Karsten Schubert The

The carpet in the office has a surprisingly symmetrical pattern, made entirely from old coffee stains. The desks are antiquated, too, but not dirty. Our secretary tried his best to make the offices look nice with plants and some random posters of old book launches and events, mostly from local anti-racism and queer organisations. This is our interim office, and I am not sure if, after the recent political scandals, we will ever move into more permanent facilities. I work for the Office of the Federal Commissioner for the Dismantling of Normalising Power and Structures of Privilege that was created through the General Act for the Dismantling of Normalising Power and Structures of Privilege five years ago. My boss, the Commissioner Robert Richardson, was just forced to resign. Now we have someone new, from the conservative party, and she has never hidden her hate for the Office and her plans to dismantle it, instead of dismantling privilege. And to be honest, I am not sure anymore, maybe that would not be too bad after all. I mean, of course I support our cause to fight for equality and against "normalising power" and "structures of privilege", but maybe it is just not possible to institutionalise it -or at least not in the way it was done.

When the Parliament decided on the General Act for the Dismantling of Normalising Power and Structures of Privilege, it was a huge surprise that they voted in favour of this law, which was mainly an idea of the left and Green Party opposition. But after a huge wave of new social criticism of social media that spilled over to the established media, and hardly any opposition from the right wing and conservative parties, the government felt pressured to endorse it. They said that it would help to foster a new dialogue on social justice and -eventually -also help to realise it. And when they created the new office in a breathtakingly fast process of only one year, I thought it might be a nice opportunity to get out of my old job as chief of accounting in the Federal Railway Administration that had bored me to hell. I thought it would be great to actually contribute to social progress, and not only to manage "irrational technical rationality". That is also why I encounter a weird bureaucratic irrationality now, I always want to research where the concept actually came from, but then I never do it. Anyway, I am quite happy that I am only responsible for the accounting, and not involved in the policy-making processes here, like Frieda. These were way less stressful in the rail sector, even though the environmental activists used to give us a hard time. But that was nothing compared to the political trench warfare that came along with the "Dismantler", as everybody quickly started to call the General Act for the Dismantling of Normalising Power and Structures of Privilege.

The "Dismantler" is a pretty complicated law, so let me try to explain its rationale. It is directed against what leftists call the "liberal consensus", that is, the belief that our democratic institutions and the rule of law overall work fine and are the rational outcome of the deliberation process of free people. It reminds me of this social contract thinking we discussed in high school: if there were no state, people would still build one, one pretty much exactly like ours, out of free choice, because it is the rational thing to do out of their own self-interest. And now the leftists say that this is an ideology -which, they say, is obvious already in the fact that such an idea is taught in our schools, in order to make the current regime seem legitimate. What is actually structuring our institutions and law, according to them, is exploitation, repression and systems of privilege, upheld by an array of social norms, that even pervade sciences and the structures of knowledge. And this is where the "Dismantler" comes in: it is aimed at making these norms and privileges visible, at getting them out of the ideological blur of liberalism, at shedding light on them and thereby helping to rebuild the system in a more just and equal way. I wanted to join the Office, because I was fascinated by this approach to institutionalising such processes of critique within the law. Because, if you look at it, it is squaring the circle: how can you use the very legal and administrative structures that are the root of the problem to solve the problem? Before I started working here, I talked about this puzzle at a dinner with friends, who are mostly academics, one just commented laconically "Well, it's dialectical". Everyone nodded. I did not dare to ask what he meant and it was only later that I realised that most people refer to something as "dialectical" to hide that they don't have a clue about it. Be that as it may, I can tell you that the "Dismantler" is doing two things mainly.

On the one hand, it establishes a principle within the law to control any law or jurisdiction for normalising power and privilege. This forces judges to consider these issues in their jurisdiction. And on the other hand, it installed the new Commissioner and our Office to supervise legal processes and to campaign for such issues. Our Office is necessary because effectively the "Dismantler" cannot really "force" the judges to follow the principle to control for normalising power and privilege since the whole construction allows for a huge margin of appreciation in counterbalancing proportionality and privilege control. Our job is to advocate for the "Dismantler" and to encourage judges to take privilege into account; and also to sanction a judge if they disregard the "Dismantler", although it has to be noted that most cases are too complex to hold judges accountable in that way.

Robert Richardson was the first Commissioner for Dismantling Normalising Power and Structural Privilege. Regarding his experience, he was a perfect choice. He was not a member of any political party but had worked in social justice organisations for 20 years. After he received a PhD. in critical social theory, he had consulted the government in mainstreaming intersectionality for a couple of years before he was appointed as Commissioner. His positionality was a bit more contested and did not fit well with the position, as he is a white middle-aged cishet man. You can imagine the criticism. Nevertheless, I originally thought that he was a smart choice because in appointing him the government was able to appease the conservatives who criticise "positional fundamentalism", showing them that when in conflict, content and competence matters more than social position. It turned out I was wrong, because in the end, he was not competent at all, or somehow "lost" his competence.

After the initial wave of media attention and heated debate over the Office and Richardson's appointment, things calmed down, and the first cases of problematic jurisdiction we -that is, my colleagues from the legal department -objected to went largely unnoticed in public discourse. Then, one judge, a certain Marcelo Escoto, who is also an outspoken conservative, managed to initiate a scandal and to mobilise a huge wave of right-wing protests against us, after we forced a revision of his sentence. The case was about Patricia Marble, a 28-year-old tech person working in a start-up, a typically privileged expat -and a black Black Lives Matter activist. She was under surveillance by the police as they (wrongly) suspected her of dealing. While they found some drugs, it was just a bit of cocaine and not the weed they suspected her to deal with. In the process she was charged with the possession of illegal substances and was sentenced to pay an unusually high penalty. The penalty was that high because Marble defended herself by accusing the police of having racially profiled her, which Judge Escoto interpreted as lack of remorse and general disrespect of the legal institutions, thus justifying the higher penalty. Of course, this jurisdiction was not only ignoring the principle to control for normalising power and privilege, but also actively reinforcing racial privilege by punishing the critique of racism.

When we ordered the revision, Judge Escoto went public, and virally so. He accused our Office of ideological and violent political correctness, which is inhibiting open debate in general and effective police work in particular. The police unions joined in, affirming that police suspicion is never based on race, but on reasonable hermeneutics that are the result of policing experience. Soon after, a shattered alliance from the right and conservative spectrum mobilised seemingly out of nowhere, claiming that nowadays every white person was automatically charged with racism. For some time, the leading narrative in this scene, especially on YouTube and Twitter, was that the mainstream media were infiltrated by a network of antiracist liberals and "gender ideology" feminists, all orchestrated by Mossad, to split up the Western (or White -it was never clear for which of these #WEC stands) Enlightenment Consensus. Once, in a coffee shop, I got into a discussion, or argument, with a guy who believes this. It was just impossible to communicate, because he just produced one unfalsifiable statement after another, and to my demands for proof, or coherence, he just replied with more of such statements. The centre of this ideology was a grumbling suspicion that the mainstream media, the politicians, and the academic experts lie and that they only prouce "narratives". They switch deliberately between this total scepticism without claiming that they know what is really going on and advancing a clear and specific "alternative truth" regarding particular questions. Regarding the attacks on the Commissioner, the latter was the case, with the conspiracy spectrum allied in the conviction that the "Dismantler" is Mossad's project to dismantle "Western/White Enlightenment".

Of course, nobody in the established institutions actively pushed such conspiracy theories, but it nevertheless put us in the spotlight. We -that is, the colleagues from PR -still managed pretty efficiently to position the Office well in the debate, especially with the help of our new social media manager, Joan, whom I brought into the Office and who is a master in their field. Joan is a former classmate of mine and was fed up with their PR work for a huge car manufacturer and wanted "to do something good" in their life and "give back a little"; and Joan emphasised their sincerity about that by stressing how enormous the pay gap between their old and new job was. I felt an unspecific antipathy towards Joan because of this. When I think about it now, it must have been because our reasons for changing jobs were so similar, and their juvenile and shallow discourse about it made me confront the actual shallowness of my own justifications. It was good that I never showed this antipathy: Joan is not only good in their PR work, they are also a perfect communicator and socialiser. Joan made more friends throughout the Office in one month, than I managed in the whole year I worked here before their arrival. I would have hated them for this, normally, alas they introduced me to everyone, and most importantly Frieda. Before Joan, I had lunch alone, or with my colleagues from accounting. The others did not see us as part of the political project of the "Dismantler", but just as accountants -random people essentially. And to be honest, that was fair. My other colleagues from accounting did not even switch to the Office out of political interest, as I did, and quite often they gossiped about the politics that the Office was pushing, and which they did not understand, but in any case rejected. With Joan's help, I was suddenly well connected to colleagues from nearly all departments, and especially the fancy ones; and, crucially, I had lunch with them -no more isolated accountancy lunches for me. Apart from Frieda, it is these people, and the talks they have over lunch, that are the source of my moderate insight into the political dramas taking place in our organisation.

