THE INTERNATIONAL CARRIAGE OF GOODS BY SEA. A COMPARATIVE STUDY OF UNIFORM REGULATIONS.
Transports of goods by sea follow the provisions of shipping contracts concluded by the contracting parties, in accordance to their understanding of the concept of storage space reservation needed to ship goods.
Therefore, the carriage of goods by sea can be contracted as a charter party whereby the ship-owner undertakes, in exchange for a sum of money, to transport goods by sea or to allow another person, a charterer, to make use of the ship, in whole or in part to carry out transport operations (Bibicescu, 1983: 119). Chartering aims at making a ship available to the charterer in seaworthy condition and at providing the maintenance of the ship throughout the contract term. For charter-party charter contracts, there are no uniform regulations, so the conclusion, performance and accountability of the Contracting Parties typically follow the provisions included in the model contracts, developed and standardized by international organizations.
The transport of goods by sea can be contracted through the conclusion of a proper shipping contract, which only provides making the movement of goods to their destination. No reference is made concerning the provision of a ship. In practice, the conclusion of a transport contract is tested through the issuance of a transport document. In comparison to charter contracts, contract-based maritime shipping itself is governed by uniform regulations.
2. Uniform Regulations
The first uniform regulations of the shipping contract, found through a bill of lading, were adopted by the Convention on the unification of rules on the bill of lading, adopted in Brussels, in 1924, known as the Hague Rules (1).
The liability established by the Convention, as well as the need to adapt to modern packing of transported goods and the changes in the international monetary market led to the adoption, in 1968, of a modified form of the Hague Rules, known as the Hague-Visby Rules (2).
The Hague Rules and the Hague-Visby Rules have become incompatible with modern transport goods by sea, in which the risks of carriers were considerably reduced.
Identifying a more equitable system for sharing responsibility among the Contracting Parties, that is compatible with modern-engineering used in maritime transport, as well as the need to establish an appropriate monetary limit for international trade and economic reality, led, in 1978, to the adoption of new uniform international shipping regulations, namely the United Nations Convention, regarding the carriage of goods by sea (3), known as the Hamburg Rules, thus achieving an approximation of the shipping rules, to those applicable to the other modes of transport (Cristea, 1999: 75).
The evolution of commercial practices influenced by the use of electronic means of communication and the possibility of shipping functional interdependence with other modes of transport imposed the search for new solutions for uniform rules governing the international carriage of goods by sea. The result was the adoption of the UN Convention on the contract for international carriage of goods, wholly or partly carried out to sea, known as the Rotterdam Rules (4), which contains uniform rules corresponding to the interests of both parties, and modern transport conditions.
3. Field of Application
In the Hague Rules, the place of issue of the bill of lading is taken as the key criterion in determining territorial field of application. Unlike the Hague Rules, which apply only to the shipment of goods that have been issued bills of lading in the Contracting States, the Hamburg Rules apply to every contract of carriage by sea, regardless of the document proving the conclusion of the contract. The connection between a contract and a State Party to the Convention (article 2, paragraph 1) is essential. The criterion retained by the contractual Rules of Hamburg to delimit the field of application, was a step up from the Hague Rules.
The application of uniform rules, which was conditional by the release a bill of lading, could not be accepted, seeing that, maritime practice also uses non-negotiable transport documents.
Hamburg Rules do not apply to charter contracts. However, where a bill of lading is issued under a charter party, the Hamburg Rules apply to such a bill of lading if it governs the relations between the carrier and the holder of the bill of lading and if the latter is not the charterer (art. 2, point 3). A similar wording exists in item 2 of article 5 of the Hague Rules, but they do not provide the inapplicability of the Convention where the bill of lading is the owner and charterer.
Similar to the Hamburg Rules, the delimitation of the territorial field of application, the Rotterdam Rules resort to contractual criteria. Rotterdam Rules generally apply to contracts of carriage in which the place of receipt and the place of delivery, as well as, the charging port and the port of unloading the same shipping are located in different states, provided that at least one of these places find a State Party to this Convention (article 5).
Rotterdam Rules apply only to contracts of carriage, and not to charter contracts or any other employment contracts of a ship; wholly or partly (article 6, paragraph 1). Rotterdam Rules apply even where the existence of a contract, which is excluded from the scope of the relationship between the carrier, on the one hand, and the receiver, hand control or carrier, on the other hand, if the latter do not have the status of contracting party in the initial contracts exempted from the application (article 7). Rotterdam Rules do not apply, unless the parties have entered into a charter party or other contract of lease of the ship; wholly or partly, if a transport document or electronic transport document (article 6, point 2) has been issued.
