Les Règles de Rotterdam: le droit des transports maritimes du XXIème siècle Marseille, 20 & 21 Mai 2010

1. Les Règles de Rotterdam: le droit des transports maritimes du XXIème siècle Marseille, 20 & 21 Mai 2010

2. Les Règles de Rotterdam Règles claires ou obscures? The Maritime Performing Party (Articles 1.6, 1.7, 4, 19 RR) La partie exécutante maritime Prof. Dr. Frank Smeele Erasmus School of Law - www.ristl.nl smeele@frg.eur.nl

3. Outline Ratio legis? Who qualifies? Basis for liability? Maritime Performing Party

4. Ratio Legis? Four problems: 1) Rise of contractual carrier (≠ ship-owner) Charterer’s b/l’s and rise of NVOC Uncertainty about identity of carrier Endangers link between b/l and ship Endangers enforcement of cargo claims through ship’s arrest Maritime Performing Party

5. Ratio Legis? Four problems: 2) Concurrent actions for recovery of cargo damage? Contract Tort Maritime Performing Party

6. Ratio Legis? Four problems: 3) Circumvention of mandatory regime through tort-based claim against servants, agents and independent contractors of carrier? Maritime Performing Party

7. Ratio Legis? Four problems: 4) Circumvention of mandatory regime through multiple recovery of liability limit from various debtors? Maritime Performing Party

8. Ratio Legis? Rotterdam Rules: 1) Direct action against ‘maritime performing party’, art. 19.1 RR Wider concept than ‘actual carrier’ (art. 1.2, 10 Hamburg Rules), it covers also independent contractors, who are not sub-carriers Applies only to maritime performing parties, not to inland per-forming parties active beyond the port area, art. 1.7, 1.6 RR Maritime Performing Party

9. Ratio Legis? Rotterdam Rules: 2) Statutory defences/limits apply to extra-contractual claims for cargo damage or breach of obligations car-rier, art. 4.1 RR Not new, art. IV bis (1) HVR, art. 7.1 Hamburg Rules Maritime Performing Party

10. Ratio Legis? Rotterdam Rules: 3) Beneficiaries of protection liability regime: (a) Carrier or a maritime performing party, (b) Master, crew, or performer of services on board of ship (c) Employees of carrier or maritime performing party N.B. Extends protection beyond servants and agents of carrier (art. IV-bis (2) HVR) also to maritime performing party, his servants and agents. Maritime Performing Party

11. Ratio Legis? 3) … Previously much diversity under national laws in treatment of independent contractors of carrier: Immunity from liability Statutory limitation of liability Invoke mandatory law and contractual defences Invoke mandatory regime only Invoke contractual defences only No protection → Himalaya clause Maritime Performing Party

12. Ratio Legis? Rotterdam Rules: 4) Aggregate liability rule, art. 20.2 RR: one limit fits all. No multiple recovery of limitation amount from multiple debtors. Not new: art. IV-bis (3) HVR, art. 7.3 Hamburg Rules Maritime Performing Party

13. Who qualifies? Art. 1.7 RR Person other than the carrier, who performs or undertakes to perform any of carrier’s obligations during period between arrival of goods at port of loading of a ship and their depar-ture from port of discharge of a ship. Maritime Performing Party

14. Who qualifies? “Person other than the carrier …” If carrier performs himself or through his servants or agents, then by definition no maritime performing party. Maritime Performing Party

15. Who qualifies? Art. 1.7 RR Person other than carrier, who performs or under-takes to perform any of carrier’s obligations during period between arrival of goods at port of loading of a ship and their departure from port of dis-charge of a ship. Maritime Performing Party

16. Who qualifies? “… who performs or undertakes to perform …” Not merely the actual performer (e.g. a ship-owner) but also any main contractor (e.g. a charterer) who merely promises to perform but who in fact delegates performance to a sub-contractor. Implication: there may be several mpp’s at same time in relation to same obligation. Maritime Performing Party

17. Who qualifies? Art. 1.7 RR Person other than carrier, who performs or under-takes to perform any of the carrier’s obligations during period between arrival of goods at port of loading of a ship and their departure from port of discharge of a ship. Maritime Performing Party

18. Who qualifies? “… any of the carrier’s obligations …” Clearly much wider than mere sub-carriage, but how wide exactly? It follows from the use of “performing party” in art. 1.7 RR that definition of performing party in art. 1.6 RR must be read into art. 1.7 RR as well. Maritime Performing Party

19. Who qualifies? “… any of the carrier’s obligations …” Therefore it should be read as: ‘Any of the carrier’s obligations under a contract of carriage with respect to receipt, loading, handling, (keeping), stowage, carriage care, unloading or delivery of goods.’ In other words: carrier’s obligations (directly related) to carriage or cargo-handling. Maritime Performing Party

20. Who qualifies? Implications. Included seem to be: Sub-carriers Tug boats (provided that they tow the vessel) Stevedores Container and tank terminals, warehouses and other storage facilities. Maritime Performing Party

21. Maritime Performing Party Who qualifies? Not included are those who merely assist a sub-carrier or in the cargo-handling, without actually undertaking to perform these obligations. E.g. Port pilot Harbour tugs (if merely accompanying or assisting a self-steaming vessel) Independent security service of container terminal.

