Abstract
The Rotterdam Rules, adopted by UNCITRAL in 2008, address a number of issues that have not been regulated by previous international conventions, such as the delivery of goods and the right of control. The ambitious and innovative approach of the Rotterdam Rules has attracted much international debate. This article aims at contributing to this debate by discussing the provisions related to the delivery of goods. The main focus is on Article 47(2), one of the most controversial provisions of the Rules, and the article analyses in detail this legislative provision, its rationale and possible impact on the law governing the carriage of goods and international sales law.
This article was first published in the Journal of International Maritime Law (JIML) (2012) 18, issue 5, published by Lawtext Publishing Limited www.lawtext.com. It is based on a presentation given at the Max Planck Institute in Hamburg on 15 October 2012 as part of the Hamburg Lectures in Maritime Affairs. The author is grateful to Jan Ramberg and Erik Rosag for their constructive comments and suggestions which helped to refine this article. The author remains responsible for any errors that may remain.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
The United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (the Rotterdam Rules) www.uncitral.org/pdf/english/texts/transport/rotterdam_rules/09-85608_Ebook.pdf.
- 2.
International Convention for the Unification of Certain Rules of Law relating to Bills of Lading (The Hague Rules) and Protocol of Signature, signed in Brussels on 25 August 1924 (entered into force on 2 June 1931).
- 3.
Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading 1968 (entered into force on 23 June 1977).
- 4.
United Nations Convention on the Carriage of Goods by Sea (‘the Hamburg Rules’), signed in Hamburg on 31 March 1978 (entered into force on 1 November 1992) UN.Doc.A/Conf. 8915.
- 5.
Debattista, Bills of Lading in Export Trade (2008) 38–39.
- 6.
Barclays Bank Ltd v Commissioners of Customs and Excise [1963] 1 Lloyd’s Rep 81, Sze Hai Tong Bank Ltd v Rambler Cycle Co Ltd [1959] 2 Lloyd’s Rep 114. See also Mobile Shipping Co v Shell Eastern Petroleum Ltd (The Mobile Courage) [1987] Lloyd’s Rep 655.
- 7.
SA Sucre Export v Northern River Shipping Ltd (The Sormovskiy) [1994] 2 Lloyd’s Rep 266.
- 8.
Motis Exports v Dampskibsellskabet AF 1912 [2000] 1 Lloyd’s Rep 121; affirming [1999] 1 Lloyd’s Rep 837. See also East West Corp v DKBS 1912 [2002] 2 Lloyd’s Rep 182 at 205.
- 9.
The author has examined this issue in more detail in Pejović, Documents of Title in Carriage of Goods by Sea: Present Status and Possible Future Directions, JBL (2001) 461.
- 10.
The term ‘document of title’ was first defined by section 1(4) of the English Factors Act as follows: “The expression ‘document of title’ shall include any bill of lading, dock warrant, warehouse-keeper’s certificate, and warrant or order for the delivery of goods, and any other document used in the ordinary course of business as proof of the possession or control of goods, or authorizing or purporting to authorize either by endorsement or delivery, the possessor to transfer or receive goods thereby represented.”
- 11.
This difference between civil law and common law systems is probably a result of the different nature and approaches of these two legal families. While civil law often relies on broad concepts, common law has a preference for narrow concepts.
- 12.
Article 1(15): ‘Negotiable transport document’ means a transport document that indicates, by wording such as ‘to order’ or ‘negotiable’ or by some other appropriate wording recognised as having the same effect by the law applicable to the document, that the goods have been consigned to the order of the shipper, to the order of the consignee or to the bearer, and is not explicitly stated as being ‘non-negotiable’ or ‘not negotiable’.
- 13.
- 14.
- 15.
- 16.
- 17.
The group includes Alcantara, Hunt, Johansson, Oland, Pysden, Ramberg, Schmitt, Tetley and Vidal: www.comitemaritime.org/Uploads/Rotterdam%20Rules/Particular%20concerns%20%20Rotterdam%20Rules.pdf.
- 18.
Diamond, The Rotterdam Rules, LMCQ (2009) 445, 521.
- 19.
Sturley/Fujita/van der Ziel, The Rotterdam Rules (2010); von Ziegler/Schelin/Zunarelli (eds.), The Rotterdam Rules 2008 (2010); van der Ziel, Delivery of the Goods, Rights of the Controlling Party and Transfer of Rights, JIML (2008) 597.
- 20.
Debattista, The Goods Carried – Who gets them and who controls them?, in UNCITRAL Colloquium on Rotterdam Rules (21 September 2009) www.rotterdamrules2009.com/cms/uploads/Def%20%20tekst%20Charles%20Debattista%2031%20OKT29.pdf.
