TOPIC: A CRITICAL ANALYSIS THE CARRIER LIABILITY FOR DELAY INDELIVERY UNDER HAGUE VISVY RULES AND ROTTERDAM RULES
STUDENT NAME: ABDELRAHMAN ALI
STUDENT NUMBER: 1531773
MODULE CODE: 7LW007
COURSE TITLE : DISSERTATION
The rules governing the liability of the sea carrier are the central part of international maritime Conventions. The provisions aim to regulate the assessment of risks and balance of rights and liabilitiesbetween the carrier and the cargo interests. More specifically, they decide when and to whatdegreethe carrier is liable for economic loss resulting from loss of, or damage to, goods or delayarising while the goods were in the custody of the carrier. Hence the carrier in a position of an insurer of goods should have beard some or part of the compensation as result of negligent or insufficient of duty of care. However, the carrier will be excluded from liability in the case of perils sea or lossescaused by an act of God, the Queen’s enemies or by insufficient package or by the fault of the shipper .The research aims to address the carrier’s liability particularly in case of delay.Late delivery of goods might have serious legal and commercial implications. The delivery time of goods by sea is becoming a critical issuein the case of delay the parties may suffer additional costs. Hence, it is crucial for the parties to fix all the time limits in the sale contract. However, as practice shows, in many cases the contracting parties fail to pay the attention necessary to the time limits of their obligations, leaving it to the court to decide for them in case of a dispute . Nevertheless, neither Hague nor Hamburg specified provisions on liability for loss resulting from the delay.
In many legal traditions, the carrier was strictly liable for the damage of goods during transportation of cargo by sea. however, some countries have adopted a mix approach and contain in their legislation a combination of these conventions including local variations, and sometimes also regional instruments ( EU countries).Currently, the shipping industry, 1 it has become increasingly however, the current law which governs international carriage of goods by sea is insufficient and in need of reform. This system includes the Hague Rules and the Hamburg Rules As a result of this gap, the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (hereafter the Rotterdam Rules) was attempted to find a solution that leadsdrafted in order to generate more uniform, modern and certain system of law for international carriage of goods by sea.At this stage, the definition and meaning of delay and reasonable time should be clarified. A very general definition of delay is provided in Black’s Law Dictionary. Bryan A Garner .In the third alternative, it is defined as theperiod during which something is postponed or slowed. The Oxford English Dictionary defines the delay in similar words, namely a period of time by which something is late or postponed. Professor Kurt Grönfors refers to the delay as beinglate in everyday language and suggests that delay has to be measured in relation to something.
Aims and Objectives of Research
The purpose of this research is to get a critical analyses the basic carrier liability more specific will focus on the liabilities of the carrier for the goods, covers from the period during which the carrier is in charge of the goods at the port of loading,until the carriage has beendischarged under Hague Visby Rules and Hamburg and Rotterdam Rulesand goes in depth to discuss the carrier’s responsibility for the delay in delivering of the goods from loading until discharged The research will continue to examine the potential conflicts. The door-to-door approach within the Rotterdam Rules. Thus the research will be analysis the provisions of the Rotterdam Rules regarding to the aims and object and identify the conventions where possible conflict might occurred. The research will focus on the carrier duties related to the loss of, damage to, or delay in delivery of the cargo, or the event or circumstances that caused or contributed to the loss, damage, or delay occurred during the period of the carrier’s responsibility, the carrier can avoid all or part of his liability if he proves that he and any person for whom he is vicariously liable” acted properly and carefully with regard to the cargo. The Rotterdam Rules have established a new structure for the idea of liability of the carrier, including the rules on the burden of proof. It is not surprising therefore that the Rotterdam Rules will trigger a number of these changes relevant to the existing rules of law. Some of these changes in respect of the basis of liability will be discussed in the next part of this paper.
1.2 Literature Review
The main principle for every marine cargo case for lost or damaged goods starts with the so-alleged”prima facie case.” Under this rule, if the shipper can prove both that the carrierreceived the goods undamaged and in full and that the goods were subsequentlydamaged in the way, the carrier’s liability is presumed. The tools for such proof are: the “clean bill of lading” stating that the goods were shipped clean on board; andnotice of loss, restricting the timeframe in which the damages could haveoccurred.” The “prima facie case” and the different aspects of this proof by cargo interestdid not originate in maritime transport conventions. Nevertheless, the prima faciecase is an established principle in international maritime law, outlined in the HagueRules of 1924, which serves as the start line for the complex burden-of-proofstructure. Regular with industry practice over the last century, this principle iscurrently spelled out by the new Convention. Article 17(1) of the new UNCITRALConvention sets out that the carrier shall be liable if the “claimant proves that theloss, damage, or delay, or the event or circumstance that caused or contributed to ittook place during the period of the carrier’s responsibility as defined in chapter 2″the Rotterdam Rules address the concept of the delay which it seem to be most important area should be discuss in accordance with the doctrine of choice of contract, the parties to a sale contract are free to determine their rights and responsibilities and allocate the risks, as well as the delivery terms and time limits. It should be emphasised that the terms and construction of the sale contract will have utmost importance for the carriage contract. Nevertheless the carrier may be liable in tort to the owner of the goods for loss or damage as result of his negligence or that of his servants. In case of Dawes v . Peck the consignor of goods arose claim against the carrier for non-delivery of the goods, he was not unable to recover only because the property in the goods had passed to the consignee. Rather serious views on lack of sufficient provisions on delay in carriage of goods have been expressed by Ganado and Kindred in their work on marine cargo delays. Arguing strongly against the constant disregard of delay in carriage of goods as a separate topic they conclude that this will result in an ineffective system of law. The authors in his view also expressly stressed that the regulations governing delay in the carriage of goods are unclear and finally observe that delay is valuable of separate analysis and consideration as a distinct topic of maritime law due to its many special characteristics and implications, both legal and commercial. Elaborating on the concept of delay in transportation law, Professor Kurt Grönfors observes that delay has never been strictly described or defined, in spite of it being used often in legal regulations and in scholarly writings. In his crucial evaluation he notes that commonly extend is taken into account as a subject matter secondary to the loss of or damage to goods. Such poor exercise leads to brush aside of extend as a subject of its own.
