Article 58 of the Rotterdam Rules: A dance between flexibility and forseeability?

Transferee liability is regulated in chapter 11 of the Rotterdam Rules. Chapter 11 as a whole sets out the principle that the holder of a negotiable transport document or a negotiable electronic transport record obtains rights and liabilities under the contract of carriage. While transfer of rights seems to be less controversial, when and how can and should liabilities be transferred? This paper focuses on imposition of liability on the holder of the negotiable transport document/electronic record and how the requirements of chapter 11, Article 58 of the Rotterdam Rules may be understood and interpreted. It is argued that the Rules where possible should be interpreted autonomously, taking into account the international nature of this instrument and without drawing narrow inferences from prior national law concepts. The article looks at the clarifications achieved by the Rotterdam Rules as well as at the elements which still need further interpretation. It is argued that national courts ought to take the opportunity to reassess any value judgments and criteria developed under national law before imposing such understanding on the Rotterdam concepts, in order to remain true to the spirit of Rules. In this process the opposing interests of the parties need to be balanced taking account of the need for flexibility on one hand, but also for foreseeability and reasonableness on the other. The article attempts to highlight some of the considerations that may be of particular relevance in this interpretation, with the aim of enhancing uniformity in this area.