SUMMARY OF ADVANTAGES AND DISADVANTAGES OF ROTTERDAM RULES

The Rotterdam Rules are applicable to international carriage if a carriage by sea is included. The Rules are
mainly applicable to contracts of carriage in liner-transportation but in certain circumstances they may
apply in non-liner transportation. Furthermore, the focus is less on the documentation but more on the
contract as such. Just as the Hamburg Rules, the Rules apply to contracts of carriage by sea no matter the
type of documentation used. One of, if not the, largest difference compared to the two preceding set of rules
is the multimodal scope of application of the Rules which includes provisions for solving situations of
overlap and conflict with other transport-conventions. Those provisions that govern multimodal transport
are Article 26 and 82 of the Rules.
The most important change in the list though is unquestionable the removal of the nautical fault exception,
which is an important change compared to the Hague-Visby Rules and in practice puts harder demands on
the carrier. However, this is perfectly in its order, today there is no reason for this rule since the carrier is
able to keep contact with its crew during the whole voyage. The nautical fault is a remnant from older times
and even if it is a remnant which is beneficial for carriers it is nonetheless a provision that cannot be justified
in a modern carriage of goods regime. Particularly since the obligation of seaworthiness has been made
continuous, it would be inconsistent to keep the nautical fault exception.
One of the new features of the Rotterdam rules compared to the previous regimes is that the obligations of
the shipper are more extensively regulated. In the Hague-Visby Rules the shipper is, as we have seen, not
mentioned much and even though the Hamburg Rules provides a chapter dedicated to the obligations and
liability of the shipper the differences between the two older regimes are not large. 232 The term shipper is
defined in the Rotterdam Rules as a person that enters into a contract of carriage with a carrier. The Rules
also provides for a wider term: ‘documentary shipper’ who is a person other than the shipper that accepts
to be named as ‘shipper’ in the transport document. The shipper’s obligations and liability are regulated in
Chapter 7 Articles 27-34 and are, as mentioned above, mandatory according to Article 79(2). The
Rotterdam Rules explicitly states the liability that applies for breach of the shipper’s obligations in Article
30.
Another novelty of the Rotterdam Rules is that the Rules have provisions about ‘electronic transport
records’. This is a necessary adaption to the modern transport industry and the use of electronic bills of
lading. The provisions regarding ‘electronic transport records’ are found in Chapter 3 and Chapter 8 of the
Rotterdam Rules. The use of this kind of documents has to be on a voluntary basis and Article 8 states that
consent is necessary for the use of electronic transport records, in order to avoid the imposition of an
electronic transport record on a party that needs paper documents for legal reasons. 246 The article also
states that an electronic transport record has the same legal effects as a “normal” transport document.
The Rotterdam Rules when taken as a whole seems to be a quite balanced regime. Although there are sides
of them that have positive or negative effects for one side or the other these effects seems to be balanced
out in the end. If we look from the carrier perspective we see that the removal of nautical fault and the
extension of the duty of seaworthiness to a continuous seem to be disadvantages for the carrier, but these
changes are clearly in line with a modern approach to carriage of goods regulation and as such more or less
inevitable. Other less beneficial changes for the carrier’s side are moreover for example: the increased
limitation amounts, the change of the fire exception and the introduction of liability for delay. Most of these
changes for the carrier were also found in the Hamburg Rules, which as we know has not become a success
partly because of its “shipper friendliness”. However, the Rotterdam Rules does not take anything from a
side without giving something in return. The carrier does not have to look far to see benefits as for example;
 (1)
the reversal of the Vallescura rule , the volume contract exception and the increased regulation of the
shipper’s obligations.
In the discussion of balance, it should not be forgotten that the Rules do not only contain provisions that
mean advantage to one party and disadvantage to another. There are some provisions that both sides ideally
should gain from. These provisions are for example; the inclusion of all transport documents, adaption to
electronic commerce and the new multimodal scope. All of those have the common characteristic of being
adaptions to transport industry as it looks today and are therefore necessary modernization attempts. The
question that can be asked concerning these changes are whether they are enough.
The multimodal scope has for example been criticized for applying too easily to other modes of transport
as well. Article 26 and 82 restricts the application of the Rotterdam Rules in order to avoid conflict, and
hereby lays the whole nature of the limited network system and the “maritime-plus” character of the
Rotterdam Rules. This solution has been the subject of debate and it has been criticized by some authors
like for example William Tetley, who prefers a truly multimodal instrument with a uniform solution instead
of a network solution. Interesting to note is that these views do not seem to be really compatible, one side
criticize the Rotterdam Rules for not applying enough and the other is of the opinion that the applicability
of the Rules is too large.
Furthermore, the idea of dealing with electronic transport documents under a letter of credit is something
that in theory may sound appealing, but the practice may actually be starkly different. Changing from a
mainly paper based system to an electronic record system will not be without its complications. It is
suggested that transmissibility of rights by electronic bills of lading is difficult due to the rights existing in
cyberspace only. Electronic information and bills of lading may still need to be printed due to a lack of
resources and equipment in some areas of the world. This also confuses the legal rights and complicates
the rules, not to mention the initial cost or investment needed in innovation, research and development to
produce a solution to all the limitations will of course be immense.

1
The rule states that when cargo is lost or damaged for more than one reason, one of which the carrier is responsible for and the
other for which the carrier is not responsible, the carrier must establish what portion of the loss or damage s/he is responsible for
and if s/he fails to demonstrate his/her portion of liability, then the carrier may be responsible for all of the damage.