Legal Lookout July - October 2009
The Rotterdam Rules: The long voyage of international efforts to modernize ocean shipping liability
by Steve Block
Modernization of ocean shipping liability has been the subject of so much analysis, conjecture, lobbying, posturing and contention over the past 20 years that it’s almost difficult to present developments as news – however much the work of numerous organizations and individual players seem to be making progress. You can find Legal Lookout articles from the mid-1990s heralding a new era of shipping liability law by way of soon-to-be ratified reform to the U.S. Carriage of Goods by Sea Act (COGSA). A year or so later, you’ll see sheepish retractions of those announcements based on post-deregulation torpedoing of proposed Congressional bills (it’s amazing what a one-page protest letter from a dozen steamship lines can do!).
The Maritime Law Association of the United States and National Industrial Transportation League have dedicated hard-working committees since the George Bush Senior years to study, propose and promote reform legislation and, later, a new international treaty. All we currently have to show for that work are various versions of proposed bills and engaging commentary about why they would or wouldn’t work.
But that’s not to say we aren’t making progress! COGSA, the U.S. legislation based largely on international liability regimes Uncle Sam refused to accept, is antiquated and the subject of too much discontent and dispute to carry us into the new millennium, especially with our country’s current economic challenges. Enacted in 1936 with some subsequent amendments, COGSA has just lost pace with the times. It doesn’t recognize modern shipping practices, volumes and technologies. 500 bucks a package – the minimum to which COGSA allows ocean carriers to limit their liability for lost/damaged cargo, was quite a lofty sum in 1936. It’s now peanuts in most circumstances.
Similarly, the Hague-Visby Rules (the largest international cargo liability regime, and COGSA’s genesis, but a treaty the U.S. refused to sign) and Hamburg Rules (a newer treaty designed largely for developing countries, again rejected by Uncle Sam) are largely obsolete. But, along with COGSA, they provide a good deal of valuable background and experience – from both legal and industry perspectives – for creation of a modernized regime suitable for the world’s largest trading partners.
The movement toward an international uniform liability system was long in the making, and brought U.S. domestic reform endeavors to a halt. Years were spent by maritime organizations (some more law-oriented than others) of various countries, as well as the Comité Maritime International, analyzing the issues and boiling them down to proposed solutions. This was followed by a seven-year effort by the United Nations Commission on International Trade Law (UNCITRAL). Finally, on September 23, 2009, a formal ceremony was held in Rotterdam wherein a finalized treaty was presented for signing. It will take 20 ratified signatures of the world’s major trading parties to bring the “Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea,” informally, “the Rotterdam Rules” (and here, “the new treaty”) into action.
So what would happen if the U.S. charts a new course, and joins the rest of the world in adopting this international, uniform cargo liability program? As is the case with most liability legislation, much is left to speculation and ultimate determination by piecemeal litigation. How this all will work in practice cannot be predicted with much certainty. But we can certainly scrutinize what the Rotterdam Rules seek to accomplish based on input from numerous sources and the wisdom of delegates and committee members. This paper takes a look at some of the proposed new regime’s most salient features, and suggests what they might mean for U.S. industry and law if we ratify and implement them.
Applicability
The Rotterdam Rules surface at just the time the U.S. finds itself embroiled with conflict occasioned by the U.S. Supreme Court’s 2004 decision in Norfolk Southern Railway Co. v. Kirby, et al, the Second Circuit Court of Appeals’ ruling in Sompo Japan Ins. Co. v. Norfolk Southern Ry. Co., and those cases’ progeny (see May-August 2008 Legal Lookout articles for a thorough analysis). At issue there was whether COGSA and the limitation of liability terms of a through ocean bill of lading could effectively be extended to inland carriers and other non-maritime participants in a through move. Many observers believe the Second Circuit, in Sompo Japan, improperly disregarded the High Court’s proclamation, in Kirby, that multimodal hauls will be fully subject to the predominant maritime contract’s terms and governing law (absent available provisions to the contrary). Subsequent cases have gone all over the place, leaving motor carriers and railroads anywhere from confused to clueless as to what law and liability limitations control them in the event of loss.
Early rumblings suggested that UNCITRAL’s forthcoming regime might encompass land-based elements of through ocean hauls, thereby clearing up the disarray. That’s not the way it worked out, unfortunately. Rail and motor carrier interests decided they wanted nothing to do with the formation of liability guidelines designed by and for their salty cousins, and declined to submit themselves to the new terms. We’ll just have to wait for the Supreme Court to straighten out the mess by a subsequent decision.
Nonetheless, the Rotterdam Rules do contain provisions for their applicability door-to-door for contracted multimodal moves. This is in contrast to COGSA’s “tackle-to-tackle” applicability that may be extended by contract to include other service providers. Thus, inland carriers could stay out of the new treaty’s shadow if they want to.
Notably, the Rotterdam Rules are designed not to apply to charter parties. Some rules can be opted out of for “volume contracts,” which is the treaty’s more-defined term for service contracts. This might give some comfort to those who like the newly deregulated, market-driven shipping world occasioned by the Ocean Shipping Reform Act of 1998.
