Fordham International Law Journal
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Ocean Carriers’ Duty of Care to Cargo in Port:
The Rotterdam Rules of 2009
Prof. Dr. David Mora´n Bovio
On December 11, 2008, the General Assembly of the United Nations adopted General
Assembly (“G.A.”) Resolution 10798, accepting a Convention prepared by the United Nations
Commission on International Trade Law on “Contracts for the International Carriage of Goods Wholly
or Partly by Sea,” in lieu of a diplomatic conference, and scheduled the convention to be signed,
subject to subsequent ratification, on September 23,2009 at Rotterdam.10 The new Convention is
designed to replace two earlier international conventions, popularly known as the Hague Rules of
1924 (“HR”), with the Visby Amendments of 1968, and the Hamburg Rules of 1978 (“HamR”),
thus the new Convention will be known as the Rotterdam Rules. The Rotterdam Rules will apply
to the international movement of goods “door to door,” that is from the seller to the buyer
including the period or phase while the goods are in a port and not on the ship and subject to loading,
storage, relocation, and unloading. This Article will deal with the new provisions and relate them
to the background of previous treaties in order to determine the parts that represent harmonization
of law as well as its progressive development.
OCEAN CARRIERS' DUTY
OF CARE TO CARGO IN PORT:
THE ROTTERDAM RULES OF 2009
Prof.Dr. David Mordn Bovio*
GRA TULA CI6N (CONGRATULATIONS)
There are two meanings to the word "Congratulations": to
commend someone while feeling joy in yourself at the same
time,' so I am delighted to be able to salute Professor Sweeney
on his seventy-fifth birthday while recalling the work of the
United Nations Commission on International Trade Law
("UNCITRAL") to harmonize and develop international trade laws. I
am glad for this opportunity to remember the past twenty years
of work at UNCITRAL meetings with Professor Sweeney and
other colleagues on complex questions of international
Both of my mentors at the University of Seville, Professors
Manuel Olivencia and Rafael Illescas had represented Spain at
meetings of UNCITRAL, and they suggested the new topic of the
liability of terminal operators in international trade that was
being studied by UNCITRAL as a subject for my academic
research. I was already familiar with earlier projects of
UNCITRAL, and I began to study the UNCITRAL Convention on
Ocean Carrier Liability of 1978, known as the Hamburg Rules.
Ijoined Professor Illescas as part of the Spanish Delegation
at the UNCITRAL Plenary in May 1989 in Vienna,2 ancient heart
* Professor of Commercial Law at the University of Cddiz (Spain). Member of the
Spanish Delegation in the Working Group III (Transport Law) of the United Nations
Commission on International Trade Law ("UNCITRAL") (2002-08). The opinions
expressed are personal, not official.
1. DIccIONARIo DE LA LENGUA ESPAfoLA [DIcIONARY OF THE SPANISH LANGUAGE]
1057 (Real Academia Espafiola ed., 21st ed. 1992).
2. 1989 U.N. COMM'N ON INT'L TRADE LAw Y.B. 20, U.N. Doc. A/CN.9/SER.A/
1989 (1989) [hereinafter UNCITRAL Y.B.]. UNCITRAL Y.B. includes, together with
the Session Report (Report of the U.N. Comm'n on Int'l TradeLaw on the Work ofits
TwentySecond Session, U.N. Doc. A/44/17 (1989)); the documents utilized (second part):
Liability of operatorsof transport terminals: compilation of comments by Governments and
international organizationson the draft Convention on the Liability of Operatorsof TransportTerminals
of the Hapsburg Empire that had once included Spain. There I
was able to put a face and a voice to the words I had read in the
Journal of Maritime Law and Commerce,' becoming better ac
quainted with Professor Sweeney in formal sessions and hallway
conversations at the Vienna International Centre ("UNO City"),
and especially at the interminable and exhausting meetings of
the drafting committee at which I had been assigned as the
representative of the Spanish language nations.4
The drafting committee encounters brought me closer to
our honoree, as it was apparent that Professor Sweeney was
paying complete attention to the basic English text and the French
and Spanish versions of the text. His calm demeanor and
alertness surprised me because of the contrast with the fatigue of
others in the room as these evening sessions lengthened after the
full day of meetings at which he often spoke with clarity and
livein InternationalTrade: report of the Secretary-General,U.N. Doc. A/CN.9/319 (1989); Limits
of liability and units of account in internationaltransport conventions: report of the Secretary
General, U.N. Doc. A/CN.9/320 (1989); Liability of operators of transport terminals: draft
final clauses for the draft Convention on the Liability of Operators of Transport Terminals in
InternationalTrade: report of the Secretary-General,U.N. Doc. A/CN.9/321 (1989).
3. Joseph C. Sweeney, The UNCITRAL Draft Convention on Carriageof Goods by Sea
(Part1), 7 MAR. L. & COM. 69 (1975-76); Joseph C. Sweeney, The UNCITRAL Draft
Convention on Carriageof Goods by Sea (PartII), 7J. MAR. L. & CoM. 327 (1975-76);Joseph C.
Sweeney, The UNCITRAL Draft Convention on Carriageof Goods by Sea (PartIl), 7 J. MAR.
L. & CoM. 487 (1975-76); Joseph C. Sweeney, The UNCITRAL Draft Convention on Car
riageof Goods by Sea (PartTV), 7J. MAR. L. & COM. 615 (1975-76);Joseph C. Sweeney, The
UNCITRAL Draft Convention on Carriageof Goods by Sea (PartV), 8J. MAR. L. & CoM. 167
(1976-77); Joseph C. Sweeney, UNCITRAL and the Hamburg Rules: The Risk Allocation
Problem in Maritime Transport of Goods, 22J. MAR. L. & COMM. 511 (1991).
The link between the United Nations Convention on the Carriage of Goods by Sea,
1978 (Hamburg Rules), U.N. Doc. A/RES/48/34 (1978) [hereinafter HamR or
Hamburg Rules] and the one that would become the United Nations Convention on
the Liability of Operators of Transport Terminals (1991) has been the object of my
attention in different publications. See David Morin Bovio, Notas para la historia del
Convenio sobre la responsabilidadde los ET7T (Empresariosde Terminales de Transporte) [Notes
for the History of the Convention on the Liability of the OTT (Operatorsof TransportTerminals)],
9 ANUARIO DE DERECHO MARITIMO (Y.B. OF MARITIME LAw) 89-160 nn.27-32, 37-40
(1991); David Mordn Bovio, La unificacitnde la responsabilidadde los empresarios de
terminals de transporte:una presentacitn [The Unification of the Liability of the Operatorsof
Transport Terminals (071): A Presentation],REvisTA DE DERECHO MERCANTIL (COM. L.J.)
20730 nn.76-77 (1993); David Mordn Bovio, The OTT Convention Viewed in the Light of
Decisions on the Hamburg Rules 3 UNIF. L. REV. (REvuE DE DROIT UNIFORME) 601-14,
§ 1 (1998).
4. To which I was sent by another Vice President of the session, Professor Abascal
(Delegation from Mexico), with the approval of the Spanish-speaking Delegations and
the recommendation (and the appropriate directives) of Professor Illescas.
Our contacts resumed at the Diplomatic Conference to
Complete the United Nations Convention on the Liability of
Operators of Transport Terminals in International Trade at Vienna
in April, 1991.6 In that setting, the observations of the
plenipotentiaries are more fully recorded in the Official Record on
which governments base their decisions whether to ratify or
accede to the Convention. 7 Because of our interest in this
Conven5. See generally UNCITRAL Y.B., supranote 2. The revision work shows the
following: eighty-one pages, compiling twenty-one declarations. I must here note the active
presence of Paul Larsen from the Delegation of the United States of America, who
naturally, intervened together with Professor Sweeney. Also acting as delegates for the
United States were Mr. Davies and Mr. Falvey who also spoke, although less than the
others, as did Mr. Pfund. If we consider that there are some subjects on which other
members of the Delegation spoke, we can easily conclude that Professor Sweeney had a
very active presence in the discussions of the Twenty-Second Plenary Meeting of
UNCITRAL. I mention this because I must praise the generous and willing attitude of
Professor Sweeney at the meetings of the Drafting Committee. It would be decidedly much
more interesting and enlightening to examine the colloquies in the Summary Records
of the meetings. However, such a task exceeds the scope of this exercise; it could (and
perhaps should) constitute another article altogether.
6. Vienna, April 2-19, 1991. See generally United Nations Conference on the Liability of
Operators of Transport Terminals in International Trade, U.N. Doc. A/CONF.152/14
7. The resultant Instrument generated several publications. The following partial
list provides a sense of the interest that was raised: Joseph C. Sweeney, New U.N.
Convention on Liability of Terminal Operators in International Trade, 14 FoRDHa INT'L LJ. 1115,
1115-38 (1990-91); Paul B. Larsen, Joseph C. Sweeney, Patrick J. Falvey & David C.
Davies, The 1991 Diplomatic Conference On Uniform Liability Rules for Operators of Transport
Terminals, 21 J. MAR. L. & COM. 449, 449-79 (1990); Paul B. Larsen, Joseph C. Sweeney,
PatrickJ. Falvey &JoAnne Zawitowski, The Treaty on Terminal OperatorLiability in Interna
tional Trade, 25 J. MAR. L. & COM. 339, 339-92 (1994); Jose M. Abascal Zamora, La
Convenci6n de las Naciones Unidas sobre la responsabilidadde los Empresariosde Transporteen
el ComercioInternacional[The UnitedNations Convention on the Liability of Operatorsof
Transport Terminals in International Trade] 6 REv. DE DERECHO PRIVADO 615, 615-26 (1991)
(Mex.); S.K. Chatterjee, The UN Convention on the Liability of Operatorsof Transport
Terminals in InternationalTrade:
The End of the Himalaya Clause?, 1994
J. Bus. L. 109, 109-20
(1994); Rolf Herber & Dirk J. Harten, DieDiplomatische Konferenz der Vereinten Nationen
uber die Hafiung der Umschlagbetriebeim InternationalenHandelsverkehr [The
DiplomaticConference of the United Nations Convention on the Liability of Handling Operations in
International Trade] 11/12 TRANSPORTRECHT 401, 401-10 (1991) (F.R.G.); S. M. Carbone, I
limiti temporale e quantitativedella responsabilitddell'operatoreterminalistanella recente normativa
nazionaleen el DirittoUniforme [The Quantitativeand TemporalLimits ofLiability of the
Terminal Operatorin the Recent NationalLegislationin
the Right Uniform], 1994
INTERNAZIONALE Di ECONOMIA DEi TRASPORTI 29, 29-44 (1994) (Italy); Guido Camarda, La
Convenzione sulla responsabilitddei gestori di terminali di trasporti. Una verificapreventiva di
costituzionalitd [The Convention on the Liability of Operators of Transport Terminals. Prior
Verification of Constitutionality],8 Dii-rro DEL COMMERCIO INTERNAZIONALE 269, 269-314
(1994) (Italy); DIRe J. HARTEN, DAS INTERNATIONALE JBEREINKOMMEN OBER DIE
HAFtion and other UNCITRAL projects we have kept up
correspondence ever since, exchanging publications and observations. It
has also been my duty to attend UNCITRAL Working Group and
Plenary Meetings in New York where it is possible to converse
and dine with Professor Sweeney and his wife, Alice.8
On December 11, 2008, the General Assembly of the United
Nations adopted General Assembly ("G.A.") Resolution 10798, 9
accepting a Convention prepared by the United Nations
Commission on International Trade Law on "Contracts for the
International Carriage of Goods Wholly or Partly by Sea," in lieu of a
diplomatic conference, and scheduled the convention to be
signed, subject to subsequent ratification, on September 23,
2009 at Rotterdam." ° The new Convention is designed to
reTUNG DER TERMINAL OPERATOR IM INTERNATIONALEN HANDELSVERKEHR UND SEINE
ANWENDBARKEIT AUF DIE DEUTSCHEN GOTERUMSCHLAGBETRIEBE [THE INTERNATIONAL
CONVENTION ON THE LIABILITY OF TERMINAL OPERATORS ON INTERNATIONAL TRADE AND
ITS APPLICABILITY TO THE GERMAN CARGO OPERATIONS] (Neuwied, Luchterhand eds.,
Prior to the Diplomatic Conference, there were other writings. See, e.g., Paul B.
