IMPLEMENTATION OF MULTIMODAL TRANSPORT RULES

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

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