MULTIMODAL TRANSPORT LAW The law applicable to the multimodal contract for the carriage of goods MULTIMODAL TRANSPORT LAW The law applicable to the multimodal contract for the carriage of goods MULTIMODAAL VERVOERRECHT Het toepasselijke recht op de multimodale overeenkomst voor goederenvervoer Proefschrift ter verkrijging van de graad van doctor aan de Erasmus Universiteit Rotterdam op gezag van de rector magnificus Prof.dr. H.G. Schmidt en volgens besluit van het College voor Promoties. De openbare verdediging zal plaatsvinden op Donderdag 10 december 2009 om 11.30 uur door Maria Anna Ida Henriëtte Hoeks geboren te Hengelo (Ov) PROMOTIECOMMISSIE Promotor : PROF.DR. K.F. HAAK Overige leden : PROF.DR. M.A. CLARKE PROF.DR. F.J.M. DE LY PROF.DR. F.G.M. SMEELE A sales edition of this dissertation is published by Kluwer Law International, The Hague, The Netherlands. Cover design: Marian Hoeks Printed by: Proefschriftmaken.nl All rights reserved © 2009, M.A.I.H. Hoeks, Breda, The Netherlands No part of the material protected by the copyright notice may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without prior permission from the copyright owner. ACKNOWLEDGEMENTS I feel deeply indebted to a great many people who have inspired and supported me during the writing of this work on multimodal transport law. First and foremost, I wish to thank my supervisor, Professor Krijn Haak for inspiring me to choose research in addition to teaching, for his invaluable guidance when I set my first steps on the road of academia, his encouragement and tireless support during the writing of this book, and for granting me the opportunity to pick his brain time and again in sessions which took up a lot of his precious time. Truly, without him, there would have been no book. I would also like to thank Professor Frank Smeele for sharing his views with me, for always pointing me in the direction of additional relevant literature and case law and for scrupulously combing through the manuscript as a member of the inner doctoral committee. Professor Filip de Ly equally deserves my thanks for the thorough examination of my writings and for doing me the honour of accepting a seat in the inner doctoral committee as does professor Malcolm Clarke. To the members of the plenary doctoral committee, professor Maarten Claringbould, professor Willem van Boom and professor Eric van Hooydonk I would also like to my express gratitude for their willingness to engage in public debate with me on the subject of multimodal transport law. I am also very grateful to Ingrid Koning. Her practical advice to a starting ‘aio’ was invaluable and our many talks on transport law, the everyday sufferings of being a PhD candidate and the shared agonies of ‘filerijden’ lightened the load. In addition I want to thank all my colleagues from the Department of Commercial Law and Company Law of Erasmus School of Law, especially Dick Zwitser and Huibert Logmans for sharing the burden of the sometimes intensive teaching roster, Maarten Verbrugh, Ageeth Klaassen and Diete ter Welle for providing inside information on the workings of the law faculty whenever necessary, and of course Maarten Mussche, Stephan Geense and Tomas Arons for bringing a little life to the party. Laura van Bochove deserves my thanks for the excellent tips on where to find sources on European law on the internet. For helping me get the manuscript print ready I thank Hilmara Requena for her editing work on one of the previous versions of this thesis, as well as Jolanda Bloem for her assistance. Special thanks go out to Arnold van der Hal for doing an excellent job on tedious tasks such as indexing, listing case law and legislation, and alphabetizing authors. Alexandra Wisse and Lenneke Brouwers I thank for unreservedly accepting the duties of a paranymph without knowing what they were in for, for their friendship during the ride, and for being there to help me bring the process to a good end at the defense on December 10, 2009. Hopefully ‘post dissertation life’ will grant me a little more time to enjoy the good things in life with you! I My mother and father I thank for stimulating me to study law all those years ago, and of course for financing it, since it was the second ‘studiebeurs’ to come out of their coffers for me. Perhaps that is why my mother had tears in her eyes when receiving the draft of this thesis. At times my eyes also watered due to this book, but I sincerely hope hers were invoked by different sentiments! And then there is Kees. Since there are no words to describe his contribution to this book, I will not try. I can only say that I must have done something right somewhere, somehow, (before starting this dissertation I think) to