IMPLEMENTATION OF MULTIMODAL TRANSPORT RULES
CONTENTS
Chapter Paragraphs
INTRODUCTION . . . . . . . . . . . . . . . . . . . . 1 – 3
I. MULTIMODAL TRANSPORT _ GENERAL OVERVIEW . . . 4 – 46
A. What is multimodal transport? . . . . . . . . . . . . 4 –
6
B. Background . . . . . . . . . . . . . . . . . . . 7 – 10
C. International conventions applicable to
unimodal transportation . . . . . . . . . . . . . . 11
– 15
D. Previous attempts to achieve uniformity . . . . . . . . 16 – 40
(i) United Nations Convention on International
Multimodal Transport of Goods 1980 . . . . . . 18 – 28
(ii) UNCTAD/ICC Rules for Multimodal Transport
Documents . . . . . . . . . . . . . . . . 29
– 40
E. Related activities of other organizations . . . . . . . . 41
– 46
II. REGIONAL/SUBREGIONAL LAWS AND REGULATIONS . . 47 – 122
A. Andean Community . . . . . . . . . . . . . . . . . 47 – 69
B. MERCOSUR . . . . . . . . . . . . . . . . . . . 70 – 88
C. ALADI . . . . . . . . . . . . . . . . . . . . . . 89 – 105
D. Draft ASEAN Framework Agreement on
Multimodal Transport . . . . . . . . . . . . . . . . 106 – 122
III. NATIONAL LAWS AND REGULATIONS . . . . . . . . . . 123 – 245
A. Argentina . . . . . . . . . . . . . . . . . . . . 123 – 142
B. Austria . . . . . . . . . . . . . . . . . . . . . 143 – 144
C. Brazil . . . . . . . . . . . . . . . . . . . . . 145 – 158
D. China . . . . . . . . . . . . . . . . . . . . . . 159 – 194
3
E. Colombia . . . . . . . . . . . . . . . . . . . .
195
Paragraphs
F. Ecuador . . . . . . . . . . . . . . . . . . . . . 196
G. Egypt . . . . . . . . . . . . . . . . . . . . . . 197
H. Germany . . . . . . . . . . . . . . . . . . . . . 198 – 214
I. India . . . . . . . . . . . . . . . . . . . . . . 215 – 229
J. Mexico . . . . . . . . . . . . . . . . . . . . . 230 – 234
K. Netherlands . . . . . . . . . . . . . . . . . . . . 235 –
244
L. Paraguay . . . . . . . . . . . . . . . . . . . . . 245
IV. SUMMARY AND CONCLUSIONS . . . . . . . . . . . . . 246 – 254
4
INTRODUCTION
1. The Plan of Action (TD/386) adopted by UNCTAD X, in Bangkok in February 2000,
states in paragraph 152, that: “In close cooperation with other relevant international
organizations, UNCTAD should continue to undertake studies on the implementation of
multimodal transport rules.”
2. To prepare the requested study, the secretariat conducted an inquiry into the existing
rules and legislation applicable to multimodal transport of goods. A note verbale (dated 14
April 2000) was sent to all member States of UNCTAD inviting them to provide the
secretariat with a copy of their national laws/regulations, if any, including other relevant
information and documentation which may be used in practice. This document attempts to
provide an overview of the existing laws and regulations governing multimodal transportation.
It reflects the information received from Governments in response to the note verbale as well
as documentation that the secretariat could otherwise obtain from various countries and
regional or subregional organizations.
3. In order to provide a clear picture as to the nature and basis of various legislation
adopted at the national and regional/subregional level, it may be appropriate to provide a
general background for the subject, including problems associated with present practice as
well as previous attempts to provide a uniform international legal framework for multimodal
transport of goods. As will be seen from the report, the long desired uniformity of law
governing the international multimodal transport of goods has not yet been achieved. The
subject still occupies the attention of various international and intergovernmental organizations
as well as individual Governments. The search for uniformity of law in this important area
continues and clearly requires treatment in a global forum on a priority basis.
5
Chapter I
MULTIMODAL TRANSPORT _ GENERAL OVERVIEW
A. What is multimodal transport?
4. The most authoritative definition of the term “international multimodal transport” is
provided in article 1 (1) of the United Nations Convention on International Multimodal
Transport of Goods 1980 (hereinafter referred to as the MT Convention) which reads as
follows:
“ ‘International multimodal transport’ means 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…”
5. This definition should be read in conjunction with the definition of the term
“multimodal transport operator” (MTO) provided in article 1(2) of the MT Convention, which
provides:
“ ‘Multimodal transport operator’ means any person who on his own behalf or through
another person acting on his behalf concludes a multimodal transport contract and who
acts as a principal, not as an agent or on behalf of the consignor or of the carriers
participating in the multimodal transport operations, and who assumes responsibility
for the performance of the contract.”
