-door application of the Draft Instrument to multimodal transportation.111
The critics pointed out that, as a result of the presumption, the registered owner that
physically performs the sea-leg alone would become responsible for all non-maritime
stages of the transportation as well.112 Bearing in mind that the registered owner may
also be defined as a maritime performing party, such a presumption would collide with
Art. 19, because the period of liability of the registered owner as a maritime performing
party would be extended from the port-to-port operation to the entire door-to-door
stages of the carriage.113 Nevertheless, the presumption found more support,
ultimately. In support of the rule, it was explained that, since the article provides
a rebuttable presumption, it only shifts the burden of proof in order to maintain an
effective remedy for the consignee.114 In response to the concerns raised by the
critics, it was explained that the registered owner, even if it was a financial
106
See A/CN.9/WG.III/WP.81 p. 31.
107
As for the objections alleged against Art. 37, see A/CN.9/526 } 57 et seq., A/CN.9/WG.III/
WP.62 } 32 et seq., A/CN.9/616 } 22 et seq., also see Sturley (2006), pp. 434 et seq.
108
A/CN.9/WG.III/WP.62 } 32; A/CN.9/616 } 22.
109
See A/CN.9/WG.III/WP.62 } 28; Sturley (2006), p. 434.
110
See A/CN.9/WG.III/WP.62 } 32; Sturley (2006), pp. 436 et seq.
111
See, e.g., A/CN.9/526 } 59; A/CN.9/616 } 22. By way of example, attention was drawn to a non-
vessel operating carrier who failed to identify itself in the contract particulars as such. In this
scenario, the registered owner would be presumed to be the carrier and be held responsible for the
entire journey. For this reason the presumption was found inappropriate. As for the problem see
also Zunarelli (2009), p. 1017.
112
An alternative would have been to restrict the application of the presumption only to the sea-leg
of the transportation. As for practical and legal difficulties that could be caused through such a
restriction see Sturley (2006), p. 439.
113
During the drafting period several other alternatives were proposed instead of creating such
presumptions. The alternatives aimed to put penalty on the carrier that did not identify its name in
the contract particulars. It was suggested that the carrier shall lose the benefit of the time bar or that
the time bar period to commence only when the carrier was properly identified. The other
alternative ought to deprive the carrier of the benefit of the package limitation. As for the
alternatives see A/CN.9/WG.III/WP.62 } 29; A/CN.9/WG.III/WP.70 with fn. 2.
114
A/CN.9/616 } 24.
institution, would be in the better position to identify the contracting carrier,115 as

it should, at least indirectly, have some connection with the carrier.116 The
purpose of the presumption was introduced as to force the registered owner to
share key information relating to the identity of the carrier.117 Additionally it was
indicated that the principle of the registered owner to assume responsibility has
already been accepted under various national legislations and international con-
ventions.118 Against the background of these supporting considerations, the
presumptions were finally adopted.
6.5.3 Preconditions
In order for any presumption under Art. 37(2) to arise, two preconditions have to be
jointly fulfilled. These two preconditions might be analysed as follows.
6.5.3.1 Breach of Art. 36(2)(b)
Literal Construction
According to Art. 37(2)[a], the first requirement for any presumption to operate is
that the contract particulars fail to identify the carrier pursuant to Art. 36(2)(b). This
latter provision says, as was already considered earlier,119 that the contract parti-
culars shall include “the name and address of the carrier”. It follows that, on a literal
reading, Art. 37(2) ought to be triggered if either the name or the address was absent
from the transport document or record.
Missing Address
Such an understanding was already criticised during the preparatory work. It was
questioned whether the presumption would still apply if the only missing
115
It was expressed that financial institutions may obtain appropriate guarantees from
the operator, see A/CN.9/WG.III/WP.70 } 5. As for the support see also Sturley (2006),
p. 437. It was indicated that the provision would enable the banks to put commercial pressure
on the bareboat charterers to identify the carrier in the transport document, Diamond (2009),
p. 508.
116
It was alleged that the registered owner under any circumstances would be in a position to have
knowledge about the party that booked cargo in its ship, see A/CN.9/WG.III/WP.62 } 28, also see
Sturley (2006), p. 437.
117
118
A/CN.9/526 } 58; A/CN.9/WG.III/WP.62 } 28; A/CN.9/616 } 25; A/CN.9/WG.III/WP.70 } 5.
International Conventions given as examples were those on Civil Liability for Oil Pollution
Damage (1969, 1992), Maritime Liens (1926) and Arrest of Ships (1952).
119
See supra 6.4.1.
information was the address of the carrier, who was otherwise clearly identified by
name in the contract particulars.120 In the further course of discussions, this
question would not appear to have been addressed, at all. A literal construction
on the basis of the wording alone would not appear to shed much light on this issue.
Indeed, the provision reads at its outset: “If no person is identified”. By using the
word “person”, the Drafters may perhaps have intended to refer only to the “name”
of the carrier. However, this argument may also be used in exactly the opposite
direction. It might be argued that the Drafters did choose “person” over “name” so
as to include in the reference also the “address”. Such an argument is supported by
the explicit reference to Art. 36(2)(b), and might be further supported by the
language in Art. 37(1), where reference is made to the identification of the carrier
“by name” as opposed to the “name and address” or “person”. As such, an analysis
of the wording proves to be inconclusive.
It would seem, however, that the rule set out in Art. 37(1) is the key to solving
this problem. Indeed, Art. 37(1) considers the identification of the carrier by name
in the contract particulars as sufficient for the purposes of that rule to apply. As
such, the carrier identified by name in the transport document or record will be
treated as the carrier and remain so, even if information on its address was absent. It
follows that Art. 37(2) cannot apply if the only missing information was the
address, because in this scenario Art. 37(1) would already be applicable. Conse-
quently, Art. 37(2) would come into operation only if the contract particulars failed
to identify the name of the carrier. If this was the true meaning of Art. 37(2), then
the wording would not appear to be consistent with Art. 37(1). Indeed, a better
phrase to open Art. 37(2) might have read “If no carrier is identified by name in the
contract particulars, but the contract particulars (. . .)”. The reference to Art. 36(2)
(b) ought to be disregarded, as it was not considered necessary in Art. 37(1) and
does not add anything other than confusion to Art. 37(2).
6.5.3.2 Name of the Ship
The second prerequisite for the application of the presumption is stated in Art. 37(2)
[b] to the effect that “the contract particulars indicate that the goods have been
loaded on board a named ship”. Whereas Art. 37(2)[a] refers explicitly back to
Art. 36(2)(b), a reference to the corresponding Art. 36(3)(b) is absent from Art. 37
(2)[b]. Indeed, Art. 36(3)(b) provides that the contract particulars should include the
“name of the ship, if specified in the contract of carriage”. Neither the CMI Draft
nor any other subsequent Draft prepared by the Secretariat included such a recom-
mendation.121 The name of the ship as a contract particular was added only at the
120
121
A provision corresponding to Art. 36(3) was not available in the [2007] Draft WP.101. The
relevant Art. 38 in the [2007] Draft WP.101 was approved by the WG and referred to the
Drafting Group, see A/CN.9/645 } 131. During the preparatory work of the WG, a proposal was
submitted for the contract particulars to include the information relating to the name of the ship.
41st Session of UNCITRAL.122 It appears that, following addition of this recom-

mendation to the catalogue in Art. 36, the Drafters did not come back to Art. 37(2)[b]
to include a reference similar to the one in Art. 37(2)[a].
In any event, the validity of the transport document or record will not be affected
by the absence of the “name of the ship” (Art. 39[1]).123
The primary objection against the “named-ship-requirement” in Art. 37(2)[b]
was that the transport might actually be performed by a ship other than the one
named in the contract particulars.124 Especially in liner transportation (Art. 1[3]), to
which the Rotterdam Rules apply primarily (Art. 6), the wide-spread use of
“substitution clauses”125 would entitle the carrier to change the ship at its own
discretion. In such cases, the opposing camp did find it inappropriate that conclu-
sive reliance be placed on the information in the contract particulars. It was
questioned whether the registered owner of a ship named in the contract particulars
would be presumed to be the carrier although the goods were actually carried on
another ship.126 The position would be even worse, one may add for the sake of
argument, if the owner was not even aware of the fact that its ship was so named.
The problem was thought likely to arise because both the transport document and
record may be issued upon receipt of custody of the goods by the carrier, long
before they are loaded onto a ship (Art. 1[14][a] and [18][a], Art. 12[1]). It has been
pointed out that, on a literal interpretation, Art. 37(2)[b] may well allow such a
However, it was expressed that inclusion of a name of the ship is not always possible in
multimodal transport. Since the scope of the Draft Instrument was designated as door-to-door,
it was thought impossible for a non-vessel operating carrier to include a ship name, see A/CN.9/
621 } 274.
122
Angola, Benin, Burkina Faso, Cameroon, Congo, Côte d’Ivoire, Democratic Republic of the
Congo, Equatorial Guinea, Gabon, Ghana, Guinea, Guinea-Bissau, Mali, Mauritania, Niger,
Nigeria, Senegal, Togo submitted a joint comment on the Draft Convention. Since the name of
the ship was held as an essential information, it was suggested that the Draft Convention ought to
include the relevant information in the contract particulars, see A/CN.9/658/Add.1 } 13 et seq. At
its 41st Session, UNCITRAL considered the [2008] Draft 645. According to the prevailing view,
the wording concerning contract particulars was found incomplete. It was expressed that banks
often required the shipper to present bills of lading that should include the name of the vessel, on
which the goods were loaded, see A/63/17 } 112. In response it was indicated that the relevant
provision listed only the mandatory contract particulars and the parties may agree to include other
particulars that they see commercially desirable. In addition it was further indicated that in the case
of multimodal transport, the name of the vessel may not be final at the time the transport document
was issued, see A/63/17 } 114.
123
UNCITRAL, considering the fact that inaccuracy of the information listed in the article did not
affect the validity of the transport document, decided that the expanded list would not affect trade
usage. Therefore, it was decided to add the proposed list into the third paragraph of the article, see
A/63/17 } 118.
124
A/CN.9/WG.III/WP.62 } 32; Sturley (2006), p. 435.
125
Such as cl. 6 in the Conlinebill 2000 (as for the sample copy see www.bimco.org); as for other
examples see e.g. Gaskell et al. (2000), chapter 5, pp. 161 et seq.
126
Sturley proposed in his article that was published after the [2006] Proposal WP.70 to redraft
Art. 40(3) in the [2005] Draft WP.56 relying on the fact of actual carriage, See Sturley (2006),
p. 438.
conclusion to be drawn.127 However, it is submitted that the clear wording of Art.

37(2)[b] leads to exactly the opposite direction. Indeed, the provision reads that “the
contract particulars indicate that the goods have been loaded on board a named
ship”. The “contract particulars” are defined in Art. 1(23) as information in a
transport document and record. If this definition was inserted in Art. 37(2)[b], the
provision would read as follows: “the information in the transport document or
record indicates that the goods have been loaded on board a named ship”. Accord-
ingly, Art. 37(2)[b] becomes applicable only if and whenever the goods have been
loaded onto a named ship and this state of affairs has been so recorded in the
transport document and record. It follows that, contrary to other provisions of the
Rotterdam Rules, Art. 37(2)[b] pre-supposes that loading onto a specific ship has
already been concluded. If so, the registered owner of that ship would have the
connection with the contract as anticipated by the presumption in Art. 37(2)[c]. It
ought to be kept in mind that the issuance of a transport document or record
certifying loading onto a named ship without this having actually been completed
would constitute fraud. As such, the transport document or record would not have
any legal effect, which would bar the application of any presumption under Art. 37
(2). As a matter of practice, this would mean that Art. 37(2) is only applicable to
bills of lading, sea waybills or other transport documents or records, which are
clearly marked “shipped”. Conversely, documents, such as a multimodal transport
operator’s or freight forwarder’s through bill of lading issued at the inland premises
of the shipper and marked “received for carriage” will not trigger Art. 37(2), unless
and until such a document is marked “shipped on board the M/V X”.
In conclusion, the second requirement under Art. 37(2)[b] is that a transport
document or record has been issued after completion of loading, certifying that loading
has been so completed and naming explicitly the name of the ship. Art. 37(2) does
not apply at all if loading was not yet completed or was never effected onto the ship
named in the transport document or record. If this was the true understanding of the
provision, most of the concerns raised by the critics would actually be covered.
Once Art. 37(2)[b] is satisfied, subsequent changes in the carrying ship would not
affect the position. In particular, if the goods were transhipped after issuance of the
transport document or record, the registered owner of the ship so named therein
would still be bound by the presumption.128 On the other hand, the prerequisite of
Art. 37(2)[b] would not be fulfilled if the transport document or record issued after
loading failed to name the ship, or loading onto the ship named in the transport
document or record, which was issued at the inland premises of the shipper, was
never effected.129
127
Zunarelli (2009), p. 1016. Sturley addressed the problem and indicated that such conclusion
should be avoided even by the most formalistic courts and confirmed the possibility of the
provision to incur an invitation to fraud, see Sturley (2006), p. 435.
128
See Sturley (2006), p. 438.
129
See Sturley (2006), p. 438. Zunarelli defined this alternative as “shipped” transport document,
see Zunarelli (2009), p. 1016.
6.5.4 Registered Owner Presumed as Carrier
If and whenever the preconditions set out in Art. 37(2)[a] and [b] are jointly
satisfied, a presumption is created under Art. 37(2)[c], which might be rebutted
under Art. 37(2)[d] or Art. 37(2)[f], as discussed further below.
6.5.4.1 Presumption
The Rule in Comparison to German and Turkish Law
Once the criteria defined in Art. 37(2)[a] and [b] are jointly met, “the registered
owner of that ship is presumed to be the carrier” (Art. 37(2)[c]). It follows that in the
working example the leasing company registered in Panama as the owner will be
treated as the carrier. This choice may appear novel on an international level. It has,
however, been a long-established rule in German and Turkish law. Indeed, in
accordance with Art. 1 No. 7 of the German Act130 of 10 August 1937, } 644 of
the German Commercial Code131 had been revised to the effect that the registered
owner of the ship, onto which the goods were loaded, will be deemed to have been
the carrier, provided that the bill of lading did not name the carrier and was signed by
the master or another agent of the registered owner.132 This rule was adopted133 into
Art. 1099 of the Turkish Commercial Code.134 The additional requirement under
the German and Turkish rules, that the bill of lading must have been signed by an
authorised representative of the owner, is absent from Art. 37(2). However, this
absence is remedied by the options of rebuttal granted to the registered owner,
which are not recognised under the German and Turkish rules.
Dual Registration
If the ship was under dual registration for flagging purposes, the primary (first)
registry is to be taken into consideration, as that registry would be decisive in
130
Gesetz zur Aenderung von Vorschriften des Handelsgesetzbuchs u€ber das Seefrachtrecht,
Reichsgesetzblatt 1937 I, p. 891. As for the official report see Amtliche Begruendung, Deutscher
Reichsanzeiger und Preussischer Staatsanzeiger 1937, Nr. 186, p. 1; as for detailed information on
this Act see Gramm (1938), pp. 72 et seq.; Gramm (1937), p. 1281.
131
Handelsgesetzbuch (10 May 1897), Reichsgesetzblatt 1897, p. 219.
132
Detailed commentary on this provision is available from Rabe (2000), } 644, pp. 714 et seq.
133
As for detailed information regarding the reception of German Maritime law in Turkey see
Atamer (2011), } 5.1 through to } 5.3; Atamer (2009a), at pp. 92 et seq.; Atamer (2010a), at pp. 51
with fn. 17 et seq.
134
Turk Ticaret Kanunu no. 6762 (29 June 1956), Resmi Gazete no. 9353 (9 July 1956).
respect of ownership, mortgages and other real rights on the ship.135 Accord-
ingly, if in the case of the working example, the ship was flagged-out from
Panama and registered on a temporary basis in Turkey for flagging purposes,136
it will still be the entry at the Panamanian Registry, which decides who the
owner is.
Unregistered Ships
The Drafters would appear to have assumed that the respective ship would always
be entered with a registry; as such, no rule is provided for the alternative that the
ship was not registered at all. Given that the Rotterdam Rules are meant to apply
to international transports (Art. 5), the possibility of an unregistered ship may not
arise in practice. In the unlikely event that it did, the “registered owner” would
have to be construed, by way of analogy to recent international legislation,137 as
“the person or persons owning the ship at the time of” issuance of the transport
document or record.
6.5.4.2 Rebuttal
The presumption created according to Art. 37(2)[c] is of a prima facie nature

only.138 Indeed, any registered owner, who is deemed to be the carrier under this
rule, is provided with two alternative remedies to destroy such a presumption. It
ought to be noted, however, that the registered owner, who set aside the presump-
tion of being the carrier, may still be considered as a maritime performing party
pursuant to Art. 1(7). This will be the case, particularly, if the ship was used by the
carrier on the basis of a time or voyage charter agreement, under which possession
of the ship would be maintained by the owner. If so, the owner’s liability may still
arise under Art. 19.
Proof of the Bareboat Charterer or Other “Operator”
The Rule
The first option granted to the registered owner under Art. 37(2)[d] is proof of a
bareboat charter agreement. In order to discharge this onus of proof, the registered
owner is required to (1) prove that the ship was under a bareboat charter at the time
135
The same solution is adopted in Art. 16(b) of the Geneva International Convention on Maritime
Liens and Mortgages, 1993, in respect of mortgages, “hypothèques” and charges.
136
So as to acquire the all-important right of cabotage.
137
See, e.g., Art. 1(8) of the Nairobi International Convention on the Removal of Wrecks, 2007.
138
During the preparatory work, it was proposed that the relevant provision ought to create an
irrebuttable presumption. However, this suggestion did not receive support, see A/CN.9/526 } 58.
of the carriage, (2) identify the bareboat charterer and (3) indicate its address. If all
these three requirements are met, the presumption, which had arisen under Art. 37
(2)[c], will give way to a new presumption, according to which the bareboat
charterer will then be presumed to be the carrier.139 Such an opportunity had
been provided already in the second sentence of Art. 8.4.2 of the CMI Draft.140
The wording was amended141 in conformity with the [2006] WP.79 Proposal142 and
accepted by the WG at the 19th Session.143
Admissible Evidence
Art. 37(2)[d] explicitly refers to a “bareboat charter”. However, a definition is not
supplied, as indeed Art. 37(2) and the supplementary Art. 65 are the only two
provisions, where this expression is used. As a matter of practice, the submission as
evidence of an agreement concluded on the BARECON 2001 or any other standard
form ought to suffice for these purposes. Indeed, the information provided in
BARECON 2001 Boxes 4,144 5145 and 21146 in conjunction with cl. 10(b)147
would meet the requirements set forth in Art. 37(2)[d]. In some jurisdictions148
such as Germany149 and Turkey,150 as well as under recent international instru-
ments,151 ships registered in one Country are allowed to fly the flag of another
Country temporarily, if certain preconditions are met and a registration to this effect
139
It has been suggested that Art. 37(2) provides a solution to the problem relating to the
unavailability of public registers for bareboat charters, see Williams (2009), p. 202.
140
The second sentence of Art. 8.4.2 of the CMI Draft reads “. . .[t]he registered owner can defeat
this presumption if it proves that the ship was under a bareboat charter at the time of the carriage
which transfers contractual responsibility for the carriage of the goods to an identified bareboat
charterer. . .], see A/CN.9/WG.III/WP.21 } 156 et seq.
141
As for the amended text see A/CN.9/WG.III/WP.81 p. 31.
142
143
A/CN.9/621 } 288.
144
The name of the bareboat charterer and its place of business should be indicated in Box 4.
145
The name of the ship, its call sign and flag are the relevant information to be indicated in Box 5.
146
The charter period is to be mentioned in Box 21.
147
As for the wording of this provision see the working example supra 6.2.1.
148
As for further examples see, among others, Coles and Watt (2009), chapter 4 and also under
each Country entry; Davis (2005), chapter 34.
149
Art. 11 Gesetz €uber das Flaggenrecht der Seeschiffe und die Flaggenf€uhrung der Binnenschiffe
(Flaggenrechtsgesetz) (8 February 1951), Bundesgesetzblatt 1951 I, p. 79 (¼ II, p. 6) in conjunc-
tion with Bekanntmachung (26 October 1994), Bundesgesetzblatt I, p. 3140; as for a detailed
discussion of this provision, see Dimigen (2000), pp. 71 et seq.
150
Art. 824 of the Turkish Commercial Code as amended by Art. 3 of the Act no. 5136 (20 April
2004), Resmi Gazete no. 25446 (28 April 2004).
151
Art. 16 of the Geneva International Convention on Maritime Liens and Mortgages, 1993. As for
the drafting history of Art. 16 see Berlingieri (1996), at p. 285 et seq.; as for detailed information
on this provision see Berlingieri (1995), at p. 74; Wersel (1996), pp. 122 et seq.; Suzel (2008),
pp. 605 et seq.
is obtained from the relevant authorities. These provisional flag-out/flag-in proce-

dures are usually conducted on the basis of bareboat charter agreements.152 In the
context of Art. 37(2)[d], certificates issued by the authority of the provisional flag
State may also serve as evidence, provided that the certificate proves the existence
of a bareboat charter and the identity with address of the charterer.
Financial Leasing, Usufruct and Other Agreements for the Transfer of Possession
The Drafters appear to have focused from the outset on “bareboat charters”.
However, there are quite a number of other legal arrangements, under which
possession of the ship is transferred by the registered owner onto another party,
with the latter then employing the master and crew and maintaining the seaworthi-
ness of the ship. Financial leasing agreements immediately come to mind, as these
agreements are generally qualified as siblings to the bareboat charters. Whereas the
former provides for the financial letting, the latter is the operational variant.153
Another example would be the case where a registered owner grants a usufruct on
the ship to another party.154 In this alternative, the party receiving the right of use
would become possessor of the ship as well as employer of the master and crew. In
all such cases, the possessor of the ship would qualify as the “operator”. Indeed, it
would have to be held that the term “operator” as used without definition in
International Conventions155 describes a person or entity that has lawfully obtained
possession of the ship from the owner or other previous possessor.156 It might be
questioned whether in these cases the registered owner would still be entitled to the
option granted in Art. 37(2)[d]. On a strict literal reading of this provision, its
application appears to be limited to what it says, namely to bareboat charters. In
support of this assumption, one may continue to argue that the Drafters would have
152
See the designated Part V attached to the BARECON 2001 form.
153
See Davis (2005), } 1.7 and 1.8; Dimigen (2000), p. 30; Athanassopoulou (2005), pp. 112
et seq.; as from an economical point of view see also Stopford (1997), } 6.7.
154
This option is currently limited under German (Art. 9 Gesetz €uber Rechte an eingetragenen
Schiffen und Schiffsbauwerken (15 November 1940), Reichsgesetzblatt 1940 I, p. 1499:
Bundesgesetzblatt III, Gliederungsnummer 403–4) and Turkish (Art. 878 of the Turkish
Commercial Code) law. However, other jurisdictions may not carry similar restrictions, as
indeed Art. 1059(1) of the Draft Turkish Commercial Code has granted complete freedom in
this respect.
155
Art. 1(2) of the International Convention on Limitation of Liability for Maritime Claims, 1976;
Art. III(4)(c) of the International Convention on Civil Liability for Oil Pollution Damage, 1992;
Art. 4(1) of the International Convention on Maritime Liens and Mortgages, 1993; Art. 3(1)(e) of
the International Convention on Arrest of Ships, 1999; Art. 1(1)(b) of the Athens Convention
relating to the Carriage of Passengers and their Luggage by Sea, 2002.
156
See, e.g., the definition provided in Art. 2 of the United Nations Convention on Conditions for
Registration of Ships, 1986: “Operator” means the owner or bareboat charterer, or any other
natural or juridical person to whom the responsibilities of the owner or bareboat charterer have
been formally assigned. As for detailed reasons see Atamer (2006), pp. 158–159.
used appropriate terminology, if they intended to create similar options for all types
of agreements where possession of the ship is transferred. However, it is submitted
that such a narrow construction would be in conflict with the true intention behind
Art. 37(2)[d]. This provision purports to remedy any injustice, which may arise
because of the presumption created in Art. 37(2)[c] to the effect that the registered
owner of the ship is deemed to be the carrier for the door-to-door performance of
the entire contract. On the basis of the bareboat charter, the owner will have
transferred possession of the ship onto the charterer, who would thereby have
become responsible for seaworthiness and manning. As such, the registered
owner would no longer have any involvement whatsoever in the performance of
the carriage. Therefore, the right is granted to the registered owner to identify the
bareboat charterer as the proper counterparty for any cargo claim. If this was the
true reason behind the provision, then it would follow that the same remedy ought
to be made available to the owner in every case where possession of the ship,
together with the responsibility for seaworthiness and manning, is transferred to an
operator, albeit the underlying agreement is not literally referred to as a bareboat
charter but as financial leasing, usufruct or the like. Indeed, it would be an absurd
result to decline in the working example the leasing company the right under Art. 37
(2)[d] because that agreement was in effect together with Part IV, whereas an owner
who had lent the ship on the basis of a BARECON without Part IV would be
entitled to the same right. Against this background, it might be assumed that the
Drafters157 may well have used the expression “bareboat charter” widely so as to
encompass any sort of operational and financial leasing of the ship.158 If so, it would
certainly have been useful to include a definition in Art. 1 for clarification. In any
event, if it was to be assumed that “bareboat charter” did include financial leasing
agreements, then the translation into many languages may prove to be difficult, as
separate terminology exists in some languages regarding the operational159 and
financial160 leasing of ships.
157
At the third meeting of the Transport Law Sub-Committee in July 2000 (as to which meeting
see Sturley (2006), p. 431), the Spanish delegate Mr. José Alcántara suggested that the term
“bareboat” ought to be preferred over “demise”, see (2000) CMI Yearbook, at p. 283. If this
was the final impetus, then perhaps the delegates present at that meeting ought to clarify what
was meant.
158
This may have been based on, say, Art. 2 of the United Nations Convention on Conditions for
Registration of Ships, 1986, which defines the bareboat charter as “a contract for the lease of a
ship, for a stipulated period of time, by virtue of which the lessee has complete possession and
control of the ship, including the right to appoint the master and crew of the ship, for the duration
of the lease”. Alternatively, reliance may have been placed on the definition adopted in The
“Guiseppe di Vittorio” [1998] Lloyd’s Law Reports 136 (C.A.), at p. 156 col. 2 per Evans, L.J.
159
“Bareboat charter” in German, “ciplak gemi kirasi” in Turkish. Suzel and Damar (2010), p. 171
have used this phrase in their translation.
160
“Schiffsleasing” in German, “finansal gemi kirasi” in Turkish.
Duration
It is required under Art. 37(2)[d] that the bareboat charter was in force “at the time
of the carriage”. Given that the transport over longer distances may take quite a long
time, the question may arise as to whether the charter would have to be in place for
the whole duration of the carriage from door-to-door. As has been identified earlier,
by virtue of Art. 37(2)[b], the presumptions in this provision do come into operation
only if the goods were actually loaded on board a named ship. It follows that the
earliest point, at which the bareboat charter must have been concluded, would
appear to be the date, on which loading commenced. By way of an argumentation
exercise, it might be further discussed as to what would happen if the charter was
discontinued and the ship repossessed by the owner before delivery of the goods. As
a matter of practice,161 repossession may proceed on the basis of a Court order or by
way of the parties’ mutual consent. It may or may not happen at a specific port, and
may or may not involve a change of the crew. In any event, it might be suggested
that the registered owner who has repossessed the ship, ought not to be entitled to
the remedy in Art. 37(2)[d] to the extent that the claimant is able to prove in
accordance with Art. 17(1) that the loss, damage or delay, or the event or circum-
stance that caused or contributed to it took place after the owner’s repossession.
However, even in such a case, the owner would still be entitled to the second
rebuttal option in Art. 37(2)[f].
Address or Domicile?
Whether the term “address” in Art. 37(2)[d] would have to be construed as
“domicile” has already been considered earlier.162 It is submitted that the consid-
erations set out there apply here, as well.
Bareboat Charterer Not Carrier

On the basis of the wording of this provision, it would appear to be sufficient for the
registered owner to formally prove the existence of a bareboat charter. Should
the owner discharge this onus of proof, the presumption in Art. 37(2)[e] will be
triggered, it seems, automatically. According to the unconditional wording of this
rule, the bareboat charterer need not be the carrier described in Art. 1(5). Even if the
registered owner knew or ought to have known that the bareboat charterer was not
the carrier, it would still be discharged from the presumption under Art. 37(2)[c] by
merely proving the bareboat charter. This conclusion is further supported by the use
of the word “[a]lternatively” at the commencement of Art. 37(2)[f], which will now
be considered.
161
See cl. 29 BARECON 2001.
162
See supra 6.4.1.3.
“Identifying” the Carrier
Drafting History
The registered owner, who is deemed to be the carrier under Art. 37(2)[c], is given a
second alternative to destroy this presumption. Art. 37(2)[f] provides the registered
owner with the right to prove who the carrier is and indicating its address. The CMI
Draft did not include a corresponding opportunity. Art. 8.4.2 of the CMI Draft
offered the registered owner only the option of proving a bareboat charter.163
However, such a limitation received objections.164 It was expressed that the oppor-
tunity of the registered owner to defeat the presumption should not be restricted.165
It was further questioned whether the registered owner may rebut the presumption
by proving that the time charterer was the carrier.166 The option granted in Art. 37(2)
[f] was first proposed by the Italian delegation prior to the 17th Session in the [2006]
Proposal WP.70.167 The suggested provision read, in its material part, as follows:
(. . .) The registered owner can defeat this presumption if it identifies the carrier who issued
the transport document in which its name and address should have been indicated (. . .)
This proposal was creating the presumption only against the registered owner.
On the other hand, the only option granted to the registered owner was to prove who
the carrier actually was.168 It is submitted that this proposal, rather than operating
with vague presumptions, did consider correctly the legal tie between the carrier
and the transport document.
Subsequently, however, the [2006] Proposal WP.79 was submitted in preparation
for the 18th Session. Although Italy was one of the co-drafters of the [2006] Proposal
WP.79, the policy adopted in the [2006] Proposal WP.70 had been changed, and
the registered owner was now provided with both alternatives to rebut the presump-
tion. In support of this new proposal, specific reference was made to bills of lading
signed by or on behalf of the master.169 It was pointed out that in such cases:
it is rarely stated whether the master has signed pursuant to the authority of the owner of the
vessel or the authority of somebody else, such as a time-or voyage charterer. (. . .).
To address this issue
163
164
As for the objections see A/CN.9/526 } 59; A/CN.9/WG.III/WP.62 } 33. The provision was also
criticized by Sturley who defines the bareboat charter as the first step in a chain of contracts,
wherefore the opportunity of the registered owner should not be limited in the context of bareboat
charters, see Sturley (2006), p. 438.
165
A/CN.9/526 } 59.
166
It was found unclear whether it was the only way to rebut the presumption, see A/CN.9/WG.III/
WP.62 } 33.
167
168
According to Sturley (2006), p. 438, the [2006] Proposal WP.70 was a significant improvement,
as it did no longer send the claimant on a journey to discover the carrier.
169
says the Proposal, the alternative solution is introduced in Art. 37(2)[f], together
with the same solution in Art. 37(2)[g] for the bareboat charterer. At the 19th
Session, it was suggested that the draft provision be amended in a way giving each
person in the chain of sub-contracts an opportunity to rebut the presumption.170
Another proposal was made to delete the word “bareboat” from the second para-
graph.171 However, this proposal was opposed on the grounds that a single refer-
ence to a “charter” would also encompass a time and voyage charter.172 Ultimately,
the suggestions in the [2006] Proposal WP.79 have made their way into the final
text with only minor alterations in terminology.
The “Carrier” to Be Identified

