E-Commerce and Transport

Report
3rd Global Sipping Summit
7-9 November 2008, Dalian, China
International Multimodal Transport:
A New Approach to Liability Regulation
Dr. Mahin Faghfouri
International Multimodal Transport Association
International Multimodal Transport:
A new approach to liability regulation
I.
Introduction and background
II.
Regulation of liability: Current liability framework
III.
The new Transport Convention:
Convention on Contracts for the International
Carriage of Goods Wholly or Partly by Sea
- Impact on multimodal transport
- Central features
I. Introduction and background
What is multimodal transport?
•
•
•
•
No single authoritative definition
Carriage by two or more modes of transport
Door-to-door transport
Often under one contract with one party assuming
responsibility throughout
• One document
• Terms also used: intermodal transport, combined transport
Recent developments
• Increase in containerization & multimodal
transport
• Concentration of the Liner Shipping Market
• Emergence of “Service Contracts” in some trade
• E-commerce & transport: inadequate legal
infrastructure
• Increasing proliferation of national/regional laws
• Increased regulatory burden to address security
requirements
Recent developments
• Global credit crunch
• impending economic slowdown
• decline in trade volumes
• decline in freight rates, and
• decline in demand for transport services
International Containerized Growth
1990-2008
Million TEUs
180
160
140
120
100
80
60
40
20
Source: Drewry Shipping Consultants, 2006 and 2007.
2008
2007
2006
2005
2004
2003
2002
2001
2000
1999
1998
1997
1996
1995
1994
1993
1992
1991
1990
0
International Containerized Trade Growth Forecast
(2009 - 2020)
Million TEUs
400
350
300
250
200
150
100
50
Source: Drewry Consultants, 2007.
2020
2019
2018
2017
2016
2015
2014
2013
2012
2011
2010
2009
0
Value of Manufactured Goods Exported (Trillion US$)
9.0
8.0
7.0
6.0
5.0
4.0
3.0
2.0
1.0
1995
1996
1997
Source: UNCTAD Handbook of Statistics, 2008
1998
1999
2000
2001
2002
2003
2004
2005
2006
Manufactured Goods (SITC 5 to 8 less 667 and 68)
II. Regulation of liability
Current liability framework:
• No international uniform regime in force to govern liability
for loss, damage or delay
• Localized loss: International unimodal Conventions on
carriage by sea, road, rail and air (if applicable)
• Some regional, subregional and national laws (if
applicable)
• Standard term contracts: e.g. FIATA FBL 92, BIMCO
MULTIDOC 95
Problems
• Liability varies depending on:
- Applicable regime
- Stage of transport where loss or damage occur
- Causes of loss or damage
• Current liability framework is fragmented and
liability cannot be assessed in advance
• It is too complex and may not be cost-effective
Loss or damage in the course of transportation from point to point
Simplified scheme of liability limits under unimodal Conventions
A
Road
CMR
8.33 SDR/kg
Sea
Rail
Road
HVR
COTIF/CIM
CMR
2 SDR/kg or
17 SDR/kg
8.33 SDR/kg
666.67 SDR/pkg [N.B. Same limit
for air transport
Hamburg R
under Warsaw
2.5 SDR/kg or
Convention]
835 SDR/pkg
B
Previous attempts at achieving a uniform
regime at international level
1.
1980 UN Convention on International Multimodal
Transport of Goods
- Not in force
2.
1992 UNCTAD/ICC Rules for Multimodal Transport
Documents
- Need to be incorporated into contracts
- Application subject to mandatory law
III. New Convention on Contracts for the
International Carriage of Goods Wholly or Partly
by Sea
• By the end of 2008 a new Convention on Contracts for International
Carriage of Goods Wholly or Partly by Sea will be adopted by the
United Nations General Assembly
• Application to sea transport & MT including an international sea leg
• Based on maritime concepts and existing maritime liability regime, but
with significant changes in structure and content
• Does not address specific issues arising from modern MT
• Extremely lengthy and complex: 96 articles
But: only 2 relate to multimodal transport
Impact on MT:
Will the new Convention improve the
status quo?
1. Will same rules apply throughout?
If loss is localized:
• only certain provisions of:
(liability, limitation of liability, time for suit)
• any applicable unimodal convention apply
• plus remainder of the new Convention
And:
If loss, damage or delay cannot be localized or if no
international convention is applicable:
• Maritime liability rules of the new Convention apply
• Irrespective of how short the sea leg and how long the
land leg may be
2. Will there be one party responsible
throughout?
Period of responsibility: receipt to delivery
But carrier may
- Contractually limit period of responsibility e.g. to “tackle-to-tackle”
- Not be responsible for certain functions e.g. loading, stowing,
discharging
So:
• Carrier may not be responsible door-to-door
The new Convention: Central features
A. Carrier’s obligations and liability
• Liability: fault based
• Long list of exceptions
• Extensive scope for contracting out
B. Shipper’s obligations and liability
• Detailed obligations: mandatory
• Fault based liability, but
• Strict liability for
the provision of inaccurate information and dangerous goods
• No monetary limitation on shipper’s liability
• Arguments: Modern shippers more sophisticated (?)
But special rules for sophisticated parties: “volume contracts”
C. Freedom of contract: “volume contracts”
The Convention primarily establishes mandatory liability both for carriers
and shippers
But:
“volume contracts” (= service contracts)
are exempts from mandatory application of the Convention
So: most of its provisions could be modified or contracted out
Apparent rationale: “volume contracts” = “service contracts”
are contracts between parties of equal bargaining power!
What is “ volume contract”?
•
•
•
•
•
a contract of carriage
for the carriage of specified quantity of goods
in a series of shipments
during an agreed period of time
specification of quantity may be a minimum, a maximum or
a certain rang
No minimum quantity of cargo required.
And:
• Convention applies to:
• “volume contracts” in liner trade
• But: application is by default and not mandatorily
Definition wide enough to cover almost any contract of carriage in
liner trade
Special rules for volume contracts allowing derogation
“volume contracts” may provide for greater or lesser rights,
obligations and liabilities if it
• ….is individually negotiated, OR
• ….prominently specifies sections containing derogations
Potential consequences
Volume contracts between parties of equal bargaining
power:
• No general concern except for protection of 3rd parties
• Volume contracts between parties of unequal bargaining
power:
Small shippers and large container carrier in liner trade:
• Freely negotiated? Or contract of adhesion?
• Potential for abuse!
• Marginal application of the Convention
Conclusions!
Thank you
[email protected]
For further information see:
UNCITRAL documents:
• Text of the Draft Convention (document A/63/17) and all working documents:
www.uncitral.org
UNCTAD documents:
• UNCTAD Commentary on Draft Instrument on Transport Law
(UNCTAD/SDTE/TLB/4)
• Freedom of contract and carrier liability (UNCTAD/SDTE/TLB/2004/2)
• Multimodal transport: The Feasibility of an International Legal Instrument
(UNCTAD/SDTE/TLB/2003/1)
IMMTA submission to UNCITRAL: A/CN.9/WGIII/WP.97
• See also Mahin Faghfouri, International Regulation of Liability for
Multimodal Transport-In search of Uniformity, WMU Journal of Maritime
Affairs, April 2006.

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