6. Thus, the main features of a multimodal transport are: the carriage of goods by two or
more modes of transport, under one contract, one document and one responsible party (MTO)
for the entire carriage, who might subcontract the performance of some, or all modes, of the
carriage to other carriers.1 The terms “combined transport” and “intermodal transport” are
often used interchageably to describe the carriage of goods by two or more modes of
transport.2
B. Background
1 The glossary of the terms used in combined transport and related field issued by the United Nations
Economic Commission for Europe (UN/ECE), defines “multimodal transport”as “carriage of goods by two or
more modes of transport.” The glossary is intended for the work of the three intergovernmental organizations,
namely the European Community, the European Conference of Ministers of Transport (ECMT) and the
UN/ECE. It is, however, specified that the “definitions are not applicable in their strictest sense to the legal
and statistical fields, whose relevant documents of reference exist already.” See document:
TRANS/WP.24/2000/1.
2 “Intermodal Transport” has been defined as “the movement of goods in one and the same loading
unit or road vehicle, which uses successively two or more modes of transport without handling the goods
themselves in changing modes.” “Combined Transport” is defined as “intermodal transport where the major
part of the European journey is by rail, inland and waterways or sea and any initial or final legs carried out by
road are as short as possible.” See document TRANS/WP.24/2000/1.
6
7. The development of new transportation techniques, such as containerization and other
means of unitization of goods in the 1960s, also introduced a significant need for modification
of commercial and traditional legal approaches to transport. Goods stowed in a container
could be transported by different means of transport, such as ships, railway wagons, road
vehicles or aircrafts, from the point of origin to the final place of destination, without being
unpacked for sorting or verification when being transferred from one means of transport to
another. Gradually, more and more operators took responsibility for the whole transport chain
under one single transport contract. Shippers/consignees needed to pursue one single
operator, in the event of loss of, or damage to, the goods involved in multimodal transport,
who would be responsible for the overall transport, rather than against several unimodal
carriers involved. There was a need for an international legal framework for multimodal
transport of goods.
8. In spite of various attempts to establish a uniform legal framework governing multimodal
transport3 no such international regime is in force. The MT Convention has failed to
attract sufficient ratifications to enter into force. The UNCTAD/ICC Rules for Multimodal
Transport Documents, which came into force in January 1992, do not have the force of law.
They are standard contract terms for incorporation into multimodal transport documents. The
rules, being contractual in nature, will have no effect in the event of conflict with mandatory
law.
9. The lack of a widely acceptable international legal framework on the subject has
resulted in individual governments and regional/subregional intergovernmental bodies4 taking
the initiative of enacting legislation in order to overcome the uncertainties and problems which
presently exist. Concerns have been expressed regarding the proliferation of individual and
possibly divergent legal approaches which would add to already existing confusion and
uncertainties pertaining to the legal regime of multimodal transport.
10. A multimodal operation is made up of a number of unimodal stages of transport, such
as sea, road, rail or air. Each of these is subject to a mandatory international convention or
national law.
C. International conventions applicable to unimodal transportation
11. International conventions applicable to unimodal transport include:
Transport by sea:
– International Convention for the Unification of Certain Rules of Law Relating to Bills
of Lading, 1924 (Hague Rules);
– Protocol to Amend the International Convention for the Unification of Certain Rules
Relating to Bills of Lading 1924, (Hague/Visby Rules) 1968;
3 See paragraphs 16-40.
4 See chapters II and III.
7
– Protocol Amending the International Convention for the Unification of Certain Rules
of Law Relating to Bills of Lading, 1924, as Amended by the Protocol of 1968, 1979;
– United Nations Convention on the Carriage of Goods by Sea, 1978 (Hamburg Rules).
Transport by road:
– Convention on the Contract for the International Carriage of Goods by Road (CMR)
1956.
Transport by rail:
– Uniform Rules Concerning the Contract for International Carriage of Goods by Rail
(CIM), Appendix B to the Convention Concerning International Carriage by Rail
(COTIF), May 1980.
– Protocol to amend CIM-COTIF, 1999.
Transport by air:
– Convention for the Unification of Certain Rules Relating to International Carriage by
Air (Warsaw Convention), 1929;
– The Hague Protocol, 1955;
– Montreal Protocol No. 4, 1975;
– The Montreal Convention, 1999.
