Tobias Eckardt, Alma Steger, Jakob Rosing, George W. Dawson, Timo Ylikantola, Jan Eckoldt, Luis Alberto Garcia, Matthias Schmitt, Regula Hinderling

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1 e cc1 European Journal of Commercial Contract Law EJ CC L Volume 2 Number M ultimodal Transport Includ ing Cross-border Road Haulage Will the CM R Apply? Tobias Eckardt, Alma Steger, Jakob Rosing, George W. Dawson, Timo Ylikantola, Jan Eckoldt, Luis Alberto Garcia, Matthias Schmitt, Regula Hinderling 0 German Reform of Insurance Contract Law Robert Koch 1 News European Union Maja Brkan France Olivier Vibert Spain Victoria Petit LcwaII José Manuel Mart[n Osante Aitor Zurimendi Isla Achim P(tz José Huguet Monfort Marta Mundo United Kingdom Jasori Chuah

2 BGH) Tobias Eckarcit, Alma Steger, Jakob Rosing, George W Dawson, Luis Alberto Garcia, Matthias Schmitt, Regula Hinder1ing Timo Ylikantola, Jan Eckoldt, Multimodal Transport Inciuding Cross-border Road Haulage Will the CMR Apply? Introduction Which rules apply if goods in transit are damaged on the international road haulage leg of a multimodal transport? While this question might in future be answered by the Rotterdam Rules, currentiv the CMR comes to mmd. But does the CMR apply to multimo dal transports eo ipso? Or can the CMR only apply if the national law applicable refers to it? The German Bundesgerichtshof (German Federal Supreme Court first considered this question in 1987 (case file number 1 ZR 127/85). The case cerned a carriage of goods from Germany to Rotter dam by road and then by sea to Portadown, Northern Ireland. The court held that the CMR applied to the road leg of the transport, but not to the sea leg, as the goods came off wheels. con This decision was then considered (amongst others) by the English Court of Appeal in the Quantum case (Quantum Corporation mc. & Others v. Plane Trucking Ltd. & Another [2002] EWCA Civ 350 (27 March 2002)). In that case, goods had been flown from Singapore to Paris to then be transported by road and as a ro-ro to Dublin. The court concluded that this last leg of the transport was ruled by the CMR. Consequently, it seemed that the legal situation concerning the autoriomous applicability of the CMR to road legs of multimodal transports was settled with regard to German and English courts. Indeed, the House of Lords confirmed the findings in the Q nantuni case in a later decision (Datec Electronics Holdings Ltd & Others v. United Parcels Services Ltd., [2007] UKHL 23 (16 May 2007)). Here, goods were carried from Milton Keynes to Luton Airport, flown to Cologne and then carried by road to Amsterdam. Lord Ivlance stated therein at para. 22: Here, UPS had discretion as to the route and means (cf clause ID of their conditions), and they chose to perform as an international road carrier between Cologne and the final destination in Amsterdam. The $50,000 question apart, it is common ground that CMR would apply as between UPS and the ents to the international road carriage which UPS was entitled, and chose, to undertake: cf Quantum Corpn mc. v. Plane Trucking Ltd. [2002] EWCA Civ 350; [2002] 2 Lloyd s Rep 25. Whether CMR in fact applied thus depends on whether there was any contract for respond the carriage of these packages from Milton Keynes to Amsterdam. However, the BGH clarified its understanding of the legal situation in a recent decision (1 ZR 181/05, cf. EJCCL, 2009, 39). Regarding a transport by plane from Tokyo to Rotterdam and by road from Rotterdam to Mönchengladbach (Germany), the court held that the CMR did not apply to the road haulage. The court argued that the CMR did not apply eo ipso as Article 1 para. 1 ought to be interpreted as carriage of goods by road (only) and Article 2 was to be understood as an exception to this rule. Consequently, the road haulage leg was to be judged against the background of the applicable national law. Onlv if such national rules allowed the applicability of the CMR was the Conven tion to be applied; in other words, the CMR only applies to multimodal transports with the help of or via a detour of national law. The BGH stated that this understanding was also the basis of the 1987 decision, but had not been made explicitlv clear therein. Thus, the question arose whether other national courts apply the CMR to international road baulage legs in multimodal transports. Assembled here are reports by transport law specialists from Austria, England and Wales, the Netherlands, Sweden and Switzerland. 8 4 Finland, Denmark, 3 6 Spain, 7 Dr. Tobias Eckardt, Ahlers & Vogel, Hamburg, Germany; Dr. Alma Steger, Rechtaanwaltskanzlei Steger, Vienna, Aus tria; Jakob Rosing, Kromann Reumert Law Firm, Copen. hageri, Denmark; George W. Dawson, DRG Solicitors LLP, Manchester, UK; Timo Ylikantola, Attorneys at law Ratiolex Ltd., Helsinki, Finland; Jan Eckoldt, Cox Ten Bruggencate Advocaten, Amsterdam, The Netherlands; Luis Alberto Garcia, Partner of Rogers & Co Abogados, Madrid, Spain; Matthias Schmitt, Rechtsanwalt (DE) and Advokat (SE), Partner, MAQS Law Firm, Stockholm, Sweden; Dr. Regula Hinderling, Wenger Plattner Lawyers, Basel, Switzerland. 1. For a more detailed deacription of the latest BGH decision, pleaae refer to EJCCL 2009, By Dr. Alma Steger. 3. By Jakob Rosing. 4. By George W. Dawson. 5. By Timo Ylikantola. 6. By Jan Eckoldt. 7. By Luis Alberto Garcia. 8. By Matthias Schmitt. 9. By Dr. Regula Hinderling. European Journal of Commercial Contract Law

