Dr. Klaus Ramming,master mariner with unlimited worldwide certificate, service as chief deck officer; studied at the Hamburg University; since 1995 with law office Lebuhn & Puchta, Hamburg; field of practise: maritime and transport law; editor of the Hamburg Journal of Shipping Law (in German language, see www.schifffahrtsrecht.de); active arbitrator in maritime matters; regular lecturer at the Bucerius Law School on maritime and transport law; author of numerous articles on maritime and transport law issues; author of the Hamburg Handbook on Inland Waterway Contracts of Carriage (in German language); President of the German Maritime Law Association.

The Scope of Application of the Rotterdam Rules

[1] Since 23 September 2009, the „United Nations Convention and Contracts for the International Carriage of Goods wholly or partly by Sea“, known as the Rotterdam Rules, are open for signature. During the initial signing ceremony in Rotterdam on 23 September, 16 States signed the convention. Meanwhile, further states have signed, and today 19 states have approved the convention by signing. No ratification has been declared yet, but a number of states are in the process of taking the necessary steps in their national law to ratify the convention. In particular, the US in a remarkable way have declared their support for the Rotterdam Rules during the signing ceremony. The convention will enter into force one year after ratification by the twentieth state, see Art. 94 (1).

[2] The Rotterdam Rules are intended to be the successor of the Hague and Hague-Visby Rules, today’s most common legal regime for bills of lading and underlying contracts of carriage. The Rotterdam Rules seek to regulate in far more detail the relation between the parties to the contract of carriage and include other parties not directly addressed by the Hague Rules. Also, whilst the Hague Rules apply only tackle-to-tackle, i.e. from the beginning of the loading to the end of the discharging of the goods, the Rotterdam Rules’ scope of application is described “door to door” and may include land transport preceding and succeeding, respectively, the sea leg (below [17–20]).

[3] This paper will look at the basic questions concerning the Rotterdam Rules’ scope of application. The relevant provisions are found in Art. 5 through 7, as well as in Art. 85 (see [23–24] below)

I. General Scope of Application (Art. 5 Rotterdam Rules)
[4] The basic provision concerning the Rotterdam Rules’ scope of application is Art. 5 (1). As in most other conventions concerning contracts of carriage, the Rules refer to the mode of transport, i.e. carriage by sea and on ships (below [13, 14]), and whether the contemplated carriage is related to contracting states [15–16, 17–20].
 
