Advocating For The Implementation Of The Rotterdam Rules
ABSTRACT
The United Nations Commission on International Trade Law (UNCITRAL) in December 11 2008 adopted the Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea: known as the Rotterdam Rules. The Rotterdam Rules were signed by a number of countries in September 23 2009 in Rotterdam (Netherlands) and would come into force when ratified byat least 20 countries. The Rules represent the sentiments of various interest groups: carriers, shippers, freight forwarders, insurance companies and Governments who have interest in international trade and its carriage across various transport modes. The Rules are the latest attempt to establish a modern, comprehensive, uniform legal regime governing carriage of goods by sea because the other carriage of goods by sea conventions in existence which are the Hague Rules, the Hague-Visby Rules, and the Hamburg Convention no longer represent the present state of affairs in the international trade in many respect. Nigeria is a signatory to the Rotterdam Rules, but the Hague Rules and the Hamburg Convention remain the applicable conventions in Nigeria by virtue of its ratification. In practice, experience shows that some member states and signatories to the Rotterdam Rules are reluctant in ratifying the Rules since the Hague Rules cover most aspects of the international carriage and need to remain unchanged, while others argue that the Hague Rules are outdated and do not cover the system of containerisation and computer record keeping which have been developing in the shipping industry since 1970s and therefore should be changed. Reflecting this bias, scholars and international traders have been advocating for uniformity and harmonisation in the laws governing international carriage of goods by sea (i.e. the Hague Rules, the Hague-Visby Rules and the Hamburg Convention). This dissertation advocates for the implementation of the Rotterdam Rules in the Nigerian law. In doing this, analytical and comparative methods are adopted. The analytical framework is rooted in the understanding of the background of the previous conventions on carriage of goods by sea. On the other hand, since this dissertation deals mainly with three different sets of Conventions, it is natural to have a comparative approach as well. As such, reliance is placed on primary and secondary source materials; case laws, books, articles, journals, as well as seminar/conference materials dealing with the topic of this dissertation. This dissertation found out that the previous conventions fail to keep up with the international transport industry and as such do not represent the present state of affairs in international trade on carriage of goods. Therefore, there is need to embrace and ultimately implement the Rotterdam Rules in the Nigerian Law.
TABLE OF CONTENTS
TITLE PAGE. – – – – – – – – – – – i
CERTIFICATION. – – – – – – – – – – ii
DEDICATION. – – – – – – – – – – iii
ACKNOWLEDGEMENTS – – – – – – – – – iv
TABLE OF CONTENTS. – – – – – – – – – v
TABLE OF CASES. – – – – – – – – – iii
TABLE OF STATUTES. – – – – – – – – – x
TABLE OF ABBREVIATION. – – – – – – – – xiv
ABSTRACT. – – – – – – – – – – – xvi
CHAPTER ONE: GENERAL INTRODUCTION
1.1 Background to the Study – – – – – – – – 1
1.2 Statement of Problems – – – – – – – – – 8
1.3 Research Questions – – – – – – – – – 9
1.4 Aims and Objectives of the Study – – – – – – – 10
1.5 Significance of the Study – – – – – – – – 10
1.6 Methodology – – – – – – – – – – 11
1.7 Literature Review – – – – – – – – – – 11
1.8 Scope of the Study – – – – – – – – – 16
CHAPTER TWO: COMPARISON OF THE ROTTERDAM RULES AND THE PREVIOUS CONVENTIONS ON CARRIAGE OF GOODS BY SEA NIGERIA
2.1 Scope of Application – – – – – – – – – 17
2.2 Obligations and liability of the Carrier under the Conventions – – – 18
2.2.1 Under the Carriage of Goods by Sea Act 2004 – – – – – 18
2.2.2 Under the Hamburg Convention – – – – – – – 21
2.2.3 Under the Rotterdam Rules – – – – – – – – 23
2.3 Obligations and liability of the Shipper under the Previous Conventions – – 27
2.3.1 Under the Carriage of Goods by Sea Act 2004 – – – – – 27
2.3.2 Under the Hamburg Convention – – – – – – – 30
2.3.3 Under the Rotterdam Rules – – – – – – – – 32
2.4 Limitation of liability and Time of Action under the Conventions – – – 34
2.5 Allocation of burden of proof under the Conventions – – – – 39
2.6 Freedom of Contract and Volume Contract – – – – – 41
2.7 Jurisdiction and Arbitration – – – – – – – – 43
2.8 Exclusion – – – – – – – – – 44
2.9 Controversy under the Rotterdam Rules – – – – – 45
CHAPTER THREE:THE NATURE AND SCOPE OF SHIPPING DOCUMENTS AND OVERVIEW OF THE NEW ELEMENTS INTRODUCED BY THE ROTTERDAM RULES
3.1 Shipping Document – – – – – – – – 50