3 Will the CMR Apply? The reports show that there is no clear-cut answer to the above question, While in Austria and the Netherlands, as weil as in England and Wales, the CMR is considered to apply directly to such cases, the answers Danish and Swedish courts will give depend on the circumstances of the case and the contents of the contract of carriage and on the dominance of the road transport. The Swiss position is very much the same as the German, while courts in Finland and Spain may arrive at the CMR through the application of national laws, and in this are similar to the understanding put forward by the BGH. Thus, the Convention did not succeed in unifying the law this respect. This may prompt the parties to a dispute to attempt to have their case heard by a able court through forum shopping. Such steps may, in tum, lead to another set of legal difficulties, such as the questions currently pending before the European ofjustice in the matter C-533/08 (TNT Express Nederland BVv. AXA VersichertengAG) namely the relationship between the CMR and the Brussels 1 Regulation. It remains to be seen whether a uniform solution can be arrived at if and when the Rotterdam Rules enter into force. Court Austria favour Regarding the Issue ofapplicability of the CMR to Multimodal Contracts The CMR as suclx is always directly applicable to a contract which exclusively provides for road transport provided that the remaining prerequisites of Articie 1(1) CiviR are fulfilled. As no international convention on international multirnodal transport of a private international law natur& exists, the question anses as to whether the CMR autonomously applies in the event that the contract provides not only for road transport by means of vehicies but in addition by one or several different means of transport ( multimodal transport ). Does Article 1(1) of the CMR, i.e. the regulation on applicability of the CMR, allow or require that this Convention also apply in connection with muitirnodal transport, and if so, to what extent? Legal Situation From the wording of Articie 1(1) CMR, it cannot be deduced that the Convention is applicable to multi modal CMR contain an explicit provision, according to which the CMR would be applicable to the road-bound section of multimodal It must therefore be checked whether the CMR can be applied to a multimodal contract via national law. The next step, therefore, is to clarify, by means of the general provi sions of private international law is applicable, in order to obtain new flndings, if any, regarding the treatment of multimodal transport contracts. If, either due to a valid choice of law or via Articie 5 of Reguiation (EC) No. 593/2008, Austrian law applies to the contract on international muitimodal 11 Neither does the set of rules of the transport. 12 transports. 13 what (natiorial) law, transport, one will see that there are no statutory pro visions on multimodal transport contracts in Austria, as they are contained, for example, in Sections 452 and 452a of the German Commercial Gode. It cannot be expected that a change of the legal situation will take place in the near future, above all because the comprehensive reform of Austrian commercial law that became effective on 1 January 2007 was not used to offer cross-carrier solution models. Decisions of the Austrian Supreme Court (OGH) When looking at court decisions, the issue of direct applicability of the CMR to multimodal contracts becomes clear. In a decision rendered in 1994,14 the Austrian Supreme Court for the first time clearly laid down the principles of liability in the case of multimo dal cross-border an order to transport cranes from Austria to Germany, i.e., the cranes were to be transported by lorry and then by rad across the border. The damage occurred when the cranes were loaded onto the train, i.e. the place where the damage occurred was known. Without stating any detailed reasons, the Austrian Supreme Court followed the view held in German court decisionsls and by German academics, according to which, in the case of multimodal transport the duty of the carrier who is instructed to transport the goods on the entire route is to pay damages subject to the liability provisions applicable to the relevant means of transport ( network system ). Accordingly, liability of the carrier differs depending on the section of the route on which the damage occurred. Subsequent decisions of the Austrian Supreme Coumt on multimodal contracts did not differ from this decisioni 15 The decision was based on transport. 7 Rather, important additional 10. Such as the application standards of the CMR, which stipulate that the regulations of the CMR must be applied to an international set of facts. 11. In this context, see also MLinchKommHGB,Jesscr-HoJI CMR Art. 2 marginal no. 6, according to which multimodal transport must be assessed according to national law as Art. 1 CMR Convention does not directly cover multimodal transport. 12. Irrespective of the case in which all prerequisites of Art. 2 CMR are fulfilled, even though Art. 2 CMR extends applicabilitv of the CMR onlv to special contract design as defined in Art. 2 of the CMR (see also MiinchKommHGB, Jesser-Huj? CMR Art. 2 marginal no. 1). 13. Art. 5 of Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rorne 1). 14. Austrian Supreme Court, l9january 1994,7 Oh 3/ Affirmative: Schz/tz in Straube (editor), UGB Section 425 marginal no. 35; Csoklich, RdW 1994, 339 et seq. 16. German Federal Supreme Court, 24June 1987,1 ZR 127/85, TranspR 1987, 447, 449; stipulates the principles regarding liability concerning multimodal transport according to German law. 17. Austrian Supreme Court, 13 July 1994, 7 Ob 586/93; Austrian Supreme Court, 10 September 1998, 6 Oh 349/97k; Austrian Supreme Court, 18 May 1999,4 Oh 127/99a. II, European Journal of Commercial Contract Law

4 the that without inter Will the CMR Apply? clarifications were added when it was held that in the case that the place where the damage occurred is unknown, the carrier must accept the liabilitv law that is most favourable for the party raising the claim. As the reason the Court stated that exclusions and limita tions of liability, be it in general terms and conditions or in individual statutory provisions, always constitute 8 Moreovei; according to the Austrian an exceptioni Supreme Court, the liability provisions applicable to the relevant sections of the route are decisive not onl if it is clear from the very beginning that the transport will be effected by different means of transport, but also if the forwarder has chosen certain means and routes of transport at his due discretion. Accordingly, the carrier must also explain and prove by what means of transport the goods were transported on each section of the route. 