複合一貫輸送にかかわる法的枠組 - 真の迷宮 Part 1
物品の複合一貫輸送は本質的に複雑なものです。 これは複合一貫輸送取引を管理する国際的に認められた規則がないため、さらに複雑さが増しています。 複合一貫輸送契約の下では、船主は運送人または複合輸送オペレーターとなりますが、船主の責任に適用される規則は、海上、空路および陸路による物品の輸送に関する国際条約がモザイクで適用されています。
Part 1: Introduction and background
The multimodal transportation of goods is inherently complex. This complexity is further complicated by the absence of internationally accepted rules governing the multimodal trade. While the shipowner is often the carrier or multimodal transport operator under the multimodal transport contract, the rules applicable to the liability of the shipowner are embodied in a mosaic of International Conventions relating to the carriage of goods by sea, by air and by road.
Part 1 of this article starts with an overview of the Conventions applicable to the multimodal trade. Part 2, to follow, will look at the legal issues arising under the current unimodal transport Conventions. Part 3 will then conclude with a discussion on some proposed solutions for achieving a more harmonised multimodal transport industry.
1. Legal framework under the maritime Conventions
The Hague and Hague-Visby Rules
The Hague and Hague-Visby Rules are applicable "only to contracts of carriage covered by a bill of lading or any similar document of title insofar as such document relates to the carriage of goods by sea" (Article I (b)), the so-called "tackle to tackle" period.
The Hague and Hague-Visby Rules do not mention multimodal carriage nor do they extend their scope of application beyond international carriage by sea under a bill of lading. The Hague-Visby Rules apply principally to the document covering the carriage contract i.e. the bill of lading.
Devlin J in Pyrene Co Ltd v Scindia Navigation Co Ltd [1954] 2 QB 402, held that the Hague/ Hague-Visby Rules are capable of applying to the sea stage of a multimodal transport contract. It is also the prevailing view among British academics today that multimodal transport documents meet the requirements of Article 1(b) of the Hague-Visby Rules. The effect of this would be that the Rules are capable of applying to the sea leg of a multimodal journey.
In Mayhew Foods Ltd v Overseas Containers Ltd (1984, 1 Lloyd's Rep. 317), the English High Court ruled in favour of applying the Hague-Visby Rules to the intermediate storage period (between two separate periods of sea carriage) of a container at port, albeit only because the Hague-Visby Rules applied throughout the entirety of the transport operation in this case. The result of this decision nevertheless is that whenever goods are shipped from a contracting state under a bill of lading (or similar document of title) and the document covers the entire sea carriage through to the ultimate destination, despite any intermediate transhipment, the requirements of Article X will be satisfied and the Hague or Hague-Visby Rules will control the operation throughout.
The Hamburg Rules
The most significant difference between the Hague / Hague-Visby Rules and the Hamburg Rules lies in the scope of their applications to sea carriage. The Hague and Hague-Visby Rules apply to contracts of carriage covered by bills of lading, but only for the "tackle-to-tackle" period whilst the Hamburg Rules contain a specific reference to multimodal transport and they apply to the entire contract of carriage by sea.
Contracts of carriage by sea are defined in Article 1.6 of the Hamburg Rules, and the second paragraph thereto provides for the Hamburg Rules to apply in situations where the carriage of goods by sea is part of a larger multimodal transport contract. Thus, under the Hamburg Rules, the multimodal transport operator in a transport involving transhipments remains responsible for the entire sea voyage, with each carrier being liable on the "port to port" principle.
Another important distinction between the Hamburg Rules and the Hague/ Hague Visby Rules is that the Hamburg Rules cover the entire time that the carrier is 'in charge of the goods' starting at the port of loading and ending at the port of discharge. This could include a pre-loading period and a post-loading period. It is clear from Article 4(1), which specifies the carrier's period of responsibility, that the Article was designed to remedy the 'before and after' problem created by the Hague-Visby Rules.
As with the air carriage Conventions (which are discussed at a later stage), the Hamburg Rules recognise the reality of door-to-door transport. The Hamburg Rules differ however in that they acknowledge that a contract of carriage by sea can also involve carriage by some other means while still remaining a contract of carriage by sea.
Under the Hamburg Rules, the terms multimodal contract and contract of carriage by sea are not deemed mutually exclusive. The sea carriage contract is one of the parts which make up the larger multimodal transport. In spite of the incorporation of other means of transport in the contract, the Hamburg Rules do not apply to the whole of the contract. Their application is restricted to the international sea stage.
The Rotterdam Rules
As with the Hamburg Rules, the Rotterdam Rules (formally, the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea) were initially intended to be a Convention based on the "port-to-port" principle. The drafters of the Convention however also wanted to address the multimodal gap in international Conventions, and the increasing door-to-door containerised trade which was making multimodal carriage contracts (instead of port-to-port contracts) the norm.
The Rotterdam Rules were clearly intended to apply to the whole of a contract of carriage which comprises a sea leg, including the stages that are to be performed by road and air. Nevertheless, the text of the Convention does not mention multimodal transport. In fact, its scope of application relates to door-to-door transport. As per its definition of a contract of carriage (Article 1(1)), the Rotterdam Rules apply to unimodal transport when the contract of carriage only provides sea transport, but it also has a dual capacity of operating as a multimodal Convention when the contract provides for sea carriage and carriage by other means of transport.
