Rotterdam Rules II

Carrier to deliver Goods

Unless otherwise agreed in the contract of carriage, the shipper must deliver the goods ready for carriage. In any event, the shipper must deliver the goods in such condition that they will withstand the intended carriage, including their loading, handling, stowing, lashing and securing, and unloading, and that they will not cause harm to persons or property.

The shipper must properly and carefully perform any obligation assumed under an agreement.

When a container is packed, or a vehicle is loaded by the shipper, the shipper must properly and carefully stow, lash and secure the contents in or on the container or vehicle, and in such a way that they will not cause harm to persons or property.


Obligations of Shipper

A documentary shipper is subject to the obligations and liabilities imposed on the shipper pursuant to the Convention and is entitled to the shipper’s rights and defences provided. This does not affect the obligations, liabilities, rights or defences of the shipper.

The shipper is liable for the breach of its obligations under the Convention caused by the acts or omissions of any person, including employees, agents and subcontractors, to which it has entrusted the performance of any of its obligations, but the shipper is not liable for acts or omissions of the carrier or a performing party acting on behalf of the carrier, to which the shipper has entrusted the performance of its obligations.


Information and Consequences of failure to provide

The carrier and the shipper must respond to requests from each other to provide information and instructions required for the proper handling and carriage of the goods if the information is in the requested party’s possession or the instructions are within the requested party’s reasonable ability to provide and they are not otherwise reasonably available to the requesting party.

The shipper must provide to the carrier in a timely manner such information, instructions and documents relating to the goods that are not otherwise reasonably available to the carrier, and that are reasonably necessary:

  • for the proper handling and carriage of the goods, including precautions to be taken by the carrier or a performing party; and
  • for the carrier to comply with law, regulations or other requirements of public authorities in connection with the intended carriage, provided that the carrier notifies the shipper in a timely manner of the information, instructions and documents it requires.

The shipper is liable for loss or damage sustained by the carrier if the carrier proves that such loss or damage was caused by a breach of the shipper’s obligations under the Convention.

Except in respect of loss or damage caused by a breach by the shipper of its obligations in relation to furnishing the below basic contract particulars or in relation to below particulars in relation to dangerous goods, the shipper is relieved of all or part of its liability if the cause or one of the causes of the loss or damage is not attributable to its fault or to the fault of any person referred to below

When the shipper is relieved of part of its liability pursuant to this provision the shipper is liable only for that part of the loss or damage that is attributable to its fault or to the fault of any person referred to below.


Information from Shipper

The shipper must provide to the carrier, in a timely manner, accurate information required for the compilation of the contract particulars and the issuance of the transport documents or electronic transport records, the name of the party to be identified as the shipper in the contract particulars; the name of the consignee, if any; and the name of the person to whose order the transport document or electronic transport record is to be issued, if any.

The shipper is deemed to have guaranteed the accuracy at the time of receipt by the carrier of the information that is provided according to paragraph 1 of this article. The shipper must indemnify the carrier against loss or damage resulting from the inaccuracy of such information.


Special rules on dangerous goods

When goods by their nature or character are, or reasonably appear likely to become, a danger to persons, property or the environment:

  • the shipper must inform the carrier of the dangerous nature or character of the goods in a timely manner before they are delivered to the carrier or a performing party. If the shipper fails to do so and the carrier or performing party does not otherwise have knowledge of their dangerous nature or character, the shipper is liable to the carrier for loss or damage resulting from such failure to inform; and
  • the shipper must mark or label dangerous goods in accordance with any law, regulations or other requirements of public authorities that apply during any stage of the intended carriage of the goods. If the shipper fails to do so, it is liable to the carrier for loss or damage resulting from such failure

Transport documents and electronic transport records

Unless the shipper and the carrier have agreed not to use a transport document or an electronic transport record, or it is the custom, usage or practice of the trade not to use one, upon delivery of the goods for carriage to the carrier or performing party, the shipper or, if the shipper consents, the documentary shipper, is entitled to obtain from the carrier, at the shipper’s option:

  • a non-negotiable transport document or, subject to conditions a non-negotiable electronic transport record; or
  • an appropriate negotiable transport document or, subject to conditions a negotiable electronic transport record, unless the shipper and the carrier have agreed not to use a negotiable transport document or negotiable electronic transport record, or it is the custom, usage or practice of the trade not to use one.