19 Conclzssion Summarising the above, one may say that, according to decisions of the Austrian Supreme Court, the CMR can as such be applicable in connection with multimodal transport. However, those Austrian decisions contradict the most recent decision of the German Federal Supreme Court, denied direct applicability of the CMR to multimodal transports. Den mark 2 which has clearly Applicability of the CMR to Multiinodal Transports The Danish Position In a recent case (judgment of 23 April 2008 in Nos. 120/2005 and 138/2005, published in U H so-called Salmon Roe case), the Danish Supreme Court delivered a judgment in which it was considered whether the CMR should apply to a multimodal transport. The Facts of the Case A freight forwarder undertook to carry out a transport of a consignment of frozen salmon roe from a Danish city, Billund, via Frankfurt, Germany, to Japan. The transport was, according to the contract, to be carried out by air and accordingly the freight forwarder issued an airway bill (AWB) and charged the customer air freight. Regardless of the agreement, the flrst leg of the transport from Billund to Frankfurt was carried out by truck. During this road transport to Frankfurt the truck was involved in a traffic accident and the salmon roe was damaged. The question before the court was whether the Danish Air Navigation Act (into which the Warsaw Conven tion was incorporated at that time) with a two-year time limitation was to apply, or the Danish CMR Act implementing the CMR, with a one-year time limita tion. If the latter was to apply, all claims would have become time-barred. The AWB contained a standard option clause accord ing to which the air carrier was entitled to carry out the transport by road, notwithstanding the fact that an AWB was issued. With reference to this clause, the freight forwarder argued that the mandatory rules of the CMR Act were applicable, as it was to be consid ered alia, with reference to the option clause the parties had agreed that the transport from Billund to Frankfurt was to be carried out by road. The Reasoning The Supreme Court held that the agreement between the freight forwarder and the sender as evidenced in the AWB was an agreement concerning air carriage from Denmark to Japan. The fact that the agreement included an option clause according to which the car ner obtaining the sender s consent could carry out the transport by other means of transporta tion could not lead to another conclusion. As a result the Danish Air Navigation Act was to apply. The consequence of the freight forwarder s choice to carry out part of the carriage by other means of transporta tion was, however that the cargo owner was entitled to invoke the rules which apply to the way the transport was actually carried out. It followed that the claim was not time-barred and the freight forwarder was ordered to pay damages. Recourse was awarded against the airline company with whom the freight forwarder had contracted, however the ultimately liable haulier could invoke the CMR Act vis-it-vis the airline company, even though the haulier was aware that the road transport was actually part of a contract of air carriage. Consequently the recourse claim against the haulier was denied as being time-barred. Comments It appears from the flrst part of the Supreme Court s reasoning that the court did in fact consider the contract as an unimodal transport agreement, namely an agreement about air carriage only. The option clause was as such disregarded. Neither did the Supreme Court find it important how the carriage was in fact performed, namely partly by road. As such, the reasoning in the Danish Supreme Court decision differs from that which was followed by the Court of Appeal in the Quantum case (Quantnrn Cor poration Ltd. & Others v. Plane Trucking & Another (2002) 2 Lloyd s Rep. 25). It follows from the reason ing by the Appeal Court in that case that the carrier will be subject to the CMR if the carrier has the option to perform part of a transport as road carriage and in fact decides to do so. The principle established in the Q nantarn case had been followed in an earlier judg ment from the Danish Supreme Court (U H). 18. Austrian Supreme Court, 10September 1998, 6 Ob 349/97k. 19. Austrian Supreme Court, 13 July 1994, 7 Ob 586/ German Federal Supreme Court, 17 July 2008, 1 ZR 181/05. European Journal of Commernal Contract Law

5 Will the CMR Apply? However, in that case the option clause contained in the carrier s bill of lading terms specifically stipulated that should the carrier decide to carrv the goods in trailers, the CMR would apply. The statement from the Supreme Court in the Salmon Roe case, that the consequence of the freight forward er s choice to carry out part of the carriage by other means of transportation was that the cargo owner was entitled to invoke the rules which apply to the way the transport was actually carried out, has been subject of much discussion. On the face of it, the statement provides cargo interests with an option to also invoke the legislation which applies to the mode of transport during which the damage occurred. It is doubtful, however, whether this is so, because the CMR only applies to contracts for the international carriage of road and in the Salmon Roe case, the Supreme Court found that there was no agreement for road carriage. It has for this reason been argued that the statement should at least be construed so that the option for the cargo interest to invoke alternative liability regimes onlv applies to unimodal transport agreements with an option clause and thus not to genuine multimodal transports, i.e. transport agreements which from the outset clearly stipulate that the carrier shall use various modes of transport when carrying out the transport. Genuine multimodal transports are, under Danish law in general, considered to be an independent type of transport agreements which are not governed by the mandatory convention regimes, inciuding the CMR, unless the requirements for application of the multimodal provisions in the conventions are met (Art. 2 CMR). Howevei; no Danish case law 50 far clearly conflrms this view and a precondition will in any event be that the contracting carrier only issues a through bill of lading covering the whole transport. In such case, the carrier s liability will be governed (only) by the bill of lading terms. If the contracting carrier has issued severa transport documents covering the various modes of transport it is, on the other hand, likely that a Danish court will find that each leg of the carriage is subject to the relevant unimodal convention regime. 