Obviously, the Rotterdam Rules used a different words, the fault or negligence of the provider used to be no longer a basis of its liability. The service did now not appear to have a lot concerns about the strict liability (liability without fault) and did no longer thought being the guarantor of the secure arrival, as the only accessible vessels had been small sailing ships and cargoes have been no longer generally of a perishable nature. The exercise developed throughout time witnessed an attempt to control the dangers between the carrier and the cargo interest in the payments of lading. Bills of lading had been at the start issued by carriers only too well known the receipt of goods. Later on, payments of lading assumed the venture of theallocation of risks between the carrier and therefore the cargo interests. Indeed, carriers commenced to inserting clauses in their payments of lading not solely to exempt themselves from liability pertaining to the common law exceptions however additionally liability arising from all perils of the sea and navigation of any kind whatsoever. This brought about the entire reversal of the liability besides fault widely recognized before. The realistic effect of this exercise was once to free the ship-owners from all liability as carriers and minimize the significantly to the situation of irresponsible bailers. The reason of statutory legislation in international maritime conventions is to make afair balance between carriers and cargo interest through defining the carrier’s legal responsibility regime. At the heart of carrier’s liability regime are the groundwork of carrier’s liability and the provision of burden (onus) of proof. At the common law, the carrier’s legal responsibility was strict (liability barring fault).
However, the later statutory developments in Hague rules, Hague-Visby rules, Hamburg rules
and Rotterdam rules have brought and set up fault based liability schemes.
the Rotterdam Rules have created a new structure for the basis of liability of the carrier, including the rules on the burden of proof. It is not surprising therefore that the Rotterdam Rules will trigger a number of changes to the relevant existing rules of law. Some of these changes in respect of the basis of liability will be discussed in the next part of this paper
1.1 Dissertation Outline
This chapter will provide an overview on the Aims and objective of the research which as discussed above could be an essentialto look at the carrier liability more specifically we look at the carrier liability in the concept of the delay underArt.III.2 of the Hague and Hague-Visby Rules If the carrier failed to deliver the goods to their destination, or on agreed time the carrier will be liable both cases led to the so- called “prima facie case” that triggered a marine cargo liability case. if the shipper can prove both that the carrier received the goods undamaged and in full and that the goods were subsequently damageden route, the carrier’s liability is presumed. The tools for such proof are:The “clean bill of lading” stating that the goods were shipped clean on board; and notice of loss, restricting the timeframe in which the damages could have
Occurred. The laws of some nationsstate that the carrier’s obligation of sound delivery was one of “result” (obligation deresultant) and not merely one of care However, the position in English law currently undertaking a revision of the rules governing the carriage of goods by sea particularly Art.III.2 of the Hague and Hague-Visby Rules there has been argument among English Judges to impose Art.III.2 of the Hague and Hague-Visby Rules for example In Jindal Iron ; Steel Co Ltd v Islamic Solidarity Shipping Co Jordan Inc the court stated that it would be inappropriate to depart from the existing English understanding of Art.III.2,In practice, however, the obligations of the carrier are hardly as strictand unconditional because the carrier can rely on statutory exceptions (e.g., forcemajeure) and, at least to a certain degree, contractual special exceptions (sometimesreferred to as “negligence clauses” This research tends to discuss carrier liability under new convention The new UNCITRAL Convention it is s significant step forward in this mission of article 11 of the UNCITRAL Convention now explains that delivery of the goods tothe destination is a crucial obligation of the contractual carrier however, at the same timesubjects the carrier’s obligation to the general test of responsibility and carefulness before known both as “care for cargo ‘ and as “due carefulness with regards to seaworthiness. New element of the Convention adds a time aspect to this duty of delivery, asnow it is made clear that the carrier is liable under the Convention, when the cargohas not been delivered within the time agreed in the contract of carriage.The limitation time provisions of Hague Rules, where they remain appropriate, safeguard “the carrier and the ship” from “all legal responsibility in recognize of loss or damage”. The wording used to be reinforced in the Visby Protocol to embody “all liability whatsoever in recognize of the goods”. It has bee n stated that that reason for the addition of the word “whatsoever” used to be particularly to cover misdelivery, because in any other case insurances would have to be saved open for an indefinite period. Under the Hamburg Rules, “Any motion relating to carriage of goods under this Convention is time-barred if judicial or arbitral complaints have not been instituted within a duration of two years” and the Rotterdam Convention is in reality similar. No judicial or arbitral lawsuits in respect of claims or disputes arising from a breach of an responsibility under this Convention may additionally be instituted after the expiration of a duration of two years.
