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Московский государственный юридический университет им. О.Е. Кутафина

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Коммерческое право

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Carr I., Stone P. International Trade Law 2014-1.pdf

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388 |

INTERNATIONAL MULTIMODAL TRANSPORT

that the issue of where the damage or loss occurred is still pertinent if not for the basis of liability, then for calculation of liability amounts.

The Multimodal Convention also innocently assumes that transport documents clearly state whether the freight forwarder acts in the capacity of principal to bring him within the deﬁnition of multimodal transport operator provided in Art 1(2). This is likely to produce expensive and, not to say, time-consuming litigation to ascertain the forwarder’s capacity.

Another surprising feature of the convention is the lack of a precise deﬁnition of international multimodal transport. Article 1(1) deﬁnes it as:

. . . the carriage of goods by at least two different modes of transport on the basis of a multimodal transport contract from a place in one country at which the goods are taken in charge by the multimodal transport operator to a place designated for delivery situated in a different country. The operations of pick up and delivery of goods carried out in the performance of a unimodal transport contract, as deﬁned in such contract, shall not be considered as international multimodal transport.

No attempt has been made to deﬁne mode of transport. Is mode of transport restricted to the vehicle (e.g., plane, ship), the medium (e.g., air, sea) or does it include both? The deﬁnition also excludes operations of pick-up and delivery of goods in the performance of a unimodal transport; it does not specify the acceptable extent of these operations. For instance, will a road-leg/sea-leg/ road-leg operation be regarded as a multimodal carriage, or are the road legs simply operations of pick-up and delivery? Will the issue be decided by looking at how the road legs are described in the documents, or will factors such as the time taken to complete the different legs and calculation of charges be relevant to ascertain whether the particular carriage contract is a unimodal transport contract or not?

Regardless of these ambiguities, the Multimodal Convention, if adopted, will herald a new era of predictability. This is no bad thing. To some extent, this has been achieved by use of UNCTAD/ICC Rules in standard terms devised by freight association for use by their members. This may arguably be true of the UK and other member states of the European Community, such as Germany and Holland, but the same is not true of the developing countries, who are playing an increasingly important role in the global marketplace. Against this backdrop, the Multimodal Convention introduces a regime that will protect the cargo interests by giving a minimum level of legal protection.

Conclusion

A comparison of the carrier, liability framework of the UNCTAD/ICC Rules and the Multimodal Convention (see Table 13.4) indicates there is much that is common. It is indeed odd why there is reluctance on the part of nations to adopt the Multimodal Convention when the UNCTAD/ICC Rules are heralded as a great success. At best, it is political antipathy toward a document drafted by an international organisation that openly promotes the interests of developing countries and least developed nations.

It seems that the law of multimodal transportation is an area that is likely to see further debate (if not signiﬁcant developments in the form of a revised Multimodal Convention or new convention) in the near future.101

101 See UNCTAD Doc UNCTAD/SDTE/TLLB/2003/1 (13 January 2003), at para 116.

CONCLUSION

| 389

Table 13.1: Liability limits expressed in SDRs in various unimodal conventions

CONVENTION	MODE	ENTRY INTO	SDR/KG	SDR/UNIT
		FORCE

Hague-Visby RulesA	Sea	23/6/1977	2	666.67
Hamburg RulesB	Sea	2/11/1992	2.5	835
Warsaw ConventionC	Air
Montreal Protocol No 4D	Air	14/6/1998	17
Montreal ConventionE	Air	4/11/2003	19
CMR (as amended)F	Road	28/12/1980	8.33
COTIF/CIM 1999G	Rail	1/7/2006	17

AInternational Convention for the Unification of Certain Rules of Law Relating to Bills of Lading 1924, known as the Hague Rules. Amended by Brussels Protocol signed at Visby in 1968, which came to be called the Hague-Visby Rules. The UK implemented the Hague-Visby Rules with the Carriage of

Goods by Sea Act 1971. (The Hague Rules liability is limited to £;100 per package or unit.) B United Nations Convention on the Carriage of Goods by Sea 1978. Not ratified by the UK.

C Convention for the Unification of Certain Rules Relating to International Carriage by Air 1929. Amended by the Hague Protocol in 1955. The UK implemented the Hague Protocol with the Carriage by Air Act 1961. (The limits in the Warsaw Convention as amended by the Hague Protocol are set at 250 gold francs per kilogram.)

DThe Montreal Protocol No 4 is part of UK law. See Carriage By Air and Road Act 1979, Carriage by Air Acts (Implementation of Protocol No 4 Order) SI 1999/1312, 1999/1737. Unfication of Certain Rules for International Carriage 1999. Ratified by the UK. See Carriage by Air Acts (Implementation of the

Montreal Convention 1999) Order 2 SI 2002/263.

E Unification of Certain Rules for International Carriage by Air 1999. Implemented by the UK. See Carriage by Air Act (Implementation of the Montreal Convention 1999) Order 2001.

