The divergence of interests and contractual imbalance between the shipper and the carrier in the contract of carriage has deep historical roots arising from the clash between the two parties. The carrier imposes its terms as the stronger party in the contractual relationship, while the shipper submits to those terms unwillingly. Because such conflict is capable of affecting the flow of international trade and the global economy (1), the need arose to reduce or remove legal obstacles to the development of international trade, thereby contributing to the establishment of global economic cooperation among all states on the basis of equality and equity (2).
The United States Harter Act was enacted in 1893 to prevent shipowners and carriers from using the freedom of contract they enjoyed. It is regarded as the pioneering statute in international law relating to the carriage of goods by sea under bills of lading, and as the foundation from which many laws and international conventions relating to contracts of maritime carriage have drawn inspiration (3). In its wake, the Brussels Convention for the Unification of Certain Rules of Law relating to Bills of Lading emerged in 1924. Its objective was to eliminate the intense conflict between the carrier and the shipper concerning exemption clauses, especially the negligence clause, and to establish contractual balance between them. However, it did not succeed in that respect, and it was criticized for favoring the carrier. Thereafter, the Hamburg Rules appeared in 1978, leaning in favor of the shipper at the expense of the carrier. In 2008, both instruments were superseded by the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, known as the Rotterdam Rules. This Convention laid down legal rules that keep pace with many technological and commercial developments witnessed in the maritime transport sector, particularly container transport, in addition to providing shippers and carriers with a binding and balanced global regime to support the performance of contracts of maritime carriage.
-
First: Concept of the Shipper:
The concept of the shipper is set out in Article 1, paragraph 8 of the Rotterdam Rules, which provides: “the person that enters into a contract of carriage with a carrier.” The simplicity and clarity of this definition are intended to remove any ambiguity in its interpretation by the contracting parties to the contract of carriage, particularly since the shipper resembles persons who act in their own right for their own account in the context of the contract of carriage, or who appoint others to perform such acts on their behalf (4).
-
Second: Obligations of the Shipper:
Chapter Seven of the Convention is devoted to defining the shipper’s obligations toward the carrier (5). The shipper bears a general obligation to exercise due care and diligence toward the carrier and third parties (6), in addition to the following:
- The shipper’s obligation to provide information to the carrier:
The shipper must, in a timely manner, provide the carrier with the information, instructions, and documents relating to the goods that are necessary for proper handling and carriage of the goods, including the precautions that must be taken by the carrier or the performing party (7). The shipper is deemed to warrant the accuracy of the information and instructions it provides to the carrier concerning the goods to be handled and carried properly; failing that, it must compensate for any damage suffered by the carrier as a result of the inaccuracy of such information (8) - The shipper’s obligation to coordinate with the carrier:
Article 28 of the Convention requires coordination and cooperation among the parties to the carriage in order to facilitate the performance of whatever the other party requires for the proper handling and carriage of the goods. The obligation to coordinate is among the matters introduced by the Rotterdam Rules, noting that such obligation was recognized in practice between the carrier and the shipper before this Convention, and the Rules merely codified custom and commercial practice in a legal text (9). - The obligation to carry out loading and unloading operations:
As a general rule, the carrier is responsible for receiving the goods, loading them, handling them, stowing them, keeping them, caring for them, unloading them, and delivering them properly (10). However, the carrier and the shipper may agree that the shipper will undertake the loading, handling, or unloading of the goods (11). The shipper’s obligation to load, handle, and unload is an optional obligation that was rejected by developing states during the discussions held within the United Nations Commission on International Trade Law on the basis that obligations relating to stowage and securing of goods by placing separators are obligations exclusively of the carrier and are not capable of being delegated to anyone other than the carrier, unlike loading operations whose burden may be shifted from the carrier to the shipper (12). - The shipper’s obligations in the case of carriage of dangerous goods:
The Rotterdam Rules impose specific measures on the shipper where the goods are dangerous, as set out in Article 32, which provides: “When goods by their nature or character are or may become a danger to persons, property or the environment, the shipper shall inform the carrier of the dangerous character of the goods in a timely manner before the goods are delivered to the carrier or a performing party. The shipper shall mark or label dangerous goods in accordance with any law, regulations or other requirements of public authorities that are applicable during any stage of the intended carriage of the goods.”