Shipping documentation
Documentation of shipping relationships has transformed since the era of deregulation’s onset, with service contracts playing a more pivotal role, at least from the standpoint of economics.
Preliminarily, a bill of lading under the new treaty would represent the contract of carriage, as opposed to just being evidence of a contract of carriage as provided under current law. There are requirements for documented control over a shipment to destination.
The Rotterdam Rules provide for three types of paper: negotiable transport documents, non-negotiable transport documents and straight bills of lading. Required particulars are stated for each variety; provisions are made for electronic documentation; and the evidentiary effect of stated terms is explained (i.e., certain transport documents will be prima facie proof of a cargo’s condition and count at time of tender under certain circumstances, while others could leave open questions). This is one place where the new treaty becomes messy and complex; so much so that many observers have decried its documentation aspects as prohibitively complicated. You shouldn’t have to be a highly specialized attorney or 20-year industry veteran just to understand how shipping contacts work. Advantages and disadvantages of the various documentation forms aren’t spelled out and may hinge on legal and business circumstances that negotiating and drafting individuals don’t understand.
Jurisdiction and Arbitration
One source of discontent the American shipping community has experienced over the past fifteen years is U.S. courts’ recognition and enforcement of foreign jurisdiction selection and arbitration clauses in bills of lading issued by steamship lines flagged in other countries. Since the U.S. Supreme Court’s decision in Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, American shippers have been forced to pursue cargo claims against most steamship lines in foreign countries. This can complicate – or even render financially infeasible – recovery actions by the world’s largest consumers of transportation services. Needless to say, U.S. shippers and, most certainly, their work-deprived attorneys have long sought to legislatively reverse Sky Reefer in any liability regime overhaul. Foreign steamship lines, on the other hand, are quite happy to dissuade litigation or arbitration against them by forcing it to take place in, say, Seoul.
The Rotterdam Rules address foreign jurisdiction selection, but not with the certainty some of us would like to see. Suit is allowed in any one of four specified venues (including places of tender and delivery), which would seem to expunge Sky Reefer’s “the carrier decides” holding. However, volume contracts can still mandate foreign jurisdiction. Depending on who controls the market, this can be significant, given that the vast majority of freight moves by contract. Also, these jurisdiction provisions are optional, and signatory nations are free to develop their own statutes and regulations which might dictate where dispute resolution must take place. One wonders how much progress this point of the new treaty makes regarding forum selection.
Claims and Litigation Points
Defenses
The Rotterdam Rules preserve most cargo liability concepts found in earlier international treaties and COGSA. Basically, the shipper must demonstrate tender of its cargo to an ocean carrier in good order and condition, and either non-delivery or delivery in damaged or short condition. After jumping that hurdle, the burden of proof shifts to the carrier to demonstrate the loss was caused by one or more enumerated defenses. The Rotterdam Rules incorporate most of the established COGSA defenses, which essentially dictate what amounts to liability-generating fault. One adjustment is that the defenses aren’t necessarily absolute, and courts could apportion liability based on degrees of fault and their contribution to the loss for specified defenses. This is something of a departure from COGSA’s process, but one which may make little practical difference.
The most significant deletion from COGSA’s list is the “Error in Navigation” defense, one that has never made much sense to most observers, especially shippers. It basically allows carriers to escape liability by demonstrating they were negligent, an illogical concept that has left many freight-claim litigants disenchanted with the entire system.
Also adjusted, or perhaps clarified, is the fire defense. Under COGSA, the fire defense is somewhat unclear with regard to burdens of proof, and the U.S. circuits have gone in different directions applying it. On its face, COGSA’s fire defense language is applicable only if the carrier’s “privity and fault” caused it, which introduces another element someone must prove before it applies. When and who must demonstrate privity and fault, as well as when they must do so, just aren’t clear. The new treaty’s fire defense isn’t subject to that lack of clarity; “fire on the ship” is listed as a defense like any other.
Deviation
Deviation terms are preserved to dissuade carriers from departing from their planned routes and service agreements, but with less vigor than certain U.S. and foreign case precedents have imposed. The current rule, though applied erratically, is that a carrier which deviates in a manner that causes loss loses its right to enforce limitation of liability provisions. Under the treaty, deviation won’t destroy limitation of liability unless it was done “with the intent to cause such loss or recklessly and with the knowledge that such loss would probably result.” This leaves the door open to claims that altered routes caused delay that a carrier knew (or should have known) would cause a shipper to, say, miss a sales season in the country of destination.
Another frequent subject of deviation claims regards carriage of cargo on deck. Deviation in that manner still wouldn’t necessarily be with the level of reckless intent required to destroy limitation of liability (although, for some cargoes, it very well may be). However, limited liability would be unavailable for carriers which expressly agreed to carry cargo under deck, but didn’t.
