Harvard Sample Comparison Of Rotterdam And Hague Visby Rules

Rotterdam and Hague Visby Rules 1

COMPARISON OF ROTTERDAM AND HAGUE VISBY RULES

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Rotterdam and Hague Visby Rules 2

Table of Contents

Rotterdam and Hague Visby Rules ................................................................................................. 3

Introduction ................................................................................................................................. 3

The Period of Application and Responsibility Period for the Carrier ............................................ 3

The Carrier’s Liability for other Persons ........................................................................................ 4

Servants, Agents, and Independent Contractors’ Liability ............................................................. 4

Notice of Loss, Damage, or Delay .................................................................................................. 5

Deck Cargo ..................................................................................................................................... 7

Obligation and Liability of the Shipper .......................................................................................... 8

Delivery of Goods by the Carrier.................................................................................................... 9

Liability Limits and the Suit Time ................................................................................................ 10

Loss of limitation of Liability ....................................................................................................... 11

Jurisdiction and Arbitration .......................................................................................................... 11

Freedom of Contract ..................................................................................................................... 12

Reference List ............................................................................................................................... 14

Rotterdam and Hague Visby Rules 3

Rotterdam and Hague Visby Rules

Introduction

Rotterdam and Hague-Visby Rules outline contract of carriage’s definition which is

different concerning the description and the provided obligation for the carrier. For instance, in

the Rotterdam Rules, it describes the carriage of commodities from one particular location to the

other. Contrarily, the Hague-Visby Rules fails to bring forth such a definition, but instead just

attempts to provide a connection to the ideology on a contract of carriage to the bill of landing.

This situation has led to most scholars settling on the motion that The Hague-Visby Rules just

adopts a documentary approach. However, universally, a contract is provided with a definition

based on the duties of the involved parties. It calls for a comprehensive analysis of salient

features of The Rotterdam and Hague-Visby Rules, which can mostly be understood by

analyzing the differences effected by Rotterdam Rules on the perspective of both the shipper and

the ship owners.

The Period of Application and Responsibility Period for the Carrier

Both geographically and functionally, the period of application of the Convention tends

to be usually broader. Treitel et al (2017) elaborates that it may not only fail to be applicable

geographically to any maritime carriage that is outgoing as provided in the Hague-Visby Rules

as in the case of an inbound maritime carriage. Although the Convention’s scope has

experienced rapid expansion as for the case of Rotterdam and Hague-Visby Rules, it has failed to

be an entirely multimodal Convention and hence can only be described a "maritime plus" tool

(Thomas 2014). The carriage must always be global and have a direct linkage to a well-known

states in the contract. Although, the applicability of the Hague-Visby Rules fail in a contract

Rotterdam and Hague Visby Rules 4

from a port found in a State that is not in contract to a port located in a State contract. The

Rotterdam Rules tend to provide a link between the geographical factors as the receipts of

delivery and the ports used in loading and discharge (Hung 2015). This connection is because

Rotterdam Rules is applicable also for the case of door-to-door contracts in which case the

receipt and delivery may be fully inland.

Besides, the above convention tends to be applicable on the Rotterdam Rules for the case

in which the contracts of the carriage where the place where the delivery and receipt location are

not in States, and the sea carriage’s port of loading and discharge are not in the same. However,

Talal Hamad (2016) notes that place of receipt, the location of loading port, delivery place, and

discharge port are all in the Contracting State. According to Sun-ok Kim (2012), the Convention

functionally tends to extend to all forms of documents for transport in the relatively liner traffics-

not just for the case of the bills of landing- like the sea waybills.

The Carrier’s Liability for other Persons

Article 18 outlines the carrier’s liability for other individuals as provided by the

Rotterdam Rules. It states that the carrier remains solemnly liable for any breach of the outlined

obligations in the Convention resulting from the employees of the ship-owners (Baatz et al

2013). Contrarily, Hague-Visby Rules states that neither the ship-owners nor the vessel shall

bear the responsibility for the loss or damages caused by the carriers' employees and fire

resulting from an unavoidable cause on the carrier.

Servants, Agents, and Independent Contractors’ Liability

In case of Hague-Visby Rules, action is taken against carrier’s employee; then the

affected servant will have to bear responsibilities for losses incurred by the carrier. Rotterdam,

Rotterdam and Hague Visby Rules 5

on the other hand illustrates that a maritime performing party is subjected to the responsibilities

and the liabilities imposed on the carrier according to the convention and remains entitled to the

defenses of the carrier and liability limits as provided in the convention (Patwari 2014). These

entailed the instances when the party was performing maritime received goods to be carried or

delivered in a state in charge of contracting. All these are to help with facilitating multimodal

transport of the carriage goods.