12. The problem which arises is the extent to which these mandatory conventions
applicable to unimodal transportation would also influence contracts where more than one
mode of transport is involved,5 bearing in mind that some of these unimodal conventions also
extend their scope into multimodal transport.6 For example the CMR (article 2), CIM (article
5 See Ramberg J., UNCTAD/ICC Rules for Multimodal Transport Documents: Origins and Contents,
Simposio Maritimo: El Transporte Multimodal Internacional y su Impacto en las Actividades del Transporte
Maritimo. International Chamber of Commerce, Barcelona 2-3 April 1992. See also Mankabady S., The
Multimodal Transport of Goods Convention: A Challenge to Unimodal Transport Conventions, The
International and Comparative Law Quarterly, Vol. 32, Part I, January 1983: 123-124.
6 At a seminar held in London, United Kingdom Law Commissioner Faber D., concluded her
presentation by saying: “The multimodal transport industry is investing heavily in improving its services. It is
a very sophisticated industry but the same cannot be said of its legal infrastructure. There is a large number of
transports conventions which are potentially applicable to any contract. This means that enormous sums,
which would be better applied commercially, are spent in legal disputes as to whether the contract terms or a
convention and, if so which convention, should apply to govern relations between contracting parties. The best
way forward would be to abolish all the individual conventions and introduce one which would govern all
transport contracts, by whatever means of transport and whether unimodal or multimodal. This may mean
legal expenditure in the short term, while precedents are established for the construction of such a convention,
8
2) and Montreal Conventions specifically include provisions dealing with transport of goods
by more than one mode. In any event, in the absence of a uniform liability system for
multimodal transport, the liability for each stage of transport is determined by the relevant
unimodal convention or national laws which adopt varying approaches to issues such as the
liability questions. Therefore, the liability of the multimodal transport operator for loss or
damage to goods can differ depending on which stage of transport the loss has occurred. The
question becomes even more complicated if the loss or damage cannot be localized, or the loss
occurs gradually during the entire transport.
13. Thus, the greatest shortcomings of transport law are considered to be: “the vast
differences between the rules governing the different transport modes. Different grounds of
liability, different limitations of liability, different documents with a different legal value,
different time bars. Where it may perhaps be said that this particularism did not constitute
such a formidable problem when unimodal transport was still predominant, its drawbacks
become glaringly obvious when attempts are made to combine different transport modes, and,
inevitably, their different legal regimes into a single transport operation governed by a single
contract.”7
14. These differences were also singled out by the Commission of the European
Communities as one of the main obstacles in the field of trade facilitation. Thus, a
Communication to the Council for Trade in Goods of the World Trade Organization state
that:
“The consequence of current arrangements is therefore a patchwork of régimes which
fails to capitalize on modern IT-based communications systems and practices, which
impedes the introduction and use of a single multimodal waybill/transport document,
and which does not reflect fully the increased use of containerized transportation
operating across different modes, making mode-specific liability arrangements
inappropriate. In cases of loss or damage to goods, this creates uncertainty as to the
time of loss/damage, uncertainty as to mode and identity of the carrier; and uncertainty
as to the applicable legal regime for liability and its effects.”8
15. Again, a recent study by the European Commission9 describes the current legal ability
framework in the following terms:
“The present legal framework determining a carrier’s liability consists of a confused
jigsaw of international conventions designed to regulate unimodal carriage, diverse national
laws and standard term contracts. ….As every intermodal transaction is made up of unimodal
but in the long term it would obviate many of the current problems and save costs.” The Problems Arising
From Multimodal Transport Law Seminar, 5-7 December 1994, Churchill Inter-Continental, London.
7 De Wit R., Multimodal Transport: Carrier Liability and Documentation. Lloyd’s of London Press,
1995, 7.
8 See Issues Relating to the Physical Movement of Consignments (Transport and Transit) & Payment,
Insurance and other Financial Questions Affecting Cross-border Trade in Goods, G/C/W/133, 2 December
1998, 3.
9 “International Transportation and Carrier Liability”, June 1999, section 1.
9
stages, there are a number of mandatory international liability regimes which are potentially
applicable, depending on their scope of application and the stage of transport where a damage
or loss occurs. Accordingly, two different regimes may apply to the same claim or the regime
which applies can only be identified when it is clear during which stage of the transport a
loss/damage occurred. Where the stage of transport during which a loss or damage occurred
cannot be identified, where loss or damage occur gradually, or in the course of (value-added)
services ancillary to transportation (e.g. warehousing), a carrier’s liability will often depend on
national laws and/or contractual agreement. As a result, both the applicable liability rules and
the degree and extent of a carrier’s liability vary greatly from case to case and are
unpredictable. Liability for delay in delivery is not always covered by the same rules as liability
for loss of or damage to the goods.”