3.2 Negotiable Transport Documents – – – – – – – 53
3.2.1 Transitional Bill of Lading – – – – – – – – 54
3.3 Non-negotiable Transport Documents – – – – – – 54
3.3.1 Multimodal Bill of Lading – – – – – – – – 56
3.3.2 CMR Transport Document – – – – – – – – 57
3.3.3 Cargo Insurance Certificate – – – – – – – – 58
3.3.4 International Commercial Invoice – – – – – – – 58
3.4 The International Purpose of the Rules. – – – – – – 59
3.4.1 The Introduction of Multimodal Transport. – – – – – 61
3.4.2 The Definition and Identification of the Carrier – – – – – 67
3.4.3 Rights and Obligations of the Parties at Destination – – – – – 70
3.4.4 Rights of Control – – – – – – – – – 72
3.4.5 Electronic Transport Records – – – – – – – – 74
CHAPTER FOUR: NEED FOR IMPLEMENTING THE ROTTERDAM RULES UNDER THE NIGERIAN LAW
4.1 Contract of Carriage under the Rules – – – – – – – 76
4.2 Scope of Application – – – – – – – – – 77
4.3 Period of Application and Responsibility of the Carrier – – – – 78
4.4 Obligations of the Carrier – – – – – – – – 80
4.5 Maritime Performing Parties – – – – – – – – 83
4.6 Actual Delivery of Goods – – – – – – – – 85
4.7 Error in Navigation Defence – – – – – – – – 89
CHAPTER FIVE: SUMMARY OF FINDINGS, RECOMMENDATIONS AND CONCLUSION
5.1 Summary of Findings – – – – – – – – – 91
5.2 Recommendations – – – – – – – – – 97
5.3 Conclusion – – – – – – – – – – 98
Bibliography
CHAPTER ONE
GENERAL INTRODUCTION
1.1 Background to the Study
The industrialisation of large parts of the world during the 19th century led to increased manufacturing, trade and transport together with technological and infrastructural development. This in turn led to a huge increase in maritime transport. For example between 1850 and 1869, the total net tonnage of steamers increased to over 400 per cent.[1] A part of this development was that liner conferences were created during that 19th century to control price levels and act for uniform tariffs on shipping routes.[2] The organisation of carriers in liner conferences led to increased negotiating power that gave carriers a great advantage against shippers when negotiating transport terms.[3]
The early bills of lading[4] contain any mainly four exception which are act of God, public enemies, shipper’s fault, or inherent vice of the goods. Therefore the carrier was strictly liable for cargo damage unless it could prove that its negligence had not contributed to the loss andthat the damage had been caused by one of the above four excepted causes.
However, as a result of 18th century judicial decisions, shipowners began generally to amend their bills not only to stipulate the old common law exceptions but also to exempt themselves from liability in respect of all perils of the sea and of navigation “of whatever nature and kind.” That is to say, the law regulating the carriage of goods by sea had in the early 19th century been made up by general maritime principles that were applied in both common and civil law countries. These traditional maritime principles held that a carrier was strictly liable for cargo damage unless it could prove that its negligence had not contributed to the loss andthat the damage had been caused by one of four excepted causes namely: act of God, act of public enemies, shipper’s fault, or inherent vice of the goods
Through such comprehensive clauses provisions inserted in their bills (known as “exemption clauses” or “negligence clauses”), carriers began to limit contractually the strict liability imposed upon them by marine law. The use of freedom of contract principles expressed in both common law and civil law created a situation whereby the carrier was enjoined on the one hand to strict liability by marine law, but could, on the other contract out of the bill of lading.
Carriers were permitted by law to extend these principles of freedom of contract and did so to such effect that they came to exempt themselves from practically every liability of ocean carriage. As such, bills of lading came to include stipulations to the effect that the carrier was not to be liable for the results of his own negligence or that of his employees.[5]
In view of the growing dissatisfaction of the shippers, bankers, and underwriters, the shipowners were forced to negotiate and to meet some of the shippers’ complaints about the situation. In England, some shipowners agreed to adopt model bills of lading,[6] which expressly stipulated that they would be relieved from liability only in cases of errors in navigation and management of the ship and not in the case of due diligence as to seaworthiness and care of cargo. That is to say, under model bills, the shipowner was held liable for faults committed by the master or crew unless these related to navigation and to the management of the ship[7].