Notice of Loss, Damage, or Delay

As researched by Girvin (2011), the carrier has a responsibility of properly and in a cool

manner handle- including handling, storing, carrying, unloading, and delivering- goods to do so

with utmost diligence concerning the seaworthiness of the ferrying vessel. Girvin (2011) further

illustrates that the process entails how it’s manned, the equipment used, and the safety of the

carriage of the cargo. Notably, the Convention provides that the obligation needs to be a

continuing one all through the course of the voyage. Based on the Hague-Visby Rules, a

restriction applies on the obligation of the due competence to the course of any given voyage.

The carrier’s liability for any incurred loss, damages, or even delay tend to be considered

as being fault-based. According to Talal Hamad (2016), it is extensive that the existing regimes

of liability due to the compilation of the loss accrued by the negligent exception of navigation

and the extension of the obligation of the exercise as a result of the attempt to make diligence of

making the ship seaworthy. Møllmann (2016) however illustrates that convention has a series of

exemptions, which have similarity but tend to be more extensive than the one highlighted by The

Hague-Visby Rules. This series is about the presumptions of the absence if the carrier’s fault,

with an onus on the carrier to help with sustaining the presumptions and also prove the omission

Rotterdam and Hague Visby Rules 6

of his faults (Girvin 2011).Importantly, the list of some of the things exempted is inclusive of

any case of fire on the ship. The list proceeds to accommodate the current concerns, with also

new menaces like terrorism being exempted.

The convention has a systematic method that helps with assigning any burden of proof

between the claimant and the carrier when trying to determine the liability of the loss, any case

of damage, or even a delay (Hung 2015). The Convention proceeds by providing that the shipper

only has liability to the point that its breach of its duties led to the incurred loss, damage, or even

delay. According to (Girvin 2011), the Convention also provides parties with an allowance of

agreeing to the provisions related to the liability for pure loss of economics arising due to delay

in the case time for delivery is the agreement amid the ship owners and the shipper.

As researched by (Djadjev 2017), the anticipated perils in Article 4 Rule 2 as provided in

the Hague-Visby Rules are further sub-divided into a pair of groups: which includes actual

exemptions from liability and ability to reverse the burden of proof. The exemptions are the ones

outlined on rule 2 (a), and 2 (b); then reversals regarding the proof burden are the ones outlined

in Rule 2 (c) to (p). For the case of Rotterdam Rules, the exemption rules have been removed

because the courier has the mandatory responsibility of any default caused by its workers. The

other excluded risks have been maintained and others are added directly or even better regulated

(Baatz et al 2013). For instance, the ones found from (h) to (o) on the infamous Hague Visby

Rules. Now considering fire exception, there is the unavailability of Hague Visby Rule if the fire

resulted from actual fault and the ship owner's negligence.

Rotterdam and Hague Visby Rules 7

Deck Cargo

The Convention provides and allowances for the carriage of loads on decks when such

type of carriage is allowed by the lay, or it is undertaken as a result of the contractual agreement

or by known customs of trade (Berlingieria 2009). It can also be allowed if the cargo to be

ferried is in containers which are fit to be carried in deck. The convention also gives an

allowance for a systematic regime allowing deck carriage. Specifically, it indicates that in the

case where the deck carriage is done according to the requirements of the law then, the ship-

owner does not take liability for any loss, damage, or delay resulting from particular risks

encountered during deck carriage (Djadjev 2017). All of the other liabilities caused by deck

carriage will have to all be subjected to natural rights, and limitations as outlined in the

convention.

In the case where deck carriage is undertaken more than the ones allowed in the

convention, the carrier remains fully liable and does not have the attachment to the liabilities

according to the limit of the Convention (Berlingieria 2009). Nevertheless, Baatz et al (2013)

indicates that in case the carrier ferries goods on the deck in a manner that breaches the express

agreement of ferrying them below the deck, then a loss, damage may cause the carrier to lose the

right of limiting liability.

A research done by Sun-ok Kim (2012) indicates that Hague-Visby Rules don’t apply to

the case of deck cargo in the instance when the cargo is carried on the deck as stated in the

contract. This implies that Hague-Visby Rule’s application is highly restricted. On the other

hand, unless provided otherwise in the Convention, Rotterdam allows for any term outlined in

the carriage contract remains void to some extent (Treitel et al 2017). They include the case

Rotterdam and Hague Visby Rules 8

where it is in any way excludes or fully limits the carriers' obligations, or assigns some specific

benefits of insurance of goods favoring the carrier, to mention a few.

Obligation and Liability of the Shipper

The Convention has a different chapter fully set aside for the obligations of the shipper to

the carrier. According to Thomas (2014). The shipper is entitled with a responsibility to ensure

that the delivery of the goods is done to the carrier in conditions considered fit for carriage and to

enable the carrier to have as more relevant information as possible, and instructions, to mention a

few. Patwari (2014) elaborates that the inclusion of these obligations is put in place to help with

facilitation of the duties of the carrier to have the transport document particulars completed and

adequate handling and shipping of the goods in adherence to the law.