Content of Contract Particulars

The contract particulars in the transport document or electronic transport record must include the following information, as furnished by the shipper:

  • description of the goods as appropriate for the transport;
  • the leading marks necessary for identification of the goods;
  • the number of packages or pieces, or the quantity of goods; and
  • the weight of the goods, if furnished by the shipper.

The contract particulars in the transport document or electronic transport record must also include:

  • a statement of the apparent order and condition of the goods at the time the carrier or a performing party receives them for carriage;
  • the name and address of the carrier;
  • the date on which the carrier or a performing party received the goods, or on which the goods were loaded on board the ship, or on which the transport document or electronic transport record was issued; and
  • if the transport document is negotiable, the number of originals of the negotiable transport document, when more than one original is issued.

Content of Contract Particulars II

The contract particulars in the transport document or electronic transport record must further include:

  • The name and address of the consignee, if named by the shipper;
  • The name of a ship, if specified in the contract of carriage;
  • The place of receipt and, if known to the carrier, the place of delivery; and
  • The port of loading and the port of discharge, if specified in the contract of carriage.

The “apparent order and condition of the goods” refers to the order and condition of the goods based on:

  • a reasonable external inspection of the goods as packaged at the time the shipper delivers them to the carrier or a performing party; and
  • any additional inspection that the carrier or a performing party actually performs before issuing the transport document or electronic transport record.

Identity of the carrier

If a carrier is identified by name in the contract particulars, any other information in the transport document or electronic transport record relating to the identity of the carrier shall have no effect to the extent that it is inconsistent with that identification. If no person is identified in the contract particulars, but the contract particulars indicate that the goods have been loaded on board a named ship, the registered owner of that ship is presumed to be the carrier, unless it proves that the ship was under a bareboat charter at the time of the carriage and it identifies this bareboat charterer and indicates its address, in which case this bareboat charterer is presumed to be the carrier.

Alternatively, the registered owner may rebut the presumption of being the carrier by identifying the carrier and indicating its address. The bareboat charterer may rebut any presumption of being the carrier in the same manner.

Nothing prevents the claimant from proving that any person other than a person identified in the contract particulars is the carrier.

A transport document must be signed by the carrier or a person acting on its behalf. An electronic transport record must include the electronic signature of the carrier or a person acting on its behalf. Such electronic signature shall identify the signatory in relation to the electronic transport record and indicate the carrier’s authorization of the electronic transport record.


Deficiencies in the Contract Particulars

The absence or inaccuracy of one or more of the contract particulars does not of itself affect the legal character or validity of the transport document or of the electronic transport record. If the contract particulars include the date but fail to indicate its significance, the date is deemed to be:

  • the date on which all of the goods indicated in the transport document or electronic transport record were loaded on board the ship, if the contract particulars indicate that the goods have been loaded on board a ship; or
  • the date on which the carrier or a performing party received the goods, if the contract particulars do not indicate that the goods have been loaded on board a ship.

If the contract particulars fail to state the apparent order and condition of the goods at the time the carrier or a performing party receives them, the contract particulars are deemed to have stated that the goods were in apparent good order and condition at the time the carrier or a performing party received them.

The carrier must qualify the information referred to above to indicate that the carrier does not assume responsibility for the accuracy of the information furnished by the shipper if:

  • the carrier has actual knowledge that any material statement in the transport document or electronic transport record is false or misleading, or
  • the carrier has reasonable grounds to believe that a material statement in the transport document or electronic transport record is false or misleading.

The carrier may qualify the information above in the circumstances and in the manner set out below to indicate that the carrier does not assume responsibility for the accuracy of the information furnished by the shipper.


Carrier May Qualify Information in Some Cases

When the goods are not delivered for carriage to the carrier or a performing party in a closed container or vehicle, or when they are delivered in a closed container or vehicle, and the carrier or a performing party actually inspect them, the carrier may qualify the information referred to above if:

  • the carrier had no physically practicable or commercially reasonable means of checking the information furnished by the shipper, in which case it may indicate which information it was unable to check; or
  • the carrier has reasonable grounds to believe the information furnished by the shipper to be inaccurate, in which case it may include a clause providing what it reasonably considers accurate information.

