複合一貫輸送にかかわる法的枠組 - 真の迷宮 Part 2

Part 2: 現在の単一型の輸送条約の下で生じる法的問題。

前回Part1では、本記事の序論と背景として、複合一貫輸送取引に適用される条約の概要を説明しました。本Part 2では、現在の単一型の輸送条約が引き起こす法的な問題について、海事国際条約に絞って注目していきます。

Part 2: Legal issues arising under the current unimodal transport Conventions

In Part 1: Introduction and background of this article, we provided an overview of the international Conventions applicable to the multimodal trade. 

We shall now look at some issues which the current unimodal Conventions give rise to. In this discussion, we will be focussing only on the maritime Conventions.

2. Legal issues under the unimodal transport Conventions

i) Conflict of laws enabled by Article 2 CMR

Instead of causing a conflict situation to arise between the Hague-Visby Rules (or the Hamburg Rules) and the CMR, Article 2 of the CMR actually seeks to restrict the potential for conflict.

Take for example the hypothetical scenario of a multimodal transport which is "mode on mode" (typically road-sea-road) and it is established that the loss, damage or delay to goods occurred during the road stage. In such an instance, the CMR is applied. If, however the loss, damage or delay is known to have occurred during the sea stage, then, although the goods have not been unloaded from the vehicle, the liability of the road carrier to the consignee will be governed not by the CMR, but by the law appropriate to the sea stage (if the case falls within the proviso to Article 2(1) of the CMR.)

In situations which concern events that could only have occurred 'in the course of and by reason of that other means of transport', and the other means of transport are covered by 'conditions prescribed by law', the CMR grants the other carriage regime precedence in relation to matters concerning the liability of the multimodal transport operator.

In the case of Thermo Engineers Ltd v Ferrymasters Ltd, a heat exchanger was on an open trailer from England to Copenhagen, roll-on-roll-off out of Felixstowe. The cargo was damaged in the course of loading on the vessel, with the top of the heat exchanger hitting the vessel's bulkhead. As the carriage was contracted on the basis of ro-ro carriage under Article 2 of the CMR, the question arose as to whether the CMR or the Hague Rules applied at the time the damage to the heat exchanger occurred.

The judge noted that the CMR was intended to fit in with other Conventions and the first condition of Article 2 was satisfied as it was proven that sea carriage as understood in the Hague Rules had begun i.e. at the time the damage occurred, the loading was well advanced and the trailer had already passed over the outboard ramp and across the line of the stern. As such, it was irrelevant that the truck was moving on its own wheels.

It was therefore established that a collision with the bulkhead of the ship had taken place in the course of loading the ship and such event could only have occurred in the course of and by reason of the carriage by sea.

In Und Adriyatik,[1] the Federal Court of Germany followed the decision in Thermo Engineers in holding that when the requirements of Article 2 CMR are fulfilled; it is the Hague/Hague-Visby Rules and not CMR that governs the road carriers' liability during the sea leg. The rulings in Und Adriyatik and Thermo Engineers create a degree of certainty.  So, in every case where CMR applies during a multimodal transport operation, a careful analysis is required to establish which international convention is applicable whenever cargo is damaged.

There is, however, still potential for conflict in areas such as jurisdiction, limitation of actions and time bars which are outside the CMR's provisions on carrier liability.

For instance, if a consignee seeks to bring a claim against the MTO under a multimodal transport contract, Article 32 of the CMR prescribes a basic time bar of one year.  However, this limitation period can be extended to three years in cases of wilful misconduct or gross negligence. There would, for example, be evidence of wilful misconduct in cases where the driver of a lorry has exceeded the permissible tachograph regulations.[2]

Significantly, Article 32 covers not only claims arising out of the different articles of the CMR but all claims in connection with a transportation governed by the CMR. The time from which the period of limitation begins to run in Article 32 differs depending on the grounds upon which the claim is based. If a claim is based on the goods being partially lost, damaged or delayed in delivery the limitation begins to run from the date the goods are delivered (CMR 32.1(a)). The point as to when the goods should be considered as delivered and when the time of limitation starts to run has been considered in many cases. As a general rule, it is the time of the actual delivery of the goods to the consignee that is relevant.

Let us now take a look at a multimodal transport contract where the CMR applies to the first leg and the Hamburg Rules to the second leg. A potential conflict could arise as Article 20 of the Hamburg Rules deviates from the CMR in setting a time bar period of two years for the consignee to bring a claim against the carrier.

If such a conflict situation were to arise, Article 25(5) of the Hamburg Rules may assist. Article 25(5) which deals with potential uniform transport law conflicts determines that nothing contained in the Hamburg Rules prevents a Contracting State from applying any other international convention which was already in force on 30 March 1980[3] and which applies mandatorily to contracts of carriage of goods primarily by a mode of transport other than transport by sea.

