The Obligations of the Maritime Carrier under the Rotterdam Convention

In the Preamble to the Rotterdam Convention of 2008 (1) on Contracts for the International Carriage of Goods Wholly or Partly by Sea, the United Nations stated that this Convention was adopted to promote the harmonization of international commercial law, particularly in light of the fact that the existing legal regime governing the international carriage of goods by sea does not adequately take into account modern transport practices, including containerized transport, door-to-door transport contracts, and the use of electronic transport documents. (2)

The Convention is founded on the conviction that the coordination and progressive harmonization of international commercial law, through the reduction or removal of legal obstacles to the flow of international trade, make a significant contribution to global economic cooperation among all States on the basis of equality, equity, and the shared interests of all peoples. (3)

The Rotterdam Convention of 2008 introduced new and advanced provisions, including, by way of example, the regulation of electronic bills of lading and electronic contracting. It is not merely an amendment to the previous treaties governing maritime transport; rather, in the view of some commentators, it establishes rules that strike a balance between the rights and obligations of maritime carriers, shippers, and consignees. (4)

Definitions of Certain Terms under the Convention

The Convention introduced a number of new terms, including: the performing party, the controlling party, the right of control, the documentary shipper, the electronic communication, the electronic transport record, and the volume contract.

Article (1) of the Convention defines several of the principal terms used therein, including:

• Contract of carriage: “A contract in which a carrier undertakes to carry goods from one place to another in return for freight, and which provides that the carriage is by sea, and may provide for carriage by other modes of transport in addition to sea carriage.”
• Carrier: “A person that enters into a contract of carriage with a shipper.”
• Goods: “The cargo that a carrier undertakes to carry under a contract of carriage, including goods, wares, and items of every kind, and including packaging materials and any equipment or containers supplied by or on behalf of the carrier.”
• Ship: “Any vessel used to carry goods by sea.”
• Transport document: “A document issued by the carrier under a contract of carriage that:
  (a) evidences the carrier’s or a performing party’s receipt of goods under the contract of carriage; and
  (b) evidences or contains a contract of carriage.”
• Negotiable transport document: “A transport document that states, by wording such as ‘to order’ or ‘negotiable’, or by other appropriate wording recognized by the law applicable to that document as having the same effect, that the goods have been consigned to the order of the shipper, to the order of the consignee, or to bearer, and that does not state expressly that it is ‘non-negotiable’ or ‘not negotiable’.”
• Performing party: “Any person other than the carrier that performs or undertakes to perform any of the carrier’s obligations under a contract of carriage with respect to the receipt, loading, handling, stowage, carriage, care, unloading, or delivery of the goods, provided that such person acts, directly or indirectly, at the carrier’s request or under the carrier’s supervision or control.”

The Carrier’s Obligations with Respect to the Ship

Although the carrier’s obligation to make the ship seaworthy is traditionally regarded as an obligation arising prior to the maritime voyage, the Rotterdam Convention requires the carrier, before, at the beginning of, and during the voyage, to exercise due diligence to:

(a) make and keep the ship seaworthy;

(b) properly crew, equip, and supply the ship and keep it 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 on which goods are carried, fit and safe for their receipt, carriage, and preservation. (5)

Extending the carrier’s obligation throughout the voyage to ensure the seaworthiness of the ship, its proper crewing, equipment, and supply, and the fitness and safety of its holds and containers for the preservation of the goods, ensures that the ship is capable of withstanding sea conditions, avoiding maritime risks, and safeguarding the cargo.

The Carrier’s Obligations with Respect to the Issuance of the Transport Document

At the outset, the Convention does not use the term “bill of lading,” but instead employs the terms “transport record” or “transport document.” The carrier is therefore required to issue a transport document containing, to the extent furnished by the shipper, the following particulars:

(a) a description of the goods appropriate for carriage;

(b) the leading marks necessary for identification of the goods;

(c) the number of packages or pieces, or the quantity of the goods; and

(d) the weight of the goods, if furnished by the shipper.

The transport document must also include the following contract particulars:

(a) a statement of the apparent order and condition of the goods at the time they were received by the carrier or the performing party for carriage;

(b) the name and address of the carrier;

(c) the date on which the goods were received by the carrier or the performing party, or the date on which the goods were loaded on board the ship, or the date of issuance of the transport document or the electronic transport record; and

(d) where the transport document is negotiable, the number of original negotiable transport documents issued, if more than one original has been issued.

The transport document must also state:

(a) the name and address of the consignee, if designated by the shipper;

(b) the name of the ship, if specified in the contract of carriage;

(c) the place of receipt and the place of delivery, if known to the carrier; and

(d) the port of loading and the port of discharge, if specified in the contract of carriage. (6)

Pursuant to Article (41) of the Rotterdam Convention of 2008, where the transport document contains no reservations, it constitutes prima facie evidence of the carrier’s receipt of the goods as described therein, and the carrier may not adduce evidence to the contrary as against the shipper or the consignee.

The Carrier’s Obligations with Respect to the Goods

During the period of its responsibility, (7) the carrier must properly and carefully receive, load, handle, stow, carry, keep, care for, unload, and deliver the goods. The carrier and the shipper may agree that the shipper, the documentary shipper, or the consignee shall perform the loading, handling, stowage, or unloading of the goods, and such agreement must be stated in the contract particulars. (8)

The carrier or the performing party may refuse to receive or load goods and may take such other reasonable measures as it considers appropriate, including unloading, destroying, or rendering the goods harmless, if the goods constitute an actual danger to persons, property, or the environment, or if it is reasonably foreseeable that they may become such a danger during the period of the carrier’s responsibility. (9)

The carrier or the performing party may also sacrifice goods at sea where such sacrifice is reasonable for the purpose of preserving the common safety or for averting danger to human life or other property exposed to a common peril. (10)

The carrier may not delay delivery of the goods. Delay in delivery occurs when the goods are not delivered at the place of delivery specified in the contract of carriage within the time agreed.

 

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Sources

1. The Rotterdam Convention of 2008 on Contracts for the International Carriage of Goods Wholly or Partly by Sea, adopted at the 67th General Assembly session on 11 December 2008 and opened for signature on 23 September 2009 in Rotterdam, the Netherlands; the rules set out therein are recommended to be known as the “Rotterdam Rules.”
2. Preamble to the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, p. 1.
3. Preamble to the same Convention, p. 4.
4. Dr. Abdel-Fadil Mohamed Ahmed, The Contract of Carriage of Goods under the Rotterdam Convention of 2008, article published in the Journal of Legal and Economic Research, Issue 68, April 2019, pp. 45–46.
5. Article (14) of the Rotterdam Convention of 2008.
6. Article (36) of the same Convention.
7. Article (12) of the same Convention.
8. Article (13) of the same Convention.
9. Article (15) of the same Convention.
10. Article (16) of the same Convention.