UNITED NATIONS

UNCITRAL YearbookVolume XXXIV B: 2003

UNCITRAL UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW

UNITED NATIONS COMMISSION ONINTERNATIONAL TRADE LAW

UNCITRAL YearbookVolume XXXIV B: 2003

UNITED NATIONSNew York, 2006

NOTE

Symbols of United Nations documents are composed of capital letters combined with figures.Mention of such a symbol indicates a reference to a United Nations document.

The footnote numbering follows that used in the original documents on which this Yearbookis based. Any footnotes added subsequently are indicated by lower-case letters.

Changes of and additions to wording that appeared in earlier drafts of conventions, modellaws and other legal texts are in italics, except in the case of headings to articles, which are initalics as a matter of style.

Volume XXXIV B contains chapters IV-X of part two and the part three annexes. Theintroduction, part one and chapters I-III of part two are in volume XXXIV A.

A/CN.9/SER.A/2003(Volume XXXIV B)

UNITED NATIONS PUBLICATIONSales No. E.06.V.14ISBN 92-1-133753-4

ISSN 0251-4265

iii

CONTENTS

VOLUME XXXIV A

Page

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part One. Report of the Commission on its annual sessionand comments and action thereon

THE THIRTY-SIXTH SESSION (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

A. Report of the United Nations Commission on International Trade Law on the workof its thirty-sixth session (Vienna, 30 June – 11 July 2003) (A/58/17) . . . . . . . . . . . .

B. United Nations Conference on Trade and Development (UNCTAD): extract from thereport of the Trade and Development Board (fiftieth session) (TD/B/50/14 (Vol. I ))

C. General Assembly: report of the United Nations Commission on International TradeLaw on the work of its thirty-sixth session: report of the Sixth Committee (A/58/513)

D. General Assembly resolutions 58/75, and 58/76, of 9 December, 2003 . . . . . . . . . . . .

Part Two. Studies and reports on specific subjects

I. PRIVATELY FINANCED INFRASTRUCTURE PROJECTS . . . . . . . . . . . . . . . . . . . . . . . . .

A. Report of the Working Group on Privately Financed Infrastructure Projects on thework of its fifth session (Vienna, 9-13 September 2002) (A/CN.9/521) . . . . . . . . . . .

B. Working paper submitted to the Working Group on Privately Financed InfrastructureProjects at its fifth session: Draft addendum to the UNCITRAL Legislative Guide onPrivately Financed Infrastructure Projects (A/CN.9/WG.I/WP.29 and Add.1 and Add.2)

C. Draft addendum to the UNCITRAL Legislative Guide on Privately FinancedInfrastructure Projects (A/CN.9/522 and Add.1 and Add.2) . . . . . . . . . . . . . . . . . . . . .

D. Draft addendum to the UNCITRAL Legislative Guide on Privately FinancedInfrastructure Projects(A/CN.9/533 and Add.1-7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

II. INSOLVENCY LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

A. Report of the Working Group on Insolvency Law on the work of its twenty-seventhsession (Vienna, 9-13 December 2002) (A/CN.9/529) . . . . . . . . . . . . . . . . . . . . . . . . . .

B. Working paper submitted to the Working Group on Insolvency Law at itstwenty-seventh session: Draft legislative guide on Insolvency Law(A/CN.9/WG.V/WP.63 and Add.3-15) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

C. Working paper submitted to the Working Group on Insolvency Law at itstwenty-seventh session: Draft legislative guide on Insolvency Law(A/CN.9/WG.V/WP.64) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

D. Report of the Working Group on Insolvency Law on the work of its twenty-eighthsession (New York, 24-28 February 2003) (A/CN.9/530) . . . . . . . . . . . . . . . . . . . . . . .

E. Working paper submitted to the Working Group on Insolvency Law at itstwenty-eighth session: Draft legislative guide on insolvency law(A/CN.9/WG.V/WP.63/Add.1-2 and Add.16-17) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F. Report of Working Group V (Insolvency Law) and Working Group VI (SecurityInterests) on the work of their first joint session (Vienna, 16-17 December 2002)(A/CN.9/535) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

G. Draft Legislative guide on insolvency law: List of contents (A/CN.9/534) . . . . . . . . .

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III. INTERNATIONAL COMMERCIAL ARBITRATION AND CONCILIATION . . . . . . . . . .

A. Report of the Working Group on Arbitration on the work of its thirty-seventh session(Vienna, 7-11 October 2002) (A/CN.9/523) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

B. Working paper submitted to the Working Group on Arbitration at its thirty-seventhsession: Arbitration: interim measures of protection: Proposal by the United States(A/CN.9/WG.II/WP.121) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

C. Report of the Working Group on Arbitration on the work of its thirty-eighth session(New York, 12-16 May 2003) (A/CN.9/524) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

D. Working paper submitted to the Working Group on Arbitration at its thirty-eighthsession: Settlement of Commercial Disputes: Interim measures of protection(A/CN.9/WG.II/WP.123) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

VOLUME XXXIV B

IV. TRANSPORT LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369

A. Report of the Working Group on Transport Law on the work of its tenth session(Vienna, 16-20 September 2002) (A/CN.9/525) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369

B. Working paper submitted to the Working Group on Transport Law at its tenthsession: Preliminary draft instrument on the carriage of goods [by sea]: Proposal byCanada (A/CN.9/WG.III/WP.23) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 389

C. Report of the Working Group on Transport Law on the work of its eleventh session(New York, 24 March - 4 April 2003) (A/CN.9/526) . . . . . . . . . . . . . . . . . . . . . . . . . . 391

D. Working paper submitted to the Working Group on Transport Law at its eleventhsession: Preparation of a draft instrument on the carriage of goods [by sea]:Proposal by Italy (A/CN.9/WG.III/WP.25) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 431

E. Working paper submitted to the Working Group on Transport Law at its eleventhsession: Preparation of a draft instrument on the carriage of goods [by sea]: Proposalby Sweden (A/CN.9/WG.III/WP.26) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 433

F. Working paper submitted to the Working Group on Transport Law at its eleventhsession: The UNCITRAL Draft Instrument on the Carriage of Goods by Sea andthe other transport Conventions: Comparative tables (A/CN.9/WG.III/WP.27) . . . . . . 435

G. Working paper submitted to the Working Group on Transport Law at its eleventhsession: Preparation of a draft instrument on the carriage of goods [by sea]:Compilation of replies to a questionnaire on door-to-door transport and additionalcomments by States and international organizations on the scope of the draftinstrument (A/CN.9/WG.III/WP.28) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 535

H. Working paper submitted to the Working Group on Transport Law at its eleventhsession: Preparation of a draft instrument on the carriage of goods [by sea]: Generalremarks on the sphere of application of the draft instrument (A/CN.9/WG.III/WP.29) 557

I. Working paper submitted to the Working Group on Transport Law at its eleventhsession: Preparation of a draft instrument on the carriage of goods [by sea]:Information document provided by the United Nations Conference on Trade andDevelopment (UNCTAD) (A/CN.9/WG.III/WP.30) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 579

V. ELECTRONIC COMMERCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 585

A. Report of the Working Group on Electronic Commerce on the work of its fortiethsession (Vienna, 14-18 October 2002) (A/CN.9/527) . . . . . . . . . . . . . . . . . . . . . . . . . . 585

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B. Working paper submitted to the Working Group on Electronic Commerce at itsfortieth session: Legal barriers to the development of electronic commerce ininternational instruments relating to international trade: Compilation of comments byGovernments and international organizations (A/CN.9/WG.IV/WP.98 and Add.1-4) . . 601

C. Report of the Working Group on Electronic Commerce on the work of its forty-firstsession (New York, 5-9 May 2003) (A/CN.9/528) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613

D. Working paper submitted to the Working Group on Electronic Commerce at itsforty-first session: Legal barriers to the development of electronic commerce ininternational instruments relating to international trade: Compilation of comments byGovernments and international organizations (A/CN.9/WG.IV/WP.98/Add.5-6) . . . . . 632

E. Working paper submitted to the Working Group on Electronic Commerce at itsforty-first session: Legal aspects of electronic commerce: Electronic contracting:provisions for a draft convention: (A/CN.9/WG.IV/WP.100) . . . . . . . . . . . . . . . . . . . . . 639

F. Working paper submitted to the Working Group on Electronic Commerce at itsforty-first session: Legal aspects of electronic commerce: Electronic contracting:provisions for a draft convention: Comments by the International Chamber ofCommerce (A/CN.9/WG.IV/WP.101) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 647

VI. SECURITY INTERESTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 653

A. Report of the Working Group on Security Interests on the work of its second session(Vienna, 17-20 December 2003) (A/CN.9/531) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 653

B. Working paper submitted to the Working Group on Security Interests at its secondsession: Draft legislative guide on secured transactions (A/CN.9/WG.VI/WP.6 andAdd.1-5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 663

C. Report of the Working Group on Security Interests on the work of its third session(New York, 3-7 March 2003) (A/CN.9/532) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 692

D. Report of Working Group V (Insolvency Law) and Working Group VI (SecurityInterests) on the work of their first joint session (Vienna, 16-17 December 2002)(A/CN.9/535) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 705

VII. POSSIBLE FUTURE WORK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 707

A. Current activities of international organizations in the area of public procurement(A/CN.9/539 and Add.1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 707

B. Possible future work relating to commercial fraud (A/CN.9/540) . . . . . . . . . . . . . . . . . 718

VIII. CASE LAW ON UNCITRAL TEXTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 727

IX. TRAINING AND ASSISTANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 729

Training and technical assistance (A/CN.9/536) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 729

X. STATUS OF UNCITRAL TEXTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 735

Status of Conventions and Model Laws (A/CN.9/537) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 735

Part Three. Annexes

I. UNCITRAL MODEL LEGISLATIVE PROVISIONS ON PRIVATELY FINANCEDINFRASTRUCTURE PROJECTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 739

II. SUMMARY RECORDS OF THE UNITED NATIONS COMMISSION ONINTERNATIONAL TRADE LAW FOR MEETINGS DEVOTED TO THE FINALIZATIONAND ADOPTION OF THE DRAFT UNCITRAL MODEL LEGISLATIVE PROVISIONSON PRIVATELY FINANCED INFRASTRUCTURE PROJECTS (A/CN.9/SR.758-774) . . 753

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III. BIBLIOGRAPHY OF RECENT WRITINGS RELATED TO THE WORK OF UNCITRAL(A/CN.9/566) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 809

IV. CHECK-LIST OF DOCUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 821

V. LIST OF DOCUMENTS REPRODUCED IN THE PREVIOUS VOLUMES OF THEYEARBOOK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 829

I. INTRODUCTION

1. At its twenty-ninth session, in 1996,1 the Commissionconsidered a proposal to include in its work programme areview of current practices and laws in the area of the inter-national carriage of goods by sea, with a view to estab-lishing the need for uniform rules where no such rulesexisted and with a view to achieving greater uniformity oflaws.2

2. At that session, the Commission was informed thatexisting national laws and international conventions had leftsignificant gaps regarding various issues. These gaps con-stituted an obstacle to the free flow of goods and increasedthe cost of transactions. The growing use of electronicmeans of communication in the carriage of goods furtheraggravated the consequences of those fragmentary and dis-parate laws and also created the need for uniform provi-sions addressing the issues particular to the use of newtechnologies.3

369

IV. TRANSPORT LAW

A. Report of Working Group on Transport Law on the work of its tenth session (Vienna, 16-20 September 2002)

(A/CN.9/525) [Original: English]

CONTENTS

Paragraphs

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-23

II. Deliberations and decisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24-124

A. General discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25-28

B. Consideration of draft articles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29-124

1. Draft article 6 (Liability of the carrier) . . . . . . . . . . . . . . . . . . . . . . . . . . 29-105(a) Subparagraph 6.1.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30-34

(b) Subparagraph 6.1.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35-37

(c) Subparagraph 6.1.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38-45

(d) Subparagraph 6.1.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46-56

(e) Paragraph 6.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57-62

(f) Paragraph 6.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63-64

(g) Paragraph 6.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65-70

(h) Paragraph 6.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-75

(i) Paragraph 6.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76-80

(j) Paragraph 6.7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81-85

(k) Paragraph 6.8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86-92

(l) Paragraph 6.9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93-100

(m) Paragraph 6.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101-105

2. Draft article 9 (Freight) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106-124

(a) Paragraph 9.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108-114

(b) Paragraph 9.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115-124

Annexes

I. Comments from the representative of the International Chamber of Shipping and the Baltic and International Maritime Council on the scope of the draft instrument

II. Comments from the representative of the International Group of Protection & Indemnity Clubs

1Official Records of the General Assembly, Fifty-first Session,Supplement No. 17 (A/51/17).

