Multimodal Transport Law

Michiel Spanjaart

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351819350
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

An accessible introduction to multimodal contracts of carriage, Multimodal Transport Law works from general principles toward specific, technical problems. Adopting an international approach, it addresses such key topics as:

• Contracts of carriage
• Transport documents
• The parties to a contract of carriage
• International conventions on the carriage of goods
• Multimodal situations covered by unimodal conventions
• Conflict of laws
• The rules applicable to the individual legs of multimodal contracts of carriage
• The Rotterdam Rules

Providing a close examination of the relevant rules, regulations and case law, this is essential reading for law students, useful for claims handlers and practitioners, and of interest for academics and legislators seeking a better appreciation of multimodal contracts of carriage.

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1    Introduction

A unimodal contract of carriage requires only one single means of transportation to carry the goods to their destination. This means of transportation will often be a ship, a train, a truck or an airplane. A multimodal contract of carriage requires the use of more than one means of transportation to carry the goods to their destination, for instance one leg by truck from the factory to the port, followed by a sea leg to the port of discharge, and completed by a rail leg to the final destination.

The added value of multimodal transport

The added value of multimodal contracts of carriage can perhaps best be illustrated with an example. A Dutch seller and an American buyer agree on the sale of a shipment of ham. The seller operates from a refrigerated warehouse in the port of Rotterdam; the buyer has adequate storage facilities in the port of Baltimore. The seller loads the shipment of ham in a 20-foot reefer container, and instructs a carrier to carry the goods by sea from Rotterdam to Baltimore for delivery to his buyer.

This contract for the carriage of the shipment of ham by sea is a unimodal contract of carriage. The carrier receives the goods for transportation in the port of loading (Rotterdam) and he only needs one single means of transportation (namely, a sea-going ship) to carry them across the Atlantic for delivery to the buyer/consignee in the port of discharge (Baltimore).

A unimodal contract of carriage of goods by sea works very well in these specific circumstances. In reality, however, only a few buyers and sellers have access to such facilities in the ports of Rotterdam and Baltimore. The average buyer has no facilities in Baltimore at all, and only a production plant in, say, Denver. Besides, it is very likely that the shipment of ham is not even in Rotterdam at the time of the conclusion of the sale, but still needs to be brought in from Parma (Italy). Under these circumstances, a single unimodal contract of carriage by sea only solves part of the logistic puzzle; it does not deal with the transportation to the port of Rotterdam and from the port of Baltimore to the final destination.¹

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The seller could then of course decide to instruct two extra carriers, one to carry the goods by road from Parma to Rotterdam, and another one to carry the goods by rail from Baltimore to Denver. Clearly, this is first of all not very convenient.² The seller now not only has to negotiate three separate contracts with three different carriers, but he also has to ensure that the movements of these carriers are aligned. Then there is the additional paperwork. Each carrier will issue a different transport document to evidence his contract of carriage, and these transport documents will in turn very likely refer to different terms and conditions. Moreover, these three different contracts of carriage will probably be governed by different international conventions and/or domestic legislation.

Apart from the inconvenience, however, the three different contracts of carriage will not always provide 100 per cent coverage of the entire voyage. This problem surfaces, for instance, when the goods are stolen in the course of their transhipment from the truck into the ship. The road carrier has already delivered the goods into the custody of the sea carrier, and his liability under the contract of carriage has therewith ended. The sea carrier has indeed received the goods for transportation, but he has validly excluded his liability for the loss of the goods prior to their loading on-board the ship. Under these circumstances, neither of the two carriers would then be liable for the loss.

Another potential risk relates to unlocalized losses, namely when the shipment of ham is stolen somewhere between Parma and Denver, but it cannot be established afterwards when and where this has happened. Each carrier could point to the carelessness, misconduct or even involvement of the other carriers, and at the end of the day they would all escape liability as the seller cannot prove that the loss occurred in one of the respective periods of responsibility.

This is where the multimodal contract of carriage comes in. The seller could also decide to instruct just one carrier to carry the goods by road to Rotterdam, by sea to Baltimore and then by train to Denver. Such a multimodal contract of carriage makes the seller’s life a lot easier. Instead of three different contracts of carriage, he now only needs to conclude one contract of carriage. At the same time, his recourse position also improves. Admittedly, the individual legs of this multimodal contract of carriage are still likely to be subject to different rules, but the carrier will not be able to avoid liability for unlocalized losses as he is responsible for the entire voyage.

The structure of the book

In line with its objective to provide an accessible introduction to multimodal transport law, this book works its way up from general principles to very specific, multimodal problems.³ The book does not have a specific civil or common law signature, but instead adopts an international approach. This makes considerable sense as cross-border contracts for the carriage of goods are often governed by international conventions,⁴ and only supplemented by domestic legislation.

