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1. Introduction The draft Outline Instrument contemplates door to door transport (see Chapter 3.1 and definition 1.1), but it does not define the carrier’s liability, which Chapter 5 leaves open for further consideration. The purpose of this paper is to consider how the Instrument might accommodate other modes of transport normally associated with the carriage by sea. 2. General It is submitted that the provisions of the Outline Instrument require remarkably few major alterations to adapt it for multimodal transport. Only relatively few provisions are peculiar to sea transport and these could be put into a section or sections dealing with carriage by sea only, or with movements involving a sea leg as the principal mode of transport, i.e. where any land transport is performed for the purpose of accepting or delivering the goods either side of a sea leg.1 3 Scope of Application 3.1 In order to accommodate present practice, particularly in containerised trades, the current draft Outline Instrument applies from the time of receipt to the time of delivery irrespective of where the place of receipt and place of delivery might be geographically. However it is clear that where the place of receipt and/or the place of delivery are inland, outside the port area, and involve a movement by truck, rail or barge preceding or subsequent to the maritime carriage, such movement is presently considered only to the extent that it is subsidiary to the carriage by sea. 3.2 Since many sea transports in the containerised field involve movement by more than one mode of transport, it is often difficult, if not impossible, to see whether the movement on land is subsidiary to that by sea. It is therefore considered by many that any future Instrument should contain provisions applying to the full scope of the carriage irrespective of whether or not the movement on land may be deemed subsidiary to that by sea, providing carriage by sea is contemplated at some stage. 4 Applicability and definitions 4.1 Multimodal transport must be distinguished from through transport to ensure there is no confusion between the two. The latter situation is where more than one means of transport is contemplated by the contract of carriage and the carrier acts as an agent on behalf of the owner of the goods in arranging for any part of the transportation not actually performed by himself. The former is where more than one mode of transport is contemplated by the contract of carriage and the carrier assumes responsibility throughout. If the cargo is transhipped from one means of transport into another within the same mode, this will not be regarded as multimodal transport; there must be transhipment between different modes. 4.2 The present Outline Instrument does not outlaw a carrier acting as both a principal and an agent. Chapter 3.2 sets out some of the essential obligations that must be fulfilled by a carrier acting in an agency capacity. It is suggested that this possibility should remain if the Instrument is extended to multimodal transport. 4.3 It should not matter whether the carrier under this scenario is a carrier by sea, a non vessel-owning carrier (“NVOC”) or a freight forwarder. It would be odd if the regime applying to such a contract differed according to the status of the carrier, which is not immediately apparent in any event. 5 Liability 5.1 Multimodal transport comprises different legs each representing unimodal carriage to which international conventions, national legislation or standard conditions of contract may apply. Under the network system such regimes apply by contract as between the contractual carrier or multimodal transport operator (“MTO”) and the shipper or cargo claimant. The uniform system attempts to super-impose a single basis of liability on the MTO which applies throughout the period of carriage whatever leg or mode of transport is involved. A “pure” network or uniform system is more a theoretical than a practical concept. From the MTO’s point of view a network system has the advantage that his liability to the cargo claimant should generally correspond with the performing carrier’s, or unimodal operator’s, liability to him. He should therefore be able to have recourse against his sub-contractor for any sum he may be liable to pay to the cargo claimant. 5.2 From the shipper’s or cargo claimant’s point of view the network system has many disadvantages. They are well documented and will not be rehearsed at length in this paper. In short: – in many cases, particularly involving a sealed container, the location of the loss or damage, and hence the identification of the unimodal leg on which it occurred, will be difficult if not impossible to ascertain. – in other cases the loss or damage will occur gradually over more than one leg. – there may be a “liability gap” between the application of the various unimodal regimes. – the liability regime could depend on the care taken by the MTO in negotiating satisfactory terms in his subcontracts. The above disadvantages result in unpredictability. The shipper, whether the seller or the buyer of the goods, will not know which liability regime, or what limits of liability, or possibly what system of law, will apply in the event of loss or damage. 5.3 In practice the network system is modified by contract. For example: (i) The UNCTAD/ICC Rules2 set out a basis of liability, including liability for delay, but preserve the nautical fault, error in management and fire defences in respect to goods carried by sea or internal waterways, and provide that the limits of liability in the compulsory unimodal regimes will apply if the location of the loss or damage can be proved, otherwise the Hague-Visby limits will apply, or the CMR limits if no sea leg is involved. (ii) MULTIDOC 953 provides that the carrier will be liable on the same basis as set out in the UNCTAD/ICC Rules. (iii) The COMBICONBILL4, which is based on the 1973 ICC Rules for a combined transport document, sets out the carrier’s basic liability, but provides that if it can be proved where the loss or damage occurred the parties may be entitled to require liability to be settled according to the relevant compulsory applicable unimodal regime. If no mandatory law applies to any carriage by sea or by inland waterway, the Hague-Visby Rules will apply. 5.4 These modified network systems, by introducing “fall back” provisions, overcome the problems of the liability gap and the location of the loss or damage. They do not overcome the problems of gradual occurrence of the loss or damage, or of unpredictability. 5.5 A uniform system of liability shifts the risk of unpredictability onto the MTO. His rights of recourse against his sub-contractors will be governed by the unimodal regimes which apply to the various legs of the transport. The problems of location of damage, liability gap and gradual occurrence of damage will apply to such recourse claims and the limit of the sub-contractor’s liability may be less than the limit of the MTO’s liability to the cargo claimant. It follows that adopting a uniform system has commercial and insurance implications for the MTO. The commercial considerations may differ as between a MTO, very probably a NVOC, who operates a largely land based transportation service, for whom the sea leg is insignificant and in any event likely to be on waybill terms, and a MTO who is an ocean carrier operating an intercontinental container service. 5.6 It is arguable that a MTO who carries on the terms of the UNCTAD/ICC Rules accepts a measure of this risk. BIMCO therefore recommends its members only to use MULTIDOC 95 if requested by their customers to issue a transport document subject to the Rules and strongly advises them to consult their P & I Club before doing so. Most MTO’s who are intercontinental container operators issue “house” bills of lading on terms based on the COMBICONBILL. 5.7 The United Nations Convention on Multimodal Transport of Goods 1980 (“the 1980 Convention”) attempts to give effect to a uniform system of liability for loss of damage and delay modelled on (but not identical to) the Hamburg Rules. It does however incorporate a network system as regards the limits of liability, albeit with uniform minimum limits. Thus the limit of the carrier’s liability to the cargo claimant remains unpredictable. The 1980 Convention has not attracted international support and has not come into force. 5.8 A further problem, which is arguably inherent in any uniform liability system, is that such a system may conflict with provisions of existing unimodal conventions relating to the basis of liability, limitation of liability, time bar and other matters. Doubts may be expressed whether a solid legal solution to this problem is available.
1 Cf Article 18.3 of the Convention for the Unification of Certain Rules relating to International Carriage by Air 1929 as amended by the 1955 Protocol (“the Warsaw Convention”) which provides: “The period of the carriage by air does not extend to any carriage by land, by sea or by river performed outside an aerodrome. If, however, such a carriage takes place in the performance of a contract for carriage by air, for the purpose of loading, delivery or trans-shipment, any damage is presumed, subject to proof to the contrary, to have been the result of an event which took place during the carriage by air”. |
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