adopted a modified version of the network principle, imposing an overall limit of
liability on the combined transport operator unless the loss or damage could be
localized in a particular stage of the multimodal transport where a higher limit of
liability was imposed by an international convention or mandatory national law, in
which case that higher limit would apply.
12
The most recent effort to bring some international uniformity to the “legal tower
of Babel” of multimodal transportation is, of course, the Rotterdam Rules, which
were adopted by the General Assembly of the United Nations on 11 December 2008,
the international Convention containing them being signed in Rotterdam on
23 September 2009.
13 The Rules are the product of 7 years of drafting work by
the U.N. Commission on International Trade Law (UNCITRAL), which built on
4 years of preparatory work by CMI.
14 The Rotterdam Rules also impose a modified
network system of liability for multimodal transportation involving at least one sea
leg,
15 creating a uniform “door to door” regime, but also providing that if goods are
lost or damaged solely in the land stage before loading onto or discharge from the
ship, liability should be determined by reference to any international convention
applying specifically to that mode of transport.
16 At the time of writing, a decade
after the Convention containing the Rotterdam Rules was made, it has been ratified
by only four of the twenty countries needed for it to come into force: Cameroon,
Congo, Spain, and Togo.
17 Very few countries are taking any active steps towards
ratification. It is said that some, perhaps many, countries are waiting to see whether
the United States will ratify the Convention, but it is highly unlikely that that will
happen in the near future. Although international treaties are ratified by the President
of the United States, the U.S. Constitution provides that that can only occur with the
“advice and consent” of the U.S. Senate, which requires a two-thirds majority of
senators.
18 American politics is so bitterly divided, and bipartisanship in
Washington, D.C. so rare at the moment, that it seems highly implausible to imagine
two-thirds of U.S. senators agreeing on anything at all, let alone a treaty that very
few other countries (and none of the U.S.A.’s major trading partners) have adopted.
In summary, half of the past half-century—28 of the past 56 years—has been
spent on drafting an international instrument to govern multimodal transportation, by
12 Multimodal Convention 1980, Arts 18, 19.
13 U.N. Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea
(2009).
14 Sturley (2009), p. 427.
15 Because the Convention does not apply to all international multimodal transportation, but only to
multimodal transportation involving carriage by water, it has sometimes been dubbed a “wet
multimodal” instrument: see, for example, Nikaki (2006).
16 Rotterdam Rules 2009, Art. 26.
17 UNCITRAL, Status: United Nations Convention on Contracts for the International Carriage of
Goods Wholly or Partly by Sea, available at: http://www.uncitral.org/uncitral/en/uncitral_texts/
transport_goods/rotterdam_status.html.
18 U.S. Constitution, art. II, § 2, cl. 2: “[The President] shall have Power, by and with the Advice and
Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur. . .”.
156
M. Davies
liability on the combined transport operator unless the loss or damage could be
localized in a particular stage of the multimodal transport where a higher limit of
liability was imposed by an international convention or mandatory national law, in
which case that higher limit would apply.
12
The most recent effort to bring some international uniformity to the “legal tower
of Babel” of multimodal transportation is, of course, the Rotterdam Rules, which
were adopted by the General Assembly of the United Nations on 11 December 2008,
the international Convention containing them being signed in Rotterdam on
23 September 2009.
13 The Rules are the product of 7 years of drafting work by
the U.N. Commission on International Trade Law (UNCITRAL), which built on
4 years of preparatory work by CMI.
14 The Rotterdam Rules also impose a modified
network system of liability for multimodal transportation involving at least one sea
leg,
15 creating a uniform “door to door” regime, but also providing that if goods are
lost or damaged solely in the land stage before loading onto or discharge from the
ship, liability should be determined by reference to any international convention
applying specifically to that mode of transport.
16 At the time of writing, a decade
after the Convention containing the Rotterdam Rules was made, it has been ratified
by only four of the twenty countries needed for it to come into force: Cameroon,
Congo, Spain, and Togo.
17 Very few countries are taking any active steps towards
ratification. It is said that some, perhaps many, countries are waiting to see whether
the United States will ratify the Convention, but it is highly unlikely that that will
happen in the near future. Although international treaties are ratified by the President
of the United States, the U.S. Constitution provides that that can only occur with the
“advice and consent” of the U.S. Senate, which requires a two-thirds majority of
senators.
18 American politics is so bitterly divided, and bipartisanship in
Washington, D.C. so rare at the moment, that it seems highly implausible to imagine
two-thirds of U.S. senators agreeing on anything at all, let alone a treaty that very
few other countries (and none of the U.S.A.’s major trading partners) have adopted.
In summary, half of the past half-century—28 of the past 56 years—has been
spent on drafting an international instrument to govern multimodal transportation, by
12 Multimodal Convention 1980, Arts 18, 19.
13 U.N. Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea
(2009).
14 Sturley (2009), p. 427.
15 Because the Convention does not apply to all international multimodal transportation, but only to
multimodal transportation involving carriage by water, it has sometimes been dubbed a “wet
multimodal” instrument: see, for example, Nikaki (2006).
16 Rotterdam Rules 2009, Art. 26.
17 UNCITRAL, Status: United Nations Convention on Contracts for the International Carriage of
Goods Wholly or Partly by Sea, available at: http://www.uncitral.org/uncitral/en/uncitral_texts/
transport_goods/rotterdam_status.html.
18 U.S. Constitution, art. II, § 2, cl. 2: “[The President] shall have Power, by and with the Advice and
Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur. . .”.
156
M. Davies