Larsen, Joseph C. Sweeney & Patrick J. Falvey, The Uniform Rules on the Liability of
Operators of Transport Terminals, 20 J. MAR. L. & CoM. 21, 21-54 (1989); F. Enderlein & D.
Richter-Hannes, Konventionsentwurf iber die Haftung von Transportterminal-Unternehmen
(OTT)-Stand der UNCITRAL-Vorbereitungsarbeiten [Draft Convention on the Liability of
Transport Terminal Operators (OTT)-State of the UNCITRAL Preparatory Work], 19
DDRVERKEHR 55, 55-59, 81-91 (1986) (F.G.R.); Ingo Koller, DerEntwurf eines Ubereinkommens
iber die Haftung von Umschlagbetrieben im IntertationalenHandel [The Draft Convention on
the Liability of Handling Commercial Establishments in Intertational Trade], 3
TRANSPORTRECHT 89, 89-98 (1991); DirkJ. Harten, Die Haftung des Terminal Operators [Liability of
Terminal Operators], 2 TRANSPORTRECHT 50, 54-57 (1990); Gerald F. Fitzgerald, The
Proposed Uniform Rules on the Liability ofOperatorsof TransportTerminals, 10 ANNALS OF AIR
AND SPACE LAw 29, 29-60 (1985); JOHAN G. HELM, DER UNIDROIT-ENTWURF FOR EIN
UBEREINKOMMEN OBER DEN INTERNATIONALEN LAGERVERTRAG, DEUTSCHEN VEREIN FOR
INTERNATIONALES SEERECHT [THE UNIDROIT DRAr CONVENTION ON THE INTERNATIONAL
CONTRACT, THE GERMAN ASSOCIATION FOR INTERNATIONAL MARITIME LAW] (1981);
Richard W. Palmer & Frank P.DeGiulio, Terminal Operationsand Multimodal Carriage:History
and Prognosis,64 TUL. L. REV. 281, 352-53 (1989);JoAnne Zawitowski, Federal,State, and
InternationalRegulations of Marine Terminal Operatorsin the United States, 64 TUL. L. REV.
440, 461-64 (1989).
8. An excellent writer, whose contribution to the good style of her husband I dare
label as important, in spite of its indirect nature most of the time.
9. G.A. Res. 10798, U.N. Doc. A/Res/63/122 (Feb. 2, 2009) (which in numbered
paragraph 3. "recommends that the rules embodied in the Convention be known as
the "Rotterdam Rules.").
10. See Rep. of the U.N. Comm. on Int'l Trade Law, Forty-first Session,June 16-July
3, 2008, 264-67, 1 298, Annex 11 (2008).
place two earlier international conventions, popularly known as
the Hague Rules of 1924 ("HR")," 1 with the Visby Amendments
of 1968,12 and the Hamburg Rules of 1978 ("HamR"), 1" thus the
new Convention will be known as the Rotterdam Rules.
The Rotterdam Rules will apply to the international
movement of goods "door to door," that is from the seller to the buyer
including the period or phase while the goods are in a port and
not on the ship and subject to loading, storage, relocation, and
unloading. This Article will deal with the new provisions and
relate them to the background of previous treaties in order to
determine the parts that represent harmonization of law as well
as its progressive development.
Where we are, where we are going, and how we get there,
could be the focus of the present exercise. That is where the
order and the method of this Article come from. At the same
time, its purpose is focused on the harmonization of national
laws on the transport of goods during the port phase. First, the
minente entrada en vigor. Una valoraci6n actualizada, in DERECHO DE LOS NEGOCIOS 1
(1993); R. Herber, United Nations Convention on the Carriageof Goods by Sea, (1978)
(Hamburg Rules), in 11th ASIAN PACIFIC REGIONAL TRADE SEMINAR, 1984, (Austl. Att'y
Gen's Dep't, 1985); R. Herber, Gedanken zum Inkrafltretender HamburgRegeln, in
TRANSPORTRECHT 382 (1992); J.A. G6mez Segade, El transporte maritimo de mercancdas: de las
Reglas de la Haya a las Reglas de Hamburgo, in REviSTA DE DERECHO MERCANTIL 221 (1980);
W.E. ASTLE, THE HAMBURG RULES (1981); D. RICHTER-HANNES, DIE HAMBURGER REGELN.
NEUREGELUNG OBER DIE GOTERBEFORDERUNG ZUR SEE (1982); P. Bonassies, Le domaine
d'applicationdes Regles de Hambourg,in IL DIRITO MARITTIMO 281 (1993); S.M. CARBONE,
LE REGOLE DI RESPONSABILITA DEL VETTORE MARIrTIMO. DALL'AJA AD AMBURGO
ATTRAVERSO LA GIURISPRUDENZA ITALIANA (1984);J. KIENZLE, DIE HAFrUNG DES CARRIER UND
DES ACTUAL CARRIER NACH DEM HAMBURG-REGELN (1993); E. Selvig, An Introduction to the
Hamburg Rules, 1978, in TRASPORTI. DiRiTro. ECONOMIA. COMMERCIO 15 (1979); H.M.
Kindred, FromHague to Hamburg: InternationalRegulation ofthe Carriageof Goods by Sea, 7
THE DALHOUSIE L.J. 585 (1983); C. Scapel, Les Reformes Apportes par les PNgles de
Hambourg d la Responsabilitg du TransporteurMaritime, in IL DIRIro MARITTIMO 338
(1993); W. Tetley, The Hamburg Rules-A commentary, in LLOYD'S MAR. COM. L.Q. 1
(1979); A. GAST PINEDA, EFECTOS LEGALES Y PRACriCOS DE LAS REGLAS DE HAMBURGO
(1989); R. Achard, Les Regles de Hambourgd nouveau mises en examen, in LE DROIT
MARITIME FRANCAIS 254 (1994); J. Ramberg, Claims Under the HamburgRules, in DEMETRIOS
MARKIANOS IN MEMORIAM 63 (1988); C.W. O'Hare, Cargo Dispute Resolution and the
HamburgRules, 29 INT'L & COMP. L.Q. 219 (1980); Michael F. Sturley, ChangingLiability
Rules and Marine Insurance: Conflicting Empirical Arguments About Hague, Visby, and
Hamburg in a Vacuum of EmpiricalEvidence, 24J. MAR. L. & COM. 119 (1993); C.F.
LODDEKE & A. JOHNSON, A GUIDE TO THE HAMBURG RULES. FROM HAGUE TO HAMBURG VIA
VISBY. AN INDUSTRY REPORT. (1991); KH. Necker, Zur Statutenkollision im Seefrachtrecht.
Von den Haagerzu den HamburgerRegeln, in RECHT OBER SEE. FESTSCHIIrT ROLF STODTER
current law will be reviewed, as well as the progress from the
current law to its successor. This vast issue requires extreme
conciseness to fit within this one Article.
Three large sections, therefore, must be created, always in
keeping with our single purpose: to try to clarify the most
important aspects of the liability regime for the objects in transport
while they are on the pier. Part I synthesizes the current
uniform law; Part II describes the milestones in the genesis of the
new law; the last section, Part III, points out the new law's most
Each section must have divisions. In the first section, Part I,
the divisions separate the Brussels Convention ("BC") (Part I.A);
the BC-Visby Protocol ("VP") (Part I.B); and the HamR (Part
I.), as the main branches of this subject. Part II makes use of
the three readings which the Project was subject to in order to
schematize its formative process (Part II.B), being preceded by a
note containing information about what previously happened in
UNCITRAL and in the Comitg Maritime International ("CMI")
(Part II.A). 14 These are followed by a division devoted to the
Plenary Commission Meeting that approved the Project (Part
II.C). Part III studies the geographical and legal limits of the
port area (Part III.A); the regulations in that area of goods, with
the condition that they be controlled by the carrier (Part III.B);
by the shipper or by the consignee (Part III.C); or by the
maritime performing party (Part III.D). In addition to those already
mentioned, it is possible that none of the aforementioned
parties have control over the goods in transport while on the pier
(Part III.E). The Article is closed with some conclusions.
A separate methodology is used for each of the three
principal concerns of this task. In Part I, it is possible to say that, by
necessity, it can only constitute an abridged (and partial)
synthesis of legal works and decisions, with the purpose of pointing out
the main problems detected during the application of those
works and decisions. In Part II, the sequence of the formation of
the new law will provide the reader the primary sources. Part III,
14. The CMI is a non-governmental international organization specializing in the
problems of the maritime industry. It was created in 1897 by members of the
International Law Association (founded in 1871) who felt the need to have an organization
consistently available to consider the problems of the maritime industry as they arose.
It is made up of fifty-seven national maritime law associations (the United States has
been a member since 1899).
finally, seeks to offer an answer, from the perspective of the
projected law, to the regulation of liability for the merchandise
during the port phase.
In fact, a book 5 and a series of monographs1 6 brought me
closer to the current law, and as a member of the Spanish
Delegation I attended all the sessions of the Working Group. 7
The foregoing implies something I must confess: This
Article (particularly Part I) will lack the doctrinal and legal
references of the twenty-first century. Since March 2002, the
projected law has been the focus of my work on this subject, with
just a few exceptions. About this subject, I have barely devoted
any time to reflections other than my own,18 no matter how
interesting and remarkable they may have seemed to me. In other
words, Part I will express the most important aspects of other,
previous exercises.' 9 In the rest, everything is the product of
15. See generally DAVID MORAN Bovio, EXTREMOS DEL PERIODO DE APLICACI6N
MfNIMO EN LA CB-PV (CONVENCION DE BRUSELAS-PROTOCOLO DE VISBY SoBRE
TRANSPORTE DE MERCANCIAS BAJO CONOCIMIENTO DE EMBARQUE) [END OF THE APPLICATION IN
MINIMUM BC-VP (BRUSSELS CONVENTION-VISBY PROTOCOL ON TRANSPORT OF GOODS
UNDER BILL OF LADING)] (1998).
16. See David Morn Bovio, Los lfmites del periodo de la responsabilidaddel porteadoren
las Reglas de Hamburgo, in 3 ESTUDIOS JURIDICOS EN HOMENAJE AL PROFESOR AURELIO
MENRNDEZ 3947-87 (1996); David Mordn Bovio, Mercancfas en lafase portuaria: problemas
y soluciones, in 2 ESTUDIOS DE DERECHO MERCANTIL, HOMENAJE AL PROFESOR JUSTINO
DUQUE DOMfNGUEZ 1473-95 (Valladolid ed., 1998); David Mordn Bovio, Mercancfas en la
fase portuaria: problemas y soluciones, in DERECHO UNIFORME DEL TRANSPORTE
INTERNACIONAL: CUESTIONES DE ACTUALIDAD 168-212 (Agustfn Madrid Parra ed., 1998); David
MorAn Bovio, Primerassentenciasen aplicaci6nde las Reglas de Hamburgo, 627 REViSTA GEN
ERAL DE DERECHO 13303-14 (1996); David Moran Bovio, The FirstDecisions Applying the
HamburgRules, 3 LLOYD'S MAR. COM. L.Q. 351-58 (1997).