1 England and Wales CMR and the Multimo dal Contract There is, of course, no legislation in the UK govern ing the terms of the interna road or multimodal contracts and as pointed out by contributors from other jurisdictions, no international convention on the multi-modal transport of goods is yet in force. The CMR was given force in English law by the Carriage of Goods by Road Act 1965 which refers to the rights and liabilities of persons concerned in the carriage of goods by road under a contract to which the Convention [CMR] applies. This leaves open the question of whether a contract for the multimodal transportation of goods, part of which is achieved by way of carriage by road between 1 movement of goods by two different countries and at least one is a contracting party to the CMR, is indeed a contract to which the Convention will appiv. As noted by other contributors, the leading English decision on this issue is that of the Court of Appeal in Quantum Corporation mc & Others v. Plane Trucking Limited & Another heard by the Court of Appeal in 2002 ([2002] EWCA Civ350). As has been referred to, the Court of Appeal decided that the CMR did indeed apply to that leg of a mul timodal contract where goods were carried by road. In this case, Air France agreed to carry goods from Singapore to Dublin. In the absence of a direct fight, the master airway bill recorded that the goods were to be carried flrst from Singapore to Charles de Gaulle Airport and secondly, from there to Dublin. There were two entries on the face of the document, each under a heading Flight/Date which could create the impression that there were two separate flights but it was common ground before the Court of Appeal that these identifled lust, an Air France fight from Singa pore to Paris and secondly, a trucking service used by Air France to carry the goods from Paris to Dublin. The case arose when the consignment was stolen with the involvement of at least one employee of Plane Trucking. As the entries on the documents specifically refer to a trucking service, the Court bad no trouble in finding that this contract was indeed a contract partly for the movement of goods by road despite objections from Air France that their reservation of the right to choose the mode of transport meant that this was not the case. However, the leading judgment by Mance LJ with which Aldous & Latham LLJ agreed is much more emphatic than a study only of the final conclu sion suggests. It should be noted that this was an appeal from the decision of Tomlinson J who bad concluded that the correct approach was to characterise the contract as a whole and that unless the contract as a whole could be said to be for carriage by road internationally, then such carriage as did occur within the overall contract fell outside the terms of the Convention. That view was emphaticallv rejected by the Court of Appeal. Analvsing the circumstances in which these questions might anse, Mance LJ set forth a range of possibilities: (a) a carrier might promise unconditionally to carry by road; (b) a carrier might promise this but reserve a right to elect for carriage by other means; (c) a carrier may leave the means of transport open; (d) a carrier might undertake to carry by other means but reserve a right to opt for carriage by road. Clearly, case (a) would fall within the Convention and His Lordship also concluded that case (b) was such a case unless and until a carrier elected to and did carry EuropeanJourria1ofConmercia1 Contract Law

6 Will Multimodal Transport Inciuding Cross border Road Haulage the CMR Apply? by other means. However, Mance LJ went further and said that case (c) also gave good reason to treat such a contract as being a contract for carriage of goods by road in the sense of providing for or permitting such carriage. The more controversial option is case (d). In relation to such a case, Mance LJ commented Finally, there is case (d). This is the case in which the prospect of carriage by road was the most remote, as far as those interested in the goods and contracting to the carriage are concerned. A possible divergence of view about its treatment emerges in the continental authority to which 1 shall come. 1 start, however, with the initial impression that it would be very difficult to draw any very clear or satisfactory distinction case between case (d) and the previous cases. If they [cases (a), (b) and (c)] are all within CMR, there seems to be much to be said for treating case (d) as also within CMR. Whilst much of this may be obiter, it is clear and considered analysis. It is interesting to note that in reaching the conclu sion he did, Mance LJ was firmly of the view that he was reaching a conclusion consistent with the buik of European authorities. He drew comfort from The Resolution Bay (Rotterdam Rechtbank; 28/10/99), The Osaka Bay (Antwerp Commercial Court; 4/1/77) [1977] 12 ETL843 and indeed the decision of the German Supreme Court (BGH) in its judgment of 17 May 1989 (1 ZR 211/87). It may weil be his view that through their more recent decisions the German Supreme Court and others have themselves moved away from the consensus. Certainly, the decision of the BGH referred to above (1 ZR 181/05) would sit iii with the reasoning of lawyers in England and Wales who would find little justiflcation for interpreting Article 1.1 CMR as though the word only were to be inserted in the flrst line of the Article. In English jurisprudence, the insertion of additional wording should be undertaken reluctantly, usually where it is necessary to avoid an absurdity and it is not clear that purposive approach requires this addition to assist the Convention. For English law, the Quanturn case is alive and weil. Finland The Application of the CMR to Multimodal Transports According to Finnish Law The purpose of this article is to go through how CMR is applicable to multimodal transports according to the current legal state in Finland. The CMR s application procedures in its various Mem ber States differ when it comes to CMR s applicability to multimodal transports. For instance, the German Supreme Court ruled on its decision on 17 July that CMR does not apply to multimodal transports by autonomous interpretation. On the contrary it is con sidered in English case law, in the Quantum case of the Court of Appeal of England, to multimodal transports. In that case, the defendant