D. Previous attempts to achieve uniformity
16. The establishment of a widely acceptable legal framework for multimodal transport has
proved to be a difficult task. The first attempt was made by the International Institute for the
Unification of Private Law (UNIDROIT) and dates back as far as to the 1930s. The work
within UNIDROIT resulted in the approval, by its Governing Council in 1963, of a “draft
convention on the international combined transport of goods”,10 which was later revised by an
ad hoc committee of experts. This was followed by the preparation and adoption by the
Comité Maritime International (CMI) of a “draft Convention on Combined Transport-Tokyo
Rules” in 1969. The draft conventions prepared by UNIDROIT and CMI were combined into
a single text in 1970, under the auspices of the Inland Transport Committee of the UN
Economic Commission for Europe (UN/ECE), known as the “Rome Draft.” This draft was
further modified by meetings of the UN/ECE and the Intergovernmental Consultative
Organization (IMCO) during 1970 and 1971, and came to be known as the “Draft Convention
on the International Combined Transport of Goods”, better known as the “TCM draft ”, using
the French acronym for “Transport Combiné de Marchandises.” The TCM draft never went
beyond the drafting stage. Its provisions were, however, subsequently reflected in standard
bills of lading such as the Baltic and International Maritime Conference’s (BIMCO)
Combiconbill and in the “Uniform Rules for a Combined Transport Document” of the
International Chamber of Commerce (ICC).11
17. The UN/IMCO Container Conference, which was to finalize the TCM draft in 1972,
recommended that the subject be further studied, particularly its economic implications and the
needs of developing countries. UNCTAD was proposed to undertake this task. The
Intergovernmental Preparatory Group (IPG) was then set up by the Trade and Development
Board (Decision 96 (XII) of May 1973) and, following an extensive investigation, eventually
prepared the draft convention leading to the adoption of the United Nations Convention on
International Multimodal Transport of Goods 1980.12
10 UDP 1963, ET.XL.II.DOC.29
11 The ICC Uniform Rules were first issued in 1973 as publication No. 273. They were slightly revised
in October 1975 to overcome practical difficulties of application concerning the combined transport operator’s
liability for delay (ICC Publication No.298). The ICC Rules were conceived as an essential measure to avoid a
multiplicity of documents for combined transport operations.
12 For further information see Selvig E., The background to the multimodal convention, paper delivered
at a seminar in Southampton University, Faculty of Law, 12 September 1980; See also UNCTAD, The
10
(i) United Nations Convention on International Multimodal Transport
of Goods 1980
18. Although the Convention has not succeeded in attracting sufficient ratifications to
enter into force13, its provisions have significantly influenced the type of legislation enacted in
a number of countries/regions.14 The following are some of the main features of the
Convention:
19. The Convention applies to all contracts of multimodal transport 15 between places in
two States, if the place of taking in charge or delivery of the goods as provided for in the
multimodal transport contract is located in a contracting State (article 2). While the
Convention recognizes the right of the consignee to choose between multimodal and
segmented transport, its provisions are to apply mandatorily to all contracts of multimodal
transport falling within the provisions of the Convention (article 3).
20. The liability of the multimodal transport operator (MTO)16 for loss of, or damage to,
goods as well as delay in delivery is based on the principle of “presumed fault or neglect.”
That is to say that the MTO is liable if the occurrence which caused the loss, damage or delay
in delivery took place while the goods were in his charge, unless the MTO proves that he, his
servants or agents or any other person of whose services he makes use for the performance of
the contract, took all measures that could reasonably be required to avoid the occurrence and
its consequences.17 This provision is modelled on article 5 (1) of the Hamburg Rules.
21. A key issue in the context of establishing the liability of the MTO for loss of, or
damage to, goods has been the choice between the “uniform” or “network” system of liability.
Under the “uniform” system the same liability regime is applied to the entire multimodal
transport, irrespective of the stage at which the loss or damage occurred. Under the
“network” system, the liability of the MTO for localized damage (i.e. damage known to have
occurred during a particular stage of transport) is determined by reference to the international
convention or national law applicable to the unimodal stage of transport during which the
damage occurred.
Economic and Commercial Implications of Entry into Force of the Hamburg Rules and Multimodal Transport
Convention, TD/B/C.4/3/5/Rev. 1, 1991, paragraphs. 39-45.
13 The Convention was to enter into force one year after ratification or accession by 30 States. As of 15
June 2001 only the following ten States have ratified or acceded to the Convention: Burundi, Chile, Georgia,
Lebanon, Malawi, Mexico, Morocco, Rwanda, Senegal and Zambia. See http://untreaty.un.org/.
