Forum Selection and Arbitration in the Draft Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, or the Definition of Fora Conveniens Set Forth in the Rotterdam Rules

Article excerpt

The Rotterdam Rules' will, with a few practical exceptions, allow cargo interests to litigate or arbitrate cargo loss or damage claims at a place convenient for cargo interests. Cargo interests will generally be able to choose to litigate or arbitrate in one of the following places:

(i) the domicile of the carrier;

(ii) the place of receipt agreed in the contract of carriage;

(iii) the place of delivery agreed in the contract of carriage; or

(iv) the port where the goods are initially loaded on a ship or the port where the goods are finally discharged from a ship . . . .2

If the contract of carriage contains a choice of court clause, the cargo claimants may choose to litigate in any of the above places or in the place designated in the choice of court clause. If the contract of carriage contains no choice of court or arbitration clause, the cargo claimant may choose to litigate in one of the above places. If the contract of carriage includes an arbitration clause, the cargo claimant must arbitrate but may choose to arbitrate in the place set forth in the arbitration clause, or one of the above places.

Cargo claimants may also file suit against a maritime performing party in a place relevant to the maritime performing party.3

There are several exceptions to the above provisions. Practitioners should be familiar with the exceptions to understand the jurisdiction and arbitration scheme of the Rotterdam Rules. Practitioners also should be familiar with the scope of application of the Rotterdam Rules to understand the jurisdiction and arbitration scheme. Parties to contracts not within the scope of the Rotterdam Rules will have freedom to choose any place they wish to litigate or arbitrate.

I. SCOPE OF THE ROTTERDAM RULES

The scope of application is set forth in Chapter 2, Articles 5, 6 and 7:

Chapter 2. Scope Of Application

Article 5. General scope of application

1. Subject to article 6, this Convention applies to contracts of carriage in which the place of receipt and the place of delivery are in different States, and the port of loading of a sea carriage and the port of discharge of the same sea carriage are in different States, if, according to the contract of carriage, any one of the following places is located in a Contracting State:4

(a) The place of receipt;

(b) The port of loading;

(c) The place of delivery; or

(d) The port of discharge.

2. This Convention applies without regard to the nationality of the vessel, the carrier, the performing parties, the shipper, the consignee, or any other interested parties.

Article 6

Specific exclusions

1. This Convention does not apply to the following contracts in liner transportation:

(a) Charterparties; and

(b) Other contracts for the use of a ship or any space thereon.

2. This Convention does not apply to contracts of carriage in non-liner transportation except when:

(a) There is no charterparty or other contract between the parties for the use of a ship or of any space thereon; and

(b) A transport document or an electronic transport record is issued.

Article 7

Application to certain parties

Notwithstanding article 6, this Convention applies as between the carrier and the consignee, controlling party or holder that is not an original party to the charterparty or other contract of carriage excluded from the application of this Convention. However, this Convention does not apply as between the original parties to a contract of carriage excluded pursuant to article 6.5

It may be simpler to realize that the scope includes, and thus affects, choice of court or arbitration clauses in all contracts in the liner trade except charterparties or other contracts for the use of space on a ship. It does not include any contract in the non-liner (tramp) trade except a transport document or electronic record that is not between parties to a charterparty or other contract for use of space on a ship. …

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