CHAPTER 1.THE EMERGENCE AND APPLICATION OF THE ROTTERDAM RULES&Professor D Rhidian Thomas

Formative history

Contracts to which the Rules apply

Contracts for the international carriage of goods wholly or partly by sea

Contract of carriage

Goods

Wholly or partly by sea

International carriage

Connection with Contracting States

Contracts to which the Rules do not apply-Excluded contracts

Introduction

Exclusion of certain contracts in liner transportation

Inclusion of certain contracts in non-liner transportation

Application of the Rotterdam Rules to third parties who are not original parties to an excluded contract

Carrier's period of responsibility under a contract of carriage to which the Rotterdam Rules apply

The enigma of volume contracts

Introduction

The special provisions

The American idea

The idea accepted and re-drafted

Limitations on the right to vary

Pre-conditions to the validity of a derogation

Volume contracts and third parties

Jurisdiction and arbitration clauses

A final thought about volume contracts

Conclusion

CHAPTER 2.FROM TREATY TO TRIAL-THE IMPLEMENTATION OF THE ROTTERDAM RULES&Michael Harakis

The treaty

UK government policy

Convention state obligations

Interpretation under the VCLT

Interpreting the Interpretation Article

Continuous interpretation

Volume contracts as an example

Finally

CHAPTER 3.INTERPRETING THE INTERNATIONAL SEA-CARRIAGE CONVENTIONS:OLD AND NEW

Simon Rainey QC

Introduction

English legislative technique to treaty implementation

General principles of treaty interpretation

(1)"Broad principles of general acceptation"

(2)The Vienna Convention

Article 31:"The ordinary and natural meaning"

(1)The authentic language of the Convention

The Hague Rules

The Hague-Visby Rules

The Rotterdam Rules

(2)"In good faith"

(3)"Ordinary meaning"

(4)Context,object and purpose

Article 32:"Supplementary means of interpretation"

(1)Publicity and availability

(2)The requisite standard for reception and use

(3)The "bull's eye" approach

Uniformity and the law in other jurisdictions

The use of subsequent conventions

The Rotterdam Rules and special aspects of interpretation

(1)General drafting technique

(2)Article 2 and "good faith"

(3)A text divorced from English sources

Conclusions

CHAPTER 4.FREEDOM OF CONTRACT AND THE ROTTERDAM RULES:FRAMEWORK FOR NEGOTIATION OR ONE-SIZE-FITS-ALL?&Professor Andrew Tettenborn

Introduction

The scheme of the Rotterdam Rules and the anti-avoidance provisions-an overview

Rotterdam:changes in the compulsory regime

Compulsory regime extended to more forms of carriage contracts

Additions to the carrier's duty

The shipper's duty set in stone

Choice of jurisdiction rigidified

The "volume" exception

Rotterdam:clarifications

FIOS ("free in,out,stowed") clauses

The extent of carriage

Rotterdam:uncertainties

Carrier or freight intermediary?

Identity of the carrier and the demise clause

The charter exception

Conclusion

CHAPTER 5.MINIMAL MUSIC:MULTIMODAL TRANSPORT INCLUDING A MARITIME LEG UNDER THE ROTTERDAM RULES&Professor Ralph de Wit

The Rotterdam Rules do not constitute a comprehensive multimodal regime

General concepts

The nature of the multimodal regime in the Rotterdam Rules

Article 26 RR

Carriage preceding or subsequent to sea carriage

Incidence of the period of responsibility

Localised loss,damage and delay

Precedence only for international conventions

Hypothetical contract

Precedence for limited subject matter only

Precedence of mandatory regimes only

Article 82 RR

International conventions governing other modes of transport

Existing international conventions

Carriage by air

Carriage by road

Carriage by rail and by inland waters

The scope of the unimodal conventions

Conclusion

CHAPTER 6.THE DUTIES OF CARRIERS UNDER THE CONVENTIONS:CARE AND SEAWORTHINESS&Andrew Nicholas

Introduction

Relevant Provisions of the Hague/Hague-Visby Rules and the Rotterdam Rules

The Locus Standi of containers

"Jordan II":Codification

On-going duties of seaworthiness and cargoworthiness

Conclusion

CHAPTER 7.PACKAGE LIMITATION AS AN ESSENTIAL FEATURE OF THE MODERN MARITIME TRANSPORT TREATIES:A CRITICAL ANALYSIS&Professor Marc A Huybrechts

Package limitation in the three main transport treaties

Some background facts regarding global/or tonnage limitation and package limitation

Tonnage limitation

Package limitation:historic origin and justification

The formation of the Hague Rules,the principle of limitation is not challenged and the "no-joke" approach

The 1968 Visby Rules:what changes have been introduced?

The Hamburg Rules

The Package limitation in the Rotterdam Rules

The basis of the limitation amount

The El Greco decision

The MV Elbe decision

The declaration of value

Limitation for losses caused by delay

Loss of the benefit of limitation of liability under the Rotterdam Rules

Loss of the right to limit and deck cargo

Limitation of actions under the Rotterdam Rules

Conclusion

CHAPTER 8.EXCLUSIONS OF LIABILITY&Julian Clark and Jeffrey Thomson

Introduction

The frameworks of the carrier's liability:The shifting burdens

The Hague Rules exceptions

Exceptions introduced by the Rotterdam Rules

The Rotterdam Rules and "Volume Contracts"

Conclusion

CHAPTER 9.MISDELIVERY CLAIMS UNDER BILLS OF LADING AND INTERNATIONAL CONVENTIONS FOR THE CARRIAGE OF GOODS BY SEA&Simon Baughen

Introduction

The nature of the obligation in contract and conversion

Do misdelivery claims fall under the Hague and Hague-Visby Rules?