14 See chapters II and III.
15 “Multimodal transport contract” has been defined in article 1 (3) to mean “a contract whereby a
multimodal transport operator undertakes, against payment of freight, to perform or to procure the
performance of international multimodal transport.”
16 Article 1 (2) defines “MTO” as “any person who on his own behalf or through another person acting
on his behalf concludes a multimodal transport contract and who acts as a principal, not as an agent or on
behalf of the consignor or of the carriers participating in the multimodal transport operations, and who
assumes responsibility for the performance of the contract.”
17 Article 16 (1).
11
22. The Convention adopts a uniform system of liability of the MTO for both localized and
non-localized damage (article 16 (1)), except that in cases of localized damage the limits of
liability are to be determined by reference to the applicable international convention or
mandatory national law which provide a higher limit of liability than that of the Convention
(article 19). This approach, which is not entirely the “uniform”, is known as the “modified
network” system.
23. The period of responsibility of the MTO includes the entire period during which he is
in charge of the goods, that is from the time he takes the goods in his charge to the time of the
delivery (article 14). The MTO is also liable for the acts and omissions of his servant or agent
or any other person of whose services he makes use for the performance of the contract
(article 15).
24. The MTO’s liability for loss of, or damage to, goods is to be limited to an amount not
exceeding 920 units of account per package or other shipping unit, or 2.75 units of account
per kilogram of gross weight of the goods lost or damaged, whichever is the higher. If,
however, the multimodal transport does not, according to the contract, include carriage by sea
or by inland waterway, the limitation amount is raised to a higher level of 8.33 units of
account (identical to that of the CMR) per kilogram of gross weight of the goods lost or
damaged, without alternative package limitation (article 18 (1) and (3)). The limitation of
liability of the MTO for loss resulting from delay in delivery is calculated by reference to the
rate of freight, that is an amount equivalent to two and a half times the freight payable for the
goods delayed, but without exceeding the total freight payable under the multimodal transport
contract (article 18 (4)). The MTO, however, is not entitled to limit his liability if it is proved
that the loss, damage or delay in delivery resulted from an act or omission of the MTO done
with the intent to cause such loss, damage or delay or recklessly and with knowledge that such
loss, damage or delay would probably result (article 21).
25. The Convention provides for a period of two years within which legal proceedings
relating to international multimodal transport have to be instituted in order to prevent the
claim from being time-barred. A recourse action by the MTO for indemnity against subcontractors,
however, is possible even after the expiry of limitation period, provided that it is
permitted under the law of the State where proceedings are instituted and that it is not
contrary to the provisions of another applicable international convention (article 25).
26. The Convention includes extensive provisions on documentation covering negotiable
and non-negotiable multimodal transport documents, their contents, reservations and
evidentiary effect (articles 5 to 10).
27. Concerning jurisdiction, the Convention gives a wide option to the claimant to institute
an action for claims relating to international multimodal transport. It clearly provides that the
plaintiff may sue in one of the following places:
(a) The principal place of business or residence of the defendant;
(b) The place where the MT contract was made;
(c) The place of taking the goods in charge or the place of delivery; or
12
(d) Any other place agreed upon and evidenced in the MT document (Article 26).
28. Following the growing trend in international commercial disputes, the Convention also
recognizes arbitration as an alternative to judicial proceedings. It provides that the parties
may agree, in writing, to submit their disputes under the Convention to arbitration. As to the
place of arbitration, the options available to the claimant for jurisdiction are also available in
case of arbitration (article 27).
(ii) UNCTAD/ICC Rules for Multimodal Transport Documents
29. Pending the entry into force of the UN Convention on International Transport of
Goods 1980, the UNCTAD’s Committee on Shipping, by resolution 60 (XII) of November
1986, instructed the secretariat to elaborate model provisions for multimodal transport
documents, in close collaboration with the competent commercial parties and international
bodies, based on the Hague and Hague/Visby Rules as well as existing documents such as the
FBL (FIATA Bill of Lading) of the International Federation of Freight Forwarders
Association (FIATA) and the ICC Uniform Rules for a Combined Transport Document.