1. Contracts of Carriage
a) The Undertaking to Carry Goods
 [5] Art. 5 (1) says that the Rotterdam Rules apply to “contracts of carriage”. These are defined in Art 1 No. 1 Rotterdam Rules as contracts in which a carrier undertakes to carry goods from one place to another.
b) Freight Forwarding
[6] In a number of jurisdictions, including Germany, the carrier is distinguished from a mere freight forwarder, who renders all kinds of transport services and undertakes only to organize the carriage of goods. Ideally, the forwarder renders account by debiting the principal the costs incurred in respect of the various sub-contractors involved in the carriage and adding a fee for his own services. The distinction between contract for the carriage of goods and those concerning mere freight forwarding sometimes is not easily made. As the freight forwarder is not a carrier as per Art. 1 No. 1 and 5 Rotterdam Rules, the Convention is not applicable to forwarding contracts.
 [7] However, some jurisdictions, again including Germany, in certain cases consider the freight forwarder to have a carrier’s rights and obligations. One example is the forwarder who renders his services for a fixed price, i.e. without distinguishing between costs and fees (see [6] above). Courts will often leave open whether there is a contract of carriage or a forwarding contract, if in any event there is an agreement as to fixed costs. However, a court in a Rotterdam Rules contracting state, whose jurisdiction considers the freight forwarder to be a carrier, may not simply follow this procedure, as there is no rule in the Rules equalling freight forwarders operating at fixed costs with carriers. Rather, that court must apply its international private law principles to the forwarding contract to determine the relevant substantive law. That law decides whether and to what extent the freight forwarder is subject to the provisions relevant for carriers. If, and only if that substantive law orders that the regulations concerning contracts of carriage should be applied, the Rotterdam Rules become relevant, if the contemplated carriage the forwarder has undertaken to organise is subject to the Rotterdam Rules.
[8] In this case, the Convention does not apply of its own force, but because the substantive law provides so. This can make a difference, since the substantive law may also decide to what extent the Rotterdam Rules are considered, e. g. whether perhaps only the provisions concerning the carrier’s liability for loss of or damage to the goods or for delay in delivery are applicable, whilst all other issues, although addressed in the Rules, are left to the respective national law.
2. Reference to Contractual Agreements
 [9] Art. 5 (1) Rotterdam Rules specifies that the convention applies to contracts of carriage (see [5] above) “… in which …” various places and ports are in different states, if, “… according to the contract of carriage …” these ports or places, respectively, are located in a contracting state. Clearly, the basis for the application of the Rotterdam Rules are the carrier’s obligations to carry the goods as specified in the contract of carriage and not how the transport actually is carried out, perhaps contrary to the contractual agreements (see, however, below [11]).
[10] In particular, the Rotterdam Rules will still apply if the contract comes to an end before the goods are received by the carrier. Also, when the Rules are applicable because the place of delivery is in a contracting state (see [15–16, 17–20] below), they will remain relevant even if the carrier in fact and contrary to the contractual agreements effects delivery at a place in a non-contracting state, thereby breaching the contract of carriage (see [11] below). This would also be so in cases of a carriage of goods which includes land legs, when the Rules apply only because the port of loading or the port of discharge (but not the places of receipt and delivery) are located in a contracting state, if the carrier re-routes the goods through another port of loading or the port of discharge not located in a contracting state.
[11] The relevant provisions specifying the carrier’s obligations are not necessarily the ones originally agreed. The shipper or other controlling party is entitled to give instructions to the carrier (see Art. 50 – 52, Art. 1 No. 12 – 13 Rotterdam Rules). Also, the carrier may have the right, as laid out in his general terms, to unilaterally determine the way the carriage is effected (see Art. 56 Rotterdam Rules). As a matter of German law, a corresponding declaration by the carrier would be required, which however implicitly would be made by simply carrying out the transport in a particular way. And finally, the carrier and the controlling party may enter into an agreement to amend the contract of carriage (see Art. 54 Rotterdam Rules). In all three cases, the carrier’s obligations as to the carriage of the goods are modified. So, if the carriage is effected in a way which deviates from the original contractual agreements, this does not necessarily amount to a breach, as the carrier’s obligations regarding the carriage may have been modified accordingly.
[12] The carrier’s obligations are decisive for the application and also the non-application of the Rotterdam Rules. Consequently, in case of a later modification of the carrier’s obligations, the Rules which in the circumstances were not applicable, may now become relevant, or, the other way round, the Rules may cease to be applicable. Whether or not the amendment was validly declared unilaterally by the shipper or controlling party, respectively, by the carrier or agreed between the two is determined by the provisions applicable at the time the declaration is made or the amendment is agreed. Art. 50 – 52 Rotterdam Rules are therefore only relevant if the contract, when the modification is made, is subject to the Rules.
3. Carriage by Sea
[13] Application of the Rotterdam Rules requires that the contract provides for a carriage of goods by sea, to which transportation by other modes to the port of loading and from the port of discharge may be added (see Art. 1 No. 1). Practically all carriages by sea involve short stretches through inland waters, at least to and from the ports. There may be cases where the contemplated carriage includes longer passages through inland waters, e.g. to and from upriver ports. It is submitted that a carriage is only “by sea” if the distance over sea exceeds the distance over inland waters; see, in a different context, Art. 82 (d) Rotterdam Rules. The borderline between the sea and inland waters in each case is determined by the applicable national law.
4. Carriage by Ship
[14] The Rotterdam Rules cover only the carriage of goods by sea on a ship (see Art. 1 No. 25) and not other means of transport such as pipelines. The ship may be an ocean vessel or a vessel otherwise normally used for inland waterway transportation.
5. Carriage of Goods Wholly by Sea
[15] In a straightforward case, the contract of carriage may simply provide for the goods to be carried from a port of loading, which at the same time would be the place of receipt, to the port of discharge, where they will be delivered. In order to make the Rotterdam Rules applicable, the port of loading and the port of discharge must be in different states, see Art. 5 (1). The Rotterdam Rules would not be applied if the ports are located in the same state, even if the vessel as scheduled calls at intermediate ports in another state and even if the goods, as agreed in the contract of carriage (see [9–12] above) are discharged and re-loaded to the same or another vessel.
[16] Further, in order to make the Rotterdam Rules applicable, the states in which either the port of loading or the port of discharge are located must be contracting states. The Rotterdam Rules thus apply to both inbound and outbound traffic. However, the Rules do not apply, if only a (scheduled) intermediate port is located in a contracting state.
6. Carriage of Goods Partly by Sea
[17] One of the truly remarkable new features of the Rotterdam Rules is that they also apply to contracts of carriage which include a preceding or succeeding land transport. Consequently, Art. 5 (1) (a) to (d) of the Convention refer to four locations, i.e. the place of receipt, the port of loading, the port of discharge and the final place of delivery. The Rotterdam Rules would likewise apply if the agreed carriage had two sea legs or more with a land leg in between.
[18] The agreed (see [9–12] above) places of receipt and delivery must be located in different states. Furthermore, this would likewise apply to the port of loading and the port of discharge. However, both the place of receipt and the port of loading as well as the port of discharge and the place of delivery may be located in the same state.
 [19] The Rotterdam Rules would apply if either the place of receipt, the port of loading, the port of discharge or the place of delivery is located in a contracting state. Thence, even if the place of receipt and the place of delivery are not in any way related to a contracting state, the Convention would still be relevant if the port of loading or the port of discharge is in a contracting state.
[20] If the agreed carriage includes two sea legs with a land leg in between, the Rotterdam Rules may also be applicable. This is in fact contemplated in the words “… of the same sea carriage …” in Art. 5 (1). This clarification takes care of the situation where the carriage includes two domestic sea legs in different states, so that the port of loading of the first sea leg in fact would be in another state than the state of the port of discharge of the other sea leg. This would not be sufficient to make the Rotterdam Rules applicable. Theoretically, the carriage may encompass even more than two sea legs.
7. Carriage of Goods
[21] The contract of carriage must refer to the carriage of goods; see Art. 1 No. 1 Rotterdam Rules. These are referred to in Art. 1 No. 24 and include wares, merchandise and articles of every kind whatsoever the carry undertakes to carry. Unlike the Hague Rules, see Art. 1 (c), the Rotterdam Rules apply to live animals (see Art. 81) and deck cargo (Art. 25).
 