2Ibid., para. 210. 3Ibid., para. 211.

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370 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIV

3. At that session, the Commission also decided that thesecretariat should gather information, ideas and opinions asto the problems that arose in practice and possible solu-tions to those problems, so as to be able to present at alater stage a report to the Commission. It was agreed thatsuch information-gathering should be broadly based andshould include, in addition to Governments, the interna-tional organizations representing the commercial sectorsinvolved in the carriage of goods by sea, such as theInternational Maritime Committee (CMI), the InternationalChamber of Commerce (ICC), the International Union ofMarine Insurance (IUMI), the International Federation ofFreight Forwarders Associations (FIATA), the InternationalChamber of Shipping (ICS) and the InternationalAssociation of Ports and Harbors (IAPH).4

4. At its thirty-first session, in 1998, the Commissionheard a statement on behalf of CMI to the effect that itwelcomed the invitation to cooperate with the secretariatin soliciting views of the sectors involved in the interna-tional carriage of goods and in preparing an analysis ofthat information.

5. At the thirty-second session of the Commission, in1999, it was reported on behalf of CMI that a CMI work-ing group had been instructed to prepare a study on a broadrange of issues in international transport law with the aimof identifying the areas where unification or harmonizationwas needed by the industries involved.5

6. At that session, it was also reported that the CMI work-ing group had sent a questionnaire to all CMI memberorganizations covering a large number of legal systems. Theintention of CMI was, once the replies to the questionnairehad been received, to create an international subcommitteeto analyse the data and find a basis for further work towardsharmonizing the law in the area of international transportof goods. The Commission had been assured that CMIwould provide it with assistance in preparing a universallyacceptable harmonizing instrument.6

7. At its thirty-third session, in 2000, the Commission hadbefore it a report of the Secretary-General on possiblefuture work in transport law (A/CN.9/476), whichdescribed the progress of the work carried out by CMI incooperation with the secretariat. It also heard an oral reporton behalf of CMI. In cooperation with the secretariat, theCMI working group had launched an investigation basedon a questionnaire covering different legal systemsaddressed to the CMI member organizations. It was alsonoted that, at the same time, a number of round-table meet-ings had been held in order to discuss features of the futurework with international organizations representing variousindustries. Those meetings showed the continued supportfor and interest of the industry in the project.

8. In conjunction with the thirty-third session of theCommission in 2000, a transport law colloquium, organ-ized jointly by the secretariat and CMI, was held in New

York on 6 July 2000. The purpose of the colloquium wasto gather ideas and expert opinions on problems that arosein the international carriage of goods, in particular the car-riage of goods by sea, identifying issues in transport lawon which the Commission might wish to consider under-taking future work and, to the extent possible, suggestingpossible solutions.

9. On the occasion of that colloquium, a majority ofspeakers acknowledged that existing national laws andinternational conventions left significant gaps regardingissues such as the functioning of a bill of lading and aseaway bill, the relationship of those transport documentsto the rights and obligations between the seller and thebuyer of the goods and the legal position of the entitiesthat provide financing to a party to a contract of carriage.There was general consensus that, with the changeswrought by the development of multimodalism and the useof electronic commerce, the transport law regime was inneed of reform to regulate all transport contracts, whetherapplying to one or more modes of transport and whetherthe contract was made electronically or in writing. Someissues raised for consideration in any reform processincluded formulating more exact definitions of the roles,responsibilities, duties and rights of all parties involved andclearer definitions of when delivery was assumed to occur;rules for dealing with cases where it was not clear at whichleg of the carriage cargo had been lost or damaged; iden-tifying the terms or liability regime that should apply aswell as the financial limits of liability; and the inclusionof provisions designed to prevent the fraudulent use of billsof lading.

10. At its thirty-fourth session, in 2001, the Commissionhad before it a report of the Secretary-General(A/CN.9/497) that had been prepared pursuant to therequest by the Commission.7

11. That report summarized the considerations and sug-gestions that had resulted so far from the discussions inthe CMI International Subcommittee. The details of possi-ble legislative solutions were not presented because theywere currently being worked on by the Subcommittee. Thepurpose of the report was to enable the Commission toassess the thrust and scope of possible solutions and decidehow it wished to proceed. The issues described in the reportthat would have to be dealt with in the future instrumentincluded the following: the scope of application of theinstrument, the period of responsibility of the carrier, theobligations of the carrier, the liability of the carrier, theobligations of the shipper, transport documents, freight,delivery to the consignee, right of control of parties inter-ested in the cargo during carriage, transfer of rights ingoods, the party that had the right to bring an action againstthe carrier and time bar for actions against the carrier.

12. The report suggested that consultations conducted bythe secretariat pursuant to the mandate it received from theCommission in 1996 indicated that work could usefullycommence towards an international instrument, possiblyhaving the nature of an international treaty, that would

4Ibid., para. 215.5Ibid., Fifty-fourth Session, Supplement No. 17 (A/54/17), para. 413.6Ibid., para. 415.

7Ibid., Fifty-fifth Session, Supplement No. 17 (A/56/17), paras. 319-345.

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Part Two. Studies and reports on specific subjects 371

modernize the law of carriage, take into account the latestdevelopments in technology, including electronic com-merce, and eliminate legal difficulties in the internationaltransport of goods by sea that were identified by theCommission. Considerations of possible legislative solu-tions by CMI were making good progress and it wasexpected that a preliminary text containing drafts of pos-sible solutions for a future legislative instrument, withalternatives and comments, would be prepared byDecember 2001.

13. After discussion, the Commission decided to estab-lish a working group (to be named “Working Group onTransport Law”) to consider the project. It was expectedthat the secretariat would prepare for the Working Groupa preliminary working document containing drafts of pos-sible solutions for a future legislative instrument, withalternatives and comments, which was under preparationby CMI.

14. As to the scope of the work, the Commission, aftersome discussion, decided that the working document to bepresented to the Working Group should include issues ofliability. The Commission also decided that the considera-tions in the Working Group should initially cover port-to-port transport operations; however, the Working Groupwould be free to study the desirability and feasibility ofdealing also with door-to-door transport operations, or cer-tain aspects of those operations, and, depending on theresults of those studies, recommend to the Commission anappropriate extension of the Working Group’s mandate. Itwas stated that solutions embraced in the United NationsConvention on the Liability of Transport Terminals inInternational Trade (Vienna, 1991) should also be carefullytaken into account. It was also agreed that the work wouldbe carried out in close cooperation with interested inter-governmental organizations involved in work on transportlaw (such as the United Nations Conference on Trade andDevelopment (UNCTAD), the Economic Commission forEurope (ECE) and other regional commissions of the UnitedNations, and the Organization of American States (OAS)),as well as international non-governmental organizations.

15. At its thirty-fifth session, held in June 2002 in NewYork, the Commission had before it the report of the ninthsession of the Working Group on Transport Law (15 to 26April 2002), at which the consideration of the project com-menced (A/CN.9/510). At that session, the Working Groupundertook a preliminary review of the provisions of the draftinstrument on transport law contained in the annex to thenote by the secretariat (A/CN.9/WG.III/WP.21). TheWorking Group had before it also the comments preparedby ECE and UNCTAD, which were reproduced in docu-ment A/CN.9/WG.III/WP.21/Add.1. Due to the absence ofsufficient time, the Working Group did not complete itsconsideration of the draft instrument, which was left forfinalization at its tenth session. The Commission noted thatthe secretariat had been requested to prepare revised provi-sions of the draft instrument based on the deliberations anddecisions of the Working Group (A/CN.9/510, para. 21).The Commission expressed appreciation for the work thathad already been accomplished by the Working Group.8

16. The Commission noted that the Working Group, con-scious of the mandate it had received from theCommission9 (and in particular of the fact that theCommission had decided that the considerations in theWorking Group should initially cover port-to-port transportoperations, but that the Working Group would be free toconsider the desirability and feasibility of dealing also withdoor-to-door transport operations, or certain aspects ofthose operations), had adopted the view that it would bedesirable to include within its discussions also door-to-dooroperations and to deal with those operations by develop-ing a regime that resolved any conflict between the draftinstrument and provisions governing land carriage in caseswhere sea carriage was complemented by one or more landcarriage segments (for considerations of the WorkingGroup on the issue of the scope of the draft instrument,see A/CN.9/510, paras. 26-32). It was also noted that theWorking Group considered that it would be useful for itto continue its discussions of the draft instrument under theprovisional working assumption that it would cover door-to-door transport operations. Consequently, the WorkingGroup had requested the Commission to approve thatapproach (A/CN.9/510, para. 32).

17. With respect to the scope of the draft instrument,strong support was expressed by a number of delegationsin favour of the working assumption that the scope of thedraft instrument should extend to door-to-door transportoperations. It was pointed out that harmonizing the legalregime governing door-to-door transport was a practicalnecessity, in view of the large and growing number of prac-tical situations where transport (in particular transport ofcontainerized goods) was operated under door-to-door con-tracts. While no objection was raised against such anextended scope of the draft instrument, it was generallyagreed that, for continuation of its deliberations, theWorking Group should seek participation from interna-tional organizations such as the International RoadTransport Union (IRU), the Intergovernmental Organ-ization for International Carriage by Rail (OTIF), and otherinternational organizations involved in land transportation.The Working Group was invited to consider the dangersof extending the rules governing maritime transport to landtransportation and to take into account, in developing thedraft instrument, the specific needs of land carriage. TheCommission also invited member and observer States toinclude land transport experts in the delegations that par-ticipated in the deliberations of the Working Group. TheCommission further invited Working Groups III (TransportLaw) and IV (Electronic Commerce) to coordinate theirwork in respect of dematerialized transport documentation.While it was generally agreed that the draft instrumentshould provide appropriate mechanisms to avoid possibleconflicts between the draft instrument and other multilat-eral instruments (in particular those instruments that con-tained mandatory rules applicable to land transport), theview was expressed that avoiding such conflicts would notbe sufficient to guarantee the broad acceptability of thedraft instrument unless the substantive provisions of thedraft instrument established acceptable rules for both mar-itime and land transport. The Working Group was invitedto explore the possibility of the draft instrument providing

8Ibid., Fifty-seventh Session, Supplement No. 17 (A/57/17), para. 222. 9Ibid., Fifty-sixth Session, Supplement No. 17 (A/56/17), para. 345.

