I. Introduction.

 

The United Nations Commission on International Trade Law will hold from 24 March to 4 April 2003 the 11^th session of the Transport Law working group in the United Nations headquarters in New York. There they will try to solve the challenge of drafting a new piece of international legislation (whether a Convention or a set of Model Rules is still up in the air) that will overcome the new reality in the transport industry: the door-to-door shipments.

 

Some claim that the existing liability regime contained in the several unimodal transport conventions (such as CMR or COTIF-CIM) is unsatisfactory as it creates uncertainty, whereas some others feel quite comfortable in a long-stabilised regime they know how to surf through in turbulent waters. Whichever case, what no one can deny is that door-to-door shipments already reached a predominant position in the transport industry and that such a reality is not contemplated with satisfactory means in any of those unimodal transport conventions.

 

One of the dramatic consequences of the new instrument covering the whole door-to-door transport could be its incompatibility with those existing regimes. To overreach that clash of international conventions certainly is a tough job, especially with the ghost of the UNCTAD Convention on International Multimodal Transport of Goods flying around. Indeed the issue of the final scope of application of the draft instrument will not be resolved next week in New York, but the working group will be able to study several possible solutions proposed by the member States.

 

In this article we will focus on several solutions, from the so-called ‘unimodal plus’ solution to those proposed by the governments of Canada, Sweden and Italy as to which would be the perfect way to tackle the door-to-door approach aiming to achieve the final goal: a single piece of international legislation able to cover door-to-door shipments with a uniform, clear and reliable liability regime.

 

  

   

II. International Convention or Model Rules?

 

The UNCITRAL Transport Law working group is considering whether the draft instrument should have the form of an international convention or a set of model contractual rules (1). UNCITRAL has good experience in producing both sorts of legislative tools with pretty much the same success, but the issue now is to balance how the transport industry players will react to one instrument or another.

 

Although an international convention is seen as the best method of ensuring a unified system throughout the world, it is also true that a convention can be seen as a less flexible tool, difficult to change and adapt to new circumstances that eventually could arise in the market. A set of model rules, albeit more flexible, would indeed bring more uncertainty due to the different regional development that they experience once adopted by a State.

 

Somehow following the UNCTAD/ICC Rules of Multimodal Transport Documents it also seen as a possibility to adopt a new maritime convention covering port-to-port carriage of goods and at the same time enact a model set of contractual rules to cover the land carriage preceding or following the maritime leg. It is obvious that a set of contractual rules are able to be adopted faster, but on the other hand they lack the status of mandatory law, and it would be less likely to achieve the desired uniformity. Taking the issue a bit further, leaving the adoption of eventual set of contractual rules up to the will of the States, will leave the issue of conflict with the mandatory provisions of certain conventions under no control, thus giving up the rational behind the draft instrument.

 

  

   

III. Current draft instrument position.

 

Currently the draft instrument contains the following provision in its draft article 4.2.1 (2):

 

 

4.2.1 Carriage preceding or subsequent to sea carriage

Where a claim or dispute arises out of loos of or damage to goods or delay occurring solely during either of the following periods:

 

 

such provisions, to the extent that they are mandatory as indicated in (iii) above, prevail over the provisions of this instrument.

 

 

This was the first approach to the issue settling down a network approach back in April 2002 (3). Under the terms of this article, the draft instrument will be displaced only where a convention which constitutes mandatory law for inland carriage is applicable to the sea leg of a contract for carriage by sea, and where it is clear that the loss or damage occurred in the course of that inland carriage. Thus in case the moment in which the damage occurred could not be determined, the draft instrument will prevail over those conventions referred to in Art. 4.2.1.

 

It is worth to point out at this stage that such network system only applies to provisions directly relating to the liability of the carrier, that is to say, limitation and time for suit. Other legal provisions contained in other conventions, which are mandatorily applicable to inland transport, are not to be replaced by the draft instrument. An example of this may be the consignment note required by the 1956 Convention on the Contract for the International Carriage of Goods by Road (CMR). This will be applicable between the carrier and the sub-carrier, but its application to the main contract of carriage regulated by the draft instrument would be inconsistent with the document (or electronic equivalent) required by the instrument for the whole journey.

 

Finally it should be noted that the draft instrument chooses the place of occurrence as the adequate moment in which to ascertain when the loss or damage took place. Thus it is understood that the place where the damage occurred, whether during the pre-carriage or on-carriage, it is elected as the perfect moment in detriment of where the damage was ‘caused’ or where the damage was ‘detected’.

 

 

   

IV. The ‘unimodal plus’ approach.

 

The first of the solutions proposed is to combine this network system with a so-called ‘unimodal plus’ system, i.e. a system requiring each unimodal convention to contain a similar conflict of convention provision (4).

