<p>Rotterdam Rules (the &ldquo;Rules&rdquo;) is the new United Nation Convention on the  carriage of goods by sea which involves other modes of carriage. The new  convention came&nbsp; to the surface in 2008 after the last convention in 1978  (Hamburg Rules). The main aspect of the Rules is that it regulates the  electronic documents related to the carriage contract which evidences and  contains the contract of carriage and the receipt of goods by the performing  party.<br /><br />Despite the fact that the convention has not yet come into effect,  it is worthconsidering its terms to determine whether or not it could be  suitable for the marine industry.<br /><br /><strong>Scope of  application</strong><br /><br />Article 5 of the Rotterdam Rules deals with the  scope of its application. The scope of application has changed so as to give  regard to the places of receipt and delivery and the ports of discharge and  loading that either of them is located in a contracting state. It is meant to  distinguish between the place where the cargo is received by the carrier and  loaded and the place where the cargo is discharged and delivered to the  receiver. The most important thing is that the place of receipt and place of  delivery are in different states and the port of loading and port of discharge  are in different states.<br /><br />Contrary to Hamburg Rules, the Rules disregard  the place of issuance of the bill of lading to have effect on the application of  the rules, taking into consideration the international aspect of the sea  transport business.<br /><br />Furthermore, the Rules did not give effect as to its  application to any agreement in the contract of carriage incorporating the Rules  to govern contract. In this case, it is not known whether the court hearing the  dispute will apply the Rules where the shipper and the carrier as parties to the  contract of carriage had agreed to apply the Rules and a dispute arises between  the receiver (party entitled to receive the cargo) and the carrier. Lets assume  that one party chose to invoke the Rules before the court hearing because his  position is favored under the Rules and the other party dispute that. There will  be no issue if the law of the country of the court hearing considers such  agreement void, but the problem will arise if such agreement is considered  valid. In this situation, the court will have difficulty interpreting the scope  of application of the Rules in the sense that the Rules has limited its  application without considering the agreement by the parties to apply the Rules  as part of its application scope. In such case the court has two options of  conclusion:<br /><br />1)&nbsp;That the scope of application is concluded and limited in  the Rules and hence the agreement in the contract of carriage to apply the Rules  will have no effect; or</p>
<p>2)&nbsp;The Rules had kept silent on this issue and as long as it does not forbid  such agreement the Rule may apply pursuant to the agreement of the parties.</p>
<p>Hamburg Rules have in advance resolved the dispute by including the agreement  in the contract of carriage to apply such rules as part of the scope of its  application<br /><br /><strong>On which contracts the Rules  apply</strong><br /><br />The Rules do not apply to the charterparties and the  contracts for the use of a ship or of any space thereon in both liner and  non-liner transportation. The Rules apply to Transport Document or an Electronic  Transport Record as defined by the Rules. Both of them are defined as issued  under a contract of carriage and:</p>
<p>1.&nbsp;Evidence the receipt of the cargo by the performing party;  and<br />2.&nbsp;Evidence or contain the contract of carriage.&nbsp;&nbsp;<br /><br /><strong>Period  of Responsibility of the Carrier</strong><br /><br />The carrier is responsible  under the Rules and Hamburg Rules to carry the goods and deliver them to the  consignee or the party entitled to receive the cargo under the contract of  carriage. His obligation starts when he or the performing party receives the  goods and ends when the goods are delivered.<br /><br />In both the Rules and  Hamburg Rules the responsibility of the carrier starts if he receives the cargo  from the shipper or his representative directly, or, when the carrier collects  the goods from a third party or an authority if the laws or regulation of the  place of receipt (port of loading under Hamburg Rules) require the goods to be  handed over to such third party or authority.<br /><br />The responsibility of the  carrier ends when the carrier delivers (hands over) the cargo to the consignee  or his representative directly, or, when the carrier hands over the cargo to a  third party or an authority if the laws or regulation of the place of delivery  (port of discharge under Hamburg Rules) requires the goods to be handed over to  such third party or authority.<br /><br />Hamburg Rules had further presumed a  situation and a solution of it where the carrier wishes to deliver the goods and  the consignee does not appear or refuses to take delivery from the carrier. In  such situation the Hamburg Rules considered the carrier as having the goods  delivered if he places &ldquo;them at the disposal of the consignee in accordance with  the contract or with the law or with the usage of the particular trade,  applicable at the port of discharge&rdquo;. Although, the term &ldquo;disposal&rdquo; is not  conclusive enough to discharge the carrier from his responsibility since the  courts may vary the interpretation of such term and whether the carrier has  actually placed goods under the disposal of the consignee.<br /><br />On the other  hand the Rules in article 48 has dealt differently with such a case in the sense  that it provides for situations when it is considered that the goods have not  been delivered and the solutions available to the carrier as alternative to the  actual delivery to the consignee.&nbsp;&nbsp;&nbsp;<br /><br />The Rules created a new concept to  determine the period of the carrier&rsquo;s responsibility under the contract of  carriage in article 12 (3). The article allows parties to the contract to agree  on the time and place of delivery to the consignee and receipt of goods by the  carrier for carriage. In no way can they agree that time of receipt be after the  beginning of the initial loading under the carriage contract nor can they agree  that the time of delivery is to be before the completion of the final discharge  under the carriage contract.<br /><br />This article provides a preview of some  aspects of comparison between Rotterdam Rules and Hamburg Rules..</p>