The need to curb the excesses of carriers was seriously felt. Countries reacted by passing national laws to set out the responsibilities and rights of parties in the event of loss or damage to cargo, for example; The Harter Act[8] was enacted in the United States, followed by the Australian Carriage of Goods by Sea Act, (COGSA),[9] the New Zealand Shipping and Seaman Act[10], and the Canadian Water Carriage Act as well as the Carriage of Goods by Sea Act UK.[11]In Japan, the position was so strict that the shipowner could not even by express agreement exempt himself from liability for the damage to the goods caused by his own fault, by bad faith, by the gross fault of his employees, or by unseaworthiness of the vessel. But these pieces of legislations did not satisfy the yearnings of parties since they did not take care of the international nature of the business of carriage of goods by sea.
The need for further reforms was generally felt, but shipowning countries feared that the re-imposition of liabilities upon carriers would increase their freight charges and place them at a disadvantage by comparison with others. They did not relish the idea of abridging the principle of freedom of contract which formed a fundamental feature of their legal systems. It also came to be realised that a solution would have to be based on international agreement in order to be of any practical value in international trade. Concerned parties, shippers, insurers, bankers, initiated discussions which culminated in the meeting of the Maritime Law Committee of the International Law Association held atthe Hague in Netherland in 1921. The above meeting produced the International Convention for Unification of Certain Rules Relating to Bills of Lading and came to be known as the Hague Rules at Brussels in 1924.
Therefore the Hague Rules represent the first effective internationally agreed control of bills of lading terms. It defines basic rights and obligations of the parties in a bills of lading contract. The Rules do not constitute a codification of all principles relating to bills of lading. This means that the parties retain the liberty to provide for matters not covered by the Rules. In Nigeria, The Hague Rules and the Carriage of Goods by Sea Act adopted the compromise between the conflicting interests of the carrier and the cargo owner which was effectuated in the Harter Act The Hague Rules were given the force of law by the Carriage of Goods by Sea Act.[12]
The rapid changes in technology and politics during the course of the 20th century soon called for changes in the regulation of international carriage of goods by sea. Some of the factors that had made the Hague rules outdated were that monetary changes had made the liability limits in the Hague rules too low and that the technological changes in the shipping industry caused by the increasing use of containers (the so called container revolution) called for updates in the convention’s definition of “package or unit”.[13]
The Visby Protocol, concluded in 1968, proposed a few necessary amendments to the Hague rules. The scope of application was widened, although not in a very significant way since it still only covered outward voyages.[14] The most important changes was that a container clause was inserted into the rules, the limitation limits was increased, a weight-based calculation alternative was inserted[15] and the currency on which the calculation of liability amounts was based was changed into poincaré francs, only to be replaced with Special Drawing Right (SDR) a few years later. A Poincaré franc is based on the value of gold. A Special Drawing Right is a unit of account created by IMF which is based on the average value of some major currencies. The SDR protocol was adopted in 1979 and changed the H/V limitations to 666.67 SDRs per package or 2 SDRs per kg whichever amount is the most favorable for the carrier as long as it does not exceed the maximum limitation limit.
The Visby Protocol solved some of the most acute problems such as the definition of a container (if a container were to be considered a package or not) but many issues remained unsolved and more were to come since the modernisation of the shipping industry continued. Unfortunately, Nigeria did not ratify the Hague-Visby Rules.
