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  • Series: Research Handbooks in Private and Commercial Law series x
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Edited by Jason Chuah

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Cécile Legros

International transport is mainly governed by international uniform conventions. The goal of these conventions is to ensure uniform and consistent application of the rules governing specific issues of transport. Such uniformity, however, may only be achieved if the international convention is implemented and construed uniformly by the courts of each contracting State party. In practice, this is not always the case and interpretation discrepancies are frequent. There are various causes for divergent interpretations, the major one being the absence of an international court having jurisdiction on international trade law issues. The purpose of this chapter is to explore news ways of improving uniform application of international transport law conventions. Notably, I propose to entrust committees with uniform interpretation, either in relation with the statutes of international umbrella transport organizations when they exist, or informal academic committees for the conventions which do not have a parent organization.

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Wouter Verheyen

Compared to other services contracts, transport law has a greater focus on the means of transportation used or agreed upon for the performance of the contract, despite the fact that the determination of the means of transport is in essence only an accessorium of the contract of carriage. Consequently, the majority of rules applicable to a contract of carriage are mode specific, which raises legal questions in the case of combination or integration of transport modes. Since the rise of containerized transport in the 1960s, we have seen a great number of decisions and publications on multimodal transport law. In recent years, with the rise of freight integration or fleximodal transport, a new field of legal doctrine and case law linked to the mode of transport has emerged. Both case law and doctrine often lack a uniform approach to multimodal or integration questions. Uniformity could benefit from a uniform definition of the legal problem, for example “what is a multimodal contract, what is a fleximodal contract and what is the mode of transport from a legal point of view?” Despite the attention in case law and doctrine on the mode of transport and its impact on the (uncertainty about the) applicability of the different transport conventions, there is little focus on the definition and demarcation of the mode of transport at a fundamental level. While doctrine in general applies logistic definitions of the mode of transportation, the aim of this chapter is to propose a legal definition of the mode of transport allowing the redefinition of both aforementioned legal problems (multimodal and fleximodal transport) taking into account this definition. This could contribute to a uniform approach to these problems in national case law and doctrine, but also, even if such uniform approach cannot be achieved, to a better understanding and the development of a “legal reflex” amongst contracting parties. This would allow parties to better assess for example whether there is a risk of falling outside the scope of mandatory law (in case of German or Dutch courts being competent in CMR cases) and thus allow them to anticipate this in their contracts.

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Michiel Spanjaart

This contribution introduces an idea, as the Carriage of Goods Convention does not exist (yet). The objective of the convention is threefold: the harmonization, simplification and modernization of the rules on international carriage of goods. Whereas the existing conventions basically regulate unimodal contracts for the carriage of goods either by rail, sea, air, road or inland waterways, the starting point of the Carriage of Goods Convention is the contract of carriage in general. As the (number of) means of transportation is irrelevant, the convention applies to both unimodal and multimodal contracts of carriage.

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Simone Lamont-Black

Our modern world relies on trade and the prosperity it brings. Therefore well-functioning freight forwarding services are of vital importance to all members of society. Transparency and predictability of legal frameworks are generally considered to be ideals, but are they achievable for the business of freight forwarding? Are they even on the horizon? Moreover, how might they become reality? This chapter shows the need for a solution by firstly illustrating the legal pitfalls and lacunae encountered when attempting to determine the legal rules applicable to a freight forwarding transaction; and particularly so when transport, in line with environmental policies, is conducted by more than one mode. Secondly, it reviews the reports considering reform, the previous harmonisation attempts and reform proposals in order to identify the scope for possible avenues to improve the state of play. It is argued that a better way forward is a ‘light touch’ Model Law, removing key obstacles and a reorientation away from the paradigm of top down government-led international regulation towards empowering the sector to contribute industry negotiated solutions for implementation via a Model Law. Such a framework would result in an increase of transparency and predictability.

