Remarks on the Hamburg and Rotterdam Rules
Berlingieri formulated two reflections of interest regarding the Hamburg Rules: first, the Hamburg Rules are not ratified by most of the important maritime powers in the world. Pro-carrier countries (many in Europe) are generally not in favour of the Hamburg Rules, which have mainly been ratified by pro-shipper countries, which creates an obstacle to the effective uniformity of laws and international harmonisation. Second, if there is already a certain degree of uniformity among a broad consensus of states, it is necessary to be prudent before promoting any new international regulation in order to guarantee a successful ratification and acceptance by most of the countries.
Article 90 of the Rotterdam Rules does not allow any reservations, but Chapters 14 (jurisdiction) and 15 (arbitration) are optional, requiring an opt-in declaration in accordance with Article 91. This allows states to operate in accordance with domestic legal frameworks -whether autonomous, conventional or from bodies such as the EU - in the delimitation of the scope of jurisdictional forums and commercial arbitration. Contracting states, including the EU, are the sole competent parties in matters set out in Chapter 14.
When a claimant sues a carrier - defined under Article 1(5) of the Rotterdam Rules as the person who concludes a transport contract with the shipper - the claimant is entitled to file a cargo claim before a competent court, as stated in Article 66 of the Rotterdam Rules. Both the Hamburg and Rotterdam Rules (Articles 21 and 66, respectively) provide lists of forums available to the claimant and include the jurisdiction of ports of loading or discharge or where agreed by contractual parties.
Additionally, the Hamburg Rules include the principal place of business of the carrier, while the Rotterdam Rules prefer the domicile of the carrier. The place ‘designated’ by the contract of carriage in the Hamburg Rules is a further option that is more restrictive under the Rotterdam Rules, which limit it to the place of receipt or the place of delivery under the contract of carriage. Under the Hamburg Rules, a claimant may choose to start proceedings against a carrier notwithstanding any jurisdiction clause between the carrier and the shipper.
Under the Rotterdam Rules, when a claim is filed against a maritime performing party (defined in Article 1(7) as a party that performs or undertakes to perform any of the obligations of the carrier between the ports of loading and unloading), the claimant can
- according to Article 68 - file a claim that includes any cargo damage before a competent court located in: (a) the domicile of the maritime performing party; (b) the port where the goods were received or delivered by the maritime performing party; or (c) the port at which the maritime performing party performs activities with respect to goods.[1]
A subjective forum is optional (selected by the parties), so a claimant is able to choose between subjective or objective forums (available under the Rules). Article 67 of the Rotterdam Rules allows parties to agree on an exclusive jurisdiction clause for volume contracts that is only enforceable under certain conditions. It states that jurisdiction derived from a choice of court agreement between the shipper and the carrier is exclusive and prevails over objective forums, unless an implied submission is agreed upon when conflict arises, according to Article 72.
Another difference between the two sets of rules appears in jurisdiction at the place of arrest. According to the Hamburg Rules, a carrier can submit to another jurisdiction when providing security for a claim. Article 70 of the Rotterdam Rules does not provide jurisdiction when a vessel is arrested unless the usual requirements apply or if an international convention that applies in that state so provides.
Arbitration under Chapter 15 of the Rotterdam Rules allows the application of the limitation of liability and defences according to Article 4. When parties opt for specialised maritime arbitration, the arbitration provisions prevail over the jurisdiction provisions. Chapter 15 also distinguishes between volume contracts that satisfy certain conditions and other contracts.
The arbitration agreement must fulfil the requirements of the Rotterdam Rules and, as Berlingieri points out, the Rotterdam Rules differ from English law because under Article 66(a) or 75(2)(b) of the Rules, a subrogated insurer would not be bound by the jurisdiction or arbitration clause. However, it is unclear what the result of a court testing the validity of the arbitration agreement and venue would be, both intra- and extra-EU. Such test would allow the court to focus on the merits of the dispute rather than determination of the venue, by not relying on different domestic laws that pose a risk of conflicting decisions on jurisdiction and merits of the dispute. The chosen court should assess the validity of a dispute resolution clause.
Parties should have the opportunity to provide for a choice of a neutral (or not) location with arbitrators specialising in maritime matters. The parties would feel encouraged to choose arbitration despite the approach taken in the Hamburg or Rotterdam Rules. The international consensus has to focus on a test for whether an arbitration clause is binding. However, the Hamburg and Rotterdam Rules do not indicate which court should apply such tests and it remains unclear for any country or EU Member State court. Focusing on jurisdiction issues rather than disputes on the merits is more costly and potentially creates the problem of conflicting decisions and difficulties for the recognition and enforcement of arbitral awards.[2]
The problem regarding the ratification of the Hamburg and Rotterdam Rules by EU Member States and the multiple opt-outs is that the forum needs some connection to the dispute, allowing a consignee to reasonably foresee the court having jurisdiction. This solution limits the number of competent forums in claims related to the carriage of goods by sea. Even if an express acceptance is not required, this limitation shows a will to protect the consignee. This argument is reinforced by the rejected European Parliament Resolution of 7 September 2010, which stated in its Recital O:
Whereas third parties may be bound by a choice-of-court agreement (for instance in a bill of lading) to which they have not specifically assented and this may adversely affect their access to justice and be manifestly unfair and whereas, therefore, the effect of choice-of-court agreements in respect of third parties needs to be dealt with in a specific provision of the Regulation.