The Hamburg Convention, originated from the report written by the Secretariat of the United Nations Conference on Trade and Development (UNCTAD) which was adopted in 1978 in Hamburg in Germany which drew attention to certain defects in the Hague Rules and Hague-Visby Protocol.These were said to be disadvantageous to cargo owning countries and to developing countries in particular, in that they operated to place more business in developed countries, protecting shipowners and also creating double insurance situations where cargo owners were carrying insurance liability which were really that of the shipowners. [16]
Also in West Africa under the auspices of Maritime Organisation of West and Central Africa (MOWCA), at a meeting in Abuja and Cotonou in 2007 supported the ratification of the Rotterdam Rules which was sent to UNCITRAL.[17]Contrary to the processes of creating the Hague Rules and the Visby protocol, which were to a large extent the products of Comité Maritime International (CMI), while the Rotterdam Rules which is a product of cooperation between UNCITRAL and the CMI[18], the commercial interests and the CMI were not very involved in the creation of the Hamburg Convention.[19]
The Hamburg Convention is a more shipper-friendly regime than the Hague Rules because it balanced the shipper and carrier interests. Also many of the exceptions in the Hague Rules in Article 4 were removed under the Hamburg Convention. The levels of limitation of carrier liability, lack of jurisdictional regulations that make for the shipper unfavourable forum clauses possible in bills of lading, the period of responsibility and the lack of regulations concerning carriage of cargo on deck and live animals were modified under the Hamburg Convention.
The Hamburg Conventionhas however not turned out to be a successful attempt to modernise and unify the law concerning carriage of goods by sea. Even though, the Hamburg Convention has been ratified by 38 countries[20], up until now there is not a single large economy or important maritime nation among them. The criticisms from the carrier interests are concentrated on the level of liability that is placed on the carrier and the changes in the burden of proof which they see as unreasonable and in their opinion will lead to increased freight rates. Additionally, some criticism has also been directed against the removal of the exception of nautical fault (which they argue will increase freight rates also) and the changes to fire exception that will make it harder to use. Other shortcomings of the Hamburg Convention include the point that it did not consider the system of containerisation and door to door transport that has been developing in the industrialised world, computer record keeping which has been developing in the shipping industry since the 1970 and the advent of widely used electronic communication, including e-mail.
The carrier criticism of the Hamburg Convention shows that there is no acceptable internationally agreed maritime convention. This lack of uniformity or harmonisation for sea conventions was no longer adequately conducive to the safe, efficient and reliable movement of goods, particularly because of uncertainties relating to liability for loss and delay (including limitations of liability), where the goods had passed from the carrier to another during transit.
In December 11 2008, the United Nations Commission on International Trade Law (UNCITRAL), adopted the Convention on Contract for the International Carriage of Goods Wholly or Partly by Sea, popularly known as the Rotterdam Rules in September 23 2009. As stated earlier, the Rules will come into force one year after the 20th ratification is deposited with the United Nations.[21]
Therefore,one can consider the Rotterdam Rules as a late response to three trends:
the system of containerisation and door to door transport that has been developing in the industrialised world,
computer record keeping which has been developing in the shipping industry since the 1970 and the advent of widely used electronic communication, including e-mail; and
The increasingly high value of shipped cargo.
1.2 Statement of the Problems
The need for modernisation and harmonisation of the regime governing carriage of goods by sea had been the reason for the creation of the Visby Protocol, (to amend the Hague Rules) which solved some issues, but problems remained. According to the developing nations without national shipping capacities, the Visby Protocol was not enough. They wanted a new regime, one that favours their interests and not those of the traditional maritime nations. This led to further reform under the Hamburg Convention and now the Rotterdam Rules.
At the United Nations Commission on International Trade Law (UNCITRAL) signing ceremony in Rotterdam, the Rotterdam Rules received 25 signatures including that of Nigeria.[22] The signing ceremony is only a step along the path for the Rotterdam Rules to take off, as the Convention expressly states that it will only come into force one year after the 20th ratification is deposited with the United Nations.[23] As at October 2015 only three countries hadratified the Rotterdam Rules.[24]
The Carriage of Goods by Sea Act and the Hamburg Convention domesticated the Hague Rules and the Hamburg Rules respectively in Nigeria and have remained the only applicable Carriage of Goods by Sea Conventions in Nigeria.[25]Both the Carriage of Goods by Sea Act and the Hamburg Convention fails to keep up with the international transport industry and as such does not represent the present state of affairs in international trade on carriage of goods by sea. For example, the Act apply only to carriage of goods by sea under a bill of lading: this provision alone prevents the Act from accommodating different forms of negotiable and non-negotiable instruments, including electronic forms, and from responding to the advent of multimodal transport, in which the ocean transport cannot be easily be disentangled.
This dissertation discusses the Rotterdam Rules and previous conventions on carriage of goods by sea while making a case for the need to embrace and implement the Rotterdam Rules under the Nigerian law. In doing this, the controversies which the Rules have generatedare considered, in that some countries have argued, in particular maritime lawyers from common law jurisdictions, (and notably carriers) that the Hague Rules have been tried and tested and need to remain unchanged. While some developing countries, mostly consumers of shipping services argue that the Hague Rules which have held sway for many years are unfair and work against the interest of the users of shipping services.
