Multimodal carriage with a pinch of sea salt

The current framework of international carriage law is made up of a collection of conventions, all of which deal with the carriage of goods by only one specific mode of transport. A convention which specifically deals with multimodal carriage is still lacking however. The new Draft Convention on carriage of goods wholly or partly by sea by UNCITRAL and CMI intends to fill this gap, at least insofar as it concerns multimodal carriage of goods including a sea stage. The article provides an overview of the present carriage conventions in relation to multimodal carriage and attempts to predict the consequences of the addition of the new Draft Convention to this mutlicolored tapestry

CMR of EEX? Van samenloop, litispendentie en het vrij verkeer van beslissingen in Europa. Hof van Justitie EU 4 mei 2010, zaak C-533/08 (TNT Express/AXA)

Abstract The seed from which the problem sprouted in the TNT-AXA case is the fact that the CMR, an international road carriage convention, refers to national law in Article 29 CMR. This Article determines that if the CMR carrier has caused damage to the cargo ‘by such default on his part as, in accordance with the law of the court or tribunal seised of the case, is considered as equivalent to wilful misconduct’, he is no longer entitled to exclude or limit his liability under the CMR. As a result, it is more likely for a German court of law to consider that a CMR carrier has caused damage by such default than for a Dutch court. Since this type of default denies the carrier the option to limit his liability to approximately Euro 11½ per kilogram as per Article 23 CMR, it is in the carrier’s best interest to avoid the German legal system. Initially carriers thereto sped to Dutch courts in order to gain declaratory judgments of non-liability, or at least limited liability when damage occurred. As soon as the case became pending, it was thought that the lis pendens rule of Article 31(2) CMR would bar the cargo interest’s access to any other forum, including the German one. However, when the German Bundesgerichtshof (the BGH) determined that such an action for a negative declaration did not concern the same subject as an action for a substantive claim, parallel proceedings before a German court became an option. At that point it was no longer sufficient for the carrier to be the first to address a court. It became necessary to be the first to gain a final decision in order to bar the recognition and enforcement of any German decisions on the subject in the Netherlands. Unfortunately for TNT, the Dutch court of first instance that was addressed in the web of the TNT-AXA proceedings failed to decide in a manner that was favourable to the carrier. TNT was therefore forced to appeal, with the result that there was no final decision on the matter when the cargo interest’s insurer, AXA, attempted to have the judgment it had sought in Germany recognised and enforced in the Netherlands. To prevent this, TNT asserted that, according to Article 71 Brussels I Regulation, it is not the Brussels I Regulation but the CMR that determines whether this is possible, because it was of the opinion that the CMR would prevent the recognition and enforcement of the German judgment on the grounds that the German court had no jurisdiction, due to the CMR’s lis pendens rule. Conversely, the Brussels I Regulation only offers the option to refuse recognition because the court whose decision is to be recognised lacked jurisdiction in a very limited set of situations. None of which occurred in the TNT-AXA case. All in all, it took six legal procedures and seven years for the parties to reach the ECJ, the European Court of Justice. When asked whether the recognition and enforcement was in this case governed by the CMR or by the Brussels I Regulation, and whether some light could be shed on the meaning of Article 31 CMR, the ECJ determined that it was indeed the CMR that regulated the matter as it, in principle, is granted precedence by Article 71 Brussels I Regulation, and that it did not have the authority to interpret the meaning of the provisions of the CMR as this is not an EU instrument. However, since Article 71 Brussels I Regulation cannot be interpreted as leading to a result that is irreconcilable with one of the basic principles of the Brussels I Regulation, the favor executionis principle in this case, the rules of the CMR can only apply in the EU Member States insofar as they lead to a result that is in accordance with this principle. The precedence of the CMR can therefore not result in the recognition and enforcement of the German decision being rejected. Thus, it is only in theory that the rules of the CMR govern the matter, not in actual practice

Multimodal Transport Law: The law applicable to the multimodal contract for the carriage of goods

Published in the series 'Aviation Law & Policy'. We only have to look around us on the road while we travel to work or home, or to use our eyes at a railway station to know that the transport of goods takes up a lot of the room our modern day infrastructures provide. Sometimes perhaps a little too much; nowadays congestion seems to be the rule rather than the exception. This is an uncomfortable side effect of the explosive growth freight transport has experienced the last few decades1. Modern day transport offers a considerable array of possibilities; possibilities that are – for the most part – taken for granted by the general public that enjoys their benefits. The average European would not be surprised to learn that the fruit on offer in the local supermarket originates from another continent for instance. The idea that most of the things we use in our daily routine stem from a distant source, such as a cell phone from Japan, a trendy pair of designer jeans made in China or a glass of Australian wine, seems completely natural to us. Clearly the contemporary transport industry offers us a lot of benefits besides such discomforts as congestion and pollution. In earlier times, before machinery such as the steam engine had been invented it was hardly cost effective – or even feasible when it came to perishables – to carry goods halfway around the world if they were not at least valuable and extraordinary2. The limitations set on trade by the transport structures available did more however than simply curtail the range of affordable products on offer for the public. They also had a negative effect on the location of the industry, limited transport possibilities and forced production to take place near or in heavily populated areas to secure the necessary workforce and market possibilities. After all, industrial decentralisation is only feasible if there is an infrastructure capable of supporting a cost effective movement of goods and employees3. The transport possibilities our contemporary society offers make decentralisation feasible. Today’s commercial actors use sophisticated systems weighing relevant factors such as storage costs, the placement of production facilities and transportation expenses against each other in order to generate the highest possible profits

Arrangements of intermodal transport in the field of conflicting conventions

The continuing advance of containerization emphasizes the need for a more uniform legal approach to international intermodal transport. With the current lack of a uniform instrument regulating such transport, the next best solution - both in legal theory as well as in practice - seems to be the broadly accepted network system knitting the existing unimodal transport regimes together. However, problems arise in reconciling the principles of the network system with the more desirable uniform approach of multimodal transport operations. This article looks at the `maritime plus' approach in the UNCITRAL/CMI Draft Instrument against the backdrop of the scope rules of the existing unimodal transport conventions, and the CMR Convention in particular

Maritime Plus and the European status quo. The current framework of international transport law, ‘maritime plus’ and the EU

Intro...The use of standardised intermodal containers, which enhances the safety of goods in transit and reduces operating costs, has caused multimodal transport to become a global phenomenon since its introduction in the maritime environment during the previous century. Despite its practical success, however, the proliferation of this type of transport has up until now not been matched by suitable uniform legislation. Political discord and the fact that the use of more than one mode of transport under a single contract complicates the legal situation exponentially probably lie at the root of this deficiency. Although the multimodal contract of carriage contends with some other legal impediments, the most prominent one seems to be that of ambiguity with regard to the applicable law. The reason for the obscurity in this area is that there is no international multimodal transport convention to lay the ground rules on how to approach a multimodal contract

Intermodal transport under unimodal arrangements

When it comes to determining the applicable legal regime in relation to cargo claims multimodal carriage contracts generate ample work for the judiciary. Due to the unimodal orientation of the existing uniform carriage law and the differences in opinion as to how their scopes of application are to be interpreted the question which legal regime applies is not easily answered. Especially the CMR which regulates international road carriage has been a focalpoint for many a discussion in this light. In the article issues such as the CMR's scope of application and the consequences of its jurisdiction rules are discussed in relation to multimodal carriage