Furthermore, the conventions dealing with other transport modes are largely Eurocentric with little significance.
125 It is submitted that the Rotterdam Rules are overambitious in attempting to deal with multimodal transport which may be a reason for
the insufficiency of ratifications necessary to bring them into force.
5.2.1 Article 82 of the Rotterdam Rules
The opening words of Article 82,
126
“[n]othing in this Convention affects the
application of any of the following international conventions. . .” points to the
employment of the network-liability approach in the Rotterdam Rules to deal with
potential conflicts between carriage conventions. This Article is part of Chapter 17 of
the Rules (“Matters not governed by this Convention”), which implies that the
circumstances described within Article 82 are outside the scope of application of
the Convention.
127
Paragraph (a) aims to prevent the Rules from prevailing over any convention on
the carriage of goods by air “to the extent that such convention according to its terms
applies to any part of the contract of carriage”.
128 Even though the Montreal
Convention does not govern any period of “carriage by land, by sea or by inland
waterway outside an airport”, two exceptions fall within the Montreal Convention’s
coverage.
129 First, if carriage takes place “in the performance of a contract for
carriage by air, for the purpose of loading, delivery or trans-shipment, any damage
is presumed, subject to proof to the contrary, to have been the result of an event
which took place during air transport”; second, if a contract of carriage stipulates that
goods would be carried by air, and a carrier arbitrarily changes to another transport
mode, e.g. by sea, without the consent of the consignor.
130 Thus, under these two
circumstances, the Montreal Convention can govern carriage by sea. Some experts
claim that Article 82 (a) is sufficient to address the conflicts between sea and air
legs.
131 It must be mentioned in this context that the combination of carriage by sea
and air is rare.
Despite the Rotterdam Rules not being applicable in the two cases mentioned
above,
132 it has been pointed out that Article 82 (a) is not sufficient to harmonize
125 Chuah (2009), pp. 367–401.
126 Rotterdam Rules Article 82 (International conventions governing the carriage of goods by other
modes of transport).
127 Cf. Sturley et al. (2010a, b, c, d), pp. 59–75, paragraphs 4.013–4.045 (addressing the complexity
of conflicts). Berlingieri (2009), p. 54.
128 Rotterdam Rules Article 82 (a). See also De Wit (2010), pp. 100–107, paragraphs 5.53–5.
129 Montreal Convention Articles 38 and 18.4.
130 Ibid, Article 18.4.
131 Ralph De Wit (2010), pp. 100–101, paragraphs 5.53–5.58; see also G. van der Ziel in Cf. Sturley
et al. (2010a, b, c, d), pp. 72–73, paragraphs 4.034–4.037.
132 See also De Wit (2010), pp. 100–107, paragraphs 5.53–5.73.
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775
125 It is submitted that the Rotterdam Rules are overambitious in attempting to deal with multimodal transport which may be a reason for
the insufficiency of ratifications necessary to bring them into force.
5.2.1 Article 82 of the Rotterdam Rules
The opening words of Article 82,
126
“[n]othing in this Convention affects the
application of any of the following international conventions. . .” points to the
employment of the network-liability approach in the Rotterdam Rules to deal with
potential conflicts between carriage conventions. This Article is part of Chapter 17 of
the Rules (“Matters not governed by this Convention”), which implies that the
circumstances described within Article 82 are outside the scope of application of
the Convention.
127
Paragraph (a) aims to prevent the Rules from prevailing over any convention on
the carriage of goods by air “to the extent that such convention according to its terms
applies to any part of the contract of carriage”.
128 Even though the Montreal
Convention does not govern any period of “carriage by land, by sea or by inland
waterway outside an airport”, two exceptions fall within the Montreal Convention’s
coverage.
129 First, if carriage takes place “in the performance of a contract for
carriage by air, for the purpose of loading, delivery or trans-shipment, any damage
is presumed, subject to proof to the contrary, to have been the result of an event
which took place during air transport”; second, if a contract of carriage stipulates that
goods would be carried by air, and a carrier arbitrarily changes to another transport
mode, e.g. by sea, without the consent of the consignor.
130 Thus, under these two
circumstances, the Montreal Convention can govern carriage by sea. Some experts
claim that Article 82 (a) is sufficient to address the conflicts between sea and air
legs.
131 It must be mentioned in this context that the combination of carriage by sea
and air is rare.
Despite the Rotterdam Rules not being applicable in the two cases mentioned
above,
132 it has been pointed out that Article 82 (a) is not sufficient to harmonize
125 Chuah (2009), pp. 367–401.
126 Rotterdam Rules Article 82 (International conventions governing the carriage of goods by other
modes of transport).
127 Cf. Sturley et al. (2010a, b, c, d), pp. 59–75, paragraphs 4.013–4.045 (addressing the complexity
of conflicts). Berlingieri (2009), p. 54.
128 Rotterdam Rules Article 82 (a). See also De Wit (2010), pp. 100–107, paragraphs 5.53–5.
129 Montreal Convention Articles 38 and 18.4.
130 Ibid, Article 18.4.
131 Ralph De Wit (2010), pp. 100–101, paragraphs 5.53–5.58; see also G. van der Ziel in Cf. Sturley
et al. (2010a, b, c, d), pp. 72–73, paragraphs 4.034–4.037.
132 See also De Wit (2010), pp. 100–107, paragraphs 5.53–5.73.
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