1.3 Research Questions
The issue set out in this dissertation work is to discussthe Rotterdam Rules and previous conventions on carriage of goods by sea while advocating fortheneed to embrace and implement the Rotterdam Rules under the Nigerian law. Positive attempt will be made to proffer answers to the following questions:
What are the difficulties perceived in the previous Conventions that led to the development of the Rotterdam Rules?
What are the differences between the Rotterdam Rules and the previous Conventions on
Carriage of Goods by Sea Conventions?
What are the innovations/changes made by the Rotterdam Rules on the previous Conventions on Carriage of Goods by Sea Conventions?
Is there a need to embrace and implement the Rotterdam Rules under the Nigerian law?
1.4 Aims and Objectives of the Study
The aim of this dissertation is to discuss the Rotterdam Rules and previous conventions on carriage of goods by sea while advocating for the implementation of the Rotterdam Rules in the Nigerian law. As such, the new element introduced by the Rotterdam Rules will also be discussed.
1.5 Significance of the Study
This study identified the shortcomings in the previous conventions on carriage of goods by sea which caused some dissatisfaction over the years to maritime traders. It is this dissatisfaction that the Rotterdam Rules seek to address. Therefore, this work is very significant because it advocates the need to embrace and implement the Rotterdam Rules in the Nigerian law.
1.6 Methodology
The methodology adopted in this dissertation is analytical and comparative. The analytical framework presented in this dissertation is rooted in the understanding of the background of different previous Conventions on carriage of goods by sea. In the same vein, since this dissertation deals mainly with three different sets of Conventions, it is natural to have a comparative approach as well. Reliance is placed on primary and secondary source materials; statutes, international conventions, treaties, case law, textbooks, journals, seminar/conference papers and internet materials.
1.7 Literature Review
This dissertation is not the first academic material to discuss the Rotterdam Rules. Quite a numberof writers have written something relating to Rotterdam Rules. But no literature exists, to the best of the knowledge of this writer specifically advocating for the need to embrace and implementthe Rotterdam Rules in the Nigerian law.
Umezuruike,[26] considers the Rotterdam Rules and Electronic Bill of Lading. He is of the view that the need to update the United Nations Conventions on international trade laws and transport, in the light of the emerging information communication technology (ICT), cannot be overemphasised. The preceding older regimes have been rendered obsolete by the emergence of ICT in the field of commerce. On this point, he concluded that the innovations of the Rotterdam Rules to accommodate or give legal recognition to electronic bill of lading and electronic commerce is in consonance or in accord with the spirit and intendment of the United Nations Conventions on the use of Electronic Communications in International Contracts, the UNCITRAL Model Laws on e-commerce and e-Signature.[27]
Monye,[28] commenting on limit of claim of loss or damage in carriage of goods by sea statesinter alia that the sum of N 200 stipulated in the Act is curious. She states that N 200 today has no value, compare to the value at the time of commencement of the Act.[29] That the sum contained in the Hague Rules is 100 pounds.[30] Under the original text of the Carriage of Goods by Sea Act,[31] the sum stipulated was 100 pounds. This sum was converted to N 200 in 1990 when the Laws of the Federation were reviewed and have remained the same. Sambo and Abdullahi’s[32] article on the other hand, considers the carriers obligations and liabilities under the Rotterdam Rules as well as the liability of other persons in the carriers line, maritime performing party as well as joint and several liabilities.
Usoro[33], while dealing with the Carriage of Goods by Sea Act and all the International Conventions on Carriage of Goods by Sea, examines the role of a bill of lading in the carriage of goods by sea on the recent trend of international trade. She is of the view that the Nigerian Carriage of Goods by Sea Act need to be overhauled to embrace the current trend in international trade.