Time to Sue
The treaty provides a two-year statute of limitations for filing suit (like the Hamburg Rules, but unlike the one-year time to sue imposed by Hague-Visby and COGSA). The longer time period allows cargo interests more time to determine the nature and extent of their losses before deciding to file suit, and provides a more workable opportunity for players in certain countries to gather documentation needed for litigation. Usually a year is enough in the States, and when it’s not, shippers’ and carriers’ adjusters usually stipulate to a deadline extension to avoid potentially unnecessary court action. The two-year period would commence on the date of delivery, or when delivery was scheduled, even if a loss isn’t discovered until some time later. If two years has passed, a shipper could assert a lost/damaged freight claim as offset in response to a freight charge or other claim brought against it by the carrier.
Damages
Recoverable damages for lost/damaged cargo are calculated based on the goods’ value at the time and place of delivery. The valuation technique speaks for itself: “The value of the goods is fixed according to the commodity exchange price or, if there is no such price, according to their market price, or, if there is no commodity exchange price or market price, by reference to the normal value of the goods of the same kind and quality at the place of delivery.” A provision allows shippers and carriers to specify liquidated damages amounts in their contracts.
Limitation of Liability
Nothing impacts cargo claims like that carrier’s ace-in-the-hole, limitation of liability. Of course, the new treaty preserves this age-old feature of maritime law, but does so with some significant revisions.
The Rotterdam Rules’ provisions regarding limitation of liability apply only to carriers and “maritime performing parties,” which include stevedores and such, but exclude inland carriers. So what about Himalaya Clauses and other contractual extensions of maritime contract terms to railroads and truckers? How is the Kirby/ Sompo Japan debacle addressed? Put simply, it’s really not. The U.S. and other countries struggling with the issues of dual ocean and inland liability regimes in a multimodal transportation world will just have to keep sorting that out themselves. One potentially problematic loophole some observers have noted is that a railroad could set itself up as a carrier simply by getting a non-vessel operating common carrier license from the U.S. Federal Maritime Commission. This might require some regulatory attention before Uncle Sam ratifies the treaty.
COGSA’s per-package minimum liability of $500, and the Hague-Visby Rules’ 666.67 Special Drawing Rights (a valuation set by the International Monetary Fund based international currency fluctuations), have long been criticized as antiquated figures which don’t reflect inflation over the past century. They also ignore the fact that much more valuable cargoes are now ocean shipped, taking advantage of technological developments such as containerization, faster vessels, and more reliable refrigeration.
Under the new treaty, a carrier’s liability is limited to 875 SDRs (currently around $1,500) or 3 SDRs per kilogram of weight (about $2.20 pound), whichever is higher (a break COGSA doesn’t give shippers). The weight option would be significant to break bulk shippers of heavy industrial equipment that might otherwise constitute a single package. Clearing up some conflicting principles from U.S. and other courts, a “package” for limitation of liability purposes is the smallest unit definitively listed on a bill of lading, even if it is palletized with other packages. To escape full liability, carriers still must offer their shippers an option to declare full cargo value and pay a higher freight rate. Limited liability will not be available to a carrier if its owner (i.e., not just some deckhand) recklessly or knowingly caused the loss.
Liability for damages caused by delayed delivery are limited to two and a half times the freight charges. They are subject to the damages calculation provisos described above, and may be limited to 875 SDRs/package or 3 SDRs/kilogram if the carrier has properly limited its liability.
Status
So where is this headed? Will we get the 20 ratified signatures needed to bring this thing to life? How many of the current 21 John Hancocks will they all be ratified? And what about Uncle Sam?
The U.S. signed the treaty at its formal ceremony earlier this year. Notably, some particularly important players – the United Kingdom, Canada, China and India, among others – haven’t stepped up. Some observers question whether we will get the needed number of ratifications, or if we do, whether years will pass before it happens. The world in general, and the U.S. in particular, have gotten very used to deregulation over the past decade, and lobbying forces might not be particularly psyched to (potentially) give up newly acquired freedoms by way of an untested international treaty. The effects certain provisions of the Rotterdam Rules would have on the economic recovery are uncertain, and could be fodder for naysayers to stall or prevent ratification.
On the other hand, the uniformity and international predictability the new treaty (at least theoretically) provides have distinct advantages. Economic and legal reliability actually might enhance economic recovery, and the risks of certain Rotterdam principles are really just theoretical. Efforts to provide contracting parties some leeway produced terms in significant areas.
We’ve waited a very long time for cargo liability reform. The current system of COGSA versus the world isn’t a long-term option. It’s time to strike a deal with our trading partners and move forward. The Rotterdam Rules are the best we can hope for by way of a immediate progress in the right direction.
Ref: Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, available here; Norfolk Southern Railway Co. v. James N. Kirby, PTY Ltd., d/b/a Kirby Engineering, and Allianz Australia Insurance Limited, 543 U.S. 14, 125 S.Ct. 385 (2004); Sompo Japan Ins. Co. v. Norfolk Southern Ry. Co., 456 F.3d 54 (2nd Cir. 2006); and Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 115 S.Ct. 2322 (1995).