chapter  8
INTERNATIONAL SALE CONTRACTS AND MULTIMODAL TRANSPORT DOCUMENTS: TWO ISSUES OF SIGNIFICANCE
ByD. Rhidian Thomas
Pages 16

Historically, international sales of goods to be carried by sea were negotiated on a port-to-port basis, with the practice accompanied by the emergence of CIF, CFR and FOB contracts, which represent the contractual platform on which the contemporary law of international sales is established. 1 In subsequent developments, there has been a signifi cant drift to place-to-place contracts, driven, presumably, by growing globalism, technological developments and the emergence of containerisation. This drift has been accompanied inevitably by a movement away from unimodal sea transport to multimodalism, with the sea leg one of two or more different modes of transport; and also by the emergence of new forms of contracts, principally CPT, CIP and FCA contracts, and multimodal transport documents. 2 The abbreviations here adopted, together with their legal and contractual characteristics, follow the INCOTERMS (2010) categories and defi nitions. 3

In all these contracts, whether port-to-port or place-to-place, the relevant commercial and transport documents assume signifi cant legal importance and also play an important part in their performance. 4 The contractual sale terms relating to documents are as signifi cant as those relating to the physical goods and performance of the contract, with any failure on the part of the seller to deliver conforming documents a breach of contract, and with the buyer invariably entitled to elect to reject non-conforming documents and bring the contract to a premature termination. The terms relating to documents are probably always conditions of the contract, with any breach repudiatory. 5

In addressing the subject of multimodalism and related multimodal transport documents I am concerned only with the category which includes sea transport and one or more other modes of transport. 6 I am also addressing the situation where the entire carriage is governed by a single contract entered into by a multimodal transport operator and in respect of which a single multimodal transport document is issued. 7 It will be readily appreciated that the subject of multimodalism has, potentially, a much wider fi eld of application, because it may be organised and performed legally and logistically in many different ways. 8

The precise commercial and transport documents that are to be procured and delivered to buyers, and also their requisite qualities, are matters to be determined by the contracting parties. Such matters, therefore, are determined by the express or implied terms of the relevant international sale contract. In this contribution I am concerned only with multimodal transport documents, in particular multimodal bills of lading, of which COMBICONBILL (1995), MULTIDOC (1995) and the FIATA Multimodal Transport Bill of Lading are familiar examples; and multimodal waybills, of which COMBICONWAYBILL (1995), MULTIWAYBILL 95 and the FIATA Multimodal Transport Waybill are equally familiar examples.