Such dramas, particularly the trouble Richardson created soon after, even Helge with his magical skills could not help. The case against Marble was revised as we ordered, but then, to our extreme surprise, the revision exactly confirmed Judge Escoto's sentence. This was very surprising, because the "Dismantler" demands that revisions on its grounds are not decided by a judge, but by a standing jury that consists of judges selected by the most important minority organisations, and Black Lives Matter was very influential in this appointment process. One of the initial tasks of the Office was to set up this jury and to organise the selection processes. I can tell you: it was hard. You cannot imagine the fights among the minority group organisations over the influence that my colleagues from the jury department told me about. Many minority groups claimed that due to the systematicity of their oppression and its structural involvement with liberal capitalism, they deserve the largest say in the process. Others argued that you cannot counterbalance suffering and that you need equal representation. Often it was not clear at all who could legitimately speak for whom. For example, there were four Muslim organisations, with different agendas, and the three feminist ones were not able to agree on anything at all after the fights over trans politics back in the 2010s and 2020s. For me, this looked all weird, and I was just annoyed over how unproductive the debates were, how mean and violent the discourse was, and how little real solidarity there was. Why can't they just cooperate? I mean, there are blatantly evident common enemies, yet nobody could act in unity. Sometimes I thought about changing positions again, and returning to accounting for the Federal Railway Administration, but my old job was now taken and there was no other leading accounting positions open in the whole federal administration. I could have only changed position by accepting a huge loss in pay and retirement privileges, and if I learned one thing here, it is that privileges are important, and I really did not want to lose them.

So why did the standing jury, appointed by the minority organisations, confirm Judge Escoto's sentence? The reason lies in the fact that the jury members, despite their appointment by the minority organisations, still need to be professional judges.

And that means they are mostly white and bourgeois, and most importantly, socialised in the liberal legal culture that is the root of the problem. At least this is the official rationale of the Office. I was always a bit sceptical of this explanation, it sounded too simple and schematic. It sounded like the "positional foundationalism", that identity politics were always charged with, and the conservatives always accused the "Dismantler" and the Office of the Commissioner of such positional foundationalism. What they mean by "positional foundationalism" is the idea that social position and political views are necessarily connected, and that even some positions necessarily lead to certain views. It is a crude version of the classic feminist standpoint theory, and the complex analysis of the entanglement of knowledge and power that was developed by critical theorists and French theorists in the second half of the 20th century. However, nobody professional holds such a simple position -it is more of a straw man made up by the conservatives. But still, there seems to be something like a real tendency in such critical theories to fall back into a crude, or "vulgar" thinking, as the few remaining Marxists in these debates like to say.

The complicated thing is how to operationalise these overall very reasonable and realist social theories, without falling into this kind of foundationalism. And I think the Parliament did a good job with the construction of the jury: to let the minority organisations select the jury members is to acknowledge that social position matters, yet to require everyone to be an actual judge takes into account that you cannot reduce qualification to social position, but instead that expertise matters.

Well, the Commissioner did not see it that way. In the weekly heads of department meetings, he got angrier and angrier over the questionable decision of the jury. He said that the "Dismantler" in the current state does not dismantle anything, and effectively works as a cover-up for the ongoing wrongs done by the system by adding to its legitimacy. If criticising the system "from within" works at all, he said, it would be only through installing really subversive institutions, that is, something completely different from the jury that is already "corrupted in the totality of its thinking by bourgeois legal rationality". One curious thing is that in his rage, he referred more and more to radical political and legal theorists, especially from the old U.S. critical legal studies movement, that pushed the critique of liberal law as a totality being corrupted by capitalism, and sometimes he even, shouting, cited Marx. It was a bit caricaturesque and reminded me of this Netflix show about the 1968 student protests that was very popular at the time. First, the other department heads, especially Frieda and the head of and General Legal Questions, challenged Richardson, but he shut them down, saying we would have to keep our lines closed in these times of crisis, and that the Office needs to be aligned in the position to reform the "Dismantler" to the effect that the professionalism requirement of the jury is lifted. I did not participate in these debates, of course. After all, I am only an accountant.

Richardson now concentrated on political lobbying for this reform and realigned our resources to this end. We started a political campaign exposing and attacking the legal system as a whole with slogans like "Racism -The Core of Legality", "Dismantle Professional Judges", or "No Community Justice, No Peace". From there it went downhill really quickly. There was no chance any of the parties, not even the left party, could still support Richardson after that, and the government made him resign only a week after we started the campaign. The new Commissioner is Frederica Kemp, really conservative. As I said, she was always fundamentally opposed to the "Dismantler", and we fear that she is trying to dissolve the Office from within, but so far, the regular work is continuing, though without any executive decisions. Everything feels very much up in the air and no one of my colleagues knows what will happen. What is clear is that nobody wants to work for a ghost institution and against the leadership. We cannot quite imagine how to run the Office without the full political commitment of the Commissioner.

Of course, among us colleagues, we talk a lot about what happened. Two weeks ago, I met with some of them, whom I would by now even call friends, in a bar and we discussed why Richardson failed. Obviously, it was because of his overreaction and quite simply his bad political judgement. He just seemed to have abandoned all realist political struggle, understood as the messy process of working on compromises and improvised solutions that makes it necessary to cooperate even with people who are political enemies. He was not able anymore to give in and accept anything other than his ideal vision of dropping the professional requirement for the jury judges -it was all or nothing. But especially Frieda thought there was more to it, something more structural.

Frieda claimed that it was the corpus of social theory on which the "Dismantler" was based that had opened up the "conditions of possibility" (she was a philosopher by training) for Richardson's failure. The problem is that this theory operates, in one form or another, with a "hermeneutics of suspicion". This means that it is sceptical of the surface and the hegemonic narratives with which we explain the world, and looks deeper, for hidden mechanisms and forces. The two main concepts the "Dismantler" uses, "normalising power" and "structures of privilege", are exactly such forms of a hermeneutics of suspicion. The problem is, now, that once the decision is made as to the fact that the surface level cannot be trusted and that there is some kind of deeper stratum, it is not clear where exactly this scepticism ends. I was reminded of my discussion with the right-wing conspiracy theorist: even though fundamentally different, he also had something like a "hermeneutics of suspicion" with an "alternative truth", as they call it. The difference was mainly that the conspiracy theory was way more random in its scepticism and more fixed in the particular truth it came up with, the Mossad explanation, bending everything according to this story, leaving no room for falsification. Frieda explained that the social theories the "Dismantler" uses are not that random, of course, but the result of an intersubjective, academic and political discourse that is producing plausible insights about the social situation and not just conspiracies. But still, we all also know that these theories are complex, often contradictory and far from being consensually agreed upon. And being interpretations of the social and political world, they cannot be falsified or verified in the "correspondence" way, but are only more or less plausible. And what is plausible for someone is heavily dependent on their overall theoretical and political worldview. According to Frieda, the problem was that Richardson somehow shifted an intersubjective and pluralist hermeneutics of suspicion to a version that was more like the conspiracy theory, with a unified and somewhat absolute idea about what is the cause for the problems: for Richardson the "ideological liberal law" and its judges.

I liked that explanation, especially because it allowed me to stick to the core ideas of the "Dismantler". The overall idea is good, but Richardson just took a bad path. Yet, the more I thought about it, the more I became sceptical (I guess my job here had an impact on me, after all). You see, Richardson's explanation was not that far-fetched, and also because it seems a cheap way out to just solve this problem of the "conspiracy fallacy", as Frieda put it, by just referring to intersubjectivity. After all, that is also what the conservatives say all the time: intersubjectivity, reason, universality. I recently read in a quite plausible analysis of this conservative universality talk that they use it to cloak the fact that they just want to defend their privileges: they invoke intersubjectivity to suppress minority perspectives. So it seems that intersubjectivity does not solve the problem either.