When the goods are delivered for carriage to the carrier or a performing party in a closed container or vehicle, the carrier may qualify the information referred to above if:

  • the goods inside the container or vehicle have not actually been inspected by the carrier or a performing party; and
  • neither the carrier nor a performing party otherwise has actual knowledge of its contents before issuing the transport document or the electronic transport record; and
  • as to weight if neither the carrier nor a performing party weighed the container or vehicle, and the shipper and the carrier had not agreed prior to the shipment that the container or vehicle would be weighed and the weight would be included in the contract particulars; or
  • there were no physically practicable or commercially reasonable means of checking the weight of the container or vehicle.

Evidentiary effect of the contract particulars

Except to the extent that the contract particulars have been qualified in the circumstances and in the manner set out above a transport document or an electronic transport, the record is prima facie evidence of the carrier’s receipt of the goods as stated in the contract particulars.

Proof to the contrary by the carrier in respect of any contract particulars shall not be admissible when such contract particulars are included in:

  • a negotiable transport document or a negotiable electronic transport record that is transferred to a third party acting in good faith; or
  • a non-negotiable transport document that indicates that it must be surrendered in order to obtain delivery of the goods and is transferred to the consignee acting in good faith;

Proof to the contrary by the carrier shall not be admissible against a consignee that in good faith has acted in reliance on any of the following contract particulars included in a non-negotiable transport document or a non-negotiable electronic transport record:

  • the contract particulars in relation to particular of the goods when such contract particulars are furnished by the carrier;
  • the number, type and identifying numbers of the containers, but not the identifying numbers of the container seals; and
  • the contract particulars in relation to the leading marks.

If the contract particulars contain the statement “freight prepaid” or a statement of a similar nature, the carrier cannot assert against the holder or the consignee the fact that the freight has not been paid. This provision does not apply if the holder or the consignee is also the shipper.


Delivery of the goods

When the goods have arrived at their destination, the consignee that demands delivery of the goods under the contract of carriage shall accept delivery of the goods at the time or within the time period and at the location agreed in the contract of carriage or, failing such agreement, at the time and location at which, having regard to the terms of the contract, the customs, usages or practices of the trade and the circumstances of the carriage, delivery could reasonably be expected.

On request of the carrier or the performing party that delivers the goods, the consignee must acknowledge receipt of the goods from the carrier or the performing party in the manner that is customary at the place of delivery. The carrier may refuse delivery if the consignee refuses to acknowledge such receipt.


Delivery; Non-Negotiable Document

When neither a negotiable transport document or a negotiable electronic transport record has been issued:

  • the carrier must deliver the goods to the consignee at the time and location referred to above. The carrier may refuse delivery if the person claiming to be the consignee does not properly identify itself as the consignee on the request of the carrier;
  • if the name and address of the consignee are not referred to in the contract particulars, the controlling party shall prior to or upon the arrival of the goods at the place of destination advise the carrier of such name and address;
  • if the goods are not deliverable because the consignee, after having received a notice of arrival, does not, at the time or within the time period referred to above, claim delivery of the goods from the carrier after their arrival at the place of destination,) the carrier refuses delivery because the person claiming to be the consignee does not properly identify itself as the consignee, or  the carrier is, after reasonable effort, unable to locate the consignee in order to request delivery instructions, the carrier may so advise the controlling party and request instructions in respect of the delivery of the goods. If, after reasonable effort, the carrier is unable to locate the controlling party, the carrier may so advise the shipper and request instructions in respect of the delivery of the goods. If, after reasonable effort, the carrier is unable to locate the shipper, the carrier may so advise the documentary shipper and request instructions in respect of the delivery of the goods;
  • the carrier that delivers the goods upon instruction of the controlling party, the shipper or the documentary shipper is discharged from its obligations to deliver the goods under the contract of carriage.

Delivery; Non-negotiable Document that requires Surrender

When a non-negotiable transport document has been issued that indicates that it shall be surrendered in order to obtain delivery of the goods:

The carrier must deliver the goods at the time and location referred to above to the consignee upon the consignee properly identifying itself on the request of the carrier and surrender of the non-negotiable document. The carrier may refuse delivery if the person claiming to be the consignee fails to properly identify itself on the request of the carrier, and shall refuse delivery if the non-negotiable document is not surrendered. If more than one original of the non-negotiable document has been issued, the surrender of one original will suffice, and the other originals cease to have any effect or validity;

If the goods are not deliverable because  the consignee, after having received a notice of arrival, does not, at the time or within the time period, claim delivery of the goods from the carrier after their arrival at the place of destination,  the carrier refuses delivery because the person claiming to be the consignee does not properly identify itself as the consignee or does not surrender the document, or the carrier is, after reasonable effort, unable to locate the consignee in order to request delivery instructions, the carrier may so advise the shipper and request instructions in respect of the delivery of the goods. If, after reasonable effort, the carrier is unable to locate the shipper, the carrier may so advise the documentary shipper and

The carrier that delivers the goods upon instruction of the shipper or the documentary shipper is discharged from its obligation to deliver the goods under the contract of carriage, irrespective of whether the non-negotiable transport document has been surrendered to it.


