Search

The aim of this contribution is to explore the likely legal implications for the various parties involved if a serious incident with an inland vessel carrying a dangerous cargo were to occur, e.g. an explosion of the dangerous substance or a spillage thereof from an inland vessel somewhere on the river Rhine, perhaps in Germany or the Netherlands or near the border between these countries. However, regulatory aspects of transport of dangerous goods by inland waterways and the classification of dangerous goods16 falls outside the scope of this contribution. The incident may have been caused by a collision with another inland vessel or the inland vessel unilaterally colliding with a bridge pillar or the doors of a lock. Furthermore it is presumed that the chemical substance is of a very toxic, explosive and flammable nature and thus very dangerous to human and animal life even in smaller doses as well as a threat to the environment if spilled from an inland vessel. The incident causes death and serious injuries to persons both on board the vessels and in the immediate vicinity of the incident, as well as environmental damage and substantial clean-up costs. Finally, both the local authorities and the manufacturer of the dangerous are obliged to order extensive preventive measures to be taken in order to contain the polluted surface waters and to prevent the pollutant from flowing downriver and from spreading all over the Rhine delta. Obviously the above incident can give rise to a multitude of liability claims for a variety of heads of damage against various possibly liable parties. One of the first questions to arise is which court(s) have jurisdiction to hear these claims (§ 3) and whether it is possible in the interest of a swift and sound administration of justice to concentrate or consolidate these proceedings before a single court. The next issue that needs to be resolved is to determine the applicable law(s) to the various liability claims (§ 4). After this, the

This contribution explores the legal position of the consignee under a contract of carriage and under the bill of lading contract. As this matter has not been dealt with conclusively in any of the transport law conventions, these questions will be examined from the perspective of three European civil law jurisdictions, i.e. German, French and Dutch law. In view of the case law of the European Court of Justice (ECJ) about opposability of jurisdiction clauses in bills of lading against third-parties, also the question will be addressed whether under these national laws the third-party consignee succeeds in the rights and obligations of the shipper under the contract of carriage. Other issues raised include whether and when the consignee is liable for freight, charges and demurrage, whether he is bound to choice of law, jurisdiction or arbitration clauses and the effectiveness of incorporation clauses and ‘‘merchant responsibility’’ - clauses and the like.

Under a forwarding contract a forwarder may play several roles simultaneously. As principal to the forwarding contract he undertakes to arrange for the dispatch of the goods. As a direct agent or a commission agent of the client he may enter into contracts of carriage, and other ancillary contracts to the transport, such as storage and stevedoring services. It depends on the applicable law whether the forwarder in this capacity is or may be liable as a guarantor or surety for the performance of the said contracts by third parties or whether as mere agent or commission agent he is not liable for this. To the extent that the forwarder performs one or more stages of the transport or any ancillary tasks in relation to it, such as storage, loading, stowage and discharge, packaging and labeling, the for-warder will be responsible for the fulfillment of his obligations as a principal. Finally, if it is held that under a contract the forwarder has assumed responsibility for the carriage of goods, he will be considered carrier under a contract of carriage. The liability regimes applicable to the performance of these roles are not necessarily the same.

This contribution raises the question of whether it is possible to bridge the divide between the various unimodal regimes and to develop a general law of transport. It explores also the role that soft law, such as in the form of a project to draw up Principles of Transport Contract Law, could play in paving the way through academic research towards ultimately a true unification of the law of transport.

Item does not contain fulltext

Item does not contain fulltext

INTRODUCTION. In an attempt to deal uniformly with several complex and delicate legal issues that have divided the seafaring nations of the world for most of the last century, the Rotterdam Rules 2009 (hereafter: RR) introduce the concept of the “maritime performing party”. This is a person other than the carrier who performs or undertakes to perform any of the carrier’s obligations during the period between the arrival of the goods at the port of loading of a ship and their departure from the port of discharge of a ship. Pursuant to articles 19 and 20 RR, the maritime performing party may be held liable jointly and severally with the contractual carrier for cargo loss or damage or delay in delivery which occurred (basically) be-cause of his own doing or during the time that the cargo was in his care.

1 INTRODUCTION 1. It is often said that a bill of lading issued under a voyage charter constitutes “a mere receipt” as long as it remains in the hands of the charterer. This implies that as between the parties to a contract of affreightment the terms of the voyage charter will prevail over those of the bill of lading. Although a bill of lading in the hands of the charterer may still be used as prima facie evidence, its primary role in between the parties to the voyage charter is to facilitate delivery of the goods at destination to the party entitled to take delivery. This follows from the presentation rule which requires that an original copy of the bill of lading needs to be presented to the carrier in order to obtain delivery of the goods. It now seems to be universally accepted that this presentation rule applies not only to easily transferable bills of lading made out to order or to bearer, but also to ‘straight’ bills of lading, i.e. those in which the consignee is a named party. [etc.]

Whenever a major accident occurs to a ship – whether a fire or an explosion on board of the ship, or a collision with another ship, or the ship running aground or sinking and becoming a wreck – it is likely that this casualty will result in considerable physical damage to the ship and its cargo, and in some cases also in loss of life or personal injury to crew members and passengers aboard the ship. Obviously this may have huge financial implications for parties interested in ship and cargo and for crew members, passengers and their relatives. However, a maritime casualty not only affects parties involved in the ship's operation but also third parties. Depending on the circumstances of the incident and the nature of the resulting damage, (many) third parties from various countries are likely to suffer losses as well. A few examples may help to draw the picture. States may be affected, e.g. if wreck removal and clean-up operations become necessary, but also the financial interests and livelihoods of private individuals and businesses, such as local hotels and restaurants who lose earnings from tourists when the coast line becomes covered by a thick layer of crude oil or fisheries who temporarily or permanently lose access to their fishing grounds. Indirectly, the financial interests of many more parties will be affected by the disaster as its consequences ripple on through the local and national economy. This group includes the sub-buyers and final users of the goods as well as underwriters, whether Hull and Machinery (H&M) underwriters or Protection & Indemnity (P&I) insurers of the ship or marine cargo underwriters. Besides the multitude of interests likely to be affected by a maritime casualty involving a ship, there is also a potential for exceptional financial losses resulting from it. It was reported in 2008 that the costs of clean-up operations in Alaska following the Exxon Valdez oil spill in 1989 had reached the figure of US$ 3,5 billion and still counting.