2.1 Chapter Two:
Carrier liability in the event of delay
The chapter will be discussing the Delay of goods by sea which has been known as the most challenging issues to be dealt with multimodal carriage in complex process.Neither the Hague4 nor the Hague-Visby Rules regulate the carrier’s liability for delay.In many legal traditions, the carrierwas strictly liable for the damage of goods during transportation of cargo by seahowever, some countries have adopted a mix approach and contain in their legislation a combination of these conventions including local variations, and sometimes also regional instruments (eg EU countries).The Hamburg Rules, which include detailed provisions on carrier’s liability for delay in delivery, attempted to bring the law applying to sea carriage in line with other modes of transport. However,the Rotterdam Rules specifically govern the carrier’s liability for delay and provide a comprehensive framework to deal with claims for delay in delivery. This is a welcome change, especially taking in to account that the Convention is additionally applicable to other modes of carriage.
Carrier Liability for delay of goods is becomes increasingly a subject matter in the international trade law particularly carriage of goods by sea because the Hague Visby Rules lack of any provision concerns with the delay. The first part of this chapter will looks at the carrier liability for delay with respect to the carriage of goods by sea underthe Rotterdam Rules and alternative conventions where liability for delay is covered. The second part of the discussion goes in depth and looks more specific when the delay becomes relevant, particularly in cases when the time limits are not mentioned by contract and delivery is to be performed within a reasonable time. The third part will look at the carrier liability in connection with claims compensation for delay in the delivery of cargo under the Rotterdam Rules more specific will analyse the operation of Article 23.4 of the Rotterdam Rules which sets out the notice requirements in the event of delay in delivery.
“No compensation in respect of delay is payable unless notice of loss due to delay was given to the carrier within twenty-one consecutive days of delivery of the goods”
However, the Hague Visby Rules fell to address delay on the ground of compensation. Nevertheless most jurisdictions,have left this issue of compensation for damages for delay to the national law Moreover, the limits of liability for loss caused by delay are defined in Article 60. It states that compensation for loss of or damage to the goods attributable to delay shall be calculated in accordance with Article 22 and liability for economic loss owing to delay is limited to an amount equal to 2.5 times the cargoto be paid on the goods delayed. The total amount to be paid may not exceed the limit that would be well-known in respect of the total loss of the goods concerned. Finally, Article 61(2) deals with loss of the benefit of limitation of liability. The limitation is breakable if the claimant proves that the delay in delivery resulted from a personal act or omission of the person claiming a right to limit done with the intent to cause the loss due to delay or irresponsibly and with knowledge that such loss would probably result.
3.1 Chapter Three:
The Basic liability of the carrier “Prima Facie Case”
This chapter will discuss the basic liability of the carrier under both Hague-Visby Rules and Rotterdam Rules . One of the basic obligations is for the carrier to carry the goods to theirdestination and to deliver the goods to the party entitled to delivery, consignee while this was never spelled out in the existent conventions, the drafter’simplied such a duty . The failure to deliver the cargo, or the goods has been damaged, probably the contract is been broken as result the carrier was liable. If the carrier failed to deliver the goods to their destination, a loss was assumed; where the cargo arrived in a damaged condition, a damage was assumed. Both cases led to the so called “prima facie case” that triggered a marine cargo liability case. The laws of some nations state that the carrier’s obligation of sound delivery was one of “result” and not merely one of care.’ The Roman law principle of receptumnautarum is the basis of today’s concept of the carrier’s strict obligation towards the shipper. In practice, however, the obligations of the carrier are hardly as strict and unconditional because the carrier can rely on statutory exceptions (e.g., force majeure) and, at least to a certain degree, contractual special exceptions (sometimes referred to as “negligence clauses”).
Art. III of The Hague-Visby Rules provides the basis of carrier’s liability. It states, in very general terms, the two basic obligations of the carrier to provide a seaworthy vessel and to care for the cargo. It imposes the duty of due diligence on the carrier to keep the ship seaworthy and carefully and properly’ care for the cargo. If damage or loss occurs while cargo is under the custody of a carrier (within the period of responsibility) the formula adopted under the Hague-
Visby rules is that the carrier is presumed at fault. As a result, the burden of disproving this
Presumption rests on him. Yet carriers enjoy significant immunity provided under Artic (2) of
The Convention. This has led the convention to adopt the system that can be referred to as
‘Incomplete fault liability system’.
Rotterdam Rules the claimant may still succeed in his claim by proving that the loss or damage was probably caused by unseaworthiness.” In such a case, the carrier may be relieved of all or part of his liability only if he establishes that there is no causation between unseaworthiness and the loss, damage, or delay, or that he exercised due diligence.the period of responsibility of the carrier runs from the time at which the carrier or a performing party receives the goods for carriage until the moment the goods are delivered.Much has been written on the development of the basic principles of thecarrier’s liability from general maritime law (lexmaritima) to the U.S. Harter Act of1893, to the Hague Rules of 1921, to the Brussels Convention of 1924 (“Hague Rules”), and to the Hamburg Rules . They are all stops on the voyage of the international community towards a balanced and workable legal regime for the contract of carriage of goods by sea. They are all evidences of the different forms of compromises between freedom of contract and protection of shippers and consignees, between strict liabilities and commercially motivated exceptions.