By now, I am frustrated and annoyed, because I do not know anymore if this work makes sense, in the end. Not only because of the political mess, but because of the conceptual confusion: the hermeneutics of suspicion seem to open up the possibilities for bad conspiracy theories, but intersubjectivity stabilises the status quo. When I came here I just wanted to contribute to social progress. I did not imagine that this would entail such political and even conceptual struggles it is really exhausting. I might call my former boss from the Railway Administration tomorrow -I heard that my old post might become vacant again soon.


Armaghan Azhar
email: armaghan.azhar@yahoo.com

Modernizing Iranian Maritime Law in regard to Liability of Sea Carrier: Can Rotterdam Rules find a word in edge ways? *

Iranian Maritime Code (1964) adopts its regulating system of maritime transportation from that of Hague Rules. The system does not incorporate the modern practice of maritime transportations, nor does it include the amendments of later conventions yet. This article takes an assessing approach in regard to this code with an overview to some cases set forth in Iran judicial system. It then appraises the possible ratification of the Rotterdam Rules by the country and the change it might leave on these cases. It also enjoys the experience of common law countries which are based on Hague/Hague-Visby Rules. Finally, it suggests that the Rotterdam Rules might enable the country toward fulfillment of its own objectives, beside facilitating its international trade with other European and Western countries whom their ratification of the Rotterdam Rules is not farfetched.

Introduction:

Before the birth of international conventions regulating maritime transportations, the parties of a contract of carriage or charter party had their own freedom to negotiate the terms of the contract. However, this uplifted the bargaining power of the carrier resulting in cessation of that freedom. 1 "International Convention for the Unification of Certain Rules of Law relating to Bills of Lading "was created as a result of growing dissatisfaction among shippers and their insurers due to arbitrary restrictions imposed by carriers to limit their liability in case of damage or loss of cargo. The Hague rules were the first practical efforts made to solve this problem by establishing standard basic obligations and responsibilities of the carrier and shipper for goods covered under a bill of lading. 2 After being amended by the Brussels Amendments in 1968, the Rules became known as the Hague-Visby Rules. Final amendment was made in the SDR Protocol in 1979.

Iranian Maritime Code has been adapted from book II of France Commercial

Law ratified in 1807, and has been sorted out according to Iranian Legal System and the translation of international maritime conventions and Hague rules 3 . Ratified in September 20, 1964, it was once modified in 2012. Although it has 1 Wilson, J. F. (2010). Application of Hague/Visby Rules. In Carriage of goods by sea (7th ed., p. 174). New York: Pearson/Longman.

2 Hague-Visby Rules | Maritime-Connector.com. (n.d.). Last Access http://maritime-connector.com/wiki/haguerules/ 3 Najafi Asfad, M. (2008). Maritime Law: In Accordance with the Iranian Maritime Code and Maritime International Rules (4th ed., p. 23). Tehran, Iran: The Organization for Researching and Composing University textbooks in the Humanities (SAMT). some modification regarding decay of cargo or responsibilities of captain, it has not been changed in the area of carriage of goods. 4 After constituting other conventions like Hamburg Rules in 1978, and Rotterdam Rules in 2009, it In this article, we first study the different aspects of Iranian Maritime Code concerning liability of sea carrier in Carriage of Goods and will have a brief overview of International convention and related cases in this regard which manifest international and local experiences and sometimes difficulties; then will assess the possible impact of the Rotterdam Rules on each verdict. Later on we will study the innovations of Rotterdam Rules, and encourage Iranian legislator for the modification of Iranian Maritime Code under common worldwide practice and international conventions.

Why any change? Why Rotterdam Rules

Distinguished situation of Iran after Islamic Revolution, scientific explorations, the advent of well-equipped and technological ships to the market, the outburst of international conventions in the heart of maritime activities, insufficiency of Iranian Maritime Code and new internal and international essentials of the society necessitated the attention of the directors in charge more than before. Ports and Maritime Organization of Iran had some legal advisers and scholars codify a detailed plan of modified or even new codes of maritime law. The draft of 5 chapters, and 225 articles were prepared, however remained dormant due to unknown reasons. 6 Some other researchers then stressed out the demand for adjusting Iranian Maritime Code to the new changes of maritime world. However, they have mentioned that since many countries have not ratified Hague-Visby rules, amendments to the chapter 4 of Iranian Maritime Code, which is an adaptation from Hague Rules, are not necessary. 7 Hamburg Convention, a replacement of Hague and Hague/Hague-Visby rules, came into force after the ratification of 20 th country, Zambia, on 1 November 19928 . However, it couldn't attract a large portion of world sea trade owing to the belief that Hamburg Rules are in accordance with the interests of cargo owners and 6 Najafi Asfad, M , Op.cit. ,pp.8-9 7 Fanaii, M. (1998). Iranian Maritime Code and the Necessity for its Revision 2. Payam Darya Monthly, (71), 17-17. hard on ship-owners 9 . Nonetheless, with the advent of the Rotterdam rules, a balance was created between two interest groups. It is believed that not only does Rotterdam Rules balance the interests of carriers, shippers, freight forwarders, insurance companies, and governments, but also it modernizes the trends of sea trade toward uniformity. 10 In addition, considering modernization of Iranian Maritime Code, the innovations of Rotterdam Rules are so outstanding that cannot be disregarded; namely, the period of liability, seaworthiness, burden of proof, and care of cargo. Furthermore, as FOUR ship-owner groups have welcomed a call by the European Parliament for EU member states to support the Rotterdam Rules,11 the future of Rotterdam Rules seems promising. Above that, the prediction for U.S. ratification of the Convention is not far beyond imagination since it played the leading role in the negotiations and much of the Convention is on a par with the efforts of Maritime Law Association of the U.S to remake the United States Carriage of Goods by Sea Act ("COGSA"), and although that statute was never enacted, the final agreed upon language submitted to Congress was generally viewed as a reasonable compromise among the various U.S. shipping interests. 12 Therefore, Iran must take the preliminary steps toward modernizing its maritime law under the influence of Rotterdam Rules whose worldwide ratification is not far-fetched. Furthermore, there would be numerous advantages for this 9 LawTeacher, UK. (November 2013). Hamburg Rules For International Carriage. http://www.lawteacher.net/freelaw-essays/international-law/hamburg-rules-for-international-carriage.php?cref=1 10 Mbiah,K. (n.d.). Updating the Rules on International Carriage of Goods by Sea: The Rotterdam Rules. 1-1. Last access October 4, 2015, Available at: http://www.comitemaritime.org/Uploads/Rotterdam Rules/Paper of Kofi Mbiah.pdf country upon the international coordination. Some of the major matters of international conventions which have undergone the changes are discussed here:

A. Period of Liability

Article 52 of Iranian Maritime Code determines the period of carriage of goods in subparagraph 8:" The Carriage of Goods is from the time when the goods are loaded until the time they are discharged from the ship." This article is a mere translation of Hague Rules and Hague-Visby Rules 13 . It then defines the period of "Tackle-to-tackle" in subparagraph 9 of Article 52: "Loading usually starts from the time when the ship's tackle is hooked onto the cargo, which the shipper has prepared for loading from the quay, platform or other means of carriage and lifts the cargo; and, the discharge finishes when the hook releases the cargo in the quay, platform or other means of carriage for this purpose." 14 There is a very famous case of "Pyrene CO., LTD. V. Scindia Steam Navigation Co.,LTD. in this regard which has elaborated on many issues. In August 1948, the plaintiffs entered into a contract of carriage with the government of India, through a department of the government ("I.S.D") by which they agreed to sell to the Indian government a number of airfield crash tenders, f.o.b. London.

The arrangements for the carriage were made by I.S.D's agents through one of the defendant's ships for loading under the contract. The plaintiffs had one of the 13 "International Convention for the Unification of Certain Rules of Law relating to Bills of Lading" (Hague Rules/amended by The Hague-Visby Rules). Article 1(e) 14 Iranian Maritime Code1964 tenders delivered to the port of London for loading on board the ship. The tender was dropped and damaged in the course of loading, but before it was across the ship's rail by the defendant's stevedores. A bill of lading subject to The Hague Rules was later issued to cover the whole shipment, but with the tender deleted from it. The plaintiffs had the tender repaired and claimed in tort the amount of the cost repair from the defendants. The defendants admitted liability, however asked for limitation of liability under Article IV (5). Counsel contended that the accident occurred outside the period specified in article I(e) , so article IV(5) which limits liability and all other rules regulating the rights and responsibilities of the shipowner would not apply. However, it was later protested that such an argument is fallacious because even in the most restricted meaning possible for "contract of carriage", for example the period of the voyage, the loading of the goods would still relate to the carriage on the voyage and so be within the "contract of carriage."15 How could the counsel have been able to put forward an argument, if the ruling conventions had been the Rotterdam Rules?