deserve him. Marian Hoeks Breda, October 2009 II TABLE OF CONTENTS ACKNOWLEDGEMENTS I ABBREVIATIONS XI 1 THE CONTEMPORARY SITUATION AND ITS PITFALLS 1 1.1 Introduction 1 1.1.1 The rise of container transport 1 1.1.2 The benefits of multimodal transport 3 1.2 The concept of multimodal transport 4 1.2.1 Subcontracting carriage 5 1.3 The status quo: the lack of uniform multimodal carriage law 7 1.3.1 A unimodal framework 9 1.3.2 The problems generated by the lack of uniform multimodal carriage law 11 1.3.2.1 Differing liability regimes 11 1.3.2.2 Friction costs 13 1.3.2.3 Unlocalized loss 13 1.3.2.4 Prescription 14 1.3.2.5 Conflicts between applicable regimes 15 1.4 Past attempts to regulate international multimodal transport 15 1.4.1 The United Nations Convention on the Multimodal Transportation of Goods 17 1.4.2 The Rotterdam Rules 18 1.4.3 UNCTAD/ICC Rules for Multimodal Transport Documents (URM) 19 1.5 The possible forms of a new regime 20 1.5.1 The uniform system 20 1.5.2 The network system 22 1.5.3 The modified system 24 1.6 Quantum, a prima facie case 25 1.6.1 BGH 17 July 2008 27 1.7 Definition of the research problem 28 1.7.1 Problem statement 28 1.7.2 Demarcation of the area of research 29 1.8 Of things to come… 29 2 THE INTERNATIONAL MULTIMODAL CONTRACT FOR THE CARRIAGE OF GOODS 31 2.1 History and origins of the contract for the carriage of goods 31 2.2 The contract for the carriage of goods 33 2.2.1 The contract for the carriage of goods in legislation 33 2.2.1.1 Definitions in the international carriage conventions 33 2.2.1.2 Codified national definitions 34 III 2.2.2 Characteristics of the contract for the carriage of goods 36 2.2.2.1 ‘Obligation de résultat’ 37 2.2.2.2 Mandatory regimes 38 2.2.2.3 Reward? 39 2.2.3 The contracting parties 40 2.2.4 Carriage or not carriage (that is the question) 41 2.2.4.1 The freight forwarder 41 2.2.4.2 The commissionaire de transport 45 2.2.4.3 The NVOCC 46 2.2.4.4 The transitaire 47 2.2.4.5 The charterer 47 2.2.5 The mixed contract 48 2.3 The multimodal contract for the carriage of goods 49 2.3.1 Definition and main characteristics 49 2.3.1.1 A single contract 51 2.3.1.2 More than one mode of transport 52 2.3.2 The theories on the nature of the multimodal contract 54 2.3.2.1 Dutch theories on the multimodal contract 56 2.3.2.1.1 The absorption doctrine 57 2.3.2.1.2 The combination doctrine 59 2.3.2.1.3 The sui generis doctrine 60 2.3.2.1.4 In practice 62 2.3.2.2 German theories on the multimodal contract 63 2.3.3 Practical demarcation of the multimodal contract of carriage 65 2.3.3.1 Wording of the contract and physical performance 65 2.3.3.1.1 Deviation 65 2.3.3.1.2 Unspecified and optional carriage contracts 68 A different view 71 2.3.3.2 ‘Teilstrecken’ 73 2.3.3.2.1 Storage 75 2.3.3.2.2 Transhipment 77 2.3.3.3 ‘Transport superposé’ 80 2.3.3.4 (False) through transport 82 2.4 The international multimodal contract for the carriage of goods 84 2.4.1 Multimodal carriage equals international carriage 84 2.4.2 The international contract: a foreign element 85 2.4.2.1 ‘As specified in the contract’ 86 3 DETERMINATION OF THE APPLICABLE LAW: THE CARRIAGE CONVENTIONS 89 3.1 Introduction 89 3.2 Jurisdiction and forum shopping 92 3.2.1 Article 31 CMR: the place where the goods were taken over 94 3.3 The path to the applicable law 98 3.3.1 The Rome I Regulation and the multimodal mix 100 3.3.2 Article 25 of the Rome I Regulation 102 3.4 The carriage conventions: scope of application rules 105 IV 3.5 The need for uniform interpretation of scope of application rules 106 3.6 The Vienna Convention on the Law of Treaties 109 3.6.1 Articles 31-32 of the Vienna Convention on the Law of Treaties 111 3.6.2 Treaties authenticated in several languages: Article 33 Vienna Convention 114 3.7 Keeping an eye on your neighbours 115 4 MULTIMODAL TRANSPORT UNDER THE CMR 117 4.1 Scope: Article 1(1) CMR 119 4.1.1 Differing interpretations: the CMR applies by means of Article 1 120 4.1.1.1 When the contract as a whole is international 122 4.1.1.2 Only if the road leg itself is international 125 4.1.1.2.1 Quantum v Plane Trucking 127 The decision by the Commercial Court 128 The decision by the Court of Appeal 130 4.1.1.2.2 Some jurisprudence supporting Quantum 133 The ‘Resolution Bay’: the place of taking over 134 BGH 24 June 1987: the network approach 134 BGH 17 May 1989: deviation or permitted substitution? 136 4.1.1.2.3 Opinions on Quantum 137 4.1.2 The CMR does not apply by means of Article 1 138 4.1.2.1 BGH 17 July 2008 139 4.1.2.2 A ‘contract for the carriage of goods by road’ 141 4.1.2.3 The Protocol of Signature 142 4.1.2.4 Article 2 CMR 143 4.1.2.5 The place of taking over and the place of delivery 145 4.1.2.5.1 Payment of charges due