Against the background of this drafting history, it appears that the ultimate under-
standing of the Drafters has been to the effect that the presumption may only be
defeated by identification of the carrier as defined in Art. 1(5). As from the owner’s
perspective, the last circle in the chain, which is the first circle as against the
shipper, ought to be identified. Should the registered owner succeed to identify
the original party, which concluded the contract of carriage with the shipper, then
the presumption under Art. 37(2)[c] will be set aside. If this was the correct
understanding of the provision, it would follow that the identification of, say, a
time or voyage charterer or ship manager would not be sufficient for these purposes,
when it was, such as in the working example, actually a freight forwarder, who
entered into the contract with the shipper.
“Identifying” the Carrier

According to Art. 37(2)[d] the registered owner is required to “prove” the bareboat
charter. Equally, Art. 37(3) provides a claimant with the right of “proving” who the
carrier really is. However, under Art. 37(2)[f], the owner may rebut the presumption
by “identifying” the carrier. The use of different terminology within the same
provision and the same context must give rise to the question as to what exactly
was meant by each of these terms. On a literal reading, “identifying” might be
understood as a more loose exercise in comparison to “proving”. Perhaps the
Drafters considered sufficient that the registered owner would supply the Court
with some sort of evidence, which would give an indication who the carrier might
be. Assuming that the ship was on time charter, this would already indicate by itself
that the carrier ought to have been some person other than the owner, presumably
the time charterer. However, the time charterer may well have concluded, such as in
170
See A/CN.9/616 } 24.
171
See A/CN.9/621 } 285.
172
It was expressed that in practice the bareboat charterer is treated in the same way as the
shipowner, and should therefore have the same opportunities to rebut the presumption, whereas
the position is different in respect of the voyage and time charterer, see A/CN.9/621 } 286
et seq.
the working example, an agreement with a freight forwarder, who had contracted
with the shipper. In such a case, would it still be sufficient for Art. 37(2)[f] to apply
that the registered owner identifies the time charterer as a possible carrier, or would
the owner have to prove with whom the shipper has concluded the contract of
carriage? Notwithstanding the ambiguous wording, it is submitted that the reasons
given by the Drafters for inclusion of this provision would validate the latter
solution. As such, Art. 37(2)[f] ought to have been drafted and should in any
event be construed as follows:
Alternatively, the registered owner may rebut the presumption of being the carrier by
proving who the carrier under the contract of carriage is and indicating its address
[domicile].
Proof or “identification” of any other contract would not rebut any presumption
under Art. 37(2)[c].
Carrier Known to Registered Owner

The question might be raised whether the registered owner would be entitled to
rebut the presumption of being the carrier (Art. 37(2)[c]) by proving the bareboat
charter (Art. 37(2)[d]), even if the carrier was actually known or ought to have
been known to the owner. As a matter of practice, such a dispute is unlikely to
arise as the operation of the ship will have been transferred to the bareboat
charterer, so that there would be little possibility, if at all, for the registered
owner to become aware of the carrier in a specific case. Nevertheless, if such a
dispute did occur, the use of the term “alternatively” at the commencement of
Art. 37(2)[f] would suggest that the registered owner may freely choose as
between Art. 37(2)[d] and Art. 37(2)[f]. This would be a strange result if the
owner knew or ought to have known the identity of the carrier. Nevertheless,
under the explicit wording of the provision, the owner may simply walk out of the
case by submitting evidence of the bareboat charter. In such cases, the bareboat
charterer would still be protected under Art. 37(2)[g], which will be considered
below. Who will really suffer from this bouquet of options is the consignee and its
insurer, as will be seen later in the text.
6.5.4.3 Validity of IOC Clauses Under Art. 37(2)
The Problem
A difficult problem is likely to arise if the transport document or record did not
identify the carrier by name, but did contain an IOC clause to the effect that the
document or record is to take effect as a contract concluded with the registered
owner.173 In this scenario, on a first sight, Art. 37(1) cannot apply because the
173
As for a typical wording see supra fn. 97.
name of the carrier is missing. As such, under the chain of logic in Art. 37, the
second paragraph ought to come into operation. If so, and assuming that Art. 37(2)
[b] is also satisfied, the first presumption under Art. 37(2)[c] will arise, according
to which the registered owner will be treated as the carrier. This outcome may
appear to be identical with the function of the IOC clause. However, if the IOC
clause was to be held valid for lack of any conflict with Art. 37(1), then the carrier
will actually have been identified in the contract particulars as the “registered
owner of the ship”. If so, the first criterion set out in Art. 37(2)[a] (“no person is
identified”) would no longer be met. Therefore, it may well be argued that Art. 37
(1) ought to apply in respect of the registered owner, who is deemed to be the
carrier by virtue of the IOC clause. Accordingly, the question would be whether
the registered owner would still be entitled to the options under Art. 37(2)[d] and
[f]. Turning to the working example, the question would be whether the ship
leasing company could be held liable under Art. 37(1) on the basis of a bill of
lading containing an IOC clause and signed “as agents”. Put differently, could an
IOC clause be treated as a waiver of the registered owner to exercise its rights
under Art. 37(2)[d] and [f]?
Literal Construction
By way of literal construction the following might perhaps be argued: as for the
identification of the carrier, Art. 37(2)[a] refers back to Art. 36(2)(b). This may be
construed to the effect that an explicit identification of name is required, as
opposed to some IOC clause in small print on the reverse side of the transport
document. If so, it might be said that an IOC clause would not serve as an
identification within the scope of Art. 37(1) and Art. 37(2)[a]. Consequently,
the registered owner might be held entitled to the rebuttal options of Art. 37(2)[d]
and [f]. In order to see whether the reference in Art. 37(2)[a] to Art. 36(2)(b) could
be attributed such an understanding, the drafting history has to be consulted again.
The reference to Art. 36(2)(b) first appeared at a later stage of the proceedings in
Variant B of the [2007] Draft WP.81 as prepared by the secretariat.174 However,
no reasons have been given for this inclusion, as indeed the alternative Variant A
did not provide for any reference at all.175 It would follow that the drafting history
is of no assistance.
Alternatives
In order to solve this problem, it is submitted that a distinction ought to be made as

to in whose name the transport document or record has been issued.
174
[2007] Draft WP.81 p. 31 with fn. 121; see A/CN.9/WG.III/WP.81.
175
[2007] Draft WP.81 p. 31 with fn. 120; see A/CN.9/WG.III/WP.81.
Transport Document or Record Issued by the Registered Owner

As a general principle, both the transport document and record are to be issued by
the carrier (Art. 1[14] and [18]). Accordingly, if the document or record contained
an IOC clause, this would have to be understood as having been included by or on
behalf of the carrier. Consequently, if the registered owner issued a transport
document or record, which contained an IOC clause, the registered owner would
thereby have identified itself as the carrier, as described in Art. 37(1). Conse-
quently, in this scenario, it would not be open to the registered owner as carrier to
use the options of Art. 37(2)[d] or [f]. By way of example, a freight forwarder
might have actually concluded the door-to-door transport contract with the
registered owner acting only as a maritime performing party (Art. 1[7]) for the
port-to-port stage. Nevertheless, if the bill of lading was issued by the registered
owner without naming the freight forwarder as carrier, then the registered owner
will be deemed to be the carrier for the entire door-to-door performance according
to Art. 37(2)[c], because the consignee will be receiving the goods in return for
this bill of lading. The owner would then be entitled under Art. 37(2)[f] to prove
that it was actually the freight forwarder, who concluded the contract with the
shipper as carrier. However, if the same bill of lading had an IOC clause on the
reverse side, this would identify the registered owner as the carrier pursuant to
Art. 37(1). As such, the owner would now be deprived of any rebuttal options
under Art. 37(2)[f].
Transport Document or Record Not Issued by the Registered Owner

On the other hand, if the transport document or record was not issued by or on
behalf of the registered owner, it is submitted that the IOC clause could not
operate as a waiver of the rights granted in Art. 37(2)[d] or [f]. In this scenario,
the time or voyage charterer, or the freight forwarder would have issued the
transport document or record. Accordingly, the IOC clause would have been
included without the knowledge or interference of the registered owner. If, even in
such cases, it was held that the IOC clause would still operate against the registered
owner within the scope of Art. 37(1), then the owner would have effectively lost the
rights under Art. 37(2)[d] or [f] with the result that a conclusive presumption is
created. Such presumption would not be limited to the port-to-port phase, but would
extend to the entire door-to-door performance of the contract. It is submitted that the
creation of such a conclusive presumption without the consent or involvement of the
registered owner would run against the principles adopted in the drafting process of
Art. 37. Indeed, it will be recalled that one of the solutions offered for the problem of
the “unidentified carrier” was to hold the registered owner liable in any event.
However, massive opposition was raised against this idea for several reasons.
Therefore, the Drafters had explicitly abandoned this idea, and adopted instead the
mechanism in Art. 37(2) whereby presumptions are created, all of which may be
rebutted by proving, ultimately, who the carrier actually was. Against the background
of this drafting principle, an IOC clause in a transport document or record, which was
not issued by or on behalf of the registered owner, cannot take away the rights
granted in Art. 37(2)[d] or [f]. If held otherwise, a person other than the registered
owner would be waiving those rights and creating a conclusive presumption. Such a
construction cannot be supported by the general principles of representation and
agency.
6.5.5 Bareboat Charterer or Other Operator Presumed

as Carrier
6.5.5.1 Presumption
If the criteria set out in Art. 37(2)[a] and [b] together with Art. 37(2)[d] are all
satisfied, the presumption against the registered owner is replaced by the presump-
tion that the bareboat charterer is the carrier (Art. 37(2)[e]). As was established
earlier,176 the registered owner is entitled under Art. 37(2)[d] to prove the existence
of any other type of agreement whereby the possession of the ship has been
transferred to an operator, such as a financial leasing or usufruct agreement. It
follows that the bareboat charterer or other operator of the ship will be presumed to
be the carrier, provided that the registered owner can discharge the onus of proof
under Art. 37(2)[d].
6.5.5.2 Rebuttal
The presumption created under Art. 37(2)[e] is also of a prima facie nature.
According to Art. 37(2)[g], the bareboat charterer or, for that matter, the other
operator of the ship is entitled to set aside the presumption. The CMI Draft included
a similar opportunity,177 according to which the only way for the bareboat charterer
to rebut the presumption was to prove that the ship was sub-bareboat-chartered.178
A new course was taken on the basis of the [2006] Proposal WP.79.179 In retrospect,
however, it would appear to be ambiguous as to what exactly was meant by this
Proposal. Indeed, it was proposed to add after what has ultimately become the first
sentence of Art. 37(2), a new paragraph in the following terms:
176
See supra 6.5.4.2 “Proof”/“Financial Leasing”.
177
The opportunity of the bareboat charterer to rebut the resumption was drafted in double square
brackets as follows, “. . . [i]f the registered owner defeats the presumption that it is the carrier under
this article, then the bareboat charterer at the time of the carriage is presumed to be the carrier in
the same manner as that in which the registered owner was presumed to be the carrier.”, see
178
According to Art. 22(a) of BARECON 2001, the sub-charter of the ship is subject to the prior
written consent of the registered owner.
179
Alternatively, the owner may defeat the presumption of being the carrier by identifying the
carrier and indicating its address. The bareboat charterer may defeat any presumption of
being the carrier in the same manner.
Given that these two sentences were part of a separate new second paragraph,
one would have to assume that the option offered in the second sentence to the
bareboat charterer is related exclusively to the first sentence of the same paragraph.
If so, under this new alternative, the bareboat charterer would have been entitled to
discharge the presumption only by proving who the carrier is. In other words, this
Proposal would not appear to have granted the bareboat charterer the right to avoid
the presumption by proving a sub-bareboat-charter. However, no clarification is
provided in the Proposal as to whether this was the intention. At later stages of the
preparations, the second paragraph was merged with the first so that Art. 37(2)
became one paragraph consisting of three sentences. As such, in its latest incarna-
tion, it would appear that the bareboat charterer is supplied under Art. 37(2)[g] with
two alternative options “in the same manner” as the registered owner. The first
alternative would be proof of a sub-bareboat-charter180 and the second alternative
proof of the carrier under the contract of carriage.181 The earlier discussion in
respect of these two alternatives is applicable here as well.
6.5.6 Time for Suit
6.5.6.1 The Rule
According to Art. 62(1), the time for suit182 based on a breach of any obligation
under the Rotterdam Rules is 2 years. This period starts running as of the first day
after delivery of the goods has been or ought to have been effected (Art. 62[2]).
Since Art. 37(2) provides for several refutable presumptions, the limitation period
indicated in Art. 62 may expire prior to the identification of the carrier. Such a
danger is remedied in Art. 65 by providing the claimant with two additional periods.
According to the opening words of this provision, “an action”183 is to be
180
As to which see in detail supra 6.5.4.2 “Proof”.
181
As to which see in detail supra 6.5.4.2 “Identifying”.
182
As for the time for suit in the Rotterdam Rules see, Baatz (2009), pp. 195 et seq.; Thomas
(2009), pp. 76–77; Berlingieri (2009), pp. 58–59.
183
In the [2003] Draft WP.32, Art. 71 did not carry a heading yet, and the provision read as follows,
“[i]f the registered owner of a vessel defeats the presumption that it is the carrier under the
article. . .”, see A/CN.9/WG.III/WP.32 p. 64. Subsequently, the corresponding provision of Art. 74
in the [2005] Draft WP.56 received the title “Actions against the bareboat charterer”, however the
opening words of the relevant provision remained the same. No reasons were given for the choice
of “actions”, see A/CN.9/WG.III/WP.56 p. 136. Thereafter, the heading of Art. 68 of the [2007]
Draft WP.81 was altered as “Actions against the person identified as the carrier” and the relevant
article was then drafted as follows “[a]n action against the bareboat charterer or the person
commenced within either of these additional periods. However, the description in

the principle provision of Art. 62(1) reads “judicial or arbitral proceedings”. It is
submitted that the term “action”, which appears to have been lifted from Art. 64, is
meant to have the same effect. Accordingly, “judicial or arbitral proceedings”
against the persons identified under Art. 37(2)[e], [f] and [g] may be commenced
even after the expiry of 2 years: (a) within the time allowed by the applicable law in
the jurisdiction where proceedings are instituted or (b) within 90 days commencing
from the day that either the carrier has been identified or the registered owner or the
bareboat charterer rebut the presumption of being the carrier. If both alternatives
collided in a specific case, the longer period is to prevail (Art. 65: “within the later
of”). Now, these two alternatives ought to be considered separately.
6.5.6.2 Time Allowed Under Applicable Law
Art. 65(a) provides that if the limitation period determined according to the
applicable law184 in the jurisdiction where proceedings are commenced is longer
than 2 years (Art. 62[1]), the action against any person identified as carrier
pursuant to Art. 37(2) may also be instituted within that period. Accordingly,
this rule admits the possibility that the law applied by the Court may have
available a supplementary provision to the effect that in Art. 37(2)-cases, any
action against the parties so identified may be commenced within a specified
period even after the expiry of the two-years period. This alternative has been
criticised on the grounds that any applicable national law may thereby undermine
the principal in Art. 62(1).185 The reference to the law applied by the court or
tribunal hearing the case implies that a conflict-of-laws analysis has to be con-
ducted in the first place. The question then is which law would govern this
particular issue. The Court may find186 generally that the law of the carrier’s
principal place of business is applicable on matters, which are not governed by
the Rotterdam Rules. However, it is not clear whether the law governing claims
against the carrier would also govern any additional limitation period for a claim
identified as the carrier pursuant to article. . .”. The Secretariat explained that drafting clarifications
and corrections were made to the text of the corresponding article in the [2005] Draft WP.56, see
184
Reference to the national law was always considered as one of the alternatives during the
preparatory work, see Art. 14.5(a) in A/CN.9/WG.III/WP.21 } 212 and A/CN.9/526 } 164 et seq.;
Art. 71(a) in A/CN.9/WG.III/WP.32 p. 64; Art. 74(a) in A/CN.9/WG.III/WP.56 p. 136; Art. 68(a)
in A/CN.9/WG.III/WP.81 p. 48 and A/CN.9/WG.III/WP.101 p. 47.
185
William Tetley et al., ‘Particular concerns with regard to the Rotterdam Rules’, http://www.
iidmaritimo.org, pp. 5 et seq. (13 August 2010)
186
On the basis of, e.g., Art. 4 } 4 of the Convention on the Law Applicable to Contractual
Obligations (Rome, 19 June 1980) (1980) Official Journal Law 266, p. 1, Consolidated version, 11/
3/1999. As for the preparatory work on and construction of this provision see Giuliano and
Lagarde (1980), p. 282, Art. 4 } 5. The Official Journal is available at http://eur-lex.europa.eu
(13 August 2010).
against a party other than the carrier, which is only deemed to be so pursuant to
Art. 37(2). The solution to the problem may also vary depending on whether the
State, whose law was found to be applicable, was a party to the Rotterdam Rules.
It is submitted that the provision is likely to cause difficulties in practice.
6.5.6.3 Ninety Days
The other alternative is set out in Art. 65(b) in the following terms:
Ninety days commencing from the day when the carrier has been identified, or the
registered owner or bareboat charterer has rebutted the presumption that it is the carrier,
pursuant to article 37, paragraph 2.
The provision has been lifted from the [2005] Draft WP.56187 to the [2007] Draft
WP.81188 with consequential drafting changes. In the latter text, it has already
appeared in its final version.
Given that a comma separates from the previous parts the reference “to article
37, paragraph 2” at the end of the provision, it is to be assumed that this reference
covers both of the preceding alternatives mentioned in Art. 65(b). If so, however,
the phrasing would not appear to be fully consistent with Art. 37(2). Indeed, under
that provision, the registered owner, bareboat charterer and other operator have the
right to rebut the presumption by proving either who the (sub-)bareboat charterer or
who the carrier is. As such, the phrase “when the carrier has been identified” as
appearing in Art. 65(b) is already included in the phrase that appears immediately
thereafter in the same provision (“the registered owner or bareboat charterer has
rebutted the presumption”). Therefore, Art. 65(b) would have been more consistent
with the rules in Art. 37(2) if the provision read as follows:
Ninety days commencing from the day when the registered owner or bareboat charterer has
rebutted the presumption that it is the carrier, pursuant to article 37, paragraph 2.
According to Art. 65(b), the extra time of 90 days189 starts running “from the
day” of rebuttal. This has to be contrasted with Art. 62(2), which lets the limitation
period commence “on the day” of delivery or assumed delivery, but does exclude
187
Art. 74[b] of the [2005] Draft WP.56 read as follows: “[. . .(b) 90 days commencing from the
day when the registered owner [both [i] proves that the ship was under a bareboat charter at the
time of the carriage; and] [ii] adequately identifies the bareboat charterer.]”. The [2005] Draft WP.
56 [ii] was added for the reason that the ninety day period would not be of assistance if the cargo
claimant experienced difficulties in identifying the carrier, see A/CN.9/WG.III/WP.56 p. 137 with
fn. 577.
188
189
The extension of the limitation period was always ninety days in the Draft Instrument see,
Art. 14.5(b) in A/CN.9/WG.III/WP.21 } 212 and A/CN.9/526 } 164 et seq.; Art. 71(b) in A/CN.9/
WG.III/WP.32 p. 64; Art. 74(b) in A/CN.9/WG.III/WP.56 p. 136; Art. 68(b) in A/CN.9/WG.III/
WP.81 p. 48 and A/CN.9/WG.III/WP.101 p. 47.
that first day from counting. How, then, is the extra time to be computed? Does the
day, on which either option under Art. 37(2) has been satisfied, count as the first day
of the period, or is that day to be excluded by way of analogy to the second sentence
of Art. 62(2)? If consistency was thought to be an overriding virtue of an Interna-
tional Convention, the ninety-days-period under Art. 65(b) ought to be subject to
the same computation principles under the Rotterdam Rules as this extra time is
essentially an appendix to the limitation period in Art. 62, granted only to avoid any
injustice that would be done to the claimant because of Art. 37(2). Therefore, the
rule in the second sentence of Art. 62(2) ought to apply also to those extra
periods.190
By way of academic argumentation, it might be discussed whether Art. 63 is also
applicable to the extra time of Art. 65(b). Assuming, however, that a claimant, who
is defeated under Art. 37(2), will already be under a great rush to commence new
proceedings so as to finally obtain indemnity from the carrier, the problem is
unlikely to arise in practice. If it did, a literal argument may say that Art. 63
explicitly refers only to the period in Art. 62, which might be construed to the
effect that it does not apply to Art. 65(b). Alternatively, and for the sake of
consistency, Art. 63 may also be applied to Art. 65(b), as discussed in the previous
paragraph.
6.5.7 Procedural Evaluation
There can be no doubt that Art. 37(2) in conjunction with Art. 65 have been drafted
with the best intentions to remedy a problem, which has caused uncertainty in
practice to cargo claimants. The Drafters have apparently attempted to find a
balance between the conflicting interests of the cargo claimants and the various
parties involved in the operation of the ship. Looking at the final product, however,
one cannot avoid the impression that the only parties to benefit from this new
system will be the maritime lawyers. Indeed, the working example, which arises in
this or similar form each day around the globe, may serve to illustrate this proposi-
tion. The Swiss insurer, who has become subrogated to the rights of the consignee
under the bill of lading, seeks to commence recovery proceedings against whoever
is liable. Assuming that the Rotterdam Rules have had a successful start and are
applicable in all jurisdictions to be considered in the following, the first step to be
taken by the claimant insurer would be to review the bill of lading. It will note that
Art. 37(1) is not satisfied because no person is identified as carrier. As such, the
insurer will move on to Art. 37(2). It will further note that the bill of lading indicates
the ship, on board of which the container had been loaded (Art. 37(2)[b]). A quick
190
Generally on the subject of computation of time in Maritime law on the basis of the Roman law
principles of tempus continuum, tempus utile, computatio naturalis and computatio a momento ad
momentum see Atamer (2000), } 3 III 3 c, pp. 49 et seq.
search on the internet will reveal that the ship is registered in Panama in the name of
the financial leasing company. Accordingly, under Art. 37(2)[c] the insurer will
assume that the lessor is the carrier, and will instruct lawyers in one of the
competent courts listed in Art. 66(a), assuming that this provision applies to
the “presumed carrier” scenario.191 In these proceedings, the lessor will rebut the
presumption by proving, what would be the easiest way out, namely the existence
of the bareboat charter. In practice, most legal proceedings would commence with
an exchange of pleadings, followed by hearings, witness hearings, expert hearings
and other interim measures. As such, even in the fastest litigation, it is unlikely that
any legal procedure will be finalised in less than a year. This may be followed by
appeals to at least one higher instance, perhaps two or more. Therefore, it may take
at least 2–5 years for the Swiss insurer to obtain a final and binding judgement to the
effect that the lessor has rebutted the presumption by proving that the Turkish lessee
is the bareboat charterer (Art. 37(2)[d]).
Taking advantage of the 90 days extra time (Art. 65[b]), the insurer may now
commence fresh proceedings against the lessee. In those proceedings, however,
it will now be the lessee who will take advantage of the rebuttal options. As
there is no sub-bareboat-charter, the lessee will have to come forward with
evidence in respect of the contract of carriage concluded as between the
German freight forwarder as carrier and the Italian shipper. If the lessee
discharged this onus of proof, this case will also be dismissed. The outcome
might also be subject to appeals and then come to a final conclusion within
another 2–5 years.
The insurer, not getting tired of the battle, may then commence a third set of
proceedings against the German freight forwarder. Thereby, the insurer will again
benefit from the additional period of 90 days (Art. 65[b]).
It would follow that, as the Rotterdam Rules stand, legal proceedings to
“identify the carrier” may take as long as 10 or more years. It is submitted that
such an outcome would not necessarily be in the best interest of cargo claimants,
and would also entirely defeat the purpose of the limitation period in Art. 62. In
respect of the corresponding extinction period set out in Art. III(6) subparagraph
4 of the Hague(–Visby) Rules,192 the House of Lords193 had concluded that an
“obvious commercial need” is met by way of this provision, “namely, to allow
shipowners, after that period, to clear their books”. The protection of shipowners
191
Given that Art. 37(2)[d] and [f] require explicitly that the “address” is proven, it may be
assumed that legal proceedings against the parties described in Art. 37(2) including the registered
owner may only be commenced at their domicile (Art. 1[29]).
192
Generally on the purpose and operation of this provision see Tetley (2008b), pp. 1623 et seq.;
Berlingieri (1993); Boyd et al (2008), p. 394; Treitel et al. (2005), } 9–178; Gramm (1938), } 612,
pp. 140 et seq.; Rabe (2000), } 612, pp. 614 et seq.; Atamer (1996), pp. 117 et seq.; Atamer (2009b),
pp. 218 et seq.
193
Aries Tanker Transportation v. Total Transportation Limited (The “Aries”) [1977] 1 Lloyd’s
Law Reports 334 (H.L.), at p. 336 col. 2 per Lord Wilberforce.
“from stale claims” was held to be another object of the time limit.194 It need no
further emphasis that all these purposes of the time limit would have gone astray
entirely, if and whenever Art. 37 and Art. 65 are applied as they have been
adopted in the Rotterdam Rules.
6.6 Proven Carrier (Art. 37[3])
Art. 37(3) supplies the “claimant” with yet another opportunity. According to this
provision, the claimant is entitled to prove that even if the preconditions of either
Art. 37(1) (identified carrier) or Art. 37(2) (presumed carrier) were satisfied, some
other party was actually the carrier as defined in Art. 1(5). This provision came up at
a later stage of the preparations. It was first suggested at the 18th Session195 so as to
avoid that cargo interests are prevented “from advancing their claims against the
party they believed to be most responsible”. The wording was reformulated in Art.
38(3) of the updated [2007] Draft WP.81.196 The WG insisted that this version
ought to be the basis of drafting.197 Accordingly, a new version was circulated
in the [2007] Draft WP.101,198 which was ultimately adopted as Art. 37(3) in the
final text.
Going back to the working example, it was seen that the registered owner and
bareboat charterer might be “identified” or “presumed” as carrier under Art. 37(1)
or (2). However, the contract of carriage may have been concluded by the shipper
with the freight forwarder as carrier. On this basis, it would be the forwarder, who is
the carrier under Art. 1(5). This would be consistent with Art. 7.1 of the FIATA
Model Rules or the definitions in the FIATA Bill of Lading. As such, the shipper,
consignee and subrogated cargo insurer may all be aware of the true identity of the
carrier. If so, they may wish to commence proceedings directly against the for-
warder as the carrier. It is submitted that, after having read the earlier discussions,
these claimants will be all the more inclined to do so.199 In such a case, the
forwarder will not be entitled to try and shift liability onto any party that otherwise
might have been deemed to be the carrier under Art. 37(1) or (2). For instance, if a
bill of lading was issued at the port of loading clearly identifying on the front page
the time charterer as the carrier for the sea leg alone, or if the bill of lading so issued
did not name any person at all, the forwarder would not be entitled to escape
194
Continental Fertilizer Co. Ltd. v. Pionier Shipping CV (The “Pionier”) [1995] 1 Lloyd’s Law
Reports 223 (Q.B.), at p. 227 per Phillips, J.
195
See A/CN.9/616 } 23: “Nothing in this article prevents the claimant from proving that any
person other than the registered owner is the carrier.”
196
See A/CN.9/WG.III/WP.81 at p. 31 with fn. 122.
197
See A/CN.9/621 } 287 et seq.
198
See A/CN.9/WG.III/WP.101 at p. 28 with fn. 86.
199
See in particular supra 6.5.
liability as carrier on the grounds that the time charterer under Art. 37(1) or the
registered owner under Art. 37(2) was the carrier, even if the loss occurred during
the sea voyage. Clearly, this provision rectifies the extreme disadvantages, which
might have been caused, if Art. 37(1) and (2) stood alone.
In this alternative, the time limit in Art. 62(1) would have to be taken into
consideration, as Art. 65 does not govern actions under Art. 37(3). Therefore, if the
claimant was to prove who the carrier is, this would have to be in a legal action
commenced within the period of two years.
Looking at the wording of Art. 37(3), there might actually be the potential for a
completely different practical function. The provision says that: “[n]othing in this
article prevents the claimant from proving that any person other than a person
identified in the contract particulars or pursuant to paragraph 2 of this article is the
carrier.” According to the drafting history, this provision, as indeed the entire Art.
37, was designed so as to assist cargo claimants, who seek indemnity for cargo
loss, damage or delay. However, the wording by itself may not necessarily be
limited to such cases. Assuming that in the working example the bareboat or time
charterer went into bankruptcy, the registered owner and, respectively, the bare-
boat charterer may be left with unpaid hire claims. If so, they may wish to proceed
against the shipper or consignee for any outstanding freight there may remain
under the contract of carriage, or may wish to set-off such a claim under Art. 62(3)
against a cargo claim brought against them pursuant to Art. 37(2). Would such an
attempt be upheld? The use of terminology in Art. 37(3) might be considered as
neutral. Indeed, the expression “claimant” is certainly wide enough to encompass
cargo claimants as well as any registered owner, operator or any charterer, who
may be coined altogether as “ship claimants”. Had Art. 37 been placed in chapter
5 on the “carrier”s liability”, its scope of application would thereby have been
narrowed down to claims brought by cargo claimants. However, Art. 37 stands in
chapter 8 on “Documents and Records”, which would not constitute a prejudice
against applying the provision also to ship claimants. Nevertheless, in applying
Art. 37(3) to this type of a scenario, attention would have to be paid to the
expression “carrier”, which is technically used in accordance with Art. 1(5). As
such, a registered owner, bareboat charterer or other ship claimant may rely on
Art. 37(3) only if and whenever that person had actually concluded the contract of
carriage (Art. 1[1]) with the shipper. Going back to the working example, if the
freight forwarder was not paid the freight, and the cargo insurer had brought
proceedings against the bareboat charterer under Art. 37(2)[e], the forwarder may
still commence action for unpaid freight against the shipper or consignee, as the
case maybe. In those proceedings, the debtor would not be entitled to argue that
the bareboat charterer is presumed to be the carrier under Art. 37(2)[e] so that the
forwarder can no longer claim the freight in its own name. In conclusion, the
scope of application of Art. 37(3) may not necessarily be limited to claimants
pursuing recovery claims for cargo loss, damage or delay. The provision may well
apply also in the opposite direction, provided that the ship claimant is able to
prove to be the carrier as defined in Art. 1(5).
6.7 Conclusion
On the basis of the foregoing analysis, it is submitted that Art. 37 and Art. 65 are
likely to cause more problems in practice than they purport to solve. The first major
problem would appear to arise from the discrepancy between the true intention of
the Drafters and the final wording of the provisions. Second, the inconsistent use of
terminology within these and related provisions might cause difficulties in practice.
More to the point, however, is the danger under Art. 37(2) for cargo claimants being
tossed around in legal proceedings from one defendant to the other. As each of these
proceedings would have to be concluded by way of final judgements, it may well
take a decade and longer until the claimant finally gets hold of the true carrier. Such
an outcome would hardly serve the interests of the cargo claimants, who were
meant to be protected under those provisions in the first place. However, neither
would the registered owner, bareboat charterer or other operator of the ship or
indeed the carrier be protected, as Art. 65 would open up the possibility of legal
proceedings being brought almost indefinitely. On another note, the costs involved
in all these proceedings may defeat the purpose of these provisions altogether. It
remains to be seen how the involved parties, particularly cargo and P&I insurers
will react to this mechanism, as indeed to the Rotterdam Rules in general.
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.
Chapter 7
Compensation for Damage
Anders Møllmann
Abstract The article examines the Rotterdam Rules’ regulation of compensation

for damage other than the rules on the basis of liability. It covers the types of
damage recoverable under the Rules, the burden of proof, the calculation of
compensation, the limits of liability, and loss of the benefit of limitation of liability.
It is concluded that the Rotterdam Rules clarify certain issues which are currently
unclear under the conventions in force and national law, but does so without
substantially departing from current practice, and that the Rotterdam Rules’
regulation of compensation for damage may, thus, as the rest of the convention,
best be described as “an evolution rather than a revolution”.
7.1 Introduction
Most shippers, consignees and other cargo interests are likely to really deal with the
details of the Rotterdam Rules only in the event that they suffer damage for which
they feel they should be compensated by the carrier. Of central importance in this
connection is, of course, the basis for the liability of the carrier, but a number of
related issues are also of utmost importance. This article will examine some of these
related issues, namely the types of damage recoverable under the Rotterdam Rules,
the burden of proof, the calculation of compensation, the limits of liability and loss
of the benefit of limitation of liability.1
1
The paper will not deal with the liability of the carrier, regarding which issue, see the article by
€
Professor, Dr. Fehmi Ulgener; or with compensation by the shipper for damage suffered by the
carrier, regarding which issue, see the article by Professor Tomotaka Fujita.
Dr. A. Møllmann
University of Copenhagen, Denmark
e-mail: Anders.Mollmann@jur.ku.dk
202 A. Møllmann
7.2 Types of Damage Recoverable Under the