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separate yet interoperable sets of rules (some of whichmight be optional in nature) for maritime and road trans-port. After discussion, the Commission approved the work-ing assumption that the draft instrument should coverdoor-to-door transport operations, subject to further con-sideration of the scope of application of the draft instru-ment after the Working Group had considered thesubstantive provisions of the draft instrument and come toa more complete understanding of their functioning in adoor-to-door context.10

18. Working Group III (Transport Law), which was com-posed of all States members of the Commission, held itstenth session in Vienna from 16 to 20 September 2002.The session was attended by representatives of the fol-lowing States members of the Working Group: Argentina,Austria, Brazil, Cameroon, Canada, China, Colombia,France, Germany, India, Iran (Islamic Republic of), Italy,Japan, Kenya, Lithuania, Mexico, Romania, the RussianFederation, Singapore, Spain, Sudan, Sweden, Thailand,the United Kingdom of Great Britain and Northern Irelandand the United States of America.

19. The session was also attended by observers from the following States: Algeria, Australia, Denmark, Finland,Ghana, Greece, Kuwait, Lebanon, Libyan Arab Jamahiriya,the Netherlands, Norway, Peru, the Philippines, theRepublic of Korea, Senegal, Slovakia, Switzerland, theSyrian Arab Republic, Tunisia, Turkey, Ukraine andYemen.

20. The session was also attended by observers from thefollowing international organizations:

(a) United Nations system: The InternationalMaritime Organization (IMO) and the United NationsConference on Trade and Development (UNCTAD).

(b) Intergovernmental organizations: TheEuropean Commission, the Intergovernmental Organizationfor International Carriage by Rail (OTIF) and theOrganisation for Economic Co-operation and Development(OECD).

(c) International non-governmental organizationsinvited by the Commission: The Baltic and InternationalMaritime Council (BIMCO), the Comité international destransports ferroviaires (CIT), the Comité maritime inter-national (CMI), the European Law Student’s Association(ELSA), the Instituto Iberoamericano de DerechoMarítimo, the International Chamber of Shipping (ICS), theInternational Federation of Freight ForwardersAssociations (FIATA), the International Group ofProtection and Indemnity (P & I) Clubs and theInternational Multimodal Transport Association (IMMTA).

21. The Working Group elected the following officers:

Chairman: Mr. Rafael Illescas (Spain)

Rapporteur: Mr. Walter De Sá Leitão (Brazil)

22. The Working Group had before it the following doc-uments:

(a) Provisional agenda (A/CN.9/WG.III/WP.22);

(b) Preliminary draft instrument on the carriage of goodsby sea: Note by the secretariat (A/CN.9/WG.III/WP.21);

(c) Preliminary draft instrument on the carriage ofgoods by sea: Note by the secretariat (A/CN.9/WG.III/WP.21/Add.1).

(d) Proposal by Canada (A/CN.9/WG.III/WP.23)

23. The Working Group adopted the following agenda:

1. Election of officers.

2. Adoption of the agenda.

3. Preparation of a draft instrument on transport law.

4. Other business.

5. Adoption of the report.

II. DELIBERATIONS AND DECISIONS

24. The Working Group continued to review the provi-sions of the draft instrument contained in the annex to thenote by the secretariat (A/CN.9/WG.III/WP.21). The delib-erations and conclusions of the Working Group arereflected in section III below.

A. General discussion

25. In preparation for the current session of the WorkingGroup, a proposal was submitted by the Government ofCanada (A/CN.9/WG.III.WP.23) concerning the scope andstructure of the draft instrument. In light of the discussionheld at the ninth session of the Working Group regardingthe scope of application of the draft instrument on a door-to-door or on a port-to-port basis, the following threeoptions were presented: (1) to continue working on theexisting draft instrument, but to add a reservation thatwould enable contracting States to decide whether or notto implement article 4.2.1 and the relevant rules governingthe carriage of goods preceding or subsequent to the car-riage by sea; (2) to continue working on the existing draftinstrument, including article 4.2.1, but to insert “nationallaw” after “international convention” in article 4.2.1 (b);or (3) to revise the existing draft instrument to include aseparate chapter each on common provisions, on carriageof goods by sea (port-to-port), on carriage of goods by seaand by other modes before or after carriage by sea (door-to-door), and on final clauses and reservations, including aprovision on express reservations for the port-to-port chap-ter and the door-to-door chapter.

26. The Working Group welcomed this contribution tothe discussion on the scope of application of the draftinstrument. It was, however, questioned if this was theappropriate time to discuss the options proposed for thestructure of the draft instrument. Support was expressed forthe view that an in-depth discussion on the scope of appli-cation would be premature, particularly since the secretariathad been requested to prepare a background paper on thistopic for discussion at a future session of the WorkingGroup. It was suggested that while an in-depth discussion10Ibid., Fifty-seventh Session, Supplement No. 17 (A/57/17), para. 224.

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of the issue or the choosing of option might be premature,the options presented in the Canadian proposal, in additionto possible other options, should form part of the back-ground paper on scope of application to be presented at afuture session of the Working Group.

27. The Working Group decided to proceed with a dis-cussion of the liability issue in Chapter 6 of the draft instru-ment, to be followed by consideration of the period ofresponsibility issues in Chapter 4. The Working Groupagreed to discuss in general terms the scope of applicationissues during its examination of the related issue of theperiod of responsibility covered in Chapter 4 (see below,para. 123).

28. In a preliminary exchange of views with representa-tives of international organizations involved in land trans-portation, the Working Group heard comments from therepresentative of the Intergovernmental Organization forInternational Carriage by Rail (OTIF) and the Comité inter-national des transports ferroviaires (CIT), who expressedsupport for the establishment of global rules to govern mul-timodal transport, provided that unimodal transport situa-tions, such as those involving transport by road, rail andinland waterways, were duly taken into account. In thatcontext, interest was expressed for option (3) in theCanadian proposal (for continuation of that exchange ofviews, see below, para. 124 and annexes I and II).

B. Consideration of draft articles

1. Draft article 6 (Liability of the carrier)

29. The text of draft article 6 as discussed by theWorking Group was as follows:

“6.1 Basis of liability

“6.1.1 The carrier is liable for loss resulting from lossof or damage to the goods, as well as from delay indelivery, if the occurrence that caused the loss, damageor delay took place during the period of the carrier’sresponsibility as defined in article 4, unless the carrierproves that neither its fault nor that of any personreferred to in article 6.3.2 (a) caused or contributed tothe loss, damage or delay.

“6.1.2 [Notwithstanding the provisions of article 6.1.1the carrier is not responsible for loss, damage or delayarising or resulting from

“(a) act, neglect or default of the master, mariner,pilot or other servants of the carrier in the navigationor in the management of the ship;

“(b) fire on the ship, unless caused by the faultor privity of the carrier.]

“6.1.3 Notwithstanding the provisions of article 6.1.1,if the carrier proves that loss of or damage to the goodsor delay in delivery has been caused by one of the fol-lowing events it is presumed, in the absence of proof tothe contrary, that neither its fault nor that of a per-forming party has caused or contributed to cause thatloss, damage or delay.

(i) [Act of God], war, hostilities, armed conflict,piracy, terrorism, riots and civil commotions;

(ii) quarantine restrictions; interference by orimpediments created by governments, publicauthorities rulers or people [including interfer-ence by or pursuant to legal process];

(iii) act or omission of the shipper, the controllingparty or the consignee;

(iv) strikes, lock-outs, stoppages or restraints oflabour;

(v) saving or attempting to save life or property atsea;

(vi) wastage in bulk or weight or any other loss ordamage arising from inherent quality, defect, orvice of the goods;

(vii) insufficiency or defective condition of packingor marking;

(viii) latent defects not discoverable by due dili-gence.

(ix) handling, loading, stowage or unloading of thegoods by or on behalf of the shipper, the con-trolling party or the consignee;

(x) acts of the carrier or a performing party in pur-suance of the powers conferred by article 5.3and 5.5 when the goods have become a dangerto persons, property or the environment or havebeen sacrificed; [(xi) perils, dangers and acci-dents of the sea or other navigable waters;]

“6.1.4. [If loss, damage or delay in delivery is caused inpart by an event for which the carrier is not liable and inpart by an event for which the carrier is liable, the carrieris liable for all the loss, damage, or delay in deliveryexcept to the extent that it proves that a specified part ofthe loss was caused by an event for which it is not liable.]

“[If loss, damage, or delay in delivery is caused in partby an event for which the carrier is not liable and inpart by an event for which the carrier is liable, then thecarrier is

“(a) liable for the loss, damage, or delay in deliv-ery to the extent that the party seeking to recover for theloss, damage, or delay proves that it was attributable toone or more events for which the carrier is liable; and

“(b) not liable for the loss, damage, or delay indelivery to the extent the carrier proves that it is attrib-utable to one or more events for which the carrier is notliable.

If there is no evidence on which the overall apportion-ment can be established, then the carrier is liable forone-half of the loss, damage, or delay in delivery.]

“6.2 Calculation of compensation

“6.2.1 If the carrier is liable for loss of or damage tothe goods, the compensation payable shall be calculatedby reference to the value of such goods at the place andtime of delivery according to the contract of carriage.

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“6.2.2 The value of the goods shall be fixed accord-ing to the commodity exchange price or, if there is nosuch price, according to their market price or, if thereis no commodity exchange price or market price, by ref-erence to the normal value of the goods of the samekind and quality at the place of delivery.

“6.2.3 In case of loss of or damage to the goods andsave as provided for in article 6.4, the carrier shall notbe liable for payment of any compensation beyond whatis provided for in articles 6.2.1 and 6.2.2.

“6.3 Liability of performing parties

“6.3.1 (a) A performing party is subject to theresponsibilities and liabilities imposed on the carrierunder this instrument, and entitled to the carrier’s rightsand immunities provided by this instrument (i) duringthe period in which it has custody of the goods; and (ii)at any other time to the extent that it is participating inthe performance of any of the activities contemplatedby the contract of carriage.

“(b) If the carrier agrees to assume responsi-bilities other than those imposed on the carrier under thisinstrument, or agrees that its liability for the delay indelivery of, loss of, or damage to or in connection withthe goods is higher than the limits imposed under arti-cles 6.4.2, 6.6.4, and 6.7, a performing party is not boundby this agreement unless the performing party expresslyagrees to accept such responsibilities or such limits.

“6.3.2 (a) Subject to article 6.3.3, the carrier isresponsible for the acts and omissions of

(i) any performing party, and

(ii) any other person, including a performingparty’s subcontractors and agents, who per-forms or undertakes to perform any of the car-rier’s responsibilities under the contract ofcarriage, to the extent that the person acts,either directly or indirectly, at the carrier’srequest or under the carrier’s supervision orcontrol, as if such acts or omissions were itsown. A carrier is responsible under this provi-sion only when the performing party’s or otherperson’s act or omission is within the scope ofits contract, employment, or agency.

“(b) Subject to article 6.3.3, a performingparty is responsible for the acts and omissions of anyperson to whom it has delegated the performance of anyof the carrier’s responsibilities under the contract of car-riage, including its subcontractors, employees, andagents, as if such acts or omissions were its own. A per-forming party is responsible under this provision onlywhen the act or omission of the person concerned iswithin the scope of its contract, employment.

“6.3.3 If an action is brought against any person, otherthan the carrier, mentioned in article 6.3.2, that personis entitled to the benefit of the defences and limitationsof liability available to the carrier under this instrumentif it proves that it acted within the scope of its contract,employment, or agency.

“6.3.4 If more than one person is liable for the lossof, damage to, or delay in delivery of the goods, theirliability is joint and several but only up to the limitsprovided for in articles 6.4, 6.6 and 6.7.

“6.3.5 Without prejudice to the provisions of article6.8, the aggregate liability of all such persons shall notexceed the overall limits of liability under this instru-ment.