company could not plead on those parts of the general terms of contract which limited the company s liability in multimodal transports contrary to the regulations of CMR. 22 that CMR is applicable In Finland, CMR has been enforced by the Act on Road Transport Contracts (in Finnish Tiekuljetus sopimuslaki, hereafter referred to as TKSL ), which is based on CMR s regulations to a large degree. Thus in the legal praxis of Finnish general courts, CMR case law and legal literature have been taken into considera tion in applying TKSL to international multimodal transports. after Finland ratifled the CMR Convention. TKSL governs both domestic and international road transport contracts. Like CMR, TKSL s regulations are manda tory law when it comes to international transports, and therefore they cannot be deviated from by contractual clauses. Therefore the examination of Finland s legal state regarding this issue should mainly be based on the regulations of TKSL. 23 TKSL was enacted in 1979 six years Duc to Finland s geographical position, multimodal transport is an important means of transporting goods to and from Finland. When examining TKSL s ap plicability to multimodal cross-border transportation, the basis must be set in the facts that the transport is essentiallv to be performed by road transport and that the contracting parties have agreed that part of this road transport is to be conducted by a multimodal transport in which the road vehicle is carried by another means of transportation. The applicability of TKSL to multirnodal transports depends on the ques don of whether the goods are unloaded from the road vehicie mid-transport or not. Considering Finland s location, this regulation is of great importance, because in transports to and from Finland, the temporary carriage of road vehicles by another means of transpor tation is necessary more often than not. TKSL applies to a multimodal transport if the goods are not unloaded from the road transport until it has reached its final destination. In these cases TKSL s regulations are also applied to those parts of the transport during which the road vehicle is being carried by another means of transportation (e.g. by a ship). For example, if a truck laden with goods is transported overseas by a ship and the goods are not at any point unloaded from the truck, the multimodal transport 21. Bundesgerichtshof l7july 2008,1 ZR 181/ Quantum Corporation mc. & Others v. Plane Truckzng Ltd. and Another, [2002] 1 WLR 2768 (CA). 23. See e.g. the Finnish Supreme Court decisions KKO 2001:67 and KKO 1990:12. European Journal of Commercial Contract Law

7 to with Will the CMR Apply? judicially constitutes an undivided road delivery and is thus subject to TKSL s regulations in their entirety (and therefore also to the CMR s). However, there is an exception to the aforementioned rule: if the goods are suhject to any damage during the multirnodal transport or if the arrival of the goods at their destination is delayed resulting from no fault of the contracting carrier but for a reason unique to that specific means of multimodal transportation, the carrier s liability is defined by the laws ruling that means of transportation. If, for example, a road vehicie is being transported overseas by a ship, and that ship happens to sink, the carrier s liability towards the contracting party is decided according to laws on sea transportation, provided that those regulations relating to sea transports, are mandatory law. As a main rule, if the goods are unloaded from the truck and loaded onto a ship, and after being ported by sea they are once again unloaded from the ship and loaded into a truck, TKSL s regulations are not applicable to the sea transport part of the delivery, but apply only to the road transport parts. trans In Finland, the regulations of the CMR are applicable to multimodal transport through TKSL. Due to the aforementioned reasons, the Finnish legal state cannot be interpreted such that the CMR is not applicable to multimodal transport, given that the regulations of TKSL in question correspond to those of CMR. In addition, as mentioned earlier, in Finnish legal praxis, CMR-related case law and legal literature have been taken into account in international multimodal transport-related cases. Considering that German court decisions have bad a tendency to find the CMR not applicable to multimodal transports, the Finnish legal state regarding this matter seems to be to the current English legal state than that of Germany. doser The Netherlands The German Supreme Court, the Bundesgerichtshof, ruled on 17 July 2008 that the CMR is not directly applicable to multimodal transports including a road leg between two Contracting States. The current Dutch position regarding the question of direct applicability of the CMR to multimodal transport is reflected in a few decisions of the Dutch lower courts. The most important decisions were rendered by the of Rotterdam: a Court which not surprisingly deals quite frequently with transport matters. Nearly all relevant Dutch decisions dealt primarily with tion issues or be more precise the question of whether or not there was jurisdiction based on Article 31 CMR. Court jurisdic The Dutch National Law Regarding Multimodal Transport Before taking a look at the Dutch jurisprudence, 1 would like to stress that Dutch Transport Law, which is codifled in Book 8 of the Dutch Civil Code ( DCC ), doser has some special provisions dealing with multimodal contracts of carriage. According to Article 8:41 DCC, every leg of a multimodal journey is covered by the applicable law. The applicable law, which can also be a convention like the CMR, is determined by applying the hypothesis that the parties would have concluded a separate contract of carriage only in respect of the respective leg of the journey. Consequently, in the case of a multimodal contract of carriage with an national road leg with a place of taking over the goods or a place designated for delivery in a Contracting State, the CMR would apply to this particular road leg. In that case, the application of the CMR is construed via a provision of Dutch law (if Dutch law would apply to the multimodal contract of carriage). The Bundesgerichtshof, however, dealt with the question of whether or not the CMR would apply directly