FTA Scottish Supply Chain Forum Tuesday 14 June 2011 Rose Marie O’Donnell Brodies LLP

1. FTA Scottish Supply Chain Forum Tuesday 14 June 2011 Rose Marie O’Donnell Brodies LLP rosemarie.odonnell@brodies.com

2. The Rotterdam Rules – The UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea • 23 signatories • Spain ratified • Entry into force one year after the 20th ratification

3. Hague Rules • Hague-Visby Rules • Hamburg Rules • Rotterdam Rules - 96 articles divided into 18 chapters

4. EU - Motion “[The Parliament] calls on Member States speedily to sign, ratify and implement the UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, known as the “Rotterdam Rules”, establishing the new maritime liability system.” (Par 11 of Motion on the strategic goals and recommendations for the EU’s maritime policy until 2018 (2009/2095(inc)).”

5. Network System v Uniform System • The Liability Gap

6. Warsaw/Montreal Conventions • CMR • COTIF – CIM • CMNI

7. Article 1.1 • Definition of a Contract of Carriage (Article 1.1) • “The contract shall provide for carriage by sea and may provide for carriage by other modes of transport in addition to the sea carriage.” • The “Maritime Plus” approach

8. Article 26 • When loss occurs on a non-sea leg • Certain provisions of mandatory unimodal international conventions will prevail • Liability • Limitation • Timebar

9. Article 26 • But if loss occurs • During more than one leg; or • Can’t prove where loss occurs • Convention prevails • Clause 82

10. Carriers • Performing parties • Maritime performing parties • Shipper • Documentary shipper

11. “Performing Parties” means a person other than the carrier that performs or undertakes to perform any of the carrier’s obligations under a contract of carriage with respect to the receipt, loading, handling, stowage, carriage, care, unloading or delivery of the goods, to the extent that such a person acts, either directly or indirectly, at the carrier’s request or under the carrier’s supervision or control.” (Article 1, 6(a)) • Does not include a person retained directly or indirectly by a shipper, documentary shipper, controlling party or consignee instead of by the carrier (Article 1, 6(b)).

12. “Maritime Performing Party” means a performing party…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 …and their departure from the port of discharge… • An inland carrier is a maritime performing party only if it performs or undertakes to perform its services exclusively within a port area.”

13. Documentary shipper – not the contracting shipper but one who “accepts to be named as ‘shipper’ in the transport document” (Article 1.9) • - liable for any breach of shipper’s obligations. • Eg. Consignor seller under a FOB contract

14. Carrier’s liability • Article 17 • The carrier is liable for loss or damage… as well as delay…if … caused or contributed … during the period of the carrier’s responsibility…”

15. Exclusions • No exclusion for “act, neglect, or default of the master… in the navigation or in the management of the ship.” • FIOST • Article 13 (2) • Carrier and shipper may agree that the loading, handling, stowing or unloading of the goods is to be performed by the shipper, documentary shipper or the consignee. • Article 17.3 (n) • Reasonable measures to avoid or attempt to avoid damage to the environment.

16. Categories who benefit from Carriers Defences • Maritime performing parties; • Master, crew and any other person that performs services on board ship; • The employees of the carrier or a maritime performing party.

17. Shipper’s Duties and Liabilities • Articles 27-29 and 31-32 • Article 27.1 • Deliver the goods ready for carriage • Article 27.3 • Inside the container • Article 29 • Obligation to provide information, instructions and documents • Article 31 • Contract particulars • Article 32 • Dangerous goods

18. Shipper’s Duties and Liabilities • Article 30 • Liable for loss or damage sustained by carrier. • Delay? • Strict liability re: • Dangerous goods; • Provision of accurate particulars

19. Categories who benefit from Defences of Shipper or Documentary Shipper • Sub-contractors; • Agents; • Employees.

20. Volume Contracts • “A contract of carriage that provides for the carriage of a specified quantity of goods in a series of shipments during an agreed period of time. The specification of the quantity may include a minimum, a maximum or a certain range.” • May derogate from the provisions of the convention provided • States that contract derogates • Individually negotiated • Prominently specifies

21. Volume Contracts • Article 80 • Carrier cannot derogate from obligation to:- • Provide seaworthy ship; and • Properly crew, equip and supply (not cargoworthiness) • Shipper cannot derogate from obligation to:- • Provide information, instructions and documents; and • Inform carrier re dangerous goods • Mark and label dangerous goods

22. Third parties can rely on “any provision” if the carrier agrees to assume other obligations/higher limits of liability • Third parties not bound unless they expressly agree

23. Jurisdiction • Articles 66 -68 • Domicile of carrier • Receipt • Delivery • Loading • Discharge Article 74 Declaration that state will be bound

24. Arbitration • Agreement • Notice • Volume Contract Article 78 Declaration that state will be bound

25. Transport Document • A document issued under a contract of carriage that: • Evidences the carrier’s/performing party’s receipt of goods; and • Evidences or contains a contract of carriage

26. Status • Non-negotiable transport document • Non-negotiable electronic transport record • Negotiable transport document • Negotiable electronic transport record