ofthe Hague and the Hague-Visby Rules

ofthe Hague and the Hague-Visby Rules, which also impose a set of positive duties on the carrier with respect to both the cargo and the vessel.” On the assumption that the courts will not deviate from the existing case law when interpreting the Rotterdam Rules, it is expected that litigation over the interpretation of the Rotterdam Rules provisions on the carrier’s duties will be minimised, as the courts will benefit fromthe extensive case law on the respective provisions of the Hague regime.”
This solution certainly has its advantages and would have been ideal and in line with the objective of the Rotterdam Rules to harmonise the carriage of goods by sea laws if the courts, at least in the major shipping countries, had adopted a uniform interpretation of article 3.1 through .2 of the Hague and the Hague-Visby Rules. This is not, however, always the case. Although the case law in the major jurisdictions is uniform at least with respect to a great number of issues that arise out of the application of article 3.1 through article .2 of The Hague and the Hague-VisbyRules (which may be of guidance in the interpretation and application ofarticles 13 and 14), there is a split on authority regarding the interpretation of some aspects of the above-mentioned articles. In particular, as regards the duty of the carrier to provide a seaworthy vessel, the courts worldwide have adopted a common test, which, simply put, begs the question of whether the vessel is reasonably fit to carry the cargo that she has undertaken to transport, having regardto the ordinary perils of which such a cargo would be exposed on the voyage.” The courts in different jurisdictions have even gone further to provide for the relative nature of the seaworthiness of the vessel, which they have held to be dependent upon several factors, such as the type of the cargo to be carried, the nature (type and age) of the vessel, and the nature of the contractual voyage.”
The judicial authorities in different countries also had littledifficulty in reaching a consensus as to the scope of the different aspects of seaworthiness stated in article 3.1 of The Hague and the Hague-Visby Rules. A vessel is considered to be seaworthy for the purposes of article 3.1(a), which is the equivalent of article 14(a) of the Rotterdam Rules, if her structure is reasonably fit to encounter the ordinary perils whichmight be expected on the voyage,” her machinery (such as the engines,generators, boilers, steering gear) is in good order,” and she is safely loaded and stowed.” In addition, under article 3.1(b) (article 14(b) of the Rotterdam Rules), a vessel will meet the seaworthiness test if: the crew is sufficient in numbers;” the crew is efficient, competent, and properly instructed and trained for the vessel and voyage in question;” and the vessel has on board the necessary equipment,94 certificates, and documentation” to pursue the voyage as well as sufficient bunkers to take her to a particular convenient or usual bunkering port on the way.”
Finally, as required by article 3.1(c) (now article 14(c)), the vessel must be cargo-worthy, that is to say the holds and all other parts of the ship in which the goods are carried must be reasonably fit to receive and carry the cargo and deliver it at the specified destinationThe only major change in the text of article 14(c) of the Rotterdam Rules is, as previously mentioned, that it makes provision for the cargo worthiness of the “containerssupplied by the carrier in or upon which the goods are carried.”” This should not, however, be seen as an obstacle to the uniform interpretation of article 14(c), because it reflects the position adopted in several jurisdictions that the carrier’s obligation to exercise due diligence to provide a cargo-worthy vessel extends to the containers supplied by the carrier as they form part of the ship.'” What it means is that the containers that the carrier provides for the carriage of the goods must be suitable for the particular cargo. In most cases the courts have adopt uniform approaching to the interpretationof the degree of care expected bythe carrier with respect to the seaworthiness obligation. “Due diligence” to make the vessel seaworthy is defined as the exercise of care expected by a reasonable and prudent carrier. 3 It is equivalent to the exercise of reasonable skill and care to make the vessel seaworthy, and lack of due diligence amounts to negligence.”
The courts have also held that the test is objective and is to be measured by the standards of a reasonable ship-owner, taking into account international standards and the particularcircumstances of each case, such as the nature of the vessel and the state of knowledge at the material time.
The test adopted by the courts regarding the factors to be taken into account when deciding whether the carrier has exercised due diligence is broad enough and may be extended to cover cases where the unseaworthiness of the vessel arises during the voyage, which will now be covered by the Rotterdam Rules. Such a test will be of assistance in determining whether the carrier would be expected to take any measures to rectify the unseaworthy condition of the vessel while she is at sea, and if so, what those measures would be. This position has also been taken into consideration in the course of thenegotiations of the Rotterdam Rules, as it was suggested in the Ninth Session of the UNCITRAL Working Group on Transport Law that thedegree of diligence should depend on the context (whether the vessel is at sea or in port.
The carrier’s obligations to exercise care for the cargo and provide seaworthy ships, as set out in articles 13 Specific obligations. The carrier shall during the period of its responsibility as defined inarticle 12, and subject to article 26, properly and carefully receive, load, handle, stow, carry, keep, care for, unload and deliver the goods.2. Notwithstanding paragraph 1 of this article, and without prejudice to the other provisions in chapter 4 and to chapters 5 to 7, the carrier and the shipper may agree that the loading, handling, stowing or unloading of the goods is to be performed by the shipper, the documentary shipper or the and consignee. Such an agreement shall be referred to in the contract particulars Articles 13 and 14 are based on the respective provisions of the Hague and the Hague-Visby Rules (article 3.1 through .2) and go beyond them only insofar as to align the carrier’sduties with the door-to-door coverage and the limited multimodal scopeof application of the Rotterdam Rules. In particular, in addition to the traditional duties of care for the cargo, as stated in article 3.2 of the Hague and the Hague-Visby Rules (namely the duty to properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried this principle has been illustrate in case of Paterson SS Ltd v Canadian Co- operative Wheat Producers Ltd 49 LILL Rep 421- 426 , the Rotterdam Rules impose on the carrier in article 13 the duty to receive the goods and deliver40 them to the consignee.41 Article 13 also makes clear that the duty of care for the cargo applies throughout the period of the responsibility of the carrier, irrespective of the transport mode used in the performance of the contract. However, this duty is also made subject to article 26, which established the preconditions under which the Rotterdam Rules will give way to international mechanisms governing transport by other modes in cases where the carriage of the cargo is completed by other methods in addition to sea carriage.
In the same way, the Rotterdam Rules follow article 3.1 of the Hague and the Hague-Visby Rules on the seaworthiness obligation of the carrier, but they extend the seaworthiness duty to cover the whole period of thecarriage by sea and the shipping containers (when supplied by the carrier).”
The purpose of this Article is to consider articles 13 and 14 of the Rotterdam Rules with a view to evaluating whether the updated version of the respective provisions of the Hague and Hague-Visby Rules provide a sustainable legal framework for the carrier’s duties of care for the cargo and the seaworthiness of the vessel. While addressing this issue, consideration will be given to the policy reasons behind the
Adoption of such a legal framework, as well as to the interplay with the international transport conventions that govern carriage by transport modes other than sea. It is hoped that the observations made in the conclusions will provide assistance to interested parties when considering whether or not to ratify the Rotterdam Rules.
Chapter six