The new UNCITRAL Convention is an important step forward in this quest: article 11 of the UNCITRAL Convention now clarifies that delivery of the goods tothe destination is a crucial obligation of the contractual carrier, but at the same timesubjects the carrier’s obligation to the general test of fault and diligence formerlyknown both as “care for cargo ’24 and as “due diligence with regards toseaworthiness. The new Convention also legislates on the way such delivery must be made,while the obligation of the carrier is mirrored by the basic obligation of cargointerests to take delivery at destination. The novelty of article 11, therefore, lies not
just in the mentioning of the obligation of delivery in the Convention, but inoffering-in an entirely new chapter-rules and obligations relating to delivery of thegoods at destination for both sides of the contract of carriage.
Types of losses
When the losses occurred normally follow by the burden of proof of the claimant, proving whether delay was reasonable or not, the claimant must show that he suffered loss as a result of late delivery. The loss in request may be in the procedure of loss or damage to the goods, including advanced damage and economic loss. The advanced damage mainly concerns fresh goods that run the risk of fall in transit owing to a longer time for delivery. Skill progressions in the container trade have resulted in much less change time than before; therefore, goods delivered later than expected can cause considerable loss for the claimant regardless of whether or not there is physical loss or damage to the goods. The goods might not be lost in physical terms and likely are still in transit, but this uncertainty could have the same significances for the consignee as would complete destruction of the goods.
There are many samples identifying how goods can become a total loss even if they still physically exist. For instance, the claimant might bear a economic loss in case of seasonal goods that are needed only within a specific period, such as Christmas goods, new seasonal fruits and vegetables etc. A late delivery of this type of goods can result in the stores being filled with goods by competitor importers and the initial price will fall dramatically. Another exemplary situation that can lead to serious consequences is when a necessary machinery component is delivered late for a manufacturing or production plant. Even a slight delay may cause troubles in the production chain. In many situations, delay may also result in the claimant himself becoming liable for late delivery under a following sale contract in which he is a seller.
The above samples brightly demonstrate that late delivery of undamaged goods can cause more harm for the claimant than if the goods were completely lost. Whether delay is a kind of damage or rather is its cause means that further enquiry is crucial. For example, a ship that has deviated from its planned route may have caused a delayed delivery of the goods. If the goods are perishable, the loss may be characterised as a physical loss attributable to a longer time for delivery than that which is normally required. In such a situation the loss or damage would have been caused by delay. Professor Ralph De Wit states that delay in itself is simply a cause of damage. As such, it has a conceptual value, which is totally different from that of loss or damage to goods.The question therefore is whether delay in delivery is the principal or sole cause for the loss or damage to the goods, or whether delay also serious the loss or damage suffered, which is primarily attributed to another cause.
Professor Ralph De Wit support the idea with the scholars who claim that delay is not a kind of loss, but rather a certain cause of loss, to the result that delay only causes short-term loss of use of the goods, which are otherwise delivered whole. According to Max Ganado stated thatas resulting in financial loss suffered by the claimant and such loss can be characterised as an economic loss that is important to a physical loss or damage. It should also be noted that rules on loss of or damage to the goods are focused on the goods themselves, their handling and carriage, whereas liability for delay is focused on a period of time, not on the goods. Therefore, breach of contract by delay in delivery differs significantly from breach by damage or destruction of the goods. It should be emphasised that economic loss (loss of market, loss of business) could be much higher than the value of the goods. What must be added in this respect is that loss of business attributable to delay in delivery is an increasingly frequent occurrence these days.
In case of losses or damage as result from delay, the claimant was able to prove that there was a delay and that the claimant suffered a loss as a consequence, he needs to prove a causal link between the delay and his loss. He must also show that the damage was not too isolated. In English law the position has been that economic loss that is too remote is not compensable. This has been illustrated in the case of Hadley v Baxendale . However, since the decision of the House of Lords in Junior Books v Veitchi, an economic loss can be compensated if there is a special relationship between the parties in question. Losses that do not qualify under this doctrine are often referred to as secondary or relational; in other words, they are just too remote to be compensable. Once the causal link is established the question of a carrier’s liability for delay can be addressed sufficiently. Moreover, to determine the carrier liability it must be explained whether the same rules apply when dealing with loss, damage or delay. Another problem in delay cases lies in the fact that it is difficult to measure delay until the final delivery is made or notice that the goods are completely lost is received. To recognise loss or damage in time and space is relatively easier than in the case of delay, especially in multimodal transport as will be explained later.