According to Sturley,[34] the goal of creating uniform rules was one of the most important reasons for the steps to reform the laws governing the carriage of goods by sea, since the situation with increasing differences between different jurisdictions in the law governing carriage of goods by sea was only getting worse, something had to be done in order to restore the uniformity that had once existed. Sturley, also treats the benefits of the uniformity which the Rotterdam Rules brought, that if the law is uniform, litigation will be less necessary and the costs for transport will be lower since the law will be predictable.[35]
Berlingieri[36] while discussing the Rotterdam Rules divided his work into three parts. In the first part, he considered the matters regulated by the Hague-Visby Rules, the Hamburg Rules and the Rotterdam Rules. The second part discussed matters regulated by the Hamburg Rules and Rotterdam Rules while the third part of his work considered matters regulated only by the Rotterdam Rules. What Berlingieri has done in this work is similar to that of Sturley’s work but he only brought out the aim of the Rotterdam Rules while making comparison with older conventions on carriage of goods by sea.
With respect to the scope of application of the Rotterdam Rules, Mankowski[37] notes that it is absolutely vital and crucial for the operation of the entire Convention since it is the first issue to be checked in every case, and that the rules on freedom of contract delimit the ambit of leeway for contractual planning, clauses and contractual devices. Hai Li’s[38] article still supports the view that the Rotterdam Rules are truly comprehensive convention in terms of the number of the articles contained therein and the subjects covered thereby, to which no previous convention is comparable. Acknowledging that there is need for change, Beare[39] is of the opinion that it is necessary to expand the concept “to take account of door to door transport contracts and the many parties involved in modern transport logistics.”
With respect to volume contracts, Hooper[40] notes that the reason why parties to volume contracts are treated differently than in normal contracts of carriage is the presumption that parties to volume contracts have equal bargaining power and are considered to be sophisticated parties than otherwise. Meijer[41] states that it would be seen as unjustified to protect such parties against the shipowner and the carriers. Winship[42] in his article, does not see any issue with provisions on the protection of third parties to volume contracts. He is only concerned with the definition of volume contracts and question whether the term would also include those persons who actually are not in need of the full protection provided by the Rotterdam Rules.
Decrying comment and concerns on the Rotterdam Rules, Magrath in his article[43] states the cold reality which is that it took nearly 30 years to move past Hamburg Rules and another 10 years to get Rotterdam Rules on the table. That if the Rotterdam Rules are not widely adopted, there will likely be no further effort at international harmonisation for decades, if ever. In his view, if the major trading nations decide to support and adopt the Rotterdam Rules, the overarching desire for certainty and uniformity will outweigh the practical concerns and uncertainty. Block[44] assesses the benefit of the Rotterdam Rules and state that the uniformity and international predictability the new treaty provides have distinct advantages. That the economic and legal reliability actually might enhance economic recovery, and the risks of certain Rotterdam principles are really just theoretical.[45] While Legros[46] analysis the potential conflicts in line of the multimodal provisions of the Rotterdam Rules Laguna and Hatley in their article[47]were of the view that the Rotterdam Rules have a number of prominent supporters such as the World Shipping Council,[48] which supports the Rules as a means of achieving international cargo liability reform.[49] Edodo-Emore[50] considered the politics of the Rotterdam Rules vis-à-vis supporters and oppositions to the Rotterdam Rules. He is of the view that Africans need to be cautious of the views of the supporters and oppositions of the Rotterdam Rules and see how they match their own needs; but that West Africa must move with the rest of the world in taking maritime cargo liability legislation into the 21st century.
Therefore, having considered the above various literatures, one finds out that many of them support the adoption of the Rotterdam Rules while few are against such adoption. In other words, none of the literature (most especially the Nigerian literature),advocates for the implementation of the Rotterdam Rules in the Nigerian law. It is this gap that this dissertation fills.
1.8 Scope of the Study
This study is a comparative analysis of three conventions on carriage of goods by sea, namely, the Carriage of Goods by Sea Act, the Hamburg Convention and the Rotterdam Rules, under one selected jurisdiction which is Nigeria. And while the first two conventions are applicable in Nigeria by virtue of their ratification, Nigeria is only a signatory to the Rotterdam Rules. Thus, this dissertation advocates the need to embrace andimplement the Rotterdam Rules in the Nigerian law.This interest arises as a result of some shortfalls felt under the previous conventions on carriage of goods by sea.
[1] F. Jose Angelo Estrella, “Uniform Law for International Transport at UNCITRAL: New Times, New Players, and New Rules,”Texas International Law Journal, vol. 44, (2008-2009), p. 279.
[2] Liner Conferences are price controlling cartels formed between liner carriers. The conferences have long been subject to exceptions from competition law in many jurisdictions but that is now changing. See for example: EU Press Releases, Competition: Commission welcomes Council agreement to end exemption for liner shipping conferences, Brussels, 25 September, 2006.