a) Containers
[22] As is clarified in Art. 1 No. 24 Rotterdam Rules, goods also include the packing and any equipment and container not supplied by or on behalf of the carrier. The latter qualification refers, in particular, to LCL-shipments (less than a full container load). The shipper supplies the goods “in bulk” which are then stowed into the container by the carrier for his own purposes to effect the contemplated carriage. The container is not subject to the Rotterdam Rules. This is different when a FCL-shipments (full container load) is agreed, where the carrier receives from the shipper a stuffed container for carriage. Here, the Rotterdam Rules, in principle, apply to the goods and the container alike. However, even in cases of a FCL-shipment, the container at first instance may have been provided by or on behalf of the carrier to be stuffed by the shipper and returned to the carrier. It is submitted that in these circumstances the container would not be covered by the Rotterdam Rules but by a separate contract between the carrier and the shipper to provide a container suitable for the contemplated carriage.
b) Passengers and their Luggage
[23] The Rotterdam Rules, as is clarified in Art. 85, do not apply to a contract of carriage for passengers and their luggage. In international law, this type of contract is dealt with in the Athens Convention, 1974. The basic principle can be derived from Art. 1 No. 2, 4 (a) and 5 (a) Athens Convention, which seeks to distinguish contracts of carriage of passengers and their luggage from contracts of carriage of goods. The test is whether the relevant contract is primarily concerned with the carriage of goods; see Art. 1 No. 5 (a). If the contract focuses on the goods, it is a contract for the carriage of goods and not subject to the Athens Convention, even if the goods are accompanied by a person; see Art. 1 No. 4 (b). These goods are not considered to be luggage. If the contract refers to the carriage of passengers, their belongings are luggage and covered by the Athens Convention.
[24] It would seem that the distinction made in the Athens Convention will also assist in respect of Art. 85 Rotterdam Rules. The Rules will apply if the contract of carriage is primarily concerned with the carriage of goods and not with the carriage of passengers. In most cases, there will be no question whether the contract mainly refers to goods or passengers, in particular if there is no reference to any person accompanying the goods at all or if the respective person is expressly identified and perhaps a carriage on a passenger vessel is contemplated. However, there may be situations where this is less clear, namely when the contract refers to objects and persons to be carried together. Would this be a person and his or her luggage or goods accompanied by a person? I think the test here is that objects intended for the person’s personal use or consumption must be considered luggage, whilst other objects are accompanied goods. In the former case, the Rotterdam Rules would not be applicable as per Art. 85. Accompanied goods are subject to the Rotterdam Rules. The Convention would apply only to the goods and not to the accompanying person. However, if the person accompanied vehicles or live animals, it would be a passenger under the Athens Convention; see Art. 1 No. 4 (b).
8. Irrelevant Issues
[25] Art. 5 (2) Rotterdam Rules clarifies that both the nationality of the ship (or ships) on which the goods are to be carried nor the nationality of any of the parties involved in the carriage affect the Rules’ applicability.