Article 12 of Rotterdam Rules mentions the Period of responsibility of the carrier:" The period of responsibility of the carrier for the goods under this Convention begins when the carrier or a performing party receives the goods for carriage and ends when the goods are delivered." 16 This "door-to-door" responsibility period includes sea leg as well. 17 Therefore, such an expansion would preclude the suspicion of whether or not being under the tackle-to-tackle period. This change was a tread toward breaking the tradition which made itself consistent with the intellectual and economic custom prevailing at the time when the negotiations were taking place, attracting focus on globalization, liberalization, and growth.18 Door-to-door application of Rotterdam Rules prolong the period of carrier's liability. Whereas in Hague, and Hague/Visby Rules this period was from tackle to tackle (article 1, rule (e)). In a door to door transport, the period of liability of the carrier will be extended to the time when the goods are at a port terminal waiting for the carriage or delivery. 19 So, in the above mentioned case, such broad liability could have hampered the counsel of his claim.

The Rotterdam Rules have not only extended the period of liability of the carrier, but also has defined due diligence in a broader view which includes receiving and delivering the goods as well. Therefore, the carrier is obliged to be well informed of the goods to fulfill its duty. 20 The Rotterdam Rules impose the duty of receiving and delivering the goods on the shoulder of the carrier. 21 However the carrier's liability is determined "tackle-to-tackle" in Hague and Hague/Visby Rules. 22 The similar case can be found in Iranian petitions as well. There was a case in By making a pleading,the defendant claimed that primarily, the suing time limit was passed and later asserted that no damage to the equipments had been caused according to custom certificate (verbal process in port). However, after providing the expert opinion approving the damage to box number 21/30, the defendant claimed the damage had been due to sea turbulance and seacarrier should not be responsible to compensate the loss.On the other hand, the damage had occurred during dischare done by the discharge contractor .The defendant requested to refer the problem to expert board, but the expert cost remained unpaid.

The Court resorted to expert opinions and complementary statements which cleared the fact that the discharge document had been signed by the defendant and had certified that three boxes with number 21/30, 22/30 and 24/30 boxes had been broken, but the content had remained intact. However, after the evaluation of insurance expert, it'd been certified that the content of one box had been damaged 4% during loading and discharge and the value of damage was 11031285 determined by the selected expert. As there were not enough documents and reasons implying that loading and discharge had not been the duty of sea carrier so as to approving non-liability, and since the damage had not occurred in the voyage period so as to be applied to the perils of the sea and resulting in non-liability, and since the responsibility of carrier according to article 377 and 386 of commercial law and article 52 and 54 of civil law in delivering the cargo intact to the destination is absolute, and since the request was made within one legal year of discharging time, the defendant plea was denied and according to above explanation and articles 198, 519 and 522 of civil law and article 30 of insurance law, defendant was condemned to pay 11.031.000 Rials for the original of request and value of 1.665.800 Rials for judgment cost and expert cost and honorarium of juridical representatives as well as to pay delay loss from 85.4.26 up to payment time to plaintiff based on inflation rate which is announced by central bank. The issued verdict is revisable within 20 days after imparting in Tehran courts. 23 Although the sea carrier could have proven enough evidences alleging that loading and discharge were not his duty, how could he have affirmed exculpation, had the Rotterdam Rules been applicable? Even if he had had enough evidences, the Rotterdam rules would have announced him responsible even in discharge and loading.

One other weakness of Hague Rules which is so called 'before and after the problem' is during the additional time in which the goods are under the control of the carrier outside the tackle to tackle period. Article VII provides that the parties are free to discuss their own terms in respect of care of cargo before loading and 23 Case of Islamic Republic of Iran Shipping Lines, Branch 3 of Juridical Court of Tehran after discharge. 24 However, it can be assumed that under Hague Rules and Hague-Visby rules the carrier would be relieved of sufficient care and custody. In Hauhaea v Laurabada Shipping Services Ltd [2005] PGDC31; DC200(13 July 2005) there was a case put before the district court of justice in Papua New Guinea in which the relevant law is Sea Carriage of Goods Act 1951. Schedule 1 of the Act which is similar to Hague Rules defines "carriage of goods" the period of time when the goods are loaded to the time they are discharged from the ship. It also specifies a Bill of Lading is a contract of carriage. 25 The complainant bought 5 x 44 drums of zoom and 3 x 44 kerosene to be shipped to Ihu, Gulf Province. He had arranged with the defendant company to ship his goods, and a usual bill of lading was issued after payment. Upon delivery, one drum was not received and recorded lost. On the second trip of the complainant, he bought 10 drums, and after the payment and issuing the bill of lading, and shipment, he only received 7 drums. He visited the company office and alleged that four of his drums were lost between port of loading and port of delivery. He pleaded to the court seeking compensation.

However, the court held that the Clause 6 of issued Bill of Lading expressly limited the liability of the defendant to losses incurred during the period of time the goods are on the ship itself, and here the complainant failed to prove that the loss had occurred at the time they were loaded on the ship to the time they were discharged at Ihu port and only in these circumstances the defendant's liability was limited to the losses. So the court found the defendant not reliable. 26 How would the verdict have altered under the Rotterdam Rules? The district court found that the loss of power was caused by a fortuitous combination of events and that the vessel was seaworthy when it left port. Folger Coffee and Gulf Insurance maintained that the defendant was not entitled to general average because the vessel was unseaworthy under the Carriage of Goods at Sea Act, 46 U.S.C. § § 1300-1315. Under COGSA, once the vessel establishes that a general average act occurred, the cargo owner must prove that the ship was 27 Iranian Maritime Code 1964 unseaworthy at the start of the voyage 28 and it caused the general average event 29 .

If the cargo owner proves unseaworthiness, the sea carrier can seek to prove that he exercised due diligence to make the vessel seaworthy prior to the voyage. The district court held that the evidence did not support the proposed finding that the vessel was unseaworthy due to a defective emergency electrical system. The district court held that the vessel was seaworthy when it left port and that the open skylight and the vent covers were not an issue of seaworthiness but a management decision. 30 Regarding seaworthiness, a case was brought to Branch 3 of Shahid Beheshti https://www.law.cornell.edu/uscode/html/uscode46a/usc_sec_46a_00001304----000-.html 29 General Average Event: In its simplest form, general average is a voluntary act of sacrifice at a time of marine peril, ordered by the master for the common safety of the ship and cargo, in which all interested in the common venture (the owner of the ship, the owner of the cargo, and sometimes the party entitled to collect freight payment) contribute to the payment of that sacrifice. Clark, Atcheson & Reisert, Sea Law Volume 1, available at: http://navlaw.com/doctrine-of-general-average-ancient-unique-admiralty-law available documents and expert opinions, and paid the damage value as 310.765.550 Rials to the owner and received the receipt. Since, according to article 386 and 388 of commercial law, the defendant's responsibility as the sea carrier was evident, he pleaded to receive the loss value on behalf of the cargo owner.

The defendant presented a pleading claiming that the complete cause of loss was the sea storm and the sea carrier should be exempt from liability. In another document, the defendant claimed that 1115 packs had been drenched and the loss caused by discharge and loading would not ascribe to him. The court declared that the dossier contents showed damage evidence to the cargo signed by the captain as well as dampening proof of 1115 packs of rice, and according to article 54 of maritime law, the sea carrier was responsible to exercise due diligence before and at the beginning of the voyage to properly man, equip and supply the ship and makes the preparation of storehouse and cooling chamber and all other parts of the ship for carriage. Also, the expert opinions provided that the water had been penetrated to the storehouse through welded points of store number 5 and had caused the damage, so the sea storm was not adequate reason for loss and didn't have any effect in the loss. Therefore, according to articles 52 and 54 of maritime law as well as articles 377 and 386 of commercial law, the sea carrier was responsible to compensate the loss. As that loss consisted of two damages and the compensation of loss during the voyage due to shipment situation (free in and free out) was on carrier's shoulder and the loss which had occurred at the time of discharge was not the defendant's liability and discharge contractor would be responsible. The damage value was valid and acceptable according to expert opinions and could be complied with. The value of 173.886.480 Rials was estimated and announced as original value. Other claims of complaints were rejected due to lack of adequate reason and documents.