“6.4 Delay

“6.4.1 Delay in delivery occurs when the goods arenot delivered at the place of destination provided for inthe contract of carriage within any time expressly agreedupon [or, in the absence of such agreement, within thetime it would be reasonable to expect of a diligent car-rier, having regard to the terms of the contract, the char-acteristics of the transport, and the circumstances of thevoyage].

“6.4.2 If delay in delivery causes loss not resultingfrom loss of or damage to the goods carried and hencenot covered by article 6.2, the amount payable as com-pensation for such loss is limited to an amount equiva-lent to [… times the freight payable on the goodsdelayed]. The total amount payable under this provisionand article 6.7.1 shall not exceed the limit that wouldbe established under article 6.7.1 in respect of the totalloss of the goods concerned.

“6.5 Deviation

“(a) The carrier is not liable for loss, damage, ordelay in delivery caused by a deviation to save orattempt to save life or property at sea, or by any otherreasonable deviation.

“(b) Where under national law a deviation ofitself constitutes a breach of the carrier’s obligations,such breach only has effect consistently with the provi-sions of this instrument.

“6.6 Deck cargo

“6.6.1 Goods may be carried on or above deck only if

(i) such carriage is required by applicable laws oradministrative rules or regulations, or

(ii) they are carried in or on containers on decksthat are specially fitted to carry such contain-ers, or

(iii) in cases not covered by paragraphs (i) or (ii)of this article, the carriage on deck is in accor-dance with the contract of carriage, or complieswith the customs, usages, and practices of thetrade, or follows from other usages or practicesin the trade in question.

“6.6.2 If the goods have been shipped in accordancewith article 6.6.1(i) and (iii), the carrier is not liable forloss of or damage to these goods or delay in deliverycaused by the special risks involved in their carriage ondeck. If the goods are carried on or above deck pur-

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Part Two. Studies and reports on specific subjects 375

suant to article 6.6.1 (ii), the carrier is liable for loss ofor damage to such goods, or for delay in delivery, underthe terms of this instrument without regard to whetherthey are carried on or above deck. If the goods are car-ried on deck in cases other than those permitted underarticle 6.6.1, the carrier is liable, irrespective of the pro-visions of article 6.1, for loss of or damage to the goodsor delay in delivery that are exclusively the consequenceof their carriage on deck.

“6.6.3 If the goods have been shipped in accordancewith article 6.6.1(iii), the fact that particular goods arecarried on deck must be included in the contract par-ticulars. Failing this, the carrier has the burden of prov-ing that carriage on deck complies with article 6.6.1(iii)and, if a negotiable transport document or a negotiableelectronic record is issued, is not entitled to invoke thatprovision against a third party that has acquired suchnegotiable transport document or electronic record ingood faith.

“6.6.4 If the carrier under this article 6.6 is liable forloss or damage to goods carried on deck or for delay intheir delivery, its liability is limited to the extent pro-vided for in articles 6.4 and 6.7; however, if the carrierand shipper expressly have agreed that the goods willbe carried under deck, the carrier is not entitled to limitits liability for any loss of or damage to the goods thatexclusively resulted from their carriage on deck.

“6.7 Limits of liability

“6.7.1 Subject to article 6.4.2 the carrier’s liability forloss of or damage to or in connection with the goods islimited to […] units of account per package or othershipping unit, or […] units of account per kilogram ofthe gross weight of the goods lost or damaged,whichever is the higher, except where the nature andvalue of the goods has been declared by the shipperbefore shipment and included in the contract particulars,[or where a higher amount than the amount of limita-tion of liability set out in this article has been agreedupon between the carrier and the shipper.]

“6.7.2 When goods are carried in or on a container,the packages or shipping units enumerated in the con-tract particulars as packed in or on such container aredeemed packages or shipping units. If not so enumer-ated, the goods in or on such container are deemed oneshipping unit.

“6.7.3 The unit of account referred to in this article isthe Special Drawing Right as defined by the InternationalMonetary Fund. The amounts mentioned in this articleare to be converted into the national currency of a Stateaccording to the value of such currency at the date ofjudgement or the date agreed upon by the parties. Thevalue of a national currency, in terms of the SpecialDrawing Rights, of a Contracting State that is a memberof the International Monetary Fund is to be calculatedin accordance with the method of valuation applied bythe International Monetary Fund in effect at the date inquestion for its operations and transactions. The value ofa national currency, in terms of the Special Drawing

Right, of a Contracting State that is not a member of theInternational Monetary Fund is to be calculated in amanner to be determined by that State.

“6.8 Loss of the right to limit liability

“Neither the carrier nor any of the persons mentionedin article 6.3.2 is entitled to limit their liability as pro-vided in articles [6.4.2,] 6.6.4, and 6.7 of this instru-ment, [or as provided in the contract of carriage,] if theclaimant proves that [the delay in delivery of,] the lossof, or the damage to or in connection with the goodsresulted from a personal act or omission of the personclaiming a right to limit done with the intent to causesuch loss or damage, or recklessly and with knowledgethat such loss or damage would probably result.

“6.9 Notice of loss, damage, or delay

“6.9.1 The carrier is presumed, in absence of proof tothe contrary, to have delivered the goods according totheir description in the contract particulars unless noticeof loss of or damage to or in connection with the goods,indicating the general nature of such loss or damage,was given to the carrier or the performing party whodelivered the goods before or at the time of the deliv-ery, or, if the loss or damage is not apparent, withinthree working days after the delivery of the goods. Sucha notice is not required in respect of loss or damage thatis ascertained in a joint inspection of the goods by theconsignee and the carrier or the performing party againstwhom liability is being asserted.

“6.9.2 No compensation is payable under article 6.4unless notice of such loss was given to the personagainst whom liability is being asserted within 21 con-secutive days following delivery of the goods.

“6.9.3 When the notice referred to in this chapter isgiven to the performing party that delivered the goods,it has the same effect as if that notice was given to thecarrier, and notice given to the carrier has the sameeffect as a notice given to the performing party thatdelivered the goods.

“6.9.4 In the case of any actual or apprehended lossor damage, the parties to the claim or dispute must giveall reasonable facilities to each other for inspecting andtallying the goods.

“6.10 Non-contractual claims

“The defences and limits of liability provided for in thisinstrument and the responsibilities imposed by thisinstrument apply in any action against the carrier or aperforming party for loss of, for damage to, or in con-nection with the goods covered by a contract of car-riage, whether the action is founded in contract, in tort,or otherwise.”

(a) Subparagraph 6.1.1

30. It was noted that draft article 6 constituted the corerule of liability for carriers and should be read with draft

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articles 4 and 5 (which were also relevant in defining thecarrier’s obligations) and draft article 7 of the draft instru-ment (since draft article 6 mirrored the provisions regard-ing the shipper’s obligations). It was also noted thatparagraph 6.1 contained two types of exceptions to the lia-bility of carrier as set out in subparagraphs 6.1.2 and 6.1.3.It was clarified that even if the carrier had acted in accor-dance with its obligations under draft article 5, for exam-ple by exercising due diligence as required under draftarticle 5.4, this would not necessarily mean that the car-rier bore no fault under draft article 6.1. If, however, thecarrier breached its obligations, for example under draftarticle 5.2.1 or 5.4, then this would constitute fault and theburden of proof would fall on the carrier to prove that therewas no fault (if a prima facie case could be made).

31. Support was expressed for the content of subpara-graph 6.1.1 and the requirement of fault-based liability onthe carrier, namely that the carrier was liable unless itproved that the loss, damage or delay was not its faultnor that of any person referred to in subparagraph6.3.2 (a). It was suggested that subparagraph 6.1.1 wascloser in substance to the approach taken in article 4.2(q)of the Hague and Hague-Visby Rules than the approachtaken in article 5.1 of the Hamburg Rules, which requiredthat the carrier proved that it, its servants or agents, tookall measures that could reasonably be required to avoidthe occurrence and its consequences. However, there wassome criticism that the reference to the “period of the car-rier’s responsibility as defined in article 4” would allowthe carrier to restrict its liability to a considerable extent.Some concern was expressed as to why it had been con-sidered necessary to deviate from the language used inthe Hamburg Rules. A suggestion was made that the basisof liability should be simplified by abolishing the stan-dard of due diligence and replacing it with liability stem-ming from use of the vessel as such. It was suggestedthat the reason for the difference in wording from boththe Hague Rules and the Hamburg Rules was to improveand provide greater certainty (e.g. as to the fact that theliability of the carrier was based on presumed fault, amatter that had required clarification by way of thecommon understanding adopted by the drafters of theHamburg Rules). A contrary view was that combining dif-ferent languages from both the Hague and Hamburg Rulesmight increase uncertainty as it was not clear how theprovision would be interpreted.

32. It was stated that, whilst a higher standard of liabil-ity had been adopted in instruments dealing with othermodes of transport (such as COTIF), a higher standardwould not be acceptable in the maritime context. In thisregard, support was expressed for features in addition todraft article 6.1, such as draft article 5, which set out thepositive obligations of the carrier. It was noted that, if thedraft instrument were to apply on a door-to-door basis, con-flict with unimodal land transport conventions (such asCOTIF and CMR) would be inevitable given that bothimposed a higher standard of liability on the carrier.However it was suggested that these conflicts could bereduced by adopting suitable wording in draft article 6.4as well as the language used in respect of the performingcarrier. More generally, doubts were expressed as towhether default liability rules applicable in the context of

door-to-door transport should be based on the lower mar-itime standard instead of relying on the stricter standardgoverning land transport.

33. In response to a question regarding the relationshipbetween draft articles 5.2, 5.4 and 6.1.1, it was noted thatif the carrier proved that the event that caused or con-tributed to the loss, damage or delay did not constitute abreach of its obligations under draft articles 5.2 and 5.4, itwould be assumed not to be at fault.

34. Strong support was expressed for the substance ofsubparagraph 6.1.1. After discussion, the Working Grouprequested the secretariat to prepare a revised draft with dueconsideration being given to the views expressed and thesuggestions made, and also to the need for consistencybetween the various language versions.

(b) Subparagraph 6.1.2

35. It was recalled that subparagraphs (a) and (b) setforth the first two of the traditional exceptions to the car-rier’s liability, as provided in the Hague and Hague-VisbyRules. It was also recalled that there was considerableopposition to the retention of either. As regards subpara-graph (a), it was pointed out that there was little supportfor the “management” element, which was simply produc-tive of disputes as to the difference between managementof the ship and the carrier’s normal duties as to care andcarriage of the goods. It was also pointed out that a simi-lar exception to the carrier’s liability based on the error innavigation existed in the original version of the WarsawConvention and had been removed from the liability regimegoverning the air carriage of goods as early as 1955 as areflection of technical progress in navigation techniques. Itwas widely felt that the removal of that exception from theinternational regime governing carriage of goods by seawould constitute an important step towards modernizingand harmonizing international transport law. It was empha-sized that such a step might be essential in the context ofestablishing international rules for door-to-door transport.

36. A view was expressed by a number of delegationsthat the general exception based on error in navigationshould be maintained since, should it be removed, therewould be a considerable change to the existing positionregarding the allocation of the risks of sea carriage betweenthe carrier and the cargo interests, which would be likelyto have an economic impact on insurance practice. Arelated view was that, although it was probably inevitableto do away with the general exception based on error innavigation, subparagraph (a) should be maintained insquare brackets pending a final decision to be made at alater stage on what was referred to as “the liability pack-age” (i.e. the various aspects of the liability regime appli-cable to the various parties involved). After discussion,however, the Working Group decided that subparagraph (a)should be deleted.

