Transfer of Rights

In this article the author examines Chapter 11 of the Rotterdam Rules, whose aim is to address some of the practical problems that arise in regard of transfer of rights deriving from the contract of carriage. He analyses two matters: the transfer of the rights incorporated in a negotiable transport document and the liability of holder, respectively regulated in articles 57 and 58. Reference is made to the discussions in the Working Group, emphasizing the great technical importance of these provisions for electronic commerce in order to achieve functional equivalence with paper documents. The first issue is approached in art. 57 in line with the tradition of both civil and common law by reference to the traditional concept of the incorporation of the right in the document: a negotiable transport document and the rights incorporated therein can be transferred by endorsement- usually by signature- or by delivery, depending on the fact that is issued to the order or to the bearer. The writer thinks that the transport documents referred to in article 57(b)(ii) cannot be considered as negotiable transport documents because if the documents are “made out to the order of a named person” the contractual rights can be transferred uniquely to the person named in the transport document and the function of the document is merely to clarify that for this purpose the transfer of the document is sufficient with no endorsement being needed. Article 57(2) statues, that where a negotiable electronic transport record is issued, its holder may transfer the rights incorporated therein by transferring the electronic transport record, regardless of whether it is made out to order or to the order of a named person. Article 58 aims to make clear that, if a negotiable transport document is issued, the holder can become liable for the obligations incorporated in it; this same rule applies for negotiable electronic transport record. This provision implies that, in addition to rights, liabilities are also incorporated into the negotiable transport document or negotiable electronic transport record. Article 58(1) distinguishes the position of the holder from the position of the shipper, who assumes obligations simply because he is the shipper, whereas the holder assumes all the legal positions under the contract of carriage only if he exercises rights under the contract of carriage. The author considers it necessary to examine the possible function and significance of the initial phrase of paragraph 1 of article 58 “without prejudice to article 55”. The purpose of this wording is to avoid any impact of article 58(1) on the obligation- stated in article 55- of the holder as controlling party to provide the carrier with all the information, instructions or documents relating to the goods not yet provided by the shipper and not otherwise reasonably available, which are necessary to allow the carrier to perform its obligation under the contract of carriage. The holder, in its position as controlling party, needs to fulfil its obligations under article 55 and to be subject to the related liabilities, even if it did not exercise any of its rights under the contract of carriage. The obligation of the holder mentioned in article 55 arises only when the holder actually has a reasonable possibility to provide the requested information and documents or is in a position to give the necessary instructions.