Rotterdam Rules has maintained the traditional obligation of the carrier to exercise due diligence to make the ship seaworthy and to care for the goods, but it demand the continuity of first of such obligations. 31 It can be concluded that, had these cases been under Rotterdam Rules, the carriers would have become liable for not exercising due diligence along the sea voyage. However, since Hague Rules, Iranian Maritime Law and Carriage of Goods of Goods at Sea Act require the exercise of due diligence in seaworthiness only before and at the beginning of voyage, the carrier is relieved from liability.

C. Liability Regime and Burden of Proof

Article 55 of Iranian Maritime Code specifies the conditions of immunity of the sea carrier. 32 As Iranian Maritime Law adopts this section from Hague and Hague Visby Rules, it exempts the sea carrier from force majeure and the conditions of article4. However, unless the carrier has carried out due diligence, he is not exonerated from liability; therefore, the proof of exercising due diligence rests upon his shoulder. Also, the loss or damage to the goods arising from fault of the master, mariner, pilots or the servants in navigation or in the management is not sea carrier's liability 33 . After proving due diligence, the claimant must establish causal relationship between damage and unseaworthiness. In this situation, if the 31 Berlingieri, F. (2009, November 5). A Comparative Analysis of The Hague-Visby Rules, the Hamburg Rules and the Rotterdam Rules. Paper Delivered at the General Assembly of the AMD, 6-6. 32 Article 55 of Iranian Maritime Code 1964 33 Berlingieri,F.,Op. cit.,p.8 unseaworthiness is proved, the sea carrier shall rely on article 4 regarding the events which are considered perils of the sea or act of God. 34 As Hamburg rules determine the liability of sea carrier to the period of port-toport, the allocation of the burden of proof is limited only to the period that the goods are in his charge. However, the liability of sea carrier under this convention is based on the presumed fault or neglect, but with respect to certain cases the provisions modify this rule. 35 The Rotterdam Rules has taken a moderate position between sea carrier and cargo owner with a combination of Hague Rules and Hamburg Rules. Article 17(a) of Rotterdam Rules invites the claimant to prove the attribution of loss, damage or delay to the sea carrier during his period of liability which is door-to-door. So the initial burden of proof is claimant's responsibility. Then the sea carrier will be relieved from the liability if the cause is not concerned to him or any other person under article 18. 36 Besides, the excepted peril of the sea would relieve the sea carrier from liability. Accordingly, if the carrier cannot prove either of the counter proof, the presumption of his fault will remain sustained. 37 However, there is an additional clause in Rotterdam rules in comparison to the Hague-Visby rules in which the claimant can provide the counterclaim in regard to the fault of the carrier and to prove that the event is not one the exemptions enumerated in article 17, or the fault of the carrier or a referred person in article 18 contributed to the event which the carrier relies on, or unseaworthiness, uncargorworthiness, improper crewing, equipping, and supplying the ship caused the event. The qualifications of the third stage demonstrate that there are only some of the enumerated exception to which the carrier's fault might contribute; naming, saving or attempting to save life at sea (article 17, paragraph 3(l)) 39 .In fact in contrast to the Hague-Visby Rules in which the claimant must prove his allegation, in Rotterdam Rules the claimant's burden of proof is lighter owing to the fact he should just prove the loss, damage or delay was 'probably' due to unseaworthiness. 40 Besides, the exemption list does not put an end to the liability.

The Atlantic Island Case (Cour de Cassation, July 7 1998) was met with criticism. In this case, metal component parts of a grain silo were to be shipped from Europe to the French Caribbean. Metal components of a grain silo were to be shipped from Europe to French Caribbean. They were packed into open-top containers and stowed on deck at the top of the stow. During the crossing they were encountered with heavy weather; however, it was not unexpected for the winter time to face that weather. The court held that the 'peril of the sea' must be distinguished from 'force majeur', for the later the test includes unpredictability and insurmountability. Neither is required for a peril of the sea defense. The court stated that in a combined situation of peril of the sea and fault of the sea carrier, the latter prevails. This would amount to a fault on the part of the carrier and so the carrier wouldn't have the right to benefit from any expected peril under Hague/Hague Visby rules. 41 39 Zhao, L. (n.d.). Liability Regime of the Sea Carrier under the Rotterdam Rules. 4-4. Retrieved September 24, 2015, Available at: http://www.hksoa.org/contents/attachments/Presentations/2013/IFSPA2013/Papers/M28.pdf 40 Berlingieri,F.,Op. cit.,p.9 41 International Law Office -Legal Newsletters, Law Firm Directory and Legal News. (2000, January 20). Last access: September 24, 2015, Available at: http://www.internationallawoffice.com/account/login.aspx?ReturnUrl=http://www.internationallawoffice.com/Accou This opened up criticism to the critiques since the Brussels Conventions only remove the carrier's right to rely upon an expected peril if he has not exercised due diligence to make the ship seaworthy before and at the beginning of the voyage.

Here, the carrier had only improperly stowed the cargo.

In this regard, considering the Rotterdam Rules as the ruling conventions, most the suspicions would be eradicated. Primarily, the Rotterdam Rules expect the sea carrier to exercise due diligence throughout the voyage. Second, when the sea peril and fault the carrier has combined, the court would be at higher percentage of certainty to announce the dominance of fault, since invocation of peril of the sea might be faced counter proof in Rotterdam Rules as well, and in contrast to Hague Rules it would not put an end to the claims.

What is even more beneficial to the claimant in Rotterdam Rules is the extension of sea carrier's duty to delay of delivery which leads to punctuality of dispatching the goods. Therefore, not only does the Rotterdam Rules keep its distance from the strict regime of liability of Hamburg Rules, but also it ameliorates the Hague Visby Rules by providing 'delay' among the factors resulting in liability and also longer period of liability for the sea carrier. However, it confirms its modest position by granting freedom of contract concerning live animals. 42 This can be an important aspect for Iran since according to the statistics, until January 2014, Iran exported nt/ Login.aspx?ReturnUrl=http:%2f%2fwww.internationallawoffice.com%2fnewsletters%2fdetail.aspx%3fg%3db43c 44fc-d988-433 42 Rotterdam Rules Article 81. Special rules for live animals and certain other goods 717'863'000 $ of live animals and animal products which are about 2.8% of Iran total value of exports. 43

D. Care of Cargo

Article 54 of Iranian Maritime Code is a match for Article 3 of Hague/Hague Visby Rules. Aside from exercising due diligence, the carrier must properly man, equip, and supply the ship, making the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried fit and safe for reception, carriage and delivery. It then explains the duty of loading, handling, stowing, carrying, keeping and caring for and discharging the goods properly and carefully.

Having extended the exercise of due diligence to the whole voyage, the Rotterdam Rules also preserve the carrier's obligation as article 3 of Hague/Hague Visby Rules. Besides, as mentioned previously, the door-to-door obligation of the carrier includes the delivery as a care of cargo obligation.

In September 26, 2009 there was a case was submitted to branch 3 of Judicial court of Tehran, in which Iran Insurance Company claimed 672000 $ and all the redress. In sum the claimant explained that the carrier had undertaken the carriage of insured goods of the company and in the voyage, the insured goods had faced some damages. The insurance company paid for the loss of the cargo owner and sought compensation for the loss. The court held that the loss was one of the applicable inclusions of perils of the sea and so the carrier would not be reliable and dismissed the appeal. And since the carrier sold the unusable goods, and didn't import it to the country, the lawyer of Insurance Company sought redress invoking 43 Exchange of 71 Billion Dollar of Iran with 178 Countries/ How much was the Export of Live Animals and Animal Products? (2014, February 11). Last access October 6, 2015. transaction of other property, since in the Civil Code of Iran transaction of other property is inoperative unless provided by the consent of the owner 44 . The court held that since the cargo owner hadn't paid for the expenses of freight, clearance, marketing, and vending, the cargo owner had waived his right of possession.

Therefore, according to The Civil Code of Iran, anyone possessing an unowned property would be its owner, 45 and the carrier was announced free of redress. 46 It goes without saying that the carrier couldn't have been able to sell the cargo, and further he should have been responsible for all the expenses and redress under the Rotterdam Rules.

