chapter  11
THE QUEST FOR AN INTERNATIONAL MULTIMODAL TRANSPORT CONVENTION: DOES THE CMR LIABILITY SYSTEM FIT THE BILL?
ByTheodora Nikaki
Pages 26

In recent decades, multimodal transport operations have become a crucial means of transportation in international transactions. 1 Yet surprisingly, the legal framework of international multimodal transport remains fragmented and complex, 2 primarily due to the failure of the international transport community to make fair compromises and reach an agreement on a widely acceptable international convention. 3 The lack of harmonisation of transnational multimodal transport rules has therefore attracted the attention of a number of key international organisations, which have focused their efforts towards identifying a multimodal transport liability regime that will meet the needs of the transport industry and will thus be more likely to meet with widespread acceptance. Thus far, both the proposals 4 and the questionnaire 5 submitted by UNCTAD, UNECE, and the EC have revealed strong support – at least in recent

years – for the adoption of a uniform liability system on multimodal transport. 6 This is mainly because it is anticipated that such a liability scheme will address most of the inadequacies of the network and the modifi ed network liability schemes embodied in the current unsatisfactory legal framework governing multimodal transport operations. 7 In particular, a uniform liability system is considered viable since, if adopted, the same liability rules would apply throughout the multimodal transport operation, which would thus reduce unnecessary costs associated with factual enquiries related to the localisation of the cargo loss. It also has the potential of promoting the certainty of the applicable laws and the cost-effective administration of the multimodal transport operation. Such an outcome is however contingent upon the independent liability rules that form the basis of the uniform liability system being drafted with view to meeting these particular objectives: for instance, any rules governing the multimodal transport operator’s liability should be clear and avoid terms that have been subject to litigation, thus eliminating (or at least minimizing) unnecessary friction costs. 8

This chapter focuses on the ongoing debate over the identifi cation of the type of independent liability rules to be included in a uniform international multimodal transport regime. Starting from the premise that the transport industry has already rejected the Hamburg Rules liability scheme 9 as a possible solution in the case of the United Nations Convention on International Multimodal Transport of Goods, 10 the theme of this article is to investigate whether the liability system of another unimodal transport convention, namely the CMR, 11 may form the basis of the independent liability rules of a new international multimodal transport instrument. To this end, the chapter will fi rst set the scene by providing a brief introduction to the CMR liability scheme. It will then test the CMR liability system against the objectives of the uniform liability system, concluding fi rstly that the CMR liability model is not suffi cient to promote legal certainty in the multimodal transport laws, as some of its core liability provisions have sparked litigation and led to divergent interpretations in different jurisdictions. In the same vein, it will argue that the CMR liability rules have little prospect of gaining wide acceptance since they cannot promote the cost-effective administration of multimodal transport operations either. Although it is likely that the strict liability system provided in their rules may lead to some reduction in the cargo insurance premium, it is also likely that the high level of duty prescribed in their rules will result in the loss of the

MTO’s right of recovery against its subcontractors –mainly the sea carriers – thereby leading to an unnecessary increase in the freight rates. That said, this chapter will argue that this obstacle to the adoption of the CMR may be overcome if the Rotterdam Rules 12 ever enter into force 13 and are also given precedence over the new multimodal transport convention as lex specialis (in order to avoid potential confl icts 14 ). It is then arguable that the “rules of the game” may change since the level of care of the new multimodal transport regime will dovetail to a great extent with that provided in international conventions on transnational air, rail and road carriage, accordingly improving the cost-effective administration of the multimodal transport operation. As regards the uncertainty arising out of the terminology used in the CMR liability provisions, it may be easily avoided through clear guidance provided in the travaux préparatoires of the new international multimodal transport convention or even through the inclusion of an Explanatory Note, as well as by the adoption of a more neutral provision on the loss of the multimodal transport operator’s right to limit liability.