-
Third: The Shipper’s Personal Liability Toward the Carrier:
The shipper is liable for any loss or damage incurred by the carrier as a result of the shipper’s breach of any of its obligations under the Convention (13), whether the breach relates to delivering the goods to the carrier in preparation for their carriage, or to providing the carrier with the data, information, instructions, and documents relating to the goods, particularly the obligation to notify the carrier of the dangerous character of the goods or the failure to place markings indicating the dangerous character of the goods (14), or in cases of defective packaging or lack of packaging, failure to comply with the rules specific to container transport (selecting a container that does not conform to the specifications of the goods), inherent defect of the goods, delay in placing the goods at the disposal of the carrier for carriage, or delay in taking delivery of the goods.
The shipper’s liability is founded on fault that must be proven. The carrier must prove the shipper’s fault, the loss or damage resulting from the shipper’s breach of the aforementioned obligations, and the causal link between them. The shipper is relieved of liability if the cause of loss or damage is not attributable to a fault committed by the shipper or any of its servants, in accordance with Article 34 of the Convention (15).
-
Fourth: The Shipper’s Personal Liability for the Acts of Its Servants:
The shipper is not liable solely for its own acts that breach its obligations. It is also liable for breaches of the obligations imposed on it as a result of acts committed by any person entrusted with the performance of any of its obligations, including its employees, agents, and subcontractors.
The shipper is not liable for acts or omissions committed by the carrier or the performing party acting on behalf of the carrier, to whom the shipper entrusted the performance of its obligations (16).
It follows from the foregoing that Article 34 of the Rotterdam Rules answers what the shipper is liable for and what it is not liable for. It is liable only for acts and omissions in respect of which it is required to exercise due care in performing its obligations, and also for acts and omissions committed by its servants or representatives (17).
How did the Rotterdam Rules establish a balance between parties?
The Rotterdam Rules established a balance between parties by creating a binding and balanced global regime that superseded previous conventions that were criticized for being one-sided. Historically, carriers were the stronger party, imposing terms on unwilling shippers, while later regulations like the Brussels Convention (1924) were criticized for favoring the carrier, and the Hamburg Rules (1978) were seen as favoring the shipper.
The Rotterdam Rules achieve this contractual balance through several specific mechanisms:
Clarity and Certainty: The rules provide a simple and clear definition of the “shipper” (the person entering the contract of carriage) to remove ambiguity and interpretation conflicts between parties.
Codification of Customary Obligations: The Convention explicitly defines the shipper’s obligations toward the carrier in Chapter Seven, including the obligation to exercise due care and the duty to coordinate and cooperate—a practice that existed in trade but was codified by the Rules to facilitate smoother contract performance.
Fault-Based Liability: To ensure fairness, the shipper’s liability is founded on fault that must be proven. The carrier carries the burden of proving the shipper’s fault, the resulting damage, and the causal link between them.
Liability Protections: Under Article 34, the shipper is relieved of liability if the loss or damage was not caused by their fault or the fault of their servants. Crucially, the shipper is not liable for acts or omissions committed by the carrier or a performing party acting on the carrier’s behalf.
Technological and Commercial Relevance: The Rules keep pace with modern developments, such as container transport, providing specific rules that address contemporary maritime sector needs while balancing the interests of both parties.
Flexibility in Loading/Unloading: While the carrier is generally responsible for loading and unloading, the Rules allow parties to agree that the shipper will undertake these tasks providing a framework for negotiation while acknowledging concerns from developing states regarding which obligations can be delegated.
What specific duties does the shipper have for dangerous goods?