Misdelivery and the Hague-Visby exceptions and limitations

Express exceptions and misdelivery

Contract or conversion? Measure of damages

Non-contractual claims for misdelivery

Misdelivery suits under the Hamburg Rules

Misdelivery suits under the Rotterdam Rules

(1)Delivery under the Convention

(2)Defences under the Convention

(3)Compensation for misdelivery

(4)Claims in tort/bailment

(5)Misdelivery and maritime performing parties

Conclusion

CHAPTER 10.SOME REMARKS ON THE ALLOCATION OF THE BURDEN OF PROOF UNDER THE ROTTERDAM RULES AS COMPARED TO THE HAGUE (VISBY) RULES&Dr Nick J Margetson

Introduction

Duties of the carrier and his rights and immunities under the H(V)R

Overriding obligation

Exceptions

The burden of proof in article 4(1) H(V)R

The burden of proof in article 4(2)q H(V)R

The burden of proof under the H(V)R in general

The Glendarroch rule

The allocation of the burden of proof based on the bailment doctrine

Tetley

H(V)R:interim conclusion

H(V)R:the author's view

Example 1:nautical fault (article 4(2) H(V)R)

Example 2:fire (article 4(2)(b) H(V)R)

Example 3:perils of the sea (article 4(2)(c) H(V)R)

Example 4:the q-exception (article 4(2)q)

H(V)R:conclusions

RR:duties of the carrier and his rights and immunities

Duties

Rights and immunities

RR:allocation of the burden of proof in general

The intent of the RR

RR:examples

Example 1:the nautical fault exception

Example 2:the fire exception

Example 3:perils of the sea

Example 4:article 17(1) and 17(2) RR

RR:conclusions

CHAPTER 11.DUTIES OF SHIPPERS AND DANGEROUS CARGOES&Frank Stevens

Introduction

The duty to pay freight

The duty to deliver the goods ready for carriage

The duty to provide information

Information required to properly handle and carry the goods

Information required to comply with laws and regulations

Information required to issue the Bill of Lading

Knowingly misstating nature or value of the goods

Additional information during the course of the carriage

Liability of the shipper

Principle:fault-based liability

Exception:strict liability

Liability for delay

Shipper's liability for other persons

Liability of the documentary shipper

Dangerous goods

What are "dangerous goods"?

Shipper's duties with respect to dangerous goods

Shipper's liabilities with respect to dangerous goods

Carrier's rights with respect to dangerous goods

The "duty" to give notice of loss

CHAPTER 12.DECK CARGO:SAFELY STOWED AT LAST OR STILL AT SEA?&Dr Susan Hodges and David A Glass

Introduction

The position under Anglo-American common law

Cargo stated as being carried on deck and is so carried:claused bills of lading

No indication of deck carriage:clean bills of lading

The English perspective

The US approach:quasi-deviation

The Tarago approach

Excuses for carriage on deck

Consent

Express consent

Liberties and duty of care.

Implied consent

Custom

Custom of stowage on container ships and specialised carriers

Reasonable deviation

Dangerous goods

Exceptions of liability

The Hague-Visby Rules:article IV Rule 2(A)-(Q)

The Hamburg Rules

The Rotterdam Rules

A fault-based regime of liability and defences:article 17(2) and (3)

Non-permissible deck carriage

Exclusively caused by their carriage on deck

Not exclusively caused by their carriage on deck

Permissible deck carriage

Permissible deck carriage under Article 25(l)(a) and (c)

Permissible deck carriage under Article 25(l)(b)

Limitation of liability

Conclusion

CHAPTER 13.TRANSPORT DOCUMENTS UNDER THE INTERNATIONAL CONVENTIONS&Professor Francis Reynolds QC

Introduction

The Hague Rules

The Hague-Visby Rules

The Hamburg Rules

The Rotterdam Rules

CHAPTER 14.ELECTRONIC DOCUMENTS AND THE ROTTERDAM RULES&David Martin-Clark

Introduction

The CMI Rules on Electronic Document Interchange

The UNCITRAL Model Law on Electronic Commerce

The carriage of goods

UNCITRAL Model Law on Electronic Signatures

The Rotterdam Rules and electronic commerce

Practical experience with electronic bills of lading

Bolero

ESS:Electronic Shipping Solutions

CHAPTER 15.IMPACT OF THE ROTTERDAM RULES ON THE HIMALAYA CLAUSE:THE PORT TERMINAL OPERATORS' CASE&Professor Jason Chuah

Contexts and considerations

Replication of the Himalaya Clause by Treaty

The scope of the application of the Rotterdam Rules and port terminal operators

Himalaya-type protection and the period of responsibility

What constitute the "defences" under articles 4 and 19?

Effect of deviation on the automatic Himalaya-type protection

Indemnities and the automatic Himalaya-type protection

Conclusion

CHAPTER 16.JURISDICTION AND ARBITRATION&Professor Yvonne Baatz

Introduction

The current international position

The Rotterdam Rules

Declaration by an EU Member State or the European Union

Party choice and volume contracts

Exclusive court jurisdiction agreement in a volume contract between the shipper and the carrier

Exclusive jurisdiction agreement in a volume contract between the carrier and someone other than the shipper

Jurisdiction agreement concluded after the dispute has arisen

Submission to the jurisdiction of a competent court

Where there is no valid exclusive jurisdiction agreement

Action against a maritime performing party

Arrest and provisional or protective measures

Consolidation of actions

Preserving choice of jurisdiction by the cargo interests

Recognition and enforcement

Comments on Chapter 14 on jurisdiction

Arbitration

Non-liner transportation

Comments on Chapter 15 on arbitration

Conclusion

APPENDICES

1.The Rotterdam Rules

2.The Hamburg Rules

3.The Hague-Visby Rules

4.The Hague Rules