The Preliminary Draft Instrument,1 started life within the CMI in 1998. The Instrument covers much of the ground currently encompassed in the Hague, Hague-Visby and Hamburg Rules: does the carrier owe the cargo owner a duty to use a seaworthy ship? does the carrier or the cargo owner bear the responsibility for and the risk of loading and stowing the cargo? what type of documentation must the carrier give the cargo owner proving what has been loaded and in what condition? in what circumstances can the carrier exclude his liability for damage to the goods and—if he cannot so exclude—how much is he liable for? These issues are revisited in the Instrument, with some areas subjected to considerable renewal when compared with existing Conventions, either in terms of substance or in terms of style, or both.

There are, however, issues included within the Instrument which have not to date figured in any of the three Conventions regulating the carriage of goods of sea. Thus, for example, for the first time—and this was one of the main motive forces behind both the CMI’s and UNCITRAL’s work—an attempt is made to cover contracts of carriage recorded through electronic means rather than on paper bills of lading. Again for the first time, the Instrument attempts to regulate the means by which the shipper’s rights of control over the goods and his contract with the carrier are passed to the buyer of the goods, matters covered under English law at any rate in part by the Carriage of Goods by Sea Act 1992. Finally, the Instrument involves itself with the payment of freight and with general average.

The first paper at the Romsey colloquium, by Stuart Beare, describes the progress within both the CMI and UNCITRAL towards what is now UNCITRAL’s Preliminary Draft Instrument on the Carriage of Goods by Sea. Professor Erik Rosaeg looks at the applicability of the Instrument, questioning whether it is necessary to have mandatory rules and, if it is, whether the exclusion of charterparties from the ambit of the Instrument

304