FTA Scottish Supply Chain Forum Tuesday 14 June 2011 Rose Marie O’Donnell Brodies LLP

FTA

Scottish Supply Chain Forum

Tuesday 14 June 2011

Rose Marie O’Donnell

Brodies LLP

rosemarie.odonnell@brodies.com

The Rotterdam Rules – The UN Convention on

Contracts for the International Carriage of Goods Wholly or Partly by Sea

▪ 23 signatories

▪ Spain ratified

▪ Entry into force one year after the 20th ratification

▪ Hague Rules

▪ Hague-Visby Rules

▪ Hamburg Rules

▪ Rotterdam Rules - 96 articles divided into 18 chapters

EU - Motion

“[The Parliament] calls on Member States speedily to sign, ratify and implement the UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, known as the “Rotterdam Rules”, establishing the new maritime liability system.”

(Par 11 of Motion on the strategic goals and recommendations for the EU’s maritime policy until 2018 (2009/2095(inc)).”

▪ Network System v Uniform System

▪ The Liability Gap

▪ Warsaw/Montreal Conventions

▪ CMR

▪ COTIF – CIM

▪ CMNI

Article 1.1

Definition of a Contract of Carriage (Article 1.1)

“The contract shall provide for carriage by sea and may provide for carriage by other modes of transport in addition to the sea carriage.”

The “Maritime Plus” approach

Article 26

When loss occurs on a non-sea leg• Certain provisions of mandatory unimodal international

conventions will prevail• Liability• Limitation• Timebar

Article 26

But if loss occurs • During more than one leg; or• Can’t prove where loss occurs

Convention prevails

Clause 82

▪ Carriers

▪ Performing parties

▪ Maritime performing parties

▪ Shipper

▪ Documentary shipper

“Performing Parties” means a 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, to the extent that such a person acts, either directly or indirectly, at the carrier’s request or under the carrier’s supervision or control.” (Article 1, 6(a))

Does not include a person retained directly or indirectly by a shipper, documentary shipper, controlling party or consignee instead of by the carrier (Article 1, 6(b)).

“Maritime Performing Party” means a performing party…it performs or undertakes to perform any of the carrier’s obligations during the period between the arrival of the goods at the port of loading …and their departure from the port of discharge…

An inland carrier is a maritime performing party only if it performs or undertakes to perform its services exclusively within a port area.”

Documentary shipper – not the contracting shipper but one who “accepts to be named as ‘shipper’ in the transport document” (Article 1.9)

- liable for any breach of shipper’s obligations.

Eg. Consignor seller under a FOB contract

Carrier’s liability

Article 17

The carrier is liable for loss or damage… as well as delay…if … caused or contributed … during the period of the carrier’s responsibility…”

Exclusions

No exclusion for “act, neglect, or default of the master… in the navigation or in the management of the ship.”

FIOST

Article 13 (2)

Carrier and shipper may agree that the loading, handling, stowing or unloading of the goods is to be performed by the shipper, documentary shipper or the consignee.

Article 17.3 (n)

Reasonable measures to avoid or attempt to avoid damage to the environment.

Categories who benefit from Carriers Defences

▪ Maritime performing parties;

▪ Master, crew and any other person that performs services on board ship;

▪ The employees of the carrier or a maritime performing party.

Shipper’s Duties and Liabilities

Articles 27-29 and 31-32Article 27.1Deliver the goods ready for carriageArticle 27.3Inside the containerArticle 29Obligation to provide information, instructions and documentsArticle 31Contract particularsArticle 32Dangerous goods

Shipper’s Duties and Liabilities

Article 30

Liable for loss or damage sustained by carrier.

Delay?

Strict liability re:▪ Dangerous goods;

▪ Provision of accurate particulars

Categories who benefit from Defences of Shipper or Documentary Shipper

▪ Sub-contractors;

▪ Agents;

▪ Employees.

Volume Contracts

“A contract of carriage that provides for the carriage of a specified quantity of goods in a series of shipments during an agreed period of time. The specification of the quantity may include a minimum, a maximum or a certain range.”

May derogate from the provisions of the convention provided• States that contract derogates• Individually negotiated• Prominently specifies

Volume Contracts

Article 80

Carrier cannot derogate from obligation to:-• Provide seaworthy ship; and• Properly crew, equip and supply (not cargoworthiness)

Shipper cannot derogate from obligation to:-• Provide information, instructions and documents; and• Inform carrier re dangerous goods• Mark and label dangerous goods

▪ Third parties can rely on “any provision” if the carrier agrees to assume other obligations/higher limits of liability

▪ Third parties not bound unless they expressly agree

Jurisdiction

▪ Articles 66 -68▪ Domicile of carrier▪ Receipt▪ Delivery▪ Loading▪ Discharge

Article 74 Declaration that state will be bound

Arbitration

▪ Agreement▪ Notice▪ Volume Contract

Article 78

Declaration that state will be bound

Transport Document

A document issued under a contract of carriage that:

▪ Evidences the carrier’s/performing party’s receipt of goods; and

▪ Evidences or contains a contract of carriage

Status

▪ Non-negotiable transport document

▪ Non-negotiable electronic transport record

▪ Negotiable transport document

▪ Negotiable electronic transport record