Article 25(5) of the Hamburg Rules therefore resolves any potential conflict between Article 2 of the CMR and the Hamburg Rules simply by giving the CMR rules 'rights of way'.

The potential for conflict created by Article 2 of the CMR with the Hague or Hague-Visby Rules is rarer in practice because transport under Article 2 of the CMR including a sea stage usually concerns short-sea shipping (where generally a bill of lading is not issued). As such, there is only a chance for the Hague-Visby Rules to apply to the sea stage if a multimodal or combined transport bill of lading is issued for the entire carriage by the multimodal - or Article 2 CMR - carrier. 

Nonetheless, if one assumes that the Hague or Hague-Visby Rules and the CMR are capable of applying to separate legs of a multimodal transport contract, Article III rule 6bis of the former provides that an action for indemnity against a third person may be brought even after expiration of the time bar period and this may have the potential of creating a further cause for conflict between the two Conventions.

ii) Lack of certainty under the current legal framework

Currently, in cases of loss, damage or delay to goods during international multimodal transport, cargo claims are brought by cargo interests against the MTO under multimodal transport documents such as Multidoc 95, Combiconbill and the FIATA Multimodal Transport Bill of Lading

Some multimodal carriers and non-vehicle owning carriers have adopted their own in-house standard form negotiable and non-negotiable bills of lading, for example, P&O Nedlloyd's Bill of Lading for Combined Transport or for Port to Port shipment. Non-negotiable transport documents specifically devised for multimodal transport include BIMCO's MULTIWAYBILL and COMBICONWAYBILL

All of these documents provide for a more or less complete contractual liability regime with clear rules on the basis of liability, available defences at different stages of the voyage, applicable limitation periods and time bars. However, it should be noted that each and every bill of lading devises its regime differently on the basis of a concept known as the limited network liability system.

The aim is to avoid insofar as possible, interference with mandatory regimes applicable to unimodal segments of the adventure. In practice, this means that the outcome of every single claim depends on the wording of the contract and the specific circumstances of the case. In some circumstances, more than one Convention may apply to the same claim, yet under the current system, each Convention proceeds without reference to the other. This has resulted in a distinct lack of uniformity between the international Conventions relating to the carriage of goods by sea, land and air.

Under the current network liability system, faced with an excessively fragmented and complex legal regime. The applicable liability regime varies depending upon the stage of the transport where the loss, damage or delay to goods occurred.  Cargo interests often have to seek legal guidance on which legislation or Convention is applicable to their claims, and the extent to which such legislations and Conventions apply.[4]

The above uncertainty has an impact on the insurance market.  The difficulty in assessing the carrier's full risks exposure in advance has the effect of driving up insurance costs, which distorts the insurance market in general.

The current unsatisfactory situation is not attributable just to the lack of an international multimodal convention, but rather to the presence of numerous unimodal conventions that are mandatorily applicable to different legs of the multimodal carriage of goods. Each unimodal convention is seeking to tackle specific multimodal problems on a "piecemeal basis". It is clear that the current approach is not adequate and there is a need for a new approach.

iii) Is a multimodal transport document a bill of lading or similar document of title making it subject to the Hague-Visby Rules?

A multimodal transport document will in many cases be governed at different stages by different legal requirements under the conventions governing each mode because there is hardly any national and no international legislation whatsoever governing this type of document. In general terms, a multimodal transport document such as a combined transport bill of lading will generally be viewed as a 'received for shipment' bill of lading. There is no clear legal authority providing that this document can constitute a document of title i.e. a document whereby property and possession in the goods can pass during the voyage without an attornment from the carrier. A multimodal bill of lading may be regarded as a negotiable transport document only if it is issued "to order" and the last leg of the carriage is a sea shipment.

A further argument that a combined transport bill of lading does not generally amount to a document of title centres on the fact that the document may be issued by someone other than the actual sea carrier, for example, a freight forwarder.[5] It is doubtful whether this document can confer constructive possession in the goods to which it refers when the contractual carrier has never taken the goods into its physical possession.

It is clear however that what matters is not the physical reception of the goods by the carrier, but the performing carrier's contractual capacity to control delivery. This was established in the case of Spectra International plc v Hayesoak Ltd[6] where it was decided that a party could become a bailee of goods, even without taking physical possession of the goods, by obtaining a right to give directions to the warehouseman as to their delivery.

[1] "UND ADRYATIK" BGH, Judgment of 15 December 2011 - I ZR 12/11 - OLG München

[2] As seen in the case of Denfleet International Ltd v. TNT Global Spa [2007] 2 Lloyd's Rep. 504

[3] the date of the Convention

[4] Haedong Jeon (2013) "Coping with muddles and uncertainty in the field of multimodal transport liability", University of Southampton, Faculty of Business and Law, PhD Thesis.

[5] As seen in The Maheno [1977] 1 Lloyd's Rep 81, NZ. Ct.

[6] [1998] 1 Lloyd's Rep 165, CA