Article by Rolf Herber
Concerning the development of the law of multimodal transport, Europe can contribute unmatched experience; this is true for geographical, political, and historical reasons. Europe has many sources of law that have been brought to bear on multimodal transport and has a great deal of experience with the unification of law. Because of Europe's many geographical situations that demand multimodal transport, the legal problems that inherently arise relative to multimodal transport were discovered earlier in Europe than elsewhere. Therefore, the law that Europe has developed for multimodal transport may be a good guide for the development of multimodal transport law on a worldwide level.
A political map of Europe, on which every state has been printed in a different color, makes for a very colorful patchwork. The transportation of goods, even over a medium-range distance such as two hundred miles, often has to overcome at least one, and perhaps several, political borderlines. This is the case, for instance, on the common transportation route from the German industrial area of the Ruhr to the Europort in Rotterdam, from the port of Hamburg to Sweden or Poland, or from the port of Genoa to southern Germany. It is true that the passing of our borders has become legally easier because of our progressive political unification, which now ties together twelve European States. This, however, is only one public-law aspect of the difficulties posed by international multimodal transport, although it certainly has been of great importance for the economic development of Europe. In the area of law concerning the carriage of goods, however, the various jurisdictions have not been unified, or even harmonized, by the European Community.
There has been, however, a long tradition of unification of the law in Europe, particularly the law of the transport of goods. That tradition started long before the European Community was created by the Rome Treaty and, to a large extent, unified the rules on liability for damage to goods. The first step in this development was the International Convention Concerning the Carriage of Goods by Rail concluded in 1890. It was abbreviated according to its French heading, CIM. The Convention unified the rules on liability for the loss of and damage to goods carried by rail over the territories of at least two contracting states. The Convention has been revised repeatedly in the century since then. Its last version was adopted in 1980 and is now named, in a more complicated acronym, COTIF/CIM. The name was changed because the general administrative elements of CIM (for the carriage of goods) and its sister convention CIV (for the carriage of persons) have been combined into a general convention concerning international carriage by rail (COTIF), with the rules concerning the contract for international carriage of goods by rail (CIM) forming an appendix to this overall Convention. In substance, however, the rules of CIM remain basically the same as before the name change.
The CIM is in force for most states in Europe. A technical and political borderline exists between the West European and the East European countries. Some Eastern European countries have equipped their railways with nonconforming, wider tracks so that railcars cannot be used between their territories and Western Europe without time-consuming adaptation. For this reason, a convention similar to the CIM has been developed independently of, but in narrow cooperation with, the CIM in Eastern Europe. This convention is called the SMGS. For the purposes of our investigation, however, it will be sufficient to concentrate on the CIM of Western Europe to which most of the countries of Eastern Europe, apart from the Soviet Union, have adhered.
The CIM is administered from a special office in Berne, Switzerland, which provides for the periodical revision of the convention, for mutual sharing of information, and for the financial clearance of freight and expenses. This clearance of freight is necessary because, as a rule in international transport, one railway receives the freight for a carriage, part of which has to be performed by others. In fact, the clearing system of the Berne office is one of the reasons why the CIM has received the ratification or adherence of most of the states of Europe, as well as many states in the Near East (Iran, Iraq, and Lebanon) and Northern Africa (Algeria, Morocco, Syria, and Tunisia). Thus, the law of carriage of goods by rail, insofar as liability for damages is concerned, is, with few exceptions, unified throughout Europe and beyond.
Astonishingly, the same is true regarding the law of the carriage of goods by road. In 1956, the Convention on the International Carriage of Goods by Road (CMR) was developed under the auspices of the Economic Council for Europe (ECE) in Geneva. To some extent it was modeled after the CIM, but it differs in many details. One particular area of difference, as we will see, concerns multimodal transportation.