4.1 Chapter Four:
Period of Responsibility of the Carrier “door to door
This chapter will be discussing the main issues arose when the period of responsibility of the carrier has not been mentioned in the contract or the place of discharge. Late delivery of goods might have serious legal and commercial implications. However the legal challenge occurs when the goods have not been discharged on the time agreed or the carrier fail to handle the goods to their destination.Hence, depending on the terms of the contract of carriage, the Rotterdam Rules may even apply to “door-todoor” transport operations from the time when the goods are loaded on to the time they are discharged from the ship, Article expressly provides that the duties of the carrier related to the cargo apply to the entire period of the responsibility of the carrier under the Rotterdam Rules.Article thus imposes on the carrier the obligation to perform the duties stated in Article ‘properly and carefully’ from the time the carrier or a performing party receives the goods for carriage until the goods are delivered. Moreover, the Rotterdam Rules set forth uniform rules in areas where no such rules exist under the international regimes or carriage of goods by sea currently in force, such as volumecontracts,” the liability of some categories of third parties that assist the carrier within the performance of the contract of carriage. The research also look at the carrier liability under Hamburg RulesArticle 4 (1) expressly provides: that delivery must be made within the agreed period of time or, In accordance with the principle of freedom of contract, the parties are free to a sale contract to determine their rights and obligations and bear the risks, including the delivery terms and time limits. Within the absence of such agreement within a reasonable time had given the consideration for the case. “The responsibility of the carrier for the goods under this Convention covers the period during which the carrier is in charge of the goods at the port of loading, for the during of the carriage and at the port of discharge.” By virtue of the provisions of Article 4 (2), 8 the carrier is considered to be responsible of the goods from the time he has taken over the goods until the time he has delivered the goods. Therefore, the period of carrier’s responsibility under the Hamburg Rules is from the time of receipt of goods by the carrier to the time of their delivery, provided that the receipt and delivery takes place within the port of loading and the port of discharge respectively and that the goods are in the custody of the carrier. Thus, the application of the Hamburg Rules is limited to “port to port” carriage. It may be correct to say that such a “port to port” arrangement accorded with the practice with respect to the delivery time of goods by sea is becoming crucialissuein the case of delay the parties may suffer addition costs.Therefore, it is crucial for the parties to fix all the time limits in the sale contract. However, as practice shows, in many cases the contracting parties fail to pay the attention necessary to the time limits of their obligations, leaving it to the court to decide for them in case of a dispute. Nevertheless, neither Hague nor Hamburg specified provisions on liability for loss resulting from delayin Article 5 (2) provides:
“Delay in delivery occurs when the goods have not been delivered at the port of discharge provided for in the contract of carriage by sea within the time expressly agreed upon or, in the absence of such agreement, within the time which it would be reasonable to require of a diligent carrier,having regard to the circumstances of the case.”
But rather it is dealt withunder the more general obligation to handle the cargo with care.
According to Zha mentions that the reason behind this may have been that in practice, a delivery time will not beincluded in the bill of lading and as such it was easier to include issues relating todelay within a more general provision. Such a flexible approach has however causedproblems in relation to issues of pure economic loss , an issue that the courts soughtto remedy through the use of the Hadley v Baxendal test, which states damages should be assessed in relation to what was “reasonably … in the contemplation of the parties, at the time they made the contractCarrier liability under Hamburg Rules concluding that this was not the clearest way to approach liability for delay, the Hamburg Rules attempted to rectify this by drafting a provision which stated that where loss results from delay, the carrier will be liable, unless they can discharge the burden of proof through one of the outlined exceptions. Delay within the context of the Hamburg Rules includes non-delivery “within the time agreed, or within the time
which it would be reasonable to require of a diligent carrier.” The Rotterdam Rules however omit the latter half of the definition, as such potentially leaving the law without a method by which to deal with common situations where no delivery time is agreed. It has been submitted that this will make no practical difference to the regime outlined by the Hamburg Rules, as the courts will simply imply a reasonable time element into the Rotterdam Rules. With this in mind however, this change in the law still imposes a more stringent form of carrier liability for delay than the Hague-Visby Rules and as such may impact upon the popularity of the new system. The Hamburg Rules provide that delivery must be made within the agreed period of time or, In accordance with the principle of freedom of contract, the parties are freeto a sale contract to determine their rights and obligations and bear the risks, including the delivery terms and time limits. In the absence of such agreement within a reasonable time had given the consideration for the case. Clearly, the Hamburg Rules has adopted both criterion of agreed time and that of reasonable time. However,as strongly suggested by the Chinese delegation and some other delegationsduring discussions within the Working Group, the Draft Convention has adoptedthe criterion of agreed time only, same as the provision of paragraph 1 of Article50 of the Chinese Maritime Code. The parties have right to rose the dispute either by theUN Convention on Contracts for the International Sale of Goods (CISG) or under,Rotterdam Rules which contain specific provisions on carrier liability for delay.
5. Chapter Five
5.1 Carrier’s liability for delay in delivery under the Rotterdam Rules
The main duty of the carrier’s liability for delay under the Rotterdam Rules has been established in Article 17 , under which the carrier will be responsible for loss of or damage to cargo, as well
as delay in delivery, if it takes place at some point of the duration of the carrier’s responsibility. Nevertheless, the carrier will not be responsible for any compensation in respect of delay is due unless notice of loss due to delay has been given to the carrier within twenty-one consecutive days of delivery of the goods.(article 23) Article 21 has given definition for the word ‘delay in delivery’ in more details for the functions of the Convention. The final form of the article reads: ‘Delay in delivery takes place when the goods are not delivered at the place of destination supplied for in the contract of carriage within the time agreed’. This very brief approach is really uncertain; however it is likely to make some clarifications. First of all, according to Article 21, the ‘delay in delivery’, for which the carrier is liable under Article 17, is the failure to deliver the goods within the agreed time. The description refers to the ‘time’ agreed, as an alternative than a date or day, so agreement to deliver does not have to be on a specific day, however, additionally might refer to a duration of time.The next question is, what the legal form of an agreement on time of delivery? Clearly, the first chance is that there will be an express agreement on time of delivery, but in liner delivery this will rarely be the case. However, aparticular agreement on time of delivery is no longer necessary: the original draft of Article 21 was once in-tended to include the phrase ‘express’ between the phrases ‘time’ and ‘agreed’, nevertheless this was later deleted. Log-icily, the textual content permits an implied agreement on time of delivery, as well as one that is express. Since, neither textual content nor the travauxpréparatoires offer any training or impose any restrictions on how an agreement on the time of transport can be implied, it is secure to expect the issue will be decided by way of countrywide law. Hence, in most cases it need to be potential to suggest an agreement on time mainly based on situations such as prior communications of the events or public schedules, unless a valid disclaimer is discovered in the contract.