II. Specific Exclusions (Art. 6 Rotterdam Rules)
[26] Even if the requirements of Art. 5 (1) Rotterdam Rules are satisfied, the Convention would not be applicable in the cases specified in Art. 6. It distinguishes between liner and non-liner transportation (below [27]) and refers to charter parties and similar contracts for the use of a ship (below [28–32]).
1. Liner and Non-liner Transportation
[27] Art. 1 No. 3 Rotterdam Rules defines the term “liner transportation” and seeks to reflect the views in the shipping industry as to what constitutes a liner service. The principal requirements are (1) that the service is offered to the public through publication or similar means and that (2) the ships operate on a regular schedule between specified ports in accordance with publicly available time tables of sailing dates. The regular way of offering the services communicating the departures of the vessels would be through the internet.
2. Charter Parties and other Contracts for the Use of the Ship
[28] Both Art. 6 (1) and (2) Rotterdam Rules refer to charter parties and other contracts for the use of a ship or of any space thereon. The words “contracts for the use of a ship” seem to be the general term, whilst the expression “charter parties” refers to a particular kind of contract for the use of a ship. In order to apply Art. 6, the contracts for the use of a ship need to be distinguished from regular contracts of carriage. The test is whether the contractual agreements are primarily concerned with the vessel or with the goods.
[29] A typical contract for the use of a ship is the familiar (voyage and time) charter party, separately referred to in Art. 6 (1) (a) and (2) (a) Rotterdam Rules. In particular time charters normally focus on the vessel and refer to the goods in a general way, perhaps even by way of mere cargo exclusions. Voyage charters are often concluded in respect of a particular cargo or type of cargo. Normally, there would be only one charterer or perhaps few part charterers (see also below [31]). The charterer(s) would have considerable control over the vessel and the way the voyage is or the voyages are performed, more so in a time charter and less so in a voyage charter context.
[30] On the other hand, the terms of the contact may refer mainly on the goods with no or only a rudimentary emphasis on the vessel to be used for the carriage. The absence of a vessel’s description, apart perhaps from the vessel’s name and sailing dates, would be considered a regular contract of carriage and not a charter. The typical regular contract of carriage would be concerned with containers or general cargo and perhaps evidenced in a booking note. Here, one carrier may deal with quite a number of shippers who have only very limited rights in respect of the vessel and her voyage.
[31] Art. 6 (1) and (2) Rotterdam Rules does not only refer to contracts for the use of a ship, but also to contracts for the use of any space on a ship. In many cases, these would be part charter parties. A distinction between this type of contract and a regular contract of carriage again may be difficult to make. However, a contract for the use of a ship would require that the relevant space in some and perhaps abstract way needs to be described in the contract, i.e. by a reference to a particular hold or tank or merely to the amount of space needed. A slot charter would be a contract for the use of a space of a ship.
[32] An indication as to whether there is a contract for the use of a ship or a regular contract of carriage could be whether the goods referred to in the contract require the vessel’s full capacity or the full space on the vessel as described in the contract. This would point to a contract for the use of the ship (or a space thereon). If on the other hand the amount of goods referred to in the contract is insignificant as compared to the vessel’s capacity, this would normally be a regular contract of carriage. Of course, there may be situations where the distinction can be difficult.
3. The Exclusions
[33] Art. 6 Rotterdam Rules, dealing with the specific exclusions from the general scope of application as per Art. 5, is not easy to understand. Whilst Art. 6 (1) is rather straightforward, Art. 6 (2) is a complete failure and a bad example of poor draftsman¬ship. In particular, the fourfold negation in Art. (2) (a) (“… does not apply …”, “non-liner transportation”, “… except when …”, “…no charter party …”), is almost incomprehensible. However, what Art. 6 seeks to say can well be expressed in different and easier to understand terms.
[34] Contracts for the use of a ship, including charter parties, are never subject to the Rotterdam Rules, neither in liner nor in non-liner transportation (see [27] above). The former is expressly stated in Art. 6 (1). The latter follows from the unfortunate provision of Art. 6 (2) (a): “The Convention does not apply … except when … [so it does apply as long as] … there is no … contract for the use of a ship …”. This is, however, only so in respect of the original parties, i.e. the charterer and the owner (see [35] below).
[35] In relation to regular contracts of carriage, the Rotterdam Rules in all circumstances remain applicable in liner transportation, as is stated in Art. 6 (1). In non-liner transportation, the Rotterdam Rules are relevant if a transport document or an electronic transport record is issued; see Art. 6 (2) (b). In so far, the Rotterdam Rules’ scope of application is similar to the one of the Hague Rules; see Art. 1 (b). Again, the Rotterdam Rules in any event would remain applicable as between carrier and other parties than the original shipper (see [35] below).