Like the CIM, the CMR deals primarily with liability, and it enjoys a considerable list of ratifications or accessions by the states of Europe. One difference between the CMR and the CIM is that the twenty-four contracting states of the CMR do not include any states in the Near East or Northern Africa. On the other hand, the CMR, like the CIM, includes some Eastern European states. Its members include Bulgaria, Czechoslovakia, Hungary, Poland, Romania, the USSR, and Yugoslavia. So again, in Europe, the law of transportation of goods by road, at least in terms of liability, is unified to a large extent.
Oddly enough, one specifically European form of carriage is considered to be carriage by land: carriage by inland navigation. Carriage by inland navigation is performed chiefly on the Rhine and, to a smaller extent, on the Danube and the Western European channel system. Thus far, attempts to unify the rules of carriage by inland navigation have failed.
Finally, two other modes of transport should be mentioned: the carriage of goods by sea and the carriage of goods by air. With these, unification is worldwide. Unification has been effected by the Hague and Hague/Visby Rules for carriage by sea and by the Warsaw Convention, partly modernized by the Hague Protocol, as to air transportation. Both regimes have many gaps and have been subject to different interpretations, but, in principle, they are worldwide. So I need not particularly mention them in a special European context, especially because they do not address multimodal transport.
In the two major European conventions, CMR and CIM, the European states have developed common rules for the international transportation by rail and road. Unfortunately, CMR and CIM are very different from the various member nations' internal rules on carriage of goods, but, as mentioned, most of the transportation in Europe is international. Therefore, when considering multimodal transportation we first have to look to CIM and CMR because these conventions, under certain conditions and within certain limits, contain rules of multimodal transport.
Multimodal transport is defined, simply, as transport by a combination of modes. In this respect we have particular experience in Europe because of our geography. A glance at a map of Europe shows that some of the countries are islands, like England, Ireland, and Malta. Some countries, like Scandinavia, are divided by straits from the rest of the continent. Additionally, many roads cross the river boundaries of nations. Very often, therefore, a road carrier, such as a trucker, might have to make temporary use of other modes of transport, such as railways or ferries, to cross these bodies of water. Likewise, the truck might have to be put on a railway car for geographical reasons such as passing through a railroad tunnel. The ferryboat on which the truck might ride could be regarded as a seagoing vessel and covered by maritime law. On the other hand, it might be regarded as an island navigation craft and, therefore, covered by inland navigation law. These examples illustrate some of the complexities that are characteristic of multimodal transport law.
In nearly all cases, the economically important ferry connections in Europe (apart from short crossings of rivers by inland navigation craft) are either international crossings or form part of an international transportation route. This is true of the two most important ferryboat crossings in Europe: the English Channel crossing between Britain and France, Belgium, and Holland, and the Baltic Sea crossing between West Germany and the GDR and Sweden, Norway, and Finland. In all of these cases, the transport is international for two reasons: First, because political borderlines are crossed, and second, because all of the mentioned states are members of the two conventions, CIM and CMR.
Europe, in both politic and geographical dimensions, confronted its legal practitioners early on with the problem of multimodalism, an integral part of which was its international law aspect. For this reason, the law of multimodal transport has developed mostly on an international basis. Indeed, few national codes even contain provisions regarding multimodal transportation.
On the other hand, the two conventions on rail and road transportation, CMR and CIM, are limited in that they cover only those situations typical of their kind of carriage, and a general rule on multimodal transport has not yet been worked out. Because this is a recent problem deserving of a worldwide solution, the European states rely—like interested states around the world—on the work which has been undertaken by the Inter-governmental Consultative Organisation and Economic Commission for Europe of the United Nations (IMCO/ECE) and later by the United Nations Conference on Trade and Development (UNCTAD) for an international convention on multimodal transport. This work, however, remains unfinished.
About the Author
Rolf Herber. Professor of Commercial Law; Director, Institute for the Law of the Sea and Maritime Commercial Law, Hamburg.
Citation
64 Tul. L. Rev. 611 (1989)