17. This was not the case with regard to the informal meetings, where Manuel Alba
and Tatiana Arroyo (she almost always, in all of those meetings) represented the
18. Those that have been published appear on the UNCITRAL web page, in the
publications and on-line resources section. See generally UNCITRAL Publications and
On-line Resources, http://www.uncitral.org/uncitral/en/publications.html (last visited
Feb. 16, 2009).
19. Only in that way, by means of references to other places, can that part be
resolved in a discrete way, since its treatment demands a greater scope than what I have
covered here. For example, the work mentioned supra note 15 covers more than three
hundred legal decisions from the most relevant countries in the application of Brussels
Convention/Hague Rules ("BC/HR") and Brussels Convention-Visby Protocol/Hague
Rules-Visby ("BC-VP/HR-V"). Such references to previous works are made with respect
to the footnotes and pages where they are; it is important, however, to understand that
they incorporate the accompanying text, which they compliment.
both the careful observation paid to the crystallization of the
Project (II), and of my own critique of it (III).
Last, the works that inform Part I of this Article were
concerned only with what is considered the key problem, the setting
of limits for the application of the current law in the succession
of activities required in the transport of goods. That entire Part
is concerned only with this issue which, it is worth pointing out,
is not of little importance, especially if we consider that most of
the losses and damages to goods being transported by sea
actually occur on land in the port area.2 0
I. CURRENT LAW
A. Brussels Convention ("BC")/Hague Rules ("HR")
To begin with, in liner transportation the bills of lading
have a temporal limitation on the liability of the carrier, and
restricts liability to the period of the voyage between the loading
and unloading of the goods in such a way that each moment
indicates respectively, the beginning and the end of the liability
of the carrier, utilizing the possibilities featured in BC/HR
Article 7, together with another Himalaya Clause,2 1 which extends
the benefits of the carrier to his cooperators on the pier.
1. Difficulties in its Application
In such a context, two contradictions occur, discussed below
in subsections (a) and (b), and one exceptional case, reviewed
in subsection (c).
20. David Mordn Bovio, Mercanciasen la fase portuaria: problemasy soluciones, supra
note 16, at 1474 nn.1-6. For the European occurrences of the subject in the same time
period of the aforementioned work, see R. Illescas, El Convenio de las Naciones Unidas
sobre la responsabilidadde los Empresariosde Terminales de Transporteen el Comercio
Internacional, in 2 ESTUDIOS DE DERECHO MERCANTIL, HOMENAJE AL PROFESOR JUSTINO DUQUE
DOMiNGUEZ 1453-61 (Valladolid ed., 1998) (synthesizing the Mercer Report from the
European Union ("EU") at page 1459).
21. Joseph C. Sweeney, Crossing the Himalayas: Exculpatory Clauses in Global
Transport, 36J. MAR. L. & COMM. 155 (2005). A Himalaya Clause in an ocean bill of lading
extends carrier defenses provided by statute to other transportation industry
participants not protected by statute, such as the one year time bar and the US$500 package
limitation on recovery for cargo damages.
a. Liner Terms and Initial and Final Limits of the Liability of
In liner practice, the carrier (through its employees, agent,
or independent operator) takes custody of the goods to be
transported before they can be loaded on the vessel and keeps them
in its possession after they are unloaded.
That this has been the case, and continues being so, is
evidenced, on the exit pier, by the provisions of the received for
shipment bill of lading (Articles 3.3 and 3.7 BC/HR), as well as
by the involvement of a series of printed documents. All of these
documents share the noun "receipts," by which they identify
their main characteristic: the goods are not under the shipper's
custody anymore. The documents are distinguished by the
genit"iTveasllyth-calterikn'dsicreacteeipthtse."i2s2suer: "Mate's Receipt," "Dock's Receipt,"
Similarly, in such circumstances, if the goods are damaged
while in the custody of the carrier, it will be responsible for
them, even if the bill of lading has not yet been issued.23
On the pier: goods in transport are transferred to the
custody of the employees, the agents, or the independent operators
that collaborate with the carrier, and they take care of
facilitating the delivery to the final recipient by notification, to arrange
subsequent custody of the goods, as well as complementary tasks
required before the consignee can take them.2 4
All things considered, the clause that strictly limits the
temporal liability of the carrier on the bill of lading states a
boundary that is contradicted by the practices of liner traffic. This
would leave us without a unitary answer for the question of who
is liable for the goods on the pier and how. According to the
strict limitation clause, the carrier would not be liable in this
period, while the liner terms say the contrary.
b. The Himalaya Clause and the Strict Period
of the Liability of the Carrier
The second contradiction in the statements of the bill of
lading is apparent when we contrast the strict temporal
limita22. See David Mordn Bovio, Mercancias en la fase portuaria:problemas y soluciones,
supra note 16, at 1476-77 nn.22-25.
23. For details see id. 1477 n.26.
24. For the justification of what is stated see id. 1477-78 nn.27-29.
tion for the carrier and the Himalaya Clause. In the former
case, some of the obligations and liabilities of the carrier prior to
loading and after unloading are excluded (e.g., Article 7 BC/
HR). With the latter clause, the carrier declares that its
collaborators and assistants on the pier are governed by the same
statutory liability regime as the carrier: quantitative limitation of
liability (Article 4.5 BC/HR: US$500 package), temporal limitation
for the exercise of the actions (Article 3.6 Paragraph 4 BC/HR:
one year), and the list of exemptions from any liability (Article
Two contrary propositions emerge about the same reality:
the liability of the principal and that of its agent; the agent's
liability is exculpated in a field voluntarily excluded from the
liability of the principal.2 5 In the bill of lading clause, the principal
is declared not liable during those periods. In the Himalaya
Clause, it is stated that the liability of the carrier's agents or
servants during that period are reduced or eliminated like that of
the carrier. Once identified, the conflict must be resolved
according to the circumstances, lessening or increasing the validity
of the relevant clause.2 6
c. Exceptional Case: Transport Terminals Controlled
Exclusively by Public Entities
The exceptionality of the situation outlined by the heading
of this section leads to a tendency to make the carrier exempt
from any liability whenever it is unable to exercise any control
on the pier over the goods in transport because the terminals
25. As an argument for the above stated, the allegation of a "double period" is well
known: the coincidence of the stretch of the application of HR (the scope of which is
measured by the strict limitation clause) and the application of the relevant National
Law (for the rest). I also had to consider the absence of any grounds for such an
allegation. See id. 1479 nn.34-35; 1481 nn. 45-47; MORAN Bovio, supra note 15, §§
18.104.22.168.5; 5.2.2-5.2.4; 2.2.2. In brief, it is worth remembering that if the carrier is liable
before loading and after unloading, but only under the regulations of the national law,
then there is a question as to how the carrier's agents or assistants can have different
regimes (with respect to their extended liability). It also raises the question about
which method is less advantageous to the users.
26. For the justification of this see David Mordn Bovio, Mercancias en la fase
portuaria: problemasy soluciones, supra note 16, at 1478 n.30. This is particularly important
for the traffic to and from the United States, because it comments upon the incident in
Wemhoener Pressen v. Ceres Marine Terminals, 5 F.3d 734 (4th Cir. 1993), in which the
court keeps to the thesis of Zawitowski. See JoAnne Zawitowski, supra note 7, at 454
(states thesis and cites portion of case that shows how the court keeps to this thesis).
are in the exclusive control of public entities.2 7
2. How to Resolve the Conflicts
With the exceptions inherent in any generalization, the
indiscriminate acknowledgement of the Himalaya Clause and the
disregard for the strict limitation of the carrier's liability period,
represents a way to adjust BC/HR to the reality of liner traffic.
That result is preferable, since it is considered as the arrival
of an interpretation, in which the reality of the traffic overrides
the statements of the contracting parties in the bill of lading.
Alternatively, it is an interpretation through which it is possible
to underscore the inadequacy of conventional agreements in the
bill of lading in contrast to the usual practices in a particular
sector. Therefore, the reality of the facts is set before whatever
the contracting parties agreed to in the bill of lading.
This is why the limitation clauses for the period of liability
of the carrier are set aside and the Himalaya Clauses are
approved. The reality demands that, in fact, the carrier control the
goods from the moment they are on the pier (provided it has
been notified about them and is able to take care of them).
Likewise, liability extends beyond the terms of the bill of lading
at the destination port. Despite the fact that the liability of the
carrier has ended according to the bill's stipulation that there is
a strict temporal limitation, the carrier answers for any goods
under its control (or that of its assistants) before the recipient is
able to pick them up.
With the exception derived from the actions on the pier of a
warehouse or transporter (other than the ocean carrier) whose
responsibility is regulated by local rules, as governed by bills of
lading with the two clauses mentioned above (the strict
limitation of the liability period and the Himalaya), the duties and
obligations with respect to the goods during the port phase are
governed by the Himalaya Clause, which proves to be more
adequate for liner traffic, whereupon the actions of the carrier or
those of its servants or agents will be regulated by the BC/HR.28
27. For a little more elaboration see David Mordn Bovio, Mercancias en lafase
portuaria: problemas y soluciones, supra note 16, at 1479 nn.36-37.
28. For details see id. 1480-82 nn.38-49.
1. Two Topics as an Example
Opinions about the evolution from BC/HR to
BC-VP/HRV, and any reckoning about how much can be learned from that
sequence of events29 will be left aside. Rather, we will focus on
two aspects of the amended text.
a. Period of the Carrier's Liability (and Art. 4
The solution accepted in the VP generalizes one of the
contradictions expressed in Part I.A. Here, however, it is even more
difficult to accept a strict limitation on the carrier's period of
responsibility (within the boundaries of loading and unloading),
when the carrier's collaborators at the port (except for
independent operators) benefit from the regulations about the carrier's
liability. An effort to deal with the independent operators was
not successful and no provision for them was made.
The carrier and collaborator operating on the pier receive
the goods and complete the stowage plan, or guard them after
the voyage, until the person authorized to receive them comes to
pick them up. The agent enjoys all the advantages that BC-VP/
HR-V concedes to the carrier, in order to conclude that the
validity of the boundary delineated by the loading and unloading
of the goods on the ship, as a term for the application of the
BCVP/HR-V, makes no sense and will prove useless, since Article 4
bis.2 determines application of the Instrument in the periods
before and after the ocean voyage.
The literal and systematic interpretation of Article 4 bis.2
BC-VP/HR-V use the same reasoning. The finality of the reform
and the social reality to which it is applied necessarily follow the
It can be said, also, that the acknowledgment on the part of
the courts of the validity of the Himalaya Clause (in spite of its
contradiction to the clause of limitation of the carrier's
responsibility by the loading and unloading of the goods) implies an
indirect denial of the validity of the strict limitation clause, as well
29. In brief, see id. 1484-85 nn.58-65. For a somewhat more extensive treatment
see MORAN Bovio, supra note 15, at 43-57.
as a broadening of the ordinary scope of application of BC-VP/
b. Misdelivery and Application of BC-VP/HR-V
The doubts expressed by the legal system and by the
institutions about the application of the amended Instrument (and its
precedent) to misdelivery cases are significant in number.
These doubts have obvious grounds and have been made public
in different jurisdictions, in spite of the fact that they are among
the reasons for moving from BC/HR to BC-VP/HR-V. 1
In defending the application of BC-VP/HR-V (and its
precedent) to misdelivery cases-as seems preferable with regard to
the predominant interpretative criteria and, particularly, in
order to prevent such an easy evasion of the carrier's liability
provided for in the Instrument (amended or not)-thus the limit of
cargo unloading is made ineffective to indicate the boundary of
tshpeitecoarfritehre'sstlaiatebmilietynt (tahnadt oimpeprlaicteitslyo,nthtehelibmililt oofflalodaindgi n.3g2), in
Probably because its authors worked in a completely open
and fairly scientific way by analyzing issues and examining
solutions in the preparation of the Instrument, the result, with
regards to the temporal limits of the carrier's liability, HamR
Article 4, can be considered exemplary. The carrier is liable for the
goods while they are in its possession, including any periods in
which they are in the hands of third parties who provide the
carrier with services for the completion of its transport
function.33 In other words, when the goods are in the port under the
control of the carrier's collaborators, it is liable for them as if
they were aboard the ship, but at some ports the goods must be
30. See David Mordn Bovio, Mercancasen la fase portuaria: problemas y soluciones,
supra note 16, at 1485-86 nn.66-71. About the limits of that "ordinary scope of
application" see MORAN Bovio, supra note 15, at 191-203.
