Trans-European Transport Networks and multimodality Andrea La Mattina is senior counsel and member of Shipping and Transport Focus Team at BonelliErede In the current economic context, international maritime transport appears with more frequency as a mere phase of a multimodal transport. The concept of ‘multimodality’ refers to a kind of transport which is performed by the combination of two or more means of transport (ie. by sea and road or by air and rail, etc…) on the basis of a single contract covering the transfer of the goods from the place of shipment until the final delivery destination under the responsibility of a single carrier (the so-called multimodal transport operator-MTO). In this perspective the sea ports are no more the final points for maritime transports, but they assume the proper role of logistics hubs necessary to facilitate the integration by and between the various means of transport. Bearing in mind what above, the EU (and before the EEC) has implemented various projects in order to contribute to the development of the multimodal transport inside the member states. In 1992 the PACT – Pilot Action for Combined Transport - was implemented, when in 2001 one of the key points of the White Paper regarding the European transport policy was ‘linking up the modes of transport’; and finally between 2003 and 2013 were launched the Marco Polo Programs. Furthermore, the EU Regulation n. 1315/2013 makes reference to the ‘core network’ (which includes only the key infrastructures of the EU) as “the backbone of the development of a sustainable multimodal transport network” which “should stimulate the development of the entire comprehensive network;” therefore, removing the main technical and administrative barriers to multimodal transport is considered as a priority by the European legislator. Notwithstanding its clear centrality in the development of the international and EU transports, multimodal transport is not specifically regulated by any international convention, the United Nations Convention on International Multimodal Transport of Goods (undersigned in Geneva on 24 May 1980) never having entered into effect. In this situation, the courts have attempted to determine the legal regime which is applicable to multimodal transport (especially to multimodal maritime transport), in some cases extending the international maritime transport rules currently in force to all (or to part) of the phases of such kind of transport. In particular, where the maritime segment of the carriage was the ‘prevailing route’, the Hague-Visby Rules have often been applied to the entire multimodal transport (and, therefore, even to the non-maritime phases of such multimodal transport); on the contrary, in other cases the decisions are based on the so-called ‘network liability system’, thereby splitting the liability regime of the multimodal carrier and affirming that such a regime varies on the basis of the place where the damage to the goods occurs. In these cases, the Hague-Visby Rules have only been applied if the damage is caused during the maritime phase of a certain multimodal transport. Both of these trends represent positivism and criticism. On the one hand, the application of the Hague-Visby Rules to multimodal transport irrespective of the localization of the damage to the goods eliminates all doubts concerning the discipline of ‘non-localized’ damages (meaning those damages that arise from an unknown route), but it does not seem at all convincing, because (a) it represents a ‘strain’ for the application of the Hague-Visby Rules, which does not take into consideration routes which are different to the maritime one and (b) it leaves sufficient room for many doubtful aspects with reference to the notion of ‘prevailing route’. On the other hand, recourse to the ‘network liability system’ does not create compatibility problems with the application of the international ‘unimodal’ conventions and, in particular, with the Hague-Visby Rules, but it does create uncertainty concerning the applicable regime of responsibility which is unpredictable before the damage occurs and which may not be determined at all in the case of ‘non-localized’ damage. Such uncertainty may not only increase litigation, but may also result in increased insurance costs connected with multimodal transport. In light of such uncertainties, the Supreme Court of the United States in the Kirby case inaugurated what has been defined as a ‘conceptual approach’ affirming that a multimodal transport contract that includes a ‘substantial’ maritime route and a ‘shorter’, but not necessarily ‘incidental’, land route has a maritime nature (unless it results in the different will of the parties to such a contract). Therefore - independently from the identification of the place where eventual damage to the goods occurs – such a multimodal transport contract has to be regulated by the US Carriage of Good by Sea Act (ie. the Federal legislation on maritime transport where the 1924 Brussels Convention on bill of lading has been implemented). In the case in question the Supreme Court (i) completely overrides the ‘network liability system’ (that - as was said by the Court - may cause ‘confusion and inefficiency’), as it is not relevant in determining where the damage to the goods occurred, and (ii) grants more certainty and predictability to the conclusions of the case-law trend indicated above, making it unnecessary to measure with ‘a ruler’ which is the ‘prevailing’ route of a certain multimodal maritime transport in order to determine its applicable legal regime and giving substantial emphasis to the relevant ‘surrounding circumstances’ of the case. In the same perspective, in the Kawasaki case, the Supreme Court has affirmed that a through bill of lading issued abroad by an ocean carrier can apply also to the domestic, inland portion of a multimodal transport (providing both for sea and rail carriages), with the consequence that not only the ocean carriage but also the inland carriage will be governed by the US Carriage of Goods by Sea Act. On the basis of what above we cannot ignore the situation of uncertainty that characterizes the rules which are applicable to multimodal transport due to the absence of an unequivocal case law. Only a specific regulatory intervention that is desired by most parties, and that has resulted in interest in the UNCITRAL, would solve the problem. In this perspective, the drafters of the Rotterdam Rules (ie. the convention on transport of goods by sea undersigned in 2009, but not yet entered into force) have intended to specify the extension, in certain cases, of the application of such regulation to forms of multimodal transport (door-to-door) that include a