1. Definition, development and significance
The term multimodal transport is defined as goods transport whose performance entails more than one means of transport. It is common in freight traffic that the transport orders are not executed by the carrier with whom the consignor made the contract (contractual carrier), but rather that they are delegated partially or even entirely to others. Provisions concerning successive and actual carriers take this cooperation into account. As long as different carriers use the same means of transport, eg exclusively road vehicles or railways, the transport remains unimodal, whereas multimodal transport involves the use of different means of transport in succession. The terminology in this area is not uniform and has been subject to change over time. In the past, the term combined transport (or traffic) was common. Today, the terms multimodal and intermodal transport find common usage, the latter having gained ground mainly due to the efforts for sustainable mobility in the EC, and the terms are used in this context synonymously (COM(97) 243 final). On the other hand, the term is also used if goods are transported in intermodal loading units or in a road vehicle and are reloaded with them from one means of transport to another (1.1 UN/ECE terminology). A transshipment of the goods themselves does not occur in these cases.
In essence, a multimodal transport contract is an integrative contract of carriage covering the entire journey which is performed by at least two different means of transport under the responsibility of a single carrier (Durchfrachtvertrag). It is a legal concept and its existence entails particular legal consequences (see Art 1(1) of the United Nations Convention on the International Multimodal Transport of Goods of 1980 (MTC)). The carrier, as the multimodal transport operator, owes the performance of the entire transport from start to destination; the carrier is also responsible for the necessary transshipments between the various transport stages and accepts other ancillary duties. The multimodal transport contract is thus a mixed contract in which elements of transport law dominate.
Special forms of multimodal transport have developed in the areas of rail and ferry: laden transport vehicles are loaded onto other means of transport such as a ship (ro-ro traffic) or a train (piggyback traffic) without reloading the goods while being transported.
As early as in the 19th century, different means of transport were used in maritime trade for carrying out contracts of transport covering an entire journey from inland point to inland point. In connection with overseas transport, inland navigation and railways were the options for bringing goods to their final destination. The invention of standardized loading units like the container in the middle of the last century initiated a substantial growth of combined transport and revolutionized world trade. Standardized transport units accelerated transshipment and shortened turnaround times in ports, thus decreasing the time of transport and reducing costs substantially. Their use, independent of the specific means of transport chosen, has permitted an increasing standardization of transport operations. Thus, door-to-door services have been made much easier. The demand for such services is constantly rising as a consequence of improved methods of production and the increasing outsourcing of transport services to other contractors. More recently, combined transport has been growing in significance, reducing the burden on roads and the environment. Considering the increasing volume of cargo transport, this trend will continue not only globally but also in cross-border European and domestic freight traffic.
2. Tendencies in the development of private law
Since the commencement of codification efforts, developments in the area of transport contract law have been strongly oriented towards a segmentation under which each mode of transport has its own special provisions. The division between land transport law and maritime law had already become manifest in the codifications of the 19th century (carriage, contract of) and was later continued by the adoption of special rules for railways. In Germany, special norms were created for inland shipping before the end of the 19th century; provisions for air traffic followed later. Separate rules were also established for carriage by road. These clusters of special legislation led to an extensive erosion of the freight law originally envisioned as an overarching and universally applicable source of law for goods transport, eg the Commercial Code (HGB) in the case of Germany. As a consequence, provisions valid for all means of transport were not to be found.
Efforts to create unified sources of law for cross-border traffic were successful as early as the end of the 19th century (railway transportation). Yet even multilateral treaties were characterized by special provisions for the individual modes of transport. Today, international uniform rules of varying practical importance exist for each of the different transport means.
This segmentation poses a considerable disadvantage for multimodal transport operations. Instead of a universal and general source of law for goods transport, one finds merely unimodal provisions, some referring to a particular means of transport in cross-border carriage and others referring to domestic transport. One can find enormous variations, particularly in the area of liability. One obvious example is the monetary limits regarding liability in international law, varying from to 2 to 19 Special Drawing Rights per kilogram. The grounds of exoneration established for some modes of transport differ as well. Efforts to create uniform rules for all transport modes—a uniform intermodal regime—have failed because representatives of the unimodal rules of law insist on their positions.
Due to the lack of suitable provisions for multimodal transport services and the lack of integrative provisions independent of the type of transport mode, solving legal problems, particularly concerning the liability regime to be applied in an individual multimodal transport contract, is a frequent task for the courts. For such cases, the network system has been adopted: a multimodal transport contract is in principle handled like a chain of unimodal contracts, provisions are applied as if there were separate contracts for the different unimodal stages of transport. As long as the place of damage is known, the liability of the carrier depends on the unimodal provisions for the respective type of transport means. If the place of damage is unknown, the provisions that are most favourable for the claimant are applied (BGH 20 June 1987, BGHZ 101, 172).
In national legal systems, rules for multimodal transport are generally missing. The Netherlands, where the network system is applicable (Arts 8:41, 8:43 Burgerlijk Wetboek (BW)), and Germany are the exceptions. In Germany, the Transport Law Reform Act of 1998 (Transportrechtsreformgesetz) not only reformed the entire domestic freight law for all means of transport except maritime law, it also introduced provisions for multimodal transport. The multimodal transport contract was fashioned as a sub-unit of freight contracts: the carrier commits himself to be responsible for, and take over, the entire transport service. However, the special provisions for multimodal transport are only applicable when carriage of goods is performed by various modes of transport that would be subject to different provisions if separate contracts had been concluded for each unimodal segment of carriage. In carriage performed by different modes of transport, yet subject to the same provisions, these special rules are not applicable. Thus, in light of the now uniform domestic carriage law in Germany and the abolition of special provisions for road, rail, air and inland waterways, a multimodal transport contract, as per § 452 HGB, cannot typically be construed since the law applicable to the various segments of transport is identical in any event. As a result, legal problems such as those mentioned above generally no longer exist when more than one means of transport is used. It is also irrelevant if the place of damage is known or not. In German domestic freight traffic, the special provisions for multimodal transport are therefore only applicable when the other prerequisites, eg a single contract of carriage and various modes of transport, are met and one part of the transport is by sea carriage where different rules are still prescribed. The main application of the multimodal provisions is consequently cross-border transport that is subject to German law.