[3]F. José Angelo Estrella, loccit, pp. 280-281.
[4] In B.M. Ltd. v. Woermann-Line (2009) 13 NWLR (Pt. 1157) 149 at 178 paras. E-G, SC. The Supreme Court defined bill of lading as “a writing signed on behalf of the owner of the ship in which goods are embarked, acknowledging the receipt of goods, and undertaking to deliver them at the end of the voyage subject to such conditions as may be mentioned in the bill of lading. The bill of lading is therefore a written contract between those who are expressed to be parties to it” see also Ogwuru v. Co-op Bank of E/N Ltd. (1994) 8 NWLR (Pt. 365) 685, paras. E-F, C.A., Compania Naviera Vascongada v. Churchill & Sim [1906] 1 K.B. 237. Sanders v. Maclean (1883) 11 QBD 327.
[5]A.N. Yiannopoulos, “Neglgence Clauses in Ocean Bills of Lading”,Louisiana University Press,(1962) p. 4. See also Effort Shipping Co. Ltd. v. Linden Management S.A. (The Giannis NK), [1998] 1 Lloyd’s Rep. 337, at 339 (H.L. per Lord Steyn). see also The Jordan II [2005] 1 LIoyd’s Rep. 57 at 63 (H.L)
[6] S. Dor, Bill of Lading Clauses and the International Convention of Brussel, 1924 (Hague Rules), 2nd ed., (London: Witherby and Co. Ltd., 1960), p. 16.
[7] See the Imperial Shipping Committee Report, p. 8. The Spanish Commercial Law of 1885, s. 618, was also very strict in its provisions concerning the liability concerning the liability of the shipowners
[8] Harter Act 1893, 46 U.S.C ss 190-96 (U.S.)
[9] Australian Sea-Carriage of Goods Act. 4 Edw. 7 (1904) (Austl).
[10] Shipping and Seamen Act 1908 8 Edw VII (1908 No 178).
[11] Canadian Water Carriage Act, 10 Edw. 7 (1910) (Can.). see also Carriage of Goods by Sea Act 1971 Chap. 19 UK
[12] Cap 44 LFN 1990 but now Cap. C2 LFN, 2004
[13] M. F. Sturley, “Transport Law for the Twenty-first century: An Introduction to the Preparation, Philosophy, and Potential Impact of the Rotterdam Rules,” Journal of International Maritime Law, vol. 14,(2008)p.467.
[14] Art. 10 of the Hague-Visby Rules.
[15] Ibid., Art. 4 (5) (a).
[16] D. C. Fredrick, “Political Participation and Legal Reform in the International Maritime Rulemaking Process: from the Hague Rules to the Hamburg Rules,” Journal of Maritime Law and Commerce, vol.22, no.1 (1991),pp.81, 100-103.
[17] The Genesis of the Rotterdam Rules-History and Politics, Colloquium on the United Nations Convention on Contract for the International Carriage of Goods Wholly or Partly by Sea (Rotterdam Rules) organized by the Federal Ministry of Transport, the Nigerian Shippers Council and the Nigerian Maritime Law Association on the 8th-10th December, 2009, available at http://www.oetalaw.com/GenesisofRotterdamRules.aspx (last accessed 23 September 2015)
[18] M. F. Sturley, loc cit., note 14,p.469.
[19] D.C. Fredrick, loc cit., note 17, pp. 101-102.
[20] Available at www.uncitral.org/uncitral/en/uncitral_texts/transport_goods/Hamburg_status.html (last accessed 23 September2015)
[21]See Rotterdam Rules, Art. 94 .
[22] The signatories are: Armenia, Cameroon, Congo, DR Congo, Denmark, France, Gabon, Ghana, Guinea, Guinea Bissau, Luxembourg, Madagascar, Mali, Netherlands, Niger, Nigeria, Norway, Poland, Senegal, Spain, Sweden, Switzerland, Togo and United States of America.
[23] See Rotterdam Rules, Art. 94 .
[24] Spain in 2011, Togo in 2012 and Congo in 2014. See also http://uncitral.org/uncitral/en/uncitral_texts/transport_goods/rotterdam_status.html.(last accessed 23 September 2015)
[25] Cap. C2 LFN 2004 and Cap. U18 LFN 2010
[26] H.A.C. Umezuruike, “Electronic Bills of Lading, Rotterdam Rules and the Nigerian Evidence Act,”The Nigeria Law Journal, vol. 15 No.1 (2013), p 63.