The Brussels I Regulation (recast) is the relevant EU legislation that regulates jurisdiction and, under its Article 71, does not affect conventions that are already ratified by one or more EU Member States before the Regulation entered into force. Article 93(3) of the Rotterdam Rules allows economic integration organisations such as the EU the right to also opt into its arbitration provisions. The EU Commission could communicate such approval at the UNCITRAL Working Group Plenary Session. Alternatively, each EU Member State would have to opt in individually, as stated by Baatz.
It is doubtful that the Rotterdam Rules will ever enter into force due to the low number of ratifications and the lack of international harmonisation concerning applicable rules. The validity of the arbitration clause is subject to different rules even though most states are parties to the New York Convention. The incorporation of an arbitration clause could be stricter in jurisdictions outside English law, and there are no internationally uniform rules about the validity of an arbitration clause.
Baatz agrees. She emphasises the fragmented and confused international position, lacking international harmonisation on the applicable rules. A problematic issue for the parties’ freedom of choice is that the choice of venue can be restricted - although they can submit a dispute to arbitration under the New York Convention. As stated before, the incorporation of the arbitration clause could be stricter in some jurisdictions compared with the UK. An example is The Wadi Sudr (see Chapter 4, Anti-suit injunctions). The rales regarding third parties may differ depending on whether the transferee of the transport document or a subrogated insurer is bound by an arbitration clause. There is no clear international agreement as to whether the chosen arbitral tribunal, the court of the seat of arbitration or even a different court may decide the validity of the arbitration clause.[3]
As Alvarez Rubio remarks, the EU should pass new derivative or secondary legislation to rank and interpret norms as those contained in the Vienna Convention on the Law of the Treaties of 1969, in accordance with the rale of speciality followed by the CJEU. A chosen forum should be connected to a dispute to allow a consignee to select an appropriate court. The main problems arising from the Hamburg and Rotterdam Rules are multiple opt-outs and difficulties in ratification by EU Member States. The limitation of competent forums to protect B/L consignees is an additional obstacle to ratification. Only Cameroon, Togo, Benin, the Republic of the Congo and Spain have yet ratified the Rotterdam Rules, while most maritime powers, such as the UK, the US and China have not expressed any interest in doing so.
- [1] ibid. 2 Michael F Sturley, ‘Jurisdiction and Arbitration under the Rotterdam Rules’ (2009) 14(4) UnifL Rev 945 3 Alvarez Rubio, ‘Entre La Haya, Hambuigo y Rotterdam’ (n 110). 4 Berlingieri, ‘Uniformité du Droit Maritime. Quelques problèmes’ (n 126); Ramberg, ‘Unification of Transport Law: Difficulties and Possibilities’ (n 126); Berlingieri, ‘The History of the Rotterdam Rules’ (n 126). 5 Baatz, ‘Should Third Parties Be Bound by Arbitration Clauses in Bills of Lading?’ (n 101). 6 The arbitration agreement and venue is left to domestic law under Article 75(4)(d) of the Rotterdam Rules.
- [2] Yvonne Baatz, ‘Incorporation of a Charterparty Arbitration Clause into a Bill of Ladmg and its Effect on Third Parties’ in Miriam Goldby and Loukas Mistelis (eds), The Role of Arbitration in Shipping Law (OUP 2016) 107-131. 2 Binnaz Topaloghi, ‘The Validity of Jurisdiction and Arbitration Clauses as against Third Party' Holders of Bills of Lading - a Comparative Study under French, English and EU Law’ (2012) 44(61) Annales de la Faculté de Droit d’Istanbul 492. 3 Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, European Parliament resolution of 7 September 2010 on the implementation and review of Council Regulation (EC) No 44/2001 on jurisdiction and the recogmtion and enforcement of judgments in civil and commercial matters (2009/2140(INI)) [2011] OJ C308E/36; see Topaloghi (n 135). 4 Yvonne Baatz, ‘Jurisdiction’ and ‘Arbitration’ in Yvonne Baatz and others, The Rotterdam Rules: A Practical Annotation (Informa 2013) 233-234, 242. 5 Twenty ratifications are needed for the Rules to come into force and only five have been received as at December 2019. 6 National Navigation Co v. Endesa Generation SA (The Wadi Sudr) [2009] EWCA Civ 1397.
- [3] Baatz, ‘Incorporation of a Charterparty Arbitration Clause into a Bill of Lading and its Effect on Third Parties’ (n 134). 2 Alvarez Rubio, ‘Entre La Haya, Hainburgo у Rotterdam’ (n 110). 3 Adopted 23 May 1969, entered mto force 27 January 1980, 1155 UNTS 331. 4 ibid. 5 Michael F Sturley, ‘Can Commercial Law Accommodate New Technologies in International Shipping?’ in Ban? Soyer and Andrew Tettenbom (eds), New Technologies, Artificial Intelligence and Shipping Law in the 21st Century (Informa 2019) 24-25. 6 ibid 27. 7 Carlo Corcione, Third Part)- Protection in Shipping (Informa 2019) [6.10] and [6.14]. 8 ibid [9.26]; Manuel Alba and others, ‘Montevideo Declaration: The Facts’ (2010)