This can be also taken into consideration in George F. Pettinos, Inc. v. American Export Lines, 68 F. Supp. 759 (E.D. Pa. 1947). The suit was brought for damage and to shortage to one of 666 bags of dust of plumbago and the other 500 bags of lump plumbago, in two shipments of plumbago from Colombo to Philadelphia abroad the "Exbrook". Upon arrival in Philadelphia, a large number of the burlap had burst open in the process of unloading and had been found rotted probably due to fresh water contact. Later on, a bulk plambago was rebagged and shortage in weight had been reported. The claim was for the cost of rebaggaing and other costs, besides short delivery. As the damage had been caused by fresh water, it had been concluded that it might have been due to rain, uncovered ventilators, moisture in other cargo nearby, or sweat. According to the Carriage of Goods by Sea Act U.S.C.A 47 , if the carrier showed due diligence in protecting the shipments from moisture during the time they had been in its hand, he wouldn't be bound to show how the moisture had penetrated into the bags. The testimony of the master of the ship was accepted leading to the acceptance that no water had entered No.2 hold and that the due diligence had been exercised. The libellant put forward the counter proof stating that the stowage had been improper. As there wasn't any testimony to this claim it remained a mere argument. The judge held that the respondent had sustained the burden upon it, and concluded that the breaking of the bags had not been due to the fault of the ship and so the libellant couldn't avail itself of that as an excuse for its failure to have the shipment promptly rebagged and weighed. 48

E. Innovations of Rotterdam Rules in Comparison and by itself

While Hamburg Rules mention the possibility of the entitlement of the carrier to carry the cargo on deck if such carriage is in accordance with an agreement with the shipper or with the usage of the particular trade, 49 the Rotterdam Rules takes another standing. Rotterdam Rules accepts carriage of goods on deck as far as such a carriage is obliged by the law and the cargo is carried on containers or vehicle fit for this type of carriage, and also the carriage on deck is in accordance with the contract of carriage or the customs. 50 In respect to live animals, the Hamburg Rules regulate the liability of the carrier 51 , while Rotterdam Rules provide freedom of contract 52 . It can be noticed that The Rotterdam Rules provide a specific article for live animals and certain other goods reminding of the subtlety of organizing this convention.

48 George F. Pettinos, Inc. v. American Export Lines, 68 F. Supp. 759 (E.D. Pa. 1947). (n.d.) "Contract of carriage" means a contract in which a carrier, against the payment of freight, undertakes to carry goods from one place to another. The contract shall provide for carriage by sea and may provide for carriage by other modes of transport in addition to the sea carriage.

F. Conclusion

The above mentioned aspects of maritime law are only a handful of facets of modern maritime trade. Rotterdam Rules have tried to keep up with the speedy modernization of multimodal transport and have tried to keep a balance between many interests. Although the set of rules does not have force of law, they expect the carrier to be contractually faithful to his duties which do not decrease the merit of the Rotterdam Rules. Some scholars have stressed out that the guard of legislator toward Rotterdam Rules is article 90 in which no reservation is permitted and can lead to conflict with other convention. However it is further suggested that these conflicts should not make worries for the legislator since the conflict resolution principles have been governed in the convention especially in chapter6, article 26 and chapter 17, articles 82 to 87. 55 According to the long term objectives of Iran to increase the trade volume with neighboring countries 56 , and to make the necessary measurements for the increase of foreign transit goods passage up to 10% each

  seemed necessary for the Iranian Maritime Code to be harmonized under the initiatives of these conventions. Although Iranian Maritime Code had some amendments regarding Decay of Cargo (Article 66), Ship Command (Article 80 recurrent2), Navigation and ship management (Article 80 recurrent 3), Confidence in Shipworthiness (Article 80 recurrent4), Obligation and responsibility of the ship commander in receiving and carrying the cargo (Article 81), Discharge and loading (Article 81 recurrent) 5 , it does not have a new perspective into the articles 52-55 which comply with Hague and Hague/Visby Rules in liability Of Sea Carrier.

  2008 in Branch 3 of Juridical Court of Tehran, in which Iran Insurance Stock Company requested for the demand of loss against Iranian Shipping Line (IRISL Group) claiming 11.031.000 Rials in addition to all the legal remunerations including honorarium of juridical representatives and the loss of delayed payment. The plaintiff explained that Isfahan Steel Company requested freight insurance for the equipment of thermal powerhouse and grueling parts by Insurance Policy #4.11.10177.79 and the defendant company had committed the shipment of the equipment according to bill of lading DO 653 and had carried the equipment by Iran-Bayan vessel from Germany and china to Iran. According to the hearing session for damage investigation, done on 4.10.2005, part of the cargo had been damaged and Plaintiff Company had paid the damage value to the owner after evaluating the damage, and according to article 30 of insurance law demanded the damage value on behalf of the owner as representative.

24

  Wilson, J. F., Op. cit., pp. 181,182 25 Dependent State of Papua New Guinea, Chapter 261., SEA-CARRIAGE OF GOODS ACT 1951, SCHEDULE 1 -RULES RELATING TO BILLS OF LADINGB. SeaworthinessIn Article 54 of Iranian Maritime Law the exact responsibilities of seaworthiness in Hague Convention is attributed to Sea Carrier. In regard to this responsibility, article 54 mentions: "The carrier shall be bound before and at the beginning of the voyage to exercise due diligence to a) make the ship seaworthy; b) properly man, equip and supply the ship; c) arrange and prepare the holds, refrigerating and cool chambers and all other parts which are used for carriage." 27 There seems to be similarities between Iranian Maritime Code and Hague Rules in this regard too.In the United States Courts of Appeals for the fifth circuit, there was a dispute between The Folger Coffee Company; Gulf Insurance Co., (Plaintiffs-Appellants) Versus Olivebank; Chairman Shipping Inco.; Safbank Line Limited; Andrew Weir Shipping Limited; Lykes Brothers Steamship Company, Inc., (Defendants-Appellees) in Southern District of Texas.The plaintiffs filed actions in district court seeking a declaration that the vessel was not entitled to general average and recovery for damage to cargo.

  Juridical Court in Tehran in 2009, requesting demand of loss. The plaintiff, Iran Insurance Join stock company, claimed demand against Iran Shipping Line requesting 310.765.550 Rials in addition to judgment and delayed payment loss explaining that Iran public commercial parent company requested freight insurance for 31000 tons of purchased rice and the defendant company committed the shipment of rice according to insurance policy number 18354 from Thailand to Chabahar. According to the damage investigation, the damage had been caused during the carriage. Complainant Company calculated the loss according to the 28 United States Code: Title 46a,1304. Rights and immunities of carrier and ship | LII / Legal Information Institute. (n.d.). Last access September 21, 2015.

The

  Rotterdam Rules have also kept up with the new trends of maritime tradition by introducing maritime performing party in article 1.7 as a party who performs or undertake any of carrier's obligations during the voyage. His liabilities are mentioned in article 19. It also facilitates the difficulties of jurisdiction in previous conventions. It allows exclusive jurisdiction upon meeting of requirements of article 67(2). 53 In addition, The Rotterdam Rules allow for Arbitration in article 75. The article mentions that the designation of the place of arbitration is binding between the parties. It also elaborates on Arbitration agreement in non-liner transportation in Article 76. All of these regulations can open up a new window of jurisdiction improvement for a country like Iran which is on the milestone of jurisdiction development. It also stand among other conventions by regulating carriage of goods by different modes of transport other than the sea in article 1.1. 54 This also contributes to the door-to door responsibility of the carrier. Article 8 of Rotterdam Rules establishes electronic transport records with the same effect. Article 9 and Article 10 also regulates the negotiability and replacement of negotiable records. What can better be at the service of Iran as a country which seeks its place in the worldwide speedy progressive maritime industry other than new methods of documentation? 53 Rotterdam Rules, Article 67Choice of Court Agreements, 2. A person that is not a party to the volume contract is bound by an exclusive choice of court agreement concluded in accordance with paragraph 1 of this article only if: (a) The court is in one of the places designated in article 66, subparagraph (a); (b) That agreement is contained in the transport document or electronic transport record; (c) That person is given timely and adequate notice of the court where the action shall be brought and that the jurisdiction of that court is exclusive; and (d) The law of the court seized recognizes that that person may be bound by the exclusive choice of court agreement. 54 Rotterdam Rules, Chapter 1 General provisions Article 1 Definitions, For the purposes of this Convention: 1.

  year 57 , and since this country should keep pace with the everyday change of modern world of maritime law, should it want a real progress in maritime transportation, Iran should prepare itself for a revolution in Maritime Law. This change will bring up the country to the accessible market of Europe and further to 55 Simaii Sarraaf, H., & Yari, M. (2012, May 24). Rotterdam Rules' Scope of Application; the Probability of Conflict with other Conventions and Rejection of Reserve. International Legal Journal; Center for International Legal Affairs of the President, 110-110.

