1. Shipper‘s Approach to the including Liability Issues
ROTTERDAM RULES,
including Liability Issues
Detlef Neufang
Fachanwalt für Transport- und Speditionsrecht
BWVL
Lengsdorfer Hauptstr. 75
D Bonn

2. Main shortcomings of the Rotterdam Rules (RR)
The whole Convention is too complex and lacks drafting clarity
The convention’s rules are too detailed and complicated. Shippers are – yet – completely unaware of the RR.
Vague wording and high number of uncertainties will lead to litigation .
Conflicts possible between civil and common law interpretation of derogations.
3. Convention is not covering both a sea-leg and a land-leg.
4. The rules on liability are not balanced and unfair – at least from the shipper’s point of view. It marks a radical departure from other Conventions where only modest carrier liability is set but shipper protection from unfair liability terms in bills of lading is guaranteed by mandatory provisions.
5. It may conflict with other European conventions such as CIM and CMR. Such elements of conflict will be left to national law to resolve.

3. The convention’s rules are too detailed – clearly shown by the number of more than 90 articles – and too complicated.
Shippers are – yet – completely unaware of the RR.
They were barely involved in the UNCITRAL work –group on the RR:
- European shippers were absent until the late 2005 and missed the first years of work
Only one American shippers’ association embedded into the official U.S. delegation, whose voice was practically never heard, has attended the works since the beginning
No Asian or South American shippers have appeared
In contrast the maritime world was strongly represented either as advisers in the national delegations or in numerous NGO
The convention’s rules are too detailed and complicated. Shippers are – yet – completely unaware of the RR.

4. Vague wording and high number of uncertainties will lead to litigation .
The wording of the RR is poor, full of cross references and loaded with unclear or negative definitions. Even for lawyers the convention is hard to read; e.g. Art. 17 and 80 RR
Conflicts are possible between civil and common law interpretation of derogations.
If the Convention States end up with different interpretations, the RR will fail in reaching their main objective to unify the law of carriage of goods by sea.

5. Convention is not covering both a sea-leg and a land-leg.
The Convention does not cater for multimodal transport operations without a sea leg so a supplementary Convention will be needed one day. Therefore, a real multi-modal convention would have been highly preferable.
The application of maritime law on the land leg causes risks for national carriers as well as for shippers

6. The rules on liability are partly unfair – at least from the shipper’s point of view., e.g.:
Carriers have the right to limit liability not only for loss of or demage to cargo but (Art. 59 I) for any breach and no liability for delay unless agreed (Art. 21).
Shippers will be liable without any right to limit liability for incorrect information to the carrier (Art. 79 IIb), although the carriers enjoys the right to limit their liability for incorrect information to the shipper.
“Volume contracts” (Art. 80) allow almost total derogation by carriers but not by shippers

7. It may conflict with other European conventions such as CIM and CMR
It may conflict with other European conventions such as CIM and CMR. Such elements of conflict will be left to national law to resolve.
How national courts will deal with this conflict is uncertain. Italy – or Italian courts - does not consider and respect the CMR being mandatory and treat them as General Terms and Conditions: So what can we expect from a court in Baltimore or Bangkok…

8. Benefits provided by RR compared to Hague/Visby
Deletion of the defence of error in navigation and management of the ship
Rules on electronic procedures
BUT these benefits could be provided in a much easier way, e.g. by amendments of the Hague Rules, the Hague/Visby Rules or the Hamburg Rules or by the Protocols to these conventions.

9. Shippers can live within Hague and Hamburg systems – and they can surely live without the Rotterdam Rules.
It is preferable to have working – and fair – national or regional legal systems than an unbalanced international instrument.