Rotterdam Rules
When looking at compensation for damage under the Rotterdam Rules it is neces-
sary to find out to what extent the Rotterdam Rules regulate various types of
damage. In doing so a distinction between three types of damage may be drawn.
The first is the damage resulting from loss of, damage to, or delay in delivery of
the goods. The second is the damage resulting from the carrier’s breach of other
obligations in the Rotterdam Rules and third, the damage resulting from the
carrier’s breach of obligations not regulated in the Rotterdam Rules.
As for the first group, i.e., damage resulting from loss of, damage to or delay in
delivery of the goods, the liability of the carrier is extensively regulated in chapter 5
of the Rotterdam Rules.
As for the second group, i.e., damage resulting from the carrier’s breach of other
obligations in the Rotterdam Rules, the liability of the carrier is generally not
regulated in the Rotterdam Rules itself.2 Thus, the liability is subject to the applica-
ble national law. However, the liability is subject to limitation pursuant to chapter 12
of the Rotterdam Rules, cf. below in Sect. 7.5. An example of damage falling into
this category would be loss suffered as a result of misdelivery of the goods. The
carrier’s obligations regarding delivery of the goods are regulated in chapter 9, but
there is no regulation of the carrier’s liability for the breach of these obligations.
Finally as for the third group, i.e., damage resulting from the carrier’s breach of
obligations not regulated in the Rotterdam Rules, liability for such damages falls
wholly outside the Rotterdam Rules and is thus completely subject to the applicable
national law.
7.3 Burden of Proof
The Rotterdam Rules generally do not deal with the law of evidence except for the
classical issue of the evidentiary effect of contract particulars in transport docu-
ments.3 However, the Rotterdam Rules regulate in detail the allocation of the
burden of proof in relation to establishing the liability of the carrier for loss of,
damage to or delay in delivery of the goods, cf. article 17.4 Article 17 sets out a
traditional fault-based liability with a reversed burden of proof for the carrier, i.e.,
with presumed fault on the part of the carrier.
In this connection, it must be noted that for the presumption of liability to arise,
the claimant must prove that the loss of, damage to or delay in delivery of the goods
2
One exception, though, may be found in article 52(4) which sets out that the carrier’s liability for
failure to comply with instructions from the controlling party which has lead to loss of, damage to,
or delay in delivery of the goods is subject to article 17.
3
Cf. article 41.
4 €
See the article by Professor, Dr. Fehmi Ulgener.
7 Compensation for Damage 203
occurred during the carrier’s period of responsibility, cf. article 17(1). Thus, the
burden of proving the damage and the extent thereof is on the claimant, i.e., the
cargo side, but the claimant does not have to prove that the damage was the result of
the carrier’s fault.
The specific requirements of the proof which must be produced are not regulated
in the Rotterdam Rules and the proof is therefore subject to the applicable proce-
dural law.
One more aspect, which may be said to relate to the burden of proof, is regulated
in article 23, namely notice in case of loss, damage or delay.
Pursuant to article 23, notice must be given in case of loss of or damage to the
goods indicating the general nature of the loss or damage, cf. article 23(1). Notice
must also be given in case of delay of the goods, cf. article 23(4). However, the
procedure for giving and the consequences of not giving notice differ.
For loss of or damage to the goods, the notice must be given before or at the time
of delivery if the loss or damage is apparent and within seven working days at the
place of delivery if it is not apparent.5 The notice may be given to the carrier6 or the
performing party who delivered the goods and it has the same effect whether it is
given to the former or the latter, cf. article 23(5). The consequence of not giving
notice is that the carrier is presumed, in absence of proof to the contrary, to have
delivered the goods according to their description in the contract particulars, cf.
article 23(1). However, it is expressly stated that failure to give notice shall not
affect the right to claim compensation nor change the allocation of the burden of
proof under article 17, cf. article 23(2). As the burden of proving that relevant
damage has occurred is already on the claimant, see above, and article 23(1) only
creates a presumption which is subject to proof to the contrary then the legal effect
of not giving notice is very limited, if any. In practice, it is, of course, of utmost
importance to secure evidence of the damage as soon as possible and giving notice
may be an important step in initiating that process. Also, under the applicable
procedural law the notice may itself be considered proof of damage.
For delay in delivery, notice must be given within 21 consecutive days of
delivery of the goods, cf. article 23(4). The consequence of not giving notice is
much more dire than with loss of or damage to the goods. Thus, failure to give
notice precludes liability for delay, cf. article 23(4). It is not completely clear
whether notice regarding delay in delivery must be given to the carrier or may
instead be given to the performing party delivering the goods as with notice for loss
or damage. Whereas article 23(1) regarding loss or damage states that notice must
be given to the carrier or the performing party delivering the goods, article 23(4)
only states that notice must be given to the carrier. However, article 23(5) sets out
that a notice “referred to in this article” given to the performing party delivering the
goods has the same effect as a notice given to the carrier and vice versa. It is unclear
5
No notice is required if the loss or damage is ascertained in a joint inspection by the person
receiving the goods and the carrier, cf. article 23(3).
6
As defined in article 1(5), i.e., the person entering into a contract of carriage with the shipper.
204 A. Møllmann
whether this paragraph simply sets out the legal effect of a notice given under
paragraph 1 regarding loss or damage or it also pertains to paragraph 4 regarding
delay. The cited reference to “this article” (emphasis added) and the placement of
the rule in paragraph 5 after paragraph 4 on delay would seem to support the latter
suggestion whilst the wording of paragraph 4 itself seems to support the former
suggestion.7 However, with the dire consequence of not giving notice in mind, a
claimant would be wise to give the notice to the carrier.8
One final aspect of interest in relation to the burden of proof is to be found in
article 23(6). Pursuant to this paragraph, the parties to a dispute regarding actual or
apprehended loss or damage shall give all reasonable facilities to each other for
inspecting and tallying the goods and shall provide access to relevant records and
documents. The consequences of not fulfilling this obligation are not set out in the
Rotterdam Rules. It is therefore subject to the applicable national law which may
include giving the breach of obligation some sort of evidentiary effect.9 Thus, this
rule may turn out in practice to be of significant use to a claimant.
7.4 Calculation of Compensation
The next question is how the compensation shall be calculated. As with the liability
of the carrier, this question is only regulated for certain types of damages in the
Rotterdam Rules.
For compensation for loss of or damage to the goods the question is answered in
article 22. The main rule is to be found in paragraph 1, but the more interesting
aspects are in paragraphs 2 and 3. The main rule states that the compensation is
calculated by reference to the value of the goods at the place and time of delivery.
In paragraph 2, it is then regulated how the value of the goods shall be
ascertained. This is set out in three stages. If there is a commodity exchange price
then this price is considered to be the value. If there is no commodity exchange
price, but a market price, then this price is considered to be the value. And, if there
7
The reports of the negotiations do not give clear support for either of the suggestions. At the 13th
session of the Working Group, it was decided to change the clause so that notice should be given to
“the carrier” rather to “the person against whom liability is being asserted” as the previous draft
had set out, cf. A/CN.9/552, } 78. However, the report does not indicate why “the performing party
that delivered the goods” was not included. The report of the 19th session of the Working Group
shows that it was observed that the “same effect” refers to the notice referred to in paragraph 1, i.e.,
the notice for loss of or damage to the goods, cf. A/CN.9/621, } 116. However, an observation
made by one delegation, at a stage when the deliberation of what would become article 23(4) was
simply deferred until after the general negotiation of delay liability, cf. id. at } 115, does not seem
conclusive.
8
For the same view see Michael Tsimplis in Baatz et al. (2009), } [23-04].
9
For example, under Danish procedural law the court might as a consequence assume that the
documents which are not produced would in fact prove what the claimant claims they would if they
had been produced, cf. the principle of adverse inference which is a principle known in some form
or another in many jurisdictions.
is neither a commodity exchange price nor a market price then the “normal value of
the goods of the same kind and quality at the place of delivery” is considered to be
the value. This formula is well known from the Hague-Visby Rules10 and case laws
regarding this rule may therefore still be of relevance. However, the formula in the
Hague-Visby Rules has given rise to a doubt as to whether damages other than the
value of the goods are recoverable from the carrier or not.11 This lack of clarity has
been addressed in paragraph 3 which sets out that the carrier is not liable for
payment of any compensation beyond the value of the goods.12 Thus, the carrier
is not liable for consequential damages of the loss of or damage to the goods such as
loss of market share or lost profits as a result of a stop in a manufacturing line.
When it comes to delay in delivery, the situation is a little more complex. If the
delay in delivery has lead to damage to or even loss of the goods, e.g. if a cargo of
fruit has become spoiled due to the delay, then the compensation must be calculated
according to article 22, cf. article 60, i.e., in the same manner as if the loss or
damage was caused by some other reason for which the carrier is liable.
If the delay in delivery leads to economic loss then the calculation of compensa-
tion for such loss is not regulated in the Rotterdam Rules and is thus subject to the
applicable national law. The compensation payable is, however, subject to limita-
tion under article 60, cf. below in Sect. 7.5.
Consequently, in situations where the delay in delivery leads both to loss of or
damage to the goods and consequential economic loss then the compensation for the
loss or damage must be calculated pursuant to article 22 and the compensation for the
consequential economic loss must be calculated pursuant to the applicable national
law, but both subject to limitation of liability under the Rotterdam Rules and with a
specific rule for setting the limit of liability in these situations, cf. below in Sect. 7.5.13
10
Article 4 rule 5(b).
11
Cf. e.g. Boyd et al. (2008), p. 408 et seq. and Treitel and Reynolds (2005), } 9-251.
12
The parties may agree on raising the liability of the carrier, cf. article 79(1)(b) e.c., and this may
also be done by agreeing on a different calculation of the compensation than as set out in article 22,
e.g. by including consequential loss.
13
The treatment of situations with both damage to the goods and economic loss is, however, not
completely clear. The uncertainty stems from the reference in article 60 to article 22 as a whole.
The reference is, thus, also to article 22(3) which would exclude compensation for economic loss.
However, this would seem to leave the second sentence of article 60 without meaning because this
concerns “[t]he total amount payable pursuant to this article and article 59, paragraph 1”. Further,
in the original draft, the draft article that eventually became article 22(3) provided that it applied
“save as provided for in [the article dealing with delay liability and limitation thereof]”, cf.
A/CN.9/WG.III/WP.21, } 6.2.3. The phrase was, however, deleted in the next consolidated draft
because it was seen as unnecessary as the draft article referred to only dealt with economic loss, cf.
A/CN.9/WG.III/WP.32 footnote 89. In hindsight, the deletion seems less fortunate, but this
legislative history supports the fact that economic loss is compensable also in situations where
the delay has led to loss of or damage to the goods as well as economic loss. Cf. also Diamond
(2009), pp. 445, 482, who notes that article 22 also applies to loss or damage caused by delay, but
then simply states that “[i]t does not apply to claims for financial loss unconnected with the loss of
or damage to goods”. Michael Tsimplis also seems to presuppose that this is the case, cf. Baatz
et al. (2009), } [60-02].
206 A. Møllmann
Finally, it must be remembered that for damages as a result of the carrier’s

breach of other obligations set out in the Rotterdam Rules the calculation of
compensation is not regulated in the Rotterdam Rules as the liability for such
breaches is generally not regulated in the Rotterdam Rules. The calculation of
compensation – like the liability for the breach – is thus subject to the applicable
national law, but subject to limitation under the Rotterdam Rules, chapter 12.
7.5 Limits of Liability
The Rotterdam Rules continue the traditional approach taken in the maritime
transport conventions that the carrier has a strict liability in the form of a presumed
liability, but at the same time enjoys the benefit of limitation of liability thus
avoiding the risk of surprisingly high damages. It is important to remember, though,
that limitation of liability is only relevant in situations where the compensable loss
suffered by the claimant is in fact higher than the limitation amount. Although no
comprehensive statistical information seems to be available, it is safe to say that
only a very small percentage of all claims are not fully compensated under the
limits of the Hague-Visby Rules and even fewer under the Hamburg Rules.
Although the idea of having only a per kilo limitation was briefly entertained
during the negotiations, the Rotterdam Rules have maintained a combined per kilo
and per package limitation due to the practical importance of the latter to the cargo
interests.14
After intense negotiations the limits of liability were finally – as part of a larger
compromise – set at 3 SDR per kilo or 875 SDR per package, whichever amount is
the higher in the specific situation, cf. article 59.15,16 These limits are well above
those of the Hamburg Rules,17 very well above those of the Hague-Visby Rules,18
and extremely well above the limit of the Hague Rules.19 The limits should lead to
the result that only very few claims will not be compensated in full.
The practical value of the per package limitation is largely due to the rule set out
in article 59(2) whereby the packages enumerated in the contract particulars are
considered packages in relation to the per package limitation if the goods are carried
in a container. Thus, for example if the contract particulars describe the goods as
“one container said to contain 80 bicycles” then the limit of liability is 80 875
14
Cf. A/CN.9/616, } 173.
15
See particularly the negotiations at the 18th, 20th and 21st sessions of the Working Group in
A/CN.9/616, } 162–174, A/CN.9/642, } 133–166, and A/CN.9/645, } 183–203.
16
A claim may also be subject to limitation under the rules of global limitation of liability of vessel
owners, cf. article 83 which sets out that the Rotterdam Rules do not affect the application of any
international convention or national law regulating global limitation of liability.
17
2,5 SDR per kilo or 835 SDR per package, cf. article 6(1).
18
2 SDR per kilo or 666,67 SDR per package, cf. article 4 rule 5(a) (as amended by article II of the
SDR Protocol, 1979).
19
100 pounds sterling per package, cf. article 4 rule 5.
SDR which is bound to be much higher than the per kilo limitation – of both the
Rotterdam Rules and any of the unimodal transport conventions.
The limits of liability may be raised, but not lowered, either by agreement
between the parties, cf. articles 59(1) and 79(1)(b), or by the shipper declaring
the value of the goods and the said value being included in the contract particulars,
cf. article 59(1).
Although the principle of limitation of liability is a continuation of the Hague,
Hague-Visby and Hamburg Rules, the wording of the rule has been modified. Thus,
the limitation is of “the carrier’s liability for breaches of its obligations under this
convention”, cf. article 59(1). By contrast, the Hague and Hague-Visby Rules speak
of liability for “any loss or damage to or in connection with the goods”, cf. article 4
rule 5, whilst the Hamburg Rules speak of liability “for loss resulting from loss or
damage of goods”, cf. article 6(1)(a).
In the first drafts of the convention, the wording of what would become article 59
(1) followed the wording of the Hague-Visby Rules.20 With the consolidated draft
convention contained in A/CN.9/WG.III/WP.56, the wording was changed to the
final wording cited above. The background for the change in wording was the fact
that the wording in the Hague and Hague-Visby Rules has caused different inter-
pretations as to the applicability of the limitation, particularly to liability for
misdelivery of the goods and misinformation.21 The question has been whether
such damage must be considered to be “in connection with the goods”.22 The
Rotterdam Rules have avoided this ambiguity and make it clear that the limitation
of liability applies to liability for breach of all the obligations in the Rotterdam
Rules, including e.g. for misdelivery. The decisive point is whether the obligation is
regulated in the Rotterdam Rules. As described above, the liability will generally be
subject to the applicable national law, but the liability thus incurred is subject to
limitation under the Rotterdam Rules. As further described above, the carrier may
in some circumstances become liable for breach of obligations which are not
regulated in the Rotterdam Rules. Such liability falls fully outside the Rotterdam
Rules and is thus not subject to limitation under the Rotterdam Rules.
As in the Hamburg Rules, the Rotterdam Rules have a separate limitation of
liability for loss due to delay, cf. article 60. The Hague and Hague-Visby Rules
obviously do not contain such rules as they do not expressly regulate liability for
delay. If the delay leads to loss of or damage to the goods then the compensation
must be calculated according to article 22, cf. article 60,23 which for limitation of
20
See A/CN.9/WG.III/WP.21, } 6.7.1., and WP.32, article 18(1).
21
See A/CN.9/552, } 41–42, A/CN.9/642, } 152–153 and 165, and especially A/CN.9/645,
} 189–190. See also A/CN.9/WG.III/WP.101, footnote 169, and A/CN.9/WG.III/WP.72, } 14–15.
22
For the discussion in English law, see Treitel and Reynolds (2005), } 9-249 and the further
reference to } 9-130, and Michael Tsimplis in Baatz et al. (2009), } [59-09] et seq. See also Stephen
Girvin in Thomas (2009), p. 130. Under Scandinavian law, misdelivery is not considered to be
subject to the per kilo and per package limitations set out in the Maritime Code (based on the
Hague-Visby Rules), cf. e.g. Falkanger and Bull (2010), p. 315.
23
See above, } 7.4.
208 A. Møllmann
liability refers back to article 59, i.e., the general rule on limitation of liability. For
economic loss resulting from the delay, the limit of liability is set at an amount
equivalent to 2½ times the freight payable on the goods delayed, cf. article 60.
However, the total amount payable may not exceed the limit that would be estab-
lished pursuant to article 59(1), cf. the second sentence of article 60. Consequently,
if the delay has led to both damage to the goods and consequential economic loss
then the total amount payable may not exceed the limit that would have applied in
case of the total loss of the goods. Thus, the limitation of liability for delay functions
as an extra limitation in respect of economic loss as a result of delay.24
Finally, it must be noted that if loss, damage or delay occurs solely during a
transport leg other than the carriage by sea then the potential liability of the carrier
may be subject to the limited network principle established in article 26. This may
lead to the result that the rules on limitation of liability of another convention is
applicable to the liability for loss, damage or delay, e.g. the limits of liability in the
CMR Convention if the damage occurs during an international road carriage leg.
However, this situation falls outside the scope of this paper.25
7.6 Loss of the Benefit of Limitation of Liability
In the Hague-Visby and the Hamburg Rules, the benefit of limitation of liability is
balanced with the possibility of “breaking” the limitation, that is, the possibility that
the carrier may loose the right to limit its liability in certain qualified situations. The
Rotterdam Rules have continued this approach.
Thus, if the loss resulting from the breach of the carrier’s obligation “was
attributable to a personal act or omission of the person claiming a right to limit
done with the intent to cause such loss or recklessly and with knowledge that such
loss would probably result” then the right to limit the liability pursuant to article 59
is lost, cf. article 61(1).26 This formula is virtually the same as those in the Hague-
Visby and Hamburg Rules. Consequently, existing case laws regarding the types of
conduct that may lead to the loss of the benefit of limitation remain relevant under
It is not only the right of limitation of liability set out in articles 59 and 60 that may be
lost. Also, a benefit of limitation of liability set out in the contract of carriage may be lost
under the same conditions, cf. article 61. The parties can, thus, not agree to raise the
carrier’s limit of liability, but make it “unbreakable”. The term in the contract of carriage
making the limit of liability “unbreakable” would be void pursuant to article 79(1)(b).
Article 61 clearly states that it is for the claimant to prove that the conditions for
breaking the limitation of liability are fulfilled. The wording of article 61, thus,
24
Cf. Michael Tsimplis in Baatz et al. (2009), } [60-02].
25
See instead the paper by Asst. Prof. Dr. M. Deniz G€ uner-Özbek.
26
Similarly, if the delay in delivery “resulted from a personal act or omission [. . .]” then the right
to limit liability pursuant to article 60 is lost, cf. article 61(2).
more clearly than the wording of the Hague-Visby and the Hamburg Rules places
the burden of proof on the claimant.
The rule not only applies to the carrier, but also to any of the persons referred to
in article 18 when such person claims the right to limit its liability. Article 18 sets
out the persons for whom the carrier has a vicarious liability. In practice, it must be
expected that the most relevant person in this connection will be a maritime
performing party because the maritime performing party may be held directly liable
on the basis of the Rotterdam Rules, cf. article 19. The reference to the persons
enumerated in article 18 is, however, necessary because these persons may, against
a claim founded on a basis other than the Rotterdam Rules, enjoy the benefit of the
limitation of liability offered by the Rotterdam Rules as a consequence of the
“Himalayan rule” in article 4.
It is worth noting that the possibility of loosing the benefit of limitation of
liability may rise in importance with the Rotterdam Rules due to the wider applica-
bility of the limitation of liability, cf. above in Sect. 7.5. Thus, in jurisdictions that
currently do not apply the limitation of liability in the Hague-Visby Rules e.g. to
liability for misdelivery, it seems likely that it will be tested to what degree the right
to limitation afforded by the Rotterdam Rules may be lost in such circumstances.
7.7 Conclusion
The Rotterdam Rules contain detailed regulation of compensation for certain types
of damages, especially for loss of or damage to the goods, and less for others. The
Rotterdam Rules clarify certain issues which are currently unclear under the
conventions in force and under national law, but does so without substantially
departing from current practice. The Rotterdam Rules raise the limits of liability
substantially, but at the same time widens the types of liability that may be limited.
In essence, the Rotterdam Rules’ regulation of compensation for damage may, as the
rest of the convention, best be described as “an evolution rather than a revolution”.27
References
Baatz Y et al (2009) The Rotterdam Rules – a practical annotation. Informa, London

Boyd SC et al (eds) (2008) Scrutton on charterparties, 21st edn. Sweet & Maxwell, London
Diamond A (2009) The Rotterdam Rules. LMCLQ:482
Falkanger T, Bull HJ (2010) Sjørett [maritime law], 7th edn. Sjørettsfondet Akademisk, Oslo
Thomas DR (ed) (2009) A new convention for the carriage of goods by sea – the Rotterdam Rules.
Lawtext Publishing Limited, Witney
Treitel G, Reynolds FMB (2005) Carver on bills of lading, 2nd edn. Sweet & Maxwell, London
27
See the paper by Professor Michael Sturley who explains the role of this general approach in the
negotiations of the Rules. See also the same author in Thomas (2009), p. 30 et seq.
.
Chapter 8
Obligations and Liabilities of the Shipper
Tomotaka Fujita
Abstract Unlike previous maritime transport law conventions, the Rotterdam

Rules contain considerable number of detailed provisions on the shipper’s obliga-
tions 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.
8.1 Introduction
This paper examines the shipper’s obligations and liabilities under Chapter 7 of
the United Nations Convention on Contracts for the International Carriage of
Goods Wholly or Partly by Sea (the “Rotterdam Rules”). Previous maritime
transport conventions did not pay much attention to the shipper’s obligations or
liabilities. The Hague Rules1 and the Hague-Visby Rules2 include fragmentary
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.
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).
Prof. T. Fujita
University of Tokyo, Japan
e-mail: tfujita@j.u-tokyo.ac.jp
212 T. Fujita
regulations.3 The Hamburg Rules4 has an independent chapter on the liability of the
shipper but it contains only two articles.5 In contrast, Chapter 7 of the Rotterdam
Rules consists of a considerable number of detailed rules on the shipper’s obliga-
tions and liabilities.
Given this expanded chapter of shipper’s obligations, the natural question will
that comes to mind is: Are shipper’s obligations and liabilities substantially
increased under the Rotterdam Rules? In fact, criticisms against the Rotterdam
Rules are sometimes heard based on the assumption that they impose onerous
liabilities on the shipper.6 However, a more careful examination is necessary to
decide if this is the case. First, more provisions, in themselves, do not imply more
obligations or liabilities. Second, as is pointed out by careful observers,7 the shipper
has never been free from obligations and liabilities even in such areas where
previous conventions have been silent. Shippers have long been responsible for a
wide range of obligations under applicable national law.8 Therefore, one should
examine whether the shipper’s obligations and liabilities under the Rotterdam Rules
are expanded compared with those under the law of each country or under ordinary
contractual terms rather than comparing the texts of conventions themselves. It
should also be noted that parties cannot increase the shipper’s obligations and
liabilities through a contract under the Rotterdam Rules (article 79(2)). In this
sense, the shipper is more protected under Rotterdam Rules than under previous
conventions.
The conclusion of such examinations should be deferred until the end of the
paper. At this stage, it would be suffice to point out that the often-heard assertion
that the Rotterdam Rules substantially increased the level of shipper’s obligations
and liabilities is not self-evident.
The rest of this paper continues in the following order. Section 8.2 explains what
is covered and what is not covered under Chapter 7. Section 8.3 examines the
structure of the liability system under Chapter 7. The specific obligations of the
shipper will be discussed in Sect. 8.4 (obligations the breach of which triggers fault-
based liability) and Sect. 8.5 (obligations the breach of which triggers strict
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.
8 Obligations and Liabilities of the Shipper 213
liability). Section 8.6 refers to the liability of documentary shipper. Based on these
examinations, the practical impact of shipper’s liability under the Rotterdam Rules
is assessed in the Conclusion (Sect. 8.7).
8.2 Scope of Chapter 7
Let us see what is and what is not covered by Chapter 7 of the Rotterdam Rules.
First, the Rotterdam Rules cover only the relationship between the carrier and the
shipper. It does not address the shipper’s liability to the other parties. For instance,
let us assume that the goods exploded during the carriage. The potential liability of
the shipper for the loss or damage sustained by the carrier’s ship is governed by the
Rotterdam Rules. But the shipper’s liability for the damage to other shippers’ cargo
is not. Similarly, the Rotterdam Rules also do not give any cause of action to the
employee against the shipper, although article 27 (1) and (3) refers to the shipper’s
obligation not to cause harm to “persons”. The Rotterdam Rules only address the
shipper’s liability for the loss or damage incurred by the carrier due to the injury of
the employee.
Second, they only cover the shipper’s obligations and liabilities in connection
with the goods for carriage. Thus the shipper’s obligation to pay the freight,
for instance, is outside the scope of the Rotterdam Rules and is left to applicable
national law.
Third, even with respect to the shipper’s liability in connection with the goods,
certain controversial issues are kept outside the Chapter’s scope. The shipper’s
liability for loss or damage caused by delay is a notable example (see Sect. 8.3.1.1).
Finally, Chapter 7 of the Rotterdam Rules provides for the liability of a person
other than the shipper: “documentary shipper” (See Sect. 8.6).
8.3 The Structure of the Liability System Under Chapter 7
Before entering into an examination of the specific obligations of the shipper, it would
be helpful to give an overview of the liability system under Chapter 7 of the Rotterdam
Rules.
8.3.1 Common Conditions for Shipper’s Liabilities
To make the shipper liable, the carrier should, in all cases, prove that (1) the loss or
damage which it suffers, (2) the breach of obligation under the Rotterdam Rules and
(3) the causation between the breach and the loss or damage.
214 T. Fujita
8.3.1.1 “Loss or Damage” and Shipper’s Liability for Delay
The first condition is the “loss or damage” suffered by the carrier. Please note that,
unlike article 17 on the basis of the carrier’s liability, there is no reference to
“delay” in article 30 or any other place in Chapter 7, although it is possible that the
carrier might suffer from loss or damage caused by such delay if, for instance, the
goods explode and the ship needs repair. The lack of the reference is not a result of
careless oversight. Rather, there is a clear intention of the UNCITRAL Working
Group to exclude shipper’s liability for loss due to delay from the Convention, thus
leaving the issue to applicable national law.
The treatment of the shipper’s liability for loss or damage caused by delay was
one of the most controversial issues during the entire negotiation. It will accord-
ingly be useful to review the drafting history to provide a better understanding of
the Rotterdam Rules’ position on the issue.
The first draft of the Convention did not include any reference to “delay”.9 The
term “delay” was introduced in square brackets (to indicate the unresolved nature of
the issue) in the Draft prepared after the 13th Session of the UNCITRAL Working
Group (October 2004)10 and maintained in the subsequent draft.11 Whether the
shipper should be liable for loss or damage caused by delay was strenuously
debated at the 16th Session of the Working Group (November–December
2005).12 The issue continued to be discussed at the next two meetings, along with
the carrier’s liability for delay.13 Delegates were concerned that treating delay as a
basis for the shipper’s liability could impose too onerous a burden. Some feared that
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
if the shipper failed to provide a necessary custom document, for example, and
prevented the ship’s timely departure as a result, it could lead to enormous conse-
quential damages if the delivery of all the other cargo on the vessel were delayed as
a result.14
While the UNCITRAL Working Group debated the shipper’s potential exposure
to risk with great enthusiasm, the risk in practice would likely have been very
small.15 First, the carrier would often be exonerated from liability when a shipper’s
breach of its obligations causes the delay because it would not be attributable to the
carrier’s fault. When the carrier is not liable for delay, there can be no recourse
action against the shipper. Therefore, even if a shipper causes a ship’s delay, the
risk to the shipper of being exposed to a recourse claim from the carrier is still
relatively small. Second, the scope of the recoverable damage could be limited by
the rules in each jurisdiction (e.g., under a “foreseeability test” in common-law
countries). Those limitations on the scope of recoverable damages would also apply
under the Rotterdam Rules. Finally, even in the absence of any liability under the
Convention, the shipper owes unlimited liability in a tort action under national law
in most legal systems. If a shipper’s breach of its obligations causes a serious delay
and the carrier is required to compensate other shippers for the late delivery of their
cargo, for example, the shipper at fault is likely to be liable under national law for
the carrier’s payments to the other shippers. Therefore, how the Convention covers
the shipper’s liability for delay affects the ultimate risk allocation much less than it
first looks.
Although the shipper’s potential risk may have been a little exaggerated, many
delegates were nervous about the scenario of the shipper being held liable for the
loss (especially economic loss) caused by delay. Several attempts were made to
meet the concerns. For instance, it was suggested to set a limit on the shipper’s
liability for delay.16 However, it was found impossible to find any specific amount
or a sensible indicator to decide the limit. Finally, all reference to delay was deleted
as a part of a package of compromise.17
Although the intention of the UNCITRAL Working Group was clear,18 one
might contend that final text language is not clear enough to exclude loss due to
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
19th Session Report, supra note 13, } 180.
18
See 19th Session Report, supra note 13, } 237.
216 T. Fujita
delay from the scope of the Rotterdam Rules.19 Even if there is no reference to
delay, the term “loss or damage” in article 30 could be interpreted as including loss
or damage caused by delay.20 But the drafting history of chapter 7 plainly suggests
that the Rotterdam Rules do not regulate a shipper’s liability caused by delay and
instead leaves the issue to applicable national law.21
8.3.1.2 Shipper’s Breach of Obligation as the Prerequisite of the Liability
The carrier should prove the breach of the shipper’s obligations under this Conven-
tion. This is an important difference compared with the carrier’s liability. The cargo
claimant does not have to prove any breach of obligation by the carrier under article
17(1). It should only prove the loss of the goods, damage to the goods or the delay in
delivery (or the event or circumstances that caused the loss, damage or delay)
occurred during the carrier’s period of responsibility. In contrast, the breach of
obligation is always a prerequisite for the shipper’s liability. This structure also
differs from the treatment of shipper’s liability in previous conventions.22
8.3.1.3 Causation Between the Breach of Obligation and Loss or Damage
Finally, the causation between the breach of shipper’s obligation and the loss or
damage should be proved. The subtle difference with the previous conventions will
be analyzed later (see Sect. 8.5.2.5 below).
Please note that the issue of causation (not only in connection with shipper’s
liability but also with carrier’s) is not covered by the Rotterdam Rules and is left
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
Baughen (2009), supra note 19, p. 185 makes some reservation for this interpretation. Diamond
(2009), p. 493, strongly argues that "loss or damage" includes liability for financial loss, including
loss due to delay.
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.
to national courts. In addition, the issue of the scope of recoverable loss or

damage which is closely related to causation is also left to applicable national
law. Every jurisdiction has its own concept to define the scope of compensation
(“reasonable causation”, “foreseeability test” etc.) and such a rule is left untouched
by the Rotterdam Rules.23
8.3.2 Fault Based and Strict Liability
If the carrier can establish the loss or damage, the shipper’s breach of obligation and
the causation, Chapter 7 provides for two different classes of liability depending on
the nature of the breach of obligation: (a) fault-based liability for the breach of
obligation under articles 27, 28, 29, and 31(1) and (b) strict liability for the breach
of obligation under articles 31(2) and 32. The shipper can escape from liability in
the absence of its fault or the fault of the person referred to in article 34 in the
former case, but not in the latter.
The burden of proof on fault is not explicitly dealt with under article 30(2).24 The
burden of proof on fault was discussed in great detail in the 19th session of the
UNCITRAL Working Group.25 Some argued that, just as in the case under
the Hamburg Rules,26 the shipper should not bear the burden of proof for establish-
ing its own fault.27 Others responded that since the carrier first has to prove the
shipper’s breach of its obligation under the Rotterdam Rules, it is simply natural that
the shipper, in turn, be required to prove it is not at fault for the breach. The Working
Group, as a compromise, agreed on the current formulation which declares the fault-
based liability without explicitly specifying the burden of proof on the fault.28
In this particular context, the burden of proof on fault may not make much practical
difference. As just explained, the Rotterdam Rules require the carrier to prove the
shipper’s breach of its obligation.29 Once the shipper’s breach is proved, without
regard to the formal allocation of the burden of proof, the court would seem likely to
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
See, 19th Session Report, supra note 13, } 230, 239–243. Therefore, the burden of proof is left to
the courts. Some interpret that the carrier bears the burden under article 30(2) [Hooper (2009),
p. 888]. Others have a contrary view [Diamond (2009), supra note 21, p. 494].
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.
218 T. Fujita
find that the shipper is “at fault” unless there is reasonable explanation for the cause of
the breach. In short, many courts seem likely in practice to equate a shipper’s breach
with “fault” unless the shipper can provide a good explanation for the breach.
8.4 Obligations (1): The Breach of Which Triggers