37. With respect to subparagraph (b), strong views wereexpressed for the deletion of the traditional exception basedon fire on the ship. It was pointed out that, as currentlydrafted along the lines of the Hague and Hague-VisbyRules, the exception would impose an excessive burden of

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proof on the shipper, since in most practical cases, it wouldbe impossible for the shipper to prove that fire had beencaused by the fault or privity of the carrier. As to the needto cover the situation where fire had been caused by thecargo itself, it was suggested that the issue might be suf-ficiently taken care of in the context of subparagraph6.1.3.(vi) (“any other loss or damage arising from inherentquality, defect or vice of the goods”). However, the viewwas also expressed that further consultations with theindustry were needed in order to assess the impact of thedeletion of that exception on the general balance of liabil-ities in the draft instrument. Several delegations also sup-ported the retention of subparagraph (b), as drafted. Afterdiscussion, the Working Group did not reach consensus onthe deletion of subparagraph (b) and decided to maintainit within square brackets, subject to continuation of the dis-cussion at a later stage.

(c) Subparagraph 6.1.3

38. The Working Group engaged in a general discussionof subparagraph 6.1.3, without entering into a review ofeach of the elements listed in subparagraphs (i) to (xi),which would be further considered after more discussionhad taken place about the ways in which the draft instru-ment would address the issues of door-to-door transporta-tion. It was recalled that subparagraph 6.1.3 was based onarticle 4.2 of the Hague and Hague-Visby Rules, whichlisted situations where the carrier was excused from lia-bility for loss of or damage to the goods, generally for thereason that such loss or damage resulted from eventsbeyond the control of the carrier. It was also recalled thatsubparagraph 6.1.3 presented not only a modified but alsoa somewhat extended version of the excepted perils of theHague and Hague-Visby Rules, in particular through theinclusion of exceptions that arose from circumstancesunder the control of the carrier.

39. Doubts were expressed by a number of delegationsregarding the need for including such a list in the draftinstrument in view of the general principle embodied insubparagraph 6.1.1, under which the carrier’s liability wasbased on fault. It was stated that such a catalogue couldnot provide an exhaustive list of those incidents that couldoccur during transport and possibly diminish the liabilityof the carrier. It was pointed out that texts such as theUNCTAD/ICC Rules contained no such list and that itwould be more satisfactory to refer to exonerations of thecarrier’s liability in cases involving force majeure or othercircumstances that were inevitable and unpredictable innature, damage resulting from inherent vice of the goodsor fault of the shipper or of the consignee. The prevailingview, however, was that, although it might be superfluousin certain legal systems, such a list should be retained inview of the useful role it would play in many legal sys-tems in preserving the existing body of case law. It waspointed out that the complete deletion of the cataloguemight be taken by judges inexperienced in maritime lawas indicating an intention to change the law. It was saidthat even if the list was not needed in some countries, itwas useful in others and did no harm in those countriesthat did not need it. It was also pointed out that theapproach taken in a set of mandatory rules such as thosecontained in the draft instrument could not rely on party

autonomy as heavily as in contractual rules such as theUNCTAD/ICC Rules.

40. Regarding the structure of the list, a suggestion wasmade that it could be rationalized by grouping those situ-ations where exoneration stemmed from events under thecontrol of the carrier and those circumstances that werebeyond the control of the carrier. In that context, seriousdoubts were expressed by a number of delegations as towhether circumstances under the control of the carriershould give rise to exonerations. Another suggestion wasthat subparagraph 6.1.3 should be phrased in the form ofan illustrative list and not of a prescriptive provision.

41. Regarding the manner in which the carrier wouldavoid liability, it was pointed out that the excepted perilsunder subparagraph 6.1.3 appeared only as presumptions,and not as exonerations as in article 4.2 of the Hague andHague-Visby Rules. The Working Group heard conflictingviews as to whether the excepted perils should be retainedas exonerations from liability or whether they shouldappear as presumptions only. In favour of adopting the pre-sumption approach, it was stated that certain events weretypical of situations where the carrier was not at fault; andthat it was justifiable, where the carrier proved such anevent, for the burden of proof to be reversed. However, infavour of maintaining the traditional exoneration approach,it was pointed out that not all of the perils listed in thesubparagraph could be interpreted as applicable only wherethe carrier has not been negligent in incurring the exceptedperil. For example, an “Act of God” and a peril of the seacould be defined as acts occurring without a carrier’s neg-ligence in circumstances that could not reasonably havebeen guarded against. To define them for a “presumption”regime without reference to absence of fault was not easy.New definitions might have to be evolved, referring onlyto serious external events that could raise a (rebuttable)presumption of non-liability. Such a process might involveloss of existing case law in some jurisdictions. Those twoexcepted perils had been listed in square brackets sincethey would not fit well in a presumption-based regime andit seemed likely that situations that might attract either ofthem could fairly easily be dealt with under the basic ruleof subparagraph 6.1.1. The Working Group deferred a finaldecision as to whether the circumstances listed under sub-paragraph 6.1.3 would be treated by way of presumptionsor by way of exonerations until such time as it hadreviewed the contents of the individual subparagraphs (i)to (xi) and the drafting of the entire provision had beenconsidered in more detail. In the context of that discussion,it was pointed out that, since exonerations were subject toproof being given of the carrier’s fault, the differencebetween the presumption approach and the exonerationapproach might be very limited in practice.

42. A concern was expressed that, as currently drafted,the chapeau of subparagraph 6.1.3 insufficiently addressedthose cases where the carrier proved an event listed undersubparagraph 6.3.1 but there was also an indication thatthe vessel might not have been seaworthy. The shipperwould then actually have the burden of proving unsea-worthiness. This was believed to be inconsistent with sub-paragraph 6.1.1 and it was suggested that it might bepreferable to treat the events listed as exonerations if, at

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the same time, the words “has been caused by one of thefollowing events” could be replaced by “has been causedsolely by one of the following events”. It was also sug-gested that the words “or contributed” should be deleted.Those suggestions were noted with interest.

43. Although no discussion took place regarding the indi-vidual subparagraphs (i) to (xi), the Working Group heardvarious suggestions and concerns in respect of those provi-sions. As a matter of drafting, it was suggested that the caseof fire on the ship, should it be maintained under subpara-graph 6.1.2, might need to be relocated under subparagraph6.1.3. Regarding the substance of the provision, one sug-gestion was that the reference to quarantine restrictionsshould be deleted. Another suggestion was that, in view ofthe deletion of subparagraph 6.1.2 (a), a new element shouldbe listed in subparagraph 6.1.3, based on “compulsorypilotage”. While some support was expressed for exonerat-ing the carrier from liability where it had been placed underan obligation to use possibly incompetent pilotage, the pre-vailing view was that reliance on pilotage should not exon-erate the carrier from its liability, since the pilot should beregarded as assisting the carrier. Although the carrier mightindeed be faced with compulsory pilotage or other ruleimposed by port authorities, for example with regard tomandatory loading or unloading of goods, it would be unfairto burden the shipper with the consequences of such obli-gations, since the carrier, unlike the shipper, was actuallyinvolved and maintained control of such situations. It waspointed out that exonerating the carrier and creating arecourse against the pilot or any other provider of servicesto the carrier (mention was made of ice-breaking services)would inappropriately depart from established practice andunduly interfere with the contractual arrangements betweenthe carrier and its suppliers of services. After discussion,the Working Group decided not to create any additionalexception under subparagraph 6.1.3 at the current stage, onthe grounds that the general rule expressed in subparagraph6.1.1 sufficiently addressed those situations that were notexpressly addressed in subparagraph 6.1.3.

44. Consistent with the view that events under the con-trol of the carrier should not give rise to exonerations, con-cerns were expressed regarding the appropriateness ofincluding subparagraphs (ix) and (x). It was observed thatthe discussion of those issues could be reopened in the con-text of a detailed discussion of subparagraphs (i) to (xi).

45. The secretariat was requested to take the above sug-gestions, views and concerns into consideration whenpreparing a future draft of the provision.

(d) Subparagraph 6.1.4

46. Subparagraph 6.1.4 presented the Working Groupwith two alternative texts with respect to concurrent causesof loss, damage or delay in delivery. The first alternativeprovided that, where the loss, damage or delay in deliverywas caused by two events but the carrier was liable for onlyone of those events, the carrier was liable for the entire loss,except to the extent that it proved that the loss was causedby an event for which it was not liable. The second alter-native stated that, where the loss, damage or delay in deliv-ery was caused by two events, and the carrier was only

liable for one of them, the carrier and the party seekingrecovery for the loss shared the burden of showing the causeof the loss. The second alternative also provided a fall-backprovision to cover the rare situation where adequate proofwas lacking, by providing that in these circumstances thetwo parties would share the loss in equal parts.

47. The Working Group discussed the text of the alter-natives with respect to substance and form, focusing theirinterventions on general legislative policies.

48. While several views were expressed that either optionwas acceptable, and that the differences between the twooptions were largely irrelevant, strong support wasexpressed for the first alternative set out in subparagraph6.1.4. It was noted that the first alternative was very clearand precise, and envisaged complete liability on behalf ofthe carrier, while leaving the carrier open to prove that itwas not liable for the event causing the loss, damage ordelay in delivery.

49. However, there was also strong opposition to the firstalternative. A perceived problem with the first alternativewas described as very serious. While this alternative waspatterned after article 5.7 of the Hamburg Rules, it was sug-gested that it would not operate in the same fashion, dueto the presumption of the absence of carrier fault in article6.1.3 of the draft instrument, which could result in uncer-tainty regarding the interaction of draft articles 5 and 6.

50. It was pointed out that the second alternative betterdealt with the situation where two concurrent causesresulted in the loss, yet the carrier was responsible for onlyone of the causes. For example, if the loss was due to bothinsufficient packing and improper handling of the goods,the first alternative would place the entire burden on thecarrier to prove the allocation of loss between the twocauses. In contrast, the second alternative would have bothparties bear the burden of showing causation.

51. It was further argued that the second alternative waspreferable given the Working Group’s decision to elimi-nate error in navigation from the carrier’s list of exemp-tions in subparagraph 6.1.2 (a). In most cases of loss, theargument would be made that error in navigation con-tributed to the loss, which would be difficult for the car-rier to disprove. Under the second alternative, if error innavigation were alleged, the cargo owner would bear theburden of proving it as a cause and its extent, and whereit was impossible to allocate the cause, the loss would beshared equally. Thus, the heart of the second alternativewas a shared burden of proof.

52. However, it was suggested that the second alterna-tive was simplistic in its treatment of the situation whereno evidence on the overall apportionment could be estab-lished, and the carrier would be liable for one-half of theloss. Concern was expressed that the basic rule regardingburden of proof had already been set out in subparagraphs6.1.1, 6.1.2 and 6.1.3, and that the second alternative insubparagraph 6.1.4 appeared to reverse this regime. Thesuggestion was made that the second alternative as a wholehad no parallel in any existing international or nationalregime for the carriage of goods by sea, and that it would

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substantially change the risk allocation between carrier andcargo interests. While it was conceded by proponents ofthe second alternative that this text did shift the burden ofproof in favour of the carrier, it was argued that this wasa policy choice which was especially appropriate in lightof the abandonment of the error in navigation defence.

53. The issue of overriding obligations was raised in theWorking Group in conjunction with the discussion of sub-paragraph 6.1.4. The example was given of the case wherethe combined causes of the loss were that of inherent vicein the goods, and of unseaworthiness of the vessel. It wassuggested that until it was clear whether the obligation ofseaworthiness in article 5.4 of the draft instrument was anoverriding obligation, it was not possible to allocate thecauses for the loss. Opposing views were expressed thatsubparagraph 6.1.4 should be maintained in order to avoidthe doctrine of overriding obligations, and that the doctrineitself did not exist in many legal systems. A further viewwas that it was questionable whether subparagraph 6.1.4eliminated the doctrine of overriding obligations. If thiswas not the case, subparagraph 6.1.4 should make that posi-tion clear, for instance by commencing with the words“Without prejudice to draft article 5.1.4”.