- 21.
Berlingieri et al., The Rotterdam Rules – An attempt to clarify certain concerns that have emerged, available at www.comitemaritime.org/Uploads/Rotterdam%20Rules/5RRULES.pdf.
- 22.
On the limited scope of holder’s claims under Art. 47(2)(d), see Rosaeg, New Procedures for Bills of Lading in the Rotterdam Rules, JIML (2011) 185.
- 23.
According to van der Ziel, the main example of such a right is a claim for damages if the goods are delivered damaged or the delivery is short. However, it is not quite clear how a consignee could sue the carrier for damage to the goods or short delivery if the goods are delivered to someone else.
- 24.
Opinions regarding Article 47(2) that have been expressed by some professional associations, such as FIATA, can also be an indicator of the negative attitude of shipping-related businesses.
- 25.
von Ziegler/Schelin/Zunarelli (supra n. 19) 207.
- 26.
Ibid. 146.
- 27.
The United Nations Convention on Contracts for the International Sales of Goods, Art. 86(2) states that “[i]f goods dispatched to the buyer have been placed at his disposal at their destination and he exercises the right to reject them, he must take possession of them on behalf of the seller, provided that this can be done without payment of the price and without unreasonable inconvenience or unreasonable expense. This provision does not apply if the seller or a person authorized to take charge of the goods on his behalf is present at the destination […]”.
- 28.
The Rotterdam Rules expressly provide that the convention applies to liner carriage (Art. 1.3), and that it does not apply to charterparty contracts (Art. 6.1).
- 29.
Rotterdam Rules 2008, Art. 52(4).
- 30.
von Ziegler/Schelin/Zunarelli (supra n. 19) 207.
- 31.
Sturley/Fujita/van der Ziel (supra n. 19).
- 32.
Ibid. 264, 269.
- 33.
General Time Charter Party (Gentime) cl. 12, New York Produce Exchange (NYPE) cl. 8.
- 34.
Enichem Anic SpA v Ampelos Shipping Co Ltd (The Delfini) [1990] 1 Lloyd’s Rep 252.
- 35.
Art. 1(8) defines shipper as “a person that enters into a contract of carriage with a carrier”. And the “contract of carriage” as defined in Art. 1(1) is clearly not a charterparty contract.
- 36.
The Stetin (1889) 14 PD 142 at 147, A/S Hansen-Tangens Rederei III v Team Transport Corporation (The Sagona) [1984] 1 Lloyd’s Rep 194, Kuwait Petroleum Corp v I & D Oil Carriers (The Houda) [1994] 2 Lloyd’s Rep 541, Motis Exports v Dampskibsellskabet AF 1912 [2000] 1 Lloyd’s Rep 121, Allied Chemical International Corp v Comphania de Navegacao Lloyd Brasiliero [1986] AMC 826 (2d. Cir. 1985), C-Art Ltd v Hong Kong Island Lines America [1991] AMC 2888 (9th. Cir. 1991), Glencore International AG v Owners of the ‘Cherry’, Singapore High Court, Kan Ting Chiu J., April 2002 (available at http://onlinedmc.co.uk/glencore_v_'cherry'.htm), International Harvester Co v TFL Jefferson, 695 F.Supp 735 (S.D.N.Y. 1988), Cour d’Appel d’Aix, 6 September 1984 DMF, 157 (1986), Ap. Paris 11 January 1985 DMF 166 (1986) (note by Achard), Trib. Livorno 10 December 1986, Dir.Mar. 961(1987).
- 37.
Ibid. (The Houda).
- 38.
Ibid. (The Houda) at 558.
- 39.
Davies, Documents that Satisfy the Requirements of CISG Art. 58, The Annals of the Faculty of Law in Belgrade, (2011) LIX, no. 3, 39–66.
- 40.
Brown Jenkinson v Percy Dalton (London) Ltd [1957] 2 Q.B. 621. The text in italics is mine, paraphrasing the original text which reads “the giving of clean bills of lading against indemnities”.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2015 Springer-Verlag Berlin Heidelberg
About this chapter
Cite this chapter
Pejović, Č. (2015). Article 47(2) of the Rotterdam Rules: The Solution of Old Problems or a New Confusion?. In: Basedow, J., Magnus, U., Wolfrum, R. (eds) The Hamburg Lectures on Maritime Affairs 2011-2013. Hamburg Studies on Maritime Affairs, vol 28. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-55104-8_8
Download citation
DOI: https://doi.org/10.1007/978-3-642-55104-8_8
Published:
Publisher Name: Springer, Berlin, Heidelberg
Print ISBN: 978-3-642-55103-1
Online ISBN: 978-3-642-55104-8
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)