Ellen Eftestøl-Wilhelmsson The InterTran research group The Norwegian Maritime Law Commission´s recommendation on the Rotterdam Rules. A Comment to the solution on multimodal carriage Ellen Eftestøl-Wilhelmsson The InterTran research group Faculty of Law / Ellen Eftestøl-Wilhelmsson 18.9.2018

A Comment to the solution on multimodal carriage Many aspects Here one or two perspectives: The prosed solution to the conflict with existing unimodal conventions Possible impact of the Norwegian draft on the EU process Faculty of Law / Ellen Eftestøl-Wilhelmsson 18.9.2018

A Comment to the solution on multimodal carriage NMLC: “...important to create clarity in relation to other transport conventions” Why ? The unimodal conventions might be applicable to multimodal contracts in different situations. If they are, we will have a conflict of conventions which needs to be clarified Faculty of Law / Ellen Eftestøl-Wilhelmsson 18.9.2018

A Comment to the solution on multimodal carriage Rail, air, road Contractual approach Applicable if there is a contract of carriage by one of the modes in question Concern goods, against reward, international trade Sea Hague-Visby – documentary approach Applicabel if bill of lading Hamburg - contractual approach The unimodal conventions are applicabel to contracts of carriage by one of the modes in question. How this is to be understood in a multimodal context is not clear Faculty of Law / Ellen Eftestøl-Wilhelmsson 18.9.2018

A Comment to the solution on multimodal carriage RR art 82 NMC § 258 does not solve the problem All conventions mentioned in RR art 82/NMC § 258 regulate multimodal transport in specific situations (ex “piggyback” carriage in CMR art 2) According to RR82/NMC 258 the relevant convention supersedes the RR/NMC and governs the whole transport (including the sea leg) Faculty of Law / Ellen Eftestøl-Wilhelmsson 18.9.2018

A Comment to the solution on multimodal carriage In other situations: “The transport conventions should be construed restrictively, in line with recent continental European cases” “When no mandatory set of rules apply, one of the transport regimes should apply as gap-filling law and it should primarily be for the commercial parties to clarify which one” HOW? Section 258 RR 82 adresses the situation when the unimodal conventions have an extended scope, and directly regulates a multimodal situation, fex CMR art 2. Differs from the general problem Faculty of Law / Ellen Eftestøl-Wilhelmsson 18.9.2018

A Comment to the solution on multimodal carriage The Norwegian Maritime Law Commission takes a clear position in the international “debate” on how to interpretate the general scope of the existing unimodal conventions. “.. should be construed restrictively” And perhaps also a position in the discussion of the legal nature of the multimodal contract as sui generis or nothing more than the sum of the (presumed) unimodal contracts it is made up by, a functional perspective. Sui generis – perhaps the German view Functional perspective, the Brittish approach Start by discussing the restrictive interpretation – what is this European situation mentioned? Intersting that the Commission mentiones continental european cases, and not European cases. Faculty of Law / Ellen Eftestøl-Wilhelmsson 18.9.2018

A Comment to the solution on multimodal carriage Regarding the restrictive interpretation: Continental Europe vs. Common Law? The German Supreme Court (sui generis) BGB 17 Jul. 2009 TransportR 2008, 365-368 The Quantum case (a functional approach) Quantum Corporation Inc. and others v.Plane Trucking Ltd and another, [2002] 2 Loyd´s Rep. 25, Faculty of Law / Ellen Eftestøl-Wilhelmsson 18.9.2018

Quantum: What happended? In September 1998 an air waybill was issued by carrier Air France to the claimants, Quantum Corporation. The air waybill provided for the carriage of hard disk drives from Singapore to Dublin by air. However, since the air waybill allowed trucking, parts of the air transport could, and were, substituted by road transport. The carriage from Singapore to Paris was performed by air and the carriage from Paris to Dublin was to be perfomed by road and roll-on-roll off carriage Faculty of Law / Ellen Eftestøl-Wilhelmsson 18.9.2018