31. The magnitude of this detail requires prompt reference. See David Mordn
Bovio, Mercanctas en la fase portuaria: problemas y soluciones, supra note 16, at 1486-87
32. See id. 1487-88 nn.78-81. I may point out that in MORAN Bovio, supra note 15,
at 213-27 the last and first possible commercial fault become the minimum limits of the
sea carrier's period of liability ruled by BC-VP/HR-V, or by its precedent.
33. See David Mordn Bovio, Mercancas en la fase portuaria: problemas y soluciones,
supra note 16, at 1488 nn.83-89.
in the physical possession of the Customs or Agricultural
Some have perceived in this phase a defect in HamR,
because these rules do not consider the case in which the
goodseither to be transported or already transported-are under the
control of "some authority or a third person to whom the merchandise
must be delivered according to the applicable law or regulations at the
unloading port . . . . .". The lack of consideration of this case
should not be considered a legal lacuna. It is rather a voluntary
restriction adopted as of the beginning of the deliberations that
found its final expression in HamR, in order to create a space
for the OTT Convention."
A. Priorto the UNCITRAL Working Group
As is immediately apparent, both with respect to
UNCITRAL and with regards to CMI, the coming into effect of HamR
and their subsequent application mark a revolution; without the
advent of HamR, it is very likely that none of what is expressed in
the following paragraphs would have occurred when it did.
Therefore the adoption of HamR must be in turn adopted as a
gateway to understanding the future regulations.
1. In UNCITRAL
The idea of the lack of uniformity in the law about the
transport of goods by sea increases with the coming into effect and
the full application of the HamR. 6 The spectacle of regulations
34. Hamburg Rules, supra note 3, arts. 4.2.ii-iii.
35. See David Mordn Bovio, Mercancias en la fase portuaria: problemas y soluciones,
supra note 16, at 1488-89 nn.90-94.
36. Such is the conclusion, as a particularly relevant example due to its time and
location of J. Smart's lecture to UNCITRAL. J. Smart, Lecture, From The Hague to
Hamburg: Towards Modern Uniform Rules for Maritime Transport at the Congress of the
United Nations Commission on International Trade Law, in UNIFORM COMMERCIAL LAW
IN THE TwENTY-FIRST CENTURY. PROCEEDINGS OF THE CONGRESS OF THE UNITED NATIONS
COMMISSION ON INTERNATIONAL TRDE LAW, NEW YORK,18-22 MAY 1992, 191-96 (U.N.
ed., 1995). At the same forum, the representative of the International Bar Association,
Lennard K. Rambusch, closed his remarks in a similar way: "[T]he supporters of these
conventions [BC/HR, its byproducts, and HamR] will work together and will listen to
each other with a view to... unifying and harmonizing international law relating to the
carriage of goods by sea ....The quest for uniformity must continue .... " Lennard K.
Rambusch, Remarks at the Congress of the United Nations Commission on
Internain force with no coherence among them, does not immediately
translate (for the Secretariat or for the Commission), into a
demand to promote some sort of understanding with those who
defend BC/HR and its byproducts, but it does spur the
promotion of a greater adherence to the HamR. 7
Plenary Meeting everything proceeded in
the same direction,3 8 but the CMI's intervention expressed
interest in ajoint effort with UNCITRAL to promote uniformity. The
statement was appreciated by the Commission, which welcomed
such a possibility.39 That paragraph probably contains the first
formal element for the genesis of the Rotterdam Rules .4o
tional Trade Law, in UNIFORM COMMERCIAL LAW IN THE TWENTY-FIRST CENTURY:
PROCEEDINGS OF THE CONGRESS OF THE UNITED NATIONS COMMISSION ON INTERNATIONAL
TRADE LAW, NEW YORK, 18-22 MAY 1992, 207 (U.N. ed., 1995). Within the same volume,
G. Jones unambiguously expresses the industry's opposition to The Hamburg Rules
("HamR") and suggests that the regulations of BC/HR or BC-VP/HR-V be improved.
G. Jones, International Union of Marine Insurers, in UNIFORM COMMERCIAL LAW IN THE
TWENTY-FIRST CENTURY: PROCEEDINGS OF THE CONGRESS OF THE UNITED NATIONS
COMMISSION ON INTERNATIONAL TRADE LAW, NEW YORK, 18-22 MAY 1992, 210 (U.N. ed.,
1995). John 0. Honnold confesses openly in his comments great difficulties in
overcoming the opposition of insurance interests to the HamR in his country. See John 0.
Honnold, Goals of Unification, in UNIFORM COMMERCIAL LAW IN THE TwENTY-FIRST
CENTURY. PROCEEDINGS OF THE CONGRESS OF THE UNITED NATIONS COMMISSION ON
INTERNATIONAL TRADE LAW, NEW YORK, 18-22 MAY 1992, 211 (U.N. ed., 1995).
37. I find revealing the absence of any explicit reference in the Secretary-General's
Report and its addendums, U.N. Doc. A/CN.9/378 (July 5-23, 1993) (24 UNCITRAL
Y.B. 1993) (U.N. Pub., Sales No. E.94.V.16), where a series of topics for the task ahead
were presented at the twenty-sixth session of the Commission. The closest thing
mentioned, is a "Legal guide on marine insurance contracts" in "Proposalson specific types of
contracts". See id. at 3. The Commission's position for the promotion of HamR, is
obvious in the Report of the United Nations Commission on International Trade Law on
the Work of its Twenty-Sixth Session, in which paragraphs 325 to 328 recall the coming
into effect of the Instrument and the coordination needed at the heart of the United
Nations. See U.N. GAOR, 48th Sess., Supp. No. 17, U.N. Doc. A/48/17 (1993).
One of its agencies, the Economic and Social Commission for Asia and the Pacific
("ESCAP"), was truly exceeding normal bounds by advising States in a manner running
"counter to the recommendations contained in General Assembly resolutions." Id.
In fact, in the next Plenary Meeting, the passage mentioned
above was used as a reminder to the Commission, that without
making any decisions considers a CMI report about how its work
In 1996, the twenty-ninth session of the Plenary Meeting of
the Commission, the comments of the report have an unusual
origin: the discussion of the report from the Working Group on
Electronic Data Interchange ("EDI") .42 The Commission
further debated issues involving the documents pertaining to
transport by sea in an electronic context.4 3 Logically, the
transference and negotiation of the bill of lading (and of the other
transport documents) encompassed other aspects, about which
the Working Group found it necessary to consult with the
Commission, convinced that it was important to have input into a
decision at that higher level.4 4
CN.9/510 (May 7, 2002) [hereinafter Ninth Session Report];. UNCITRAL, Report of the
Working Group on TransportLaw on the Work of Its Tenth Session, U.N. Doc. A/CN.9/525
(Oct. 7, 2002) [hereinafter Tenth Session Report]; UNCITRAL, Report of the Working Group
on TransportLaw on the Work ofIts Eleventh Session, U.N. Doc. A/CN.9/526 (May 9, 2003)
[hereinafter Eleventh Session Report]; UNCITRAL, Report of the Working Group on Transport
Law on the Work of Its Twelfth Session, U.N. Doc. A/CN.9/544 (Dec. 16, 2003)
[hereinafter Twelfth Session Report]; UNCITRAL, Report of the Working Group on TransportLaw on the
Work of Its Thirteenth Session, U.N. Doc. A/CN.9/552 (May 24, 2004) [hereinafter
Thirteenth Session Report]. Nor is it shared by the CMI. See generally infra note 58 and
accompanying text (the President's words at the opening of the Conference of July 6, 2000, in
the U.N.). Both series of documents locate the point of departure at the 1996
UNCITRAL Plenary Meeting.
41. See UN GAOR, 50th Sess., Supp. No. 17, 430-33 (1995). As in the past, the
convenience of achieving greater adherence to the HamR was reiterated. See id. 433.
42. UN GAOR, 51st Sess., Supp. 17, U.N. Doc. A/CN.9/421 (1996).
43. The subject came up throughout a document sent to the thirtieth session of
the Working Group for its consideration. See U.N. GAOR, 51st Sess., U.N. Doc. A/
CN.9/WG.IV/WP.69 (1996). Paragraphs 1-3 of that document explain that the study of
the possibility of transforming the bills of lading into the object of trade and
transference in the EDI context led to the topic of the document. See id. 1-3.
44. The Working Group Report lists the aspects mentioned throughout the
discussion, including, inter alia, relations between buyer and seller; retention of the
document; right of control over the goods to which the document refers; possibility of using
the document as a warranty. See id. 31, 36, 67.
The emphasis was on the agreement about how little regulation Uniform Law
exercised over those points, as well as the flimsiness of the Model Law in resolving them. See
id. 1 86-87.
There was agreement about the convenience of revising the Uniform Law in order
to realign the subjects being debated, and a caution that such a task would have to be
performed in tandem with the main actors in the field: CMI, etc. See id. 67-68, 87.
The need for the Commission to debate the subject and arrive at some conclusion
would seem to be quite obvious.
temporarily the list of exceptions featured in the Project.89 The
issues of shared liability or contributing cause, deviation
(including the cargo on deck) and delay, were likewise addressed.90
There was also agreement about freight."
Sectors of the industry interested in the Project appeared to
give their opinions about the text. Comments were made by the
representatives of the Baltic and International Maritime Council
and the International Chamber of Shipping, Protection &
Indemnity Club Group at the end of the session. 2
The third meeting of the Working Group was highlighted
by the conclusion of the first complete reading of the Project 3
(except for the electronic documents, which were left for later).
There was a series of decisions adopted by the Working Group;
four subjects were discussed in greater detail: documentary
aspects of the goods which are the object of transport, delivery of
the goods to the consignee, right of control over the goods in
transit, and transference of ownership during transport.95 The
five remaining great subjects96 required less attention from the
Working Group, either due to the high degree of agreement
about their existence in the international community, or due to
the fact that at the present stage of the Project it would be
premature to begin discussing them in detail.
The discussion of the President's list was opened with the
general question about the objective scope of the Instrument,
for the purpose of moving to determine four other main
subjects: types of transport covered, relations of the Instrument to
the Conventions and to the national laws, coverage that
maritime performing parties would receive, the limits of liability, and
the way of resolving the issue of non-localized damages.
Logi89. Id. 38 (about the beginning of the comments and their claims); id. 45
(with respect to the conclusion).
90. Id. 9 46-56; id. 71-80; id. 9 65-70.
91. Id. 9 106-23.
92. Id. add.i; id. add.2.
93. Eleventh Session Report, supra note 40, 1 23.
94. The series of issues in epigraph "B" of the Eleventh Session Report, supranote 40,
219-67, are well-identified in the, so-called in the room, "President's list," the
decisive nature of which is evidentjust by looking at the table of contents of that document.
95. Id. It 24-61, 62-99, 100-26, 127-48 (respectively).
96. Id. 149-82 (exercise of the actions and term); id. 9 183-90 (general
average); id. 9 191-202 (other Instruments); id. 91 203-18 (limits to contractual freedom).
cally, it was just a matter of adopting a provisional solution, with
the goal of a progress report to the Plefiary Meeting.
