other conflicts with air transport conventions, if the place of damage or loss cannot
be proved.
133 If, for instance, there is a multimodal transport bill of lading, including
(international) air and sea legs and some goods are carried by the modes agreed by
the carrier and the consignee (not the second circumstance mentioned above), and
the goods are damaged but the place of damage is not identified (if the place is
known, it is the first circumstance mentioned above).
134 Since the place of damage is
unknown, it is debatable whether the Rotterdam Rules apply.
Similarly, paragraphs (b), (c) and (d) of Article 82 prevent the Rotterdam Rules to
a limited extent from conflicting with any existing convention applicable for
governing the carriage of goods by road,
135 rail
136 and inland waterways.
137 Potential conflicts would arise between the Rules and a broad range of sea-and-road
transport instruments
138
; the CMR is one of these and applies compulsorily.
139
Under paragraph (b),
140 the Rotterdam Rules merely scratch the surface of the
problem of conflicts between the sea and the road transport conventions (e.g. the
CMR Article 2) for a roll-on/roll-off (ro-ro) carriage, in which the goods carried
“remain loaded on a road cargo vehicle carried on board a ship”. Therefore, Article
82 (b) will prevent the Rules from prevailing over the CMR, if only “goods . . .
remain loaded on a road cargo vehicle carried on board a ship”. That is, in the event
of a ro-ro contract of carriage, the Rules would not conflict with the CMR which
apply to the whole
141 carriage. Nevertheless, other potential conflicts remain under
this paragraph as to carriage by road and sea.
133 Diamond (2009), p. 454.
134 Ibid.
135 CMR Article 41.1 states “any stipulation which would directly or indirectly derogate from the
provisions of this Convention shall be null and void”. Datec Electronics v United Parcels Services
[2007] UKHL 23. See Ulfbeck (2010), pp. 43–76.
136 CIM Articles 1.3 (governing a single contract including international road and inland waterway
carriage), Article 5 (stating that the mandatory rules cannot be contracted out of or derogated from
unless as otherwise provided for in the Rules themselves), Article 23.1.
137 Sturley et al. (2010a, b, c, d), pp. 71–75, paragraphs 4.031–4.045, pp. 169–176; paragraphs
5.245–5.259; the UNCITRAL 20th Session Report, paragraphs 163–166.
138 Thermo Engineers v. Ferrymasters Ltd [1981] 1 W.L.R.
139 CMR Article 2.1 provides: “Where the vehicle containing the goods is carried over part of the
journey by sea, rail, inland waterways or air, and, except where the provisions of article 14 are
applicable, the goods are not unloaded from the vehicle, this Convention [CMR] shall nevertheless
apply to the whole of the carriage.” CMR Article 41 states “1. Subject to the provisions of article
40, any stipulation which would directly or indirectly derogate from the provisions of this Convention shall be null and void. The nullity of such a stipulation shall not involve the nullity of the
other provisions of the contract.” E.g. T Comedy v. Easy Managed Transport [2007] EWHC
611 (holding that the a general lien clause in the truck carriage contract would derogate from the
consignees’ right to delivery on payment of the charges shown to be due on the consignment note
(Article 13.1) would be null and void under Article 41 of the CMR).
140 See also De Wit (2010), pp. 100–107, paragraphs 5.53–5.73.
141 CMR Article 2.
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be proved.
133 If, for instance, there is a multimodal transport bill of lading, including
(international) air and sea legs and some goods are carried by the modes agreed by
the carrier and the consignee (not the second circumstance mentioned above), and
the goods are damaged but the place of damage is not identified (if the place is
known, it is the first circumstance mentioned above).
134 Since the place of damage is
unknown, it is debatable whether the Rotterdam Rules apply.
Similarly, paragraphs (b), (c) and (d) of Article 82 prevent the Rotterdam Rules to
a limited extent from conflicting with any existing convention applicable for
governing the carriage of goods by road,
135 rail
136 and inland waterways.
137 Potential conflicts would arise between the Rules and a broad range of sea-and-road
transport instruments
138
; the CMR is one of these and applies compulsorily.
139
Under paragraph (b),
140 the Rotterdam Rules merely scratch the surface of the
problem of conflicts between the sea and the road transport conventions (e.g. the
CMR Article 2) for a roll-on/roll-off (ro-ro) carriage, in which the goods carried
“remain loaded on a road cargo vehicle carried on board a ship”. Therefore, Article
82 (b) will prevent the Rules from prevailing over the CMR, if only “goods . . .
remain loaded on a road cargo vehicle carried on board a ship”. That is, in the event
of a ro-ro contract of carriage, the Rules would not conflict with the CMR which
apply to the whole
141 carriage. Nevertheless, other potential conflicts remain under
this paragraph as to carriage by road and sea.
133 Diamond (2009), p. 454.
134 Ibid.
135 CMR Article 41.1 states “any stipulation which would directly or indirectly derogate from the
provisions of this Convention shall be null and void”. Datec Electronics v United Parcels Services
[2007] UKHL 23. See Ulfbeck (2010), pp. 43–76.
136 CIM Articles 1.3 (governing a single contract including international road and inland waterway
carriage), Article 5 (stating that the mandatory rules cannot be contracted out of or derogated from
unless as otherwise provided for in the Rules themselves), Article 23.1.
137 Sturley et al. (2010a, b, c, d), pp. 71–75, paragraphs 4.031–4.045, pp. 169–176; paragraphs
5.245–5.259; the UNCITRAL 20th Session Report, paragraphs 163–166.
138 Thermo Engineers v. Ferrymasters Ltd [1981] 1 W.L.R.
139 CMR Article 2.1 provides: “Where the vehicle containing the goods is carried over part of the
journey by sea, rail, inland waterways or air, and, except where the provisions of article 14 are
applicable, the goods are not unloaded from the vehicle, this Convention [CMR] shall nevertheless
apply to the whole of the carriage.” CMR Article 41 states “1. Subject to the provisions of article
40, any stipulation which would directly or indirectly derogate from the provisions of this Convention shall be null and void. The nullity of such a stipulation shall not involve the nullity of the
other provisions of the contract.” E.g. T Comedy v. Easy Managed Transport [2007] EWHC
611 (holding that the a general lien clause in the truck carriage contract would derogate from the
consignees’ right to delivery on payment of the charges shown to be due on the consignment note
(Article 13.1) would be null and void under Article 41 of the CMR).
140 See also De Wit (2010), pp. 100–107, paragraphs 5.53–5.73.
141 CMR Article 2.
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