Edited by Jason Chuah
Chapter 2: What is a unimodal carriage contract? The mode of transport as legal concept
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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