Rotterdam Rules: new laws cover liability in wide net . . .

The convention on contracts for the international carriage of goods wholly or partly by sea was primarily designed to govern the liability of carriers providing “wet multimodal transportation”.
But it also applies to cargo and delay claims brought by shipping lines against terminal operators acting as sub-contractors, Craig Neame and Ben Atkinson from the firm’s London office said.
“The convention also introduces new terminology including ‘maritime performing parties’,” the lawyers said.
“Terminal operators will fall within this definition.
“The convention makes all maritime performing parties jointly and severally liable to cargo interests for cargo claims, which means that cargo interests will, in due course, have several targets to pursue if cargo is damaged.
“The days of terminals relying on their own standard conditions  – further to the doctrine of ‘bailment on terms’ – or excluding liability altogether – further to the carrier’s Himalaya Clause – are probably numbered.”
They believe that, for many terminals, the new convention will mean accepting greater risk and the probability of a higher insurance spend.
“Terminal operators need to start thinking now about the impact that the new convention will have on their portfolio of contracts with shipping lines and cargo interests,” the lawyers said.
“Will their risk profile increase or are the majority of their services already customer friendly?
“They should also ask shipping line customers for their own assessments of the impact that the convention will have on cargo claims.
“Are carriers expecting to pass on more claims to terminals?
“Terminal insurers need to think about the impact that the convention might have on pricing risk and they should open early dialogues with brokers and assureds to identify value adding solutions (risk management, revised deductibles, etc.) to avoid deteriorating claims records and/or potential hikes in insurance spend.”
Chris Collins of TT Club Australian agent Thomas Miller (Australasia) agreed that Rotterdam, which would come into force a year after 20 countries had ratified it, would supersede the traditional marine conventions – the Hague, Hague-Visby, Hamburg rules – though he highlighted the position of the International Convention Concerning the Carriage of Goods by Rail (CIM) and the Convention on the Contract for the International Carriage of Goods by Road (CMR).
“It would be misleading to assume that it will be a super intermodal convention for at least two reasons,” Mr Collins said.
“One, Rotterdam will only apply if the intermodal carriage includes a sea leg.
“Two, it will be subordinate to existing ‘non-sea’ conventions, such as CMR, CIM and the Warsaw/Montreal air conventions.
According to the TT Club, salient points when comparing Rotterdam with existing conventions, in particular Hague-Visby, were:
• Rotterdam applies generally to international carriage contracts (that is, a bill of lading is not required – Art 4) Derogation may be possible in the case of volume contracts. (Art 80) The definition of “volume contract” has been criticised as being vague and open to manipulation by shippers and shipowners:
• The obligation to make the ship seaworthy is extended under Rotterdam to the entire voyage (that is, the ship has to be kept seaworthy –Art 14);
• Defences under Rotterdam are similar to the familiar Art IV(2) list in Hague-Visby, except that “fault in the navigation or management of the ship” is not on the list. (Art 17);
• Rotterdam limitation is SDR 875 per package or SDR 3 per kilo (whichever is the higher). As with Hague-Visby, excess value declarations are contemplated. Unlike Hague-Visby (but like Hamburg) liability for delay is expressly dealt with – limited to 2.5 times the freight. As with Hague-Visby, limitation can be broken in case of intentional or reckless conduct. (Arts 59-61);
• Claims under Rotterdam must be brought within two years. There is a “Hague-Visby 6 bis type” provision, allowing a claimant 90 days to start a recourse action after judgment or settlement. (Arts 62-64);
• Rotterdam treats important matters, which Hague-Visby leaves to domestic law, such as delivery of goods (Arts 43-49), rights of the controlling party (Arts 50-56) and transfer of rights (Arts 57-58).