III. Application to Certain Parties (Art. 7 Rotterdam Rules)
[36] The specific exclusions of Art. 6 Rotterdam Rules (before [33–34]) are again qualified in Art. 7 with a view to the relevant persons involved. Art. 7 refers to the contracts of carriage excluded in Art. 6, i.e. charter parties in liner and non-liner transportation and regular contracts of carriage in non-liner transportation if a transport document is not issued. The Rotterdam Rules remain inapplicable in relation to the original parties, i.e. the owner and the charterer or the carrier and the shipper, respectively. However, as between the carrier and other parties who have or subsequently obtain contractual rights against the owner or carrier, respectively, the Rotterdam Rules remain or will become relevant. These include the consignee as well as the controlling party or the holder of a transport document. These provisions are similar to the familiar Art. 1 (b) Hague Rules.

IV. Summary and Outlook
[37] The Rotterdam Rules apply to international transports [15, 18, 20] of goods [21–24] by sea [13] on ships [14], even if land legs are added [17–20], if the port of loading or the port of discharge [16] or, in cases which include overland transport, if the place of receipt or the place of delivery is located in a contracting state [19–20]. The Rules do not apply to contracts for the use of a ship [28–32, 34] and to regular contracts of carriage in non-liner transportation where no transport document has been issued [35], as far as the original parties are concerned, but are relevant between third parties and the carrier [36].
[38] The German Maritime Law Association, which I represent, as well as the German Shipowners Association are very much in favour of the Rotterdam Rules and eager to support and promote them. It has been said that the Rules are overly detailed, complicated and difficult to understand, so that considerable legal costs would be required to clarify disputed points. Others have stressed that the Rotterdam Rules in respect of the cargo’s and the carrier’s interests are not well balanced in a number of respects.
[39] In my view, the time for criticism of particular provisions and basic principles of the Rotterdam Rules is over, as justified as these points may be. Now, there is only the decision for or against the Rules as a whole. I think the balance is clearly tipping in favour of the Rotterdam Rules. Shipping itself is a worldwide business. It requires a worldwide legal regime to ensure that international trade is carried out as far as possible on similar conditions everywhere. It has also been said, and correctly so, that there will not be another worldwide effort to obtain a modern, unified law in the next thirty years or so. Personally, I very much favour the Rotterdam Rules and sincerely hope that they will become the leading maritime legal regime in the future.