The liability on the transhipment during a multimodal transport
Author: Julia Hörnig
Although the transport industry becomes more and more efficient every year by combining new technology with modern strategic ideas, the international transport law is still at least one step behind this development. Since already more than 50 years, the container enables the industry to combine different transport modes during one multimodal transport. Unfortunately, the approach to harmonize the International Multimodal Transport Law failed in 1980. Contrary to that, there is at least one International convention – mandatory and uniform – for each single transport mean. But combining different transport conventions is not as easy as the actual combination of different transport means. Besides the question, which convention shall apply in case it is uncertain, where the damage occurred during the entire multimodal transport, it is very questionable, when the legal liability regimes of one convention starts or ends. But this is a crucial point if one considers the case, that the damage occurred during the transhipment. The application scope of this term must be interpreted in a factual way and therefore includes several steps before and after the airport-border. Due to new business models, the freight forwarder, who must be considered as carrier in certain circumstances, tries to do as much as he can by his own and shift the original -airport-steps to points outside the airport-area. In addition to that there are numerous actors with various contracts within this area, that have to be investigated in detail.
The transhipment is also the stage of the multimodal transport, where the different mandatory rules meet each other. Since the focus of the research lies on the air-road combination. The ambits of the CMR and the Montreal Convention are important to consider. Both have a certain impact to the multimodal transport, but how far it reaches is uncertain. Are they closely linked, overlapping or do they even generate a gap for national law. If one wants answers, he has to look into their particular liability regimes. Neither the liability period of the CMR – the taking over until delivery – nor in the Montreal Convention – the period, during which the cargo is in charge of the carrier – is specified by the Conventions. So, it is a matter of interpretation. An international consensus is visible that it must be an agreed period of responsibility and ability to protect the cargo from harm. The determination is in fact a task for the parties. If one considers the enormous number of actors within the transhipment area, this becomes a matter of attribution and the question, who acts on whose (unimodal) carrier’s behalf. It is clear, that this period cannot be extended endless since it is bound to the application scope of the certain conventions. The room for contractual freedom is given, as well within the ambit of the conventions’ regimes since they remain silent about certain questions as well as outside their ambits. I am going to show you the different possibilities the parties have and how far they are restricted by the mandatorily applicable conventions.
