given opt-outs and the potential for more hybrid versions when Rotterdam Rules provisions are incorporated into national laws. On the multi-modal front, land based uni-modal conventions contain their own provisions extending application to other modes, raising more compatibility concerns. There are also suggestions that the Rotterdam Rules fail to sufficiently deal with decarbonisation efforts and which ought to require consideration of relative emissions in the available transport modes, as well as slow steaming in the sea leg. In all of this, industry itself has a role to play, through for example organisations such as Bimco in applying conventions through standard contractual forms on a balanced basis.
Absent the Rotterdam Rules coming into force, it seems likely that UNCITRAL will want to pick this up again. If not, there is a real danger in an increasingly protectionist world that we end up with an even greater patchwork of regimes. That is after all what the Hague Rules were designed to avoid and the Rotterdam Rules themselves halted efforts to revise US COGSA. How long will the heavily trade-oriented US continue to apply a1936 COGSA? Either way, the voices of shipowners and carriers need to be heard. They do not enjoy a level playing field with cargo interests in many developing economies, where some local systems unfairly find ways to make a carrier liable for paper shortages and pre-shipment issues, amongst others. Would a new cargo liability regime help to achieve a more balanced risk allocation in such places? Without one, will anything change?
Time to rethink?
In an increasingly complex world, the simplicity of the Hague/Hague-Visby Rules and the industry’s familiarity with them, provide a welcome degree of transparency, certainty and predictability. As for the allocation of risk, the above-mentioned English decisions are examples of the judiciary seeking to apply the rules in ways that reflect both the times, and the bargain struck between the parties.
The Rotterdam Rules recognized that the Hamburg Rules went too far in disturbing the carrier’s listed exceptions. Perhaps the Rotterdam Rules themselves went too far in
disturbing the brilliant simplicity of the Hague/ Hague-Visby Rules? Perhaps we can learn from another set of rules. The York-Antwerp Rules, designed to govern the principles of General Average, were first introduced in 1864 and have been updated over time. The 2004 version was rarely used, so CMI went back to the drawing board and following years of industry consultation, the 2016 version is now widely adopted. If all the good work is not to be lost, maybe the Rotterdam Rules should go back to drawing board aiming for a greater degree of simplicity? Otherwise, it may continue to be a hard sell to governments facing unprecedented challenges on matters seen as more important.
The author asked the CMI to comment on this article and is thankful to them for agreeing to publish these remarks:
The CMI is not as
pessimistic as the author and is optimistic that the Rotterdam Rules will come into force. As discussed at its Gothenburg Colloquium in May the time scale for any other reform is at least another generation away and in any event the CMI believes it unlikely that UNCITRAL or any other international body would wish to venture into this area when there is such an obviously acceptable regime available. In addition, CMI believes if any new regime were to be agreed it would look very much the same or worse for carriers by that time. CMI looks forward to working with the P&I clubs to see this much needed reform take place before regional or local reform causes even greater dis-uniformity.
140 | ISSUE 110 | DEC 2024 | THE REPORT
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