For genuine multimodal transport, the German legislature developed a concept of modified uniform liability. In principle, the entire transport is subject to the unified carriage law (§ 452 HGB) unless overruled by international Conventions. It is only when the place of damage is known that § 452a HGB applies the network system.
The main problem and greatest challenge for any national or international regime for multimodal transport is the application of mandatory unimodal rules in the case of multimodal transport contracts. Therefore, harmonization of these separate unimodal rules with the aim of a unified integrated liability regime, independent of the means of transport, should be given top priority.
3. International uniform law
Efforts to create standard rules for goods transport that uses more than one means of transport began early. In 1911, the Comité Maritime International tried unsuccessfully to create an international maritime transport law including multimodal transport. In 1956, when the CMR was adopted, negotiations on combined transport contracts were envisaged in the Protocol of Signature. During the subsequent negotiations, however, drafts were considered but no consensus could be achieved. Such consensus was finally reached with the conclusion of the UN Convention on International Multimodal Transport of Goods of 24 May 1980. However, it never entered into force and is nowadays regarded as a failure; consequently, a unified source of law does not exist for multimodal traffic. A further attempt to standardize certain activities related to international (multimodal) transport also failed: the Convention on the Liability of Operators of Transport Terminals in International Trade of 1991 was supposed to establish a uniform legal regime for transport-related operations, eg handling goods before, during or after the carriage.
At present, existing unimodal Conventions have only a handful of provisions which extend these Conventions’ applicability to some special forms of multimodal transport. These are transports that are carried out in addition to unimodal transport by other vehicles (eg by lorry or inland ship in connection with rail freight, see Art 1 paras 3 and 4 UR CIM 1999). Concerning the carriage of goods by road, Art 2 CMR subjects certain forms of multimodal transport to the applicability of the Convention. Specifically, where the road transport vehicle containing the goods is carried over a part of the route by sea, rail, inland waterways or air, and the goods are carried according to a single contract covering the entire route and are not unloaded from the vehicle, the provisions of the CMR shall apply to the entire journey. If loss or damage to the goods or a delay occurred during the transport while utilizing another means of transport and was not caused by an act or omission of the carrier by road—and the damage could only have occurred during and because of the utilization of this other means of transport—the special rules applicable to this means shall apply. Additionally, although varying in detail, the CMNI, the Hamburg Rules and the Montreal Convention also declare their fundamental applicability to multimodal transports.
With the growing significance of container traffic and the accompanying increase in combined transports, the demand for a transport document for multimodal transport comparable to the bill of lading in maritime law has arisen. Due to the lack of effective international Conventions, legal questions regarding multimodal transport are usually overcome by contractual arrangements. The ‘Uniform Rules’ for a document concerning multimodal transport elaborated by the UNCTAD in cooperation with the International Chamber of Commerce (ICC) have been continuously amended, most recently in 1991. Largely in accord with those rules, in 1992 FIATA revised its Multimodal Transport Bill of Lading, the most important standard document for multimodal transport. The ‘Standard Conditions’ on the reverse side form a comprehensive body of clauses for multimodal transport and are, due to their legal nature, regarded as standard terms and conditions.
Negotiations conducted in the framework of UNECE which aim at a solution having applicability for all transport modes are subject to dispute because parties having an interest in a particular category of unimodal transport are unwilling to forego existing privileges enjoyed by that mode of transport and desire that existing unimodal Conventions should apply to it as it occurs within designated forms of multimodal transport. This dynamic was illustrated recently in the UNCITRAL Convention on contracts for the international carriage of goods wholly or partly by sea. As most maritime freight contracts include land transports to and from ports, provisions were adopted which take into account this component of the overall transport. While the applicability of this Convention covers in principle the entire transport distance (door-to-door), the network-system (Art 26) is applicable when the damage was caused on land alone and mandatory rules would have applied to that stage of transport in a hypothetical contract of carriage. UNECE, by contrast, considers multimodal aspects which are not taken into account in the UNCITRAL Convention but are typical of Europe’s more land-oriented multimodal traffic, namely land transport, inland navigation and short sea shipping (ECE/TRANS/WP.24/2007/ 4, 6).
4. European efforts for liability law regarding multimodal transport
The promotion of intermodality in freight traffic is part of the EC-developed concept of sustainable mobility which aims at establishing door-to-door services independent of the mode of transport chosen (COM(97) 243 final). Alongside efforts to develop an infrastructure which would allow for a trans-European transport network and the creation of technical standards ensuring interoperability, harmonization of the regulatory framework as well as rules of competition are needed. This is especially true for the structure of private law; here, parties are exposed to uncertainty as uniform rules for multimodal transport are lacking due to the orientation on particular modes of transport. The harmonization of rules for all modes of transport is, thus, highly desirable. Experts have developed proposals for possible alternatives, but to what extent the Commission will incorporate them into a proposal for a regulation or a directive remains to be seen (COM(2006) 336 final).
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