Following this resolution a joint UNCTAD/ICC working group was created to elaborate a
new set of rules for multimodal transport documents. During a series of meetings the joint
UNCTAD/ICC working group completed the preparation of the UNCTAD/ICC Rules for
Multimodal Transport Documents in 1991. The Rules entered into force on 1 January 1992.18
30. The UNCTAD/ICC Rules for Multimodal Transport Documents have been
incorporated in widely used multimodal transport documents such as the FIATA FBL
199219and the “MULTIDOC 95” of the Baltic and International Maritime Council
(BIMCO).20 The main features of the UNCTAD/ICC Rules are the following:
31. The Rules do not have the force of the law but are of purely contractual nature and
apply only if they are incorporated into a contract of carriage, without any formal requirement
for “writing” and irrespective of whether it is a contract for unimodal or multimodal transport
18 The text of the Rules can be found in ICC publication No. 481. They replaced the previous ICC Rules
for a Combined Transport Document, 1973 (modified 1975) which were based on the “Tokyo Rules” and the
“TCM” draft.
19 See FBL Negotiable FIATA Multimodal Transport Bill of Lading, issued subject to UNCTAD/ICC
Rules for Multimodal Transport Documents. The first FIATA FBL, called the FIATA Uniform Bill of Lading,
was introduced in 1971 and was based on the Tokyo Rules developed by the CMI. A revised FIATA FBL was
issued after the ICC introduced its Uniform Rules for a Combined Transport Document in 1975. See Öhl K.,
Development of the FIATA Multimodal Transport Bill of Lading based on the UNCTAD/ICC Rules for
Multimodal Transport Documents, ICC seminar on the UNCTAD/ICC Rules for Multimodal Transport
Documents, London, 28 January 1994. For a detailed study of the 1992 FIATA Multimodal Transport Bill of
Lading, see Ramberg J., The Law of Freight Forwarding and the 1992 FIATA Multimodal Bill of Lading,
FIATA Publication, 1993.
20 See the Negotiable Multimodal Transport Bill of Lading issued by the BIMCO subject to
UNCTAD/ICC Rules for Multimodal Transport Documents. The BIMCO’s previous Multimodal Transport
Document known as the “COMBIDOC” was based on the previous ICC Rules for a Combined Transport
Document 1975.
13
involving one or several modes of transport, or whether or not a document has been issued
(Rule 1). Once they are incorporated into a contract, they override any conflicting contractual
provisions, except in so far as they increase the responsibility or obligations of the multimodal
transport operator. The Rules, however, can only take effect to the extent that they are not
contrary to the mandatory provisions of international conventions or national law applicable to
the multimodal transport contract (article 13).
32. Similar to the MT Convention, the liability of the MTO under the Rules is based on the
principle of presumed fault or neglect. That is to say that the MTO is liable for loss of, or
damage to, the goods and for delay in delivery, if the occurrence which caused the loss,
damage or delay in delivery took place while the goods were in his charge, unless he can prove
that no fault or neglect of his own, his servants or agents or any other person of whose
services he made use of for the performance of the contract, caused or contributed to the loss
or delay in delivery (Rule 5.1). Although the basis of liability of the MTO under the Rules is
similar to that under the MT Convention, there are significant differences between them.
Firstly, unlike the MT Convention, under Rule 5.1, the MTO is not liable for loss following
delay in delivery unless the consignor has made a declaration of interest in timely delivery
which has been accepted by the MTO. Secondly, if the multimodal transport involves carriage
by sea or inland waterways, the MTO will not be liable for “loss, damage or delay in delivery
with respect to goods carried by sea or inland waterways when such loss, damage or delay
during such carriage has been caused by:
– act, neglect, or default of the master, mariner, pilot or the servants of the
carrier in the navigation or in the management of the ship;
– fire, unless caused by the actual fault or privity of the carrier” (Rule 5.4).
33. These defences, however, are made subject to an overriding requirement that
whenever loss or damage resulted from unseaworthiness of the vessel, the MTO must prove
that due diligence was exercised to make the ship seaworthy at the beginning of the voyage
(Rule 5.4). The provisions of the Rule 5.4 are intended to make the liability of the MTO
compatible with the Hague/Visby Rules for carriage by sea or inland waterways.
34. Similar to the MT Convention, the period of responsibility of the MTO includes the
period from the time he takes the goods in his charge until the time of their delivery.21
Furthermore the MTO is also liable for the acts and omissions of his servants, agents or any
other person of whose services he makes use for the performance of the contract (Rule 4.2).