The shipper is tied to very strict liability for any case of the document inaccuracies

concerning its content (Talal Hamad 2016). The shipper is also obliged to provide as necessary

information to the carrier as possible regarding the hazardous nature posed by the goods and to

ensure that they are either marked or labeled according to the applicable regulations. According

to Hung (2015) the case the shipper fails to adhere to his tasked duties in this regard fully, he is

again faced with very strict liability for any resulting damages or loss.

A research done by Djadjev (2017) highlights that the shipper has a liability to the carrier

for any loss in all of the centered cases. The law provides the carrier with the onus of bringing

forth the caused damage or loss due to the breach of the obligations of the shipper. Djadjev

(2017) further elaborates in his research that the rule then imposes the shipper with the burden of

defending the cause of the damage as not being a fault of any individual for whom is directly

responsible under him based on the Convention, to avoid liability.

Rotterdam and Hague Visby Rules 9

Notably, the Convention fails to provide the shipper with any known limits of his liability

(Sun-ok Kim 2012). Nevertheless, it also fails to preclude the shipper from making a claim of

any liability’s limit based on the national law applicable to the shipping. For instance, Girvin

(2011), identifies that the Convention tend to be very silent about the liability of the shipper for a

delay, hence just leaving it to the available national law to make the decision of the very

liabilities and the extent by which it can be used. For instance, The Hague-Visby Rules tends to

focus less on the Carrier and very duties and liabilities n held by the shipper (Djadjev 2017). On

the other hand, the Rotterdam Rules stated them above, as the subject of any separate chapter and

outlined systematically.

Further, the Hague-Visby Rules provide a general reference to the bills of lading or any

given similar document of tilled and provides indications of just the particulars that are found in

the transport document (Møllmann 2016). These may include the marks, the quantity of

packages, and the weight, to mention a few. Berlingieria (2009), Rotterdam Rules contrarily tend

to specify that the documents for transportation may either be negotiable or non-negotiable and

highlighted in greater details all the necessary particulars that have to be mentioned in the

document of transportation and provides a very strict liability on the shipper for making available

information to the carrier.

Delivery of Goods by the Carrier

According to Møllmann (2016), the Convention legislates for the instances where the

consignee has failed to obtain possession of a document for transport that is negotiable though

providing the carrier with the possibility of delivering goods without actually presenting the

negotiated document of transportation while at the same time securing the interests of involved

Rotterdam and Hague Visby Rules 10

parties. The provision at this level is intended at protecting the carriers who tend to be vulnerable

to the risks of responding to the demands, which can sometimes happen under the intense

pressure of delivering goods without surrendering of necessary documents (Berlingieria 2009).

One of the primary objectives of this provision is to help with protecting carriers in such

circumstances and, importantly, it provides carriers with the right of limiting liabilities for any

case of claims that may arise as a result, according to the limits that the Convention provides.

Moreover, Hung (2015) elaborates that the possibility of using electronic documentation will

help with speeding circulation of paperwork and reduce delays in the documents used in

receipting.

As opposed to The Rotterdam Rules, The Hague-Visby Rules fail to contain provisions

on the obligations of the ship owner, for instance, to whom the carrier has the duty of delivering

the package (Berlingieria 2009). Most of the maritime jurisdictions provide clear information

that the carrier has the responsibility of safely delivering just based on the bill of lading and in

the case where this is not done then the ship-owner remains directly liable to claims for any

evidence of wrongful delivery. As researched by Treitel et al (2017), such cases of liability may

fail to have limits of liability.

Liability Limits and the Suit Time

The package is retained in the convention and limitation that are critical in both

Rotterdam and Hague-Visby Rules (Berlingieria 2009). The monetary limit of the carrier is

placed at 875 SDR for every package and about 3 SDR for each kilogram, in the case of Hague-

Visby Rules. Notably, for an example where the carrier is liable to the financial loss for instances

of delay, he or she can cap his liability to 2 ½ times the freight but subjected to a general cap of

Rotterdam and Hague Visby Rules 11

the limits of compensation for any case of damages or physical loss (Berlingieria 2009). This

rule is a significant benefit for the carriers are there some States which have provisions for

liability of delays in their respective national law in the way they interpret The Rotterdam and

Hague-Visby Rules (Baatz et al 2013). Therefore, allegations made for the lateness in these very

powers will enjoy the benefit of limit on liability. Besides, all liabilities held by the shipper as a

result of lateness will not be directly controlled by the universal Convention. Such a case will be

solemnly left for the state law.