4. Contract for International Carriage of Goods by Sea
Hague Rules, condition the ratification of the contract with the existence of a bill of lading or other similar document recognized as title for the carriage of goods by sea (article 1, letter b). Hamburg Rules define the contract of carriage by sea as "any contract whereby the carrier undertakes against payment of freight to carry goods by sea from one port to another" (article 1, point 6). A transport contract by sea is also defined as that contract of carriage, which, in addition to sea transport, involves other means of transportation, as far as it relates to carriage by sea (article 1, section 6).
We find a similar definition in the Rotterdam Rules. A transport contract is the contract whereby the carrier undertakes, in return of freight, to move goods from one place to another. The said operation may include other means (article 1, point 1). In fact, one of the aims of the Rotterdam Rules adopted was to update the laws governing the carriage by sea to current technological developments, which allow direct transport from door to door. In this regard, the preamble to the Convention states that the adoption of uniform rules to govern international transport contract, performed wholly or partly by sea, would provide "legal certainty" and would be of particular importance to promoting international trade. Under the current conditions, improvement of transport services involves not only the development of each transport mode separately, but combining them in a single transaction, using a single legal instrument "covering the main aspects of international cargo transport contract" (Delebecque, 2011: 19). This legal instrument is currently governed by the Rotterdam Rules.
In accordance with the Hague Rules, the contract of carriage by sea is concluded between maritime carrier and shipper (article 1 a). The Hamburg Rules designate the shipping carrier using the term carrier, or the person on whose behalf a contract is concluded with a shipper to transport goods by sea (article 1, point 1). Similar to the uniform regulations governing land and air transport, the Rotterdam Rules uses the term carrier for the person who assumes the obligation to move goods. According to article 1, point 10, of the Rotterdam Rules, the term carrier has another meaning, indicating the person who is in possession of the transport document.
The contractor was designated by the term shipper. Hague Rules do not define the shipper. Hamburg Rules (article 1, point 3) and Rotterdam Rules (art. 1, paragr. 8) define the shipper as the person who enters into a contract of carriage with the carrier. As a novelty, Rotterdam Rules specify the notion of "documentary shipper" as the person who, without having the rights of the carrier or contractor, or without participating directly in the contract of carriage, agrees to be passed as shipper, in the transport document or in the electronic transport document (article 1, section 9).
Hamburg Rules define the recipient as "the person entitled to take goods" (art. 1, point 4). The recipient is not a contracting party in the traditional sense of the notion of party. The recipient acquires certain rights in his favour directly from the contract of carriage, and so, by the will of the parties and the legislature can become the holder of obligations, although not part of the contract, in the classical meaning of the term party (Capatana, 1995: 42). Rotterdam Rules, explain in more detail the concept of recipient, meaning that they give details about the various situations that could prove a person's right to claim the goods at destination (e.g. endorsement of the negotiable document in its favour or transfer of rights arising from an electronic shipping document).
5. Proof of Conclusion
In freight transport, the transport document is, until proven otherwise, evidence of a transport contract and the conditions that it regulates. The conclusion of the contract of carriage by sea is proven, most often, by the issued bill of lading. However, under the conditions of short-distance carriage, or where there is no question regarding the rights to the goods during the journey, the use of non-negotiable transport documents or the so-called sea waybills is excluded. In this regard, the Hamburg Rules provide that evidence of a sea transport contract can be proven through a bill of lading or other document (article 1, point 1, point 7, and Article 2 d).
In accordance with the Rotterdam Rules, the contract of carriage shall be determined by issuing the transport document. The transport document may be negotiable or non-negotiable. Negotiable transport document is the document which "indicates, by a reference such as: 'to order', or 'negotiable', or any other words having the same effect in accordance with the law applicable to the document, that the goods were shipped on orders from the recipient or carrier, and which contains no mention of 'non-negotiable'" (article 1, point 15).
Compared with other modes of transport, in which the non-negotiable nature of the documents allowed for their easier replacing with computerized information, maritime transport has identified some difficulties in replacing negotiable transport documents, used most often in the carriage of goods by sea. The bill of lading is a negotiable title, which distinguishes it from other transport documents used in land and air transport, and even by the sea waybill (Paulin, 2005: 229). On the use of information technologies, the Hamburg Rules only provide for the possibility of signing the bill of lading by electronic means, provided that the process does not contravene the law of the country where the bill of lading was issued (article 14, point 2). The possibility of replacing paper documents with electronic messages is stated in the new regulation uniform. According to Article 8 of the Rotterdam Rules, all entries, which must be included in a transport document, may be recorded in an electronic shipping document, with the same effect as the issuance, possession or transfer of a transport document.
