Third Party Protection in Shipping

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Third party protection under the Rotterdam Rules

The shadow of multimodalism

6.1 It is anticipated that the Rotterdam Rules will still emerge as a convention focussing largely on the relationship between carrier and shipper. The performing party is simply someone who performs any of the carrier’s obligations.1 It is argued that the geographic approach proposed by the Rotterdam Rules does not do justice to the concept of the multilateral common enterprise. 6.2 When the Rotterdam Rules were first drafted, the shipping landscape differed substantially to the times when previous papers had been drafted; most of the issues that the Hague, Hague-Visby, and Hamburg Rules sought to address had been solved. At the inception of the Rotterdam Rules, however, new problems had arisen that needed to be resolved by the international maritime community.2 The issue most relevant to this book is the fact that, as a result of the container revolution, there are now parties involved in the carriage that previously were not. These parties are not secondary to the carrier and the shipper; they are primary actors. 6.3 Furthermore, there is no longer only one category of third parties performing carriage but rather a variety of categories. Hence, the creation in the Rotterdam Rules of a general definition, i.e., ‘performing parties’. This term both acknowledges and enforces through an international regulation one of this book’s primary arguments: that carriage is ‘performed’ by many parties and not only by the carrier.

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6.4 The travaux préparatoires for the Rotterdam Rules involved not only carrier, shipper, and insurances of both parties but, for the first time, representatives of third parties as well.3 6.5 Compared to previous conventions, a greater number of states and institutions were interested in the drafting of the Rotterdam Rules.4 Other associations such as the International Federation of Freight Forwarders Associations (FIATA), the International Shipowners’ Association (ISA), and the International Group of Protection & Indemnity Clubs (IGP&I) wield significant influence over international maritime circles. These organisations can affect maritime legislation on both a national and an international level, particularly where the parties that they seek to protect are concerned. 6.6 The need for a new convention was voiced as early as 1996. At its 29th session, the UNCITRAL considered a proposal for its work programme to include a review of current practices and laws in the area of the international carriage of goods by sea, with a view to establishing the need for uniform rules where no such rules existed, and with a view to achieving greater uniformity of laws.5 6.7 In the same session, the Commission decided on the involvement of the international organisations representing the commercial sectors involved in the carriage of goods by sea; including the Comité Maritime International (CMI), the International Chamber of Commerce (ICC), the International Union of Marine Insurance (IUMI), the aforementioned FIATA, the International Chamber of Shipping (ICS), and the International Association of Ports and Harbours.6 6.8 In the 32nd session of the Commission, 1999, it was stated that the aim of the convention was uniformity and harmonisation.7 The commission resolved that:

The purpose of its work was to end any multiplicity of the regimes of liability applying to the carriage of goods by sea and to adjust maritime transport law in order to better meet the needs and realities of international maritime transport practices.8

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