Delivery when Negotiable Document is issued I

When a negotiable transport document or a negotiable electronic transport record has been issued the holder of the negotiable transport document or negotiable electronic transport record is entitled to claim delivery of the goods from the carrier after they have arrived at the place of destination, in which event the carrier shall deliver the goods at the time and location referred to above to the holder:

  • upon surrender of the negotiable transport document and, if the holder is one of the persons identified as shipper, the consignee or endorsee upon the holder properly identifying itself; or
  • upon demonstration by the holder, in accordance with the procedures for the method of issue and transfer that it is the holder of the negotiable electronic transport record;

The carrier shall refuse delivery if the above requirements are not met; if more than one original of the negotiable transport document has been issued, and the number of originals is stated in that document, the surrender of one original will suffice, and the other originals cease to have any effect or validity. When a negotiable electronic transport record has been used, such electronic transport record ceases to have any effect or validity upon delivery to the holder in accordance with the procedures for issue, transfer and endorsement.

If the negotiable transport document or the negotiable electronic transport record expressly states that the goods may be delivered without the surrender of the transport document or the electronic transport record, the following rules apply:

If the goods are not deliverable because  the holder, after having received a notice of arrival, does not, at the time or within the time period referred to above, claim delivery of the goods from the carrier after their arrival at the place of destination,  the carrier refuses delivery because the person claiming to be a holder does not properly identify itself as one of the shipper, consignee or endorsee  the carrier is, after reasonable effort, unable to locate the holder in order to request delivery instructions, the carrier may so advise the shipper and request instructions in respect of the delivery of the goods. If, after reasonable effort, the carrier is unable to locate the shipper, the carrier may so advise the documentary shipper and request instructions in respect of the delivery of the goods.


Delivery when Negotiable Document is issued II

The carrier that delivers the goods upon instruction of the shipper or the documentary shipper below is discharged from its obligation to deliver the goods under the contract of carriage to the holder, irrespective of whether the negotiable transport document has been surrendered to it, or the person claiming delivery under a negotiable electronic transport record has demonstrated, in accordance with the procedures for the issue, transfer and endorsement, that it is the holder.

The person giving instructions above must indemnify the carrier against loss arising from its being held liable to the holder. The carrier may refuse to follow those instructions if the person fails to provide adequate security as the carrier may reasonably request;

A person that becomes a holder of the negotiable transport document or the negotiable electronic transport record after the carrier has delivered the goods hereunder, but pursuant to contractual or other arrangements made before such delivery acquire rights against the carrier under the contract of carriage, other than the right to claim delivery of the goods;

Notwithstanding the above, a holder that becomes a holder after such delivery, and that did not have and could not reasonably have had knowledge of such delivery at the time it became a holder, acquires the rights incorporated in the negotiable transport document or negotiable electronic transport record. When the contract particulars state the expected time of arrival of the goods or indicate how to obtain information as to whether the goods have been delivered, it is presumed that the holder at the time that it became a holder had or could reasonably have had knowledge of the delivery of the goods.


Rights of the Controlling Party

The right of control may be exercised only by the controlling party and is limited to

  • the right to give or modify instructions in respect of the goods that do not constitute a variation of the contract of carriage;
  • the right to obtain delivery of the goods at a scheduled port of call or, in respect of inland carriage, any place en route; and
  • the right to replace the consignee by any other person including the controlling party.

The right of control exists during the entire period of responsibility of the carrier, as provided, and ceases when that period expires.

Except in the cases referred to in below, the shipper is the controlling party unless the shipper, when the contract of carriage is concluded, designates the consignee, the documentary shipper or another person as the controlling party. The controlling party is entitled to transfer the right of control to another person. The transfer becomes effective with respect to the carrier upon its notification of the transfer by the transferor, and the transferee becomes the controlling party, and the controlling party shall properly identify itself when it exercises the right of control.


