Specialist insurance products and services packaged for the international transport and logistics industry

1. Specialist insurance products and services packaged for the international transport and logistics industry

2. Your liability might sky-rocket This is how it could happen…

3. Example 1 A forwarder assumes liability for the international carriage of 1,000 i-Pads, which are packed in 50 large boxes each containing 20 iPads. In each box of 20, each iPad is in an individual carton box. The forwarder subcontracts the road portion in Canada to a trucker who is involved in a road accident in which the entire consignment is destroyed. The forwarder’s house bill of lading lists in the column “Number of packages” the entry “1,000”. An iPad weighs 1.0 kilogram and has a value of CAD 500. The forwarder’s trading conditions limit his liability to CAD 4.1 per kilogram. What is the forwarder’s liability under the Rotterdam Rules (1 SDR equals around CAD 1.5)?

4. Forwarder’s trading conditions • - Weight limitation: • 1000 kg * CAD 4.1 per kg = CAD 4,100 • Rotterdam Rules: - Weight limitation: 1,000 kg * 3 SDR per kilogram = 3,000 SDR = CAD 4,500 - Package limitation: 1,000 packages * 875 SDR per package = 875,000 SDR = CAD 1,312,500, i.e. the terminal is exposed to full value liability for the 1,000 iPads of CAD 500,000

5. Entry Into Force • Requirement for entry into force • Signing Ceremony on 23 September 2009 in Rotterdam List of states is updated on www.uncitral.org

7. Application and Scope • Contract of carriage • Sea carriage or multimodal carriage with a sea portion • International character of the carriage contract • The contractual agreement, not the mode(s) of carriage in fact used • Excluded contracts and application to certain parties • Agent or principal in relation to the carriage contract

8. Example 2: Q: Road carriage from Moncton NB to Halifax NS, then sea carriage from Halifax to Antwerp and finally land carriage from Antwerp to Paris. (assumption: the Rotterdam Rules are in force in Belgium, but not in Canada or France).

9. Example 2: Moncton NB Halifax NS Antwerp Paris

10. Mandatory Character • Principle of mandatory force of law • Exceptions from the principle of mandatory force

12. Volume Contracts • Greater or lesser rights, obligations or liabilities • Definition Requirements for the validity of a “Volume contract” agreement

13. Carriage Documentation • Contract particulars • Identity of the carrier • Goods presumed to be in “apparent good order and condition” • Qualifying information

14. Liability of the Shipper • Shipper’s liability fault-based, but unlimited • Documentary shipper

15. Dangerous Goods Definition Strict liability by the shipper and the “documentary shipper” Carrier’s measures on goods that are or become a danger

16. Electronic Transport Records • Electronic documents in the current transport/ shipping industry • Electronic transport record under the Rotterdam Rules

18. Delivery • Consignee’s obligation to accept delivery, goods remaining undelivered (uncollected cargo) • Delivery under the transport documents provided in the Rotterdam Rules • Negotiable transport document

19. Transport Documents

20. Rights of the Controlling Party • Rights conferred on the controlling party • Identifying the controlling party

21. Example 3: A forwarder assumes liability for the carriage of goods from Canada to the UK. The forwarder concludes the carriage contract with the UK buyer. In the forwarder’s “straight” bill of lading, the Canadian seller is named as the “shipper” and the UK buyer as the “consignee”. Just before the goods are scheduled to arrive in the UK, the Canadian seller informs the forwarder that he has sold the goods to a party in France (because there was a problem with payment by the UK buyer) and instructs the forwarder not to deliver the goods to the original UK buyer. When the UK buyer is made aware of the seller’s latest instructions, it clarifies that it would sue the forwarder if the latter did not deliver the goods to it on arrival. What should the forwarder do (assumption: the Rotterdam Rules are in force in all the countries mentioned)?

