Ocean Carriers

Fordham International Law Journal, Dec 2008

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.

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Ocean Carriers

FORDHAMINTERNATIONALLAWJOURNAL Fordham International Law Journal - 2008 Article 4 Copyright c 2008 by the authors. Fordham International Law Journal is produced by The Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj 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* INTRODUCTION GRA TULA CI6N (CONGRATULATIONS) A. Motive 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 transport laws. 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. liness.' 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 (1993). 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 RrVSTA 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 B. Topic 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., 1993). 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. C. Restrictions 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 prominent features. 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 Spanish Delegation. 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 the Carrier 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 4.2 BC/HR). 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, §§ 5.1.45.1.5; 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 bis.2 BC-VP/HR-V) 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 same direction. 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/ HR-V. 30 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 C. HamburgRules 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 nn.72-77. 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 inspectors. 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." II. PROJECTEDLAW 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 During the 1994 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. 2009] 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 is progressing.4" 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 references). 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 mentioned). 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 complexity. 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, 2003). 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 considera1 4 tion. 0 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 states: 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 Report]. 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, 2006). 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 TwentyFirst Session. 2009] 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 ordinary sessions. 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, 2007). 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 Session Report]. 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 liability. 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")); UNCI 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); UNCI 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 provisions). 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). 2009] to the two large issues of Volume Contracts and the Limits of Liability. 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 Meeting 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 dissents). 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 A. Limits 1. Geographic The Project lacks a definition of the "port area," or "port,"' 5 in spite of the fact that the Instrument employs both terms.13 6 definition 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 arbitration agreements). 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 perspectives). 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, 14448. 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 or control. 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 Rotterdam Rules? 2. Legal 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 D. MaritimePerformingParty Another option includes a third party: the "maritime performing party," responsible for all activities that take place at the port. 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 their principal. 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. 19.1(b). 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 party."). 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 Rules. 162 IV. CONCLUSIONS 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 counterproductive. 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 practical experience. 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. APPENDIX 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 are delivered. 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; or (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 or control. 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 ).


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Prof. Dr. David Morán Bovio. Ocean Carriers, Fordham International Law Journal, 2008,