It is important to note the reference to "wholly or partly by sea" in the title of the Convention itself and in the provision on its scope. This reference implies:
1) that the Rotterdam Rules cover more than sea carriage alone; and
2) that the Convention was originally conceived as a maritime law draft;
3) that the presence of a maritime leg in the contract of carriage is a pre-requisite of its application.
From this, it is clear that the Rotterdam Rules are not a true multimodal Convention. Multimodal transport (without carriage by sea) is excluded from its scope of application, and this is why some commentators regard the Convention as only being applicable to "wet multimodal" transport operations.
The Convention's limited scope as explained above contradicts the wider objective as announced in its preamble which is that of creating a "binding universal regime to support the operations of contracts of maritime carriage involving various modes of transport". One can argue that the Rotterdam Rules, instead of promoting unification, has only had the effect of increasing the complexity of the existing multimodal transport regimes. This would go some way to explaining why the Convention has (on 19th June 2019) only been ratified by Spain, Togo, Cameroon and the Republic of the Congo.
2. Legal framework under the air and road Conventions
i) Carriage of goods by road
Due to the increase in door-to-door transport, carriage of goods by road has become increasingly important. Road transport plays a role in almost every multimodal carriage and is often the only available form of transport in parts of the world. It is regarded as a more flexible and cheaper way of transporting goods. The Convention on the Contract for the International Carriage of Goods by Road (CMR) 1956 is the international agreement that contains the rights, obligations and liabilities of parties involved in road transport operations.
The CMR's explicit provision on multimodal carriage is contained in Article 2(1) which provides that "where a road vehicle containing goods is carried over part of the journey by sea, rail, inland waterways or air, and the goods are not unloaded from the vehicle, the CMR shall, nevertheless, apply to the whole of the carriage.".
The CMR is therefore capable of applying to a multimodal transport contract which is partly by road and partly by sea or air, provided that the relevant stages, taken separately or together, involve an international movement of goods from one State to another, with the goods remaining on the road vehicle.[1]
The CMR does not contain clear wording which states that it is applicable to the road leg of a larger multimodal transport contract. However, in Quantum Corporation Inc v Plane Trucking Ltd. And Another [2002] EWCA Civ 350, the multimodal transport contract had an air leg from Singapore to Paris followed by a road leg (roll-on-roll-off) to Dublin, Ireland. The English Court of Appeal held in this case that the CMR was capable of applying to the road leg of a larger multimodal transport contract which covers more than one mode of carriage.
Despite the fact that multimodal transport can take more than one form, Article 2(1) of the CMR is only concerned with "mode on mode" transport i.e. where one means of transport is carried on another, such as a roll-on-roll-off carriage across the English Channel.
ii) Carriage of goods by air
The first international instrument governing air carriage was the Warsaw Convention. The Convention has however largely been superseded by the Montreal Convention. Many other Rules and Conventions on the carriage of goods by air have also been codified, modified and updated in the Montreal Convention. Article 55 of the Montreal Convention provides that its provisions shall prevail over any rules which apply to international air carriage between States party to the Convention by virtue of the parties commonly being party to the previous instruments. The following discussion will therefore focus predominantly on the Montreal Convention.
Article 1 of the Montreal Convention provides that "this Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward". The provisions on multimodal carriage are however contained in Articles 38(1) and 18(4).
Article 38(1) provides that "in cases of combined carriage performed partly by air and partly by any other mode of carriage, the provisions of this Convention shall, subject to Article 18(4), apply only to the carriage by air". Insert what Article 18(4) says. As such, the Montreal Convention is not capable of applying to the whole of a multimodal transport contract, and will only apply to the air leg.
Article 18(1) of the Montreal Convention begins by limiting the period in which the multimodal transport operator may be liable for loss, damage or delay to cargo, "The carrier is liable for damage sustained in the event of the destruction or loss of or damage to, cargo upon condition only that the event which caused the damage so sustained took place during the carriage by air."
The Convention's scope of application, as set out in Article 38, is also restricted to "carriage by air". Carriage by air is defined in Article 18(3) and (4). Significantly, the combination of Article 18(3) and the first sentence of Article 18(4) restricts the period of the "carriage by air" insofar as the multimodal transport operator is concerned to the period when he is in charge of the goods during the actual air carriage, within the confines of an airport.
There are however now more and more road movements within the commercial areas of an airport to which the air regime can apply. For instance, in Rolls Royce plc v Heavylift-Volga [2000]1 Lloyd's Rep 653, the claimant's goods had been taken into the charge of the carrier's agent when the latter started to unload them from the claimant's delivery lorry. The English Court concluded that the point when the goods were unloaded from the claimant's delivery lorry constituted carriage of goods by air for the purposes of Article 18 of the Warsaw Convention. The "airside" and "landside" divisions within the East Midlands Airport were irrelevant for the purpose of determining whether damage to the claimant's goods had occurred "inside an aerodrome".