Fault-Based Liability
Let us examine the specific obligations of the shipper provided in Chapter 7 of

8.4.1 Shipper’s Obligation to Deliver the Goods for Carriage
8.4.1.1 General Obligation to Deliver the Goods
Article 27 imposes the shipper’s obligation regarding the delivery of goods for
carriage to the carrier. The first sentence provides for the obligation to deliver the
goods ready for carriage and the second requires that the goods should be in safe
condition with regard to persons or property. The former obligation can be
modified by the contract of carriage (as indicated by the opening phrase “[u]
nless otherwise agreed”), but the latter cannot (as indicated by the opening phrase
“[i]n any event”). The contractual freedom under the first sentence of article 27(1)
allows the commercial flexibility necessary for the parties to make appropriate
arrangements for the “readiness” of the goods. The mandatory rule of the second
sentence protects the safety of everyone involved in the enterprise. The shipper
shall deliver the goods in such condition that they will withstand the intended
carriage. The term “intended carriage” clarifies that the obligation is defined by
reference to the carriage that is expected at the time that the shipper delivers the
goods to the carrier.
8.4.1.2 Containerized Cargo
Article 27(3) provides for a special rule regarding containerized cargo. When the
goods are delivered in a container packed by or in a vehicle loaded by the shipper,
the shipper should properly and carefully stow, lash and secure the contents in or on
the container or vehicle, and in such a way that they will not cause harm to persons
or property. Although during the discussion in the UNCITRAL Working Group a
question was raised whether article 27(3) adds anything not covered by article 27
(1), it was thought that the paragraph has at least practical value in reminding the
shipper of the importance of stowing and securing the goods in the container to
withstand the voyage.30
The focus of article 27(3) is the proper stowage of the goods, while article 27(1)
concerns the condition of the goods themselves and their packaging. Like the
second sentence of article 27(1) which focuses on safety concern, there is no
contractual freedom for the obligation under this paragraph.
8.4.1.3 Activities Under FIO Clause
Parties sometimes agree on a clause known as FIO (“free in and out”). Typical
example of the FIO clause is as follows: “The cargo shall be brought into the holds,
loaded, stowed and/or trimmed, tallied, lashed and/or secured and taken from the
holds and discharged by the shipper or the consignee, free of any risk, liability and
expense whatsoever to the carrier.” Article 28(2) provides that the shipper should
perform its obligation under the FIO clause carefully and properly. If the stowage
by the shipper was incomplete, it is a breach of obligation under this article and may
result in the shipper’s liability if the carrier incurred loss or damage.
Not all activities under the FIO clause are performed by the shipper. For
instance, unloading of the goods from the ship may be performed by the consignee.
Please note that the paragraph does not regulate such activities performed by a
person other than the shipper. Let us assume that the consignee damaged the ship
during the unloading process as agreed in the FIO clause contained in a non-
negotiable transport document.31 The shipper has not breached the obligation
under article 27(2) because it did not perform the discharge under FIO clause unless
the consignee is not the person referred to in article 34. The consignee might be
liable under applicable national law but not under the Rotterdam Rules.32 Chapter 7
of the Rotterdam Rules provides only for the shipper’s obligation and liability.
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.
220 T. Fujita
8.4.2 Shipper’s Obligation to Provide Information,

Instructions and Documents
8.4.2.1 The Obligation to Provide Information for Proper Handling

and Carriage of the Goods and to Comply with the Law
and Regulations
Article 29 of the Rotterdam Rules requires that the shipper provide necessary infor-
mation. Although previous conventions are generally silent on the shipper’s obliga-
tion to inform the carrier (except for information regarding dangerous goods), the
contract of carriage often requires the shipper to provide necessary information for the
carriage. The Rotterdam Rules which explicitly refer to the obligation should be seen
as codifying the existing practice rather than creating a novel obligation.
Article 29(1) refers to two different types of information, instructions and
documents: (1) for the proper handling and carriage of the goods (including
precautions to be taken by the carrier and a performing party) and (2) for the carrier
to comply with the law, regulations or other requirements of public authorities in
connection with the intended carriage. The information, instructions and documents
for the proper handling and carriage of the goods should be provided only to the
extent that they are reasonably necessary and not otherwise reasonably available to
the carrier. As for the information, instructions and documents for the carrier to
comply with the law, regulations, etc., should be provided only when the carrier, in
a timely manner, has notified the shipper of the information, instructions and
documents it requires. The shipper does not always know what information,
instructions or documents the carrier needs.
8.4.2.2 Obligation to Cooperate with Each Other
Article 28 of the Rotterdam Rules provides for the obligation of mutual cooperation
in providing information and instructions. Performing the contract of carriage
effectively requires that the parties communicate properly. In practice, many things
may go wrong due to lack of communication. Mutual communication is therefore
essential for the proper implementation of the contract on both sides. Article 28
underpins that cooperation by providing the obligation to respond to requests from
the other party for the information and instructions necessary for the proper
handling and carriage of the goods.
The parties should provide the information that they possess and the instructions
that they can reasonably give. The reasonability requirement ensures that the
obligation – by definition – does not impose an unreasonable burden on the parties.
The shipper, for instance, need not conduct a costly investigation to obtain infor-
mation that the carrier has requested if that would be unreasonable. Moreover, even
if the parties have information or can reasonably give instructions, they need not do
so if the information is already reasonably available to the requesting party.
8.5 Obligations (2): The Breach of Which Triggers

Strict Liability
The Rotterdam Rules provide for two kinds of obligations which trigger the
shipper’s strict liability.
8.5.1 Obligation to Provide Information Necessary

for Compilation of Contract Particulars
8.5.1.1 Obligations Under Article 31(1)
The shipper should provide to the carrier the information necessary for the compi-
lation of the contract particulars and issuance of the transport documents or
electronic transport record. Article 31(1) provides a non-exhaustive list of informa-
tion that the shipper must provide. First, the information regarding the goods,
including (1) a description of the goods as appropriate for the transport (article 36
(1)(a)), (2) the leading marks necessary for identification of the goods (article 36(1)
(b)), (3) the number of packages or pieces, or the quantity of goods (article 36(1)
(c)), and (4) the weight of the goods if the shipper wishes to incorporate it in
contract particulars (article 36(1)(d)), should be provided.
While the name of the consignee or name of the person to whose order the
transport document or electronic transport record is to be issued are not items of
information always necessary for the compilation of the contract particulars,33 as
far as they are necessary, the shipper should provide them.
It should be noted that this is not an exhaustive list of the information which the
shipper should provide; any other information, as far as it is necessary either for the
compilation of the contract particulars or the issuance of the transport documents or
electronic transport record, should also be provided.
8.5.1.2 Guarantee of the Accuracy of Information
The shipper is deemed to have guaranteed the accuracy of the information that is
provided according to article 31(1) and shall indemnify the carrier against loss or
damage resulting from the inaccuracy of such information (article 31(2)).
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.”
222 T. Fujita
The provision is essentially the same as article 3(5) of the Hague and the Hague-
Visby Rules and article 17(1) of the Hamburg Rules.
Please note that the strict liability under article 31(2) is not always triggered even
when the carrier breaches obligation under article 31(1). For instance, the shipper
breaches obligation under article 31(1) if it does not provide required information or
provides information in an untimely manner. However this breach does not trigger a
shipper’s strict liability under article 31(2). The shipper’s guarantee covers only the
accuracy of information which is actually provided according to article 31(1).
There are different types of claims which the shipper should expect under article
31(2). The first type of claim comes from the evidentiary effect of a transport
document or an electronic transport record with inaccurate information in its
contract particulars. For instance, the shipper informed the carrier that 40 machines
were contained in a container, and the carrier issued a bill of lading which stated
“contents: 40 machines” without any qualifying clause. When the container was
delivered to the consignee, only 30 machines were found in the container. The
carrier is liable for the loss of 10 machines (see, article 41(b)). The carrier, in turn,
has a recourse claim against the shipper for loss caused by the inaccurate informa-
tion provided by the shipper.
The carrier might also suffer from loss due to the inaccurate information
provided by the shipper which is not related to the evidentiary effect of contract
particulars. The shipper informed the carrier that the weight of the container was 5
tons, while the actual weight was 25. The carrier included 5 tons as the weight of the
container in the contract particulars. In order to load the container the carrier used a
crane to which was designed to carry up to 20 tonnes at maximum while it had
another crane for the cargo heavier than 20 tonnes. The crane corrupted and the ship
was damaged. In this case, the shipper might be liable for the breach of duty under
article 29(1). However, to the extent that the information in question is provided for
the compilation of the document, the shipper might also be liable under article 31(2).
8.5.2 Obligation in Connection with Dangerous Goods
8.5.2.1 Introduction
Article 32 of the Rotterdam Rules provides for special rules on dangerous goods.
Such rules do not constitute a novel idea. The Hague and Hague-Visby Rules
regulate dangerous goods in article 4(6), which confers certain rights on the carrier
and imposes certain liabilities on the shipper. For “goods of an inflammable,
explosive, or dangerous nature,” the carrier is entitled to land the goods “at any
place,” destroy them, or render them innocuous – either when they “become a
danger to the ship or cargo” (if the carrier has properly consented to their carriage)
or “at any time” (if the carrier has not properly consented to their carriage). The
shipper is “liable for all damages and expenses directly or indirectly arising out of
or resulting from [the] shipment” if the carrier did not properly consent to the
carriage of the goods. The basis of liability under this provision is not completely
clear and the interpretation differs among jurisdictions.34
The Hamburg Rules has slightly more detailed regulations, including the ship-
per’s obligation to inform the carrier of the dangerous nature of the cargo (Article
13(2)) and to mark and label the dangerous goods (Article 13(1)), and the shipper’s
strict liability for the loss resulting from the shipment of dangerous goods when the
carrier is not aware of their dangerous character (Article 13(2)).
The first draft of the Convention quite deliberately did not contain special
regulations on the shipper’s liability for dangerous goods. The draft instead rejected
the concept of “dangerous goods” as a distinct category:
[T]he distinction between ordinary goods and dangerous or polluting goods is out of date.
Whether certain goods are dangerous depends on the circumstances. Harmless goods may
become dangerous under certain circumstances and dangerous goods (in the sense of
poisonous or explosive) may be harmless when they are properly packed, handled and
carried in an appropriate vessel. The notion “dangerous” is relative.35
Rather than regulating the shipper’s liability for dangerous goods, the first draft
provided for strict liability for inaccurate information, which would cover most
situations in which the shipper did not properly disclose the dangerous nature of the
goods or did not properly mark or label them.36
The UNCITRAL Working Group, at its 13th Session (May 2004), abandoned the
proposed strict liability for incomplete or inaccurate information in general and
instead reintroduced regulation along the lines of article 4(6) of the Hague-Visby
Rules and article 13 of the Hamburg Rules.37
8.5.2.2 “Dangerous Goods”
Everything can be dangerous under certain circumstances. Indeed, some courts

have very broadly interpreted the concept of dangerous goods under the Hague-
Visby Rules.38 To avoid such unreasonably broad interpretations – which could
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).
224 T. Fujita
lead to an unlimited expansion in the scope of article 32 and undermine the

principle that a shipper’s liability should generally be fault-based – UNCITRAL
included the “nature or character” qualification. Ordinarily harmless goods may
cause harm under certain circumstances, but they are not “by their nature or
character” dangerous. For instance, let us assume a cargo of ground-nut extraction
meal pellets was infested with insects that posed a threat to other cargo on the
vessel. As a result of the infestation, the vessel was quarantined and the carrier
suffered substantial losses, which the carrier seeks to recover from the shipper. In
this case, the shipper is not liable under article 32 because the infested goods were
not “by their nature or character” dangerous (However, the shipper may be liable
under article 27 if the shipper was at fault).
8.5.2.3 Situation Covered by Article 32
Article 32 covers the situation “when goods by their nature or character are, or
reasonably appear likely to become, a danger to persons, property or the environ-
ment”. This article addresses several different situations like the following:
1. The first situation is where the goods actually become dangerous and cause
physical damage to the carrier. A shipper must inform the carrier when it ships
such goods so that the carrier can take necessary precautions. If the shipper fails
to do so, the shipper is liable for damage caused by such breach of obligation
whether it is at fault or not.
2. The goods actually become dangerous and the carrier is able to render the
dangerous goods harmless, thus avoiding any actual physical damage, but
incurring additional costs. The carrier’s necessary and reasonable expenses
constitute a “loss” under article 32.
3. Even when the goods were not actually dangerous, they sometimes “reasonably
appear likely to become dangerous”. Article 32 applies to such a case. The
carrier can claim the cost which it incurred from reasonable measures to avoid
such apparent danger to persons, property or the environment to the extent that it
could have saved such measures if it had been properly informed.39
8.5.2.4 Obligations Under Article 32
Article 32 imposes two obligations on the shipper: (1) to inform the carrier of the
dangerous nature or character of the goods in a timely manner before they are
delivered to the carrier or a performing party (article 32(1)) and (2) to mark or label
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.
dangerous goods in accordance with any law, regulation or other requirements of

public authorities that apply during any stage of the intended carriage of the goods
(article 32(2)).
The shipper should inform the carrier of the dangerous nature or character of the
goods. Although this obligation is essentially identical to that of article 13(2) of
the Hamburg Rules, there are minor differences. While the Hamburg Rules requires
the shipper to inform the carrier “if necessary, of the precautions to be taken,” the
Rotterdam Rules do not. The shipper might be required to inform the carrier of
necessary precautions to be taken under article 29 although the breach of the
obligation does not trigger strict liability. The shipper should provide the informa-
tion in a timely manner before the goods are delivered to the carrier or a performing
party. However, even the information submitted after the delivery could affect the
shipper’s liability to the extent it could contribute to the prevention of the incidents.
See Sect. 8.5.2.5 below.
Article 32(2) imposes a similar obligation as article 13(1) of the Hamburg Rules.
The difference is that article 32(2) explicitly requires that the marking and labeling
of the dangerous goods be in accordance with the applicable law, regulations or
other requirements of public authorities. The regulation of dangerous goods has
recently become more and more rigorous and complex and the carrier is often liable
for the non-compliance on strict liability basis. Article 32(2) makes it possible for
the carrier to have recourse against the shipper who is primarily responsible for the
non-compliance.
One should note that the notification by the carrier is, unlike article 29(1)(b), not
a prerequisite for this obligation. Regardless of whether the carrier required or
instructed the necessary action to comply with the law, regulations or other require-
ments of the public authorities, the shipper should properly mark or label dangerous
goods accordingly.
8.5.2.5 Causation Between the Breach of Obligation and the Loss or Damage
The shipper is liable for loss or damage resulting from the breach of these obliga-
tions. One would notice a slightly different wording in connection with the causa-
tion compared with the previous conventions which provide that the shipper is
liable for the loss resulting “from the shipment.”40 The wording was carefully
examined in the Working Group.41 Under the previous conventions, if the danger-
ous goods explodes and damages the carrier and if there is an insufficient marking
or labelling, the shipper is automatically held liable. Under the Rotterdam Rules,
the court should examine whether the loss could have been saved if the shipper had
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.
226 T. Fujita
properly marked or labelled the dangerous goods. Only if the answer is affirmative,
the causation between the breach of obligation and the loss or damage exists and the
shipper is liable to that extent. The shipper’s liability is, to that extent, limited under
8.6 The Liability of Documentary Shipper
A person other than the shipper is sometimes included in contract particulars as

“shipper.” For instance, a FOB (Free on Board) FOB seller is not a shipper because
the buyer must contract at its own expense for the carriage of goods from the named
port of shipment under the terms of FOB sales.42 Although an FOB seller sometimes
arranges the contract of carriage, it does so on behalf of the shipper, rather than as one
of the contract parties. Nevertheless, the name of the FOB seller sometimes appears
on the transport document as a “shipper.” The legal status of such persons has been
unclear under the Hague and the Hague-Visby Rules. The Hamburg Rules adopts a
broad definition of “shipper” which includes not only the person who concluded a
contract of carriage with a carrier but also “any person by whom or in whose name or
on whose behalf the goods are actually delivered to the carrier in relation to the contract
of carriage by sea” (article 1(3)). Therefore, if an FOB seller actually delivered the
goods to the carrier, the Hamburg Rules regulates it as a shipper. The Rotterdam Rules
adopted a different approach. Instead of regulating a person who actually delivered the
goods to the carrier, it introduces the notion of “documentary shipper.”
A “documentary shipper” is defined in article 1(9) as “a person, other than the
shipper, that accepts to be named as ‘shipper’ in the transport document or elec-
tronic transport record.” The Rotterdam Rules are based on the person’s “assump-
tion” of the status rather than on its actual delivery of the goods. If a person other
than the shipper is identified as the shipper in the contract particulars43 and it
accepts to be named as shipper, it becomes a documentary shipper.
A documentary shipper is only subject to the obligation and liability imposed on
the shipper pursuant to Chapter 7 and to article 55, and is entitled to the shipper’s
rights and defences provided by Chapters 7 and 13. Therefore, for instance, the
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.
carrier cannot make a claim for the payment of the freight against the documentary
shipper.
The obligation and liability of a documentary shipper is not a substitute for those
of the shipper. A shipper is not exonerated when a documentary shipper is liable.
Although the carrier cannot be paid twice, it is free to make a claim against the
shipper rather than the documentary shipper.
8.7 Conclusion
We have examined the basic liability structure and specific obligations under
Chapter 7 of the Rotterdam Rules. Let us to return to the question which was raised
in the beginning of this paper: Are shipper’s obligations and liabilities substantially
increased under the Rotterdam Rules?
First, the shipper’s general liability is fault-based under the Rotterdam Rules as
well as under the Hague, the Hague-Visby and the Hamburg Rules. While the
Rotterdam Rules explicitly provide for the specific obligations of the shipper in a
detailed manner, the effect is subtle. On one hand, a breach of such obligations
would usually give a cause of action against the shipper under applicable national
law44 or under the contract of carriage in many cases. On the other hand, the
“breach of obligation” under the Rotterdam Rules is the prerequisite of a shipper’s
liability (article 30(1)) and explicit references to specific obligations in Chapter 7
may be understood as a safeguard for the shipper.
The shipper bears strict liabilities under the Rotterdam Rules in two situations:
damage caused by inaccurate information provided by the shipper for the compila-
tion of transport documents and by dangerous goods. These rules do not increase, at
least substantially, the shipper’s liability compared with previous conventions. The
shipper has been deemed to guarantee the accuracy of information which it
provided to the carrier for the transport with regard to the goods under the Hague,
the Hague-Visby and the Hamburg Rules. Liabilities on dangerous goods have
already been strict under the Hamburg Rules and, in many jurisdictions, under the
Hague and the Hague-Visby Rules. In addition, the Rotterdam Rules require more
rigid causation than the previous conventions.45
It should also be noted that the Rotterdam Rules give safeguard for the shipper
compared with previous conventions. First, unlike the previous conventions, the
Rotterdam Rules prohibit parties from increasing the obligation of the shipper
(article 79(2)). Second, a 2-year time-bar in article 62 is also applicable to shipper’s
liability while the previous conventions leave the issue to applicable law and
national law which usually provide for longer time-bar period.
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.
228 T. Fujita
It is sometimes claimed that it is unfair that the shipper owes unlimited liability
while the carrier enjoys limitation under the Rotterdam Rules.46 Although this
accusation is simple and sounds appealing to the innocent readers of the Rotterdam
Rules, it cannot withstand a scrutiny. First, it should be stressed that this not a
problem caused by the Rotterdam Rules. The shipper has already been unlimitedly
liable under the Hague, the Hague-Visby, and the Hamburg Rules. Second, it is very
difficult to find a sensible indicator or figure for shipper’s liability limitation. This is
why most national laws do not provide limitation of liability for the shipper.47
The overall assessment is that the shipper’s obligations and liability are not
substantially increased under the Rotterdam Rules.
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
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.
Chapter 9
Transport Documents in the Light
of the Rotterdam Rules
Hakan Karan
Abstract This paper studies “Transport Documents in the light of the Rotterdam
Rules”. It explains the meaning and types of the transport documents under the
Rotterdam Rules comparing with those under the Hague, Hague-Visby and Hamburg
Rules. The question of the extent to which the provisions of the Rotterdam Rules
regarding the transport documents covers the practical needs is addressed herein.
This paper concludes that the Rotterdam Rules create its own law with respect to
the transport documents and generalises all types of documents used in practice for
carriage under the name of transport documents. The Rotterdam Rules have some
advantages such as the coverage of the electronic transport document and the
document for multimodal transport with a sea leg and some disadvantages such as
the lack of direct connection with the practice. Ultimately, the Rules can be evaluated
as good or bad only in the future after they have been in use, and the question whether
the Rotterdam Rules is the only alternative for the unification of transport laws of the
Hague and Hamburg regimes will then be answered. Do we all have time for that?
9.1 Introduction
The title of this paper is “Transport Documents in the light of the Rotterdam Rules”.
The Rotterdam Rules were adopted on 11 December 2008 in New York, USA, and
opened for signature on 23 September 2009 in Rotterdam, the Netherlands.
The aim of drafting the Rules was to establish uniform rules for the international
carriage by sea including multimodal transportation with a sea leg. As a conse-
quence of the unification of transportation laws, the relevant parties to the carriage
contract are able to foresee the legal risks related to the carriage and to insure those
with a lower cost; the freight and insurance costs included in the purchase price
Assoc. Prof. Dr. H. Karan

Maritime Law Department, Ankara University, Faculty of Law, Turkey
and
Delegate of the ICC Transport Commission
e-mail: hakankaran@hotmail.com
230 H. Karan
decrease for the goods subject to international trade, which leads to trading condi-
tions with lower expenses. There is, therefore, a global public interest in the
unification of transportation rules.
This paper does not, however, address the following question: “How much do
the Rotterdam Rules from a general perspective, meet such purpose?” Instead, it
explains the related provisions on the transport documents therein, compares them
with others in international and national laws and questions their applicability.
Within this scope, the paper seeks to answer the following questions:
(a) What is the meaning of the transport documents in the Rotterdam Rules? How
are they regulated?
(b) What are the advantages and disadvantages of the transport document provi-
sions of the Rotterdam Rules in comparison to other international or national
laws?
(c) To what extent do the provisions of the Rotterdam Rules with regard to the
transport documents, meet the needs in practice?
In answering these questions, the provisions of the transport documents in the
Rotterdam Rules, complying with Article 2, have been interpreted by taking into
consideration their international character, which has been used to promote unifor-
mity in international trade within the frame of good faith.
9.2 Definition
Transport documents have been defined in Article 1(14) of the Rotterdam Rules.
Accordingly, “transport document” means a document issued under a contract of
carriage by the carrier that: (a) evidences the carrier’s or a performing party’s receipt
of goods under a contract of carriage; and (b) evidences or contains a contract of carriage.
In order to determine which transport documents in practice come under this
definition, each element of the transport document should be examined individually.
9.3 Elements
9.3.1 Document
9.3.1.1 (Traditional) Transport Document
The most important outcome of Article 1(14) of the Rotterdam Rules is that a
traditional transport document must be a document. There is no provision in the
Rotterdam Rules that define the meaning of the document.
9 Transport Documents in the Light of the Rotterdam Rules 231
A document means a durable and tangible object on which the intention of a

person is formed. However, the meaning given to the document and consequently to
the transport document may vary depending on the object and the form of the
intention therein.
A traditional transport document is a paper recording in writing the carrier’s
intention to undertake an obligation. This is written in everyday language.1 There-
fore, to define a document this way, it needs:
1. The carrier’s declaration of intention to undertake an obligation (to carry goods),
2. (a) A paper which contains such declaration of intention, and (b) A written text
composed in everyday language as the form of such declaration.2
9.3.1.2 Electronic Transport Record (Electronic Transport Document)
General
Developments in technology and the use of the Electronic Data Interchange (EDI) in
commerce have extended the scope of the traditional meaning of document and raises
the question whether a declaration in “electronic record medium”, where electronic
data is created, transferred and stored is a document, and if a message stored in this
medium is sufficient to be considered a written declaration of the intention.
Evaluation of the matter whether an electronic record medium is a document
depends on an examination of each element of the traditional document and
whether this electronic medium corresponds to the fundamental functions of the
traditional document (functional equivalent approach). As a result of the studies, it
has been found that the electronic record medium is a durable tangible object like
the paper in a traditional document used to safely store, transfer and declare the
intention. Consequently, from the view point of functionality, the electronic record
medium is nothing less than a document.3
In so far as there is a lack of a legal rule regarding the concept of a document, the
acceptance of the electronic record medium as a document is obstructed, and
therefore, electronic trade is interrupted. In order to provide more clarity, the
Rotterdam Rules place the electronic transport document under the name of “elec-
tronic transport record”. This regulation is an innovation on the Hague Rules 1924,
the Hague-Visby Rules 1968, and even the Hamburg Rules 1978.
Considering the electronic transport record terminology, it is seen that the
Rotterdam Rules abstain from using the term “document”, using “record” instead.
Despite the fact that this approach seems to be a positive one for the application of
the Rotterdam Rules, it makes the direct application of the Rules to other branches of
the law impossible. For example, under procedural law, the documentary evidence
1
Yiannopoulos AN (ed) Ocean bills of lading, s. 13.
2
Karan (2004), s. 39.
3
In general see Karan (2004).
232 H. Karan
under the documentary evidence rule may be unnecessarily disputed. From this point of
view, it can be concluded that the Rotterdam Rules were designed to stay within its own
perspective and failed to respond to the needs of the commercial practice and to give
general direction to the law.
Another weakness of the Rotterdam Rules lies in the terminology of the text;
instead of using the terms in current usage, they are replaced by new one and their
meaning is shaped by the practice. The electronic transport record is not defined as a
declaration of the intention contained in the electronic record medium, but defined
as the declaration itself, which is not a correct definition.
According to Article 1(18) of the Rotterdam Rules; “electronic transport record”
means information in one or more messages issued by an electronic communication
under a contract of carriage, including information logically associated with the
electronic transport record by attachments, or otherwise linked to the electronic
transport record contemporaneously with or subsequent to its issue by the carrier, so
as to become a part of the electronic transport record.
Electronic Communication
To be defined as an electronic transport record, the messages of declaration of

intention ought to be issued by electronic communication. “Electronic communica-
tion” has been defined in Article 1(17) of the Rotterdam Rules as information
generated, sent, received or stored by electronic, optical, digital or similar means
with the result that the information communicated is accessible so as to be usable
for subsequent reference.
Actually, electronic communication is the EDI within the meaning of Article 2
(1) of the UNCITRAL Model Law on Electronic Commerce 1996 and in practice.
The Rotterdam Rules preferred once again to create its own terms. To define the
electronic transport document and electronic communication in the same way as
“information” obstructs to reach a definition from another.
Use in Practice and Validity
By taking into consideration the functional equivalence approach, Article 8 of the

Rotterdam Rules considers the electronic transport records as equal to transport
documents. Anything in a transport document under this Convention may be
recorded in the electronic transport record, provided that the issuance and
subsequent use of an electronic transport record is with the consent of the carrier
and the shipper. Such consent and use of an electronic transport document creates
an EDI agreement between the parties.
It is also emphasized that the issuance, exclusive control or transfer of an
electronic transport record has the same effect as the issuance, possession, or
transfer of a transport document. Consequently, an electronic transport record is
nothing less than a transport document. Since there is no functional difference
between the two, it was considered as necessary to provide some exceptional
special provisions for the use of electronic transport records. The electronic trans-
port record is therefore discussed in this paper with reference to the transport
document.
Procedures for Use
According to Article 9 of the Rotterdam Rules, the use of a “negotiable” electronic

transport record is subject to the procedures which ensure functional equivalence.
The electronic transport record shall provide and contain:
(a) The method for the issuance and the transfer of that record to an intended
holder;
(b) An assurance that the negotiable electronic transport record retains its integrity;
(c) The manner in which the holder has to demonstrate that he is indeed the holder;
and
(d) The manner of providing confirmation that delivery to the holder or to the
authorised consignee has been effected, or that, the electronic transport record
has ceased to have any effect or validity.
The agreed procedures should be referred to in the contract particulars and be
readily ascertainable. The procedure referred to here is nothing but the EDI standards.
9.3.2 Dual Evidence Function
Considering Articles 1(14) and (18) of the Rotterdam Rules, it can be concluded
that the transport document has two main compulsory functions. First, both a
transport document and an electronic transport record are evidence of a contract
of carriage because they contain and record information. Besides, they provide
evidence of the carrier’s or performing party’s receipt of goods under the contract
of carriage. A document cannot be a transport document without these two func-
tions.
However, there is no need for the transport document to be documentary
intangible to have a function.4 Nor does the right to claim for delivery or transfer
of goods depend on the surrender of the document.
In practice, both the waybill and bill of lading are conclusively accepted as
transport documents. It could be said that the Rotterdam Rules, therefore, have
responded much more to the needs of transport than the Hague and Hague-Visby
Rules, which were actually designed for transport under the bills of lading. How-
ever, in response to the Hamburg Rules, the Rotterdam Rules do not provide any
further reforms.
In Turkish “kıymetli evrak”, in German “Wertpapier”.

