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09 February 2005
A Multimodal Convention
The Network Principle
The United Nations Commission on International Trade Law (UNCITRAL) is preparing a new convention for the carriage of goods by sea. It is assumed that the working group entrusted with preparing the convention will complete its task during 2006.
The aim of the new convention is to replace existing conventions on the carriage of goods by sea currently in force with a new liability regime. The current conventions range from the carrier-friendly Hague Rules to the more cargo-friendly Hague-Visby Rules and the even more cargo-friendly Hamburg Rules. Important differences between these conventions include the following:
The Nordic countries have ratified the Hague-Visby Rules, but have taken the Hamburg Rules into consideration where implementing them into their maritime codes to the extent that they do not conflict with the Hague-Visby Rules. By replacing these different liability regimes on carriage of goods by sea, the issue of forum shopping will become less acute and increased legal certainty will result.
The liability regime in the UNCITRAL draft convention is well known: the carrier is liable unless it is able to prove that it has exercised due diligence or an exception from liability applies (eg, an act of God, perils of the seas and latent defects of the goods). However, the exemption from liability in cases of error in the navigation or management of the vessel has been removed, and the fire exemption in the Hague and Hague-Visby Rules modified. These amendments follow the Hamburg Rules, even though shipowning countries opposed the Hamburg Rules partly on the basis of the liability regime.
In a hearing letter earlier this year, the Norwegian delegation to the working group stated that time has elapsed since the exemptions from liability in the Hague and Hague Visby Rules were introduced - particularly with regard to cases of error in the navigation and management of the vessel. The delegation argued that it is more likely that a convention will accede widespread acceptance today than when the Hamburg Rules were introduced. It remains to be seen whether this will occur.
A Multimodal Convention
A trend in the liner trade is for carriage to be provided on a door-to-door basis (eg, where goods are shipped in a container from Trondheim to Oslo by road, from Oslo to Rotterdam by ship and from Rotterdam to Berlin by railway). The examination of the goods carried in a container often occurs only at the beginning and end of the journey. Therefore, it is often difficult to ascertain at what stage the goods were damaged and thus which liability regime is applicable to the relevant transport stage. In the example above, the Convention on the Contract for the International Carriage of Goods by Road (1978) and the Convention concerning International Carriage by Rail (1980) would be relevant.
The need for a single liability regime applicable to the whole carriage, notwithstanding the different modes of transport, is addressed in the UNITRAL draft convention. Whereas the Hague, Hague-Visby and Hamburg Rules only apply to carriage of goods by sea, the UNCITRAL draft convention also applies to other modes of transport - it is a multimodal convention. Indeed, the liability regime of the draft convention will apply to carriage of goods by road, rail or air, provided that transport is international and includes a sea leg.
The Network Principle
However, the multimodal aspects of the UNCITRAL draft convention are mediated by the so-called 'network principle'. The essence of the principle is that if the damage, loss or delay of the goods is proven to have taken place during transport by a means other than ship, the relevant unimodal conventions apply. Thus, the draft convention may well in effect complicate matters by introducing another layer of rules applicable to transport not performed by sea.
For further information please contact Gaute Gjelsten or Trond Eilertsen at Wikborg, Rein & Co by telephone (+47 22 82 75 00) or by fax (+47 22 82 75 01) or by email (email@example.com or firstname.lastname@example.org).
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