An International Legal Instrument on the Liability of Multimodal-Transport Carriers

Abstract

Multimodal-transport operations (MTOs) are transport operations that combine at least two modes of transport under the same contract for the carriage of goods. For the development of MTOs, there is a need for a legal instrument governing such operations at the international level. Although repeated attempts have been made to establish such a legal instrument, no such attempt has been successful in the sense of coming into force. With the ambition of helping to bring such a legal instrument into force, this thesis examines the minimum standards that a legal instrument must satisfy to gain support from the transport industry. As the rules relating to the basis of liability, the limitation of liability, and the time bar are most problematic, this thesis focuses on the standards for these rules. It shows that the industry needs a legal instrument governing MTOs that is certain, predictable, and fair. Therefore, to gain the support from the industry necessary to come into force, any legal instrument should ensure certainty, predictability, and fairness. Because the criterion of certainty is essentially a matter of drafting, this thesis focuses instead on predictability and fairness. For the rules to be predictable, a legal instrument should adopt a uniform-liability approach. For the purposes of fairness, rules relating to the basis of liability should (1) adopt a presumed-fault approach and (2) allocate damage rather than risks. For the rules relating to any limitation of such liability to be fair, this thesis distinguishes limitation of liability for so-called contemplatory loss (which at law will generally be ‘reasonably foreseeable’) and so-called non-contemplatory loss. In particular, for contemplatory loss, the floor on liability should be the weighted average of the unimodal limitations of liability. For non-contemplatory loss, the limitation of liability should be equal to the total freight payable and no more. For the time bar provided by it to be fair, the instrument should adopt a time bar of nine months.