To summarize, there was agreement to talk about transport
by sea with phases of land transport, before or after sea
transport. It was pointed out that one of the main pitfalls of the work
was to be found in the relation of the Project to the existing
transport conventions (i.e., CMR and COTIF) and to the
national law. The other subjects depended, in great measure, on
how this would be solved.9 7
2. Second reading (Sessions: 12th, 13th, 14th, 15th,
16th, 17th, 18th: 2003-06)
This three-year period could be characterized, in relation to
the rest of the genesis of the Rotterdam Rules, as "the crossing of
the desert": it takes -considerably more time than the other two
discrete parts in the development of the text together" and it
97. Eleventh Session Report, supra note 40, 219-67 (with respect to the details).
98. In addition to the Sessions in the title, the ordinary sessions of the Working
Group, there were other informal ones. See UNCITRAL, Report of Working Group III on
TransportLaw on the Work of its FourteenthSession, 166, U.N. Doc. A/CN.9/572 (Dec.
21, 2004) [hereinafter FourteenthSession Report]; UNCITRAL, Report of Working Group III
on TransportLaw on the Work of its Sixteenth Session, 243, U.N. Doc. A/CN.9/591 (Jan. 4,
2006) [hereinafter Sixteenth Session Report].
There are also very abundant electronic communications. See Thirteenth Session
Report, supra note 40, 167; Fourteenth Session Report, supra, 166 (for a couple of clear
Irrespective of the above, in each of the sessions indicated, the meetings of the
interested Delegations occurred again, outside the schedule of the ordinary sessions,
for the purpose of writing a text that would conform to what was outlined in the room,
normally so that the Working Group would be able to adopt it before the end of the
period of sessions in question. See UNCITRAL, Report of Working Group III on Transport
Law on the work of its Fifteenth Session, 1 216, U.N. Doc. A/CN.9/576 (May 13, 2005)
[hereinafter Fifteenth Session Report] (for references, together with the other aspects
However regional in nature, I must add to the ones already mentioned, the
meetings of the Delegations of the European Union, particularly important and intense
from the beginning of the discussions in the second reading about the jurisdiction
issues, eventually extendable-without imperative character-to arbitration (with
eventual attempts to extend the agenda to other issues, such as volume contracts, which was
immediately rejected in view of the forceful reply of some Delegations).
The inclusion of innovations in the working method outlined above was echoed at
the Plenary Meeting about the notification of the Thirty-Seventh Plenary Meeting,
eventually arousing reservations. See Report of the U.N. Commission on International TradeLaw
on the work of its Thirty-Eighth Session, New York, U.N. GAOR, 60th Sess., Supp. No. 17,
182-84, U.N. Doc. A/60/17 (2005).
has a notable (sometimes outstanding) documentary
The text prepared by the Secretariat9 9 which reflects the
agreements of the Working Group in the first reading, is
gradually replaced by documents that modify, partially, some of the
articles, or sections of the same.10 0 Such texts, in turn, are
replaced by others10 1 at a hectic pace that, toward the end of the
period we are considering, already required skill in preserving
the sequence, 10 2 a virtue for which there would always be
demand. 10 3 It is revealing, concretely, that the complete text of the
99. Note by the Secretariat on Transport Law: Draft instrument on the carriage of goods,
addressed by the U.N. Commission on InternationalTradeLaw Working Group III on Transport
Law, 12th Sess., Vienna, Oct. 6-17, 2003, U.N. Doc. A/CN.9/WG.III/WP.32 (Sept. 4,
100. See, e.g., UNCITRAL, Working Group III (Transport Law), Transport Law:
Preparationof a draft instrumenton the carriageof goods [wholly orpartly] [by sea]-Provisional
redraft of the Articles of the draft instrumentconsidered in the Report of Working Group III on the
work of its Twelfth Session, U.N. Doc. A/CN.9/WG.III/WP.36 (Mar. 23, 2004) (allowing
the Working Group in its thirteenth period of sessions to follow the amendments
agreed to in the twelfth period of sessions in UNCITRAL, Working Group III
(Transport Law): Draft instrumenton the carriageof goods [wholly orpartly] [by sea], U.N. Doc A/
CN.9/WG.III/WP.32 (Sept. 4, 2003)).
In turn, those amendments are the cause, in part, of the debate around a crucial
proposal of the U.S. during the development of the text. See UNCITRAL, Working
Group III (Transport Law): Preparationof a draft instrument on the carriageofgoods [wholly or partly] [by sea]. Proposal by the United States of America, U.N. Doc A/CN.9/WG.III/
WP.34 (Aug. 7, 2003).
101. See, e.g., UNCITRAL, Working Group III (Transport Law): Preparationof a
draft instrument on the carriageof goods [wholly or partly] [by seal-Scope of Application
Provisions, U.N. Doc. A/CN.9/WG.III/WP.44 (Feb. 17, 2005) (containing a document
prepared by the Secretariat with an eye on the fifteenth period of session consolidating the
contributions of an "informal drafting group" and an "informal Working Group," which
were adopted by the Working Group as solid grounds to continue the discussion).
102. See UNCITRAL, Working Group III (Transport Law): draft convention on the
carriageof goods [wholly orpartly][by sea], 2, U.N. Doc. A/CN.9/WG.III/WP.56 (Sept. 8,
2005) ("While the Working Group has not yet completed [sic] second reading of the
draft convention, it was thought that the [high] number of revisions to the most recent
consolidated text of the draft convention (contained in document A/CN.9/WG.III/
WP.32) that have been agreed upon by the Working Group called for the publication of
a more recent consolidated text.") (emphasis added).
103. All that I intend to show is illustrated with particular clarity upon reading the
reports of the Working Group to the Plenary Meeting (a quite excellent work from the
Secretariat, which allows one to understand, with a dose of patience, the reason for
every expression in the text of the Convention) during the period under consideration
in particular, the reports were not concerned with the sessions immediately following
the one in which a new text presented by the Secretariat was available. See, e.g.,
Fourteenth Session Report, supra note 98 (revealing in its table of contents two consecutive
drafts on Article 14); Fifteenth Session Report, supra note 98 (opening the discussion of
Instrument had two versions in the period under
Sometimes the Secretariat would be unable to provide a text
while the Working Group was reaching agreement because of
the fast pace of the debates.' ° This stage of the process
required a great number of hours of intense work by an increasing
number of persons. 10 6
Accordingly, this Section of the Article must be limited to
pointing out some of the most prominent aspects of the text,
some of them of a material nature, others of a merely formal
nature. Of the formal statements, the first is related to increased
attendance at the Working Group, particularly by Delegations
from Africa.' 7 The second is related to the order of proceeding
one of the precepts; even though it is true that it is concerned with one of the principal
aspects of the Project).
104. See, e.g., UNCITRAL, Working Group III (Transport Law): Draft instrument on
the carriageof goods [wholly orpartly] [by sea], U.N. Doc A/CN.9/WG.III/WP.32 (Sept. 4,
2003) (replaced in the sixteenth meeting of the Working Group by UNCITRAL,
Working Group III (Transport Law): Draft convention on the carriageof goods [wholly or partly]
[by sea], U.N. Doc. A/CN.9/WG.III/WP.56 (Sept. 8, 2005), which in turn is replaced by
another complete text of the Instrument Project, UNCITRAL, Working Group III
(Transport Law): Draft convention on the carriageof goods [wholly orpartly] [by sea], U.N.
Doc. A/CN.9/WG.III/WP.81 (Feb. 13, 2007), which starts being considered at the
nineteenth period of sessions).
105. The initial note of UNCITRAL, Working Group III, Transport Law:
Preparation of a draft instrumenton the carriageofgoods [wholly orpartly] [by sea], Scope of Application
Provisions, U.N. Doc. A/CN.9/WG.III/WP.44, demonstrates this point, which is
evidenced by the table of contents of the FourteenthSession Report, supra note 98, and the
Fifteenth Session Report, supra note 98, 12.
106. The final statements in the reports are a good guide in understanding the
joint effort. For example, documentation from the Working Group's Fifteenth Session
This informal intersessional work was said to have been extremely useful for
educational purposes, exchanging views and narrowing contentious issues. It
was said to be essential to the successful completion of the draft instrument
that that informal intersessional work continue, bearing in mind the need to
ensure that the quantity of documents produced by that process should be
compatible with the production by the Secretariat of official documents in all
official languages for presentation to the Working Group. The view was also
expressed that the use of small drafting groups within the Working Group had
been enormously helpful for the Working Group as a whole. There was full
support in the Working Group for the above views.
Fifteenth Session Report, supra note 98, 216.
107. This is difficult to notice by reading only the reports referred to in the
previous notes, since the list of Delegations does not give information about their activities.
The number of initiatives and the performance of the African Delegations were already
very prominent. Their presence was increasing and will likely be a determining factor
in the future. Also, some of the opposition to the work of the CMI is rooted in the fact
in the debates determined by the President. l"' The third
statement referred to the considerable number of documents that
the various Delegations contributed during the debate.1 °9
Among the most outstanding material aspects in the period
and without mentioning more than three points, even if only by
reason of balancing them with those just noted, the first one
could be the consolidation of the rules on carrier liability;11 ° the
second change affects the jurisdiction and arbitration rules,"l l
that the African Delegations were not represented in CMI. The issue is highlighted by
one of the informal documents that circulated on the occasion of the Seventeenth
Session of the Working Group III (Transport Law) in 2006: a contribution from Senegal
which began by increasing the number of ratifications for HamR to thirty-one and
called attention to the number of African countries (nineteen) that were represented.
108. The content of the final paragraphs of each report is revealing, as the
President therein designates the subjects to be examined in the succeeding sessions. See, e.g.,
Thirteenth Session Report, supra note 40, 166; FourteenthSession Report, supra note 98, 91
165; Fifteenth Session Report, supra note 98, 91215; Sixteenth Session Report, supranote 98, 91
242; UNCITRAL, Report of Working Group III (TransportLaw) on the Work of its Seventeenth
Session, 91235, U.N. Doc. A/CN.9/594 (Apr. 24, 2006) [hereinafter Seventeenth Session
109. The Delegations' submissions are sometimes informal; for example, the
document presented by Senegal. See supra note 107 and accompanying text.
However, when there is time, official submissions are made with reference
numbers and translations in all of the languages of the United Nations. To make an
itemized list of the total formal contributions and try to reflect on their specific influence
would be a much larger work than I intend. Nonetheless, the compilation of official
texts can be found on the UNCITRAL homepage. See UNCITRAL Working Groups,
Working Group III, Transport Law,
http://www.uncitral.org/uncitral/en/commission/working-groups/3Transport.html (last visited Feb. 26, 2009).
110. This is probably the first question of consequence. It is interesting to note
that once the provision was written, in spite of the fact that it was subject to various
attacks, the substance of the document did not change significantly. Where change is
present, it is purely formal. The Working Group embraced that text and adopted the
new agreement with loud applause. See generally UNCITRAL, Report of Working Group
III (Transport Law): Draft convention on the carriageof goods [wholly or partly] [by sea],
Sixteenth Session, (Vienna, 28 Nov.-9 Dec. 2005), U.N. Doc. A/CN.9/WG.III/WP.56 (Sept.
8, 2005). The Report of the Sixteenth Session on the Draft Convention on the Carriage
of Goods [wholly or partly] [by sea] contains a footnote that demonstrates its origin in
the Fourteenth Session Report. See FourteenthSession Report, supra note 98, 919311, 33, 75,
80 (noting the "broad support" for the adoption); see also UNCITRAL, Working Group
III (Transport Law): Draft convention on the carriageof goods [wholly orpartly] [by sea], art.
17, U.N. Doc. A/CN.9/WG.III/WP.81 (Feb. 13, 2007). Article 17 of the Draft
Convention on the Carriage of Goods [wholly or partly] [by sea], U.N. Doc. A/CN.9/WG.III/
WP.81, states in footnote fifty that the only changes introduced are of a formal nature.