Controlling Party

When a non-negotiable transport document has been issued that indicates that it shall be surrendered in order to obtain delivery of the goods:

  • The shipper is the controlling party and may transfer the right of control to the consignee named in the transport document by transferring the document to that person without endorsement. If more than one original of the document was issued, all originals must be transferred in order to effect a transfer of the right of control; and
  • In order to exercise its right of control, the controlling party must produce the document and properly identify itself. If more than one original of the document was issued, all originals should be produced, failing which the right of control cannot be exercised.
  • When a negotiable transport document is issued:
  • The holder or, if more than one original of the negotiable transport document is issued, the holder of all originals is the controlling party;
  • The holder may transfer the right of control by duly transferring the negotiable transport document to another person. If more than one original of that document was issued, all originals shall be transferred to that person in order to effect a transfer of the right of control; and
  • In order to exercise the right of control, the holder must produce the negotiable transport document to the carrier, and if the holder is the shipper, consignee or endorsee, the holder must properly identify itself. If more than one original of the document was issued, all originals should be produced, failing which the right of control cannot be exercised.

When a negotiable electronic transport record is issued, the holder is the controlling party. The holder may transfer the right of control to another person by transferring the negotiable electronic transport record in accordance with the procedures for the issue transfer and endorsement. In order to exercise the right of control, the holder shall demonstrate, in accordance with the procedures that it is the holder.


Carrier’s Eecution of Instructions

Subject to the below, the carrier shall execute the instructions if the person giving such instructions is entitled to exercise the right of control. The instructions can reasonably be executed according to their terms at the moment that they reach the carrier. The instructions will not interfere with the normal operations of the carrier, including its delivery practices.

In any event, the controlling party shall reimburse the carrier for any reasonable additional expense that the carrier may incur and shall indemnify the carrier against loss or damage that the carrier may suffer as a result of diligently executing any instruction, including compensation that the carrier may become liable to pay for loss of or damage to other goods being carried.

The carrier is entitled to obtain security from the controlling party for the amount of additional expense, loss or damage that the carrier reasonably expects will arise in connection with the execution of an instruction. The carrier may refuse to carry out the instructions if no such security is provided.

The carrier’s liability for loss of or damage to the goods or for the delay in delivery resulting from its failure to comply with the instructions of the controlling party in breach of its obligation shall be the amount of the compensation payable by the carrier shall be subject to the Convention.

Variations to the contract of carriage, shall be stated in a negotiable transport document or in a non-negotiable transport document that requires surrender, or incorporated in a negotiable electronic transport record, or, upon the request of the controlling party, shall be stated in a non-negotiable transport document or incorporated in a non-negotiable electronic transport record. If so stated or incorporated, such variations shall be signed in accordance with the above provisions.


Providing Additional Information, Instructions or Documents to Carrier

The controlling party, on request of the carrier or a performing party, must provide in a timely manner information, instructions or documents relating to the goods not yet provided by the shipper and not otherwise reasonably available to the carrier that the carrier may reasonably need to perform its obligations under the contract of carriage.

If the carrier, after reasonable effort, is unable to locate the controlling party or the controlling party is unable to provide adequate information, instructions or documents to the carrier, the shipper must provide them. If the carrier, after reasonable effort, is unable to locate the shipper, the documentary shipper must provide such information, instructions or documents.

The parties to the contract of carriage may vary the effect of the above provisions.  The parties may also restrict or exclude the transferability of the right of control


Transfer of rights

When a negotiable transport document is issued, the holder may transfer the rights incorporated in the document by transferring it to another person duly endorsed either to such other person or in blank, if an order document; or without endorsement, if: a bearer document or a blank endorsed document; or) a document made out to the order of a named person and the transfer is between the first holder and the named person.

When a negotiable electronic transport record is issued, its holder may transfer the rights incorporated in it, whether it be made out to order or to the order of a named person, by transferring the electronic transport record in accordance with the procedures for issue transfer and endorsement.


Liability of holder

A holder that is not the shipper and that does not exercise any right under the contract of carriage does not assume any liability under the contract of carriage solely by reason of being a holder.  A holder that is not the shipper and that exercises any right under the contract of carriage assumes any liabilities imposed on it under the contract of carriage to the extent that such liabilities are incorporated in or ascertainable from the negotiable transport document or the negotiable electronic transport record.