6.1The concept of delay under Rotterdam Rules

The concept of delay means any indication or specific of the time at which the parties had already agreed that the goods were to be delivered at destination. Nevertheless, there is exception behind this principle, any issues of delays caused to the ship by the shipper or consignee the carrier will not be liable. However, there are heavy pressure from different organisations is being exercised against the particularity of maritime transportation which has already led to liability for delay in the context of the United Nations Convention on the Carriage of Goods by Sea (Hamburg, (hereinafter: This pressure was pushing the new United Nations to adopt a new Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea has included delay as one of the particular lines of liability of the carrier. According to Rotterdam Rules Arts. 11 and 43 the carrier will be liable as a result of misbelieving or the vessel has not reach at the agreed place (destination) at the agreed time. If the time for delivery is agreed upon, the carrier will be liable for the (financial) compensation resulting from failure to meet that time for delivery. The Convention gives the parties freedom of choice to decide whether or not to have agreed to anytime for deliver the goods at the place of discharge this depends to the interpretation of the contract. Where exact times have been clearly agreed upon – something that is probably quite rare in the Carriage of Goods by Sea – this will be quite easy. It will be more difficult where the time has been declared only in relation to published timetables, general predictions, usages and trade practices, practices of competitors, oraverages of transit times known to the particular trade. In such cases, anyagreement as to time must be determined by applying the principles of the