Moreover, it would be probably to suggest an agreement to deliver in a reasonable time: the English law, didn’t mention the place of the contract, is been silent concerning the time of performance, the law indicates that it shall be carried out in a reasonable time.In carriage of goods by sea, this shipping rules as the carrier’s referred duty to proceed with practical despatch and is determined in all kinds of carriage contracts, which includes bills of lading and waybills.Thus, in the case of no specific agreement, or one cannot be implied to supply on or before a reasonable time, it nevertheless appears viable to refer an agreement to supply in a practical time.
The principles of the carrier’s duties are essential to the Rotterdam Rules due to the fact they are inescapably linked with the liability of the carrier as provided in article17.3. For example, if the claimant proves that the loss of, damage to, or delay in delivery of the cargo, or the event or instances that caused or contributed to the loss, damage, or delay took place during the period of the carrier’s responsibility, the carrier potentially can avoid all or part of his duty if he able to proves that he and any person for whom he is basically liable” acted proper and carefully with regard to the cargo. Also, even if the carrier is successful in organising one ofthe clearing defences listed in article 17.3, the claimant can also still be successful in his claim through proving that the loss or damage was potentially caused via unseaworthiness.” In such a case, the carrier can also be dismissed of all or part of his liability only if he decide that there is no causation between unseaworthiness and the loss, damage, or delay, or that he exercised due carefulness. Being intently connected with the legal responsibility regime, one of the main purpose of the drafters was the adoption of a legal framework for the carrier’s duties that would be suitable to the delivery enterprise and the carrier would not be in fear for the future of the convention. In fact, one of the preliminary drafting issues was whether the carrier’s obligations under the contract of carriage have been to be expressed as high-quality duties, the breach of which would be linked to the liability of the carrier, so or whether or not the carrier’s responsibilities were to be understood under the generic liability rules.” Following session with governments and different attractive parties, the drafters opted for a set of rules primarily based on the respective provisions of The Hague and the Hague-Visby Rules on the carrier’s duties, which have been up to date to take into account the today’s developments
The principle of carrier’s limited liability
One of the most principles in the Marine law is immunity of the limitation liabilities of ship-owners and the carriers. Historically, there is no conclusive answer regarding its origin, this privilege is believed to have developed out of common marine practices and customs. The development of the limitation of carrier’s liability has been traced by commentators to as far back as the 11th century, when evidence of it first appeared in Italy. From there, the concept apparently spread to Spain and France.
However, some countries already have been planned for the existence of limited liability for ship-owners, according to the interest of countries’ economy is usually seen as the most persuasive, and is the most often cited. Therefore, the fact that venture out on the high seas can be a dangerous business; public policy demanded limited liability for ship-owners in order to encourage investment and to expand commerce in the shipping sector. In the case of limited liability in maritime carriage, it has been understood that the carrier in a position demands protection from possible risks to which it may be occurred as a result of a high undisclosed value of the goods, while at the same time the liability limits provide carriers with an encouragement to offer lower and more standardized freight rates to cargo interests. In additional, recently new explanation for the limitation of liability is the ability to insure risk, since the cost of insuring unlimited liability is extortionately high . Aa a result of high risk, recent change in maritime liability laws has been made to considers on increasing compensation.
Generally, the question has been raised whether ship-owners and carriers should continue to enjoy the privilege of limited liability in such a manner, or whether the time has come to adjust the system. Notwithstanding, the structure has definitelysubsidised to the growth of the maritime trade and to commercial certainty, it has been argued that the policy objective of compensating victims
Accordingly, the parties should be equally to share their losses and that the limitation on liability should fall by the two side. This argument may be more persuasive when one is considering the trouble of a third party isolated to a commercial transaction who suffers a loss for which there is limited compensation, rather than a commercial sector who knowingly enters into a contractual relationship. When one is considering commercial relationships, it is suggested, a known and limited liability scheme is more acceptable, as it enables both the carrier and the cargo owner to assess their exposure and to obtain appropriate insurance.
While there was no specific controversial amongst States negotiating the text of the Convention about whether the carrier’s liability should be limited, the underlying basis for the limitation of liability in transport conventions in general was recognized.
The main object of such provisions on limitation of liability was to regulate the relationship between the carrier and ship owner in order to entitle each of them to obtain a benefit and to share their losses. Without the benefit of a limitation on liability, the carrier would be fully liable for all loss or damage, and where such goods were in containers, the carrier lack of knowledge regarding their contents, thus potentially exposing the carrier to very high and unpredictable risks. In spite of paying expensive insurance costs, and in order to share their losses of that potentially very high risk occurred, the carrier should have to subscribe it to every shipper through an increase in insurance premium. By allowing for a limitation of the carrier’s liability, this share of risk permitted the costs of both shippers and carriers to be reduced, with the trade-off that full compensation for high-level losses would not be possible. Nevertheless, the fact is an appropriately implementation liability system should discourage parties who may be held liable from engaging in careless activities. Pursuant to this perspective, the limitation of a carrier’s
5.2 Carrier duties to provide seaworthy
According to article 14 of the Rotterdam Rules , imposes a number of duties to the carrier toprovide a seaworthy during the vessel journey, is a clearexpression of the public law obligations towards the vessel (including the crew) imposed by the International Safety Management(ISM) Code on the Company, (which, under the Rotterdam Rules, may be the carrier” or a maritime performing party”). In effect, the carrier’s continuous duties-to make and keep the ship seaworthy; to crew, equip, and supply the ship properly; and to keep the ship so crewed, equipped, and supplied throughout the voyage under article14 of the Rotterdam Rules-correspond to the duties set out in articles 6 and 10 of the ISM Code. The carrier’s public law obligations regarding safety at sea and the protection of the environment were notonly articulated in the Rotterdam Rules, but were also considered to be of utmost importance.