The numeration is kept in the final text. For the preliminary draft, see UNCITRAL,
Working Group III (Transport Law): Preliminary draft instrument on the carriage of
goods by sea, Ninth Session, (New York, 15-26 April 2002), arts. 6.1.1, 6.1.2, 6.1.3, U.N.
Doc. A/CN.9/WG.III/WP.21 (Jan. 8, 2002).
111. The subjects ofjurisdiction and arbitration arose for the first time during the
finally, the third change codifies the difference between liner
transportation and non-liner traffic. 112
3. Third reading (Sessions 19, 20, 21: 2007-08)
The new sessions have new text, written by the Secretariat
with help from a group of experts."13 In the table of contents of
the report of the nineteenth session, the extraordinary progress
made is immediately apparent: on the first day alone, ten articles
(Article 2 through Article 12) were considered." 4
Fourteenth Session. In the Fifteenth Session, the Working Group laid out the
guidelines for international arbitration practice. See generally UNCITRAL, Working Group III
(Transport Law): Preparationof a draft instrument on the carriageof goods [wholly orpartly]
[by sea]-Arbitration: Uniform internationalarbitrationpractice and the provisions of the draft
instrument, U.N. Doc. A/CN.9/WG.III/WP.45 (Mar. 2, 2005).
This document in turn formed the basis for the commitment from the Delegation
of the Netherlands to present a set of proposals, which were presented at the Sixteenth
Session. See generally UNCITRAL, Working Group III (Transport Law): Preparationof a
draft convention on the carriageof goods [wholly orpartly] [by seal-Proposalby the Netherlands
on arbitration,U.N. Doc. A/CN.9/WG.III/WP.54 (Sept. 13, 2005). Note that this
proposal coincided with another document sponsored by the Delegation of the United
Kingdom. See generally UNCITRAL, Working Group III (Transport Law): Preparationof a
draft convention on the carriageof goods [wholly or partly] [by seal-Comments by the United
Kingdom of Great Britain and Northern Ireland regarding arbitration,U.N. Doc. A/CN.9/
WG.III/WP.59 (Nov. 18, 2005).
Also, the Conference Room Papers ("CRP") contributed to the solution of the
issue, which was essentially resolved by end of the session. The pending details
regarding jurisdiction and the final insertion are documented. See UNCITRAL, Working
Group III (Transport Law): Preparationof a draft convention on the carriageof goods [wholly
or partly] [by sea], Chapter 16: Jurisdiction, U.N. Doc. A/CN.9/WG.III/WP.75 (Aug. 23,
However, these changes were approved without too much difficulty during the
Eighteenth Session of Working Group III (Transport Law) in the Fall of 2006, when the
issue of arbitration was completed. See generally Report of Working Group IIl (Transport
Law) on the work of its eighteenth session, U.N. Doc. A/CN.9/616 (Nov. 27, 2006)
[hereinafter Eighteenth Session Report].
112. The original point of departure for the final agreement (adopted at the
Seventeenth Session in the Spring of 2006) was Finland's Proposal. See generally
UNCITRAL, Working Group III (Transport Law): Preparationof a draft convention on the
carriage ofgoods [wholly orpartly] [by sea]-Proposalby Finlandon scope of application,freedom of
contract and related provisions, U.N. Doc. A/CN.9/WG.III/WP.61 (Jan. 27, 2006).
113. See generally UNCITRAL, Report of Working Group III (Transport Law): Draft
convention on the carriageof goods [wholly or partly] [by sea], U.N. Doc. A/CN.9/WG.III/
WP.81 (Feb. 13, 2007).
114. Comparegenerally UNCITRAL, Report of Working Group Ill (TransportLaw) on the
Work of its Nineteenth Session, U.N. Doc. A/CN.9/621 (May 17, 2007) [hereinafter
Nineteenth Session Report], with Eighteenth Session Report, supra note 111. There were
delegations at the Nineteenth Session that questioned the need for the anticipated
This pace was maintained at the twentieth session, where
the President began with a warning about the amount of time
the Project had already taken, demonstrating graphically the
entire six months that resulted by adding the weeks taken by the
Working Groups to the days of informal meetings outside of the
As a result, members agreed to advance the meeting
scheduled for the Spring of 2008 to the second and third weeks of
January of the same year. This was done in order to allow more
time to complete the final reading of the draft, to circulate the
draft for analysis and comment to the governments, 1 5 and to
prepare the Instrument to be adopted at the Forty-First Plenary
Meeting.' 1 6
This review can be focused on some of the issues to be
decided. But first, it ought to be stated that the group of African
countries spoke in unison"' in opposition to what generally
constituted the majority in the room. 1 8 However, this does not
mean that they participated with one voice on all occasions.
The Report of the Session does not hide the thorniest
issue: 19 the insertion of volume contracts in the Instrument.
115. See U.N. GAOR, 40th Sess., Report of the United Nations Commission on
International Trade Law on the Work of its Fortieth Session, 184, U.N. Doc. A/62/17 (July 23,
116. See UNCITRAL, Report of Working Group IIl (Transport Law) on the Work of Its
Twentieth Session, 281, U.N. Doc. A/CN.9/642 (Nov. 2, 2007) [hereinafter Twentieth
117. See id. 1 2-7 (citing the "Seminar of Barcelona," an initiative from the
Spanish Delegation, together with the Secretariat and other Delegations (Italy and
Switzerland), with the help of the law firm CuatrecasasAbogados, which summoned Delegations
from Africa at the "count city" some days before the Vienna session in order to examine
the Project and try to bring some positions closer together).
118. As in previous sessions, the Delegation from Chile (a HamR state party)
tended to separate itself from the positions defended by the Delegation of Senegal.
Senegal was generally the first to express its opinion, followed by the other African
Delegations (and backing their statements mainly in HamR). Along with Chile, Austria
(also a HamR state party) tended to distance themselves from the positions defended
by Senegal and the other African Delegations.
119. See Twentieth Session Report, supranote 116, 7 279-80 (The Delegation is not
herein identified.); see also Nineteenth Session Report, supra note 114, 7 161-72; see
generally UNCITRAL, Working Group III (Transport Law): Preparationof a draft convention on
the carriageof goods [wholly orpartly] [by sea],JointProposalby Australiaand Franceconcerning
volume contracts, U.N. Doc. A/CN.9/WG.III/WP.88 (Mar. 14, 2007); U.N. GAOR, 39th
Sess., Report of the United Nations Commission on International TradeLaw on the Work of its
Thirty-Ninth Session (19 June-7July 2006), 7 197-99, U.N. Doc. A/61/17 (ending in an
agreement to confine that discussion to the Working Group).
This question is related to almost everything in the Project, since
it marks a large area of non-application of the text by
exculpations that some Delegations rejected, 12' although opposition
decreased over the last sessions.
The meeting also clarified the issues still awaiting resolution
in the final negotiation: the so-called negotiation basket. The
"basket" includes Articles 62, 63, 99, 26 and 26bis, 12 1 which are
presented with the determination of the amount of limited
Finally, Session 21, the last session of the Working Group,
was devoted to an article by article revision of the last Project
Draft.12 2 The Delegations performed the revision with attention
120. See generally UNCITRAL, Working Group III (Transport Law): Preparationof a
draft instrument on the carriageof goods [wholly orpartly] [by sea], Proposalby the United States
of America, U.N. Doc. A/CN.9/WG.III/WP.34 (Aug. 7, 2003) (a proposal by the U.S.
Delegation on the then-called, Ocean Liner Service Agreements ("OLSA"));
TRAL, Working Group III (Transport Law): Preparationof a draft instrument on the car
riage ofgoods [wholly orpartly] [by sea], Commentsfrom Denmark, Finland,Norway and Sweden
(the Nordic countries) on the freedom of contract, U.N. Doc. A/CN.9/WG.III/WP.40 (Sept.
30, 2004) (containing the Nordic countries' reply to the above-mentioned U.S.
proposal). Contra UNCITRAL, Working Group III (Transport Law): Preparationof a draft
instrument on the carriageof goods [wholly or partly] [by sea], Proposal by the United States of
America, U.N. Doc. A/CN.9/WG.III.WP.42 (Nov. 8, 2004); UNCITRAL, Working Group
III (Transport Law): Preparationof a draft instrument on the carriage of goods [wholly or
partly] [by sea], U.N. Doc. A/CN.9/WG.III/WP.46 (Feb. 18, 2005) (comments by the
United Nations Conference on Trade and Development ("UNCTAD") Secretariat on
Freedom of Contract); UNCITRAL, Working Group III (Transport Law): Draft
convention on the carriageof goods [wholly orpartly] [by sea], Sixteenth Session, (Vienna, 28 Nov.-9 Dec.
2005), U.N. Doc. A/CN.9/WG.III/WP.56 (Sept. 8, 2005) (a note by the Secretariat
regarding the proposition adopted in November 2005); UNCITRAL, Working Group III
(Transport Law): Preparationof a draft convention on the carriageof goods [wholly or partly]
[by sea], U.N. Doc. A/CN.9/WG.III/WP.61 (an. 27, 2006) (a proposal from Finland on
the scope of application, freedom of contract and other related provisions);
TRAL, Working Group III (Transport Law): Preparationof a draft instrument on the car
riage ofgoods [wholly orpartly] [by sea], U.N. Doc. A/CN.9/WG.III/WP.66 (Feb. 17, 2006)
(this note was a response to a request for help from the Comite Maritime
International); UNCITRAL, Working Group III (Transport Law): Preparationof a draft
instrument on the carriage of goods [wholly or partly] [by sea], 6, U.N. Doc. A/CN.9/WG.III/
WP.70 (Feb. 27, 2006) (containing contributions of the Italian Delegation regarding
transport documents, the scope of application, freedom of contract and other related
121. See Twentieth Session Report, supra note 116, 133-66.
122. See UNCITRAL, Working Group III (Transport Law): Draft convention on the
carriageof goods [wholly orpartly] [by sea], Note by the Secretariat, 2, U.N. Doc. A/CN.9/
WG.IlI/WP.101 (Nov. 14, 2007) (stating that the resolutions of the Group in its
nineteenth and twentieth meetings are consolidated).
to the two large issues of Volume Contracts and the Limits of
The new draft led the President to highlight the policy of
the session: the session would only review the aspects about
which no agreement had yet been made, absent a strong
consensus to do otherwise. 123 The Delegation from Senegal replied
immediately with a notification that the African countries demand
a better balance in the Convention in order to accomplish
greater acceptability of the Instrument.124
As before, the definitions are analyzed following the
substantial nouns of the precepts that refer to them. The
definitions of "transport," "document," and "container" are modified
accordingly, 125 although the modification is limited. 126 Most
crucially, Finland led the adoption of a formula for volume
contracts, which was followed by almost all of the Delegations.1 27
With that agreement, the great issues were reduced to the
amount of the limits of the liability of the carrier and related
issues (i.e., the negotiation basket). In order to resolve them,
once the fourth reading was ended on Tuesday, the
twenty-second, at noon, the President summoned an evening session
where a reduced group of Delegations brought their positions
closer to each other and achieved consensus. That meeting
ended on Wednesday at half past ten in the morning, with the
presentation to the Working Group of CRP.5: the resolution
document. In brief, the amount of the limited liability was SDR875
per package or freight unit, and SDR3 per kilogram, and two
and a half times the actual freight in case of delay.128
C. The Forty-first Plenary Meeting of UNCITRAL
After electing Professor Illescas as President, the forty-first
Plenary Meeting of UNCITRAL initiated debates on the Project
using the same procedure as in the Working Groups: substantive
articles, one by one, and according to their order (when the
proposals or observations presented by the governments would also
be dealt with), to proceed with the related definitions, before or
after examining the basic provisions. 129
Very few modifications were added to the text, which does
not mean that no proposals were presented. 130 However, the
Plenary Meeting accepted the choices of the Working Group,13 1
with few exceptions. 13 2 In some instances, the Plenary
128. See id. add., art. 61.1 (incorporating the Project Draft pursuant to the
resolutions of the Twenty-First Session); see also id. 911183-88 (discussing the draft); id.