   

V. The Government of Canada Proposal.

 

On 21 August 2002, Canada made its proposal regarding the system to be stabilised in the draft instrument by offering three different options (5):

 

Option one would be to maintain draft Art. 4.2.1 and adding a reservation that would permit contracting States to decide whether to implement this article and the relevant rules governing the carriage preceding or subsequent to the sea leg. This option will certainly contribute to the aim of restoring uniformity of transport law, and it will also have the added advantage that since reservation will be declared at time of ratification, it will be certain which States have reserved on the application of drat Art. 4.2.1 and which of them will make it effective.

 

Option two suggest to include the words ‘or national law’ after the phrase ‘international convention’ in draft Art. 4.2.1. This option will again contribute to uniformity of maritime transport law, but will not leave record of any declaration and thus it will be difficult to ascertain which law applies in a particular contracting State.

 

Option three suggests reviewing the whole draft instrument and setting up the following structure: four chapters should be created. Chapter one would deal with definitions and provisions common to chapters 2, 3 and 4. Chapter 2 would contain provisions governing the carriage of goods by sea on a port-to-port basis. Chapter 3 would govern the carriage of goods by sea and by other modes of transport before or after the sea leg, thus on a door-to-door basis. Chapter four would contain the final clauses and reservations, thus including express reservation made by those contracting States making a reservation for Chapter 2, or for Chapter 3 depending on whether they are willing to use the draft instrument as a door-to-door or port-to-port instrument.

 

The third option offers the advantage to contribute to uniformity by incorporating both port-to-port and door-to-door in the same instrument, whilst at the same time it will leave clear which contracting States adhere to the maritime regime only and which of them adhere to the multimodal regime contained in Chapter 3. In the long term, it would improve the prospects of uniformity as one contracting State which adhered to Chapter 2 only would be able to adhere to Chapter 3 at a later stage by merely revoking its reservation.

 

  

VI. The Swedish proposal.

 

The government of Sweden proposed on 13 December 2002 the following changes (6): firstly, to redraft the wording of draft article 3.1 on a way to make the instrument only applicable to cases where the transport agreement is truly a contract for carriage by sea and not a contract for carriage by road or rail, where the truck or wagon is transported by ferry during the sea leg, as otherwise the draft instrument will directly collide with both the CMR and the COTIF-CIM.

 

Secondly, and regarding draft article 4.2.1, the Swedish government advocates for the inclusion of an exception for national liability regimes in order to avoid eventual conflicts between national mandatory liability regimes and the draft instrument itself.

 

  

VII. The Italian Proposal.

 

 

Italy presented his proposal as well on 13 December 2002 (7). The Italian government believes that the best way to tackle the issue is to forget about the network system contained in draft Art. 4.2.1 as such a network system, they claim, creates uncertainty. Italy thus understands that the draft instrument should only apply between the shipper and the carrier while the recourse of action, if any, of the carrier against the performing carrier should remain subject to the specific rules applicable to the particular transport mode, be it by sea, by road or by railway.

 

Under this rational, it is proposed to restrict the definition of ‘performing party’ to persons other than performing carriers and, consequently, to add a definition of ‘performing carrier’ on the following suggested terms: ‘performing carrier means a person that at the request of the carrier performs in whole o in part the carriage of the goods either by sea or by [another mode] [rail or road]’.

 

 

    

VIII. Conclusions.

 

Certainly the United Nations Commission on International Law will not solve the issue on a definitive way next week in New York, even more when the Transport Law working group is still in the phase of doing the first reading of the draft instrument as elaborated by the Comité Maritime International. It will probably need to pass up to five years before the draft instrument comes finally into force.

Consideration will be given to the form of the instrument, whether an international convention or a set of contractual model rules. The ‘unimodal plus’ approach will not be disregarded and some consideration will be given to it. Also attention will be given to the three options proposed by the Canadian government, specially to the third one requiring a new structure of the draft instrument. The solutions offered by Sweden and Italy indeed will be balanced. Which solution will finally be taken is difficult to predict. It could occur that a combination of all those solutions offered may be adopted, for there is no need to constrain to one single solution as it is presented. Or it could perfectly be possible that another Member State comes up with the perfect solution at a later stage.

For the moment it is worth noting that efforts are being made to bring uniformity to the transport industry of this new millennium and that the international community is tackling the issue. Whether they are approaching it on the proper way can not be ascertained, but proposals like the Canadian government, advising to redraft the whole of the draft instrument clearly suggest that there is a long path to walk through before reaching a successful piece of international legislation.

Miquel Roca

Footnotes:

 

(1) See UNCITRAL working paper A/CN.9/WGII/WP.29, available on line at www.uncitral.org

(2) See UNCITRAL working paper A/CN.9/WGII/WP.21

(3) id. supra note 1

(4) See  UNCITRAL working paper A/CN.9/WG.III/WP.21,

(5) See  UNCITRAL working paper A/CN.9/WG.III/WP.23

(6) See  UNCITRAL working paper A/CN.9/WG.III/WP.26

⁽⁷⁾ See  UNCITRAL working paper A/CN.9/WG.III/WP.25