. . . but could be a fuss about nothing

Drafting of the new rules that cover the carriage of goods wholly or partly by sea by the Comite Maritime International originally began in 1996.
They incorporate 94 articles, 18 chapters and 26 pages of rules, Mr Graham told an Ince seminar recently.
He described the new regulations as part Hague-Visby and part Hamburg, “but more”.
There was a big debate initially, he said, as to whether the new rules should be multimodal, but as about 50% of container movements involve both a sea and a land leg the decision was taken to make the rules address the issues that multimodal transport gives rise to.
The next step was whether to have a uniform system or a network system – with different systems for different legs.
The system that was eventually developed could be described as a partial network system, Mr Graham said, as the rules will apply to all disputes unless the damage occurred before the goods were loaded on the ship or after they were discharged from the ship, and only then if there is another convention like the CMR that applies on a compulsory basis.
“If you cannot tell where the damage occurred, which is often the case the Rotterdam rules will apply.”
The document is a large one and caters for electronic bills. It applies to negotiable and non-negotiable documents but does not apply to charter parties.
There is an opt-out available in the case of so-called volume contracts and this is likely to remain a confusing area.
Article 4, rule 2 of the convention constituted a big change as the “errors of navigation” defence has gone and the obligation to exercise due diligence has been extended to throughout the voyage.
Package limitation limits are up by about one third.
With regard to delay claims “you have to give notice in 21 days”, he said, and there are limits on what you can claim. The loss of the “errors of navigation” defence should help to decrease the number of cases that end up in court or arbitration, but initially this will be offset by the disputes that are likely to arise over the construction of the rules.
For example, in relation to the change in the way the rules deal with the burden of proof and apportionment of risk.
Turning to the issue of jurisdiction for court and arbitration proceedings, the Hague-Visby Rules do not say anything, while the Hamburg Rules do – another area that caused drafters a lot of concern but the compromise may please nobody, Mr Graham said.
Under the Rotterdam Rules, it is possible to contract in or out of the chapters dealing with jurisdiction and arbitration.
“As one of the reasons for bringing in these new rules was to try to create a new uniform system, it seems strange that right from the outset the new rules envisage two approaches to this important area.”
Under the chapter dealing with jurisdiction, it is possible, save in limited circumstances to sue the owner in a number of places, including where he has his place of business, where the goods were received, loaded or discharged or delivered.
Under arbitration provisions, the cargo claimant has the right to choose where the arbitration takes place as per the options outlined above.
The rationale appears to be to spread the experience of maritime arbitration around the globe, but Mr Graham said he could not see the sense of this.
“After all the parties should stick with the agreement they have made, unless they both choose to vary it.”