For the above purposes, a holder that is not the shipper does not exercise any right under the contract of carriage solely because:

It agrees with the carrier, to replace a negotiable transport document by a negotiable electronic transport record or to replace a negotiable electronic transport record by a negotiable transport document; or it transfers its rights pursuant to the above provisions


Limits of liability

Subject to the below, the carrier’s liability for breaches of its obligations under the Convention is limited to 875 units of account per package or other shipping unit, or 3 units of account per kilogram of the gross weight of the goods that are the subject of the claim or dispute, whichever amount is the higher, except when the value of the goods has been declared by  the shipper and included in the contract particulars, or when a higher amount than the amount of limitation of liability set out in this article has been agreed upon between the carrier and the shipper.

When goods are carried in or on a container, pallet or similar article of transport used to consolidate goods, or in or on a vehicle, the packages or shipping units enumerated in the contract particulars as packed in or on such article of transport or vehicle are deemed packages or shipping units. If not so enumerated, the goods in or on such article of transport or vehicle are deemed one shipping unit.

The unit of account referred to in this article is the Special Drawing Right as defined by the International Monetary Fund. The amounts referred to in this article are to be converted into the national currency of a State according to the value of such currency at the date of judgement or award or the date agreed upon by the parties.

The value of a national currency, in terms of the Special Drawing Right, of a Contracting State that is a member of the International Monetary Fund is to be calculated in accordance with the method of valuation applied by the International Monetary Fund in effect at the date in question for its operations and transactions. The value of a national currency, in terms of the Special Drawing Right, of a Contracting State that is not a member of the International Monetary Fund is to be calculated in a manner to be determined by that State.


Limits of liability for loss caused by delay

Subject the below, compensation for loss of or damage to the goods due to delay shall be calculated in the manner set out above and liability for economic loss due to delay is limited to an amount equivalent to two and one-half times the freight payable on the goods delayed. The total amount payable pursuant to this provision may not exceed the limit that would be established above in respect of the total loss of the goods concerned.

Neither the carrier nor any of the persons entitled to the limitation is entitled to the benefit of the above limitation of liability above, or as provided in the contract of carriage, if the claimant proves that the loss resulting from the breach of the carrier’s obligation under the Convention was attributable to a personal act or omission of the person claiming a right to limit done with the intent to cause such loss or recklessly and with knowledge that such loss would probably result.

Neither the carrier nor any of the persons entitled to the limitation is entitled to the benefit of the limitation of liability if the claimant proves that the delay in delivery resulted from a personal act or omission of the person claiming a right to limit done with the intent to cause the loss due to delay or recklessly and with knowledge that such loss would probably result.


Time for suit

No judicial or arbitral proceedings in respect of claims or disputes arising from a breach of an obligation under the Convention may be instituted after the expiration of a period of two years. This period commences on the day on which the carrier has delivered the goods or, in cases in which no goods have been delivered, or only part of the goods has been delivered, on the last day on which the goods should have been delivered. The day on which the period commences is not included in the period.

Notwithstanding the expiration of the above period, one party may rely on its claim as a defence or for the purpose of set-off against a claim asserted by the other party.

The above period shall not be subject to suspension or interruption, but the person against which a claim is made may at any time during the running of the period extend that period by a declaration to the claimant. This period may be further extended by another declaration or declarations.


Actions against the carrier

Unless the contract of carriage contains an exclusive choice of court agreement that complies with the below provisions, the plaintiff has the right to institute judicial proceedings under the Convention against the carrier in a competent court within the jurisdiction of which is situated one of the following places:

  • the domicile of the carrier;
  • the place of receipt agreed in the contract of carriage;
  • the place of delivery agreed in the contract of carriage; or
  • the port where the goods are initially loaded on a ship or the port where the goods are finally discharged from a ship; or
  • in a competent court or courts designated by an agreement between the shipper and the carrier for the purpose of deciding claims against the carrier that may arise under the Convention.

Choice of court agreements

The jurisdiction of a court chosen, is exclusive for disputes between the parties to the contract only if the parties so agree and the agreement conferring jurisdiction is contained in a volume contract that clearly states the names and addresses of the parties and either  is individually negotiated or  contains a prominent statement that there is an exclusive choice of court agreement and specifies the sections of the volume contract containing that agreement; and clearly designates the courts of one Contracting State or one or more specific courts of one Contracting State.

A person that is not a party to the volume contract is bound by an exclusive choice of court agreement only if:

  • the court is in one of the places designated above
  • that agreement is contained in the transport document or electronic transport record;
  • that person is given timely and adequate notice of the court where the action shall be brought and that the jurisdiction of that court is exclusive; and
  • the law of the court seized recognizes that that person may be bound by the exclusive choice of court agreement.