196-203 (discussing the adoption of the resolution and explaining some of the
The currency value of the SDR is determined by summing the values in U.S.
dollars, based on market exchange rates, of a basket of major currencies (the U.S. dollar,
Euro, Japanese yen, and pound sterling). The SDR currency value is calculated daily
and the valuation basket is reviewed and adjusted every five years. International
Monetary Fund, SDR Valuation, http://www.imf.org/external/np/fin/data/rmssdrv.aspx
(last visited Feb. 16, 2009).
129. See U.N. GAOR, 41st Sess., Report of the United Nations Commission on
International Trade Law, Forty-FirstSession, 91 9, 15, U.N. Doc. A/63/17 (July 2008) (regarding
the election of the table and the working method).
130. See UNCITRAL, Draftconvention on contractsfor the internationalcarriageof goods
wholly or partly by sea. Compilationof comments by Governments and
intergovernmentalorganizations, Adds. 1-14, U.N. Doc. A/CN.9/658 (Apr. 15, 2008) (providing an itemized list of
proposals submitted with sufficient notice). There were oral proposals as well.
131. See id., add. 11, 917 (containing a proposal from Germany, which includes
interpretative issues). For the debate, see Report of the United Nations Commission on
InternationalTrade Law, Forty-FirstSession, supranote 129, 91 39-44. With regard to the
preference for the option adopted in the Working Group, see id. 1 43. Another example of
a similar solution refers to the discussion of Article 18 (particularly, its third
paragraph). Senegal intervened to reiterate the position of the group of countries favoring
a redraft of Article 18. See Draft convention on contractsfor the internationalcarriageof goods
wholly or partly by sea. Compilationof comments by Governments and
intergovernmentalorganizations, supra note 130, add. 1, 91981-12. This proposal was followed in various iterations
by some of the Delegations. See id. 91 31-37. However, the provision is not modified. See
Report of the United Nations Commission on InternationalTradeLaw, Forty-FirstSession, supra
note 129, 91 67-77.
132. See Draft convention on contracts for the internationalcarriage of goods wholly or
partly by sea. Compilation of comments by governments and intergovernmental organizations,
supra note 130, 9123; id. add. 11, 9111; id. add. 9, 9110; Report of the United Nations
followed the practice of the Working Group when faced with
extremely difficult cases: to have the President invite certain
Delegations to present a clarifying proposal to decide the matter.1 3 3
With respect to the two most disputed questions (volume
contracts and limits of liability), the Plenary Meeting endorsed
the resolution from the Working Group without any alterations,
in spite of amendments and attempts to modify them.' For
convenience of reference, articles of the Convention relevant to
the port phase are appended, as approved by the Forty-First
Plenary Session of UNCITRAL.
III. LIABILITY FOR THE GOODS AT THE PORT
IN THE CONVENTION
The Project lacks a definition of the "port area," or
"port,"' 5 in spite of the fact that the Instrument employs both
When the question was examined, not even the vague
operative in the OTT Convention was approved. 37
Commission on InternationalTradeLaw, Forty-FirstSession, supra note 129, 45-52,
5961. Another example of a complete amendment adopted, is the one that follows the
suggestion from Australia. See Draft convention on contractsfor the internationalcarriageof
goods wholly or partly by sea. Compilation of comments by Governments and intergovernmental
organizations,supra note 130, 46-47.
133. See Report of the United Nations Commission on InternationalTradeLaw, Forty-First
Session, supra note 129, 112-21.
The proposal from the African Delegations noted some insertions. See Draft
convention on contracts for the international carriage of goods wholly or partly by sea.
Compilation of comments by Governments and intergovernmental organizations, supra
note 130, add.1 13-15.
134. See Report of the United Nations Commission on InternationalTradeLaw, Forty-First
Session, supra note 129, 195-200, 243-46.
135. See id. 79-81. The last time a definition of the port area was proposed, at
the Forty-First Plenary Meeting, it did not take effect.
136. See generally UNCITRAL, Report of the Drafting Group (Transport Law):
Draft Convention on Contracts for the International Carriage of Goods Wholly or Party
by Sea, U.N. Doc. A/CN.9/XLI/CRP.9 (June 27, 2008) [hereinafter Rotterdam Rules]
(Article 1.7 relates to the definition of "maritime performing party", Article 19 relates
to the liability of maritime performing parties; Article 5 relates to the general scope of
application of the Instrument; Article 39 relates to the "deficiencies in the contract
particulars"; Article 50 relates to the "exercise and extent of right of control"; Article 66
relates to the determination ofjurisdiction in matters against a carrier; Article 68 relates
to jurisdiction in matters against a maritime performing party; Article 75, relates to
137. See UNCITRAL, United Nations Convention on the Liability of Operators of
TransInstead, the Commission preferred to defer the matter to
whichever national law regulated the port in question, with confidence
that, in any specific case, national law would govern to
determine the port area boundaries. 1 8
Consequently, the "port phase" of the goods for the
Rotterdam Rules, constitutes one stage of the many that can be
distinguished during transport. It will only be possible to determine
transport section limits by using a case by case analysis.
Determining these limits depends on the port in question, its
geography, the modality of the subject goods, other details of the
contract, and, most importantly, the law regulating the port.
The sector's geographic limits are important for the
Instrument to help to determine the concept of the "maritime
performing party." 3 ' However, the delineation of those limits in
port Terminals in InternationalTrade, art. 1 (a), U.N. Doc. A/CONF.152/13 annex (1994)
[hereinafter OTT Convention] (defining "Operator of a transport terminal" as a "person
who, in the course of his business, undertakes to take in charge goods involved in
international carriage in order to perform or to procure the performance of
transport-related services with respect to the goods in an area under his control or in respect of
which he has a right of access or use.").
138. Compare Twelfth Session Report, supra note 30, 1 30, with 07Y Convention, supra
note 137, 50, 69 (which reflect the insistence on the same point from different
The subject was not treated again until the Nineteenth Session Report, when the
ideas expressed up until then were reiterated, adding the failure of the HamR to define
the meaning of the term, despite continued usage of the term. See Nineteenth Session
Report, supranote 114, 1 149, 153. For the debate on other points, see id. 11 142,
139. See Rotterdam Rules, supranote 136, art. 1. The debate about the notion of the
port area emerged precisely from the discussion of the "maritime performing party."
Article 1.7 of the Rotterdam Rules reads:
"Maritime performing party" means a performing party to the extent that 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 of a ship and
their departure from the port of discharge of a ship. An inland carrier is a
maritime performing party only if it performs or undertakes to perform its
services exclusively within a port area.
Id. art. 1.7. The typical facilities of the port area are what introduce the distinction
between the "maritime performing party" and a general "performing party," which
helps the carrier in its duties. For this reason, space is left for such a definition in
Article 1.6, which is divided into two paragraphs:
(a) "Performing party" 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 person acts, either
directly or indirectly, at the carrier's request or under the carrier's supervision
each specific case is left to the ruling national law of each
port. 4 ° Therefore, if we consider the Instrument's text in
relation to any port and not a specific pier or class of goods, legal
limits trump the importance of geographic limits. This raises
the questions, addressed in the next Sections: what legal
consequences are implicated when speaking of "goods during the port
phase," and what are the principal legal coordinates for the
A primary legal implication of the port phase, illustrated
previously, is the distinction between "performing party" and
"maritime performing party." The only difference between
"performing party" and "maritime performing party" is the
relationship each has with the port where one or the other exists as an
operator who replaces the carrier in carrying out its obligations.
That difference invites us, first, to mark the legal distinction
of the port area and, second, to clarify who can manage the
goods in that period of time.
In answer to the first question: port area means where the
goods are between (using Article 1.7 language) their "arrival...
at the port of loading of a ship and their departure from the
port of discharge of a ship." 1 '
The second interrogative presents four options about the
provider of services for the goods on land, before the journey by
sea begins and after its conclusion. The first option is the
carrier,"' which is excluded in Article 1.7; then the maritime
performing party, carrying out obligations of the carrier. Secondly,
(b) "Performing party" does not include any person that is retained, directly
or indirectly, by a shipper, by a documentary shipper, by the controlling party
or by the consignee instead of by the carrier.
Id. art. 1.6.
140. See Conventionfor the Unificationof CertainRulesfor InternationalCarriageby Air,
art. 18.4, May 28, 1999, 1999 U.S.T. LEXIS 175 [hereinafter "Montreal Convention"].
Article 18.4 gives a similar importance to the airport setting, since it has created
multiple jurisprudential difficulties. See id.
We addressed this subject in David Mordn Bovio, La responsabilidad del porteador
abreo internacional de mercaderias un estudio acerca del articulo 18 de la Convenci6n
de Varsovia, in Dun-rro DEi TRASPORTI 1-43 (1996). The Warsaw Convention and the
Montreal Convention are almost in agreement on this point.
141. Rotterdam Rules, supra note 136, art. 1.7.
142. See infra Part 1V.B.
it could be the shipper or the consignee.1 4 The third option is
the maritime performing party.1 44 Finally, the fourth option is
the "[customs] authority ... or other third party. "'145
B. Controlled by the Carrier
The carrier may have facilities and personnel at the port
terminal that do not require the participation of another operator
and the authority of the terminal may not require the goods to
be delivered to it or to a third party. 4 6
In such a case, the carrier remains liable for the goods while
they are on the pier in the same way as if they were in another
section of the area during which the carrier has liability for
them. Such liability attaches from the moment the carrier (or a
performing party) receives the goods for transport, until they are
delivered1 4 7 to the person entitled to receive them. 148
This liability is established by Article 17, with the noteworthy
exception of Article 26, by which the carrier's liability can be
modified, before loading and after unloading in the port area by
the party responsible under the CMR or the COTIF. 149 These
treaties are not in force in North America, thus the exception
will be of concern to Europeans (and to some states in Asia and
Africa) for the most part.
With the regulation of liability provided for in Article 17,
other provisions control the carrier's liability for the goods:
Article 18, by virtue of which, the carrier is liable for any person
servicing the goods; and Article 20, according to which such
liability is of a joint nature.
All things considered, the only incidence derived from the
presence of the goods in the port area, while they are kept as the
object of the carrier's duties concerns the eventual application
of Article 26. But, if the highly strict conditions for the
applicability of that Article have not occurred, the carrier will be liable
for the goods in the port as in any other portion of the transport.
C. Kept by the Shipper or by the Consignee
The provision that merchandise may remain in the port
area under the custody of the shipper or the consignee... is
provided by Article 13.2, limited by Article 12.3, and acknowledged
in Article 17.3(i). Article 13.2 allows parties to agree in the
transport contract that the "loading, handling, stowing or
unloading of the goods" should be performed by a party other than
the carrier. Article 12.3 keeps the carrier liable for whatever
occurs from the beginning of loading until the unloading.
The coincidence of both propositions is understandable
due to the efforts to prevent the Project from undoing the
validity and effects of the Free-in-Free-out ("FIO") clauses. 15 1 In fact,
both mandates can be reconciled if the carrier is always liable for
the loading or the unloading, while the shipper or consignee
pay for those services. 15 2
150. See id. art. 1 (identifying the interested parties: "shipper" (art. 1.8),
"documentary shipper" (art. 1.9), "holder" (art. 1.10), "consignee" (art. 1.11), and
"controlling party" (art. 1.13)).