54. While some delegations questioned whether it wasnecessary to envisage a special text on the issue of sharedliability or contributing cause, it was widely felt that theapportionment of liability was an important issue thatshould be dealt with in the draft instrument. It was empha-sized that most transport conventions contained such aclause governing the allocation of liability where loss wasdue to a combination of causes. It was also noted that thecurrent rules dealing with concurrent causes resulted in anextremely heavy burden of proof on the carrier to provethat part of the loss was caused by an event for which thecarrier was not liable. While intermediate solutions couldbe found to ease this heavy burden, this issue appeared tobe ready for unification. However, it was suggested thatboth alternatives as drafted in subparagraph 6.1.4 weresomewhat rigid in their treatment of this issue.

55. Other drafting difficulties were noted in both alter-natives presented in subparagraph 6.1.4. Confusion wasvoiced over the ambiguous nature of the “event”, andwhether it was intended to be limited to “cause”, andwhether it would be limited to the list of presumptions insubparagraph 6.1.3. It was suggested that further studyshould be conducted on the issue of apportionment of lia-bility due to a combination of causes of the loss.

56. The first alternative in subparagraph 6.1.4 receivedthe strongest support in the Working Group, and the deci-sion was made to maintain the first alternative in the draftinstrument for continuation of the discussion at a laterstage. However, the Working Group decided to preservethe second alternative as a note or in the comments to thedraft text, to permit further consideration of that alterna-tive at a later stage.

(e) Paragraph 6.2

57. It was recalled that paragraph 6.2 defined the scopeand amount of compensation that was payable and that

delay was dealt with separately under paragraph 6.4. It wasalso recalled that the provision had been drafted with theintention of clarifying that damages were to be calculatedon the “arrived value” being the value of the goods at theplace of delivery. It was pointed out that this approach wasa well-recognized method for calculating compensation andwas used in the marine insurance context. In response, itwas stated that, at least in one jurisdiction, compensationwas calculated based on the value of the goods at the placewhere the carrier received the goods and that some juris-dictions also had mandatory regulations including therefunding of freight and costs incurred during the courseof carriage as part of the compensation payable. It was sug-gested that these differences should be taken into accountparticularly if the draft instrument was to apply on a door-to-door basis. It was generally agreed that, if the draftinstrument applied on a door-to-door basis, it would benecessary to determine whether or not customs and relatedcosts should be included within the compensation that waspayable. It was stated that, in some jurisdictions, customs-related costs were not generally included in the valuationof goods. The Working Group agreed, notwithstanding thedifferent approaches to the time at which a valuation ofgoods should be made, that a provision standardizing thecalculation of compensation was important to include inthe draft instrument.

58. A question was raised whether paragraph 6.2 wasintended to exclude all losses which could not be ascer-tained in the normal valuation of goods as set out in para-graph 6.2 such as, for example, consequential losses. It wassuggested that whether or not consequential damagesshould be included in the compensation payable shoulddepend on what was the intention of the parties. Inresponse, it was explained that the intention of the CMI inpreparing the draft was to replicate the Hague-Visby Rules.

59. A further concern raised was that, whilst paragraph6.2 appeared to set an absolute limit on the amount of dam-ages recoverable, it did not include the qualification setforth in the Hague-Visby Rules that allowed the shipper todeclare the value of the goods in the bill of lading. Therewas support for the view that the calculation of compen-sation should take account of the intention of the partiesas expressed in the contract of carriage.

60. It was observed that paragraph 6.2 was dealt withseparately from the limits of liability as set out in draftparagraph 6.7, whereas article 4.5 of the Hague-VisbyRules dealt with both these issues together. It was statedthat there was no specific reason for this separation and afuture draft could consider combining paragraphs 6.2 withparagraph 6.7. In this respect a concern was raised as tothe interaction between paragraphs 6.2 and 6.7, particu-larly given that the intention of the latter paragraphappeared to be to restrict compensation and exclude con-sequential damages.

61. A suggestion was made that paragraph 6.2 shouldcontain a cross-reference to draft article 4 which dealt withthe period of responsibility including the place of delivery.It was stated that the method for calculating compensationmight need to be reviewed if the draft instrument appliedon a door-to-door basis.

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62. A suggestion was made that consideration should begiven to revising paragraph 6.2 to cover loss or damageother than to the goods, a situation which could arise par-ticularly if the instrument applied on a door-to-door basis.A suggestion was also made that, with a view to achiev-ing drafting equilibrium, mirroring provisions for calcula-tion of damages should be drafted with respect to shipper’sliability. The Working Group agreed that paragraph 6.2might be revised to take account of the specific concernsraised, particularly if the draft instrument applied on adoor-to-door basis.

(f) Paragraph 6.3

63. It was pointed out that paragraph 6.3 recognized thata contracting carrier might not fully or even partly performthe contract of carriage itself. This provision thereforeacknowledged and imposed liability on “performing par-ties”, namely those parties that performed, wholly or partly,the contract of carriage. It was further stated that, whereasthe contracting carrier was liable throughout the contractof carriage, a performing party had a more limited liabil-ity based on when it had custody of the goods or was actu-ally participating in the performance of an activitycontemplated by the contract of carriage. Although a viewwas expressed that consideration of this paragraph shouldbe deferred until the scope of the draft instrument had beensettled, it was agreed that preliminary discussion was usefuleven if the paragraph would need to be revised once thescope of the draft instrument had been settled. It waswidely felt that the paragraph was useful as it recognizedthe reality of the existence of a performing party and thusprotected the shipper and also protected the performingparty whose liability was limited according to the criteriaset out in subparagraph 6.3.1 (a).

64. A concern was expressed that the coverage of per-forming parties was a novel rule which created a directright of action as against a party with whom the cargointerests did not have a contractual relationship. It wasstrongly argued that this innovation should be avoided asit had the potential for serious practical problems.Disagreement was expressed with respect to the statementin paragraph 94 of document A/CN.9/WG.III/WP.21 thata performing party was not liable in tort. In this respect,it was argued that liability of the performing party in tortwas a matter of national law to which the present instru-ment did not extend. Also it was submitted that it was notclear under which conditions liability could be imposedupon the performing party. It was said that even though itappeared that the loss or damage had to be “localized” withthe performing party (i.e. the loss or damage had to haveoccurred when the goods were in the performing party’scustody), it was less than clear how the burden of proofon this point was to be dealt with. It was suggested thatone interpretation could require that the performing partyprove that the loss or damage occurred at a time when thegoods were not in that party’s custody. As well it was sug-gested that, whilst subparagraph 6.3.4. created joint andseveral liabilities, it did not indicate how the recourseaction as between the parties was to be determined. Thiswas particularly ambiguous given that there was not nec-essarily a contractual relationship between the parties con-cerned. For these reasons, it was suggested that paragraph

6.3 and the definition of “performing party” in draft arti-cle 1 should be deleted or, in the alternative, that the def-inition should be clarified so as to ensure that it was limitedto “physically” performing parties. Support was expressedfor limiting the scope of paragraph 6.3 to “physically” per-forming parties. In this respect it was suggested that thewords “or undertakes to perform” should be deleted fromsubparagraph 6.3.2 (a) (ii). However, strong support wasexpressed for the retention of paragraph 6.3 on the basisthat it was an indispensable provision. It was agreed thatparagraph 6.3 should be retained, subject to a revision ofthe text taking account of the concerns expressed and toconsidering whether further changes were necessary if thedraft instrument ultimately applied on a door-to-door basis.

(g) Paragraph 6.4

65. The Working Group heard the view that whilst a pro-vision on delay was a novel one at least if compared withthe text of the Hague and Hague-Visby Rules, it was how-ever dealt with in the Hamburg Rules and in a number oftransport law instruments of a contractual nature, such asthe UNCTAD/ICC Rules and the FIATA bill of lading. Itwas suggested that it would be appropriate to deal with thismatter in the draft instrument. Although it was recognizedthat time was not as crucial in maritime carriage as in otherforms of carriage, it was recognized that, once time wasagreed upon in the maritime context, any breach should beregulated in the interests of harmonisation rather than leftto national law as was done under the Hague and Hague-Visby Rules. In support of the inclusion of a provision ondelay it was said that time was becoming more importantparticularly in respect of short sea trade. A contrary viewwas that time was not as important as other factors in themaritime context, and that delay should not be a ground forbreach of contract as envisaged in paragraph 6.4.

66. The prevailing view was that a provision on delayshould be included in the draft instrument. Regarding thesubstance of the paragraph, it was observed that the pro-vision included two limbs, the first recognising that delaywas a matter left for the parties to agree upon, the second(in bracketed text), which provided a default rule in theabsence of such an agreement. It was stated that the firstlimb of the provision provided clarity in that it allowedparties to raise limitation amounts, a choice that could alsobe reflected in the amount of freight. Support wasexpressed for the first limb of subparagraph 6.4.1 and forbroad recognition that the matter of delay and duration ofa transport was a commercial matter that could be the sub-ject of agreements between the parties. Some support wasexpressed for the view that the question of how to dealwith delay should be left exclusively to the parties. On thatbasis, it was suggested that the second limb of subpara-graph 6.4.1 should be deleted.

67. Additional opposition was expressed to the secondlimb of subparagraph 6.4.1, which recognized the discre-tion of courts to find delay if delivery did not occur withinthe time that it would be reasonable to expect of a diligentcarrier and allowed for evidence to be brought takingaccount of normal trade and communications expectations.It was stated that the second limb was too vague in its ref-erence to reasonableness for determining whether there had

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been delay and also that it did not serve a useful purposein modern transport. It was also argued that, given that theerror in navigation defence had been omitted from the draftinstrument (see above, para. 36), a general provision ondelay as set out in the second limb of paragraph 6.4 wouldimpose too heavy a burden on the carrier. It was stated inresponse that, where the delay was caused by matters out-side the control of the carrier, such as thick ice or storms,the carrier still had the protection offered by subparagraph6.1.1. The prevailing view in the Working Group was thata provision along the lines of the second limb of subpara-graph 6.4.1 should be retained, since the omission of sucha provision would result in too rigid a formulation of therule on delay. In that respect, it was pointed out that almostall international conventions concerning transport lawincluded rules on liability for delay. A widely shared viewwas that the present wording was balanced because the ref-erence to “reasonable” expectations of a diligent carrierprovided shippers with an adequate level of protection.However, it was suggested that the term “reasonable”might require further explanations and that the second limbof the subparagraph should be re-examined once the scopeof the draft instrument had been settled.

68. It was observed that one aspect not covered by para-graph 6.4, but dealt with in a number of other conventions,was the legal fiction that, after a certain period of time,delayed goods could be treated as lost goods. Some sup-port was expressed for inclusion of a provision establish-ing such a fiction in the draft instrument. Strong oppositionwas expressed to the inclusion of such a clause, particu-larly in respect of developing countries where the choiceof carriers was often non-existent. After discussion, duringwhich strong concerns were raised about the inclusion ofthis provision, it was agreed that this was a topic worthyof further consideration taking account of industry needsand practices.