Under Article 32 of the Rotterdam Rules, the shipper has specific duties when goods, by their nature or character, are or may become a danger to persons, property, or the environment. These duties include:
- Timely Notification: The shipper must inform the carrier of the dangerous character of the goods in a timely manner before they are delivered to the carrier or a performing party.
- Marking and Labeling: The shipper is required to mark or label dangerous goods. This must be done in compliance with any laws, regulations, or requirements from public authorities that are applicable during any stage of the goods’ intended carriage.
Failure to fulfill these obligations—specifically the duty to notify or the duty to place markings—makes the shipper liable for any loss or damage incurred by the carrier as a result of the breach. This liability is fault-based, meaning the carrier must prove the shipper’s fault, the resulting damage, and the causal link between the breach and the damage. The shipper remains liable not only for their own acts but also for the acts or omissions of any servants, agents, or subcontractors entrusted with performing these obligations.
Overview of the Liability of the Shipper under the Rotterdam Rules
The text examines the legal framework governing shippers under the Rotterdam Rules, highlighting the historical shift from unbalanced maritime contracts to a more equitable global regime. It defines a shipper simply as the entity entering a contract with a carrier and details their specific obligations, such as providing accurate cargo data and coordinating logistics. These regulations also impose strict requirements for handling dangerous goods and allow for the optional delegation of loading tasks. Furthermore, the text clarifies that shipper liability is fault-based, requiring the carrier to prove a breach of duty or negligence. Ultimately, the rules establish that shippers are responsible for their own actions and those of their authorized representatives, ensuring accountability throughout the transport process.
Sources:
1- Qarariyah Quwaydir, Liability of the Shipper in the Contract of Maritime Carriage of Goods, published in the Algerian Journal of Maritime Law and Transport, Issue Four, published on the website “Liability of the Shipper in the Contract of Maritime Carriage of Goods | ASJP”, access date 19/10/2025 at 3:25 p.m.
2- Preamble to the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, Rotterdam Rules 2008, published on the website “United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea”, access date 19/10/2025 at 3:45 p.m.
3- Dr. Ahmad Mahmoud Husni, International Maritime Carriage of Goods, Mansha’at Al-Ma‘arif, Alexandria, second edition, 1979, p. 26.
4- Dr. Imad Al-Din ‘Abd Al-Hayy, The Legal Status of the Shipper in Light of the Rotterdam Rules 2008, published in Majallat Al-Shari‘ah wal-Qanun, Issue Seventy, Thirty-First Year, April 2017, published on the website “The Legal Status of the Shipper under the Rotterdam Rules 2008 (PDF)”, access date 19/10/2025 at 5:31 p.m.
5- Dr. Imad Al-Din ‘Abd Al-Hayy, The Legal Status of the Shipper in Light of the Rotterdam Rules 2008, the aforementioned reference, p. 189.
6- Article 27, paragraph 2 of the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, Rotterdam Rules 2008, published on the website “United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea”, access date 19/10/2025 at 3:45 p.m.
7- Article 29, paragraph 1 of the same Convention.
8- Article 31, paragraph 1 of the same Convention.
9- Dr. Imad Al-Din ‘Abd Al-Hayy, The Legal Status of the Shipper in Light of the Rotterdam Rules 2008, the aforementioned reference, p. 201.
10- Article 13, paragraph 1 of the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, Rotterdam Rules 2008, published on the website “United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea”, access date 20/10/2025 at 1:19 p.m.
11- Article 13, paragraph 2 of the same Convention.
12- Dr. Imad Al-Din ‘Abd Al-Hayy, The Legal Status of the Shipper in Light of the Rotterdam Rules 2008, the aforementioned reference, p. 202.
13- Article 30, paragraph 1 of the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, Rotterdam Rules 2008.
14- Article 32, subparagraph (a) of the same Convention.
15- Article 30, paragraph 2 of the same Convention.
16- Article 34 of the same Convention.
17- Dr. Imad Al-Din ‘Abd Al-Hayy, The Legal Status of the Shipper in Light of the Rotterdam Rules 2008, the aforementioned reference, p. 216.