The drafters intended to look into excuse of potential maritime safety implications of the unseaworthiness of the vessel and in additional even gone further to ensure that the seaworthiness requirement in relation to the physical condition of the vessel, its equipment, and the crew (but not the cargo worthiness) will be detected by the carrier at all times. Article 80.4 expressly provides that article 14(a) and (b) are one of the few “super mandatory”provisions of the Rotterdam Rules, from which the partiescannot leave when entering into a volume contract.
This is actually another reason why the duty of the carrier to provide a seaworthy vessel deserves a distinct provision in the text of the Rotterdam Rules, because it is essential that the text of the Rules clearly defines the facets of seaworthiness from which the carrier cannot derogate. At this point, it is worth observing that although there was wide support for the incorporation of a provision on the seaworthiness requirement, the purpose were raised against its extension to the entire vessel by sea, as opposed to the respective duty under article 3.1 of the Hague and the Hague-Visby Rules, which applies only to the stage before and at the beginning of the vessel.
The main objection was that such an ongoing obligation to provide a seaworthy vessel alters the overall risk will be divided between the carrier and cargo interests under theRotterdam Rules by placing too great a burden on the carrier, which could lead to the associated costs being passed on in the form of increased insurance premium. Other problems were also expressed regarding to the practical allegations of the extension of the duty, because a vessel mayexperience problems while at sea (and even in the middle of the ocean) and it may not be feasible to make it seaworthy until it reaches a port of call. The response to those concerns is that the duty of seaworthiness under the Rotterdam Rules is that of due carefulness rather than an absolute duty. The carrier will, hence, be expected only to take reasonable steps during the vessel journey. The test is objective and is to be measured by the standards of a reasonable ship-owner, taking into account the particular circumstances of the case, including whether the vessel isin port or at sea.
Moreover, the final form of articles 13 and 14 of the Rotterdam Rules was chosen by the majority of the agents and was, therefore, adopted because they correspond in principle to article 3.1 through .2 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.
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
Applicable national contract law. While liability for delay is part of the mandatory system of the RotterdamRules, 11 it is clear that it is left to the full and unrestricted freedom of contract
between the parties to agree or not to agree on a specific time of delivery.Once there is an agreement as to time, then the carrier may not depart fromthe levels of liability established in the Convention.A further consequence of the way Article 21 RR is written is that – in the
absence of an agreed time for delivery – there is no liability for delay even ifthere is a “delay”, e.g. created by an accident, general average, detention ordeviation (even if unreasonable).
6.2 The purpose and object of the Rotterdam Rules
The Rotterdam Rules policies was adopted via the United Nations (U.N.) General Assembly at its
Sixty-third session on December 11, 2008, as the United NationsConvention on Contracts for the International Carriage of Goods Wholly or Partly through Sea . The U.N. General Assembly additionally determined that thenew U.N. Convention policies will be recognized as the “Rotterdam Rules.” The formal ceremony for the opening of the instrument for signature was held in Rotterdam on September 23, 2009, as accepted by means of the U.N.General Assembly.” Sixteen countries signed on the opening day’8 and seven countries signed later at the United Nations headquarters in New York.”
The basis for adopting the new wider door-to-door method was once that a large and growing range of practical conditions have been operated under door-to-door contracts, particularly the growing use of containers to transport goods in addition to make one two legal responsibility regime covering the whole transport without any tackle-to-tackle or port-to-port principles is argued to be both more logical from a legal point of view and extra efficientfrom a practical point of view two this convention cover the complete transport from the start to the beginning without any geographical restriction.
The concept was once that if the seller and the buyeragrees to a contract under which the goods are to be transported from the seller to the buyer via different levels of transport already the draft of the Rotterdam Rules extended the period of responsibility to a door-to-door approachand This wider door-to-door application of the liability regime under the Rotterdam Rules should create conflicts with other liability regimes for the carriage of goods claiming applicability to the same events.
On the other hand aim at putting forth “uniform guidelines to modernize and harmonize the guidelines that govern the international carriage of goods involving a sea leg.”” To achieve these goals, and no longer least, the goal of modernising the laws governing international carriage of goods bysea, the Rotterdam Rules establish a physique of uniform rules addressing the technological and business trends that have taken region since the adoption of The Hague, the Hague-Visby, and the Hamburg Rules. Given that one of these technological advances is the containerised transport of goods, which has facilitated multimodal transport, the Rotterdam Rules go beyond the Hague, the Hague-Visby, and the Hamburg Rules to cover not only contracts for international carriage of goods through sea however additionally contracts for global multimodal transport involving at least one international sea leg (the “maritime plus” the scope of application of the Rotterdam Rules. Brought new idea behand the convention is to decide the length of the carrier’s period of duty is established on the terms of the contract in question. The convention allows the parties getting into into a traditional tackle-to-tackle contract ifthey so desire. That is allowed as the parties, under Article 12 (3), may agree on the time andplace of receipt of the goods as well as on the time and place of delivery of the goods.