35. The limitation amounts established by the Rules for loss of, or damage to, goods are
clearly lower than those of the MT Convention. They are based on the limits set by the SDR
protocol of 1979 amending the limits of the Hague/Visby Rules. Thus, according to Rule 6.1,
unless the nature and value of the goods have been declared by the consignor and inserted in
the MT document, the MTO shall not be liable for any loss of, or damage to, the goods in an
amount exceeding the equivalent of 666.67 SDR (Special Drawing Rights) per package or
unit, or 2 SDR per kilogram of gross weight of the goods lost or damaged, whichever is the
higher. In the same way as the MT Convention, a higher limit is provided for cases where the
21 Rule 4.1. As to the definition of “delivery” see Rule 2.8.
14
multimodal transport does not, according to the contract, include carriage by sea or inland
navigation. In such a case the liability of the MTO is limited to an amount not exceeding 8.33
SDR per kilogram of gross weight of the goods lost or damaged (Rule 6.3), without any
reference to package limitation which is more appropriate for sea transport.
36. Similar to the MT Convention, specific provisions on limitation of liability of the MTO
are made for cases of localized damage. Under Rule 6.4, when the loss or damage occurs
during one stage of transport, in respect of which an applicable international convention or
mandatory national law would have provided another limit (and not a higher limit as provided
by the MT Convention) of liability if a separate contract had been made for that particular
stage of transport, then the limit of liability of the MTO for such loss or damage should be
determined by reference to the provisions of such convention or mandatory national law.
37. The liability of the MTO for delay in delivery of the goods or consequential loss or
damage is limited to an amount not exceeding the equivalent of the freight under the multimodal
transport contract (Rule 6.5). Finally, the MTO is not entitled to limit his liability if it is
proved that the loss, damage or delay resulted from a personal act or omission of the MTO
done with the intent to cause such loss, damage or delay, or recklessly and with knowledge
that such loss, damage or delay would probably result (Rule 7).
38. Rule 10 sets the period of time-bar at 9 months. Thus, the MTO will be relieved from
liability unless the suit is brought within 9 months after delivery of the cargo, or of the date
when the cargo should have been delivered. This is to allow the MTO possibility of instituting
recourse action against the performing carrier, as most unimodal conventions such as the
Hague/Visby Rules set the time-bar period at 1 year. The MT Convention provides for a
period of two years.
39. The Rules envisage the possibility of issuing both “negotiable” and “non-negotiable”
multimodal transport documents, including evidentiary effect of information contained in the
document (Rules 2.6 and 3). However, the Rules, being of purely contractual nature, it is
doubtful whether their incorporation into MT documents would have the effect of creating a
negotiable document in all jurisdictions.22 Rule 3, concerning evidentiary effect of the
information contained in the multimodal transport document, provides that such information
shall be prima facie evidence of the taking in charge by the MTO of the goods as described in
the document unless contrary indications, such as “shipper’s weight, load and count”,
“shipper-packed container” or similar expressions, have been included in the printed text or
superimposed on the document. This would mean that such pre-printed clauses would destroy
the evidentiary value of the document which is clearly undesirable. The Rule further provides
22 In a majority of countries a document of title can only be created by custom, the law merchant or
statute, but not through the agreement of the parties. This seems to be the case in German law, where a system
of so-called Typenzwang–numerus clausus–excludes from the status of negotiable transport document any
document not enumerated in the relevant commercial code and, from the status of document of title any
document not expressly recognized as such by statute. Some continental law countries do, however, permit the
parties to create negotiable documents of title by agreement through an “open system of negotiable documents
of title.” De Wit R., Multimodal Transport, 318; Recalde Castells A., El Conocimiento de Embarque y otros
Documentos del Transporte, editorial Civitas, 1992, 346-348; See for a different view as to the creation of new
documents of title Bools M., The Bill of Lading: A Document of Title to Goods-An Anglo-American
Comparison, Lloyd’s of London Press, 1997, 184-186. See as well Tantin G., Les Documents de Transport
Combiné, European Transport Law, Vol. XV No. 4, 1980, 382-383.
15
that proof to the contrary shall not be admissible when the MT document has been transferred
to the consignee, who in good faith has relied and acted on such information.
40. Unlike the MT Convention, the Rules do not include any provisions dealing with
jurisdiction and arbitration. Multimodal transport documents currently used in practice usually
provide for any dispute to be determined by the courts in accordance with the law at the place
where the MTO has his principal place of business.23
E. Related activities of other organizations
41. The lack of a uniform liability regime governing maritime and multimodal transport
operations and the proliferation of diverse national approaches, prompted a number of
organizations to initiate investigations into the subject with the aim of establishing possible
solution.