4
234 H. Karan
9.4 Types of Transport Documents
9.4.1 In General
The Rotterdam Rules use the terms negotiable/non-negotiable transport documents,

which are applied and used under Anglo-Saxon Law, but are not known to Turkish
Law and do not have any equivalent in Turkish law.
Therefore it is necessary to examine the meaning of the term within the context
of Anglo-Saxon Law and commercial practice. Since in practice, a negotiable
document is a documentary intangible to be issued to order or bearer, which limits
the debtor’s right to provide personal defence against the third party holder, it is
used with a meaning similar to the “public trusted documentsary intangible” under
Turkish law. On the other hand, a non-negotiable document refers to a named
document whether documentary intangible or not, where the document debtor has
the right to provide personal defence against third party creditors and is used
within the meaning of the Turkish “public non-trusted document/documentary
intangible”.
For the sake of clarity, this paper prefers the commonly used terms ciro edilebilir
(capable of being endorsed)/ciro edilemez (non-capable of being endorsed) trans-
port documents in place of the terms negotiable/non-negotiable transport docu-
ments. Furthermore, it prefers not to use the “transferable/ non-transferable”
terminology, because all documents are transferable, but not negotiable.
Unfortunately, to explain the transport document types of the Rotterdam Rules
without any reference to bills of lading and waybills in practice does not help
much to understand the Rotterdam Rules. Essentially, it is possible to form a clear
understanding of transport documents and the operation of such documents only
through a detailed analysis of the Rotterdam Rules.5
9.4.2 Negotiable Transport Document
Articles 1(15) and (19) of the Rotterdam Rules define the negotiable transport
document as one that indicates, by using words such as “to order” or “negotiable”
or other appropriate words recognized as having the same effect by the law
applicable to the document, that the goods have been consigned to the order of
the shipper, to the order of the consignee, or to bearer, and is not explicitly stated as
being “non-negotiable” or “not negotiable”. As explained above, unless a transport
document is issued as non-negotiable, the negotiable transport document means
“order or bearer transport document”.
5
Tetley (2008), s. 3.
The procedures and integrity of Article 9(1)(b) of the Rotterdam Rules must be
ensured in order to mention the negotiable electronic transport record. This
integrity ensures that the electronic transport record has the same integrity with
the traditional transport document.
9.4.3 Non-negotiable Transport Document
Articles 1(16) and (20) of the Rotterdam Rules define the non-negotiable transport
document as a transport document that is not negotiable. On this basis, any transport
document which is not issued explictly to the order of the shipper or the consignee,
or the bearer, or even if issued with these remarks, are also explicitly issued as non-
negotiable, are non-negotiable transport documents. There is only one example for
such a transport document, “the named transport document”.
By Article 9(1)(b) of the Rotterdam Rules, the non-negotiable electronic
records differ from the negotiable electronic transport records in the sense that
they are not subject to the procedures that require an assurance that the negotiable
electronic transport record retains its integrity. Nevertheless, as explained further
below, an electronic transport record document which is non-negotiable, but
requires its surrender is also a documentary intangible and should be subject to
such a compulsory provision.
9.5 Replacement
Article 10 of the Rotterdam Rules explains the procedure for the replacement of
a negotiable transport document with a negotiable electronic transport record.
According to this article, if a negotiable transport document has been issued, and
the carrier and the holder agree to replace that document with a negotiable elec-
tronic transport record, the orginial document ceases to have any effect or validity;
the carrier and holder have to make an agreement; the holder surrenders the
negotiable transport document, or all of them if more than one has been issued, to
the carrier and the carrier issues to the holder a negotiable electronic transport
record that includes a statement that it replaces the negotiable transport document.
Where, on the other hand, a negotiable electronic transport record has been
issued and the carrier and the holder agree to replace that electronic transport record
by a negotiable transport document, the original electronic document ceases to have
any effect or validity; the carrier issues to the holder, in place of the electronic
transport record, a negotiable transport document that includes a statement that it
replaces the negotiable electronic transport record. In such a case, the electronic
transport document should cease to have any effect or validity in compliance with
the procedures set out in Article 9 of the Rotterdam Rules.
236 H. Karan
9.6 Issuance
Article 35 of the Rotterdam Rules entitles the (contracting) “shipper”, a person that
enters into a contract of carriage with a carrier, to obtain the issuance of the transport
document or electronic transport record. However, in order to obtain such a right for
issuance, the carrier and (contracting) shipper must come to an agreement on the use
of electronic transport records in accordance with Article 8(a) of the Rotterdam Rules.
A significant criticism of Article 35 of the Rotterdam Rules is that under the Hague
and Hamburg regimes, the (contracting) shipper had the direct right to obtain a bill of
lading as a documentary intangible from the carrier, and that the Rotterdam Rules have
generalized such a right with the transport document whether a documentary intangi-
ble or not. Nevertheless, the carrier may, even if the (contracting) shipper demands
the bill of lading (negotiable transport document), issue a waybill (non-negotiable
transport document) instead and may fulfill his obligation under the Rotterdam Rules.6
This right to request of the “(contracting) shipper” instead of the “actual shipper” is
also a difference compared to Article 1097 of the Turkish Commercial Code. The
reason for this change lies in Article 3 of the Hague and Hague-Visby Rules, where the
“shipper”, who has been granted such right, is not defined. Even under the Turkish
commercial law, the main opinion tends to be that the actual shipper can request for
such a right using a rightist position as the legal representative of the (contracting)
shipper, and therefore the importance of this a difference ceases. Although such a right
is mentioned as given to the “consignor” in the Hamburg Rules, the “shipper” in the
Rotterdam Rules and the “consignor” in the Hamburg Rules may mean the same.
One significant difference of the Rotterdam Rules is that the “documentary ship-
per” accepting to be named as a third party “shipper” in the transport document has the
right to request the issuance of such a transport document or electronic transport
record. Conversely, the documentary shipper is, in practice, the actual shipper men-
tioned under the Turkish commercial law. The right of the actual shipper to obtain
a bill of lading according to the Turkish commercial law has been deemed to be based
on the legal representation authority of the (contracting) shipper; the Rotterdam Rules
though have left such a right to the consent of the (contracting) shipper. Surely, such
consent may be made explicitly or tacitly.
According to Article 35, for the (contracting) shipper to exercise the right to
obtain the transport document or electronic transport record, the goods have to be
delivered to the carrier or performing party. The (contracting) shipper and the
carrier may agree not to use a transport document or it may be the custom, usage,
or trade practice not to use one. In such a case, the (contracting) shipper is not
entitled to claim the right of issuance of a transport document.
The (contracting) shipper or documentary shipper is entitled to obtain from the
carrier at the shipper’s option:
(a) A non-negotiable transport document or
(b) An appropriate negotiable transport document
6
European Shipper’s Council (2007), s. 7.
The carrier and the (contracting) shipper may agree not to use a negotiable
transport document, or it may be custom, usage, or trade practice not to use one.
Article 1(21) of the Rotterdam Rules defines the “issuance” of a negotiable
electronic transport record as the issuance of the record in accordance with proce-
dures that ensure that the record is subject to exclusive control from its creation
until it ceases to have any effect or validity.
9.7 Content
9.7.1 Contract Particulars
9.7.1.1 General
The particulars of a transport document have been defined in Article 36 of the

Rotterdam Rules under “contract particulars” in three sections as follows:
The first section enumerates the contract particulars to be included in the
transport document by the carrier as declared by the shipper and at the same time
the particulars to be furnished by the shipper and submitted to the carrier for
inclusion in the transport document, such as:
(a) A description of the goods as appropriate for the transport;
(b) The leading marks necessary for the identification of the goods;
(c) The number of packages or pieces, or the quantity of goods; and
(d) The weight of the goods, if furnished by the shipper.
To the best of its knowledge, the carrier is obliged to include the following into
the transport document:
(a) A statement of the apparent order and condition of the goods at the time the
carrier or a performing party receives them for carriage (with reasonable
external control at the time of receipt by the carrier from the shipper or by
additional control at any time before the issuance of the transport document/
electronic transport record);
(b) The name and address of the carrier;
(c) The date on which the carrier or a performing party received the goods, or on
which the goods were loaded on board ship, or on which the transport document
or electronic transport record was issued; and
(d) If the transport document is negotiable, the number of originals of the negotia-
ble transport document, when more than one original is issued.
The carrier shall further include the following particulars to the transport
document:
(a) The name and address of the consignee, if named by the shipper;
(b) The name of the ship, if specified in the contract of carriage;
238 H. Karan
(c) The place of receipt and, if known to the carrier, the place of delivery; and
(d) The port of loading and the port of discharge, if specified in the contract of
carriage.
9.7.1.2 Deficiency in the Contract Particulars
Article 39 of the Rotterdam Rules states that the absence or inaccuracy of one or
more particulars of the contract does not by itself affect the legal character or
validity of the transport document or the electronic transport record. Notwithstand-
ing this, even if it is not explicitly expressed in the Rotterdam Rules, the transport
document should include the minimum conditions set forth in Articles 1(14) and
(18) and especially have a dual function. Otherwise, such a document is not a
transport document, but merely evidence in its current state.
If the contract particulars include the date, but fail to indicate its significance, the
date is deemed to be the date on which all of the goods indicated in the transport
document or electronic transport record were loaded on board ship. On the other
hand, if the contract particulars fail to include the list of goods that were loaded on
board ship, the date is deemed to be the date on which the carrier or a performing
party received the goods.
9.7.2 Signature
Article 38 of the Rotterdam Rules provides that the transport document must be
signed by the carrier or a person acting on his behalf. The existence of a signature is
compulsory for the transport document. Without a signature, since the carrier’s
intention to undertake the carriage is not declared, it cannot bespeak the existence
of any document. It may be used only as a commencement of written proof allowing
the use of proof other than the document.
According to Article 14 of the Turkish Code of Obligations, the signature shall
be signed “by hand”. Unfortunately, the Rotterdam Rules do not mention any other
way to sign, and, under the Turkish Law, any other signature in place of a hand-
written one can only be accepted where it may be custom, especially where a great
number of documentary intangibles are issued as transport documents, this signa-
ture may be sufficient to override the requirement for the handwritten signature.
It is also set forth under the Rotterdam Rules that an electronic transport record
shall include the electronic signature of the carrier or a person acting on his behalf.
Such an electronic signature must identify the signatory in relation to the electronic
transport record and indicate the carrier’s authorization of the electronic transport
record. Since there is no difference between a secure electronic signature and an
unsecure electronic signature in the Rotterdam Rules, if the two minimum condi-
tions are present, it is possible to issue an electronic transport record with an
unsecure electronic signature. Therefore, the laws of the Contracting States
regarding secure electronic signatures are not applied for transport records. Other-
wise, this would be a huge obstacle for the use of electronic transport records, which
do not comply with the needs of commercial practice.
9.8 Functions
9.8.1 Compulsory Function: Evidence
9.8.1.1 Evidence of the Contract of Carriage
General
According to Articles 1(14) and (18) of the Rotterdam Rules, one of the functions of
a transport document is to evidence the contract of carriage. As a result of this
feature of the transport document, it proves or contains as a document the contract
of carriage. This leads to the natural result that anything to the contrary that is
included in the transport document, can only be evidenced by another document in
accordance with the procedural rule of “documentary proof against document”.
The contract of carriage may have been created at the time of issuance of the
transport document or at any time before the issuance of the transport document. In
the latter case, the contract particulars on the transport document may differ from
the previous content of the contract of carriage. In such a case, it is accepted that the
parties changed the contract of carriage with the contract particulars in the
subsequent transport document. On the other hand, it cannot be expected that a
transport document includes all particulars of the contract of carriage because the
transport document is a document which only records the carrier’s intention to
undertake the carriage and is signed only by the carrier. It is not necessary to
include the obligations of the shipper on this document.
The contract of carriage, which is evidenced by the transport document, is
defined in Article 1(1) of the Rotterdam Rules. According to this definition:
“Contract of carriage” means a contract in which a carrier, against the payment
of freight, undertakes to carry goods from one place to another. The contract
provides for carriage by sea and may provide for carriage by other modes of
transport in addition to the sea carriage by the carrier. In the former, there is a
“contract of carriage by sea” and in the latter a “multimodal transport contract”.
Considering this wording, the Rotterdam Rules are the first international instrument
to regulate the multimodal transport contracts and “multimodal transport docu-
ments”, even if they have to contain a compulsory sea leg.
Besides the compulsory function of evidencing the contract of carriage, the
transport document must also include two other essential contract particulars –
the parties of the carriage and the explicit intention to undertake to carry goods with
the signature of the carrier.
240 H. Karan
“Freight Prepaid”
Although the transport document or the electronic transport record evidences the
carrier’s obligation to carry, the Rotterdam Rules have provided a provision
regarding the freight in Article 42. It aims, if the contract particulars contain the
statement “freight prepaid” or a statement of a similar nature, to prevent the carrier
from asserting against a third party, holder or consignee the fact that the freight has
not been paid. Nevertheless, if the holder or consignee is also the shipper, the carrier
may refuse to deliver the goods to the shipper with whom the carrier has direct
relationship and when there is an assertion that the freight has not been paid,
provided that the carrier can establish a defense that the freight has not been paid.
Identity of the Carrier
Article 37 of the Rotterdam Rules provides, as in Article 1099 of the Turkish

Commercial Code, that if no person is identified in the contract particulars as the
carrier, but the contract particulars indicate that the goods have been loaded on
board a named ship, the registered owner of that ship is presumed to be the carrier,
unless he proves that the ship was under a bareboat charter at the time of the
carriage and he identifies this bareboat charterer and his address. In such a case the
bareboat charterer is the carrier. Alternatively, the registered owner may rebut
the presumption of carrier by identifying the carrier and indicating his address.
Nothing in Article 37 prevents the claimant from proving that any person other
than a person identified in the contract particulars or indicated by the shipowner or
bareboat charter is the carrier.
It would be more correct to impose a joint liability on the shipowner and
bareboat charterer in the case where the carrier’s identity cannot be defined by
the shipowner, instead of indicating the bareboat charterer as the carrier because it
is obvious that the shipowner is more economically viable and represents a much
more secured guaranty for the cargo interests. Since the shipowner and bareboat
charterer may be protected from liability if they indicate the real identity of the
carrier, and the shipowner has also the right to claim from the bareboat charterer,
this joint liability would not establish a heavier liability on them.
9.8.1.2 Evidence of the Receipt of Goods Under a Contract of Carriage
General
The transport document evidences the carrier’s or a performing party’s receipt of

goods under a contract of carriage, including the individual details of the goods to
be carried in the contract particulars. As indicated in Articles 1(14), (18) and 41 of
the Rotterdam Rules, a transport document is prima facie evidence of the carrier’s
receipt of the goods as stated in the contract particulars.
In accordance with the rule of documentary proof against a document, proof to

the contrary by the carrier in respect of any contract particulars shall not be
admissible, when such contract particulars are included in:
1. A negotiable transport document or a negotiable electronic transport record that
is transferred to a third party acting in good faith; or
2. A non-negotiable transport document that indicates that it must be surrendered
in order to obtain delivery of the goods and is transferred to the consignee acting
in good faith;
3. A consignee that in good faith has acted in reliance on any of the following
contract particulars included in a non-negotiable transport document:
(a) The contract particulars declared by the shipper and referred to in Article
36(1), when such contract particulars are furnished by the carrier himself on
the carrier’s own initiative
(b) The number, type and identifying numbers of the containers, but not the
identifying numbers of the container seals
(c) The contract particulars referred to in Article 36(2)
Qualifying Information
Article 40 of the Rotterdam Rules provides that the most important, and actually
only conceivable way to include qualifying information referred to Article 36(1) of
the Rotterdam Rules is to indicate that the carrier does not assume responsibility for
the accuracy of the information furnished by the shipper.
The carrier may qualify the information to indicate that the carrier does not hold
responsibility for the accuracy of the information furnished by the shipper if:
(a) The carrier has actual knowledge that any material statement in the transport
document or electronic transport record is false or misleading; or
(b) The carrier has reasonable grounds to believe that a material statement in the
transport document or electronic transport record is false or misleading.
It is a significant deficiency of the Rotterdam Rules that this article does not
provide reasonable grounds for the qualifying information.
When the goods are not delivered for carriage to the carrier or a performing party
in a closed container or vehicle, or when they are delivered in a closed container or
vehicle and the carrier or a performing party actually inspects them, the carrier may
qualify the information referred to in Article 36(1), if:
(a) The carrier had no physically practicable or commercially reasonable means
of checking the information furnished by the shipper, (in which case it may
indicate the information it was unable to check and include this as qualifying
information to the transport document); or
(b) The carrier has reasonable grounds to believe the information furnished by the
shipper to be inaccurate (in which case it may include a clause to the transport
242 H. Karan
document as qualifying information, providing what it reasonably considers

accurate information).
When the goods are delivered for carriage to the carrier or a performing party in
a closed container or vehicle, the carrier may qualify the information referred to in
Article 36(1)(a), (b), or (c), if:
(a) The goods inside the container or vehicle have not actually been inspected by
the carrier or a performing party; and
(b) Neither the carrier nor a performing party otherwise has actual knowledge of its
contents before issuing the transport document.
The carrier may qualify the information referred to in Article 36(1)(d), if:
(a) Neither the carrier nor a performing party weighed the container or vehicle, and
the shipper and the carrier had not agreed prior to the shipment that the
container or vehicle would be weighed and the weight would be included in
the contract particulars; or
(b) There was no physically practicable or commercially reasonable means of
checking the weight of the container or vehicle.
The carrier may qualify the information under circumstances which indicate that
the carrier does not assume responsibility for the accuracy of the information
furnished by the shipper.
Apparent Order and Conditions of the Goods
Article 39(3) of the Rotterdam Rules provides that if the contract particulars fail
to state the apparent order and condition of the goods at the time the carrier or
a performing party receives them, the contract particulars are deemed to have
stated that the goods were in apparent good order and condition at the time the
carrier or a performing party received them.
9.8.2 Optional Function: Documentary Intangible
9.8.2.1 General
Another important specification of the transport document is its documentary

intangible nature. The transport document has been defined in Articles 1(14) and
(18) of the Rotterdam Rules without mentioning this specification. However,
considering Articles 45 and 47 regulating the right to claim delivery, and Article
51 regulating the right of control, it is a natural conclusion that a transport document
or an electronic transport record is issued under the meaning of a documentary
intangible.
The fundamental reason for the absence of the term “documentary intangible”
in the definition of the transport document is the absence of such wording and
application under the Anglo-Saxon Law. Instead of using this term, the Rotterdam
Rules set forth the transport document or the electronic transport record as having
the same function as a documentary intangible.
Article 557 of the Turkish Commercial Code defines the documentary intangible
as a document without which no right can be claimed or transferred. In other words,
to claim the right mentioned in the document against the debtor, such document has
to be surrendered to the debtor, or to transfer this document to any person, the
possession of the document has to be transferred too. This strong connection
between the right and the document creates a new relationship other than the
background relationship that is the contract of carriage in the transport document.
Such attachment forms the documentary intangible, and the debtor is able to
perform the obligation only upon surrender of such document to the obliged party
by the legitimate holder.
If the transport document becomes a documentary intangible, the natural
result of such transformation is that the holder has the right to claim delivery
and right to the control of the goods, and that the carrier is obliged to deliver the
goods upon surrender of the transport document or fulfill the obligation by
performing the instructions under the right of control granted to the legitimate
holder. Each of the transport documents set forth in the Rotterdam Rules should
be examined individually in order to determine whether these are of documen-
tary intangible nature.
9.8.2.2 Right to Claim Delivery
General
Despite the fact that the transport document contains obligations requiring continu-
ous performance from when the goods are received until they are delivered by the
carrier, the expected benefit of a contract lies in the timely delivery of the goods,
which are carried under the transport document or electronic transport record, by
the carrier to the consignee. Hence, regarding a contract of carriage, the most
important and final obligation of the carrier is to deliver the goods, and for the
holder, the right to claim delivery.
The right to claim delivery may arise from a contractual relationship under
the contract of carriage as a right in personam, or may arise in relation to the
same goods as the result of possession or ownership as a right in rem. The
Rotterdam Rules set down only the personal right of claiming delivery, but do
not provide any rights of possession or ownership in the same way as other
conventions have avoided such discussion. Therefore, another function of the
transport document to represent the goods as in the “document of title” has not
been regulated in the Rotterdam Rules.
244 H. Karan
The Right to Claim Delivery as a Right in Personam
For Non-negotiable Transport Documents

The right to claim delivery for non-negotiable transport documents is set forth
under Article 45 of the Rotterdam Rules, which states that the carrier is obliged to
deliver the goods under the transport document to the consignee who is indicated on
the transport document. The carrier may refuse delivery if the person claiming to
be the consignee does not properly identify himself as the consignee on the request of
the carrier. This provision allows the carrier to deliver the goods without any positive
identification of the consignee and to deliver the goods to any consignee to fulfil
the obligation, which is very favourable for the carrier. However this may cause the
delivery of the goods to a wrong consignee due to the negligence of the carrier.7
If the name and address of the consignee are not referred to in the contract
particulars, the controlling party advises the carrier of such name and address. If the
carrier is unable to locate the controlling party, the shipper indicated on the
transport document is deemed the party holding the right to control. Even if this
issue is not explicitly emphasized in the Rotterdam Rules, the successors of the
persons with the right to claim the delivery of the goods, such as cargo insurers,
may exercise such right. Since for non-negotiable transport documents it is not
necessary to surrender the document, these are not of documentary intangible
nature and are simple evidentiary documents.
For Non-negotiable Transport Documents That Require Surrender

The Rotterdam Rules recognised the fact that, contrary to the Anglo-Saxon Law,
the Continental-European Law also accepts non-negotiable transport documents as
documentary intangibles and provided provisions regarding this matter. Article 46
of the Rotterdam Rules contains a provision regarding non-negotiable transport
documents that require surrender. Such documents are referred to as “straight bill
requiring surrender” under US legal terminology.
It is sufficient to classify a document as a negotiable transport document if
the right to claim delivery of goods is subject to the condition of the surrender of
the document. That is to say, for a document of such a nature, there must be a clause
(negotiable transport document clause) in the contract of carriage requiring the
surrender of the document to claim delivery of the goods. Therefore, the Rotterdam
Rules do not seem to accept the documents as a negotiable transport document,
where the right to obtain the delivery is subject to the surrender of the document by
statutory or customary rules. This approach obstructs the implementation of Article
46 of the Rotterdam Rules in relation to the straight bill of lading which is accepted
under Turkish Law as a documentary intangible and to the named bill of lading
which does not contain the negotiable document clause.
7
Debattista (2009), s. 3.
According to Article 46 of the Rotterdam Rules, when a non-negotiable trans-

port document requires the surrender of the document for the delivery of the goods,
the carrier shall deliver the goods to the consignee upon the consignee properly
identifying himself on the request of the carrier and surrendering the non-negotiable
document. If more than one original of the non-negotiable document has been
issued, the surrender of one original shall suffice and the other originals cease to
have effect or validity. Surely, the successors of the consignee should be deemed to
have the right to claim delivery of the goods upon surrender of the negotiable
transport document. However, the Rotterdam Rules do not contain any explicit
provision in respect thereof.
If the goods are not deliverable because the consignee does not claim delivery of
the goods from the carrier or the carrier is unable to locate the consignee, the
shipper may claim delivery without the condition of surrender the document. The
sole objection to the application of this rule may be because the carrier may be
under the obligation to indemnify the holder, which may appear at a later point.
Therefore, the carrier should be allowed to claim a recourse right and its guarantee
at the time of delivery against the shipper.
For Negotiable Transport Documents

Article 47(1) of the Rotterdam Rules provides, in line with the international
practice, that the negotiable transport document, in its function as a documentary
intangible, allows the right to claim delivery of the goods only after the surrender of
the document and positive identification by reasonable means. Article 47 states that
when a negotiable transport document has been issued, the holder of the negotiable
transport document or negotiable electronic transport record is entitled to claim
delivery of the goods from the carrier after they have arrived at the place of
destination. If more than one original of the negotiable transport document has
been issued, the surrender of one original will suffice for the right to claim delivery
and the other originals cease to have any effect or validity.
Since the transport document also includes the multimodal transport document,
negotiable multimodal transport documents are also documentary intangibles
within the meaning of the Rotterdam Rules. Consequently the previous confusion
about whether such documents are documentary intangibles under the British and
German Law has been resolved.
The holder of the bill of lading is defined in Article 1(10) of the Rotterdam
Rules. According to this Article, “holder” means either a person that is in posses-
sion of a negotiable transport document and if the document is an order document,
he is identified in it as the shipper or the consignee; or is the person to which the
document is duly endorsed; or if the document is a blank endorsed order document
or bearer document, the holder is the bearer thereof.
On the contrary, the holder of the electronic transport record is the person to
which a negotiable electronic transport record has been issued or transferred in
accordance with the procedures referred to in article 9(1). The issuance and transfer
of electronic transport records are defined in Articles 1(21) and (22) of the
246 H. Karan
Rotterdam Rules. The “issuance” of a negotiable electronic transport record means

the issuance of the record in accordance with procedures that ensure that the record
is subject to exclusive control from its creation until it ceases to have any effect or
validity. However, the “transfer” of a negotiable electronic transport record means
the transfer of exclusive control over the record. This person may claim the delivery
by identifying the right to control in accordance with the procedures referred to in
article 9(1). The electronic transport record ceases to have effect and validity upon
the delivery of the goods.
Delivery Without the Surrender of the Negotiable Transport Document

Article 47(2) of the Rotterdam Rules provides another seldomly used transport
document clause with regard to delivery without the surrender of the negotiable
transport document. Accordingly the goods may be delivered without surrendering
the negotiable transport document. This clause causes the negotiable transport docu-
ment to lose its function as a documentary intangible. The holder of such document
may claim delivery without the surrender of the negotiable transport document,
provided that the holder identifies himself as the holder of such document.
Moreover, if the carrier is unable to locate the shipper, the carrier may so advise the
documentary shipper and request instructions in respect of the delivery of the goods.
In the latter case, in the case of a document holder, the carrier may demand from
the shipper or documentary shipper an indemnification or a guaranty for any possible
claims during the delivery and may refuse to deliver without such guarantees.
9.8.2.3 Right to Control the Goods
Another right pursuant to the document or the function of the document to

evidence the transport document is the right to control the goods, which has been
provided in Article 50 and the following articles of the Rotterdam Rules. The right
to control is based on the contract of carriage, which requires continuous perfor-
mance and is a unilateral right under the contract of carriage to give the carrier
instructions in respect of the goods.
The scope of the application of such right has been limited in Article 50 of the
Rotterdam Rules as follows:
(a) The right to give or modify instructions in respect of the goods that do not
constitute a variation of the contract of carriage;
(b) The right to obtain delivery of the goods at a scheduled port of call or, in respect
of inland carriage, any place en route; and
(c) The right to replace the consignee by any other person including the controlling
party.
Article 51 of the Rotterdam Rules states that the (contracting) shipper is the
controlling party unless the shipper, when the contract of carriage is concluded,
designates the consignee, the documentary shipper or another person as the
controlling party. The controlling party is entitled to transfer the right of control to
another person. However, the controlling party must properly identify itself when it
exercises the right of control under any circumstances.
On the contrary, the right of control is logically given to the holder of transport
documents of documentary intangible nature. However, when a non-negotiable
transport document has been issued that indicates that it shall be surrendered to
obtain the delivery of the goods and negotiable transport documents, the holder of
the original document or, if more than one original of the negotiable transport
document is issued, the holder of all the originals is the controlling party.
9.9 Conclusion
The Rotterdam Rules prefer to use the deduction methodology of Continental Law
for legislation and, instead of explaining the bill of lading or consignment note as it
is in practice, generalises them under the collective name of “transport docu-
ments”. The Rotterdam Rules have created laws for themself.
The drafters of the Rotterdam Rules have undertaken the considerably difficult
task of putting all national and international regulations regarding bills of lading
under one roof in providing a simple definition for transport documents. This is
nothing but the “consignment note” under the CMR of 1956. Through an opportu-
nity to issue the transport document as negotiable or non-negotiable requiring the
surrender to claim the delivery of the goods, the issuance of the documentary
intangible, in other words the bill of lading, is also permitted.
The provisions regarding electronic transport records and multimodal transport
documents are very appropriate for fulfilling an important deficiency of transporta-
tion law. The only disadvantage of these provisions is the avoidance of using a
definition to identify the electronic transport record as a document.
Since the Rotterdam Rules are drafted in the Continental legislation style to set
the rules for transport documents, the convenience of these rules can only be
measured by the rising significance of meaning under the Anglo-Saxon Law. The
Rotterdam Rules must, however, first come into effect.
Moreover, an international convention is not expected to aim to promote inter-
national unification, but merely to meet such aim. The worst case scenario is that
the Rotterdam Rules classify themselves as an alternative to the Hague and Ham-
burg Regimes; whereas the Rotterdam Rules should actually be perceived as the
“only alternative”. The best solution for such an outcome is to be left to the future.
References
Debattista C (2009) The goods carried – who gets them and who controls them. In: Uncitral colloquium
on Rotterdam Rules, 21 September 2009, Rotterdam. http://www.rotterdamrules2009.com/cms/
uploads/Def%20%20tekst%20Charles%20Debattista%2031%20OKT29.pdf
248 H. Karan
European Shipper’s Council (2007) Position paper on the draft maritime instrument of the United
Nations Commission on International Trade Law, April 2007. http://www.mcgill.ca/files/
maritimelaw/European_Shippers_Council_Position_Paper.pdf
Karan H (2004) Elektronik konişmento (Electronic bill of lading). Turhan Kitabevi, Ankara
Tetley W (2008) A summary of general criticisms of the UNCITRAL Convention (the Rotterdam
Rules), 20 December 2008. http://www.mcgill.ca/files/maritimelaw/Tetley_Criticism_of_
Rotterdam_Rules.pdf
Yiannopoulos AN (1995) Ocean bills of lading. Kluwer, The Hague
Chapter 10
Rights of the Controlling Party
Gertjan van der Ziel
Abstract Chapter 10 addresses in detail the cargo side’s control of the goods
during a maritime carriage. Because the rules on control of the goods under the
law of carriage may have an impact on other fields of law such as the law of sale and
the law of property, these rules are of utmost importance for the international trade
generally.
The exercise of the right of control may be linked to the possession of a transport
document, but not necessarily so. As a matter of principle, the right of control is a
self sustained right and, therefore, may serve as the legal basis for documentless
maritime carriage. As such, it will constitute an essential element of the legal
infrastructure for future e-commerce systems in overseas trade and transport.
10.1 Introduction
Chapter 10 of the Rotterdam Rules deals with situations in which the goods are in
transit and in the carrier’s custody. These goods have an owner, which may be their
buyer, or, when the title has been retained upon shipment, the seller. Generally, this
owner may wish to protect its interest and must, therefore, be able to give instruc-
tions to a carrier in respect of the goods. Sometimes, another party may be
interested in the goods, for instance a bank that has financed the goods and has
acquired a security interest in them. Also such other interested party may wish to
instruct a carrier in order to protect its interest.
This paper represents an updated and revised version of a paper delivered on 28th March 2008 at
the international symposium “Transportation Law for the 21st Century: the New UNCITRAL
Convention” held at The University of Texas School of Law in Austin, USA. Some of the material
in this paper has been published in Texas International Law Journal 44-3 and in The Journal of
International Maritime Law 14 (2008). Most of the material is also included in Chapter IX of: 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.
Prof. Dr. G. van der Ziel (Emeritus)
Erasmus University, Rotterdam, The Netherlands
e-mail: gvanderz@xs4all.nl
250 G. van der Ziel
Unlike non-maritime conventions, which usually contain specific provisions on

