UNCTAD

1. UNCTAD 1980 Multimodal Transport Convention - 20 years later! Peter Jones Paterson, MacDougall,Toronto, Canadapfmjones@pmlaw.com http://www. forwarderlaw.com September 25, 2003

2. Containerization and Multimodal Transport Containerization is responsible for the growth of modern Multimodal transport. “"In particular, the growth of containerized transport, together with technological developments improving the systems for transferring cargo between different modes, has considerably affected modern transport patterns and practices." (UNCTAD DOCUMENT TD/B/COM.3/EM.20/2 Para. 3)

3. Multimodal Transport Prior to Containerization • Successive transport by different modes was integrated by issue of through bill of lading • Through B/L covered entire transport, but issuer, e.g. an ocean carrier, only undertook responsibility for transport it performed • Pre- and post land carriage was the responsibility of land carriers chosen and paid by the ocean carrier.

4. Multimodal Transport Prior to Containerization • Legal device establishing direct contractual relationship between land carriers chosen by ocean carrier to perform transport covered by through B/L and cargo owner • Through B/L was evidence of two, three or more transport contracts • Success of Through B/L enshrined ocean carriers’ freedom of contract.

5. Multimodal Transport - A Legal Vacuum • 1980 Multimodal Convention attempted to fill the vacuum - to whom should it apply besides Ocean carriers and NVOC's offering Multimodal Transport? • Other providers from diverse service backgrounds were not clearly proper targets for this Convention

6. 1980 Multimodal Convention • Criterion for application of Convention -Multimodal carrier contracted to assume responsibility for entire transport. • Precedent for this criterion - Hague Rules.  • Criterion simplified application of Convention • Criterion allowed “carriers” to chose whether to offer either successive transport (through B/L) or Multimodal Transport • Result: Application at option of carrier

7. What triggers application of International Convention? • Compulsion - enterprises targeted by Convention must conform to its standards. (1980 Convention is only compulsory if enterprise undertakes multimodal transport). • Market demand - Users of service may demand that providers meet legal standard • Voluntary assumption of standard - no advantage in accepting increased liabilities imposed by 1980 Convention

8. 1980 Multimodal Convention • Convention not in force today in part because • No market demand for a Multimodal transport bill of lading subject to the Convention • Market demand is satisfied by Multimodal transport documents based upon the UNCTAD/ICC Rules • Commercial freedom of service providers too well entrenched!

9. Need to fill International Legal Vacuum? • UNCTAD Survey confirms expected benefits of a Multimodal Convention as • uniform International law that provides stable platform for mulitmodal transport • settlement of transport claims is facilitated • Survey confirms preference of Uniform over Network System of liability • Willingness to continue working for International Convention.

10. Will Vacuum be filled? • UNCITRAL Draft Convention on Carriage of Goods by Sea will apply door to door • Only Multimodal transport involving sea carriage subject to Draft Convention • UNCITRAL Draft Convention has support of big shippers and ocean carriers • Other transport industries have strong reservations but are participating in UNCITRAL drafting sessions

11. Future of a True Multimodal Convention • Prospects for world community to accept UNCITRAL Convention are reasonable • UNCITRAL Convention inconsistent with principles of 1980 Multimodal Convention • The inconsistencies are • multimodal transport must include all modes and not just sea carriage • carrier cannot contract out of liabilities imposed by Convention

12. If UNCITRAL CONVENTION IS ADOPTED? • Ocean carriers and big shippers will not support true Multimodal Convention • As UNCITRAL Convention gives generous role to freedom of contract, countries will be tempted to fill “vacuum” by regulation. • No further efforts to establish true Multimodal Convention for several decades.