Likewise, the same problem also applies to paragraphs (c)
142 and (d).
143 Under
paragraph (c), the Rules come into play as the “supplement to the carriage by rail”,
without a clear definition of “supplement”. Under paragraph (d) on inland waterways
carriage, the Rules prevail in the very limited case of carriage “without transshipment both by inland waterways and sea.
144 Notably, in this case, the Budapest
Convention (CMNI) is possibly not applicable.
145 Consequently, there is a possibility that an inland waterway carriage without trans-shipment both by inland waterways and sea is governed by neither the Rotterdam Rules nor the Budapest
Convention.
Therefore, Article 82 has not clearly addressed conflicts between conventions on
different modes of transport in cases of multimodal carriage. These problematic
provisions cause legal uncertainties. To address the conflicts which arise from
litigation over allocated (because unprovable) damage or loss, there are two options:
first, to admit that both the Rotterdam Rules and a potential conflicting carriage
convention are applicable,
146 so that either puts Article 82 within another chapter
rather than Chapter 17 (“matters not governed by this Convention”), or maintain that
Article 82 be part of Chapter 17 of the Rules together with amending the title of
Chapter 17 (to e.g., “Matters suspending the Convention’s application”); second, to
clearly state which convention prevails over the others, or to set out a uniform
147
level of liability in the event of unallocated damage, loss or delay.
5.2.2 Article 26 of the Rotterdam Rules
Article 26
148 aims to establish a ‘limited network system’
149 on carriers’ liability
with regard to multimodal transport, in order to reduce the conflicts between the
Rotterdam Rules and other international instruments. For the application of this
Article, it must be proved where loss, damage, or delay occurred.
150 However, if it
142 De Wit (2010), pp. 100–107, paragraphs 5.53–5.73.
143 De Wit (2010). See also Sturley et al. (2010a, b, c, d), p. 73, paragraph 4.038.
144 Rotterdam Rules Article 82(d).
145 CMNI Article 2.2.
146 Cf. Honka (2010), pp. 349–354.
147 Si and Guo (2010), p. 259.
148 Rotterdam Rules Article 26. See also De Wit (2010).
149 A pure network system makes all the unimodal rules applicable directly between the carrier and
the shipper as to each mode of transport. A uniform system makes the same rules apply between the
carrier and the shipper to the whole multimodal transport with no regard to the unimodal rules
applicable to individual legs of the multimodal transport. In a limited network system, which mixes
uniform and network systems, the mandatory rules which apply between the carrier and the shipper
vary according to and are based on the underlying unimodal rules applicable to a related mode of
transport, while other issues remain governed by the Rotterdam Rules for the whole of the
multimodal transport. See Uffe Lind Rasmussen (2009), pp. 143–145.
150 Uffe Lind Rasmussen (2009), p. 146.
Lex Maritima in a Changing World: Development and Prospect of. . .
777
142 and (d).
143 Under
paragraph (c), the Rules come into play as the “supplement to the carriage by rail”,
without a clear definition of “supplement”. Under paragraph (d) on inland waterways
carriage, the Rules prevail in the very limited case of carriage “without transshipment both by inland waterways and sea.
144 Notably, in this case, the Budapest
Convention (CMNI) is possibly not applicable.
145 Consequently, there is a possibility that an inland waterway carriage without trans-shipment both by inland waterways and sea is governed by neither the Rotterdam Rules nor the Budapest
Convention.
Therefore, Article 82 has not clearly addressed conflicts between conventions on
different modes of transport in cases of multimodal carriage. These problematic
provisions cause legal uncertainties. To address the conflicts which arise from
litigation over allocated (because unprovable) damage or loss, there are two options:
first, to admit that both the Rotterdam Rules and a potential conflicting carriage
convention are applicable,
146 so that either puts Article 82 within another chapter
rather than Chapter 17 (“matters not governed by this Convention”), or maintain that
Article 82 be part of Chapter 17 of the Rules together with amending the title of
Chapter 17 (to e.g., “Matters suspending the Convention’s application”); second, to
clearly state which convention prevails over the others, or to set out a uniform
147
level of liability in the event of unallocated damage, loss or delay.
5.2.2 Article 26 of the Rotterdam Rules
Article 26
148 aims to establish a ‘limited network system’
149 on carriers’ liability
with regard to multimodal transport, in order to reduce the conflicts between the
Rotterdam Rules and other international instruments. For the application of this
Article, it must be proved where loss, damage, or delay occurred.
150 However, if it
142 De Wit (2010), pp. 100–107, paragraphs 5.53–5.73.
143 De Wit (2010). See also Sturley et al. (2010a, b, c, d), p. 73, paragraph 4.038.
144 Rotterdam Rules Article 82(d).
145 CMNI Article 2.2.
146 Cf. Honka (2010), pp. 349–354.
147 Si and Guo (2010), p. 259.
148 Rotterdam Rules Article 26. See also De Wit (2010).
149 A pure network system makes all the unimodal rules applicable directly between the carrier and
the shipper as to each mode of transport. A uniform system makes the same rules apply between the
carrier and the shipper to the whole multimodal transport with no regard to the unimodal rules
applicable to individual legs of the multimodal transport. In a limited network system, which mixes
uniform and network systems, the mandatory rules which apply between the carrier and the shipper
vary according to and are based on the underlying unimodal rules applicable to a related mode of
transport, while other issues remain governed by the Rotterdam Rules for the whole of the
multimodal transport. See Uffe Lind Rasmussen (2009), pp. 143–145.
150 Uffe Lind Rasmussen (2009), p. 146.
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