F Convention on Contract for the International Carriage of Goods by Road was implemented by Carriage of Goods by Road Act 1965. This Act, still in force, was amended in 1979 by the Carriage by Air and Road Act 1979.

GThis was given effect by The Railways (Convention on International Carriage by Rail) Regulation SI 2005/2092.

390 | INTERNATIONAL MULTIMODAL TRANSPORT

Table 13.2: Maximum liability limits in standard contracts on multimodal transport, the United Nations Multimodal Convention and UNCTAD/ICC Rules

MULTIMODAL TERMS/CONVENTION	SDR/KG	SDR/PACKAGE

BIFA Standard Trading Conditions	2

Localised damage which attracts	Higher limit of mandatory law
mandatory law	appliest
UNCTAD/ICC Rules

Sea/Inland Waterways Trajectory	2	666.67

No Sea/Inland Waterways Trajectory	8.33

Localised damage that attracts	Higher limit of mandatory law
mandatory law	appliest
FIATA FBL Multimodal Negotiable Bill
of Lading

Sea/Inland Waterways Trajectory	2	666.67

No Sea/Inland Waterways Trajectory	8.33

Localised damage that attracts	Higher limit of mandatory law
mandatory law	appliest
Multimodal ConventionA
Sea/Inland Waterways Trajectory	2.75	920

No Sea Carriage/Inland Waterways	8.33
Trajectory

Localised damage that attracts	Higher limit of mandatory law
mandatory law	appliest

A United Nations Convention on International Multimodal Transport of Goods. Not ratified by the UK. Convention not yet in force.

t See Table 13.1

CONCLUSION

| 391

Table 13.3: Time limitation in the various carriage conventions, multimodal standard terms and UNCTAD/ICC Rules

CONVENTION/RULES/STANDARD	TIME LIMIT
TERMS

Hague/Hague-Visby Rules	One year (after delivery of goods or date when goods
	should have been delivered)

Hamburg Rules	Two years (from date of delivery or from last day when
	goods should have been delivered)

Warsaw Convention	Two years (from day of arrival at destination or from
	date on which aircraft should have arrived or from date
	on which carriage stopped)

Montreal Convention	Same as the Warsaw Convention

CMR	One year (from date of delivery); three years in the case
	of wilful misconduct

COTIF/CIM 1999	One year; two years in special circumstances – for
	example, recovery of cash on delivery payment collected
	by carrier

Multimodal Convention	Two years after delivery of goods or on date when goods
	should have been delivered. If notification is not given
	within six months after the date of delivery or date when
	they should have been delivered, then time-barred after
	six months.

BIFA Standard Trading Conditions	Nine months from date of event or occurrence alleged
	to give rise to an action

UNCTAD/ICC Rules	Nine months after delivery of goods or date when goods
	should have been delivered or goods deemed lost apply-
	ing formula provided in Rules 5.2† and 5.3††
FIATA Bill	Nine months after delivery of goods or date when goods
	should have been delivered or goods deemed lost apply-
	ing provisions in Clauses 6.3# and 6.4##

† Rule 5.2 states:

Delay in delivery occurs when the goods have not been delivered within the time expressly agreed upon or, in the absence of such agreement, within the time which, it would be reasonable to require of a diligent MTO, having regard to the circumstances of the case.

†† Rule 5.2 states:

If the goods have not been delivered within 90 consecutive days following the date of delivery determined according to Rules 5.2, the claimant may, in the absence of evidence to the contrary treat the goods as lost.

# Clause 6.3 states:

Arrival times are not guaranteed by the freight forwarder. However, delay in delivery occurs when the goods have not been delivered within the time limit expressly agreed upon or, in the absence of such agreement, within the time which, it would be reasonable to require of a diligent freight forwarder, having regard to the circumstances of the case.

## Clause 6.4 states:

If the goods have not been delivered within ninety consecutive days following the date of delivery determined according to Rules 5.2, the claimant may, in the absence of evidence to the contrary treat the goods as lost.

392 | INTERNATIONAL MULTIMODAL TRANSPORT

Table 13.4: Comparison of MTO Liability Framework under the Multimodal Convention and UNCTAD/ICC Rules

ISSUES	UNCTAD/ICC RULES	MULTIMODAL CONVENTION

Definition of multimodal	Single contract for	Carriage by at least two modes
transport	carriage by at least two	of transport on the basis of a
	modes of transport	multimodal transport contract.
	(Rule 2.1)	Operation of pick-up and delivery
		of goods under a unimodal contract
		not multimodal carriage (Art 1(1)).

When applicable	Incorporation by contract	Place of taking in charge of goods
	(Rule 1)	or place of delivery in contracting
	Note: Mandatory	state (Art 2)
	provisions, however,	Note: Convention is mandatorily
	supersede Rules	applicable. Consignor, however,
	(Rule 13).	has the right to choose between
		multimodal transport or
		segmented transport (Art 3).