[27]Ibid.
[28] F.N. Monye, Commercial Law, (Enugu: Chenglo Limited, 2006), p. 238.
[29] 18 March, 1926.
[30]Art. 4 (5).
[31] Cap. 44 LFN 1990 (now Cap. C2 LFN 2004).
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[33] M. E.Usoro, “Introduction to Carriage of Goods: Bills of Lading,” presented at a Maritime Law Seminar Organized by the Nigeria Maritime Law Association on 29 June 2011. pp. 3-40. Available at www.paulusoro.com/post/240.pdf (last accessed 23 September 2015)
[34] M.F. Sturley, T. Fujita and G. van derZiel, Rotterdam Rules: The UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea.(London: Sweet & Maxwell,2010),pp3-4
[35] Ibid.
[36] F. Berlingieri, “Comparative analysis of the Hague-Visby Rules, the Hamburg Rules and the Rotterdam Rules,” paper delivered at the General Assembly of the AMD, Marrakesh 5-6 November, 2009. Available at http://www.amdadjusters.org/assets/uploads/Marrakesh-FBerlingeri.doc (last accessed 23 September 2015).
[37] P. Mankowski, “The Rotterdam Rules-Scope of Application and Freedom of Contract|” (2010-1/2) European Journal of Commercial Contract Law, pp. 1-9.
[38] H. Hai Li, “The Rotterdam Rules: A Cherishable Opportunity for the Unification of the Law,” (2010).Available at http://www. cmla.org.cn/article/article.do?method=viewDetail&id=ll0&father_category_id=1952 (last accessed 23 September 2015).
[39] S. Beare, The Need for Change and the Preparatory Work of the CMI, (2010), p. 2.
[40] C. D. “Hooper, Forum Selection and Arbitration in the Draft Convention on Contract of the International Carriage of Goods Wholly or Partly by Sea, or the definition of For a Conventions Set Forth in the Rotterdam Rules,”Texas International Law Journal 44 (417)(200-2009), p. 420.
[41] G. Meijer, “The Rotterdam Rules and Arbitration,” European Journal of Commercial Contract Law 2 (1) (2010), p. 47.
[42] P.Winship, “Arbitration of Maritime Dispute under the Rotterdam Rules,” (2012). Available at http://kluwerarbitrationblog. Com/blog/2012/06/18/arbitration-of-maritime-disputes-under-the-rotterdam-rules/#fn-5222-1. (Last accessed 23 September 2015).
[43] G. Magrath, “Rotterdam Rules: Where we are, and how we got here,”(2011),Lioyd’s list. Available at www.forwardlaw.com/ library/view.php?article_id=562&highlight=Rotterdam+Rules (last accessed 23 September 2015)
[44] S. Block, “The Rotterdam Rules: The Long voyage of international efforts to modernize ocean shipping liability” 2010. Available at www.forwardlaw.com (last accessed 23 September 2015)
[45] Britannia News Conventions “The Rotterdam Rules in a Nutshell.” Available at www.the-rotterdam-rules-in-a-nutshell.pdf.com.html. (last accessed 23 September 2015)
[46] C. Legros, “Relation between the Rotterdam Rules and Convention on the Carriage of Goods by Road,”(2012), Tulane Maritime Law Journal, 725, p. 1.
[47] F. Laguna and Hatley R.,“The Rotterdam Rules: Standardizing International Shipping”2013. Available at www.translegalllc.wordpress.com /2013/04/22/the-rotterdam-rules-standardizing-international-shippingc (last accessed September 23 2015).
[48] A trade group representing the carriers of 90 percent of global container shipments.
[49] F. Laguna and HatleyR. “Why Enact the Rotterdam Rules?,(2013), available at www.translegalllc.wordpress. com/2013/04/26/why-enact-the-rotterdam-rules (last accessed 23 September 2015)
[50] O.Edodo-Emore,“The Genesis of the Rotterdam Rules-History and Politics, Colloquium on the United Nations Convention on Contract for the International Carriage of Goods Wholly or Partly by Sea (Rotterdam Rules) organised by the Federal Ministry of Transport, the Nigerian Shippers Council and the Nigerian Maritime Law Association on the 8th-10th December, 2009. Available at http://www.oetalaw.com/GenesisofRotterdamRules.aspx (last accessed 23 September 2015)
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