the right of control and the controlling party,1 neither the Hague-Visby Rules nor
the Hamburg Rules include such provisions.2 In maritime transport, the legal basis
of the right of control must be sought in national law and in the terms and conditions
of the contract of carriage. Often, the exercise of the right of control is tied to the
possession of a certain transport document and the contents of the right of control
are, to a large extent, laid down in case law and trade practices.
This lack of uniformity of law is not only detrimental to the clarity of the legal
position of the parties to the contract of carriage, but also has much wider implica-
tions beyond the confines of transportation. Under most legal systems, ownership of
goods requires their possession and possession assumes a certain level of control of
the goods. A transfer of control of the goods may be essential for a transfer of their
ownership. In international trade, legal certainty about transfer of ownership is of
crucial importance.3 Equally, under many national laws it is a requirement for the
validity of some types of a bank’s security interest in the goods that the bank has a
certain level of control of these goods. The validity of security rights in the goods
similarly demands legal certainty, because these rights are often the basis for a
bank’s willingness to finance goods that are the subject of an overseas sale.
Because of the significance of the above issues for the international trade,4 the
Rotterdam Rules contain a full chapter on the right of control and the controlling
party. The chapter includes seven provisions,5 of which the first three are the most
important ones.
10.2 Relationship Between Chapter 10 and the Law of Sale

and the Law of Property
Although the right of control may have an important function under the law of sale
and the law of property, it must be emphasized that the Rotterdam Rules do not
address either body of law per se. The right of control under Chapter 10 is clearly to
be distinguished from the right of disposal under property law (ius disponendi).
Reserving the right of disposal, often used in the context of sale of goods, means
preventing ownership from passing to the purchaser notwithstanding that the seller
has parted with the possession of the goods. In some jurisdictions, whenever a seller
1
See Montreal Convention, art. 12; CMR, arts. 12, 14–16; CIM-COTIF, arts. 18–22 and CMNI,
arts. 14–15.
2
In the maritime field only art. 6 of the CMI Uniform Rules for Sea Waybills deals with the right of
control. These rules may be made contractually applicable.
3
For an overview of the legal rules on transfer of ownership in various jurisdictions, see Von
Ziegler et al. (1999).
4
Both for the current trade and transport practices and the future development of e-commerce
systems in international trade and transport. See also below sec. 10.11.
5
Articles 50–56.
10 Rights of the Controlling Party 251
ships the goods under a negotiable transport document made out to its order, that
seller is assumed to have reserved under the contract of sale the right to dispose of
the goods as it wishes.
Also the right of stoppage in transitu has to be distinguished from the right of
control under the Rotterdam Rules. The right of stoppage is related to the sale of
goods and is the right of an unpaid seller, which has transferred the ownership of the
goods to a purchaser, to resume possession of these goods during their transit. This
right is typically restricted to specific circumstances, such as insolvency of the
buyer. It is generally lost if the goods have been resold for a value consideration to a
third party acting in good faith. In many jurisdictions, the seller still has the right of
stoppage in transitu after transfer of the negotiable transport document to the buyer,
but before the goods are delivered by the carrier.6
Although the right of control under transport law is distinct from the rights in the
goods under the law of sales and the law of property, the concepts are nevertheless
related. In particular, transport law’s right of control may assist in exercising rights
in the goods under the law of sale or property.7 For instance, an unpaid seller who
wishes to exercise the right of stoppage and has parted with the negotiable transport
document (giving control of the goods under the contract of carriage) must first seek
to regain control of the goods. Reservation of the right of disposal under a contract
of sale without retaining the right of control of the goods under the contract of
carriage is unlikely to be of much use. In other words, if a person, on whatever legal
basis, has a certain right in the goods while they are carried under a contract of
carriage (to which that person might not be a party), without having the right of
control under the contract of carriage, that person will generally find it difficult to
exercise its right in the goods.
In addition, a transfer of the right of control of the goods under a contract of
carriage, for instance by the shipper to the consignee, may express the intention
between the parties to transfer the rights in the goods. Furthermore, when for the
validity of security rights in the goods a certain level of possession is required, the
possession of the right of control of the goods under the contract of carriage may
fulfil this requirement.
10.3 Exercise and Extent of the Right of Control
10.3.1 Core Elements
Article 50 starts with a chapeau intended to make it clear that the controlling party
is the exclusive person entitled to exercise a right of control. The further subpar-
agraphs (a), (b) and (c) indicate the contents of the right of control.
6
See also art. 71(2) of the UN Convention on Contracts for the International Sale of Goods, 1980
(CISG).
7
In the same vein: Zunarelli and Alvisi (2010), p. 222.
252 G. van der Ziel
Subparagraph (a) refers to ‘the right of giving or modifying instructions in

respect of the goods that do not constitute a variation of the contract of carriage.’
This refers to the types of instructions that are inherent to any transportation
contract. Often, these instructions are of an operational nature, for example: (1)
“please keep the goods at a temperature of minus 6 degrees” (in case of refrigerated
goods) or (2) “please deliver the goods between 6 and 8 am”. However, it is also
possible that these instructions have a commercial nature. Quite a common instruc-
tion to a carrier is: “please, make contact before you actually deliver”. Such an
instruction may be given by a shipper/seller when, upon shipment, there is no
certainty that the purchase price of the goods will be paid in time and the shipper/
seller wishes to ensure that the goods will not be delivered prior to receipt of
the purchase price. When under such instruction the carrier makes contact with
the shipper, he may be either advised about the details of the actual delivery or
may receive a further instruction such as one of those referred to in subparagraph
(b) or (c).
Unlike the instructions of subparagraph (a), those under subparagraphs (b) and
(c), are usually a variation of the contract of carriage. Subparagraph (b) provides for
‘the right to obtain delivery of the goods at a scheduled port of call or, in respect of
inland carriage, any place en route’. Subparagraph (c) refers to ‘the right to replace
the consignee by any other person including the controlling party’.
The possibility of obtaining a delivery en route may be important when there is a
reason to avoid that the goods arrive in the jurisdiction of the consignee. If the
consignee has become insolvent (and is thus unable to pay for the goods), for
example, the unpaid seller may wish to keep the goods out of the hands of the
consignee’s receiver.
Replacing the consignee may be relevant when the goods are resold to another
person. Similarly, when the original buyer defaults the shipper/seller may wish to
nominate itself as the new consignee in order to reclaim possession of the goods.
Replacing the consignee may also be crucial for a bank that wishes to enforce its
security interest in the goods.
10.3.2 Duration
The second paragraph of article 50 links the period during which the right of control
can be exercised to the period of responsibility of the carrier under the contract of
carriage.8 This period does not always coincide with the period that a carrier has
actual custody of the goods. For instance, under article 48 the carrier may still have
actual custody of the goods although under article 50 the period of the carrier’s
responsibility has ended. Therefore, actual custody of the goods by the carrier is not
8
See article 12.
always the decisive factor of whether the right of control can still be exercised. As a
consequence, if a carrier receives any request or instruction beyond its period of
responsibility, while the goods are still in its actual custody, the request or instruc-
tion must be based on legal grounds other than the right of control.9
UNCITRAL discussed two alternatives at length concerning the status of the
right of control after the consignee demands delivery of the goods from the carrier.
Under the first alternative, the right of control would either terminate or automati-
cally transfer to the consignee at the moment that the consignee demands delivery
of the goods. Under the second alternative, the right of control would neither
terminate nor transfer but would continue to exist with the controlling party during
the entire period of the carrier’s responsibility.10
In support of the early termination or automatic transfer alternative, delegations
argued that the approach was in line with national law in a substantial number of
civil law countries and consistent with several other transport conventions dealing
with the right of control.11 In addition, it might cause practical problems, from an
operational perspective, if a carrier that had already started delivery procedures is
required to carry out instructions from a person other than the consignee.12 But
other delegations, in support of the second alternative, countered that an early
termination or automatic transfer would create a fundamental loophole in the
certainty that the right of control system aims to provide to its holders. Merely by
claiming delivery of the goods when they have arrived at their destination, an
insolvent buyer that had not paid for them could secure control of the goods to
the detriment of an unpaid seller or a bank holding a security interest in the goods.
Consensus was achieved on the following solution: (1) To retain the integrity of
the right of control system, the text of the Convention does not refer to an
“automatic” transfer. (2) Article 50(2) links the right of control to the period of
the carrier’s responsibility.13 (3) The parties to the contract may shorten the period
during which the right of control may be exercised with the result that it ends before
the carrier’s period of responsibility ends.14 (4) The potential operational problems
are addressed in article 52.15 Accordingly, the moment that the consignee demands
delivery of the goods at the place of destination is legally relevant for terminating
the right of control only if the parties to the contract of carriage have so agreed.
9
For example, arts. 45 (c), 46(b) and 47(2)(a) authorises certain persons to instruct the carrier on
delivery. Under art. 48 any request or instruction to the carrier may be based on e.g. ownership or
holding security rights in the goods.
10
See 17th Session Report (A/CN.9/594) } 32–36, 68–71.
11
Montreal Convention art. 12(4); CMR art. 12(2); CIM-COTIF art. 18(2); CMNI art. 14(2).
12
See 17th Session Report (A/CN.9/594) } 34.
13
See supra note 9.
14
Article 56, first sentence, makes the early termination alternative possible on a contractual basis.
See infra } 10.10.
15
See article 52(1)(c); infra sec. 10.6.
254 G. van der Ziel
10.4 Identity of the Controlling Party
Article 51 sets out in detail who may be the controlling party in different situations.
The applicable rules depend on the type of transport document or electronic
transport record (if any) that the carrier issues for the carriage.
The first paragraph of this article applies when a non-negotiable transport
document, such as a sea waybill, is issued. It also applies when no document at
all is used, as may be the case in the short-haul ferry trade, or, more importantly, in
e-commerce business models when the electronic data relating to the carriage does
not qualify as an electronic transport record as defined in article 1(18).
The principal rule is that the shipper, being the contractual counterpart of the
carrier, is the controlling party under the contract of carriage.
However, the relation between the seller and the buyer of goods may be of such a
nature that another person needs the right of control of the goods. Therefore,
subparagraph (a) provides that, already at the moment of conclusion of the contract
of carriage, the shipper may designate another person, such as the consignee or a
documentary shipper, as the controlling party.
In order to avoid that the carrier accepts an instruction from a person that is not
entitled to do so, subparagraph (c) provides that a controlling party must properly
identify itself when it exercises its right of control. Unlike in article 45(a), in this
subparagraph the words “on request of the carrier” are omitted. Since the intention of
the two provisions is similar, also in respect of the identity of the controlling party the
carrier has a right (and not a duty) to request this person to identify itself. And when the
carrier makes the request, the controlling party has a duty to comply. The consequence
of a non-compliance with the request is that the carrier will not accept the instruction.
The second paragraph of article 51 applies when the carrier issues a non-negotia-
ble transport document that indicates that it shall be surrendered in order to obtain
delivery of the goods.16 Under this document, only the shipper or the consignee as
named in the document may be the controlling party, depending on which of these
two is able to produce the document to the carrier and, on request of the carrier, to
identify itself either as the named shipper or the named consignee. In the event that
more than one original of this document is issued by the carrier, only the possession
of all originals entitles the holder to exercise the right of control. If in such a case the
holder cannot produce all originals, it is not entitled to exercise the right of control.
The third paragraph deals with the situation that a negotiable transport document
has been issued. It codifies the current practice, namely that the right of control is tied
to the possession of such document. As a consequence, the following rules apply:
1. Similar to what is provided in article 47 with regard to the person entitled to
claim delivery of the goods from the carrier at the end of the carriage, it is the
holder of the negotiable transport document that has the right of control of the
goods during the carriage.
16
For the characteristics of this document see also the articles 46 and 41(b).
2. However, when more than one original has been issued the situation is different
from article 47. While for claiming delivery the possession and production to the
carrier of one original suffices, for the exercise of the right of control during
the carriage the possession and production of the full set of originals is needed. If
the controlling party were not required to produce the full set of originals (under
either article 51(2) or 51(3)), more than one person would be in control of the
goods – which would effectively result in a situation in which nobody would
be in control because the carrier might be required to follow conflicting or
adverse instructions. Two different persons in control of the goods at the same
time would create legal uncertainty, not only in transport law but also in other
legal fields (such as sales or property).17 The practical result would be unwork-
able not only for the carrier but also for the other parties to the transaction.
It should be noted that the fact that nobody is entitled to exercise the right of
control under the contract of carriage does not automatically mean that nobody is in
control of the goods. It only means that the person in control of the goods is not able
to evidence this control towards a carrier with the use of a transport document and,
consequently, does not avail of this convenient and practical manner of demonstrat-
ing to the carrier that it is in possession of control of the goods.
The fourth paragraph applies when the parties make use of a negotiable elec-
tronic transport document. This paragraph follows the same basic rules as the third
paragraph with the adjustments as required by the use of the electronic equivalent of
the negotiable transport document. These adjustments are:
1. Because it is unthinkable that electronic transport documents could be issued in
more than one original, no provision relating to the situation that more than one
original has been issued, is included.18
2. Because under an electronic negotiable transport document the holder does not
possess a paper instrument in order to demonstrate that it is the holder, the fourth
paragraph includes a reference to the procedures of article 9(1) that must provide
for such demonstration.
10.5 Transfer of the Right of Control
Article 51 expressly provides that the right of control is a transferable right.19

The right of control may be transferred at any time that it exists. Moreover, the
Rotterdam Rules do not generally include any restriction as to the number of
transfers or the identity of the persons to which the right of control may be
17
See supra sec. 10.2.
18
Art. 10(2) adopts the same approach.
19
See art. 51(1)(b), (2)(a), (3)(b) and (4)(b). Transferability under article 51(1)(b) may be contrac-
tually excluded or restricted. See article 56 (second sentence); infra sec. 10.10.
256 G. van der Ziel
transferred. Unlike in some other international instruments, it may be any number

and any person.20
In the cases to which the first paragraph of article 51 applies, the manner in
which a transfer under this must be effected (such as by assignment or otherwise), is
not dealt with in the article. Consequently, that issue remains subject to transfer of
rights provisions of the applicable law. Subparagraph (b) of article 51 merely
provides that towards the carrier a transfer is only effective if and when it has
been notified to the carrier by the transferor.21
It is paramount that, at all times, the carrier knows the identity of the controlling
party. Since the transferability of the right of control may play a key role in e-
commerce systems,22 it should be noted that, pursuant to article 3, the transfer
notification to the carrier may be made electronically.
The practical effect of the provisions of article 50 and 51(1) is that, from a
security point of view, the sale of goods to an overseas buyer can be effected under
a non-negotiable transport document23 in a similar manner as with the use of a
negotiable transport document.
For negotiable transport documents and similar electronic records as well as for
non-negotiable transport documents that indicate that they shall be surrendered to
obtain the goods, the following rules apply to a transfer of the right of control.
When a negotiable transport document has been issued, a transfer of the right of
control can be done only by a transfer of the negotiable transport document.
In the event that more than one original has been issued, only a transfer of the
full set of originals achieves a transfer of the right of control. For the manner in
which a negotiable transport document must be transferred to ensure that another
person acquires the right of control, article 51(3) refers to article 57.
When a negotiable electronic transport record has been issued, it also applies
that a transfer of the right of control can only be effected by a transfer of the record.
The manner, in which the transfer of a negotiable electronic transport record is
accomplished, is dealt with in the procedures referred to in article 9(1). Article 51
(4)(b) therefore refers to article 9(1).24
When a non-negotiable transport document has been issued that indicates that it
shall be surrendered to obtain delivery of the goods, transfer of the right of control
can be made only between the shipper and the consignee and vice versa, be effected
by transfer of the document itself without endorsement and, in case of more than
one original being issued, by transfer of the full set.
20
But see infra the final paragraph of this section.
21
In many jurisdictions, a transfer of rights in the goods that are in the hands of a third party,
requires a notification of this transfer to the third party for the transfer to be fully effective. In case
this third party is a carrier under the Rotterdam Rules, a notification of transfer of rights in the
goods required under the applicable property law may coincide with a notification of a transfer of
the right of control as required in art. 51(1)(b).
22
See infra sec. 10.11.
23
See in this connection also art. 41(c).
24
See also art. 57(2).
10.6 Carrier’s Execution of Instructions
Article 52 establishes the principle that the right of control may be unilaterally
exercised by the controlling party, even in the case of an early delivery or change of
consignee that must be regarded as a variation to the contract of carriage. The
principle that the carrier has to obey the instructions of the controlling party,
follows from the essential legal function of the right of control. It provides the
legal basis for exercising rights in the goods that the controlling party may have
under the law of sales or property.
From an operational point of view, it is however not always reasonably possible
for a carrier to obey the instruction given by the controlling party. Therefore,
paragraph 1 of article 52 provides for two circumstances under which a carrier is
entitled to refuse to execute the instructions.
The first is that “the instructions can be reasonably executed according to their
terms at the moment that they reach the carrier”. For example, if the controlling
party instructs the carrier to discharge the goods in an intermediate port where there
is insufficient storage space, the carrier may decline to execute this instruction. The
words “at the moment that they reach the carrier” must not be taken too literally.
They mean that the instruction must be given on time. They do not mean that at the
very moment of receipt by the carrier the instructions must immediately be capable
of execution. For instance, any instruction relating to delivery given during the
carriage can only be executed after the vessel has reached a port.
The second circumstance under which a carrier is entitled to refuse to carry out
an instruction is that “the instructions will not interfere with the normal operations
of the carrier, including its delivery practices”. What in a given case means an
interference with a carrier‘s normal operations will depend on the circumstances of
this case. In our view, the emphasis should be on the matter of ‘normal operations’.
If a carrier is instructed to deliver a container en route and, as a consequence, some
other containers have to be shifted to unload that container, this shifting is part of
the normal (unloading) operations of a carrier and, therefore, may not induce a
carrier to decline to carry out the instruction.25 If however a carrier would be
instructed not to send a notice of arrival to the consignee, this instruction may be
refused by the carrier because sending notices of arrival belongs to the normal
(delivery) operations of a carrier.
The second and third paragraphs of article 52 deal with the costs involved in the
execution of an instruction. The main rule is that any expenses, loss, or damage
reasonably incurred by the carrier have to be reimbursed by the controlling party.
Further, the carrier has a statutory indemnity from the controlling party for the
amount of the expenses, loss or damage that is reasonably incurred or suffered by it.
Since, for example, the controlling party may be a person with whom the carrier has
no relation otherwise, the carrier may request security for the amount of expenses,
loss or damage that the carrier reasonably expects will arise in connection with
25
But see the next paragraph.
258 G. van der Ziel
the execution of the controlling party’s instructions. If the controlling party does
not furnish security, the carrier may refuse to carry out the instruction.
Article 52 addresses liability of the carrier only to a limited extent. The fourth
paragraph of this article deals only with liability for loss or damage to the goods
or for delay in their delivery resulting from a carrier’s failure to comply with the
controlling party’s proper instructions. In such a case, it is provided that the
liability is subject to the general provisions of the convention on carrier’s liabil-
ity.26 This rule is not surprising, because also without this explicit provision the
liability of the carrier in that context would have been subject to these general
rules. In our view, the liability provision of article 52(4) would have been more
meaningful if it had dealt with any liability of the carrier for loss or damage other
than loss or damage of the goods resulting from non-compliance with a proper
instruction. But the Rotterdam Rules intentionally leave that matter to the
otherwise applicable law.27 When, in the given case, such law would establish
the liability of the carrier, this liability will be subject to the limits of article 59
because the latter article applies to any liability that results from a breach of a
carrier’s obligation under the Convention.
10.7 Deemed Delivery
One of the key consequences of the exercise of the right of control is that the goods
may be delivered by the carrier at another place or to another person as originally
agreed in the contract of carriage. Article 53 ensures that a delivery of the goods
following an instruction by the controlling party has the same validity and effect as
a delivery of the goods at the originally agreed place of destination. Therefore, such
delivery terminates the period of responsibility of the carrier,28 ends the period of
time for the suit to commence,29 and discharges the carrier of its obligation to
deliver.30 The procedural and substantial provisions of the specific chapter on
delivery31 also apply to a delivery made on the basis of a specific instruction by
the controlling party.
26
More specifically, the arts. 17–23 dealing with the basis of the carrier’s liability, and the arts.
59–61 providing for the limitation of the carrier’s liability.
27
See 17th Session Report (A/CN.9/594) } 56.
28
Art. 12.
29
Art. 62.
30
Art. 11.
31
Arts. 43–47.
10.8 Variations to the Contract of Carriage
Article 50 provides that the controlling party is the exclusive person entitled to
exercise the right of control, even when the exercise of that right results in one of
the variations to the contract of carriage described in article 50(1)(b) and (c).32
Article 54(1) goes one step further. The controlling party is also the exclusive
person entitled to agree with the carrier on variations to the contract of carriage
other than those described in article 50(1)(b) and (c). Of course, any variation other
than those described requires the carrier’s agreement.
The second paragraph of article 54 establishes rules for recording any variation to the
contract on the transport document or electronic transport record that is issued in respect
of the goods. The provision makes a distinction between (1) a negotiable transport
document, a negotiable electronic transport record, or a non-negotiable transport docu-
ment that requires surrender and (2) an ordinary non-negotiable transport document or
non-negotiable electronic transport record. As to the first type of documents, the
variation must always be stated in the document, while for the second category this
must be done ‘upon request of the controlling party’. This distinction has both a legal
reason and a practical one.
The legal reason is that the documents and records in the first category may be
conclusive evidence.33 Furthermore, negotiable transport documents and records
incorporate rights for holders/transferees,34 meaning that these persons must be
able to ascertain from the document what their rights are.35 The second type of
document normally constitutes prima facie evidence. Only in limited situations and
in respect of a limited number of contract particulars it is conclusive evidence.36
Therefore, it might well be that a controlling party has no interest in the statement of
variation in a transport document of the second type.
The practical reason is that a transport document of the first type always has to be
presented to the carrier when a controlling party wishes to vary the contract of
carriage. In other words, such a document is always available to the parties to
make a statement on it. This may not be the case for the second type of document,
because the controlling party is not necessarily in possession of the non-negotiable
transport document. It is obvious that, when a non-negotiable transport document
has been issued, a controlling party cannot request for the variation statement to be
made on the document in case it is not available to the carrier37 or to the controlling
party. Also, the controlling party will not request for such a statement to be made in
case it has no interest in this being done.
32
33
Art. 41(b).
34
Art. 57(1).
35
Art. 58(2).
36
Art. 41(c).
37
In such a case, if the carrier agrees, a new non-negotiable transport document may be issued that
includes the variation.
260 G. van der Ziel
Variations to the contract of carriage that are stated on a transport document or

electronic transport record must be signed.38 Under current practice, the carrier
initials any amendment to the contract of carriage that is included in the document
after it has been issued and signed. Because initialling has the same validity and
effect as signing, the requirement that the carrier must sign the variation follows
current practice.
10.9 Providing Additional Information, Instructions

or Documents to the Carrier
Article 50 provides that the controlling party is the exclusive person that is entitled
to (unilaterally) instruct the carrier during the voyage.39 Article 54 makes the
following step by providing that this exclusivity also applies to any other variation
of the contract of carriage to be agreed with the carrier.40 Article 55 does the final
step by providing that when the carrier takes the initiative and is in need of further
information, instructions or documents in respect of the goods, it is the controlling
party to whom the carrier must apply.
Consequently, at all times during the carriage, the controlling party and the
carrier are, for all practical purposes, each other’s contractual counterparts, irre-
spective of whether the controlling party is a party to the contract of carriage. Only
at the end of the carriage the carrier may have to deal with a person other than the
controlling party, because when the goods have arrived at the destination
the consignee is entitled to claim delivery of the goods from the carrier, even if
the consignee is not the controlling party.
Article 55 is drafted in the form of an obligation of the controlling party. When
during the carriage the carrier is in need of further information, instructions or
documents in respect of the goods, the controlling party must furnish these. In case
of a contingency, for example, the carrier may need additional information on how
to deal with the goods under the specific circumstances. Of course, the controlling
party is also generally the person with the greatest interest in the goods, and thus the
person with the greatest incentive to furnish the information, instructions, or
documents that will most likely serve to protect its interest in the goods. Therefore,
the obligation under article 55 is, at the same time, also an entitlement.
The first paragraph of article 55 qualifies the obligation on several ways. First,
the information, instructions or documents must be given on time. When they arrive
too late, they are generally useless. Second, the information, etc. must not already
be provided by the shipper or otherwise reasonably available to the carrier. The
carrier should not request the same things twice and the carrier should first explore
38
See article 54(2) (second sentence).
39
40
its own professional skills before it troubles the controlling party with its requests.
Third and finally, there must be a reasonable need for the carrier to avail of the
information etc. to perform its obligations under the contract of carriage.
In practice, the carrier might be unable to contact the controlling party. In
particular, in case a negotiable transport document is blank endorsed, its holder
may be untraceable for the carrier.41 Also, it may be that the controlling party is not
in a reasonable position to provide the requested information. The controlling party
may be, for example, a bank holding a transport document under a Letter of Credit,
without any practical involvement with the goods themselves. In these circum-
stances the carrier may address itself to the shipper in order to obtain the informa-
tion. The name and address of the shipper are often stated on the transport
document, so the carrier can usually locate the shipper. In many cases the shipper
will be in a better position to provide the information. It may also be that, in case the
carrier is unable to locate the controlling party, the shipper may be able to help
identify and locate the controlling party. Sometimes, instead of the shipper, the
documentary shipper is in a better position to provide the information etc, and in
such a case it may be contacted. Article 55(2) establishes a prioritized list of those
from whom the carrier should seek the information that it requires.
10.10 Variation by Agreement
Article 79 provides that the convention is mandatory law “unless otherwise

provided in this Convention”. Article 56 is one of the few instances in which
there is a provision allowing the parties to vary the otherwise mandatory law by
agreement. The provisions on the right of control do not involve matters of public
order but are typically of a trade law nature. Therefore, article 56 allows the parties
to the contract of carriage to agree to:
1. Limit or exclude the rights of the controlling party to obtain delivery en route
and to replace the consignee;42
2. Limit or extend the period that the right of control may be exercised;43
3. Restrict or exclude the transferability of the right of control, but only if the
carrier (a) did not issue a transport document or electronic transport record or (b)
issued either an ordinary non-negotiable transport document, such as a sea
41
In this age of instant communication to and from every place in the world there is no reason why
a controlling party that wishes to be effectively in control of the goods should not make itself
known to the carrier. The importance of proper communication within the scope of the implemen-
tation of a contract of carriage is also one of the main reasons that article 36 obliges the carrier to
state its name and address on the transport document.
42
Art. 50(1)(b) and (c), see sec. 10.3.1.
43
Art. 50(2), see sec. 10.3.2.
262 G. van der Ziel
waybill (as opposed to a non-negotiable transport document requiring surrender

for delivery) or a non-negotiable electronic transport record44; and
4. Vary, upwards or downwards, the conditions, referred to in article 52, under
which a carrier is obliged to carry out the instructions given by the controlling
party.
Article 56, when referring to article 52, makes no explicit exception for article
52(4), which establishes the liability of the carrier for loss or damage to the goods or
delay in their delivery due to its failure to comply with instructions of the
controlling party. But in view of the mandatory nature of the articles 17 to 23 and
59 to 61, the carrier’s liability may be varied only upwards (except as provided
under article 80).45
10.11 Relationship Between the Right of Control

and E-commerce
On the basis of the foregoing in this chapter it may be concluded that the right of
control provisions of the Rotterdam Rules, taken together, provide a level of control
of the goods to the controlling party that is at least equal to, if not better than, that of
the holder of a negotiable transport document.
The difference is that the law applicable to negotiable documents, almost
universally, attaches property law functions to the negotiable transport document:
transfer of the document means transfer of rights in the goods themselves. Since the
right of control provisions of the Rotterdam Rules are new, no established law
exists yet that links the transfer of the right of control of goods carried at sea under
the Rotterdam Rules with a transfer of rights in the goods themselves. In view of the
above conclusion, however, it may be expected that when the parties have the
intention to, simultaneously with a transfer of control, transfer rights in the goods
themselves, the law applicable to the transfer of the right of control will recognize a
transfer of rights in the goods in such a case.
Taking into account that the right of control is a self-sustained right that can be
transferred without the use of a document,46 the provisions of chapter 10 of the
Rotterdam Rules may provide the legal basis for e-commerce business models in
which (negotiable) transport documents (and even negotiable transport records) do
not play a role anymore.47
44
See article 51(1)(b); see sec. 10.5.
45
See article 79(1).
46
See art. 51(1)(b), } 10.5.
47
This future role also carries with it that Chapter 10 includes detailed provisions. As long as the
right of control remains linked with an established documentary practice, this detailedness might
not be needed so much. But when in the future the right of control would function without the
benefit of a documentary practice (anymore), its description must be sufficiently clear.
Then, a seller may sell its goods on the basis of ‘cash against transfer of control’
(‘CATOC’) instead of ‘cash against documents’ (‘CAD’), while the right of control
itself may be transferred electronically by the seller to the buyer. Also, when the
goods are financed by the buyer under a Letter of Credit, the bank and the buyer
may agree that the bank accepts an electronic transfer of control instead of a
negotiable transport document or a negotiable electronic transport record.
In conclusion, Chapter 10 of the Rotterdam Rules is an essential part of the legal
infrastructure that enables overseas buyers and sellers to trade without traditional
transport documents and even without a possible electronic equivalent of these
documents.
References
Sturley M, Fujita T, van der Ziel G (2010) The Rotterdam Rules: the UN convention on contracts
for the international carriage of goods wholly or partly by sea. Sweet & Maxwell, London
Von Ziegler A et al (eds) (1999) Transfer of ownership in international trade. Kluwer Law
International, ICC Publication No. 546
Zunarelli S, Alvisi C (2010) Rights of the controlling party. In: von Ziegler A et al (eds) The
Rotterdam Rules 2008. Kluwer Law International
.
Chapter 11
Jurisdiction and Arbitration Under
the Rotterdam Rules
Zeynep Derya Tarman
Abstract This article analyses the jurisdiction and arbitration chapters of the The
United Nations Convention on Contracts for the International Carriage of Goods
Wholly or Partly by Sea (Rotterdam Rules). The chapters on jurisdiction and
arbitration are based on a generally accepted compromise to encourage interna-
tional harmonization. Chapters 14 and 15 refer only to those states that, according
to Art. 91, agree to be bound by these regulations. This article examines the
chapters on jurisdiction and arbitration and presents the principles outlined in
these chapters.
11.1 Introduction
The United Nations Convention on Contracts for the International Carriage of