Therestriction lies in that the events may also not agree to receive the goods before the initial loadingactually takes place nor can they agree that the time of delivery is prior to the time when thegoods eventually are unloaded at the end. The parties might also consequently not agree on a period ofresponsibility that is shorter than the tackle-to-tackle period but Article 12 (3) does not in itself pressure a multimodal transport upon the carrier. A port-to-port contract can therefore stillbe agreed between the parties.
The other element of the Rotterdam Rules, which will be pivotal to its success, is the proposed changes to carrier’s obligation, which under both the Hague-Visby Rulesand the Rotterdam Rules encompasses a number of different provisions; the mostnotable of which is the duty of seaworthiness. Under the Hague-Visby Rules, carrier liability for unseaworthiness can be found below Article 3, which outlines that
a carrier is liable “before and at the commencing of the voyage to exercise due diligence” in making the ship seaworthy, through keeping the condition of the ship, the effectiveness of the crew and the ships equipment, along with the cargo worthiness of the ship. In the case of Maxine Footwear Co Ltd v Canadian Government MerchantMarine, Lord Somerville confirmed that the phrase “before and at the beginning” indicates that the Hague-Visby Rules only extend to “the period from at least thebeginning of the loading until the vessel begins on her voyage.” As a result of this, the carrier will not be held liable under the Hague-Visby rules if any evidence of seaworthiness arises during the path of the voyage.
This was illustrated in the case of Leech River Tea Co v British India Steam Nay Co , in which the court held that as a result of the removal of the storm valve cover plate at an intermediate port, the damage has been occurred to the cargo.it was not a case of seaworthiness, as it Rules leaves the shipper in a vulnerable position in relation to loss or damage caused by unseaworthiness thatarises after the commencement of the journey. On the other hand, the Rotterdam Rules offer a solution to this issue, by way ofArticle 14, which states that:
“The carrier is bound before, at the starting ofjourney ,and during the journey by sea to exercise due carefulness.”
This change in the law would meanthat the carrier would be liable for the damage or effects of unseaworthiness throughout thewholejourney, which Nicki and Slyer submit is a welcome change, as it recognisesthe development of new technological encouragements, which allowed a greater level of controlover the ship after the commencement of the journey. In relation to how this willaffect the liability of the carrier under the Rotterdam Rules, should they come intoeffect; many commentators have expressed concern that this would imposesignificant additional liability upon carriers. However Berlingieri notes that this obligation would still be subject to an assessment of due diligence, which would beassessed on the basis of the action that may reasonably be taken in the specific circumstances….for r example to repair the damage on board if that is feasible, to call at the nearest port.
On this basis, it is submitted that the courts would be allowed a great deal off flexibility in assessing the carrier’s liability under this change in the law, and seems to me the law make a fairbalance between the parties interests such thatthe level of liability may not be unreasonable. As a result, it is submitted that thischange in the law provided by the Rotterdam Rules is a positive one, as it will createa modernised system of law, whilst creating a fairer regime for shippers, but notimpacting too significantly upon the liability of carriers.Moreover, the Rotterdam Rules set forth uniform rules in areas where no such rules exist under the international regimes or carriage of goods by sea currently in force, such as volumecontracts, ” the liability of some categories of third parties that assist the carrier in the performance of the contract of carriage (maritime performing parties), electronic transport records, the rights of the controlling party, the transfer of rights incorporated in transport documents or electronic records,” and jurisdiction and arbitration.
The research an effort has been made to analysis the carrier responsibility in the event of aphysical delay “from door to door” in the context of the Rotterdam Rules
The Rotterdam Rules introduce liability for delay mostly concerning about the burden of proof as result of loss, damage or delay and the conceptof compensation which is still unclear in transport law. The Rotterdam Rules are the latest attempt to modernise and unify the rules of international carriage of goods by sea. In contrast with the widely adopted Hague and Hague-Visby Rules, the Rotterdam Rules specifically govern the carrier’s liability for delay and provide a comprehensiveexamination theoretical account to stack with claims for delay in delivery. This is a welcome change, especially considering that theConvention is also applicable to other methods of carriage. However, the adequacy of this framework is open to question, because several provisions dealing with liability for delay harbour significant ambiguities. This is, eventually, the result of a lack of agreement in drafting sessions over inclusion of delay within the Convention; from the very first session, provisions on the carrier’s liability for delay were controversial owing to the differing opinions on the subject. A number of representatives supported preserving the status and leaving the liability for delay outside the influence of the Convention . According to this groupthe new Convention should govern liability for delay in speech, only when the time of delivery was expressly agreed upon, or the Convention should not address the issue at all.In contrast, others argued that the Convention should provide liability for delay regardless of there being an agreement on time of delivery or not, and the delivery must be made in a reasonable time in the latter case. Consequently, the Working Group had to focus on whether to include the carrier’s liability for delay within the ambit of the new Convention or not, for the most part of drafting sessions, rather than how this structure would actually function in the event of delay in delivery. As a result, some questions that might arise concerning the process of these provisions either went undetected or were eventually left to the courts. This is particularly evident in Article 23.4 of the Rotterdam Rules, which sets out the notice requirements in the event of delay in delivery.
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