to a multimodal contract of carriage without the heip of the applicable national law. 1 will therefore focus on Dutch jurisprudence dealing with cases that are similar to the case of the Bundesgerichtshof. inter Dutch Jurispruclence Regarding the Direct Applicability of the CMR The leading Dutch decision was rendered by the of Rotterdam on 28 October In this case, a tainer was carried by sea on the M/V Resolution Bay from New Zealand to Rotterdam. The container was then carried via road from Rotterdam to Antwerp, Bel gium. Rotterdam was mentioned in the CT document issued by the carrier as being the Port of Discharge. Antwerp was mentioned as Place of Delivery. How ever nothing specific was mentioned regarding the transport between Rotterdam and Antwerp. Moreover, the means of transport to be used to carry the goods to Antwerp were not determined. After discharge of the cargo in Antwerp, damage to the cargo was detected. Cargo interests started proceedings against the carrier in Rotterdam. The carrier disputed the competence of the Court of Rotterdam and argued that the CT document contained a jurisdiction clause in favour of the High Court of London. Cargo interests argued the application of article 31 CMR and consequently the non-exclusivity of the jurisdiction clause. Court con Before judging its competence, the Court of Rotterdam elaborated whether or not the CMR was applicable to the present multimodal transport. The Court took a look at Article 1 sec. 1 CMR. The Court ruled that the CMR is directly applicable and that the CMR determines its own irrespective of the applicable national law. The Court, bowever, realised that one could argue that the conditions mentioned in Article 1 sec. 1 CMR were not fulfilled due to the fact that this article seems to demand that the place of doser applicabilit, 24. Court of Rotterdam 28 October 1999, S&S 2000, 35 (Resolu tion Bay), 158 European Journal of Comniercial Contract Law

8 that after Will the CMR Apply? taking over of the goods (and the place designated for deliverv) has to be specified in the contract (of ear riage by road). As mentioned before, nothing specific was stated in the CT document regarding the transport from Rotterdam to Antwerp. The Court tackled this (possible) argument by stating that the contract, as specifled in the CT document, did grant the carrier the freedom to determine how he would transport the goods from Rotterdam to Antwerp. Therefore, the earner was free to determine the place of taking over the goods mentioned in Article 1 sec. 1 CMR by himseif. Consequently, the conditions mentioned in Articie 1 sec. 1 CvIR were fulfilled and therefore the CMR was directly applicable to the present road transport, being part of a multimodal transport. The Court of Rotterdam conflrmed this decision concerning the direct applicability of the CMR in a more recent case dated 11 April In this case, goods were carried by the M/V Godafoss from Iceland to Rotterdam. In Rotterdam, the goods were loaded on a truck which was destined to carry the goods to Italy. The goods were stolen during the road leg. As in the Resolution Bay case, nothing was stated in the issued CT document regarding the further transport from the Port of Discharge (Rotterdam) to Italy. The carrier contested the competence of the Court and referred to a jurisdiction clause in favour of the Icelandic courts. Before ruling on its competence, the Court of Rotter dam flrst determined whether or not the CMR would apply. The Court repeated its ruling of Resolution Bay and again came to the conciusion that the CMR applied directi to the road leg of the multimodal contract of carriage. Contrary to the aforementioned decisions of the Court of Rotterdam, the Court of Haarlem ruled on 9 July 2008 that the CMR is not directly applicable to a road leg of a multimodal transport, without elaborating in detail why this would not be the case. 26 Jurisdzction Based on Articie 31 sec. 1 b) CMR? Before taking a doser look at the jurisdiction issue, it is worth noting that there is a discussion regarding the question of whether the whole CMR or only the material provisions of the CMR (excluding Article 31 CMR) would apply to a road leg which forms part of a multimodal transport. In its unpublished judgement dated 13 January 2000 (Amev/Sealand) the Court of Rotterdam clearly stated that the whole CMR (inciud ing Article 31 CMR) would apply. However, the contrarv can be found in the literature. 27 In the Resolution Bay and Godafoss cases, the Court of Rotterdam came to the conciusion - having determined that the CMR would apply directly to the road leg of the multimodal transport - Rotterdam, the place were the goods were discharged from the sea vessel, was qualifled as the place where the goods were taken over by the carrier in the meaning of Article 31 sec. 1 b) CMR and therefore the Court was competent. In this respect it is important to note that other Dutch courts have come to a different conclusion. The Court of Appeal of Den Bosch has ruled that in the case of a multimodal contract of carriage in respect of the multimodal carriage from Taiwan via the Netherlands to Germany, the Netherlands cannot be regarded the place where the goods were taken over by the carrier in the meaning of Articie 31 sec. 1 b) CMR. The Court of Appeal did not address the question of whether or not the CMR was directly applicable. Nevertheless, one should note that it is uncertain whether or not the Dutch courts will find themselves competent according to Article 31 sec 1 b) CMR in case of a multimodal transport via a Dutch (air)port. 25 Final Remarks According to the limited Dutch jurisprudence con cerning the applicability of the CMR to multimodal transport, the rnain view seems to be that the CMR applies directly to multimodal contracts of carriage (without the help of any provision of national law, such as Article 8:41 DCC). Therefore, the Dutch view differs significantly from the view of the Bundes gerichtshof. However, one should keep in mmd that the Dutch Supreme Court, the Hoge Raad, has not yet explicitly dealt with this issue. Spain Multimodal transport had lacked any specific regula tion in Spain until Law 15/2009 on the Contract of Carriage of Goods by Land entered into force on 12 Februarv The position to that date, in the absence of specific legislation on multimodal transport, had been open to varying interpretations and the Supreme Court and a number of Courts of Appeal (particularly those of Madrid and Barcelona) had taken separate paths. The Supreme Court, preferring the terminology combined transport, followed the network liability system such that the applicable regime would be that which corresponded to the specific phase where the damage or loss occurred. Where the place of damage or loss was not known, then the Supreme Court resorted to applying general law principles of joint and several liability for the carriers, though we have not found any specific discussion in these Supreme Court cases to explain which modal legislation in fact applied to determine liability. 