In Rotterdam, September 23 was an historic day for the global freight industry as 15 countries officially signed the “Rotterdam Rules” into being. Bearing the clumsy title of “The United Nations Convention on Contracts for the International Carriage of Goods (Wholly or Partly) by Sea”, the official word is that they will: • Provide legal certainty and uniformity in the carriage of goods by sea and connected transport (And, with about 90% of world trade being transported by sea, global shipping certainly needs to be governed by widely accepted international rules); • Modernise the liability regimes that currently apply to the carriage of goods by sea; • Cover multimodal carriage of goods that involve a sea leg, while respecting existing unimodal conventions – which also regulate some aspects of multimodal transport; • Address gaps that presently exist, including the important introduction of provisions to facilitate e-commerce; • Strike a balance between the interests of shipowners and shippers in terms of liabilities and the allocation of risks between both parties. Acting as an on-the-spot correspondent for FTW was Andrew Robinson, maritime legal specialist at Durban-based Deneys Reitz – invited to the signing ceremony as part of the Comite Maritime Internationale delegation in his capacity as president of the Maritime Law Association (MLA) of South Africa. Signatories to the convention were: Congo, Denmark, Gabon, Ghana, Greece, Guinea, The Netherlands, Nigeria, Norway, Poland, Senegal, Spain, Switzerland, Togo and the USA. “It is anticipated that many more states will ratify the Rotterdam Rules in due course,” he added, “and that they will incorporate the rules into domestic legislation. “It will be some time, therefore, before the Rotterdam Rules will apply as between contracting states.” These new rules (RRules) seek to update the Hague Rules of 1924, according to Robinson. “Those Hague Rules really reflected a liability regime developed in 1894 in response to the ship-owners contracting out of all liability – which they had to do because they were strictly liable under the English common law,” he said. “The Visby protocol of 1968 did not really change the position much, and the Hamburg Rules of 1978 were never widely accepted - as they did not break with the old rules in a suitably sufficient way.” The latest on the local scene is that SA has incorporated the Hague-Visby Rules into its domestic legislation through the Carriage of Goods by Sea Act, 1986. But the RRules take into account the modernisation of transport, according to Robinson. “Not just the importance of containerisation,” he said, “but also electronic bills of lading; the extended control that ship-owners have in fact over the seaworthiness of the ship; financial levels of liability; the need for some flexibility in the wording of contracts (especially with regard to dispute resolution clauses); and the expanded notion of how goods should be delivered when either negotiated or non-negotiated sea transport documents are used. “The question of jurisdiction for disputes has also been simplified.” In simple terms, the aim of the drafters of the RRules was to make doing business easier and cheaper – and certain provisions have been drafted with that in mind. “It is widely accepted that they are not perfect in every way,” said Robinson. “The RRules are, after all, a negotiated compromise.”