42. Following mandates from the UN/ECE Inland Transport Committee and the Working
Party on Combined Transport (WP. 24) to consider the possibilities for reconciliation and
harmonization of civil liability regimes governing combined transport, the UN/ECE secretariat
convened two informal ad hoc expert group meetings,24 to hear the views of the industry
including the relevant international organizations.25 The subject was considered by the
UN/ECE Working Party on Combined Transport at its thirty-fourth and thirty-fifth sessions
held in September 2000 and April 2001 respectively. It was also discussed by the UN/ECE
Inland Transport Committee in February 2001, and the Committee, having endorsed the work
carried out so far by the ad hoc expert group, requested the group to pursue the complex task
towards a harmonized civil liability regime covering multimodal transport operations.26
43. The Commission of the European Communities has identified the current intermodal
arrangements in its communication on “Intermodality and Intermodal Freight Transport in the
European Union”27 as “an area of friction costs.” Modally oriented cargo liability
arrangements, which do not provide the shippers with a transparent and uniform liability
regime, are considered to result in uncertainty and higher costs due to claims handling and
litigation. With a view to making an inventory of the present liability arrangements and to
identify possible approaches to solve the current deadlock, the Commission has sponsored a
study on “intermodal transportation and carrier liability” (June 1999), which examines the
problems associated with lack of coherent liability regime, including possible future regulatory
options. It is understood that, as a follow-up, the Commission has launched an investigation
into the economic impact of intermodal liability arrangements, the results of which could help
in defining a possible new approach.
23 See “MULTIDOC” 95, article 5, and FIATA FBL 92, article 19.
24 12-13 July 1999, and 24-25 January 2000.
25 See TRANS/WP.24/2000/3.
26 See ECE/TRANS/136.
27 Com (97) 243.
16
44. The Organization for Economic Co-operation and Development’s (OECD) Maritime
Transport Committee has considered the need for investigation into the existing cargo liability
regimes with a view to finding a workable solution. The objective of the OECD project was to
identify those elements of the existing cargo liability regimes governing maritime transport for
which there is no general agreement, and attempt to find workable formulations that will allow
them to be broadly acceptable to all parties. It was envisaged that such possible compromise
formulations could form the basis of a widely acceptable set of common rules for further
international consideration in an appropriate forum.28 A workshop on cargo liability, organized
by the OECD’s Maritime Transport committee (MTC)29, considered the issues identified in a
report prepared by a consultant at the initiative of the MTC, in order to establish whether
there might be some common ground or convergence that may provide some guidance to a
future diplomatic conference. The report of the workshop is “offered to interested parties, be
they governments, industry or international organizations that may in the future consider
hosting or participating in diplomatic conferences to review cargo liability, as representing the
end result of deliberations between these parties.” Thus, while the outcome is not binding on
any party, it is nevertheless intended to “offer some guidance as to the policy outcome that
may be necessary to maximise the formulation of a more comprehensive, and generally
acceptable form of cargo liability regime.”30
45. In the context of the work of the United Nation’s Commission on International Trade
Law (UNCITRAL) on electronic commerce, it was pointed out by some delegations that
fragmented and disparate national laws and legislation regarding certain aspects of transport
law other than issues of liability, as well as significant gaps left by national laws and
international conventions regarding issues such as the functioning of bills of lading and sea
waybills, did not facilitate transition of trade practices to electronic alternatives. The
UNCITRAL Commission, at its twenty-ninth session, in 1996, therefore, requested the
secretariat to be the focal point for gathering information, ideas and opinions as to problems in
transport law that arose in practice and possible solutions to those problems. Upon a request
from the UNCITRAL secretariat, the CMI began investigation of the subject. Following a
report on the progress of work within the CMI to the UNCITRAL Commission at its thirtythird
session in June 2000, the Commission requested the UNCITRAL secretariat to continue
cooperating with the CMI in order to present a report at its next session, identifying possible
future work in the area of transport law.31 In the meantime, the CMI had been preparing a
draft text of an outline instrument on transport law issues covering various aspects of
transport law including liability for loss of, or damage to, cargo. The core principles and
issues involved were discussed at the 37th CMI Conference,32 following which the Outline
Instrument is to be redrafted. It is proposed to extend the period of responsibility of the
28 See DSTI/DOT/MTC (99) 19, October 1999.
29 In January 25-26, 2001 in Paris.
30 See the report of the Workshop on Cargo Liability Regimes: http://www.oecd.org/
dsti/sti/transpor/sea/index.htm
31 See the report of the Commission at its thirty-third Session, 2 June-7 July 2000, General Assembly
Official Records, fifty-fifth session, Supplement No. 17 (A/55/17).
32 Held in Singapore in February 2001.
17
carrier to cover inland carriage preceding or subsequent to sea carriage during which he is in
charge of the goods. The outcome of the work is to be submitted to UNCITRAL.
46. The ICC ad hoc Working Group on Multimodal Transport Law and Practice, having