  56 ettelaat newspaper. (2015, June 11). Last access September 25, 2015, from http://www.ettelaat.com/new/index.asp?fname=2015/06/06-10/22-45-23. 57 The Law of Quinquennial Development Plan of Islamic Republic of Iran (2011-2016). (2011, January 5). Last access September 25, 2015, from http://rc.majlis.ir/fa/law/show/790196 western countries by the improvement of trade exchanges according to the recent hope after lifting up the sanctions.

  Yuzhou, S., & Li, H. (2009). The New Structure of the Basis of the Carrier's Liability under the Rotterdam Rules. Uniform Law Review -Revue De Droit Uniforme, 931-943.

	38
	34 Hague-Visby Rules Article 4,2
	35 Hamburg Convention
	36 Rotterdam rules, Article17(2)

37

38 Rotterdam Rules article 17,5

  The Carriage of Goods by Sea Act, 46 U.S.C.A. § 1300 et seq

	44 Civil Code of Iran, Article 247
	45 Civil Code of Iran, Article 147
	46 Verdict #8809970226300500, September 26, 2015

47

Amending Bill of Maritime Code 1964[START_REF] Chami | The Obligations of the Carrier[END_REF]. Last access October 3, 2015, http://rc.majlis.ir/fa/legal_draft/state/821330

Law of Iranian Maritime Code Amendments. (2012, December 18). Last access October 3, 2015, http://rooznamehrasmi.ir/Laws/ShowLaw.aspx?Code=421

Status. (n.d.). Last access October 4, 2015, http://www.uncitral.org/uncitral/en/uncitral_texts/transport_goods/Hamburg_status.html

Ship-owners praise EU for urging support of Rotterdam Rules. (n.d.). Last access September 21, 2015, http://www.shippingonline.cn/news/newsContent.asp?id=15763

The Rotterdam Rules. (2010). Last access October 4, 2015, Available at: http://www.blankrome.com/index.cfm?contentID=37&itemID=2117

Pyrene Co. LTD. v. SCINDIA Steam Navigation CO., LTD available at: www.mcgill.ca/files/maritimelaw/ch9.pdf(2015)

Rotterdam Rules 2009

United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, Resolution adopted by the General Assembly, (2014, June 1). Last access September 21, 2015, http://www.uncitral.org/pdf/english/texts/transport/rotterdam_rules/Rotterdam-Rules-E.pdf

[START_REF] Ortiz | [END_REF]. What Changes in International Transport Law after the Rotterdam Rules? Available at http://heinonline.org/HOL/LandingPage?handle=hein.journals/droit2009&div=36&id=&page

Chami, D. E. (n.d.). The Obligations of the Carrier. Available at: http://www.rotterdamrules2009.com/cms/uploads/Def.%20tekst%20Diego%20Chami%20-%20Obligations%20of%20the%20Carrier.pdf

 20 Katsivela, M. (n.d.). Overview of Ocean Carrier Liability Exceptions Under the Rotterdam Rules and The Hague-Hague/Visby Rules. Revue Générale De Droit, 419-419. Last access

September 21, 2015, Available at : https://www.erudit.org/revue/rgd/2010/v40/n2/1026957ar.pdf21 Rotterdam Rules, Article13 Specific obligations 1." The carrier shall during the period of its responsibility as defined in article 12, and subject to article 26, properly and carefully receive, load, handle, stow, carry, keep, care for, unload and deliver the goods."22 Hague Rules, Article1 (e):" "Carriage of goods" covers the period from the time when the goods are loaded on to the time they are discharged from the ship."

Maritime Law Virtual Database. (2005, July 13). Last access September 21, 2015, Available at: http://www.paclii.org/maritime-law/case-summaries-sea-carriage/

Folger Coffee v. Olivebank (5th Cir. 2000). (n.d.). Last access September 21, 2015, from http://www.admiraltylawguide.com/circt/5thfolger.html

Acknowledgement

 I acknowledge the support of Ms.Khosravi in Iranian Shipping Line ) IRISL) for providing a warm cooperation for completing this article.

 I also dedicate my appreciation to Dr.Morteza Najafi Asfad who helped me for finding the cases of this article.


Yi Xiang

J Wang

Ben-Heng Xiao

Dr Yi-Xiang J Wang
email: yixiang_wang@cuhk.edu.hk

Fine turning the cutpoint T-score as an epidemiological index with high specificity for osteoporosis: methodological considerations for Chinese population Running title: Fine turning the cutpoint T-score of osteoporosis for Chinese

Fine turning the cutpoint T-score as an epidemiological index with high specificity for osteoporosis: methodological considerations for the Chinese population

Ben-Heng Xiao, Yi-Xiang J

Osteoporosis is a skeletal disease characterized by low bone mass and microarchitectural deterioration of bone tissue with a consequent increase in bone fragility and susceptibility to fracture. The clinical significance of osteoporosis lies in the fractures which occur, and the important fracture is hip fracture. Among Caucasian women, the lifetime risk of hip fracture at the age of 50 years is around 16%, and 30% is a conservative estimate of the risk of any osteoporotic fractures [1]. According to the WHO criteria, T-score is defined as: (BMD patient -BMD young normal mean )/SD young normal population, hereby BMD is bone mineral density and SD is standard deviation. In adult women, the cutpoint value of patient BMD 2.5 SD below BMD young normal mean satisfies that, when the femoral neck is measured, osteoporosis prevalence is about 16.2% for those age ≥50 yrs, the same as the lifetime risk of hip fracture [1,2]. If other sites are also considered, this cutpoint value identifies approximately 30% of postmenopausal women as having osteoporosis, which is approximately equivalent to the lifetime risk of fracture at the spine, hip, or forearm. It is considered that this portion of population has faster bone mass loss, and interventions should be taken ideally before fragility fracture occurs. The original WHO classification was intended for a population-based prevalence with a classification of osteoporosis patients having T-score ≤ -2.5 [1]. The National Health and Nutrition Examination Survey (NHANES) provides a reference population for proximal femur BMD of Caucasians. East Asians generally have lower measured BMD; thus, regions specific reference database have been published.

The osteoporotic fracture prevalence is substantially lower among Chinese compared to Caucasians, both for men and women. For example, Bow et al [3] reported that the hip fracture rates for Hong Kong women aged 65 to 69 years old were 33% of that of the Caucasian women in the same age group. In the study of Shin et al [4], the prevalence of self-reported nontraumatic fracture was US Caucasian men : 17.1%; US Asian men : 10.5%; and Hong Kong Chinese men: 5.6 %. Lauderdale et al [START_REF] Lauderdale | Hip fracture incidence among elderly Asian American populations[END_REF] estimated US national nontraumatic hip fracture incidence rates, reported the fracture ratio relative to Caucasians being 0.30 for Chinese women and 0.42 for Chinese men. Using the population-based (Canada) Manitoba BMD Program registry data, Leslie et al [START_REF] Leslie | Fracture prediction from FRAX for Canadian ethnic groups: a registry-based cohort study[END_REF] reported that, at baseline ' prior fracture' was recorded in 20.1% of the Caucasians women (mean age: 64.7 yrs) and 11.7% of the Asian women (mostly Chinese and Filipino, mean age: 62.8 yrs). During follow-up (8.8±5.1 yrs for Caucasians and 6.5±5.0 yrs for Asians), incident hip fracture rate per 1000 person years was 3.6 for Caucasians and 0.6 for Asians. According to the New York State inpatient hip fracture data from 1988 to 2002, Fang et al [START_REF] Fang | Variations in hip fracture hospitalization rates among different race/ethnicity groups in New York City[END_REF] reported that the annual age-adjusted hip fracture incidence rate per 100,000 was 459 and 230 in Caucasian women and men, and 174 and 104 in Asian American women and men. These data concur with the reports that elderly Chinese lose bone much more slowly. In a study comparing Caucasian Canadian and Chinese Canadian, Morin et al [START_REF] Morin | Differences in fracture prevalence and in bone mineral density between Chinese and White Canadians: the Canadian Multicentre Osteoporosis Study (CaMos)[END_REF] reported that, for the participants aged >50 years old at baseline, 5-year total hip BMD change (g/cm 2 ) was -0.000 for Chinese women and -0.013 for Caucasian women, -0.003 for Chinese men and -0.013 for Caucasian men. Sheu et al [START_REF] Sheu | Osteoporotic Fracture in Men (MrOS) Research Group. Age-related decline in bone density among ethnically diverse older men[END_REF] reported a USA-based study with an average follow-up of 4.6 years in 3,869 Caucasian and 145 Asian men aged ≥65 years (mean ages: 73±5 and 72±5 years, respectively). The annual rate of decline in BMD at the femoral neck was 0.32% and 0.09%/year respectively for Caucasians and Asians.