22. Example 3: B/L Rotterdam Rules B/L Rotterdam Rules Shipper Documentary Shipper Consignee Shipper Buyer A Seller CAN UK Buyer B France

23. Carrier’s period of responsibility Art 12(1) The period of responsibility of the carrier begins when the carrier receives the goods for carriage and ends when the goods are delivered Art 11 The carrier shall carry the goods and deliver them

24. Seaworthiness Exercise due diligence to… Rotterdam …make and keep the vessel seaworthy Hague-Visby …make the vessel seaworthy

25. Basis of Liability & Burden of Proof - Cargo damaged in carrier’s possession – 17(1) - Not the carrier’s fault – 17(2) - Defences apply – 17(3) - Carrier’s Fault – 17(4) - Unseaworthiness – 17(5)

26. List of Defences ROTTERDAMHague-Visby xxxxxx Error in navigation Act of God Act of God Perils of the sea Perils of the sea War, piracy, terrorism, riots, civil commot’n Act of war xxxxxx Act of public enemies xxxxxx Restraint of princes; public process Quarantine; Interference by governments Quarantine Strikes Strikes Fire on the ship Fire unless caused by actual fault or privity of carrier Latent defects Latent defects Acts of shipper etc Acts of shipper etc FIOS agreement xxxxxx Wastage in bulk Wastage in bulk Defective packing/marking Defective packing/marking SOLAS SOLAS Saving property at sea Saving property at sea Environmental damage xxxxxx Dangerous goods; Sacrifice for common xxxxxx adventure

29. Limits of Liability Rotterdam Rules (whichever is the highest of) • 3 SDR per kg • 875 SDR per package Hague-Visby (whichever is the highest of) • 2 SDR per kg • 667 SDR per package

30. Delay Compensation 2½ the freight – capped at SDR 875/SDR 3 Two Requirements • Agreement • Economic Loss What do they mean?

31. Breaking Limitation “(…) 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.”

32. Time Bar • Two years • Applies to claims by either party • Indemnity claim similar to Art III(6bis) of the Hague- Visby Rules

33. Misdelivery • Probably within the scope of the Rotterdam Rules • Is the carrier entitled to limit its liability?

35. Multimodal Transport • Basic principle: Rotterdam Rules apply to a contract for sea carriage or to a contract for multimodal carriage with a sea leg • First exception: international conventions which are already in force when the Rotterdam Rules enter into force (Art 82 RR) • Second exception: occurrence solely before or solely after the sea portion (Art 26 RR)

36. Art 26. Carriage preceding or subsequent to sea carriage When loss of or damage to goods, or an event or circumstance causing a delay in their delivery, occurs during the carrier’s period of responsibility but solely before their loading onto the ship or solely after their discharge from the ship, the provisions of this Convention do not prevail over those provisions of another international instrument that, at the time of such loss, damage or event or circumstance causing delay: (a) Pursuant to the provisions of such international instrument would have applied to all or any of the carrier’s activities if the shipper had made a separate and direct contract with the carrier in respect of the particular stage of carriage where the loss of, or damage to the goods, or any event or circumstance causing delay in their delivery occurred: (b) Specifically provide for the carrier’s liability, limitation of liability or time for suit; and (c) Cannot be departed from by contract either at all or to the detriment of the shipper under that instrument.

37. Example 4: A forwarder assumes liability for “door to door” carriage from China and subcontracts the performance of the ocean voyage and the final land portion. Will the Rotterdam Rules increase the forwarder’s liability if the goods are damaged during the final land portion: (4.1) Vancouver – Edmonton (4.2) Long Beach – Oklahoma City (4.3) Antwerp - Paris

38. Art 26. Carriage preceding or subsequent to sea carriage When loss of or damage to goods, or an event or circumstance causing a delay in their delivery, occurs during the carrier’s period of responsibility but solely before their loading onto the ship or solely after their discharge from the ship, the provisions of this Convention do not prevail over those provisions of another international instrument that, at the time of such loss, damage or event or circumstance causing delay: (a) Pursuant to the provisions of such international instrument would have applied to all or any of the carrier’s activities if the shipper had made a separate and direct contract with the carrier in respect of the particular stage of carriage where the loss of, or damage to the goods, or any event or circumstance causing delay in their delivery occurred: (b) Specifically provide for the carrier’s liability, limitation of liability or time for suit; and (c) Cannot be departed from by contract either at all or to the detriment of the shipper under that instrument.

