Academic journal article Texas International Law Journal

The Comprehensive Coverage of the New Convention: Performing Parties and the Multimodal Implications

Academic journal article Texas International Law Journal

The Comprehensive Coverage of the New Convention: Performing Parties and the Multimodal Implications

Article excerpt

I. INTRODUCTION

"Comprehensive" is the word that accurately describes the basic character of the Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea ("the Convention"). The Convention comprehensively regulates the major issues arising from the international carriage of goods by sea. Its scope includes not only the carrier's liability for loss of or damage to goods, but also many other important and pertinent aspects, including delivery, right of control, and the transfer of rights. This article addresses one of the comprehensive aspects of the Convention, namely its extended coverage over transport, including the different modes of transport and those persons involved in the transport service. Part II explains how the "door-to-door" application of the Convention emerged and resulted in the form of the final text. Part III examines the issue of conflict of conventions, an inevitable consequence of the "door-to-door" application. The regulation of persons other than carriers involved in carriage is discussed in Part IV, which is followed by the conclusion.

II. "DOOR-TO-DOOR" APPLICATION OF THE CONVENTION

A. A Legislative History

1. Existing Conventions

Existing conventions on the carriage of goods by sea are limited in their application to maritime transportation. The International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, 19241 ("the Hague Rules") or the Hague Rules amended by Visby Protocol, 19682 ("the Hague- Visby Rules") adopts "tackle-to-tackle" principle: the Convention's mandatory regulation covering the period when the goods are loaded onto the ship to the time they are discharged from the ship.3 Although the United Nations Convention on the Carriage of Goods by Sea, 1978 ("the Hamburg Rules") has expanded the scope of responsibility so that the carrier is responsible for the period during which he is in charge of the goods at the port of loading and the port of discharge, they still restrict coverage from one port to another ("port-to-port").4 None of these conventions cover any activities outside of the port area, such as incidental road carriage to the port of loading or from the port of discharge.

With the development of containerized transportation, it has become increasingly common that the carrier assume the risk of the whole transport from the place of the exporter to the final destination.5 "Tackle- to- tackle" or even "port- toport" application of the transport law convention looks obsolete because such applications artificially separate the transport into the covered and non-covered period.6 It creates gaps between the mandatory liability regimes applicable to the different stages involved in the transport of goods.7 A single coherent liability regime that covers the whole period of transport beyond "tackle-to-tackle" or "port-to-port" was highly desired.8

2. The CMI Draft

It is not surprising that from the early stages of its examination of the new Convention, the International Sub-Committee of the Comité Maritime International (CMI) thought it was desirable and necessary for the new Convention to cover the whole period of transport.9 Article 1.5 of the draft prepared and submitted to UNCITRAL by CMI in December 2001 (CMI Draft) defines the term "contract of carriage" as "a contract under which a carrier, against payment of freight, undertakes to carry goods wholly or partly by sea from one place to another"10 thereby clearly indicating the multimodal aspect of the contract covered by the Draft and abandoning the concept of "tackle-to-tackle" or "port-to-port." Article 4.1.1 provides that "the responsibility of the carrier for the goods under this instrument covers the period from the time when the carrier or a performing party has received the goods for carriage until the time when the goods are delivered to the consignee"" and there is no geographic restriction either on the place of receipt or on the place of delivery. …

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