Earlier studies reported that, compared with Caucasians, prevalence of osteoporotic vertebral (OVF) among Chinese was similar or even higher [START_REF] Kung | Epidemiology and diagnostic approaches to vertebral fractures in Asia[END_REF]. However, Recent evidence suggests that, compared with Caucasians, relative prevalence of OVF follows the same pattern as other clinical fractures [START_REF] Kwok | Prevalence and risk factors of radiographic vertebral fractures in elderly Chinese men and women: results of Mr. OS (Hong Kong) and Ms. OS (Hong Kong) studies[END_REF][START_REF] Wang | Much lower prevalence and severity of osteoporotic vertebral facture in elderly Hong Kong Chinese women than in age-matched Rome Italian women: a radiographic comparison study[END_REF]. A recent study shows Hong Kong Chinese women and Italian women (mean age both 74.1 yrs) had endplate and/or cortex OVF in 26% cases and 47% cases respectively; 9.5% Chinese women and 26% Italian women had OVF with ≥40% height loss [START_REF] Wang | Much lower prevalence and severity of osteoporotic vertebral facture in elderly Hong Kong Chinese women than in age-matched Rome Italian women: a radiographic comparison study[END_REF].

In our MrOS (Hong Kong) and MsOS(Hong Kong) studies, from baseline on, clinical spine fractures (mostly fragility fractures) were followed-up for 10 years for 1954 male participants, and for 9 years for 1953 female participants. Clinical spine fracture ≥ 1 time (i.e., at least one fracture incident) were recorded 133 cases and 273 cases per 100,000 person-years in men and women, respectively [START_REF] Wang | Much lower prevalence and severity of osteoporotic vertebral facture in elderly Hong Kong Chinese women than in age-matched Rome Italian women: a radiographic comparison study[END_REF][START_REF] Su | The predictive power of vertebral endplate/cortical fracture (ECF) for further osteoporotic fracture risk among community dwelling elderly Chinese. The 11th meeting of Chinese Society of Osteoporosis and Bone Mineral Research[END_REF]. In MrOS(USA) study which has the same enrolment strategy for participants as MrOS (Hong Kong) study, with 5995 cases followed-up for 4.7 years, Freitas et al [START_REF] Freitas | Osteoporotic Fractures in Men (MrOS) Research Group. Rate and circumstances of clinical vertebral fractures in older men[END_REF] recorded clinical spine fracture incidence of 216 cases/100,000 person-years.

As noted above, the cutpoint T-score was set at ≤ -2.5 primarily to satisfy the hip-based osteoporosis and hip fracture prevalence to be around 16% for the ≥50 yrs old Caucasian women. However, for both the most important hip fracture and the most common OVF, the prevalence among Chinese is less than half of those of the Caucasians. Elderly Chinese also lose bone much more slowly. Thus, in addition to using local reference database, an adjustment of cutpoint T-score for defining osteoporosis among Chinese should be applied, rather than adopting the Caucasian cutpoint T-score. As a way of example, we used three female hip BMD reference databases of Hong Kong, China Mainland, and Japan [START_REF] Lynn | Bone mineral density reference norms for Hong Kong Chinese[END_REF][START_REF] Zeng | The Prevalence of Osteoporosis in China, a Nationwide, Multicenter DXA Survey[END_REF][START_REF] Iki | Bone mineral density of the spine, hip and distal forearm in representative samples of the Japanese female population: Japanese Population-Based Osteoporosis (JPOS) Study[END_REF], and tested cutpoint Tscore adjustment (table-1, supplementary document-1). For example, if Hong Kong Chinese women osteoporotic hip fracture prevalence is 40% of Caucasians, then the cutpoint T-score for defining hip osteoporosis can be better set at ≤ -2.78. This would in agreement with the classification of Hong Kong being a 'medium risk territory' for hip fracture (as opposed to USA being a 'very high-risk' country) [START_REF] Kanis | International variations in hip fracture probabilities: implications for risk assessment[END_REF]. The principle presented here can also apply to osteoporosis in men and other BMD measure sites such as lumber spine. In recent Canadian studies, it is noted that East Asian are more likely to be diagnosed with osteoporosis based on BMD [START_REF] Lauderdale | Hip fracture incidence among elderly Asian American populations[END_REF][START_REF] Morin | Differences in fracture prevalence and in bone mineral density between Chinese and White Canadians: the Canadian Multicentre Osteoporosis Study (CaMos)[END_REF].

The original osteoporosis T-score ≤ -2.5 criterion aims at specificity [1]. In the case of hip fracture, the WHO criterion targets high specificity (generally 80%) for lifetime fracture risk at the expense of low sensitivity (generally about 30%) [2]. Thus, many fractures will occur in individuals with normal BMD values, but fracture risk is low. By contrast, fracture risk is very high in individuals with osteoporosis. On the other hand, BMD alone is less than optimal as an intervention threshold for many reasons. The significance of any given T-score to fracture risk depends on age and the presence of clinical risk factors. For any BMD, fracture risk is much higher in the elderly than in the young, with advancing age, the difference in the probability of fracture between the general population and those with a T-score of -2.5 SD diminishes.

Intervention threshold depends upon risk, life expectancy, and the benefits and side effects of interventions. With the increasing development of effective agents and price reductions, intervention threshold may be more relaxed for elderly people. Ideally, an intervention should be initiated prior to the diagnostic threshold is established, i.e., intervention should be more preventive. Fracture probability is used for cost-effectiveness assessment of interventions. The most commonly used tool for fracture probability assessment is FRAX, which calculates the 10-year fracture risk [START_REF] Kanis | Scientific Advisory Board of the European Society for Clinical and Economic Aspects of Osteoporosis (ESCEO) and the Committees of Scientific Advisors and National Societies of the International Osteoporosis Foundation (IOF). European guidance for the diagnosis and management of osteoporosis in postmenopausal women[END_REF]. For the case in Hong Kong, Kwok et al [START_REF] Kwok | Hip fractures are preventable: a proposal for osteoporosis screening and fall prevention in older people[END_REF] recommended that all men (aged ≥70 years) and women (aged ≥65 years) with a fracture-risk assessment-derived 10-year risk (hip fracture with BMD) ≥3% should receive ≥3 years of anti-osteoporotic treatment.

In conclusion, considering fragility risk is substantially lower in Chinese than Caucasians, we suggest the T-score for defining osteoporosis should be adjusted accordingly. This will be more line with the original definition of osteoporosis as a disease and will allow better international comparison of disease burden and epidemiological studies. BMD unit in g/cm 2 , BMD young : adopted value as reference BMD, SD young : standard deviation of the reference young subject data. BMD old : measured BMD of the subjects ≥ 50 yrs old. SD old : standard deviation of the subjects ≥ 50 yrs old. BMD os : the cutpoint to define osteoporosis. # : prevalence of osteoporosis according to the defining criterion of T-score ≤-2.5. * : osteoporosis prevalence listed in [START_REF] Lynn | Bone mineral density reference norms for Hong Kong Chinese[END_REF] is 16%; based on the data provided we derived 10.75%. Caucasian rate of hip fracture prevalence is assumed being 16%, thus 1/2, 40%, and 1/3 rate is 8%, 6.4%, and 5.33% respectively. ¶ : these are the values cited by [START_REF] Kanis | International variations in hip fracture probabilities: implications for risk assessment[END_REF].

Table - 1

 - . Impact of hip fracture prevalence value on the estimation of cutoff T-score value and osteoporosis prevalence.

						T-score ≤ 2.5	1/2 Caucasian rate ¶ 40% Caucasian rate	1/3 Caucasian rate
		BMD young SD young BMD old	SD old	BMD os prevalence # BMD os	T-score	BMD os	T-score	BMD os	T-score
	Hong Kong	0.89	0.11	0.7509	0.11	0.6150	10.75%*	0.5969	-2.6645	0.5837	-2.7845	0.5727	-2.8845
	China Mainland	0.865	0.126 0.7002 0.1259 0.5500	11.7%	0.5239	-2.7071	0.5088	-2.8270	0.4962	-2.9270
	Japan	0.801	0.106 0.6569 0.0913 0.5360	11.6%	0.5291	-2.5651	0.5181	-2.6689	0.5090	-2.7547

Supplementary document 1.

An example of calculation