39. Example 5 A carrier undertakes carriage of a chemical liquid in a tank container first by road from the Netherlands to Belgium, then by sea onwards to Canada. On arrival in Canada, the chemical liquid was declared a total loss as it got gradually polluted by the residues of the cargo that was previously in the tank container. Under which rules is the carrier liable (assumption: the Rotterdam Rules are in force in all the countries mentioned)?

40. Example 5: Pollution The Netherlands Belgium USA

41. Art 26. Carriage preceding or subsequent to sea carriage When loss of or damage to goods, or an event or circumstance causing a delay in their delivery, occurs during the carrier’s period of responsibility but solely before their loading onto the ship or solely after their discharge from the ship, the provisions of this Convention do not prevail over those provisions of another international instrument that, at the time of such loss, damage or event or circumstance causing delay: (a) Pursuant to the provisions of such international instrument would have applied to all or any of the carrier’s activities if the shipper had made a separate and direct contract with the carrier in respect of the particular stage of carriage where the loss of, or damage to the goods, or any event or circumstance causing delay in their delivery occurred: (b) Specifically provide for the carrier’s liability, limitation of liability or time for suit; and (c) Cannot be departed from by contract either at all or to the detriment of the shipper under that instrument.

42. Example 6 A machine is carried first by lorry from France to Antwerp, then by sea from Antwerp to Halifax NS and, due to urgency, finally flown from Halifax to Boston. During the initial road haulage in Europe, rough driving weakens some bolts, but the machine remains in one piece. While being loaded on board an airplane at Halifax airport for its final leg to Boston, the machine is handled in a rough manner and, already weakened by the vibrations during the road haulage in Europe, falls to pieces. Under which liability regime is the carrier liable (assumption: the Rotterdam Rules are in force in all the countries mentioned)?

43. Example 6 Damage 1 Damage 2 France Belgium Canada USA

44. Art 26. Carriage preceding or subsequent to sea carriage When loss of or damage to goods, or an event or circumstance causing a delay in their delivery, occurs during the carrier’s period of responsibility but solely before their loading onto the ship or solely after their discharge from the ship, the provisions of this Convention do not prevail over those provisions of another international instrument that, at the time of such loss, damage or event or circumstance causing delay: (a) Pursuant to the provisions of such international instrument would have applied to all or any of the carrier’s activities if the shipper had made a separate and direct contract with the carrier in respect of the particular stage of carriage where the loss of, or damage to the goods, or any event or circumstance causing delay in their delivery occurred: (b) Specifically provide for the carrier’s liability, limitation of liability or time for suit; and (c) Cannot be departed from by contract either at all or to the detriment of the shipper under that instrument.

45. Maritime Performing Parties Principle of “Same liability as the Carrier” Definition of “Maritime performing party”

46. Defintion of “Maritime performing party” Article 1(7) “Maritime performing party” means a performing party to the extent that it performs or undertakes to perform any of the carrier’s obligations during the period between the arrival of the goods at the port of loading of a ship and their departure from the port of discharge of a ship. An inland carrier is a maritime performing party only if it performs or undertakes to perform is services exclusively within the a port area.

47. Shipper RRLiability joint & several RR Carrier Not RR Terminal 1

48. Defenses available to a “Maritime Performing Party” The Rotterdam Rules give the shipper a sword against the Maritime performing party, but they also give the Maritime performing party a shield against the shipper.

49. Example 6 A forwarder assumes liability for the carriage of a machine “door to door” from the USA to Hong Kong and instructs a Hong Kong terminal to handle the goods on arrival at the Hong Kong port. A stevedore, who is employed by a subcontractor of the Hong Kong terminal, in an act of negligence, drops the containerised machine, which is deemed a total loss. Cargo insurers sue the forwarder in contract and the Hong Kong terminal, the terminal’s subcontractor and the stevedore in tort. Which of the four defendants can rely on Rotterdam Rules liability limits (assumption: the Rotterdam Rules are in force in the USA and in Hong Kong)?

50. Example 6 Claim Shipper Rotterdam Rules Claim NVOCC (Rotterdam Rules: carrier) Terminal (RR: maritime performing party) Terminal’s sub-contractor (RR: maritime performing party) “Himalaya” type protection under Art 4 RR Stevedore