69. In relation to subparagraph 6.4.2 it was observed thatthis provision dealt with amounts payable for losses due todelay but not with compensation for loss or damage to thegoods. It was stated that since the value of goods was onlyrelevant for calculating compensation for damage or loss,the method for limiting liability in case of delay should beby reference to the amount of the freight. Differing viewswere expressed as to the limitation that should apply underthis provision ranging from the amount of freight payableto an amount equivalent to four times the freight payablefor the delayed goods. The view was expressed that thematter should be left to national law. Another view wasexpressed that whatever amount was agreed upon withregard to the limitation of liability should be mandatory toavoid a risk that standard clauses would be used to limitcarrier liability below the amount specified in subparagraph6.4.2. It was said that the Working Group should also con-sider how this provision would operate when combinedwith the overall limit of liability that could be found inparagraph 6.7. It was decided that the limits should berevisited once the provisions on liability and the scope ofthe draft instrument had been settled.

70. After discussion, the Working Group agreed that thetext of paragraph 6.4. would remain as currently draftedfor continuation of the discussion at a later stage.

(h) Paragraph 6.5

71. It was explained that paragraph 6.5 on deviation hadbeen included in the draft instrument with a view to mod-ernizing this area of maritime law. In traditional maritimelaw, deviation amounted to a breach of contract, furtherto which the carrier could lose all the benefits it wouldnormally derive from the governing legal regime.Paragraph 6.5 was intended to reflect a policy under whichdeviations could be justified where they were made inorder to attempt to save lives or property at sea, or wherethe deviation was otherwise reasonable. Paragraph 6.5 (b)was intended to harmonize the rules regarding deviationin those countries where national law held that deviationamounted to a breach of contract, and to subject thosedomestic provisions to a reading within the provisions ofthe draft instrument. It was recalled that, in addition, thedraft instrument in paragraph 6.8 contained provisionsregarding loss of the right to limit liability and funda-mental breach of contract.

72. There was strong support for the inclusion of a pro-vision on deviation in the draft instrument. It was pointedout that a deviation by the carrier in order to save prop-erty at sea differed from a deviation to save life, and thatthe carrier should thus be subject to liability for delaywhen deviating to salvage property, particularly wheresuch a deviation to salvage property was agreed for aprice. However, it was also noted that it was often diffi-cult to distinguish between situations involving deviationsto save life and those made to salvage property. It wassuggested that the draft article could include language tothe effect that, when goods are salvaged as a result of thedeviation, compensation received as a result of the salvagecould be used as compensation for loss caused by theresulting delay. As a matter of drafting, although para-graph 6.5 was being considered in general terms only,translation might need to be reviewed to ensure that “devi-ation” should be translated as “desvio” in Spanish, and as“déroutement” in French.

73. It was suggested that the phrase “authorized by theshipper or a deviation” should be inserted after the phrase“… in delivery caused by a deviation” in subparagraph6.5 (a). In addition, concern was raised over the meaningof the phrase “or by any other reasonable deviation” at theend of subparagraph 6.5 (a). It was recommended that thisphrase should be clarified or deleted, since there was nouniform interpretation of the term “reasonable deviation”in all countries. However, it was also stated that it couldbe difficult to foresee the precise circumstances of eachdeviation, and that precise language could unduly limit theprovision. It was stated that there were often extensiveclauses on changes in the route of the ship found in billsof lading, and the issue was raised whether it would beconsequently possible for contracting parties to define intheir contracts what they intended to be a “reasonable devi-ation”. Clarification was given that the concept of “rea-sonable deviation” was a concept in general law that hadexisted for some time, without giving rise to many prob-lems of interpretation and that deviation was meant to bea departure from the contractual agreement, rather than anagreed term. The Working Group also heard that deviationto save life and property at sea was an international public

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law principle with respect to assisting when another vesselwas in peril, and was not intended to cover the situationwhere one’s own vessel was in danger.

74. It was suggested that subparagraph 6.5 (b) wasunnecessary as a result of the international law of treaties,and that it should be deleted. However, subparagraph6.5 (b) received broad support, and was generally wel-comed as confirmation of the primacy of international lawin the face of national law on this topic.

75. The Working Group decided to retain paragraph 6.5in its entirety, and the secretariat was requested to take theabove suggestions, views and concerns into considerationwhen preparing a future draft of this provision.

(i) Paragraph 6.6

76. The Working Group heard that paragraph 6.6 hadbeen included in the draft instrument in order to cover thesituation of cargo placed on deck, and thus being exposedto greater risks and hazards than it would have faced hadit been placed below deck. It was also noted that in somejurisdictions, placing cargo on the deck without prior agree-ment could amount to a fundamental breach of contract ora quasi-deviation. Further, some types of cargo could onlybe reasonably transported on deck, and with respect toother types of cargo, transportation on deck had becomethe norm. In response to a question regarding the meaningof goods being carried “on” containers, it was explainedthat the provision was intend to reflect the possible use ofa flat container, as defined paragraph 1.4 in the definitionschapter of the draft instrument.

77. It was noted that subparagraph 6.6.1 provided threesituations when goods could be carried on deck: when itwas required by public law, administrative law, or regula-tion; when the goods were carried in or on containers ondecks that were specially fitted to carry such containers;or when it was in accordance with the contract of carriageor with the customs, usages and practices of the trade. Itwas explained that subparagraph 6.6.2 provided that wherethe goods were carried on deck in accordance with sub-paragraph 6.6.1, the carrier would not be held liable forany loss, damage or delay specifically related to theenhanced risk of carrying the good on deck. In addition, itwas clarified that subparagraph 6.6.3 indicated that plac-ing the cargo on deck might be not just in the interest ofcarriers, but also in the interest of parties to a sales con-tract, in which case it should be stated clearly in the doc-umentation applying to the contract. It was also noted thatsubparagraph 6.6.4 set out the consequences for loss ordamage incurred in deck cargo.

78. It was explained that approximately 65 per cent of thecontainer-carrying capacity of a vessel was usually on orabove its deck, such that for operational reasons it wasimportant for container carriers to have the operational flex-ibility to decide where to carry the containers. However, inthis respect it was stated that in the absence of instructions,the decision whether to carry cargo on or below deck wasnot a matter entirely in the discretion of the carrier, givenother obligations such as the obligation to exercise propercare in respect of the cargo under subparagraph 5.2.1.

79. Paragraph 6.6 received strong support for its struc-ture and content. This provision was welcomed as anappropriate apportionment of liability in conformity withthe freedom of contract regime, with the caveat that cer-tain terms needed clarification, and that, as currentlydrafted, the draft article was too lengthy and complex. Aquestion was raised whether in the case of vessels speciallyfitted for containers outlined in subparagraph 6.6.1(ii),there could not in some situations be an agreement betweenthe shipper and the carrier regarding whether carriage wasto be on or below deck. It was explained that the existenceof specially-fitted vessels was not novel, and that the prin-ciple enshrined in subparagraph 6.6.1(ii) was intended toallow for carrier flexibility in choosing whether to carrycargo above or below deck. Concerns were raised withrespect to alterations to the burden of proof regime thatcould be caused by subparagraph 6.6.2, since the carrierwould have to prove either exoneration under subparagraph6.6.1, or that the damage was not exclusively the conse-quence of their carriage on deck. In response, it wasexplained that pursuant to subparagraph 6.6.2, if the cargowas unjustifiably carried on deck, the carrier was respon-sible for any loss attributable to deck carriage, regardlessof whether or not the carrier was at fault for the actualdamage—in other words, strict liability was imposed. Asuggestion was made that reference to “failing this” in thesecond sentence of subparagraph 6.6.3 required that theshipper had to prove that the goods had been shipped inaccordance with subparagraph 6.6.1(iii). Further clarity wassought on where the burden of proof lay in the operationof subparagraph 6.6.3. In response, it was noted that theburden of proof in subparagraph 6.6.3 was not with respectto the damage, but rather with respect to compliance withthe contract for deck carriage. In addition, it was suggestedthat the phrase “exclusively the consequence of their car-riage on deck” in the final sentence of subparagraph 6.6.2was imprecise, because damage or loss rarely has only onecause. A possible remedy for this could be use of the word“solely”, taken from article 9.3 in the Hamburg Rules, oralternatively, to place the word “exclusively” in squarebrackets. The question was raised whether reference shouldalso be made to containers in subparagraph 6.6.4. It wassuggested that the limits of liability in the draft instrumentshould be mandatory and subject to no exception, however,the point was made that subparagraph 6.6.4 allowed for thelimit on liability to be broken only when there was anintentional breach of contract regarding where to carry thecargo.

80. The Working Group decided to retain the structureand content of paragraph 6.6 for continuation of the dis-cussion at a later stage.

(j) Paragraph 6.7

81. By way of introduction, it was recalled that para-graph 6.7 was derived from articles 6 and 26 of theHamburg Rules and article 4.5 of the Hague and Hague-Visby Rules. General support was expressed for the prin-ciples on which paragraph 6.7 was based. It was generallyagreed that it would not be appropriate to insert any amountfor limits of liability in the draft instrument at this stage.It was pointed out that more discussion would be neededon that point, particularly if the draft instrument was to

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govern door-to-door transport, in view of the difference inthe amounts of the limits applicable to different modes oftransport, which ranged, for example, from 2 special draw-ing rights per kilogram in maritime transport to 17 specialdrawing rights per kilogram in air transport (for weight-based limitations).

82. A suggestion was made that it would be appropriateto include in the draft instrument an article providing foran accelerated amendment procedure to adjust the amountsof limitation, for example along the lines of article 8 ofthe 1996 Protocol to the Convention on Limitation ofLiability for Maritime Claims. The suggestion was notedwith interest. However, it was stated that the level of thelimits ultimately agreed to be inserted in subparagraph6.7.1 would have a bearing on support for an acceleratedamendment procedure.

83. Another suggestion was that, in line with a proposalmade at the workshop on cargo liability regimes organizedby the Maritime Transport Committee of OECD in January2001, “before considering new monetary limits, it wouldbe advisable for the sponsoring agency, as part of prepara-tory work for a diplomatic conference, to commission anindependent study on the changes in the value of moneysince the limits were fixed in the Hague-Visby Rules”.Some support was expressed for that suggestion. In thatcontext, however, the view was expressed that, in view ofthe increase in the level of containerization, the averagevalue of cargo in containerized transport had remained rel-atively stable over the years. Attention was drawn to thepossibility of introducing a limitation amount per containeras an alternative to the package limitation.

84. It was recalled that the last part of subparagraph 6.7.1was between square brackets because it had yet to bedecided whether any mandatory provision with respect tolimits of liability should be “one-sided or two-sided manda-tory”, i.e. whether or not it should be permissible for eitherparty to increase its respective liabilities. A widely-sharedview was that the text between square brackets should beretained.

85. After discussion, the Working Group decided toretain the entire text of paragraph 6.7 in the draft instru-ment for continuation of the discussion at a later stage.

(k) Paragraph 6.8

86. By way of introduction, it was recalled that para-graph 6.8 was closely modelled on both article 8(1) of theHamburg Rules and article 4.5(e) of the Hague-VisbyRules. The provision for breaking the overall limitationwas of a type that required a personal fault by the carrierbut did not contemplate the consequences of wilful mis-conduct or reckless behaviour by an agent or servant ofthe carrier. The need to demonstrate personal fault wouldrequire the demonstration of some form of managementfailure in a corporate carrier. The view was expressed thatthe absence of a provision on wilful misconduct or reck-less behaviour by an agent or servant of the carrier wasnot acceptable. It was also observed that, as currentlydrafted, the draft instrument might encourage the con-signee to sue directly the master of the ship or another

agent of the carrier, where that agent had acted recklessly,since the liability of the agent was not subject to limita-tion. In addition, it was stated that the system currentlycontemplated in paragraph 6.8 might raise serious diffi-culties in the context of door-to-door transport since it wastypically inspired by maritime law but did not reflect theapproach that prevailed in the law applicable to othermodes of transport.