Quantum: the damage/loss The trucking leg was performed by Plane Trucking, a regular contractor of Air France. The goods were loaded on to a trailer operated by Plane Trucking for transport to Ireland. The trailer was shipped across the Channel to England. During the road leg the consignment was lost in a fake ”hijack” in which the truck driver was implicated. Quantum Cor claimed compensation for the loss Faculty of Law / Ellen Eftestøl-Wilhelmsson 18.9.2018

Quantum; Air France´s position Air France admitted liability for the loss, but argued that the carriage by air subject to the Warsaw convention ended at Charles De Gaulle ariport, and thereafter its liablity was to be determined by reference to its own terms and conditions. (p 28-29) A restrictive interpretation: No international regim cover the road leg of this transport Faculty of Law / Ellen Eftestøl-Wilhelmsson 18.9.2018

Quantum Air France´s conditions Air France´s conditions contained a limit of liabilty of 17 SDR per kilogram (art 11) More generous than the CMR limit of 8.33 SDR But no provision such as art 29 of the CMR disentiteling Air France from relying on the limit in the event of wilful misconduct. Faculty of Law / Ellen Eftestøl-Wilhelmsson 18.9.2018

Quantum Corporation´s position Although only one contract of carriage, Air France had contracted not only for the carriage of goods by air to Charles De Gaulle, but also for their carriage by truck to Dublin. Air Frances conditions are contractual and thus subject to any applicable convention. According to the claimants the relevant convention was the CMR Under CMR Air France´s liabilty would most likely be unlimited becuase of the wilful misconduct of the driver Faculty of Law / Ellen Eftestøl-Wilhelmsson 18.9.2018

Quantum: The first question Does or does not the CMR apply to a road stage as performed under the contract as concluded here? Or – in a brother sence: Does the application scope of the CMR as mentioned in art 1 CMR cover stages of international road carriage performed under a multimodal contract (a contract which includes other modes of transport in addition to road carriage)? Faculty of Law / Ellen Eftestøl-Wilhelmsson 18.9.2018

Quantum: The first instance, judge Tomlinson The Judge considered that art 1 CMR required any contract for road to be charachterized as a whole The instant contract could not be described as a contract of carriage by road, but rather as a contract of carriage by air. The place of taking over the goods could only be in Singapore. Perhaps the contract could be seen as one of both road and air, which again is not a contract of carriage by road. Faculty of Law / Ellen Eftestøl-Wilhelmsson 18.9.2018

Quantum: The Court of Appeal, Judge Mance The appeal raises a principle question regarding the applicability of the CMR , see CMR art 1: ”This convention shall apply to every contract for the carriage of goods by road..” On the present contract: A contract providing for transport in two stages, one by air, the other by road. That the contract was reflected in an air waybill does not affect this conclusion, when the air waybill itself records the two different stages. Document has no impact on the characterisation of the contract – when both stages are reflected in the contract. Faculty of Law / Ellen Eftestøl-Wilhelmsson 18.9.2018

Quantum: the two questions The first is to what extent the application of the Convention depends upon a carrier having obliged itself contractually to carry by road (and by no other means) The second question is to what extent a contract can be both for the carraige of goods by road, within art 1, and for some other means of carriage, to which CMR does not apply. Faculty of Law / Ellen Eftestøl-Wilhelmsson 18.9.2018

The first question The first is to what extent the application of the Convention depends upon a carrier having obliged itself contractually to carry by road (and by no other means) Allthough CMR has a contractual approach, this does not answer the question on what aspect of the contractual position and at what date does it focus. The Judge prefers an approach to which the application of the CMR depends upon the occurence of international carriage of goods by road pursuant to contract. Does the application of the convention depend on a carrier having obliged itself – or is the Faculty of Law / Ellen Eftestøl-Wilhelmsson 18.9.2018

Quantum: A broad interpretation of ”contract” ”I see no difficulty therefore in concluding that the determination whether there exists a contract for the carriage of goods by road within art 1. should take into account the actual operation of the contract under its terms” (p 31) Supports this point of view at p 31: the rights and liabilties which the Convention (CMR) regulates are those arising out of actual carriage by road under a contract to which the Convention applies. Faculty of Law / Ellen Eftestøl-Wilhelmsson 18.9.2018