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Aldo Chircop

This chapter proposes an understanding and theoretical framework for the research and study of international maritime law. This body of law has ancient origins and aims at universality and uniformity in regulation because shipping is global and transnational. The framework is set out in two interacting layers. First, there is an explanation of the nature of maritime regulation, definition, rationale, functions, instruments and regulatory bodies. Second, the principles of maritime regulation, regulatory process, rule-making strategies and regulatory compliance are set out and analysed. The focus is on the International Maritime Organization as the most important regulator and its complex regulatory regimes. The chapter provides insights into the structure and process of maritime regulation and offers an assessment of factors that facilitate or constrain universality and uniformity in this regulatory field.

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Simon Baughen

The maritime waters of the European Union (EU) have sustained some devastating oil pollution incidents, such as the spills from the Erika in 1999 and the Prestige in 2002. The Erika spill gave its name to an extensive package of regulatory measures by the EU in the maritime field (the Erika packages I–III). However, compensation for oil pollution falls under three International Maritime Organization (IMO) conventions: the International Convention of 27 November 1992 on Civil Liability for Oil Pollution Damage (1992 CLC); the International Convention of 27 November 1992 on the Establishment of an International Fund for Compensation for Oil Pollution Damage (1992 Fund); and the 2003 Supplementary Fund. These provide a uniform compensation regime for oil pollution which is intended to be the exclusive means of recourse for loss or damage from an oil pollution incident. The 19 years since the Erika spill have seen parallel avenues of compensation for oil pollution opening through EU legislation and through decisions of national courts in criminal cases. This chapter considers these developments and asks whether they threaten the integrity of the compensation regime under the IMO conventions.

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Ellen Eftestøl-Wilhelmsson and Suvi Sankari

The purpose of this chapter is to examine how the maritime transport industry can be nudged in the direction of more environmental carriage, resulting in fewer greenhouse gas (GHG) emissions. We argue that in addition to new technical solutions, clean/green-tech, emissions can also be mitigated through an overall shift in the behaviour of the transport industry. This chapter examines the regulatory means already in place regarding GHG emissions from maritime carriage of goods and questions the idea that there is a lack of information on emissions produced by the transport industry. Relying on behavioural insight, this existing emissions information should, however, be utilized in several different ways in order for it to act as a nudge towards choosing more environmentally friendly alternatives for carriage of cargo: to directly influence the choices of shippers or freight forwarders as well as indirectly influence them through better informed end consumers of products carried. These nudges, if successful, would in turn affect the behaviour of the maritime transport industry. Hence, focusing on the carriage of cargo, we explore some ways in which the information on GHG emissions could be integrated into the regulatory framework concerning the maritime transport industry and product labelling. The core idea of this chapter is hence to outline and analyse the potential of combining the information that is already collected on account of environmental regulation with behavioural insight to mitigate emissions of maritime carriage of cargo.

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Liang Zhao

Like general contractual terms, terms of maritime contracts can be classified into conditions, warranties or intermediate terms. Since the decision of the Court of Appeal in The Hongkong Fir, more and more contractual terms in maritime contracts are recognised as intermediate terms. The category of intermediate terms provides flexibility of remedies for breach of contract, but it also raises uncertainty in remedies for breach of intermediate terms, in particular the right to terminate contract. Maritime parties may expressly agree a termination right when certain obligations are breached in contract. However, it would appear that parties are not free to agree damages for breach of intermediate terms. Only contractual damage identical to the damage under common law is valid, otherwise it is void because of the penalty nature of it. This restriction on freedom of contract deviates from the original intention of parties to maritime contract.

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Johanna Hjalmarsson

The approach of English contract law is generally to decline to define the contract for the parties: the parties are free to set out the terms of their contract as they wish, and the law is slow to modify their bargain by implying terms or obligations into it. Nevertheless, the law has developed to recognise two well-defined categories of charterparty to a degree where it is now difficult or even impossible to depart from that framework. There is recognition in literature that the time or voyage charterparty paradigm is not immutable; but courts, when offered the opportunity to recognise the sui generis character of a particular charterparty, have consistently declined to do so, reverting instead to the safe paradigm. This chapter considers the evidence for and against the existence of hybrid charterparties in practice, and concludes that the categories developed through practice have become so firm as to be immutable.