Period of responsibility	From time of taking	From time goods in charge of
	charge through to	multimodal transport operator
	delivery (Rule 4.1)	(MTO) to time of delivery (Art 14(1))

MTO responsibility	Responsible for acts/	Responsible for acts/omissions
	omissions of servants/	of servants/agent acting within
	agent acting within	the scope of their employment or
	the scope of their	any other person engaged for the
	employment or any other	performance of the contract
	person engaged for	(Art 15)
	the performance of the
	contract (Rule 4.2)

Basis of liability	Presumed to be at	Presumed to be at fault where
	fault where goods lost,	goods lost, damaged or there is
	damaged or there is	delay in delivery while goods in his
	delay in delivery while	charge, unless he can prove that
	goods in his charge,	those he is responsible for took all
	unless he can prove that	measures that could reasonably be
	those he is responsible	required to avoid the occurrence
	for took all measures	and its consequences (Art 16(1))
	that could reasonably	Note: The burden of proof is on
	be required to avoid	MTO.
	the occurrence and its
	consequences (Rule 5.1)

When delay in delivery	When not delivered	When not delivered within time
	within time expressly	expressly agreed on; where
	agreed on; where no	no express agreement then
	express agreement,	reasonable time required of a
	then reasonable time	diligent MTO taking surrounding
	required of a diligent	circumstances (Art 16(2))
	MTO taking surrounding
	circumstances (Rule 5.2)

	CONCLUSION	\| 393

ISSUES	UNCTAD/ICC RULES	MULTIMODAL CONVENTION

Concurrent causes		Where another cause along with
		MTO’s fault/neglect causes loss/
		damage/delay in delivery them,
		MTO is liable only to the extent
		that the loss is attributable to such
		cause (Art 17).
		Note: The burden of proof is on
		MTO.

Consequential loss	In the event of
	consequential loss from
	delay in delivery or
	consequential loss other
	than loss or damage
	to the goods liability
	limited to an amount not
	exceeding equivalent of
	freight

Special exemptions	Not responsible where
	damage during sea
	carriage caused by:
	• act, neglect or
	default of the
	master, mariner,
	pilot or servants
	of the carrier in
	the navigation or
	management of ship
	• fire, unless caused by
	actual fault or privity
	of the carrier
	Where unseaworthiness
	is cause of damage, MTO
	is to show that he has
	exercised due diligence
	to make ship seaworthy
	(Rule 5.4).

Non-contractual liability	Rules applicable,	Defences and limits of liability
	regardless of whether	available equally for actions
	claim founded in contract	founded in tort or otherwise (Art
	or in tort (Rule 11)	20(1))

Availability of defences	Available to Agent/	Available if Agent/Servant acted
and liability limits to	Servant or Other	within scope of employment
third parties	Person used to perform	or if Other Person acted within
	multimodal transport	performance of the contract
	contract (Rule 12)	(Art 20(2))

Liability limits	See Table 13.2	See Table 13.2

(Continued)

394 | INTERNATIONAL MULTIMODAL TRANSPORT

Table 13.4: Comparison of MTO Liability Framework under the Multimodal Convention and UNCTAD/ICC Rules (Continued )

ISSUES	UNCTAD/ICC RULES	MULTIMODAL CONVENTION

Loss of liability limits	Liability limits lost in the	Liability limits lost in the event of
	event of personal act/	act/omission of MTO done with
	omission of MTO done	intent to cause such loss, damage
	with intent to cause such	or delay in delivery or reckless and
	loss, damage or delay	with knowledge that such loss,
	in delivery or reckless	damage or delay would probably
	and with knowledge that	result.
	such loss, damage or	Note: Burden of proof is on the
	delay would probably	claimant (Art 21).
	result (Rule 7)

Documentation		Detailed list on information to be
		included in multimodal transport
		document; includes names of
		consignor, consignees, place of
		delivery, place of taking in charge
		of goods (Art 8)

Evidential status	In the absence of	Multimodal transport document
	reservations such as	prima facie evidence of taking in
	‘shipper’s weight, load,	charge of goods; if transferred to
	count’, shipper packed	third party conclusive evidence
	container’ multimodal	(Art 10).
	transport document	Note: Reservations are allowed
	prima facie evidence	concerning general nature, leading
	of taking in charge of	marks, number of packets or
	goods; if transferred to	pieces, weight or quantity of goods
	third party conclusive	(Art 9).
	evidence (Rule 3)

Electronic	Allows replacement	Seems to allow electronic
documentation	of multimodal trans-	documentation since signature
	port document with an	defined to include signature in
	electronic equivalent	electronic form (Art 5)
	insofar as applicable law
	permits

Jurisdiction		•	Principal place/habitual
			residence of defendant
		•	Place where multimodal
			transport contract concluded
			provided defendant has place
			of business, branch or agency
			through which contract made
		• Place of taking over goods
			for international multimodal
			transport or place of delivery
		• Other place designated in the
			multimodal transport contract
			and evidenced in the multimodal
			transport document (Art 26)

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