Abstract
The article examines the Rotterdam Rules’ regulation of compensation for damage other than the rules on the basis of liability. It covers the types of damage recoverable under the Rules, the burden of proof, the calculation of compensation, the limits of liability, and loss of the benefit of limitation of liability. It is concluded that the Rotterdam Rules clarify certain issues which are currently unclear under the conventions in force and national law, but does so without substantially departing from current practice, and that the Rotterdam Rules’ regulation of compensation for damage may, thus, as the rest of the convention, best be described as “an evolution rather than a revolution”.
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Notes
- 1.
The paper will not deal with the liability of the carrier, regarding which issue, see the article by Professor, Dr. Fehmi Ülgener; or with compensation by the shipper for damage suffered by the carrier, regarding which issue, see the article by Professor Tomotaka Fujita.
- 2.
One exception, though, may be found in article 52(4) which sets out that the carrier’s liability for failure to comply with instructions from the controlling party which has lead to loss of, damage to, or delay in delivery of the goods is subject to article 17.
- 3.
Cf. article 41.
- 4.
See the article by Professor, Dr. Fehmi Ülgener.
- 5.
No notice is required if the loss or damage is ascertained in a joint inspection by the person receiving the goods and the carrier, cf. article 23(3).
- 6.
As defined in article 1(5), i.e., the person entering into a contract of carriage with the shipper.
- 7.
The reports of the negotiations do not give clear support for either of the suggestions. At the 13th session of the Working Group, it was decided to change the clause so that notice should be given to “the carrier” rather to “the person against whom liability is being asserted” as the previous draft had set out, cf. A/CN.9/552, § 78. However, the report does not indicate why “the performing party that delivered the goods” was not included. The report of the 19th session of the Working Group shows that it was observed that the “same effect” refers to the notice referred to in paragraph 1, i.e., the notice for loss of or damage to the goods, cf. A/CN.9/621, § 116. However, an observation made by one delegation, at a stage when the deliberation of what would become article 23(4) was simply deferred until after the general negotiation of delay liability, cf. id. at § 115, does not seem conclusive.
- 8.
For the same view see Michael Tsimplis in Baatz et al. (2009), § [23-04].
- 9.
For example, under Danish procedural law the court might as a consequence assume that the documents which are not produced would in fact prove what the claimant claims they would if they had been produced, cf. the principle of adverse inference which is a principle known in some form or another in many jurisdictions.
- 10.
Article 4 rule 5(b).
- 11.
- 12.
The parties may agree on raising the liability of the carrier, cf. article 79(1)(b) e.c., and this may also be done by agreeing on a different calculation of the compensation than as set out in article 22, e.g. by including consequential loss.
- 13.
The treatment of situations with both damage to the goods and economic loss is, however, not completely clear. The uncertainty stems from the reference in article 60 to article 22 as a whole. The reference is, thus, also to article 22(3) which would exclude compensation for economic loss. However, this would seem to leave the second sentence of article 60 without meaning because this concerns “[t]he total amount payable pursuant to this article and article 59, paragraph 1”. Further, in the original draft, the draft article that eventually became article 22(3) provided that it applied “save as provided for in [the article dealing with delay liability and limitation thereof]”, cf. A/CN.9/WG.III/WP.21, § 6.2.3. The phrase was, however, deleted in the next consolidated draft because it was seen as unnecessary as the draft article referred to only dealt with economic loss, cf. A/CN.9/WG.III/WP.32 footnote 89. In hindsight, the deletion seems less fortunate, but this legislative history supports the fact that economic loss is compensable also in situations where the delay has led to loss of or damage to the goods as well as economic loss. Cf. also Diamond (2009), pp. 445, 482, who notes that article 22 also applies to loss or damage caused by delay, but then simply states that “[i]t does not apply to claims for financial loss unconnected with the loss of or damage to goods”. Michael Tsimplis also seems to presuppose that this is the case, cf. Baatz et al. (2009), § [60-02].
- 14.
Cf. A/CN.9/616, § 173.
- 15.
See particularly the negotiations at the 18th, 20th and 21st sessions of the Working Group in A/CN.9/616, § 162–174, A/CN.9/642, § 133–166, and A/CN.9/645, § 183–203.
- 16.
A claim may also be subject to limitation under the rules of global limitation of liability of vessel owners, cf. article 83 which sets out that the Rotterdam Rules do not affect the application of any international convention or national law regulating global limitation of liability.
- 17.
,5 SDR per kilo or 835 SDR per package, cf. article 6(1).
- 18.
SDR per kilo or 666,67 SDR per package, cf. article 4 rule 5(a) (as amended by article II of the SDR Protocol, 1979).
- 19.
pounds sterling per package, cf. article 4 rule 5.
- 20.
See A/CN.9/WG.III/WP.21, § 6.7.1., and WP.32, article 18(1).
- 21.
See A/CN.9/552, § 41–42, A/CN.9/642, § 152–153 and 165, and especially A/CN.9/645, § 189–190. See also A/CN.9/WG.III/WP.101, footnote 169, and A/CN.9/WG.III/WP.72, § 14–15.
- 22.
For the discussion in English law, see Treitel and Reynolds (2005), § 9-249 and the further reference to § 9-130, and Michael Tsimplis in Baatz et al. (2009), § [59-09] et seq. See also Stephen Girvin in Thomas (2009), p. 130. Under Scandinavian law, misdelivery is not considered to be subject to the per kilo and per package limitations set out in the Maritime Code (based on the Hague-Visby Rules), cf. e.g. Falkanger and Bull (2010), p. 315.
- 23.
See above, Sect. 7.4.
- 24.
Cf. Michael Tsimplis in Baatz et al. (2009), § [60-02].
- 25.
See instead the paper by Asst. Prof. Dr. M. Deniz Güner-Özbek.
- 26.
Similarly, if the delay in delivery “resulted from a personal act or omission […]” then the right to limit liability pursuant to article 60 is lost, cf. article 61(2).
- 27.
See the paper by Professor Michael Sturley who explains the role of this general approach in the negotiations of the Rules. See also the same author in Thomas (2009), p. 30 et seq.
References
Baatz Y et al (2009) The Rotterdam Rules – a practical annotation. Informa, London
Boyd SC et al (eds) (2008) Scrutton on charterparties, 21st edn. Sweet & Maxwell, London
Diamond A (2009) The Rotterdam Rules. LMCLQ:482
Falkanger T, Bull HJ (2010) Sjørett [maritime law], 7th edn. Sjørettsfondet Akademisk, Oslo
Thomas DR (ed) (2009) A new convention for the carriage of goods by sea – the Rotterdam Rules. Lawtext Publishing Limited, Witney
Treitel G, Reynolds FMB (2005) Carver on bills of lading, 2nd edn. Sweet & Maxwell, London
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Møllmann, A. (2011). Compensation for Damage. In: Güner-Özbek, M. (eds) The United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-19650-8_7
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DOI: https://doi.org/10.1007/978-3-642-19650-8_7
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