Actions against the maritime performing party

The plaintiff has the right to institute judicial proceedings under the Convention against the maritime performing party in a competent court within the jurisdiction of which is situated one of the following places:

  • the domicile of the maritime performing party; or
  • the port where the goods are received by the maritime performing party, the port where the goods are delivered by the maritime performing party or the port in which the maritime performing party performs its activities with respect to the goods.

After a dispute has arisen, the parties to the dispute may agree to resolve it in any competent court. A competent court before which a defendant appears, without contesting jurisdiction in accordance with the rules of that court, has jurisdiction.


Recognition and enforcement

A decision made in one Contracting State by a court having jurisdiction under the Convention shall be recognized and enforced in another Contracting State in accordance with the law of such latter Contracting State when both States have made a declaration in accordance with the Convention. A court may refuse recognition and enforcement based on the grounds for the refusal of recognition and enforcement available pursuant to its law.

This provision shall not affect the application of the rules of a regional economic integration organization that is a party to the Convention, as concerns the recognition or enforcement of judgements as between member States of the regional economic integration organization, whether adopted before or after the Convention.


Arbitration Agreements I

Subject to the below provisions, parties may agree that any dispute that may arise relating to the carriage of goods under the Convention is referred to arbitration. The arbitration proceedings shall, at the option of the person asserting a claim against the carrier, take place at any place designated for that purpose in the arbitration agreement; or any other place situated in a State where any of the following places is located:

  • the domicile of the carrier;
  • the place of receipt agreed in the contract of carriage;
  • the place of delivery agreed in the contract of carriage; or
  • the port where the goods are initially loaded on a ship or the port

where the goods are finally discharged from a ship.

The designation of the place of arbitration in the agreement is binding for disputes between the parties to the agreement if the agreement is contained in a volume contract that clearly states the names and addresses of the parties and either is individually negotiated; or contains a prominent statement that there is an arbitration agreement and specifies the sections of the volume contract containing the arbitration agreement.


Arbitration Agreements II

When an arbitration agreement has been concluded in accordance with the above provisions a person that is not a party to the volume contract is bound by the designation of the place of arbitration in that agreement only if:

  • the place of arbitration designated in the agreement is situated in one of the places above;
  • the agreement is contained in the transport document or electronic transport record;
  • the person to be bound is given timely and adequate notice of the place of arbitration; and
  • applicable law permits that person to be bound by the arbitration agreement.TT

The above provisions are deemed to be part of every arbitration clause or agreement, and any term of such clause or agreement to the extent that it is inconsistent therewith is void.

After a dispute has arisen the parties to the dispute may agree to resolve it by arbitration in any place.


Optional Provisions

The following provisions shall bind the only Contracting States that declare that they will be bound by them.Unless otherwise provided in the Convention, any term in a contract of carriage is void to the extent that it:

  • directly or indirectly excludes or limits the obligations of the carrier or a maritime performing party under the Convention;
  • directly or indirectly excludes or limits the liability of the carrier or a maritime performing party for breach of an obligation under the Convention; or
  • assigns a benefit of insurance of the goods in favour of the carrier or a person referred enjoying the protection of the Convention.

Unless otherwise provided in the Convention, any term in a contract of carriage is void to the extent that it directly or indirectly excludes, limits or increases the obligations under the Convention of the shipper, consignee, controlling party, holder or documentary shipper; or directly or indirectly excludes, limits or increases the liability of the shipper, consignee, controlling party, holder or documentary shipper for breach of any of its obligations under the Convention.


Volume Contracts

Notwithstanding the above as between the carrier and the shipper, a volume contract to which the Convention applies may provide for greater or lesser rights, obligations and liabilities than those imposed by the Convention.

A derogation is binding only when the volume contract contains a prominent statement that it derogates from the Convention; the volume contract is individually negotiated or  prominently specifies the sections of the volume contract containing the derogations; the shipper is given an opportunity and notice of the opportunity to conclude a contract of carriage on terms and conditions that comply with the Convention without any derogation under this article; and the derogation is neither incorporated by reference from another document nor  included in a contract of adhesion that is not subject to negotiation.

A carrier’s public schedule of prices and services, transport document, electronic transport record or similar document is not a volume contract, but a volume contract may incorporate such documents by reference as terms of the contract.