25. Court of Rotterdam 11 April 2307, S&S 2009, 55 (Godafoss). 26. Court of Haarlem 9 July 2008, S&S 2039, Eg. J. Spiegel and G.J.H. de Vos, Multimodaal vervoer en de toepasselijkbeid van de CMR, in M.L. Hendrikse and Ph.H.J.G. van Huizen (eds.), CMR: internationaal vervoer van goederen over dc weg (Zutphen: Paris Legal Publishers, 2005) Court of Appeal Den Bosch, 2 November 2004, ttg/ Medion, S&S 2006, 117. European Journal of Commercial Contract Law

9 there is Will the CMR Apply? However, those regional Courts of Appeal (which cannot create precedent but in fact rule on the majority of the cases that are brought before the courts relating to multimodal transports) preferred to introduce a degree of autonomy to the multimodal transport by applying what is known as the uniform liability systern where a single regime is elected to govern the entire contract, whether this be the regime most favourable to the shipper, or that of the predominant carriage, or by applving the general principals of the Spanish Civil and Commercial Codes. The emphasis of these Courts of Appeal has been on treating the multimodal contract as a whole and not onlv as good as its individual parts. However, with the new Law 15/2009, this dichotomy between courts will now come to an end. This new law applies where the proper law of the multimodal carriage is Spanish law. Law 15/2009 specifically recognises the concept of rnultimodal transport and ap plies where, in a contract entered into by a shipper and carrier, at least one of the methods of transport agreed is by land (whether by road or rail). Thus the new law adopts the approach of our Supreme Court and the network liability systern to the extent that it dissects the contract of carriage and applies to each different mode of transport its own applicable international or domestic regime. Law 15/2009 states at Article 68: 29 The contract of multimodal transport will be governed by the rules of each mode of transport, as if the carrier and the shipper bad entered into a distinct contract for each phase of the journey. 30 If it is not known where the damage or loss occurred, this new law will determine liability. Article 68 continues:...when it cannot be determined the phase of the journey where the damage occurred the liability of the carrier will be determined by this law. Thus, according to this new law, only if it can be proven that the damage or loss occurred during an international road transit will the CMR be relevant and apply. We know from Suprerne Court case law that the CMR is given autonomous interpretation and is considered to apply to multimodal transport. 31 However, if on the analysis of the facts it is not known where the darnage or loss occurred, then Law 15/2009 introduces an important clarification to the network liability systern introduced by the Supreme Court and will apply its own regime, which, on the most relevant issues of liability, in fact mirrors the provisions of the CMR. There are severa special provisions made for cases where a multimodal transport is agreed but only one mode of transport is used, or the form of transport differs from that agreed, then the judges will determine the carrier s Iiabilitv based on the regirne that most 1 favours the shipper. In these limited cases, the law does not assist the judges in determining how to decide what is the most favourable law for the shipper this, for example, a matter of whether or not a package limita tion can be broken; or does it go further to protect a claim from time bar where one regime is less generous than another? It will be interesting to see how the Spanish courts interpret these provisions. In Spain, the importance of Law 15/2009 should not be underestirnated and will resolve, at long last, the fundamental rift between the Supreme Court and those regional Courts of Appeal, and with that offer an important degree of predictability in the interpretation of multimodal transports and the application of the CMR. Sweden Autonornous Interpretation o[the CMR in Sweden The German Supreme Court had to decide on the application of the CMR to a part of a multimodal transport. The German Supreme Court held that German law was not applicable and that an autono mous interpretation of the CMR was not possible. The English Court of Appeal decided in a similar case and came to a different conclusion. That Court held that the CMR would apply to a particular part of a multimodal transport The Swedish Position The question of autonomous application of the CMR and the question of whether the CMR can apply to a particular part of multimodal transport have not been raised before a Swedish court. Neither have these ques tions been specifically discussed in academic literature. However, some statements on this subject can be found in the preparatory works for the relevant Swedish Acts on road transport. It shall be noted that the prepara tory works for statutes in Sweden is considered to be an important source for the interpretation of Swedish law. Transport Law in Sweden Sweden does not have a general act on transport law. The rules applicable to different means of transport are laid down in separate acts. Multimodal transport is 29. In this respect it should be noted that even though the contract of carriage is subject to foreign law, the Spanish courts will always appiv Spanish domestic law to resolve anv controversy where a party irivoking a foreign law has not duly proved the application and content of said law. 30. Free translation is no of6cial translation into English. 31. Judgment of the Supreme Court No. 705/ July Bundesgerichtshof, l7july 2008, Case No. 1 ZR 181/ Quantum Caporation luc. & Others v. Plane Tro cking Limited & Another, 27 March 2002, Case No. A3/2000/3437. ( c 160 European Journal of Conirnerczal Contract Law

