The Rotterdam rules : to what extent do they provide appropriate solutions to the shortcomings of the Hague-Visby rules and the Hamburg rules with regard to multimodal transportation, the carrier’s seaworthiness obligation and the nautical fault defence?
Andrews, Michelle Debbie.
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Modern international carriage of goods by sea is largely regulated by various international conventions. Such regimes include the Hague Rules, the Hague-Visby Rules and the Hamburg Rules. We may also look to national and regional hybrid regimes that incorporate various elements of these international conventions. These international conventions, however, have significant shortcomings and are considered outdated in modern times. The Hague Rules, although widely accepted, were drafted over ninety years ago, and the Visby amendments only made slight changes. They do not cater for modern trade practises such as containerisation (which allows for multimodal transportation) and door-to-door transport. The Hague and Hague-Visby Rules are considered outdated in this regard as they only apply to sea carriage (‘tackle-to-tackle’). Due to developments in technology and communications, it is also argued that there is no reason why the carrier should only be required to exercise due diligence to make the vessel seaworthy before and at the beginning of the voyage, and not throughout the entire sea voyage. Furthermore, in the modern shipping environment it is questionable why the carrier should still benefit from the nautical fault defence, a contentious defence that exonerates the carrier from liability due to the faults of its employees in the navigation or management of the ship. The Hamburg Rules were an attempt to address the shortcomings of its predecessors, for example, it removed the nautical fault defence from the list of exceptions available to the carrier and extended its scope of application to ‘port-to-port’. However, the Hamburg Rules did not achieve widespread success and have not been ratified by major maritime trading nations. The result of such a multiplicity of rules on the international carriage of goods by sea is that uniformity is undermined, creating legal uncertainty. These challenges are further heightened by the fact that the current sea conventions in force have significant shortcomings, which will be further discussed in this study. The international maritime community responded to these shortcomings by adopting the Rotterdam Rules in 2008. These Rules are intended to serve as a uniform and modern legal regime setting out the rights and obligations of the shipper, carrier and consignee. In attempting to achieve their goals of uniformity and modernity, the Rules have introduced significant changes. The three major changes introduced by the Rotterdam Rules, and which form the basis of this study, are the provision for multimodal transportation, the extension of the carrier’s seaworthiness obligation and the removal of the nautical fault defence. Accordingly, the purpose of this study is to critically analyse the three major changes introduced by the Rotterdam Rules and to determine the extent to which they have provided appropriate solutions to the alleged shortcomings of its predecessors, the Hague-Visby Rules and the Hamburg Rules. This study engages in a comparative analysis of the Rotterdam Rules with the Hague-Visby Rules and the Hamburg Rules in relation to the above three major changes. It will be a literature based study (desk-top research) and will analyse relevant international conventions, legislation, case law, journal articles, foreign and South African academic opinion.