four U.N. agencies (UNCITRAL, UNCTAD, UN/ECE, and what is now IMO) and
two private bodies dedicated to the unification of international law (UNIDROIT and
CMI). This is surely “maritime law in motion” in one sense. There have been many
drafts of legal instruments—the UNIDROIT draft of 1964, CMI’s “Tokyo Rules”,
the UN/ECE “Rome Draft”, the UN/ECE/IMCO “TCM Draft”—and two finalized
conventions, which surely counts as a lot of legal water under the bridge. In another,
very real, sense, there has been no motion at all. The “legal tower of Babel” remains.
If there is any international uniformity at all, it comes from the widespread use of
standard form documents such as the FBL Multimodal Transport Bill of Lading
issued by the International Federation of Freight Forwarders Associations
(FIATA),
19 which reflects the UNCTAD/ICC Rules for Multimodal Transport
Documents.
20 The UNCTAD/ICC Rules were issued jointly by the United Nations
Conference on Trade and Development (UNCTAD) and the International Chamber
of Commerce (ICC) in 1992, in recognition of the fact that the Multimodal Convention would never come into force. The FIATA FBL was also issued in 1992. It,
too, implements a modified version of the network principle, incorporating the
Hague or Hague-Visby Rules for the carriage of goods by sea (or the
U.S. COGSA, where applicable),
21 and stating both a general limit of liability
based on the Hague-Visby limit (except when COGSA applies),
22 and a provision
stating that if loss or damage can be localized by identifying the mode of transport in
which it occurred, then the limit of liability compulsorily applicable to that stage
shall be applied as if a separate contract had been made for that particular stage.
23
In other words, the legal position in relation to multimodal transportation is much
the same now as it was at the beginning of the container era, based on documents that
are over 25 years old, which in turn incorporate the familiar but now vintage legal
instruments, the Hague/Hague-Visby Rules and COGSA. The prodigious efforts that
have been made to make the law move—even into the late twentieth century,
let alone the early twenty-first—have come to nothing.
3 The New York Produce Exchange Time Charter
The New York Produce Exchange standard form time charter was first officially
adopted on November 6th, 1913, by the New York Produce Exchange, which was a
commodity exchange based at 2 Broadway in New York City.
24 After many years of
19 The acronym FIATA comes from the French name of the association, Fédération Internationale
des Associations de Transitaires et Assimilés.
20 UNCTAD/ICC Rules for Multimodal Transport Documents (ICC Publication No. 481, 1992).
21 FIATA FBL, cl. 7.
22 FIATA FBL, cls. 8.3, 8.6(b).
23 FIATA FBL, cl. 8.6(a).
24 Healy (1983), p. 521.
When Was the Last Time You Were Restrained by a Prince? Conservatism. . .
157
two private bodies dedicated to the unification of international law (UNIDROIT and
CMI). This is surely “maritime law in motion” in one sense. There have been many
drafts of legal instruments—the UNIDROIT draft of 1964, CMI’s “Tokyo Rules”,
the UN/ECE “Rome Draft”, the UN/ECE/IMCO “TCM Draft”—and two finalized
conventions, which surely counts as a lot of legal water under the bridge. In another,
very real, sense, there has been no motion at all. The “legal tower of Babel” remains.
If there is any international uniformity at all, it comes from the widespread use of
standard form documents such as the FBL Multimodal Transport Bill of Lading
issued by the International Federation of Freight Forwarders Associations
(FIATA),
19 which reflects the UNCTAD/ICC Rules for Multimodal Transport
Documents.
20 The UNCTAD/ICC Rules were issued jointly by the United Nations
Conference on Trade and Development (UNCTAD) and the International Chamber
of Commerce (ICC) in 1992, in recognition of the fact that the Multimodal Convention would never come into force. The FIATA FBL was also issued in 1992. It,
too, implements a modified version of the network principle, incorporating the
Hague or Hague-Visby Rules for the carriage of goods by sea (or the
U.S. COGSA, where applicable),
21 and stating both a general limit of liability
based on the Hague-Visby limit (except when COGSA applies),
22 and a provision
stating that if loss or damage can be localized by identifying the mode of transport in
which it occurred, then the limit of liability compulsorily applicable to that stage
shall be applied as if a separate contract had been made for that particular stage.
23
In other words, the legal position in relation to multimodal transportation is much
the same now as it was at the beginning of the container era, based on documents that
are over 25 years old, which in turn incorporate the familiar but now vintage legal
instruments, the Hague/Hague-Visby Rules and COGSA. The prodigious efforts that
have been made to make the law move—even into the late twentieth century,
let alone the early twenty-first—have come to nothing.
3 The New York Produce Exchange Time Charter
The New York Produce Exchange standard form time charter was first officially
adopted on November 6th, 1913, by the New York Produce Exchange, which was a
commodity exchange based at 2 Broadway in New York City.
24 After many years of
19 The acronym FIATA comes from the French name of the association, Fédération Internationale
des Associations de Transitaires et Assimilés.
20 UNCTAD/ICC Rules for Multimodal Transport Documents (ICC Publication No. 481, 1992).
21 FIATA FBL, cl. 7.
22 FIATA FBL, cls. 8.3, 8.6(b).
23 FIATA FBL, cl. 8.6(a).
24 Healy (1983), p. 521.
When Was the Last Time You Were Restrained by a Prince? Conservatism. . .
157