Goods Wholly or Partly by Sea (Rotterdam Rules),1 was signed on 23 September
2009 in Rotterdam, Netherlands. The rising traffic of containers due to globaliza-
tion and outdated regulations pursuant to the carriage of goods made it necessary to
review the Hague Rules of 1924, the Amendment Protocol in 1968 of the Hague
Rules of 1924 (The Hague-Visby Rules) and the Hamburg Rules of 1978, which are
actually less favourable to maritime nations.
The Rotterdam Rules provide many regulations regarding the principles of the
carriage contract between the carrier and shipper. These provisions distribute the
risk of damage in international transport between the carrier and the shipper.
Chapters 14 and 15 on the contrary, explain indirectly the shared risks involved.
These chapters provide provisions regarding the procedure. Chapter 14 introduces
1
English text of the Rotterdam Rules: http://www.uncitral.org/pdf/english/texts/transport/rotterdam_
rules/09-85608_Ebook.pdf.
UNCITRAL (United Nations Commission on International Trade Law) (Report of Working
Group III). See http://www.uncitral.org/uncitral/en/uncitral_texts/transport_goods/rotterdam_
travaux.html.
Ass’t. Prof. Dr. Z.D. Tarman
Koç University, School of Law, Istanbul, Turkey
e-mail: ztarman@ku.edu.tr
266 Z.D. Tarman
provisions to the jurisdiction and choice of court in case of a conflict. Chapter 15

proposes provisions regarding arbitration. Although jurisdiction and arbitration are
issues of procedural law, this should not mean that they are unimportant, because the
choice of court is an important criterion that today influences the possibility of filing
an action. Parties try to file an action at the courthouse most favourable, close and
convenient to their interests. Therefore, the parties have the choice of filing actions
at the court which may be more favourable for them (forum shopping). However,
the plaintiff and carrier act differently when deciding on the choice of court. The
plaintiff usually decides at the time of action where to file the action. On the
contrary, the carrier adds an exclusive choice of court agreement to the bill of lading
or any transport document in order to choose the court. For carriage contracts, such
as charterparty or volume contracts, where the parties are on the same level of
negotiation, the parties agree on an appropriate court in favour of both.
The draft of the Rotterdam Rules did not contain any chapters regarding juris-
diction and arbitration due to the fact that the states failed to agree on such
provisions. The Reports of the Transport Law Working Group of the UN Commis-
sion on International Trade Law provided a wide range of opinions regarding the
acceptance of exclusive jurisdiction clauses; if such could be binding on third
parties, and, if these are binding, under which conditions. Not only the content of
the provisions regarding jurisdiction and arbitration, but also their application was
hotly debated.2 In their 20th session in October 2007, Working Group III finally
agreed3 that the application of the provisions regarding jurisdiction and arbitration
will be left to the choice of the states and that the states can always make their
choice. It was also considered an encouraging factor for the states to accept the
Rotterdam Rules by providing this solution. The provisions of Chapters 14 and 15
bind only contracting states that declare in accordance with Article 91 of the
Rotterdam Rules that they will be bound by them. Therefore, it is possible to accept
the Rotterdam Rules without these chapters. Contrary to the previous conventions,
the acceptance of such a fine compromise made it compulsory to compose a more
detailed version of these issues. This article examines the chapters on jurisdiction
and arbitration and presents the principles of these chapters.
11.2 From the Hague and Visby to Hamburg: From National

Law to International Regulations
Before the Hague Rules of 1924, many states regulated the liability pursuant to the
goods in their national laws. However, some of these states, including the USA, did
not regulate the issues of jurisdiction and arbitration in the relevant laws and left the
2
Yvonne et al. 2009, p. 233.
3
Report of Working Group III, 20th Session Report (15–25 October 2007, Vienna), A/CN.9/642
(2007) [20th Session Report ], } 202–205, 216–218.
11 Jurisdiction and Arbitration Under the Rotterdam Rules 267
solutions of such issues to the applicable national laws.4 On the contrary, other
states such as Australia, Canada and New Zealand preferred to limit the application
of the choice of court agreements and arbitration clauses. For example, the Cana-
dian Water Carriage of Goods Act of 19105 contains a provision stating that any
choice of court agreement which excludes or limits the jurisdiction of Canadian
courts is invalid. Although such internal regulations existed, the drafters of the
Hague Rules intentionally left out this issue. During the meetings of the Comite´
Maritime International (CMI), the delegate from Argentina suggested accepting the
jurisdiction of the discharge port. The CMI chairman decided that this suggestion
could not be accepted on the grounds that the jurisdiction issues are not related only
to damaged goods and therefore such an issue should not be mentioned in the Hague
Rules.6
Although the Hague Rules did not make explicit provisions regarding jurisdic-
tion, some national courts decided that the limitation of the carrier’s liability by
contract in accordance to Article 3 paragraph 8 can also be applied to the choice of
court agreements.7 Some courts have interpreted this provision as a prohibition of
all choices of court agreements,8 because the carrier may limit liability by setting
particular obstacles to the demands of the plaintiff. Some courts, on the contrary,
preferred a milder approach. They decided that Article 3 paragraph 8 not only
permits a choice of court agreements, but also that the choice of court agreements,
which causes the application of law systems limiting the liability of the plaintiff, are
invalid.9 During the negotiations of the Hague/Visby Rules, the jurisdiction issue
was raised again and discussed. The sub-commission did not accept this suggestion
and decided that the regime regarding the liability must focus on the principles
regulating the liability of the parties. Finally, the Hague-Visby Rules left the
jurisdiction and arbitration issues to the applicable national laws.
The Hamburg Rules was the first international regime that regulated the juris-
diction and arbitration issues regarding the carriage of goods by sea. It allowed the
plaintiff related to the goods to file the action, or in case of arbitration to request
4
Sturley (2000).
5
Water Carriage of Goods Act 1910, 9–10 Edw. 7, ch. 61, paragraph 5 (Canada). Although this
provision is not in effect anymore, many national laws still provide the provision for an optional
jurisdiction even with the existence of an exclusive jurisdiction agreement. See Maritime Liability
Act 2001, ch. 6, paragraph 46 (Canada).
6
Comité Maritime International, London Conference October 1992, pp. 405–407 (Bulletin no. 57).
Sturley (1990), p. 421.
7
Visby Protocal did not change Art. 3 (8) of the Lahey Rules.
8
Belgian courts and first instance courts of the USA have adopted this interpretation. See Sturley,
Jurisdiction and Arbitration, p. 948, fn. 12.
9
Sample court decrees See High Court of Britain and U.S. High Court : Hollandia, [1983] A.C.
565, 574–575 (1982); Vimar Sequros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U. p. 528,
540–541 (1995). See Sturley, Jurisdiction and Arbitration, p. 948, fn. 13; Sturley, Jurisdiction
under the Rotterdam Rules, p. 3.
268 Z.D. Tarman
arbitration, at a place favourable for the plaintiff (Article 2110 and 22 of the
Hamburg Rules). The plaintiff may choose to file an action in a court that is
significantly related to the carrier or the carriage contract. This list includes the
primary place of business of the carrier, loading and discharging ports and any other
court indicated in the carriage contract. Although the provisions to the jurisdiction
of the Rotterdam Rules are influenced by the Hamburg Rules, there are significant
differences between these two regulations. For example, the Rotterdam Rules allow
under certain conditions a choice (exclusive) of court agreement. Therefore, the
Rotterdam Rules hold the intention of the parties more important than the Hamburg
Rules, but even this is limited.11
11.3 Discussions of the Jurisdiction and Arbitration Chapters

During the Negotiations of the Rotterdam Rules
The draft of the Rotterdam Rules did not contain any chapters regarding jurisdiction
and arbitration, due to the failure to agree on such provisions. When UNCITRAL
(United Nations Commission on International Trade Law) first discussed this issue,
the delegates felt that a provision regarding jurisdiction and arbitration would be
very beneficial, and, for some, even unavoidable.12 But there were also groups that
held the opinion that the Rotterdam Rules should not include these matters. After
one year, when UNICITRAL reviewed this matter, the majority decided that the
Rotterdam Rules should include this issue and adopt the method of the Hamburg
Rules.13 The Office of the General Secretary was authorised to draw up provisions
based on the Hamburg Rules and other rules to decide the issues of jurisdiction and
arbitration.14
During the negotiations, many states expressed the opinion that this issue must
be regulated appropriately, but the opinions conflicted. On one side were states,
10
Hamburg Rules Art. 21 paragraph 1: In judicial proceedings relating to carriage of goods under
this Convention the plaintiff, at his option, may institute an action in a court which, according to
the law of the State where the court is situated, is competent and within the jurisdiction of which is
situated one of the following places: (a) The principal place of business or, in the absence thereof,
the habitual residence of the defendant; or (b) The place where the contract was made provided
that the defendant has there a place of business, branch or agency through which the contract was
made; or (c) The port of loading or the port of discharge; or (d) Any additional place designated
for that purpose in the contract of carriage by sea.
11
Comparative analysis of the Hague/Visby, Hamburg and Rotterdam Rules. See Francesco
Berlingieri, A Comparative Analysis of the Hague-Visby Rules, The Hamburg Rules and
The Rotterdam Rules (http://www.uncitral.org/pdf/english/workinggroups/wg_3/Berlingieri_
paper_comparing_Rotterdam Rules_Hamb_HVR.pdf).
12
Report of Working Group III, 9th Session Report (15–26 April 2002, New York), U.N. Doc.
A/CN.9/510 (2002) [9th Session Report ], } 61.
13
Report of Working Group III, 11th Session Report (24 March-4 April 2003, New York), U.N.
Doc. A/CN.9/526 (2003), [11th Session Report ], } 158.
14
See U.N. Doc. A/CN.9/WG.III/WP.32 (6–17 October 2003, Vienna).
including Britain,15 that were protecting the interests of the carrier and industry
groups; on the other side were states protecting the interests of the party related to
the goods and industry groups. These two groups also had different expectations
from the provisions of jurisdiction and arbitration. The group on the carrier’s
side, even looking mildly at provisions allowing jurisdiction and arbitration
agreements, considered the existence of such provisions as incorrect. On the
contrary, the group on the party related to the goods side suggested that the
Rotterdam Rules should follow the Hamburg Rules, Articles 21 and 22, allowing
the plaintiff related to the goods to choose the court, and therefore protect this
side. There were also groups adopting milder approaches towards both the carrier
and shipper.16
Since the European Union regulated the issue of jurisdiction between the
member states,17 the discussions became even more complex while considering
the legal circumstances of Europe. The member states are not authorised to negoti-
ate an international convention regarding the jurisdiction matter. The European
Commission is the sole authorised body for such matters. Therefore, some active
participants of the negotiations of the Rotterdam Rules could only participate in the
internal meetings of the European Union to participate in the discussions of
jurisdiction. On the contrary, the European Commission, which did not participate
in the discussions of the other chapters, became the main player during the
negotiations of the jurisdiction provisions. Since the European Commission does
not have any legal authorisation on arbitration, each member state participated
freely in the arbitration negotiations. Due to the different authorisations of the
European Commission, the jurisdiction and arbitration issues could not be nego-
tiated as a single issue during the negotiations.
The solution to the jurisdiction and arbitration issues was to accept that it is
impossible to come to a consensus for every matter and thereby to harmonize the
law as much as possible. UNCITRAL decided to leave out matters such as pending
actions and adopted a solution embracing states which could not compromise on the
jurisdiction and arbitration issues.
11.4 Optional Chapters Regarding Jurisdiction and Arbitration
The most important Article of Chapter 14 is Article 74, according to which the
signatory states of the Rotterdam Rules are free to choose whether to comply or not
to comply with the provisions pertaining to jurisdiction. Article 78 also gives the
15
For the opinions of the United Kingdom and Northern Ireland to arbitration see U.N. Doc.
A/CN.9/WG.III/WP.59 (28 November 9 December 2005, Vienna).
16
Suggestion of USA See U.N. Doc. A/CN.9/WG.III/WP.34 (6–17 October 2003, Vienna),
} 30–35.
17
Regulation No. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in
Civil and Commercial Matters (Brussels I Regulation).
270 Z.D. Tarman
same option to the signatory states of the Rotterdam Rules to be bound by the rules
for arbitration or not. This application is called the opt-in application18 and was
found as a compromise for states with different opinions.
A state that wishes to be bound by the jurisdiction and arbitration chapters must
make a declaration in accordance with Article 91 of the Rotterdam Rules. Many states
will most probably make declarations in this matter at the stage of ratification of the
Rotterdam Rules. However, Article 91 paragraph 1 of the Rotterdam Rules states that
such a declaration may be made at any time and Article 91 paragraph 5 states that such
a declaration may be withdrawn at any time. Therefore, a state may ratify the
Rotterdam Rules, but may postpone the decision regarding the chapters on jurisdiction
and arbitration. In addition, a state can also always review such a declaration and may
accept the chapters which the state refused to accept earlier or may withdraw from the
declaration of acceptance. A state is not automatically bound by Chapter 14 or 15 of
the Rotterdam Rules by ratifying the Rules. A court of a state which is not bound by
these Chapters has the freedom to decide jurisdiction and arbitration issues in accor-
dance with the relevant national laws, contracts or any other international statutes.
The contracting states of the Rotterdam Rules may accept the provisions in
Chapter 14 or 15 either by making a declaration or may not give any declaration
regarding these chapters. But nowhere in the Rotterdam Rules is a provision that
indicates that a contracting state must accept both jurisdiction and arbitration
provisions in the same way; in other words, accept both or refuse both. Therefore,
theoretically, a state may declare the acceptance only for one chapter. One sugges-
tion was that the declaration of the states must include both chapters, but this
suggestion was not accepted, because such a declaration, including both jurisdiction
and arbitration, could not be applied to the European Union member states.19 The
European Commission had the sole authority to represent the member states in
matters of jurisdiction but the member states were free to decide on matters of
arbitration.
18
The opt-out application as an alternative to the opt-in, which has been accepted in Article 74 and
78 has also been considered by UNICITRAL. If the opt-out is accepted, the State which does not
wish to be bound by such option must declare such wish. See U.N. Doc. A/CN.9/WG.III/WP.81
(16–27 April, New York, 2007), } 77, 81.
See 20th Session Report, paragraph 203. There is not any difference between declaring and not
declaring regarding the Arbitration Chapter in order to be bound by these provisions. However the
opt-out application for European Union States may cause some difficulties because the European
Commission has the exclusive authority on jurisdiction.
If the representatives of the commission accept the opt-out application, each member state of
the Rotterdam Rules must obtain prior to accepting the rules, even if they later choose the opt-
out option, permission from the European Commission. On the contrary, if they accept the opt-
in application, they don’t need the permission from the European Commission. It has been
decided to make it as easy as possible for European Union member states and accept the opt-in
application as in Article 74 and 78 of the Rotterdam Rules. See 20th Session Report, } 202–205,
216–218.
19
Report of Working Group III, 18th Session Report, (6–7 November 2006, Vienna), U.N. Doc.
A/CN.9/616 (2006), [18th Session Report ], } 278; 20th Session Report, } 217.
11.5 Jurisdiction (Chapter 14)
11.5.1 General Rule: Actions Against the Carrier
Article 66 of the Rotterdam Rules accepts the general rule that the plaintiff has the
right to institute judicial proceedings against the carrier at a competent court of his
choice. This approach is parallel to Article 21 of the Hamburg Rules.20 The plaintiff
may choose the competent court among the relevant courts, which are selected to be
within the frame of reasonable relevance to the transaction. On the contrary, the
carrier is protected against any actions filed at any other courts. This provides a
balance of interests between the carrier and the plaintiff.
Article 66 of the Rotterdam Rules lists the courts where the plaintiff may institute
judicial proceedings against the carrier. It is also explicitly stated that this article is
not applied in the case of an exclusive choice of court agreement between the parties
as in Article 67 and 72 of the Rotterdam Rules. Article 67 of the Rotterdam Rules
provides regulations pursuant to volume contracts and Article 72 provides regula-
tions pursuant to agreements after a dispute has arisen or jurisdiction when the
defendant has entered an appearance; in other words, does not object to jurisdiction.
Furthermore, Article 66 is not applicable in case of arbitration under Chapter 15.
Unless the contract of carriage contains an exclusive choice of court agreement or an
arbitration agreement, the plaintiff has the right to institute judicial proceedings
under the Rotterdam Rules against the carrier at the places set forth in Article 66.
11.5.1.1 Competent Court
According to Article 1 paragraph 30 of the Rotterdam Rules, a “competent court”

means a court in a contracting state that, according to the rules on the internal
allocation of jurisdiction among the courts of that state, may exercise jurisdiction
over the dispute. Such internal allocation may lead to more than one court as
competent. In a federal system the internal allocation may give competence to the
federal and regional courts. In the same way, the internal allocation of jurisdiction
may give the plaintiff the option to choose between a general competent and a
special competent court. The Rotterdam Rules leave such solutions completely to
national laws.
20
Different from the Rotterdam Rules, Article 21 paragraph (b) of the Hamburg Rules indicates the
court at the place of signing as an authorised court for jurisdiction. The Rotterdam Rules do not
mention this court, because the place of signing may be a completely irrelevant place regarding the
performance of the contract and also due to difficulties to locate the place of signing with
electronic transport records.
See Report of Working Group III, 14th Session Report, (29 November-10 December 2004,
Vienna), U.N. Doc. A/CN.9/572 (2004), [14th Session Report ], } 125.
272 Z.D. Tarman
The definition of a competent court is very important in connection with Article

66, because this Article gives the plaintiff the only option to choose a court in one of
the contracting states.21 The definition prevents the plaintiff from carrying the
action under Article 66 to any other court outside the contracting states of the
Rotterdam Rules. This definition explains that a court of a state which is not a
contracting state of the Rotterdam Rules is not a competent court. This very narrow
definition of a competent court, which is that it is only to be a contracting state, is an
important difference between the Rotterdam Rules and the Hamburg Rules.22
11.5.1.2 Competent Courts Listed in Article 66 of the Rotterdam Rules
For any certain dispute, the list of competent courts depends on the transaction
itself. In some cases this list is very short. If the transaction is connected to only one
of the contracting states of the Rotterdam Rules, the plaintiff may institute judicial
proceedings only at one competent court. In some cases the number of courts may
be more. The courts instituting judicial proceedings are dependent on the transac-
tion. Article 66 lists the courts as follows:
1. The domicile of the carrier;
2. The place of receipt agreed in the contract of carriage;
3. The place of delivery agreed in the contract of carriage; or
4. The port where the goods are initially loaded on a ship or the port where the
goods are finally discharged from a ship; or
5. In a competent court or courts designated by an agreement between the shipper
and the carrier for the purpose of deciding claims against the carrier that may
arise under the Rotterdam Rules.
Domicile of the Carrier
Article 66 (a) (i) of the Rotterdam Rules states that the plaintiff has the right to
institute judicial proceedings against the carrier at the domicile of the carrier.
Article 1 paragraph 29 of the Rotterdam Rules defines the domicile for all given
circumstances. A natural person’s domicile is the habitual residence, irrespective of
the nationality of this person. Therefore, the domicile of a Greek person living in
London, for example, would be London. The domicile for a company or other legal
person is the place where this legal person has its (1) statutory seat or place of
incorporation or central registered office, whichever is applicable, (2) central
administration or (3) principal place of business. The existence of the “whichever
is applicable” option in the definition of the domicile for legal persons relies on the
determination of the nationality for the legal person by different law systems.
See 14th Session Report, } 114–115.

21
22
Sturley, Jurisdiction, p. 10.
Today it is rather seldom that the owner of a commercial liner is a natural person.
This definition is especially important in practice to determine the domicile of legal
persons. The statutory seat or place of incorporation or central registered office may
be alternatives. According to Article 1 paragraph 29, the carrier may have more
than one domicile. The place of incorporation is often different from that of the
central registered office or the principal place of business. In cases of more than one
domicile of the carrier, the plaintiff has the right to institute the judicial proceedings
at any court of the domiciles.
In many cases, the domicile of the carrier may not have any connection to the
transaction. For instance, for a carriage from Australia to America, it would be a
coincidence if the domicile of the carrier would be in Europe. Nevertheless, it is a
correct decision to implement the domicile of the carrier to Article 66 as a general
rule for jurisdiction, because it provides a foreseeable place for the carrier to expect
judicial proceedings. The transaction causing the proceedings may not have strong
connections to that particular place, though it is appropriate to give the carrier the
opportunity for a defence at its own domicile. In addition, the domicile of the carrier
would be beneficial at the stage of enforcement for the plaintiff, because in many
cases the defendant has to enforce the court decision at the domicile of the carrier.
Place of Receipt
Article 66 (a) (ii) states that the plaintiff has the right to institute judicial proceed-
ings against the carrier at the place of receipt as agreed in the contract of carriage.
The Hamburg Rules did not include the place of receipt as a place of jurisdiction
(Hamburg Rules Article 21). This difference lies in the scope of application of the
Rotterdam Rules covering also the multimodal carriages. The Hamburg Rules
regulate the “port-to-port carriage”, therefore there is no place of receipt on land
because the port of loading would also be the place of the receipt of goods. Since the
Rotterdam Rules are applied to the whole carriage contract, a place of receipt for a
multimodal carriage contract may be a different place from the port of loading.
Therefore this place of jurisdiction has also been added to Article 66.23
It must be pointed out that the place of receipt is not the actual place of receipt. It
is the place of receipt agreed upon in the carriage contract. The Rotterdam Rules
take the carriage contract itself into account, not the performance of the contract. In
practice, the place of receipt agreed upon in the carriage contract and the actual
place of receipt of the goods is inevitably the same place. The shipper may want to
receive the goods at a different place from that agreed upon earlier in the contract.
In such a case, the shipper usually tries to agree with the carrier on a different place
of receipt. The contract can be amended and the agreed place of receipt and the
actual place of receipt will be the same place according to the amended contract of
carriage.
23
274 Z.D. Tarman
Place of Delivery
Article 66 (a) (iii) of the Rotterdam Rules states that the plaintiff has the right to
institute judicial proceedings against the carrier at the place of delivery agreed upon
in the contract of carriage. The Hamburg Rules did not include the place of delivery
as a place of jurisdiction. As in the place of receipt, this difference lies in the scope
of application of the Rotterdam Rules covering also multimodal carriages.24 Since
the Rotterdam Rules are applied to the whole carriage, a place of delivery for a
multimodal carriage contract may be at a different place from the port of discharge.
Therefore this place of jurisdiction has also been added to Article 66.
The place of delivery is not the actual place of delivery; it is the place of delivery
agreed upon in the carriage contract. This is another example of the Rotterdam
Rules which takes the carriage contract into account and not the performance of the
contract. This difference is important in cases where the carrier delivers the goods
at a different place of delivery as agreed on in the carriage contract. If the parties
have not amended the contract to change the place of delivery, the plaintiff may,
according to Article 66 (a) (iii), file an action only at the place of delivery agreed on
in the carriage contract and not at the courts of the place of actual delivery.
Port of Loading and Discharge
Article 66 (a) (iv) of the Rotterdam Rules states that the plaintiff has the right to
institute judicial proceedings against the carrier at the port where the goods are
initially loaded on a ship or the port where the goods are finally discharged from a
ship. Although the Hamburg Rules have accepted the jurisdiction of the competent
courts at the port of loading and discharge, UNCITRAL discussed whether to
exclude the port of loading and discharge from Article 66 or not.25 Some delegates
argued that for a door-to-door carriage contract, the whole carriage contract has to
be taken into consideration and that it would not be appropriate to provide addi-
tional courts.26 According to this opinion, the ports are only significant in cases of
port-to-port carriages; in other words, if the ports are the place of receipt and
delivery. But UNCITRAL decided after extended negotiations27 to include the
port of loading and port of discharge to the list for practical reasons. Loss and
damage usually occur during handling at ports. Another reason for the appropriate-
ness of the ports as a place of jurisdiction is that all related parties, witnesses and
24
25
See U.N. Doc. A/CN.9/WG.III/WP.56 (28 November-9 December 2005, Vienna), Article 75(c);
U.N. Doc. A/CN.9/WG.III/WP.32 (3–14 May 2004, New York), } 72.
26
Report of Working Group III, 15th Session Report (18–28 April 2005, New York), U.N. Doc.
A/CN.9/576 (2005) [15th Session Report ], } 121.
27
14th Session Report, } 120, 128; 15th Session Report, } 121; Report of Working Group III, 16th
Session Report (28 November-9 December 2005 Vienna), U.N. Doc. A/CN.9/591 (2005), [16th
Session Report], } 10–13, 17.
other means of evidence are at this specific place. On the other hand, the port is
usually the only place where the plaintiff can institute judicial proceedings against
the carrier and the maritime performing party together with a single action.28
Article 66 (a) (iv) accepts the actual ports of loading and discharge although the
place of receipt and delivery of Article 66 (a) (ii)-(iii) is the place of receipt and
delivery agreed to in the carriage contract and the scope of application stated in
Article 5 paragraph 1 (b) and (d) are the ports agreed on in the carriage contract. The
actual port of loading and discharge is usually the agreed port of loading and
discharge in the contract, but in case of any difference, the actual port of loading
and discharge are considered more appropriate for jurisdiction. This appropriate-
ness is supported by the fact that many incidents mainly occur at the port. Finally,
Article 66 (a) (iv) designates only the port where the goods are initially loaded on a
ship or the port where the goods are finally discharged from a ship. Therefore, if the
carriage of sea includes also transhipping during carriage, the port where the goods
are transferred to any other ship would not be evaluated within the scope of
application of Article 66 (a) (iv) .29
Designated Court
Article 66 (b) states that the plaintiff has the right to institute judicial proceedings
against the carrier at a competent court or courts designated by an agreement
between the shipper and the carrier. A choice of court agreement that is included
in the transport document but not specified as exclusive in accordance with the
provisions of Chapter 14, and even when it includes the phrase that it is exclusive,
gives the plaintiff only an additional place to institute judicial proceedings.
The designated court is different from the courts listed in Article 66 (a) in one
aspect. The courts indicated in Article 66 (a) are linked to physical places i.e., the
courts at these places are competent. In many cases, there may be more than one
competent court at such a place. The court designated in Article 66 (b) on the other
hand, is the court itself. During negotiations of carriage contracts, parties usually
agree on a certain court rather than the courts of a certain area. However, the parties
are free to decide how they would like to form their contract. Therefore, there is
nothing that may prevent the parties from designating all the courts at a certain
place as the competent courts. Nevertheless, the text of this Article indicates that it
is possible to designate more than one competent court by an agreement.
As in the domicile of the carrier, the designated court by an agreement may not
have strong connections to the transaction. For instance, for a carriage from
Australia to America it would be a coincidence to designate a competent court in
Europe. However it is appropriate to include the designated court to this list.
28
See Section V/C.
See 16th Session Report, } 15.
29
276 Z.D. Tarman
In practice, it is usually the carrier’s choice to designate a court in the transport

document. Therefore it is understandable that the carrier defends itself at a place of
its choice. In addition, since this is a place indicated on the contract by the carrier
with its consent, it would be a foreseeable place for the carrier.
11.5.2 Application of the Exclusive Choice of Court Agreements
Article 66, providing a general rule for the competent courts, will not be applied in
cases of exclusive choice of court agreements under the rules of Chapter 14.
Consequently, it is crucial to determine under which conditions a choice of court
agreement is exclusive. The Hamburg Rules accept choice of court agreements as
exclusive only if these are agreed to after a dispute has arisen. The Rotterdam Rules
have extended the application area and allow exclusive choice of court agreements
under certain conditions.
11.5.2.1 Volume Contracts
Article 67 of the Rotterdam Rules allows parties to agree on an exclusive choice of

court agreement in the presence of certain conditions. First, the parties have to agree
that the designated court is an exclusive competent court (Article 67 paragraph 1).
Therefore, it would not be possible to designate a court as exclusive without
including a prominent statement that there is an exclusive choice of court agree-
ment. In addition to the prominent statement that there is an exclusive choice of
court agreement, four other conditions must be present to avoid the right of the
plaintiff in Article 66.
(1) The choice of court agreement is contained in a volume contract [Article 67
paragraph 1 (a)].
(2) The volume contract clearly states the names and addresses of the parties
[Article 67 paragraph 1 (a)].
(3) The volume contract is either individually negotiated [Article 67 paragraph 1
(a) (i)] or contains a prominent statement that there is an exclusive choice of
court agreement and specifies the sections of the volume contract containing
that agreement [Article 67 paragraph 1 (a) (ii)].
(4) The agreement clearly designates the courts of one contracting state or one or
more specific courts of one contracting state [Article 67 paragraph 1 (b)].
The first and the third additional conditions are the same as the conditions
of Article 80 regulating the deviation from the Rotterdam Rules. Since deviation
from the Rotterdam Rules is only possible for volume contracts, the exclusive choice
of court agreement must be included in the volume contract. In the same way, as
Article 80 includes the provision of individually negotiated or a prominent statement
for volume contracts,30 Article 67 also demands the performance of the same condi-
tions for an exclusive choice of court agreement to become effective. The choice of
court agreement must be individually negotiated between the parties or must include a
prominent statement that there is an exclusive choice of court agreement and must
specify the sections of the volume contract including that agreement.
The second and fourth additional conditions are not required by Article 80. These
are specific conditions for jurisdiction and arbitration. The reason that the volume
contract must clearly state the names and addresses of the parties is obviously to
prevent difficulties in identifying the parties. This issue becomes significant for
judicial procedures to direct such claims within the time limit of two years.31 The
choice of court agreement must clearly designate one or more than one court of a
contracting state of the Rotterdam Rules [Article 67 paragraph 1 (b)]. The designa-
tion of the competent courts should be studied from three points of view:
(1) Only a court of a contracting state of the Rotterdam Rules can be designated
according to Article 67 as a competent court, because this provision can only be
applied for the “competent” courts limited in Article 66 (b) of the Rotterdam Rules.
According to the definition, a competent court must be a court in a contracting state
of the Rotterdam Rules.32 Also, Article 67 paragraph 1 (b) repeats that the
designated court is limited to be in a contracting state of the Rotterdam Rules.
The plaintiff would not be able to rely on either Articles 66 or 67 to locate judicial
proceedings to a court in a state where the Rotterdam Rules is not applicable.
(2) The choice of court agreement may designate a certain court, list two or more
courts or may designate generally the courts of a certain state.
(3) Even though it is possible to designate more than one court, for the presence of
an exclusive court agreement, all courts must be located in only one state.
A choice of court agreement, which leaves the option to the parties to file an
action in contracting state A or contracting state B of the Rotterdam Rules, does
not comply with Article 67.33
The exclusive choice of court agreement is applicable between the parties of a
volume contract, if all conditions are met. Therefore, the right of the plaintiff to
choose the court in accordance with Article 66 ceases.
11.5.2.2 Third Parties
It is necessary to clarify a definition of the third parties, who are not a party to the
volume contract but are bound by the choice of court agreements. A third party
30
For example, if a volume contract accepts shorter periods or limits the responsibilities, this
matter must be negotiated by the parties or the particular provisions of the Rotterdam Rules subject
to derogation must be explicitly indicated.
31
32
For definition see Rotterdam Rules Article 1 } 30.
33
278 Z.D. Tarman
includes parties to whom the bill of lading is transferred and insurers which cover
the insurance claims. On the other hand, a maritime performing party, such as
discharging personnel for the goods, terminal operators or truck drivers at the port,
is not included in this definition.34
Article 67 paragraph 2 accepted four conditions in addition to Article 67
paragraph 1 to bind a person, who is not a party of a volume contract, to exclusive
choice of court agreements. These four conditions significantly limit the scope of
application. The first condition, Article 67 paragraph 2 (a), demands that the court is
in one of the places as designated in Article 66 subparagraph (a). The place of the
designated court must be either the domicile of the carrier, the place of receipt
agreed to in the contract of carriage, the place of delivery agreed to in the contract
of carriage or the port where the goods are initially loaded on a ship or the port
where the goods are finally discharged from a ship. In practice, a court which meets
these conditions is usually the court at the carrier’s domicile. Volume contracts, by
their nature, contain carriages on many routes which are connected to each other.
There will be different places of receipt, different ports of loading and discharge
and different places of delivery under the scope of a single volume contract.
Therefore, it is impossible to designate a certain place of jurisdiction apart from
the court at the place of the carrier’s domicile for all carriages. Only the carrier’s
domicile would be at the same place for each transaction.
The second condition, Article 67 paragraph 2 (b), states that the choice of court
agreement is included in the transport document or electronic transport record. It is
not sufficient to refer to the choice of court agreement.35 The third condition, to
bind a person who is not a party to the volume contract to an exclusive choice of
court agreement, is to give a timely and adequate notice of (1) the court where the
action shall be brought and (2) verification that the jurisdiction of that court is
exclusive [Article 67 paragraph 2 (c)]. An interesting departure from Article 80,
paragraph 5 is that it is sufficient to give notice of this condition. Article 80
paragraph 5 explicitly states the requirement of the consent of the third party for
derogation of volume contracts, but Article 67 does not seek the consent of the third
party.36 UNCITRAL decided that it is necessary to provide a higher standard of
protection within the scope of Article 80. Although it is an important issue, the
choice of court is a procedural matter and the notice condition is considered
sufficient.37 The content of such notice should not be a problem, because the
volume contract includes the information concerning the court where the action
shall be brought to and an explicit statement regarding the exclusiveness of the
court. One point may cause confusion whether the notice has been given in a timely
34
35
36
Article 80 } 5 of the Rotterdam Rules states that, the terms of the volume contract that derogate
from the Convention, apply between the carrier and any person other than the shipper provided that
such person received information that prominently states that the volume contract derogates from
this Convention and gave its express consent to be bound by such derogations.
37
manner or if such notice is sufficient. The content of the notice will be subject to the
case. The notice must be given in time, before the third party is bound by a legal
transaction, to give him the opportunity to object to the transaction.
Finally, the law of the chosen court must accept that the third party is bound by
the exclusive choice of court agreement [Article 67 paragraph 2 (d)]. Therefore, it is
the internal national law of the court that will decide if the choice of agreement is
applicable to the third party which has not given consent to the choice of court
agreement.38 This issue will mainly arise in cases where the third party consignee
chooses to institute judicial proceedings against the carrier according to Article 66.
If the carrier, in its position of the defendant, objects to the jurisdiction of the court
claiming that the exclusive choice of court agreement binds third parties according
to Article 67 paragraph 2, such court chosen by the plaintiff will find the solution to
its jurisdiction within the internal national law.39 According to Article 67 paragraph
2 subparagraph (d), this particular court has to apply its internal national law to
decide whether the third party, which has not given its consent to the choice of court
agreement, is bound by the exclusive choice of court agreement.40 For states which
accept that third parties are bound by choice of court agreements, the court must
also determine if the other conditions of Article 67 are fulfilled. For states that
prohibit such proceedings towards third parties without consent do not need to
make any investigation to determine the compliance with the other conditions of
Article 67.41 States which do not accept in their internal law that a third party is
bound by choice of court agreements are bound by the other provisions of Chapter
14 but, in relation to these states, the application of Article 67 is limited to the
parties of the volume contract.
11.5.2.3 Agreement After a Dispute Has Arisen
One of the less frequently discussed articles regarding jurisdiction in Chapter 14 is