22. Maritime Performing Party Who qualifies? Neither are included persons retained by cargo interests rather than acting at the carrier’s request or under his supervision and control, art. 1.6 (b) RR. See also art. 12.2 RR.

23. Maritime Performing Party Who qualifies? Nor are included those carrying out other obligations of carrier. E.g. his duty to exercise due diligence: to make and keep the ship seaworthy, art. 14 (a) RR to properly crew, equip & supply the ship, art. 14 (b) RR or his duty to prepare & issue transport documents, art. 35, 36 RR, as these duties are only indirectly related to carriage or cargo-handling.

24. Maritime Performing Party Who qualifies? Unclear: position of sub-contractor performing carrier’s obligation to make and keep cargo holds and containers supplied by carrier fit & safe for reception, carriage & preservation of the goods, art. 14 (c) RR. E.g. ship repair yard, container lease company, surveyors

25. Who qualifies? Art. 1.7 RR Person other than carrier, who performs or undertakes to perform any of carrier’s obligations during period between arrival of goods at port of loading of a ship and their departure from port of discharge of a ship. Aims to distinguish inland carriers who perform their services not merely within the port area but beyond from scope of application. Maritime Performing Party

26. Liability Based on liability regime of carrier, however: 1) Different period of responsibility from that of the carrier under contract of carriage as a whole, art. 19.1 (b) RR, art. 12 RR. Maritime Performing Party

27. Liability Based on liability regime of carrier, however: 2) Limited to damage occurring in connection with sub-carriage or cargo-handling (undertaken to be) performed by himself, his servants, agents or sub-contractors, for which he is vicariously liable, art. 19.3 RR. Maritime Performing Party

28. Maritime Performing Party Liability Based on carrier’s liability regime, however: 3) The maritime performing party is not liable for damage resulting entirely from fault of servants or agents of the carrier. In that case he can invoke the defence of absence of fault under art. 17.2 RR. The same applies if damage is caused entirely by another maritime performing party of the carrier.

29. Liability Based on carrier’s liability regime, however: 4) Maritime performing party is not bound to any additional obligations or higher liability limits accepted by carrier under contract of carriage, art. 19.2 RR. Maritime Performing Party

30. Maritime Performing Party Liability Based on carrier’s liability regime, however: 5) Maritime performing party has no contractual rela-tion with shipper/receiver of the goods. Instead the direct action and his liability regime are based on the Rotterdam Rules. Implication: he cannot invoke any additional defences under the contract of carriage. This may be different however if the contract of carriage contains a Himalaya clause in his favour.

31. Maritime Performing Party Liability Division of Burden of Proof: 1) Cargo interests must prove that cause of damage occurred during period of responsibility of maritime performing party, art. 19.1 (b) RR.

32. Maritime Performing Party Liability Division of Burden of Proof: 2) Maritime performing party must then prove that the cause: Is not attributable to fault on his part or his servants and agents or his sub-contractors, art. 17.2 jo 19.3 RR or Falls under an exemption ground, art. 17.3 RR. If the cause remains unknown, the maritime performing party will remain liable.

33. Maritime Performing Party Liability Division of Burden of Proof: 3) The cargo interests may then seek to prove that the loss was caused by one of the causes listed in art. 17.4 and 17.5 RR. Evidence problem for cargo interests: how to prove the condition of the cargo before and after the period of responsibility of the maritime performing party. A new ‘before and after’ defence?

34. Liability Joint and several liability, art. 20.1 RR Recourse action between carrier, maritime performing parties Claim for contribution: Contractual? Extra-contractual? Applicable law? Maritime Performing Party

35. Liability Rome II - Article 20 Multiple liability If a creditor has a claim against several debtors who are liable for the same claim, and one of the debtors has already satisfied the claim in whole or in part, the question of that debtor’s right to demand compensation from the other debtors shall be governed by the law applicable to that debtor’s non-contractual obligation towards the credi-tor. Maritime Performing Party