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Still, some conventional rules are applied differently in different countries; see for instance article 2 of the Convention relative au contrat de transport international des Marchandises par Route (CMR). Sometimes principles are simply not universally shared, like the position of the consignee. Some rules have territorial limits (Rome I), and sometimes one specific problem has two fundamentally different solutions, for instance whether the CMR applies directly to an international road leg within a multimodal contract of carriage. The different solutions and interpretations are then clarified with references to literature and case law from both civil law and common law jurisdictions.⁵

The book has nine chapters, the first of which is this introduction. Chapter 2 covers the contract of carriage in general, and the multimodal contract of carriage in particular. This chapter also highlights the differences between contracts of carriage and forwarding contracts. The third chapter discusses the different transport documents, such as charter parties, (through) bills of lading, waybills, consignment notes and their multimodal equivalents. Chapter 4 deals with the parties to a (multimodal) contract of carriage, the right of disposal, the right of suit and the position of the carrier’s agents, servants and subcontractors.

The five (most important) international conventions on carriage of goods are discussed in Chapter 5, i.e. the Uniform Rules Concerning the Contract of International Carriage of Goods by Rail (CIM 1999), the Hague Rules as Amended by the Brussels Protocol 1968 (HVR), the Convention for the Unification of Certain Rules for International Carriage by Air (MC), CMR and the Budapest Convention on the Contract for the Carriage of Goods by Inland Waterway (CMNI). Some of these conventions regulate (potentially) multimodal situations, and these situations are dealt with in Chapter 6. Chapter 7 is then dedicated to the law that applies in the absence of an international convention. It covers the common law conflict rules, Rome I and the general Paramount clause in (bill of lading) contracts of carriage.

The different issues discussed in these last three chapters come together in Chapter 8. This chapter deals with the question of which rules apply to the individual legs of a multimodal contract of carriage. These legs are sometimes governed by one of the international conventions, sometimes by mandatory domestic law and sometimes by contractual provisions.

Finally, Chapter 9 covers the Rotterdam Rules (RR). These rules have not yet entered into force, but they are meant to replace the HVR in due course. However, the RR do not just relate to contracts for the carriage of goods by sea (under a bill of lading); they also cover multimodal contracts of carriage, provided that a sea leg is involved.

Notes

1    In theory, the shipment of ham could also be flown from Parma to Denver, but that would be a very costly affair.

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2    Inconvenience can be overcome in practice. A seller who lacks either the necessary time or the necessary contacts can engage a specialized freight forwarder to arrange for the contract of carriage on his behalf.

3    As an introduction to multimodal transport law, the book is obviously far from exhaustive. The carriage of goods by sea under the United Nations Convention on the Carriage of Goods by Sea of 31 March 1978 (Hamburg Rules), the carriage of dangerous goods and the shipper’s liability are hardly discussed. Several carriage-related issues, such as salvage, casualties, the position of passengers, the arrest of ships and global limitation of liability, have in fact been left completely untouched.

4    For convenience’s sake, all references are straight to the provisions of the conventions, for instance article 1 (b) HVR or 17 (4) CMR, even though they require incorporation in jurisdictions with a dualist system.

5    Obviously, this required a lot of translation work. The translations in the book are the author’s, except when an English version was already available, for instance of the provisions of the German Commercial Code (GCC) and the Dutch Forwarding Conditions.

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2 Contracts of carriage

This chapter introduces the contract of carriage in general and the multimodal contract of carriage in particular, and it distinguishes contracts of carriage from forwarding contracts.

2.1. The contract of carriage

A contract for the carriage goods encompasses more than just their physical carriage between two points. The contract indeed requires the carrier to carry the goods from one place to another, but in addition requires the carrier to deliver them to the consignee.¹ A contract of carriage could therefore be defined as a contract whereby the carrier agrees with the shipper to carry certain goods from the place of receipt and to deliver them to the consignee at the place of their destination.

Receipt and delivery

The receipt of the goods by the carrier and their delivery to the consignee mark the start and finish of each contract of carriage. The carrier only assumes his responsibilities upon receipt of the goods for transportation, and he is only discharged from these responsibilities once he delivers the goods to the consignee. Lord Diplock described the nature of the contract of carriage (by sea) in Barclays Bank v. Commissioners of Customs and Excise:²

The contract for the carriage of goods by sea … is a combined contract of bailment and transportation under which the shipowner undertakes to accept possession of the goods from the shipper, to carry them to their contractual destination and there to surrender possession of them to the person who, under the terms of the contract, is entitled to obtain possession of them from the shipowners. Such a contract is not discharged by performance until the shipowner has actually surrendered possession (that is, has divested himself of all powers to control any physical dealing in the goods) to the person entitled under the terms of the contract to obtain possession of them.³

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The receipt and delivery of the goods is different to the loading and discharge of the goods. The process of bringing goods into a means of transportation (loading) and taking them out again (discharging) is factual. The process of receipt an...

Table of contents

• Cover Page
• Multimodal Transport Law
• Title
• Copright
• Preface
• 1 Introduction
• 2 Contracts of Carriage
• 3 Transport Documents
• 4 The Parties to the Contract of Carriage
• 5 International Conventions on the Carriage of Goods
• 6 Multimodal Situations Governed by Unimodal Conventions
• 7 The Law Applicable in the Absence of a Mandatory Convention
• 8 The Rules Applicable to the Individual Legs of Multimodal Contracts of Carriage
• 9 The Rotterdam Rules
• Annexes
• Index