cannot be proved where the event (loss, damage, or delay caused) occurred, or if the
damage was caused during one leg and continued during following legs, Article 26 is
not applicable. Thus, if a case falls outside this Article’s ambit, Article 26 itself cannot
avoid the conflicts between compulsory rules of different modes of transport.
151
Moreover, Article 26 has not dealt with the relationships between the Rotterdam
Rules and mandatory national laws which conflict with the Rules. This is because the
words “international instruments” (Article 26) do not cover national laws, so Article
26 does not apply. An earlier UNCITRAL draft
152 which was subsequently
discarded would have resolved this problem.
Furthermore, the use of the words “international
153 instrument”
154 in Article
26 implies regulation by regional economic organizations; thus they have a broader
connotation than the word “convention” (between nations) in Article 82. It is worth
noting that Article 26 does not circumscribe international instruments like those “in
force at the time this Convention comes into force” (Article 82); rather it embraces
instruments activated “at the time of such loss, damage or event or circumstance
causing delay”.
155 As we have seen, the Rotterdam Rules may well be overridden by
certain future international instruments. Thus, it must be borne in mind that an
uncertain number of potential instruments could lead to lack of predictability at a
worldwide level, and increasing legal costs.
Therefore, in the three categories of circumstances mentioned above, it is difficult
to predict how potential conflicts among different transport modes can be resolved.
These conflicts could also promote legal uncertainty concerning similar cargo
litigation in different jurisdictions, and accompanying increased legal costs. In
order to handle the conflicts between the Rotterdam Rules and related national
laws, the wording “international instrument, at the time of such loss, damage or
. . . delay” is needed to be replaced and ensure that merely “international conventions” “in force at the time this Convention comes into force” prevailing over the
Rules. This new extension within Article 26 will govern the relationships between
the Rules and national instruments; in other words, the Rules could well prevail over
the national instruments.
151 Diamond (2009), p. 456.
152 In order to cater for this need, UNCITRAL Working Group III drafted a provision, including
mandatory national laws, into Article 26, so that “it specially identified the law in question, that the
law applied to the loss or damage in question and that the damage occurred in that state’s territory.”
But such a draft provision was left out in the final version.
153 The limited network system on liability applies to the relevant provisions only of international
instruments, such as EU regulations; see Uffe Lind Rasmussen (2009), p. 147. See also Sturley et al.
(2010a, b, c, d), pp. 59–75, paragraph 4.022; UNCITRAL (1987), Doc.A/CN.9/642, 20th Session
Report, paragraphs 163–166.
154 The wording of Article 26 is “international instrument” rather than international “convention”,
which refers to a broader range of international legislation. See Sturley et al. (2010a, b, c, d),
multimodal aspects, pp. 59–75, paragraph 4.023; the UNCITRAL (1988) 21st Session Report,
paragraph 84. Rasmussen (2010), p. 147.
155 Rotterdam Rules Article 26. van der Ziel (2009), p. 989.
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L. Zhao
damage was caused during one leg and continued during following legs, Article 26 is
not applicable. Thus, if a case falls outside this Article’s ambit, Article 26 itself cannot
avoid the conflicts between compulsory rules of different modes of transport.
151
Moreover, Article 26 has not dealt with the relationships between the Rotterdam
Rules and mandatory national laws which conflict with the Rules. This is because the
words “international instruments” (Article 26) do not cover national laws, so Article
26 does not apply. An earlier UNCITRAL draft
152 which was subsequently
discarded would have resolved this problem.
Furthermore, the use of the words “international
153 instrument”
154 in Article
26 implies regulation by regional economic organizations; thus they have a broader
connotation than the word “convention” (between nations) in Article 82. It is worth
noting that Article 26 does not circumscribe international instruments like those “in
force at the time this Convention comes into force” (Article 82); rather it embraces
instruments activated “at the time of such loss, damage or event or circumstance
causing delay”.
155 As we have seen, the Rotterdam Rules may well be overridden by
certain future international instruments. Thus, it must be borne in mind that an
uncertain number of potential instruments could lead to lack of predictability at a
worldwide level, and increasing legal costs.
Therefore, in the three categories of circumstances mentioned above, it is difficult
to predict how potential conflicts among different transport modes can be resolved.
These conflicts could also promote legal uncertainty concerning similar cargo
litigation in different jurisdictions, and accompanying increased legal costs. In
order to handle the conflicts between the Rotterdam Rules and related national
laws, the wording “international instrument, at the time of such loss, damage or
. . . delay” is needed to be replaced and ensure that merely “international conventions” “in force at the time this Convention comes into force” prevailing over the
Rules. This new extension within Article 26 will govern the relationships between
the Rules and national instruments; in other words, the Rules could well prevail over
the national instruments.
151 Diamond (2009), p. 456.
152 In order to cater for this need, UNCITRAL Working Group III drafted a provision, including
mandatory national laws, into Article 26, so that “it specially identified the law in question, that the
law applied to the loss or damage in question and that the damage occurred in that state’s territory.”
But such a draft provision was left out in the final version.
153 The limited network system on liability applies to the relevant provisions only of international
instruments, such as EU regulations; see Uffe Lind Rasmussen (2009), p. 147. See also Sturley et al.
(2010a, b, c, d), pp. 59–75, paragraph 4.022; UNCITRAL (1987), Doc.A/CN.9/642, 20th Session
Report, paragraphs 163–166.
154 The wording of Article 26 is “international instrument” rather than international “convention”,
which refers to a broader range of international legislation. See Sturley et al. (2010a, b, c, d),
multimodal aspects, pp. 59–75, paragraph 4.023; the UNCITRAL (1988) 21st Session Report,
paragraph 84. Rasmussen (2010), p. 147.
155 Rotterdam Rules Article 26. van der Ziel (2009), p. 989.
778
L. Zhao