maritime route. In an extreme synthesis, the new convention elaborated on behalf of the UNCITRAL does not have the aim of regulating multimodal transportation tout court, but - under certain conditions and in the presence of certain circumstances - only to extend its scope of application in relation to the land and/or air and/or internal waterways route (if any) and/or subsequent to maritime transport. Therefore, the Rotterdam Rules are a little less of a ‘true’ multimodal convention (such as the 1980 Geneva Convention) but a little more of a convention on maritime transport: correctly, in fact, a ‘multimodal maritime approach’ has been referred to. As has therefore been observed, the 1924 Brussels Convention, in its original formulation, was a ‘tackle-to-tackle’ convention, the Hague-Visby Rules and the Hamburg Rules were ‘port-to-port’ conventions, and, finally, the Rotterdam Rules will become a ‘door-to-door’ convention, even if they merely concern ‘wet’ multimodal transports (ie. multimodal maritime transports). In reality, as already observed above, the text in question is not really a ‘door to door’ convention because the scope of application of the Rotterdam Rules is limited both under the ‘subjective’ profile as well as the ‘objective’ one. Rotterdam Rules do not regulate any kind of multimodal transport, but – subject to certain conditions - they extend their scope of application to non-maritime routes involving ‘wet’ multimodal transport. In other words, the Rotterdam Rules do not provide a ‘uniform’ regime of responsibility concerning the multimodal carrier, but – by applying a sort of ‘network liability system’ - they try to fill the gaps left open by the ‘unimodal’ conventions currently in force and, in particular, by the Hague-Visby Rules. In this sense, the Rotterdam Rules, firstly, extend the definition of a ‘contract of carriage’ relevant to its proper scope of application and affirm in Art. 1.1 that such a contract shall provide for carriage by sea and may provide for carriage by other methods of transport in addition to the sea carriage; also the combined provisions of Art. 5 (entitled ‘General scope of application’) and Art. 12 (entitled ‘Period of responsibility of the carrier’) provide that the period of responsibility of the carrier includes the moment from the receipt of the goods until the moment of the delivery of the same goods to the consignee, and that the responsibility of the carrier is not necessarily limited to the phase when the goods are placed on the ship. Furthermore, from Art. 5 of the Rotterdam Rules it is clear that the places of the receipt/delivery of the goods may eventually not coincide with the ports of loading/unloading. But – as it has been said above - the scope of application of the Rotterdam Rules is limited both under the ‘subjective’ profile as well as the ‘objective’ one. Under the ‘subjective’ profile the scope is limited because the Rotterdam Rules, once in force, will only be applied (a) to the ‘contractual’ maritime carrier - and this (subject to the ‘objective’ limits mentioned further on) with reference to the services he provides, directly or indirectly, on the maritime route as well as on the land or air or internal waterways route - and (b) to the so-called ‘maritime performing parties’, meaning those individuals who are charged by the same contractual carrier to execute – ‘during the period between the arrival of the goods at the port of loading of a ship and their departure from the port of discharge of a ship’ (Art. 17) – ‘any of the carrier obligations under a contract of carriage with respect to the receipt, loading, handling, stowage, carriage, care, unloading or delivery of the goods’ (Art. 1.6.a). In other words, the Rotterdam Rules - as implicitly stated in Art. 4.1.a - may not be applied towards ‘non-maritime carriers’, unless they operate ‘exclusively within a port area’ (Art. 1.7). The Rotterdam Rules are also limited under the ‘objective’ profile as they do not provide a uniform regime for all the phases of a multimodal transport, - but, by adopting the so-called ‘network liability system’- only in the case of losses or damage to the goods that are verified exclusively on one route. As a matter of fact, Art. 26 determines the application of the ‘international instrument’ to such phases (not also the state legislation) specifically shaped for the relevant non-maritime route if the interested party would have stipulated a separate transportation contract and if such an instrument imperatively stipulated (‘either at all or to the detriment of the shipper’) the provisions that concern the responsibility of the carrier, the limitation of liability and a time bar. Hence, from an ‘objective’ point of view, the Rotterdam Rules may only be applied with regard to non-maritime routes if: (a) damage to the goods occurs exclusively on a non-maritime route or the damage is not localized (meaning that the route of the transport where the damage occurs is unknown) and (b) there is no mandatory uniform regime of the non-maritime route concerning the responsibility of the carrier, the limitation of liability and a time bar, or, even though there may be such a regime, it does not clash with the corresponding provisions of the new Convention. The rationale of these limits of application resides in the will to avoid conflict between the Rotterdam Rules (in the part where it extends its proper scope of application to the non-maritime route) and the ‘unimodal’ conventions which regulate land, train, air and internal waterway transportation. Of course, it would have been better to have a complete regulation of multimodal transport and I hope that one day it would be possible to have a truly ‘uniform’ system of international transport, common to all phases of carriage and regulated by a sole convention in lieu of several ‘unimodal’ instruments. But at present that way is far to have concrete chances to be implemented as it has been demonstrated by the complete failure of the 1980 Geneva Convention on International Multimodal Transport of Goods. Bearing in mind what above, although they are not revolutionary, the Rotterdam Rules should be looked as the first international instrument which provides a regime concerning the liability of the sea carrier which specifically takes into consideration the development of the sea transport into a ‘multimodal perspective’. Of course, their entry into force (if any) should contribute to create a more predictable legal background in this relevant field of the international trade.
... it would have been better to have a complete regulation of multimodal transport and I hope that one day it would be possible to have a truly ‘uniform’ system of international transport