The second question The second question is to what extent a contract can be both for the carraige of goods by road, within art 1, and for some other means of carriage, to which CMR does not apply. ”I see both attraciton and force in a conclusion that art 1 may be read as applying CMR to the international road carriage element for a mixed or multimodal contract” (p 33) Discusses the impact of art 2 – a broad interpretation of art 1 is not inconsistent with art 2 (p 33) Faculty of Law / Ellen Eftestøl-Wilhelmsson 18.9.2018

The second question ’”The place of taking over and place designated for delivery, as specified in the contract, can – at least in art 1 – be read as referring to the places which the contract specifies for the taking over and delivery by the carrier in its capacity as international road carrier” Conclusion: CMR may apply to the international road carriage element of a mixed or multimodal contract (p 33) Faculty of Law / Ellen Eftestøl-Wilhelmsson 18.9.2018

The result: CMR has a contractual approach In the Quantum case this was interpreted broadly – taking into account the actual operation of the contract under it´s terms Pragmatic view In Germany not accepted– based on a sui generis view of the multimodal contract (BGH 17 July 2008) ” Faculty of Law / Ellen Eftestøl-Wilhelmsson 18.9.2018

BGH 17 July 2008 Question: Is CMR applicable in any other situation than the “piggyback” situation regulated in art 2? The wording does not exclude multimodal contracts But, due to a legal opinion given by the German Government (The Bundesrigerung) stating that the CMR is only applicable when the transport is undertaken solely by road, CMR cannot be used on multimodal transports Followed up by German legislator ¨ Faculty of Law / Ellen Eftestøl-Wilhelmsson 18.9.2018

A Comment to the solution on multimodal carriage Nordic traditional view; pragmatic – what constitutes a contract is the “actual operation” Danish U 2008.1638H in line with the Quantum case. The Norwegian Maritime Law Commission presents a formal approach to reach a pragmatic solution. Ufr 2008. 1638 The cort ruled that the CMR was appliccable to goods damaged under the road leg in Germany during a carriage from Billund to Narita (Japan) fia Frankfurt. AN airwaybill was issued by the air subcarrier from Billund to Narita, but as the contractual carrier had used its option to substitute part of the carraige by another mod of transport, this per se triggered the applicability of the CMR – which could not be used as the claim was superseded. Faculty of Law / Ellen Eftestøl-Wilhelmsson 18.9.2018

A Comment to the solution on multimodal carriage “When no mandatory set of rules apply, one of the transport regimes should apply as gap-filling law and it should primarily be for the commercial parties to clarify which one” a) If agreed by the parties; the agreement should be respected by the courts b) If not, other indicators are: The dominant element of the multimodal carriage The transport document used Previous practise Faculty of Law / Ellen Eftestøl-Wilhelmsson 18.9.2018

A Comment to the solution on multimodal carriage An example where no convention apply? - Unimodal conventions only apply to multimodal transport in certain situations (fex CMR art 2) If this is the case, the unimodal convention supersedes Otherwise, RR/NMC Are the prepartory works applicable to the interpretation of other multimodal situations, were a sea leg is not included? Faculty of Law / Ellen Eftestøl-Wilhelmsson 18.9.2018

A Comment to the solution on multimodal carriage The impact on the European discussion on a regional regim on multimodal transport. The EU is struggeling with the same question as the Norwegian Maritime Law Commission: the need of clarity towards existing conventions. The Norwegian approach is a good example on how the problems can be solved: Faculty of Law / Ellen Eftestøl-Wilhelmsson 18.9.2018

A Comment to the solution on multimodal carriage The EU Member States could adopt the Rotterdam Rules (or another regional regime on multimodal transport) together with a corresponding EU convention on non-maritime multimodal transport. The EU has competence to legislate in this area. Rules on interpretating national legislation that might interfer with the EU instrument, or national adopted legislation, could be passed on an EU level, or on a national level. Faculty of Law / Ellen Eftestøl-Wilhelmsson 18.9.2018

A Commenta to the solution on multimodal carriage Best example in promoting sustainable carriage: The proposed NMC § 261.2 : ”It should be assumed that the transport must be planned and implemented with due regard to the environment " Faculty of Law / Ellen Eftestøl-Wilhelmsson 18.9.2018