Electronic shipping document is defined in the Rotterdam Rules as "information contained in one or more messages issued by electronic communication (5) by the carrier under a contract of carriage, which contains information that is associated with the document in the form of adjacent or related data when issued by the carrier or later as part thereof" which confirms the receipt of goods and the existence of the contract of carriage (article 1, point 18). The electronic transport document may be negotiable if it contains the words "in order" or "negotiable" or any other words having the same effect in accordance with the law applicable to the document; which shows that the goods have been shipped to the order of the shipper or recipient, not containing the words "non-negotiable." In addition, it is required that contract procedures be followed regarding the use of the document contained in the agreement (article 1, point 19, in conjunction with article 9 and article 1, point 23).
6. Liability of the Carrier
The liability established by the Hague Rules was one of the reasons why they were amended by the Protocol of February 23rd 1968 in Brussels, however, Hague-Visby Rules have not fully satisfied the interests of owners of goods, even if, at this moment, the actions against the carrier could not only be based on contractual liability, but also on the tort one (Article 4 b).
The elimination of the possibility of the carrier to rely on disclaimers provided by such agreements, clauses that have become incompatible with modern techniques in transport, was done by adopting the Hamburg Rules, which stated that the liability of the carrier is based on the principle of presumed fault or negligence.
Rotterdam Rules rebut the presumption of fault of the carrier. However, the presumptions established by article 17 reflect the existence of a fair system of sharing responsibility. The person entitled to compensation has to prove that the event causing the damage was caused during the carrier's liability. The carrier may exempt from liability by proving that the damage is not attributable to himself or that it arises from a situation expressly provided in the exceptions list or catalogue reintroduced by Rotterdam Rules (article 17, point 3). Meanwhile, the entitled person can prove that the damage was attributed to another event, other than those listed in the exceptions, and the carrier cannot prove that this event is not attributable to him (article 17, point 4). The carrier may not invoke in his defence any of the situations listed in the exceptions, if the person entitled proves that the loss, damage or delay was due to the situation in which the ship was and the carrier cannot prove that the damage was not due to this situation (article 17, paragraph 5).
Without denying the importance of the first uniform regulations adopted in maritime transport, we cannot but notice that they no longer meet current maritime practices. Rotterdam Rules take into account the practical needs of international freight transport covering some issues left unregulated by the previous Conventions and, at the same time, removing some ambiguities identified in them. Therefore, the Rotterdam Rules will apply to any contract of international carriage of goods wholly or partly by sea, without conditioning it on the existence of a bill of lading or the equivalent of such document. In the context of the new regulations it is sufficient that any of the specified locations (place of receipt, port of loading, place of delivery, the port of discharge) be in a state that has ratified the Convention. Furthermore, the Rotterdam Rules apply whether the parties have chosen to enter into an exclusive sea transport "from one port to another" or a contract carried out "door to door," also involving sea transport. Rotterdam Rules create the setting necessary for the replacement of the transport documents with electronic messages that may have negotiable character. Finally yet importantly, the Rotterdam Rules govern the express obligations of the shipping parties and resizes the rules on the liability of those involved.
(1.) The Convention was adopted in Brussels in 1924, ratified by Romania through Law no. 34/1937, published in the Official Bulletin no. 60/1937, denounced by Romania through Law no. 9/2002, published in the Official Gazette no. 101/2002.
(2.) Romania did not ratify the Hague-Visby Rules.
(3.) Ratified by Romania by means of the Decree of the State Council no. 343/1981, published in the Official Bulletin no. 95 of 28 November 1981.
(4.) The Convention was open for signing on 23 September 2009. For the text of the Convention, see Romanian Journal of Maritime Law, 1-2(2009): 123.
(5.) Information created, transmitted, received or stored through electronic or analogue means, so that it may subsequently be accessed and communicated (art. 1, paragraph 17 of the Rotterdam Rules).
Bibicescu, Gh. (1983), Freight transport by sea in international trade, Bucharest: Sport-Turism.
Capatana, O. (1995), The commercial transport contract, Bucharest: Lumina Lex, 42.
Cristea, A. (1999), "The liability of the carrier in the carriage of goods by sea. Rules of Hamburg 1978," Romanian Journal of Maritime Law, 1: 65-78.
Delebecque, Ph. (2011), "The motorways of the Sea: for a wholly or partly maritime regime," Romanian Journal of Maritime Law, 1: 12-23.
Paulin, Ch. (2005), Droit des transports, Paris: Litec.
ADINA LAURA PANDELE firstname.lastname@example.org Ovidius University of Constanta
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|Author:||Pandele, Adina Laura|
|Publication:||Contemporary Readings in Law and Social Justice|
|Date:||Jul 1, 2017|
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