The above provisions do not apply to certain rights and obligations acts or omissions.

The terms of the volume contract that derogate from the Convention, if the volume contract satisfies the above requirements, apply between the carrier and any person other than the shipper provided that such person received information that prominently states that the volume contract derogates from the Convention and gave its express consent to be bound by such derogations; and such consent is not solely set forth in a carrier’s public schedule of prices and services, transport document or electronic transport record.

The party claiming the benefit of the derogation bears the burden of proof that the conditions for derogation have been fulfilled.


Special rules for live animals and certain other goods

The contract of carriage may exclude or limit the obligations or the liability of both the carrier and a maritime performing party if: the goods are live animals.

Any such exclusion or limitation will not be effective

  • if the claimant proves that the loss of or damage to the goods, or delay in delivery, resulted from an act or omission of the carrier or other protected person of a person, done with the intent to cause such loss of or damage to the goods or such loss due to delay or done recklessly and with knowledge that such loss or damage or such loss due to delay would probably  result; or
  • the character or condition of the goods or the circumstances and terms and conditions under which the carriage is to be performed are such as reasonably to justify a special agreement, provided that such contract of carriage is not related to ordinary commercial shipments made in the ordinary course of trade and that no negotiable transport document or negotiable electronic transport record is issued for the carriage of the goods.

Matters not governed by the Convention

Nothing in the Convention affects the application of any of the following international conventions in force at the time the Convention enters into force, including any future amendment to such conventions, that regulate the liability of the carrier for loss of or damage to the goods:

  • any convention governing the carriage of goods by air to the extent that such convention according to its provisions applies to any part of the contract of carriage;
  • any convention governing the carriage of goods by road to the extent that such convention according to its provisions applies to the carriage of goods that remain loaded on a road cargo vehicle carried on board a ship;
  • any convention governing the carriage of goods by rail to the extent that such convention according to its provisions applies to the carriage of goods by sea as a supplement to the carriage by rail; or
  • ny convention governing the carriage of goods by inland waterways to the extent that such convention according to its provisions applies to a carriage of goods without trans-shipment both by inland waterways and sea.

Nothing in the Convention affects the application of any international convention or national law regulating the global limitation of liability of vessel owners.

Nothing in the Convention affects the application of terms in the contract of carriage or provisions of national law regarding the adjustment of general average.

The Convention does not apply to a contract of carriage for passengers and their luggage.

No liability arises under the Convention for damage caused by a nuclear incident if the operator of a nuclear installation is liable for such damage under certain conventions relating to nuclear energy.


References and Sources

Consumer Law  Long      2004

The Law of Transport and Road Haulage (1999) Canny

Consumer Law Rights & Regulation          Donnelly & White 2014

Commercial Law White  2nd ed    2012

Commercial & Economic Law in Ireland  White    2011

Commercial Law Forde  3rd ed    2005

UK Texts

Schmitthoff: The Law and Practice of International Trade 13th ed Carole Murray, David Holloway, Daren Timson-Hunt, Schmitthoffs 2018

Bills of Lading in Export Trade 4th ed Charles Debattista 2018

Arnould’s Law of Marine Insurance and Average 19th ed  Jonathan Gilman, Robert Merkin, Claire Blanchard, Mark Templeman 2018

O’May on Marine Insurance 2nd Ed Julian Hill 2018

Shipping Law 3rd ed  Sweet & Maxwell Ltd 2018

The UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea 2nd ed Michael Sturley, Tomotaka Fujita, Gertjan van der Ziel 2018

Commercial Maritime Law Edited by: Melis Ozdel 2018

Springer-VerlagScrutton on Charterparties and Bills of Lading 23rd ed: 1st Supplement

Scrutton on Charterparties and Bills of Lading 23rd ed: 1st Supplement (Book & eBook Pack) Scrutton on Charterparties and Bills of Lading 23rd ed: 1st Supplement (Book & eBook Pack)

Bernard Eder, Howard Bennett, Steven Berry, David Foxton, Christopher Smith 2017

The Bill of Lading: Holder Rights and Liabilities The Bill of Lading: Holder Rights and Liabilities

Frank Stevens 2017

Charterparties: Law, Practice and Emerging Legal Issues Edited by: Baris Soyer, Andrew Tettenborn 2017

Shipping and Trade Law 2017

Multimodal Transport Law Michiel Spanjaart 2017

Maritime Law 4th ed Edited by: Yvonne Baatz 2017

Convention