10 Will the CMR Apply? not regulated by law. Rules on multimodal transport can instead be found in the general freight forwarders conditions NSAB The application of these condi tions requires that the conditions are agreed between the parties to a transport contract. Preparatory Works In the preparatory works regarding the implementa tion of the CMR in Swedish law, the following is conciuded. CMR shall apply when either the desig nated place of taking over the goods or the designated place of delivery is situated in a Contracting State (Article 1.1 CMR). The law of a non-member State shall not be applicable, if it contradicts the application of the CMR. 34 The scope of the CMR is also discussed in the prepara tory works of the Act on National Road Transport (Lag om inrikes vägtransport), as most of the provi sions of the CMR have been incorporated in that Act. As regards the question of whether the CMR applies to a multimodal transport, it is stated as follows. If the international road transport constitutes a dominant part of the multimodal transport, the CMR shall apply. On the other hand, if the road transport only consti tutes a subordinate part of the multimodal transport, the mandatory rules of the CMR may not apply. 35 Conciusion A Swedish position cannot be derived from the limited material on the subject. However, the statements in the relevant preparatory works can be summarised as follows. The CMR applies autonomously irrespective the domestic law underlying the contract of transport. As regards the application of the CMR to a multimodal transport, the application of the CMR shall depend on the dominance of the road transport in relation to the other parts of the multimodal transport, provided of course that the other requirements for application according to Article 1 CMR are fulfilled. Switzerland Applicability of the CMR to Multimodal Transports The Swiss Position In a recent decision, the Swiss Supreme Court gave its opinion on whether or not the CMR should apply to multimodal transports (see decision of 19 February 2009, 4A_218/2008; in the matter ofa SA v. BAG 36 ). Facts of the Case A SA, a Swiss company having its seat in Lugano, was assigned by a Lebanese company to buy various parts for an industrial plant and to send them to warehouse X. A SA concluded a contract of carriage with B AG, a Swiss company. The contract of carriage stated that the goods will be shipped by ship, truck and train via Russia and Iran to warehouse X. When the goods arrived at the warehouse, the consignee refused acceptance. B AG stored the goods in warehouse X for the account of the consignee and incurred costs for the storage. A AG refused to hear the costs for the storage of the goods. This being the case, B AG filed an action against A AG for payment of the storage costs in the amount of CHF 573, The Court of First Instance awarded the damages in a slightly reduced amount and based its decision on Swiss substantive law. The Court of Second Instance also awarded the damages in a similar amount but held that the transport was governed by the CMR, relying on Article 2 CMR. It awarded damages by applying Articles 15 and 16 CMR supplemented by Swiss substantive law. The Reasoning The Swiss Supreme Court rejected the arguments of the Court of Second Instance. It held that according to Article 2 CMR, the Convention only applies to piggyback transports but not to classic multimodal transports. It stated that the United Nations Conven tion on the International Multimodal Transports of Goods had not yet entered into force. It concluded that therefore no international convention applied and the applicable law was determined by international private law. Thus, the Swiss Supreme Court took the same approach as the German Bundesgerichtshof in its decision of l7july 2008 but did not rely on the German judgment. In the case at hand, it remained open as to whether it was a piggyback transport or a classic multimodal transport, as the Courts of First and Second Instance did not establish the facts in this respect. The Swiss Supreme Court concluded that in the case at hand the question could remain open, as the result is the same whether the CMR applies or not. The Swiss Supreme Court reasoned if it was a multi modal transport, the applicable law is assessed by Swiss private international law. According to sections 116 and 117 of the Federal Act on Private International Law, 35 the contract is governed by the law of the party that provides the characteristic service, which is the carrier. As B AG, the carrier, is a Swiss company, the contract was governed by Swiss substantive law. Switzerland has not incorporated the CMR into its domestic law nor has a rule on multimodal transports, like Germany has in its section 452 HGB. Therefore, the general rules on the contract of carriage of the Swiss Code of Obligations applied. The Swiss Supreme Court held that according to these rules, the carrier is entitled to recover his costs for the storage of the 34. SOU (Statens offentliga utredningar) 1966:36, p Proposition 1974:33, p Schweizerisches Bundesgericht, 4A_218/2008, available at <www.bger.ch>, in Italian. 37. Bundesgericlitshof l7july 2008,1 ZR 181/ SR 291; available at <www.admin.ch>. EuropeanJozirnalofCommerczal Contract Law

11 ( 162 European Jon rna! of Commercial Contrace Law the CMR Apply? Will goods as the consignee refused acceptance of the goods at the time. Thus, the Swiss Supreme Court confirmed the awarded damages in a similar amount. It further mentioned if it were a piggyback transport and the CMR applied, it would lead to the same result. Comment This is an important decision by which the Swiss Supreme Court clearly stated that the CMR does not apply to multimodal transports. Unfortunately, the decision is not published in the official collection of the Swiss Supreme Court and has not had a big response. It is in the Italian language which makes it more difficult for lower courts in the German and French speaking part of Switzerland to follow.

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