151. Free-in-Free-out ("FIO") clauses transfer the obligation to nominate and the
duty to pay stevedores to load, stow, and discharge the cargo, they can also transfer the
responsibility for proper performance of such operations. For a general discussion of
FIO clauses see, Martin Davis, Two views of Free In and Out, Stowed Clauses in Bills of
Lading, AuSTRALIAN Bus. L.R. 198 (1994).
152. This statement is common in the texts on which the Instrument is based. See,
e.g., Twenty-First Session Report, supra note 123, 44-48. The unfolding of an apparently
inappropriate discussion can also be seen. See id. Upon reading the conclusion
contained in Paragraph 49, it seems appropriate to leave the provision intact. See id. 49.
This agreement, whereby the carrier is liable for the loading
and unloading of the goods while the shipper or consignee pays
for it, must be expressly stipulated in the contract.15 This type
of agreement does account for goods while they are on the
pier-before loading or after unloading-implying that the
carrier might not be liable for the goods during this period. This
can be reconciled with liner transport by stating the possibility
that the carrier is not liable for goods that are in its custody, this
can be better understood if we consider, first, the demand of the
express agreement and, second, if we keep in mind the case of
special or not ordinary transport where it is advisable to dispense
with the services of the carrier to rely on expert handling under
custody of the consignee or the shipper.
Article 17.3(i) of the Rotterdam Rules deals expressly with
this issue, absolving the carrier from liability for the port
operations it does not complete, unless the carrier acts on behalf of
another interested party concerned with the goods. 5 4
Another option includes a third party: the "maritime
performing party," responsible for all activities that take place at the
This is a performing party in the sense of the definition in
Article 1.6,15 which actions are restricted to the port area. 156 In
that setting, the "maritime performing party" carries out the
obligations that belong to the carrier. Otherwise, as a performing
party it is an independent operator that agrees to carry out, on
its own behalf, the duties of the carrier, under the carrier's
supervision or control, or at its request. The definition of
"performing party" excludes any person acting on behalf of the other
interested parties concerned with the cargo (shipper and
conWith regard to previous positions that were taken, see UNCITRAL, Working Group III
(Transport Law): Draft Convention on the Carriageof Goods [wholly orpartly] [by seal,
Sixteenth Session, (Vienna, 28 Nov.-9 Dec. 2005), art. 14 n.57, U.N. Doc. A/CN.9/WG.III/
WP.56 (Sept. 8, 2005).
153. The final mention of Article 13.2 seems to demand an explicit statement that
will avoid any oversight. See Rotterdam Rules, supra note 134, art. 13.2.
154. See id. art. 17.3(i).
155. See id. art. 1.6.
156. See id. art. 1.6(b).
signee) since in such cases the liability regime will be that of
The regulations of the liability of the carrier and of the
maritime performing party have been specified in Article 19 of the
Rotterdam Rules,157 excluding the increased amount of the
liability not expressly agreed to by the maritime performing party,
as a consequence of increased liability amount agreed to by the
carrier.' 58 This provision also governs the liability regime for the
servants and agents by excluding their personal liability. 59
E. Goods During the Port Phase that are out of the Control of the
MaritimePerformingParty, of the Shipper/Consignee
and of the Carrier
An additional scenario is possible: the goods can be on the
pier or, in a more general way, in the port phase, but outside of
the control of the above-mentioned parties, because, in the
words of Article 12.2 (a): the applicable "law or regulations of the
place of receipt require the goods to be handed over to an
authority or to other third party," and the more likely situation at
the port of delivery where control by customs officers is likely.160
In this case, that authority or third party's liability will be the
one enforced by the controlling regulations.
Normally, those entities are the above-called transport
terminals controlled exclusively by public entities where the
implementation of the tasks should be ruled by the OTT Convention
if it were in force. 61
The intervention of these public entities demonstrates a
se157. See id. art. 19.1(a) (providing that liability attaches so long as the maritime
performing party "received the goods for carriage in a Contracting State, or delivered
them in a Contracting State, or performed its activities with respect to the goods in a
port in a Contracting State.").
Alternatively, liability attaches if the occurrence that caused any loss, damage or
delay took place during the period between the arrival of the goods at the port of
loading and their departure; while the maritime performing party had custody of the
goods; or at any other time that the maritime performing party was participating in the
performance of any of the activities contemplated by the contract of carriage. See id. art.
158. See id. art. 19.2.
159. See id. art. 19.4 ("Nothing in this Convention imposes liability on the master
or crew of the ship or on an employee of the carrier or of a maritime performing
160. See id. art. 12.2(b).
161. See generally OTT Convention, supra note 137.
rious void in the uniform regime described by the Rotterdam
Rules, it might be necessary to consider ways to resolve that lack
of sequence in an amendment after the new Treaty is in force. It
may be possible to make use of the work performed by the OTT
Convention, provided it is revised to align it with the Rotterdam
It is necessary to study the process that produced the
Rotterdam Rules and consider the failings of the current law. The
situation is so unfortunate (as is well-known by the lawyers, judges,
and arbitrators, operators involved in moving cargo, who look
with disbelief when one tries to explain the existing situation of
non-uniformity) that I can only say, "We had to try something to
change it." Ratifications and coming into force must occur,
before the adequacy of the new means can be tested.
On the previous pages attention was focused on the process
from the current law to that of the possible future. Without
doubt, as in any human effort, the text may create problems that
we cannot now foresee. It would be imprudent to say that the
cause of those defects is to be found in frivolous treatment, a
lack of consideration of real problems, or in an absence of
carefully drawn language.
The previous pages have given evidence of the hours
devoted to these issues by experts in the CMI and in UNCITRAL
together with the time invested in past contributions on
transport law. It is not an easy task to show any aspect of the
Rotterdam Rules that have not been tested through application of the
current law, the decisions of the courts, the studies of experts, or
the practices of the businesses dedicated to the transport of
goods. Each precept of the Rotterdam Rules is explained by the
present reality of the shipping industry and from the perspective
of the laws that can best regulate that reality.
The current diversity of regulatory systems has facilitated
the selection of the most adequate solution to resolve the
ex162. Regarding the form of the hypothetical Instrument, a convention seems
preferable, since it may be the best formula to ensure the absence of differences between
the liability regimes of the parts involved in transport. It could alternatively be a Model
Law; however, then the effects of the intended unification would be entrusted to the
nations that adopted it and, to the extent that they did so, would probably be
isting difficulties. In this sense, it can be said that the Rotterdam
Rules, follow well-known and useful provisions of the current law
and, when this is not the case, in new provisions developed from
In the Rotterdam Rules, thanks to the influence of HamR,
Article 4, the justification for the Himalaya Clause in the port
area will disappear, the strict limitation of the liability period of
the carrier, from loading to unloading will no longer be effective
(except if it responds to an operational reality expressly
agreedto by the parties).
In any case, the most important thing is that Professor
Sweeney enjoys reading this Article. Likewise, if anyone is so blessed
as to find these pages useful, they will thank our honoree, rather
than the author: because the world would be a better place if
someone else receives all of the things that make me happy.
Article 12. Period of responsibility of the carrier
1. The period of responsibility of the carrier for the goods
under this Convention begins when the carrier or a performing
party receives the goods for carriage and ends when the goods
2. (a) If the law or regulations of the place of receipt
require the goods to be handed over to an authority or other third
party from which the carrier may collect them, the period of
responsibility of the carrier begins when the -carrier collects the
goods from the authority or other third party.
(b) If the law or regulations of the place of delivery require
the carrier to hand over the goods to an authority or other third
party from which the consignee may collect them, the period of
responsibility of the carrier ends when the carrier hands the
goods over to the authority or other third party.
3. For the purpose of determining the carrier's period of
responsibility, the parties may agree on the time and location of
receipt and delivery of the goods, but a provision in a contract of
carriage is void to the extent that it provides that:
(a) The time of receipt of the goods is subsequent to the
beginning of their initial loading under the contract of carriage;
(b) The time of delivery of the goods is prior to the
completion of their final unloading under the contract of carriage.
Article 13. Specific obligations
1. The carrier shall during the period of its responsibility as
defined in article 12, and subject to article 26, properly and
carefully receive, load, handle, stow, carry, keep, care for, unload
and deliver the goods.
2. Notwithstanding paragraph 1 of this article, and without
prejudice to the other provisions in chapter 4 and chapters 5 to
7, the carrier and the shipper may agree that the loading,
handling, stowing or unloading of the goods is to be performed by
the shipper, the documentary shipper or the consignee. Such
an agreement shall be referred to in the contract particulars.
The carrier is liable for the breach of its obligations under
this Convention caused by the acts or omissions of:
(a) Any performing party;
(b) The master or crew of the ship;
(c) Employees of the carrier or a performing party; or
(d) Any other person that performs or undertakes to
perform any of the carrier's obligations under the contract of
carriage, to the extent that the person acts, either directly or
indirectly, at the carrier's request or under the carrier's supervision
Article 19. Liability of maritime performingparties
1. A maritime performing party is subject to the obligations
and liabilities imposed on the carrier under this Convention and
is entitled to the carrier's defences and limits of liability as
provided for in this Convention if:
(a) The maritime performing party received the goods for
carriage in a Contracting State, or delivered them in a
Contracting State, or performed its activities with respect to the
goods in a port in a Contracting State; and
(b) The occurrence that caused the loss, damage or delay
took place: (i) during the period between the arrival of the
goods at the port of loading of the ship and their departure
from the port of discharge from the ship; (ii) while the maritime
performing party had custody of the goods; or (iii) at any other
time to the extent that it was participating in the performance of
any of the activities contemplated by the contract of carriage.
2. If the carrier agrees to assume obligations other than
3. A maritime performing party is liable for the breach of
its obligations under this Convention caused by the acts or
omissions of any person to which it has entrusted the performance of
any of the carrier's obligations under the contract of carriage
under the conditions set out in paragraph 1 of this article.
4. Nothing in this Convention imposes liability on the
master or crew of the ship or on an employee of the carrier or of
a maritime performing party.
Article 20. Joint and several liability
1. If the carrier and one or more maritime performing
parties are liable for the loss of, damage to, or delay in delivery of
the goods, their liability is joint and several but only up to the
limits provided for under this Convention.
326- 28 . 38. A note from the Secretariat pertaining to the status of HamR was presented .
Its conclusions are quite explicit, particularly Paragraph 39, which labels as "inaccurate,
the Instrument. Status of the HamburgRules , 1 39, U.N. Doc . A/CN.9/401/Add.1 ( 1994 ). 39 . See U.N. GAOR , 49th Sess., Supp . No. 17 , 251 , UN Doc . A/49/17 ( 1994 ).
toward achieving growth in the number of HamR endorsements . See id. 252 . 40. This statement is far from being a point in common . It is not shared by the
Report of the Working Group on Transport Law on the Work of Its Ninth Session , U.N. Doc . A/ 123. See UNCITRAL , Report of Working Group HII ( Transport Law) on the Work of its
Twenty-First Session , 9, U.N. Doc . A/CN.9/645 (Jan. 30, 2008 ) [hereinafter Twenty-First
Session Report]. 124. See id. 10 . 125. See generally UNCITRAL , Working Group III ( Transport Law): Preparationof a
simplify the definition of "transportdocument," U.N. Doc . A/CN.9/WG.III/WP.103 (Dec.
31, 2007 ). 126 . See generally UNCITRAL , Working Group III ( Transport Law): Preparationof a
CN.9/WG.III/WP.102 (Dec. 31 , 2007 ). 127 . See Twenty-First Session Report, supra note 123 , 235 - 52 (which presented CRP
4 (based on the favor of a significant number of Delegations, and using a more precise
formula for Article 83)) . The Twenty-First Session Report synthesizes the previous steps
(see id . 235 -42) ; summarizes the deliberations over the current step (see id . 243 -
49); and points out the minor modification to the definition of volume contracts (see
id. 250 - 53 ).