Article 72, which allows the exclusive choice of court agreements in two cases.
According to Article 72 paragraph 1, after a dispute has arisen, the parties in the
dispute may agree to resolve it in any competent court. The same provision can be
found in the Hamburg Rules as well (Article 21 paragraph 5). Such agreement is not
subject to any written form. Article 3 dealing with the written form requirement
does not refer to Article 72; it refers to Articles 66, 67 and 80. Article 72 paragraph
1 of the Rotterdam Rules accepts explicit agreements of jurisdiction concluded after
a dispute has arisen, but the parties may implicitly agree on a court of choice
agreement. Even in the case of an absence of a written agreement of jurisdiction, if
the defendant appears and does not contest the jurisdiction of the court in
38
39
40
41
280 Z.D. Tarman
accordance with the rules of that court, it is deemed that the defendant is party to the
implicit agreement of jurisdiction. Article 72 paragraph 2 was added for implicit
agreements of jurisdiction in cases after a dispute has arisen.42 If the defendant
appears without contesting the jurisdiction, the court has jurisdiction.
11.5.3 Maritime Performing Party
The explanations clarified above all regard judicial proceedings against the carrier
with whom the shipper has a contractual relation. But in many carriage contracts,
the carrier is not the performer of the contract, but instead makes sub-contracts with
other persons, at least to allow performance of some parts of the contract. Article 19
of the Rotterdam Rules allows the plaintiff in relation to the goods to directly
address the liable maritime performing party to claim the loss and damage directly
from the person responsible for such damage and loss. Consequently, Chapter 14
includes provisions regarding jurisdiction also for such proceedings.
11.5.3.1 Actions Against the Maritime Performing Party
A court with strong connections to the whole carriage contract may not have any
connection to the maritime performing party. For example, in a case of a multi-
modal transport from Berlin to Chicago, the place of receipt of goods (Berlin) has
nothing to do with the performance of a loading-discharging worker at the port of
discharge. Therefore, it would be inappropriate to accept the list of competent
courts in Article 66 for actions against the maritime performing party. Article 68
of the Rotterdam Rules provides the solution with a similar list of the competent
courts of jurisdiction for actions against the maritime performing party.
The competent courts for action against the maritime performing party are listed
under only two paragraphs:
(1) It is considered appropriate in the same way, where the carrier is expected to
defend itself against actions at the courts of its domicile, that the maritime
performing party is also expected to defend itself at the courts of its domicile
(Article 68 subparagraph a).
(2) It is also considered appropriate in the same way, where the carrier is expected
to defend itself against actions at the courts of the place where the carriage
contract is executed (place of receipt, place of delivery, port of loading and
discharging), the maritime performing party is expected to defend itself at the
courts of the place where the carriage contract is executed. For the party which
performs the land part of the sea carriage (e.g., harbour worker for loading,
terminal operator), this place would be the place where the work is performed,
See 16th Session Report, } 62, 65–69; Sturley, Jurisdiction, p. 29.

42
in such a case this would be the port. For the party which performs the sea part
of the sea carriage, this place would be the port of receipt and port of delivery
(Article 68 subparagraph b).
The list of competent courts of jurisdiction for the maritime performing party is
respectively shorter than the list for the carrier in Article 66, because some courts in
the carrier’s list are unnecessary for the maritime performing party. Since the
maritime performing party receives the goods at the port of loading, the place of
receipt and port of loading will coincide. In the same way, the place of delivery for
the maritime performing party is the port of discharge and therefore the same place.
Finally, the designated court by agreement (Article 66 subparagraph b) would not
be applicable, because the maritime performing party is a sub-contractor of the
carrier and does not have any direct contractual relationship with the shipper and
therefore is not in a position to make any choice of court agreements in order to
designate a court.43
Assuming that the maritime performing party has its domicile outside the
territory of the contracting states of the Rotterdam Rules and is performing there,
this leads to the conclusion that no court will have jurisdiction.44 Article 68 does not
provide any competent court of jurisdiction in such a case to the plaintiff in relation
to the goods. In practice, the plaintiff in relation to the goods institutes judicial
proceedings against the maritime performing party in a state which is not a con-
tracting state of the Rotterdam Rules. Here, it would not be possible to apply the
Rotterdam Rules. However, such a result would only lead to that direction in the
case where the maritime performing party has no connection to any of the con-
tracting states of the Rotterdam Rules. Maritime performing parties such as the
handling personnel at the port, terminal operators or warehouse workers are not
bound by the exclusive choice of court clauses in carriage contracts. Thus, Article
69 of the Rotterdam Rules states that judicial proceedings against the maritime
performing party cannot be instituted in another court.
11.5.3.2 Consolidation and Removal of Actions
Although Articles 66 and 68 of the Rotterdam Rules have accepted different lists of
competent courts against the carrier and maritime performing parties, the plaintiff
usually prefers to institute judicial proceedings against the potential defendants in
one action. The plaintiff must choose a competent court which is common to both
lists (Article 71 paragraph 1). If the maritime performing party is acting in one of the
loading or discharging ports, such port, provided it is designated as a contracting state
in the Rotterdam Rules, would be common to both lists. But in some cases it is
impossible to find a court that is listed in both Articles 66 and 68. Then the plaintiff
must start proceedings against the carrier and the maritime performing parties
43
44
282 Z.D. Tarman
according to Article 68 subparagraph (b) at the competent courts of the port where the
maritime performing party has performed the work. In practice, such a port is other
than the loading or discharging port; it is usually the transhipping port. Article 71
paragraph 1 will not be applicable in cases of exclusive choice of court agreements.
An exclusive choice of court agreement would not bind the maritime performing
party unless the parties agree on jurisdiction after a dispute has arisen. A splitting
situation may occur in cases of an exclusive choice of court agreement between the
consignee and carrier in accordance with Article 67 paragraphs 1 and 2: One action
proceeds in state A against the carrier according to the choice of court agreement and
one action proceeds in state B, where the goods have been discharged, against the
maritime performing party.45
The carrier may institute judicial proceedings according to the exclusive choice
of court agreement between the parties in compliance with Article 67 to institute an
action seeking a declaration of non-liability. In addition, the maritime performing
party may institute judicial proceedings according to the exclusive choice of court
agreement in compliance with Article 72 after a dispute has arisen. In the absence of
such exclusive choice of court agreements the Rotterdam Rules provide a regula-
tion to protect the plaintiff’s right to select the forum, which may institute judicial
proceedings against the carrier or the maritime performing party pursuant to Article
66 or 68. According to this provision, in cases where the carrier or maritime
performing party institutes an action seeking a declaration of non-liability or any
other action that would deprive a person of the right to select the forum pursuant to
Article 66 or 68 shall, at the request of the defendant, withdraw that action once the
defendant has chosen a court designated pursuant to Article 66 or 68, whichever is
applicable, where the action may be recommenced (Article 71 paragraph 2).
11.5.4 Recognition and Enforcement
Different from Article 21 of the Hamburg Rules, the Rotterdam Rules include a
provision regarding recognition and enforcement. However, this Article does not
make recognition and enforcement easier to apply and, therefore, it is actually
meaningless. According to Article 73 paragraph 1 of the Rotterdam Rules, when
both states have made a declaration that they are bound by Chapter 14, a decision
made in one contracting state by a court having jurisdiction under the Rotterdam
Rules must be recognized and enforced in the other contracting state in accordance
with the law of the latter contracting state. A court may refuse recognition and
enforcement based on the grounds for the refusal of recognition and enforcement
available pursuant to its law (Article 73 paragraph 2).46 Article 73 paragraph 3
45
16th Session Report, } 71; 20th Session Report, } 199.
46
states that Chapter 14, shall not affect the application of the rules of a regional
economic integration organization that is a party to the Rotterdam Rules, as
concerns the recognition or enforcement of judgements as between member states
of the regional economic integration organization. In case the European Union
declares that it is bound by Chapter 14 of the Rotterdam Rules, the provisions of
recognition and enforcement in Chapter 14 can only be applied to the member states
of the European Union, if such provisions do not contradict the European Union
Regulation.47
11.6 Arbitration (Chapter 15)
Chapter 15, pertaining to rules of arbitration, includes parallel provisions to Chapter

14, pertaining to the rules of jurisdiction.48 To apply Chapter 15, the contracting
states of the Rotterdam Rules must declare in accordance with Article 91 that they
are bound by that Chapter. All contradicting arbitration clauses to Chapter 15 will
be invalid when such a declaration has been stated.
Although the provisions of Chapter 15 reflect the related provisions of Chapter
14, each chapter has a different aim and other grounds of acceptance.49 Liner-
transportations, which constitute the most significant part of the Rotterdam Rules,
usually have choice of court agreements than arbitration clauses. During the
negotiations of the Rotterdam Rules, many states represented the opinion that the
issue of jurisdiction must definitely be regulated, to provide the plaintiff in relation
to the goods a competent court to put forward his action. On the other hand,
arbitration is always accepted for non-liner transportations where charterparty is
applied. Charterparties are usually issued in cases where both parties of the carriage
have approximately the same negotiating power. Therefore, there is no need to
provide the protection of Article 66 to the party in relation to the goods regarding
arbitration.50 However, the absence of any regulation on arbitration in the Rotter-
dam Rules may bear the risk that arbitration could be used to overcome the
provisions of jurisdiction. After the carriers become aware of the fact that they
cannot make any exclusive choice of court agreements for liner transportations
other than in cases of volume contracts, they may use arbitration as an instrument to
avoid the right of the plaintiff in relation to the goods to select the forum according
to Article 66. By setting the rules for jurisdiction, UNCITRAL has also decided to
set the rules for arbitration to avoid a situation in which parties may evade the
provisions of jurisdiction.51 In the light of this information and the provisions
47
Regulation No. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in
Civil and Commercial Matters (Brussels I Regulation).
48
Compare Article 66 and Article 75 } 2.
49
Sturley, Jurisdiction and Arbitration, p. 972.
50
51
284 Z.D. Tarman
detailed in Chapter 15, it appears that the aim of the drafters was not to transfer the
rules for jurisdiction to arbitration. The reason why the rules of arbitration reflect
the jurisdiction rules is to protect the rights previously set for jurisdiction. The
arbitration has been set by a minimum of rules to provide a broad function of
Chapter 14, which enables the plaintiff in relation to the goods to institute judicial
proceedings in an appropriate court.52 The objective of Chapter 15, in cases where
the plaintiff has the right to select the forum in accordance with Article 66, is to
prevent the obstruction of such right by an arbitration clause. But Chapter 15 does
not need to protect the plaintiff from arbitration in cases where the plaintiff does not
have the right to select the forum.53
The negotiation stage of arbitration differs significantly from the negotiation
stage of jurisdiction. First, the participants in negotiation are different. The
European Commission, as the sole authorised body to negotiate in relation to
jurisdiction,54 does not have the same authority in the negotiations of the arbitra-
tion. The states, which had to watch the negotiations silently during discussions
for jurisdiction, had a significant role during the negotiations for arbitration.55
The Secretariat of UNCITRAL was also more active during these negotiations
because of its broad experience in arbitration.56 Second, the legal framework of
jurisdiction and arbitration are different. Although none of the previous interna-
tional conventions, apart from European Brussels I Regulation, formed the
regulations on jurisdiction on an international basis, the New York Convention
on Recognition and Enforcement of Foreign Arbitral Awards of 1958, which has
at the moment a huge number of participants, provides the basic legal arbitration
instrument.
11.6.1 General Rule
Article 75 paragraph 1 of the Rotterdam Rules includes the provision that the
parties may agree to solve any dispute that may arise in relation to the carriage of
goods under the Rotterdam Rules by arbitration. The general rule regarding arbi-
tration contains a parallel regulation to the general rule of jurisdiction. Article 66
provides the right to select the forum in the same way as Article 21 of the Hamburg
Rules.57 Article 75 paragraph 2 of the Rotterdam Rules follows Article 22 of the
52
See 14th Session Report, } 156; 16th Session Report, } 85, 96; 18th Session Report, } 268.
53
54
55
For opinions of Britain and Netherlands See U.N. Doc. A/CN.9/WG.III/WP.54 (28 November-9
December 2005, Vienna).
56
See U.N. Doc. A/CN.9/WG.III/WP.45 (18–28 April 2005, New York).
57
See fn. 10.
Hamburg Rules58 in providing the plaintiff the same rights within the frame of
arbitration. In cases where the dispute is subject to arbitration, the plaintiff may
select the place of arbitration as stated in the agreement [Article 75 paragraph
2 subparagraph (a)] or may choose any place as in Article 75 paragraph 2 [Article
75 paragraph 2 subparagraph (b)].
If the parties decide to refer their dispute to arbitration, the key issue is deter-
mining the place of the arbitration. Chapter 15, pertaining to arbitration, separates
volume contracts containing particular conditions from the other contracts. Article
75 paragraph 2 states that for contracts other than volume contracts and for volume
contracts that do not fulfil the conditions set in Article 75 paragraph 3 or, if
applicable, Article 75 paragraph 4, the plaintiff may choose the following places
as the place for arbitration:
1. Any place designated for that purpose in the arbitration agreement;
2. Any other place situated in a state where any of the following places is located:
(a) The domicile of the carrier;
(b) The place of receipt agreed in the contract of carriage;
(c) The place of delivery agreed in the contract of carriage;
(d) The port where the goods are initially loaded on a ship or;
(e) The port where the goods are finally discharged from a ship.
Compared to the relevant provision in the jurisdiction chapter, one main differ-
ence is evident. In case of litigation, the competent courts are limited to the courts
of the contracting states of the Rotterdam Rules. On the contrary, Article 75
paragraph 2 does not provide the condition that the place of arbitration must be in
a contracting state. The place of arbitration may be in any state.
It is not appropriate to provide a plaintiff a wide selection of places to apply for
arbitration. The Hamburg Rules have been much criticised for this reason.59
Different from litigation, the constituent component of arbitration is its optional
nature. Deciding at a particular place for arbitration under the procedural rules of
that place is not the same as giving consent to arbitration in any other place.
Working Group III decided that allowing more than one place for arbitration does
not comply with the trustworthiness in trade.60 On the other hand, this may also be
considered beneficial. Allowing arbitration at more than one place may contribute
to the development of arbitration in different regions.61 Critics of the Hamburg
58
Hamburg Rules Art. 22 paragraph 3: The arbitration proceedings shall, at the option of the
claimant, be instituted at one of the following places:(a) A place in a State within whose territory is
situated: (i) The principal place of business of the defendant or, in the absence thereof, the
habitual residence of the defendant; or (ii) The place where the contract was made, provided
that the defendant has there a place of business, branch or agency through which the contract was
made; or(iii) The port of loading or the port of discharge; or (b) Any place designated for that
purpose in the arbitration clause or agreement.
59
60
61
286 Z.D. Tarman
Rules argue that the provision of arbitration is not functional and that the carriers
will tend not to insert any arbitration clauses into their bills of lading. Since the
carriers usually prefer not to put any arbitration clauses into their bills of lading and
there are only a small number of bills of lading complying with the Hamburg Rules,
it is not possible to observe whether the Hamburg Rules have such an outcome. But
if Chapter 15 of the Rotterdam Rules has an effect like this, it will be possible to say
that they are successful.62 Therefore, the objective is not to open the gate for a
solution, which is not used in practice for liner transportations. It is to provide
minimum rules to prevent the carriers from misusing the arbitration option to avoid
the jurisdiction clauses. If the carrier intends to avoid the jurisdiction clauses by
selecting the arbitration option, the arbitration will be considered but, in such a
case, the plaintiff will have the right to select the place of dispute resolution.63
11.6.2 Special Rules
The generally accepted rule for arbitration has exemptions similar to those in the
jurisdiction chapter. In some limited situations, to protect the rights of the plaintiff
and customs of the trade, the choice of place for arbitration in the agreement binds
the parties. The plaintiff is not able to choose the place of arbitration.
11.6.2.1 Volume Contracts
As explained previously, the exclusive choice of court agreements are valid under
the conditions of Article 67. The designation of the place of arbitration in the
agreement binds the parties of a volume contract under the same conditions (Article
75 paragraph 3). The arbitration agreement must be a part of a volume contract that
contains the names and addresses of the parties (Article 75 paragraph 3) and must
be individually negotiated [Article 75 paragraph 3 subparagraph (a)] or must
contain a prominent statement that there is an arbitration agreement and specify
the sections of the volume contract containing the arbitration agreement [Article 75
paragraph 3 subparagraph (b)]. These conditions are the same conditions set out in
Article 67 paragraph 1 subparagraph (a) for exclusive choice of court agreements.
But Article 67 paragraph 1 subparagraph (a) states that the designated competent
court in the agreement must be a court of a contracting state of the Rotterdam Rules.
The arbitration agreement does not have to designate a place of arbitration in a
contracting state of the Rotterdam Rules.

62
63
11.6.2.2 Third Parties
As an exclusive choice of court agreement binds third parties under four conditions
defined in Article 67 paragraph 2, in the same way an arbitration clause in a volume
contract also binds third parties under the same conditions (Article 75 paragraph 4).
These conditions are:
1. The place of arbitration designated in the agreement is situated in one of the
places referred to in subparagraph 2 (b) of this Article [Article 75 paragraph 4 (a)].
As in the jurisdiction chapter, the place that meets this condition is usually the
carrier’s domicile.
2. The arbitration agreement is included in the transport document or electronic
transport record [Article 75 paragraph 4 (b)].
3. The person who is not a party to the volume contract must be given timely and
adequate notice of the place of arbitration [Article 75 paragraph 4 (c)].
4. The applicable law must permit that person to be bound by the arbitration
agreement [Article 75 paragraph 4 (d)]. The issue of whether it is possible to apply
the arbitration agreement to a third party without its consent is left to the internal
national laws of the relevant state. The difference lies in the stage where this law is
determined. The jurisdiction chapter states that the law of the court is applicable.
Therefore, it is the internal national law of the court that will decide if the choice of
agreement is applicable to the third party which has not given consent to the choice
of court agreement. Arbitration, on the other hand, leaves the solution to the
applicable law. The court will determine the applicable law according to the rules
of private international law. In other words, the internal law of the court or, in case of
reference to a foreign law, the rules of the foreign law will be applicable.64
11.6.2.3 Non-liner Transportation
The arbitration rules are also different from the rules for jurisdiction in relation to the
scope of application. All carriage contracts within the scope of application of the
Rotterdam Rules are subject to the jurisdiction rules. The arbitration chapter, on the
contrary, does not set rules for most non-liner transportation. Since most non-liner
transportation is left out of the scope of application of the Rotterdam Rules (Article 6
paragraph 2), Article 76 sets exemptions for two special situations of non-liner
transportation. Arbitration has not been regulated for cases where the rights of the
shipper are transferred by a charterparty or other similar contract to third parties or
where the parties agree to establish a contract subject to the Rotterdam Rules that was
initially not subject to the Rotterdam Rules. In these situations, the industry relied for a
long time on arbitration and since there was never a significant problem, UNCITRAL
64
Sturley, Jurisdiction and Arbitration, page 978.
288 Z.D. Tarman
decided to continue the customs in law practice in relation to these situations.65 Many
law systems accept that third parties are bound by the designated place of arbitration in
the arbitration agreement. But this is not always compulsory. Article 76 paragraph 1 of
the Rotterdam Rules states that nothing in the Rotterdam Rules affects the enforce-
ability of an arbitration agreement in a carriage contract in non-liner transportation to
which the Rotterdam Rules or the provisions of the Rotterdam Rules apply. If an
internal national law system restricts the application of arbitration agreements against
third parties, the Rotterdam Rules will not interfere with such a law.
UNCITRAL decided not to discuss the application of arbitration provisions to
carriage contracts, which had become subject to the Rotterdam Rules due to the
agreement of the parties. The absence of provisions for legal transactions outside
the scope of application of the Rotterdam Rules was not considered a cause for
apprehension.66 On the contrary, in relation to charterparty bills of lading and
related legal transactions, Article 76 paragraph 2 accepted some precautions in
order to protect the rights of third parties. The transport document must identify the
parties and the date of the charterparty [Article 76 paragraph 2 subparagraph (a)]
and incorporate by specific reference the clause in the charter party or other contract
that contains the terms of the arbitration agreement [Article 76 paragraph 2 subpara-
graph (b)]. Under these conditions, a third party is bound by the provisions of an
agreement negotiated among the parties of a carriage contract.
11.6.2.4 Agreement After a Dispute Has Arisen
The parties may agree to resolve a dispute by arbitration at any place after such a
dispute has arisen (Article 77). This agreement substitutes a jurisdiction or arbitra-
tion agreement which had been agreed to prior to the dispute.67 As explained in the
jurisdiction chapter,68 after a dispute has arisen the court designated in the choice of
court agreement must be a court of a contracting state of the Rotterdam Rules. On the
contrary, the place of arbitration to be designated in the arbitration agreement may
be in any state.
11.7 Conclusion
The chapters for jurisdiction and arbitration are based on generally accepted
compromise, as are all the Rotterdam Rules, to encourage international harmoniza-
tion. The chapters were prepared with a pragmatic approach by considering the
65
Yvonne et al. 2009, p. 237; Sturley, Jurisdiction and Arbitration, p. 978. Also see 15th Session
Report } 176–179; 16th Session Report, } 88.
66
67
68
See 11.5.2.3.
needs of the industry and are practice oriented. Chapters 14 and 15 bind only those
contracting states that declare that they are bound by these chapters in accordance
with Article 91. These declarations may be given at any time and may be withdrawn
at any time. At the stage of ratifying the Rotterdam Rules, a state may decline both
chapters or may accept to be bound by only one of the two chapters. The main
problem of this optional right is the possibility of obstructing the harmonization of
the Rotterdam Rules on an international basis. The opt-in application, which is not a
part of the Hamburg Rules, may be widely criticized. But it is necessary to
emphasize a general but significant principle which was defined during the prepa-
ration of the Rotterdam Rules: the principle of establishing a broad compromising
foundation. One of the best examples of this principle is, without doubt, the
chapters of jurisdiction and arbitration. During the preparation stages some states
suggested leaving out both chapters; another group maintained that it is necessary to
integrate the chapters. The opposing groups compromised with the acceptance of
the opt-in application. No other solution of the Working Group would establish
such a widely accepted compromise. Without the option to decide to be bound by
the jurisdiction and arbitration chapters, the birth of the Rotterdam Rules would
have been in danger. Even if some states do not give any declaration to the
jurisdiction and arbitration chapters, the ratification itself will still be a very
important step toward the success of the Rotterdam Rules. In this way, the Rotter-
dam Rules will be an important international legal document in maritime law to
harmonize the rules of carriage of goods by sea.
References
Berlingieri F, A Comparative Analysis of the Hague-Visby Rules, The Hamburg Rules and The
Rotterdam Rules (http://www.uncitral.org/pdf/english/workinggroups/wg-3/Berlingieri-paper-
comparing-Rotterdam Rules-Hamburg-HVR.pdf)
Sturley MF (ed) (1990) The Legislative History of the Carriage of Goods by Sea Act and the
Travaux préparatoires of the Hague Rules. Littleton, Co:Fred B. Rothman
Sturley MF (2000) Forum Selection and Arbitration Clauses Under Section 3 (8) of the U.S.
Carriage of Goods by Sea Act: Statutory Intent and Judicial Interpretation. In: Ship’s Operation
and Freedom of Contract: Second International Conference on Maritime Law, vol 141. Piraeus
Bar Association, Piraeus
Sturley MF (2009) Jurisdiction and Arbitration under The Rotterdam Rules, Unif L Rev, Vol. XIV,
pp. 945–981
Sturley MF (2009) Jurisdiction under The Rotterdam Rules (http://www.rotterdamrules2009.com/
cms/index.php?page=text-speakers-rotterdam-rules-2009)
Yvonne B, Charles D, Filippo L, Andrew S, Hilton S, Michael T (2009) The Rotterdam Rules: A
Practical Annotation. Informa Law, London

The United Nations Convention On Contracts For The International Carriage of Goods Wholly or Partly by Sea

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The United Nations Convention on Contracts

for the International Carriage of Goods Wholly

The United Nations

ISBN 978-3-642-19649-2 e-ISBN 978-3-642-19650-8

# Springer-Verlag Berlin Heidelberg 2011

Printed on acid-free paper

Springer is part of Springer Science+Business Media (www.springer.com)

Prof. Dr. Tankut Centel

It is my great pleasure to edit The United Nations Convention on Contracts for

particular. He has supported me and my international academic activities since my

Sariyer, January 2011 Dr. Meltem Deniz Güner-Özbek

1 The History of the Rotterdam Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

2 General Principles of Transport Law and the Rotterdam Rules . . . . . . 63

3 The Scope of Application of the Rotterdam Rules and Freedom

4 Extended Scope of the Rotterdam Rules: Maritime Plus

5 Obligations and Liabilities of the Carrier . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139

6 Construction Problems in the Rotterdam Rules Regarding

7 Compensation for Damage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201

8 Obligations and Liabilities of the Shipper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211

9 Transport Documents in the Light of the Rotterdam Rules . . . . . . . . . . 229

10 Rights of the Controlling Party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249

11 Jurisdiction and Arbitration Under the Rotterdam Rules . . . . . . . . . . 265

1.1 The Work of the Comité Maritime International

1. When the Comité Maritime International (CMI) decided, in 1962, to embark

7. In the following session of UNCITRAL, held in New York in July 2000, a

1.2 The Work of the UNCITRAL Working Group

Core issues selected for discussion

Fourteenth session, held in Vienna from 29 November to 10 December 2004

document but the contract may incorporate such documents by reference as

Sixteenth session, held in Vienna from 28 November to 9 December 2005

The amended text may be found in A/CN.9/591, } 20.

Chapter 10 – Delivery to the consignee

case of insolvency of the buyer, as a consequence of which the seller could be

undelivered, at that time in a separate article – draft article 53 – and now in

A/CN.9/616, } 16, the existing text of paragraph 3 being maintained.

(ii) if no negotiable transport document or no negotiable electronic transport record has

After consideration of the proposal to include an express reference to non-

A concern was raised that the definition of a transport document or electronic

Chapter 13 – Limitation of liability (now Chapter 12 – Limits of liability)

The Working Group agreed to complete consideration of any outstanding issues

focused in particular on draft article 49-Delivery when a negotiable transport docu-

Chapter 2 – Scope of application

Chapter 8 – Transport documents and electronic transport records

It was stated137 that the proposal provided additional explicit protection to

See, for example, A/CN.9/642, } 279–280; and A/CN.9/621, } 161–172.

Chapter 4 – Obligations of the carrier

likely to affect a significant number of cargo claims and disadvantage shippers in

Article 51 (then 50 and now 48) – Goods remaining undelivered

individually negotiated or that it prominently specify the sections of the contract

Resolution Adopted by the General Assembly

States (Members and Observers) and International

This document indicates the sessions at which representatives of States members of

Representatives of States Members of the Working Group and Observers from

Costa Rica: 12th, 19th

Marshall Islands: 11th

(a) United Nations system:

TWELFTH SESSION, Vienna, 6–17 October 2003 (A.CN.9/544)

THIRTEENTH SESSION, New York, 3–14 May 2004 (A.CN.9/552)

SIXTEENTH SESSION (Vienna, 28 November-9 December 2005

– Relation with other conventions (articles 27, 89 and 90)

NINETEENTH SESSION, New York, 16–27 April 2007 (A/CN.9/621)

TWENTY-FIRST SESSION, Vienna, 14–25 January 2008 (A/CN.9/645)

– Obligations of the carrier (chapter 4)