Cargo claims and the Rotterdam Rules

Stuart Hetherington has informed Maritime Advocate that the Journal of International Maritime Law will be publishing a paper by Stuart Hetherington, partner of Colin Biggers & Paisley in Sydney, and former President of the CMI, which argues that the Supreme Court’s decision in Volcafe Limited & Ors v Cia Sud Americana de Vapores SA (UK Supreme Court, December 2018) was “regrettable”.

The paper will be featured in the next two issues of JIML. The first issue is available now and the second will be released at the end of October.

Hetherington examines the decision critically and looks at the practice & procedure that was applied to the conduct of cargo claims litigation in the UK since the 19th Century; the Harter Act; the Travaux Preparatoires of the Hague Rules, the Rotterdam Rules, and the leading cases, including the “Glendarroch”, Gosse Millard, and other decisions handed down by some of the leading Judges in the UK and Australia in the aftermath of the Hague Rules. These include Scrutton LJ, Greer LJ, Lord Sumner; Lord Simon LC; Lord Atkin; Lords Pearce and Pearson; and, especially, Lord Wright in the Joseph Constantine case.

Hetherington will also be giving lectures in the London market during the second week in October, suggesting that this decision highlights that:

  • Countries around the world need to ratify the Rotterdam Rules (with which this decision is inconsistent) and,
  • Until the UK ratifies the Rotterdam Rules and they come into force, carriers need to know that a Paramount clause making English law applicable to their contracts, carries with it the risk that where onus of proof issues under Article 3 rule 2 of the Hague Rules are involved in their carriage of goods disputes they will no longer be determined in the United Kingdom in accordance with the long accepted interpretation of exception clauses in bills of lading and under the Hague Rules on this issue dating back to, at least, the mid-19th Century, potentially to their detriment.