According to Djadjev (2017), it is of significance to note that the right of limiting liability

extends to all of the claims attached to the breaches of the obligations of the carrier as outlines on

the Convention except for the case of individual rules for deck carriage.

Loss of limitation of Liability

Sun-ok Kim (2012), pin points that based on the Convention, the carrier loses the right it

has of limiting loss, damages, or delaying of results due to a personal act or cases of omission

done recklessly with prior knowledge that the damage would be incurred. The new Convention

closely follows the Rotterdam and Hague-Visby Rules especially when the Claimant may break

to any given right attached to a liability (Thomas 2014). . Nevertheless, including the provision

that the carrier will lose the power of liability of limit just when the claim is as a result of his

fault makes the right to limit more specifically confident and quite tricky in breaking.

Jurisdiction and Arbitration

Provisions of the jurisdiction and arbitration are also clearly outlined in the convention.

For example, jurisdiction allows the claimant to have a wide range of choices of connected

jurisdictions to the carriage (Møllmann 2016). Importantly, the state must have the ability to

Rotterdam and Hague Visby Rules 12

"opt-in" to the provisions for them to be effective. Thomas (2014) illustrates that the provision of

arbitration enables the parties to access a contract of carriage and make an agreement that

disputes related to the carriage of the goods based on the Convention have the possibility of

being referred to arbitration.

Freedom of Contract

The Hague-Visby Rules provides that the liability incurred by the ship-owner is

mandatory. On the other hand, Rotterdam Rules also tend to pose binding effects, but the

associated parties are similarly given freedom based on their contracts in some given

circumstances and given respects to have an agreement of terms which are more applicable to

them (Møllmann 2016). Notably, there is an allowance of derogating from the contractual

volumes of the Convention. However, the following two fundamental conditions must be

satisfied:

 The volume contract must have been negotiated individually

 The shipper is provided with an opportunity and notice of concluding a deal on

terms that show adherence to the Rotterdam Rules (Berlingieria 2009). The derogation is also

applicable to the ship owners and individuals other the person shipping, like the case of a

consignee. However, this happens only if these persons have prior information that the contract

derogates from the outline rules and provides enough consent in writing.

The principle associated with freedom of contract may also be seen in some ways. For

instance, in the form where there may be an agreement between parties on the responsibility

period of the ship owners and the goods to be ferried (Hung 2015). This contract includes

whether the period may vary from "tack-to-tackle," "port-to-port" or even "door-to-door" (Girvin

Rotterdam and Hague Visby Rules 13

2011). According to Berlingieria (2009), it is also visible in providing an allowance for the

parties to trade in terms known as “FIOS,” in the case there is appropriateness, leaving stable the

standard of performance of the duties to be performed by the parties undertaking the obligations.

Rotterdam and Hague Visby Rules 14

Reference List

Baatz, Y., Debattista, C., Lorenzon, F., Serdy, A., Staniland, H. and Tsimplis, M. (2013). The

Rotterdam Rules. Hoboken: Taylor and Francis.

Berlingieria, F 2009. Comparative Analysis of The Hague-Visby Rules, the Hamburg Rules, and the

Rotterdam Rules.

Djadjev, I. N. 2017. The obligations of the carrier regarding the cargo the Hague-Visby rules. Cham,

Switzerland, Springer.

http://search.ebscohost.com/login.aspx?direct=true&scope=site&db=nlebk&db=nlabk&AN=157

9996.

Girvin, S. 2011. Carriage of goods by sea. Oxford, Oxford University Press.

http://olrl.ouplaw.com/view/10.1093/law/9780199589913.001.0001/law-9780199589913.

Hung, N. P. 2015. The progress of the Rotterdam Rules 2009 from the Hague-Visby Rules 1968 in

harmonizing carriage of goods by sea. Thesis (LL. M.), International Trade Law, School of Law

-- University of Essex, 2015.

Møllmann, A. 2016. Delivery of Goods under Bills of Lading. Florence, Taylor, and Francis.

http://public.eblib.com/choice/publicfullrecord.aspx?p=4756149.

Patwari, S. 2014. Rotterdam and Hague-Visby Rules -- A Comparative Analysis. SSRN Electronic

Journal.

Sun-ok Kim. 2012. An Application of the Article 3(6) of the Hague/Visby Rules about Delivery

Operations of a Cargo. The Journal of International Trade & Commerce, 8(3), pp.161-177.

Talal Hamad, A. 2016. A comparative study of the obligation of due diligence to provide a seaworthy

vessel under the Hague/Hague-Visby rules and the Rotterdam rules.

Thomas, D. R. 2014. The carriage of goods by sea under the Rotterdam Rules. London, Lloyd's List.

Rotterdam and Hague Visby Rules 15

Treitel, G. H., Carver, T. G., & Reynolds, F. M. B. 2017. Carver on bills of lading. London, Sweet &

Maxwell.

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