Volume Contracts under the Rotterdam Rules： One Step Forward or Two Steps Backward ？

Abstract Volume contracts are without a doubt one of the key provisions of the Rotterdam Rules but also one of its most controversial innovations. That is the reason why the present article offers an analysis of` the controversy surrounding this issue. It will be investigated to what extent the convention provides an adequate protection to shippers.

Key words volume contracts； the Rotterdam Rules； controversy

“A new and puzzling concept”， “a small revolution”， “a rather curious set of clauses”， “the single most inexplicable part” of the Rotterdam Rules. Numerous are the expressions used to describe “volume contract”， a subject which generates considerable controversy and represents a major source of concern for States， scholars and practitioners. In this regard， articles 1 （2） and 80 of the Rotterdam Rules governing volume contracts are at the heart of such controversy. Pursuant to article 1 （2）， a volume contract refers to “a contract of carriage that provides for the carriage of a specified quantity of cargo in a series of shipments during an agreed period of time [and] [t]he specification of the quantity may include a minimum， a maximum or a certain range”.

Strongly inspired by the American “service contract”， volume contract represents one of the major innovations of the Rotterdam Rules. Despite some similarities， volume contracts must be distinguished from service contracts. One of the main differences lies in the fact that service contracts are subject to mandatory regime whereas volume contracts allow derogations to the mandatory regime. This is the reason why volume contracts constitute one of the novelties of the Rotterdam Rules. Indeed， while The Hague， Hague-Visby and Hamburg Rules have established a mandatory regime of liability， the Rotterdam Rules innovate by introducing contractual freedom through volume contracts.

What justifies the introduction of provisions allowing freedom of contract， provisions which represent a significant change from the existing sea carriage conventions？ The rationale behind the establishment of an imperative regime by the existing sea carriage conventions lies in the protection of the weaker party， the shipper. The question arises whether a mandatory regime still appears relevant even though the parties are on an equal footing. Indeed， some shippers are multinational companies endowed with a real influence in terms of bargaining power. Given the existence of a balance between the parties in terms of bargaining power， it was considered that the introduction of contractual freedom in the Rotterdam Rules appears particularly relevant.

From the point of view of large shippers， the introduction of contractual freedom does not pose great difficulties. On the contrary， such change poses a particular challenge for small shippers. That is the reason why volume contract arouses much controversy. The opponents to volume contracts have argued that they actually constitute a return to the practice of “negligence clauses”. Their supporters have underlined that they are necessary to meet commercial needs. Do volume contracts represent “two steps backward” in that they constitute a return to the practice of “negligence clauses”？ Or rather do they correspond to “a step forward” in that they allow adaptation of maritime law to commercial practice？ The weight of the arguments suggested by the opponents of volume contracts will be analyzed [1] before studying the relevance of the arguments advanced by its proponents [2].

* Two steps backward： the “comeback” of negligence clauses？

One argument often raised against volume contract is the risks of abuse from carriers owing to the possibility to opt out from the Convention [1.1]， such risks of abuse are increased by the overly broad definition of volume contract [1.2].

* The possibility to opt out from the Rotterdam Rules

The Rotterdam Rules are often criticized as marking the return of “negligence clauses” which were commonplace before the Hague Rules. Practitioners and scholars have drawn attention to the fact that within the framework of a volume contract it is possible derogate from nearly all of the provisions of the convention. Besides， the carrier may offer lower rate in exchange of his minimal liability in order to attract shippers. As to the argument according to which volume contracts constitute a return to the practice of negligence clause， it needs qualifying. Indeed， under negligence clauses， the shipper did not have choice but to accept， whereas under the Rotterdam Rules， the shipper is given the choice to accept or refuse derogations. Besides， the recourse to contractual freedom is subordinated to the respect of cumulative conditions. Moreover， pursuant to article 80 （4）， certain fundamental obligations of the shipper and the carrier cannot be subject to derogation.

* A risk amplified by an overly broad definition

As for its opponents， risks of abuse are amplified by the “vagueness” of the definition of volume contract since numerous contracts may fall within its scope of application. The absence of a minimum quantity， period of time or frequency in the definition of volume contracts is considered to represent an open door to abuse. Consequently， a more restrictive definition has been suggested but such propositions have not been retained. The real stake of the definition lies in the willingness to limit contractual freedom to large shippers so that the parties will be on an equal footing. Although it is true that the definition of volume contract is broad， it remains that risks of abuse are limited by strict conditions of application. Moreover， article 80 （3） （c） makes clear that the shipper has always the possibility to accept or refuse derogation.

* One step forward： an attempt to modernize maritime law？

The proponents argue that volume contracts represent an answer to commercial needs [2.1]. As for the broad definition and the risks of abuse， they advance that risks are reduced by strict conditions of application [2.2].

* An answer to actual commercial need

For its supporters， the introduction of volume contracts corresponds to a willingness to adapt to new economic realities in which the carrier is no longer the only one to have bargaining power. Henceforth， some “big” shippers have important bargaining powers. The proponents have supported that volume contract is adapted to actual commercial needs. Indeed， the concept of volume contract allows more flexibility so that large shippers could obtain “tailor made” contracts which will meet their specific needs

* The risks of misuse reduced by sufficient guarantees

As for the risks of misuse， several safeguards have been instituted in article 80 （2）. The implementation of this derogatory regime is subject to four cumulative conditions. Firstly， a volume contract must contain “a prominent statement that it derogates from the [Rotterdam Rules]”. Secondly， the derogation should be direct and the incorporation of a derogation clause by reference is forbidden. Thirdly， the volume contract must have been individually negotiated or it should prominently mention which sections of the contract derogate from the convention. Fourthly， the shipper must be given the choice to accept or refuse derogatory provisions. Put differently， the shipper should be offered the opportunity to conclude a contract in conformity with the convention without any derogation to it and it should be notified of the existence of such opportunity.

Although guarantees are offered， they are judged insufficient to avoid circumventing strategies. It is dreaded that in practice “creative” carriers could draft volume contracts in accordance with the requirements of the convention but without real negotiation. Indeed， article 80 （2） （b） requires either that the contract is individually negotiated or prominently specifies the sections of the volume contract containing derogations. Nevertheless， national judges are likely to cancel such contract to avoid that some carriers will “turn the spirit of the Rotterdam Rules”. One might think that a domestic court will adopt a similar reasoning as that of one American court which refused the legal qualification of voyage charter for a contract concerning a liquid cargo which represents only 10% of the carrying capacity of the ship.

The provisions relating to volume contracts are undoubtedly far from being satisfactory owing to the possibility to derogate from the convention and the risks of abuse related to the existence of an overly broad definition. However， one should be realistic when considering the Rotterdam Rules. On one hand， the introduction of volume contract is an answer to actual commercial needs. On the other hand， imperfections are unavoidable since the convention is the result of a compromise. Anyway， for this “step forward” to be “a giant leap” for maritime law， the entry into force of the Rotterdam Rules is necessary， which is somewhat doubtful.