87. A question was raised about the interplay betweensubparagraph 6.6.4 and paragraph 6.8 and the possibleredundancy of those two provisions. It was explained inresponse that paragraph 6.8 established the general testgoverning loss of the right to limit liability (i.e. the reck-less or intentional behaviour of the carrier), while sub-paragraph 6.6.4 established as a specific rule that, in caseof breach of an agreement that the cargo would be carriedunder deck, the carrier would be deemed to have actedrecklessly. Subparagraph 6.6.4 was thus intended to avoidthe shipper being under an obligation to prove the reck-lessness of the carrier in certain specific circumstances. Itwas widely agreed that the two provisions served differentpurposes and were not redundant.

88. With respect to the general policy on which loss ofthe right to limit liability should be based in the draftinstrument, the view was expressed that the rules on thelimitation of liability should be made unbreakable or almostunbreakable to ensure consistency and certainty in inter-pretation of the rules. While examples were given of inter-national instruments where such a policy had beenimplemented, it was pointed out that such instrumentsrelied on a relatively high-amount limitation. It was alsopointed out that in certain countries, unbreakable limits ofliability would be regarded as unconstitutional, while inother countries they could be ignored by judges under ageneral doctrine of fundamental breach.

89. The Working Group was generally of the view thatthe substance of paragraph 6.8 was acceptable but it wasfelt by a large number of those delegations that took partin the discussion that further consideration should be givento the possibility of adding a provision on the intentionalfault of the servant or agent of the carrier. A note of cau-tion was struck about relying on the concept of recklessbehaviour, which might be interpreted differently in dif-ferent jurisdictions and might thus encourage forum shop-ping. It was thus suggested that further considerationshould be given to the possibility of using the notion of“intentional” rather than “reckless” behaviour. A furtherpoint raised was that the relation as between the breaka-bility of the limits of liability and the joint and several lia-bility created in subparagraph 6.3.4 should be furtherexamined.

90. It was suggested that the words “personal act oromission” should be replaced by the words “act or omis-sion”, for reasons of consistency with the AthensConvention relating to the Carriage of Passenger and theirLuggage by Sea. It was also suggested that this was amatter of drafting.

91. With respect to the words between square brackets,it was observed that the Working Group would need to

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consider at a later stage whether the limit of liability shouldbe breakable in cases of delay.

92. After discussion, the Working Group took note of thecomments and suggestions made and decided to maintainthe text of paragraph 6.8 in the draft instrument for con-tinuation of the discussion at a later stage.

(l) Paragraph 6.9

93. The Working Group observed that this provision wasof practical importance, recognizing that a claim for dam-ages in a liability case necessarily started with proof thatdamage had occurred whilst the goods were in the custodyof the carrier. Evidence showing that the cargo had beendelivered in a damaged condition would thus be requiredotherwise the carrier enjoyed a presumption of properdelivery. The article provided that this evidence could begiven by the consignee providing a notice of such loss ordamage, or by joint inspection of the goods by the con-signee and the carrier or performing party against whomthe claim was made. Without this notice or joint inspec-tion, there was a presumption that the carrier delivered thegoods according to their description in the contract. A pointwas made that under the present formulation, the pre-sumption would not operate if there was proof to the con-trary, even if no notice had been given. It was furtherobserved that the three-day period within which notice wasto be provided was intended to assist all parties providingthem with early notice of damage. It was also observedthat a short notice period retained the greatest evidentiaryvalue for the claimant, while exceeding the notice periodwould not time-bar the claim but would make its proofmore difficult. In response, it was suggested that the viewthat a relatively short notice period added to the eviden-tiary strength was a matter of fact to be decided by a courtor tribunal. A concern was also expressed that the words“unless notice of loss or damage” did not sufficiently makeit clear that the failure to give notice would not constitutea time bar as it did in the pre-Hague Rules era. It waspointed out that the operation of the presumption dependedon clear requirements as to the form and content of thenotice of loss, damage or delay. It was stated that somerefinement of the form and content of that notice shouldthus be considered. It was pointed out that the presump-tion was not a precondition to proof of damage during car-riage, however it did provide an incentive to the consigneeto give notice in a timely fashion.

94. A question was raised whether or not the noticeshould be in writing. Support was expressed for this,although it was noted that this could introduce an overlyformalistic requirement and that a prudent cargo ownerwould send a written notice, otherwise it would be up tothe cargo owner to prove that it had given notice or thatthere was constructive notice. It was suggested that, in prin-ciple and as a matter of good faith, unless given at the timeof delivery, notice should be in writing. It was suggestedthat account should be taken of electronic communicationsin reworking this provision. In this respect, it was notedthat draft article 2.3 provided that notices might be madeusing electronic communications. It was agreed that thesecretariat should take account of the broad support forwritten notice when preparing the revised draft of this text.

95. As well, given the different time periods thatapplied in different modes of transport, it was consideredappropriate that compliance with the time period appli-cable to the last leg of the transport should suffice indetermining whether timely notice had been given. It wasnoted that the time within which notice should be givendiffered in various instruments ranging from three, six,and seven to as much as fifteen days. Deep concern wasexpressed regarding a possible three-day time limit on thebasis that in some countries geographical realities wouldmake the period impossible to meet. In response to thatconcern, it was noted that the consignee would negotiatethe place of delivery in the contract and could take intoaccount concerns such as geographical distance and noticeperiods. This point was also made in response to the sug-gestion that the length of the time period should dependupon whether or not the goods were containerized. It wasnoted in response that it was impossible for the parties tochoose door-to-door transport with respect to certaincargo or certain destinations. It was also suggested thatthe use of the term “working days” could result in uncer-tainty due to differing national holidays and that it wouldbe helpful to specify “working days at the place of deliv-ery” or “consecutive days”. Strong support was expressedfor the view that a three-day period was too short.However, there was no consensus as to the time periodthat should apply and a suggestion was made that a ref-erence to a “reasonable time” could be appropriate. It wasdecided that the reference to “three working” should beplaced in square brackets, together with other possiblealternatives, in the revised text.

96. It was suggested that the reference to “joint inspec-tion” in subparagraph 6.9.1 was too imprecise and did notcover the situation where a carrier refused to participate insuch an inspection. In addition, it was suggested that thephrase “concurrent inspection” or “inspection contradic-toire” might be more appropriate in a civil law context.Whilst it was agreed that this point was essentially a draft-ing matter, it was agreed that the matter should be con-sidered in a future draft.

97. In subparagraph 6.9.1 it was suggested that thephrase “or in connection” was redundant and that it shouldbe made clear that it was the consignee that was requiredto give the notice under this provision. Another draftingsuggestion was that consideration should be given toexpanding the scope of subparagraph 6.9.1 to allow fornotice to be given to the employee or agent of the carrieror performing party. The Working Group observed that thedraft instrument had been drafted to avoid encroaching onagency law. It was suggested that it should be clarifiedwhether the term “delivery” referred to actual delivery orshould be given the meaning set out in draft article 4.1.3.It was said that the term “delivery” in draft article 6.9.1was the contractual point of the delivery but it was ques-tioned why the draft instrument departed from the approachtaken in the Hague and Hague-Visby Rules which referredto removal of goods. In response, it was stated that theapproach taken in the draft instrument was of paramountimportance in order to avoid the situation where the con-signee would dictate the date of removal, putting the matterbeyond the control of the carrier. A question was raised asto how to cover the situation where goods were required

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under law to be left with an authority upon whom the con-signee could not rely to provide the required notice.

98. In respect of subparagraph 6.9.2, the issue was raisedwhether notice of damages for delay could be given priorto delivery to the consignee. In addition, the issue wasraised whether exceeding the twenty-one day notice periodwould result in a loss of a right to claim damages for delayand how that provision interacted with provision on timefor suit in draft article 14. In this regard it was noted thatonly notice had to be given within twenty-one days andthat the consignee had a year from the date of deliverywithin which to institute judicial or arbitral proceedingsunder draft article 14. However, it was suggested that thetwenty-one day period for giving notice to the personagainst whom liability was being asserted would be a dif-ficult burden for the consignee.

99. It was clarified that the performing party under sub-paragraph 6.9.3 could only refer to the person who actu-ally delivered the goods and could not include thewarehouse unless it delivered the goods.

100. Support was expressed for subparagraph 6.9.4 on thebasis that it contained notions of good faith and coopera-tion between the parties. It was however suggested that thereference to providing access to “all reasonable facilitiesfor inspecting and tallying the goods” should also includereference to providing access to records and documents rel-evant to the carriage of the goods. This was said to be par-ticularly important with respect to the transport oftemperature-sensitive goods where temperature recordsmight be only in electronic form, accessible only by thecarrier, and could be quickly overwritten. There was strongsupport for this proposal.

(m) Paragraph 6.10

101. The Working Group heard that paragraph 6.10addressed a well-recognized principle that needed to beconsidered in the context of the draft instrument as a whole.It was recognized that the provision was very important toavoid the possibility that merely taking a non-contractualclaim could circumvent the entire draft instrument. It wasfurther agreed that the implications of the provision woulddepend on the ultimate scope of the draft instrument andthus no definitive decision should be taken on the provi-sion at this stage.

102. A suggestion to include a reference to delay in deliv-ery in the provision was widely supported.

103. A concern was raised that paragraph 6.10 did notappear to cover non-contractual claims brought against per-sons other than the carrier, such as handlers or stevedores.This question was felt to require further clarification. Aquestion was raised as to whether other persons mentionedin subparagraph 6.3.3 were also intended to be covered byparagraph 6.10 and thus enjoy the same benefits, defencesand limits. In response, it was noted that the purpose ofparagraph 6.10 was to channel all claims that could bebrought under the draft instrument into the current provi-sion and that, as these other parties were not subject to suitunder the draft instrument, there would be no point to

include such parties within the scope of the provision.These other persons were protected by draft article 6.3.3.It was further pointed out that “any person other than thecarrier” were those parties that did not fall within the def-inition of the performing party under draft article 1.17, andtherefore had no responsibility under the draft instrument,but according to draft article 6.3.3, such parties could ben-efit from the defences and limitations in liability availableto the carrier.

104. As a matter of drafting, it was pointed out that thetitle of the provision needed to be standardized in all lan-guage versions.

105. A question was also raised as to whether paragraph6.10 would be better placed in draft article 13 on rights ofsuit. In response it was noted that whilst draft article 13defined the individual persons who were able to bring asuit, by way of an allocation of the right to sue, draft arti-cle 6 on liability of the carrier provided the substantivebasis of that suit. For that reason it was suggested thatwhile the structure of these provisions might change in thefuture, the current placement of paragraph 6.10 within draftarticle 6 was appropriate.

2. Draft article 9 (Freight)

106. The Working Group resumed its deliberations regard-ing draft article 9. Due to the absence of sufficient time,the Working Group had only discussed paragraphs 9.1 to9.3 at its ninth session (A/CN.9/510, para. 190). The textof draft article 9 as considered by the Working Group wasreproduced in the report of the Working Group on the workof its ninth session (A/CN.9/510, para. 171).

107. The general view was expressed that it was neces-sary to include provisions relating to freight in the draftinstrument. It was pointed out that practices in that respectvaried widely between different trades and that the pay-ment of freight was a commercial matter that should beleft to the parties.

(a) Paragraph 9.4

108. The Working Group heard that paragraph 9.4 con-sisted of declaratory provisions intended to provide clarityand to put the consignee and others, particularly those out-side of the contract of carriage, on notice in advising whatthe notations “freight prepaid” or “freight collect” meantwhen found on the bill of lading. Subparagraph 9.4 (a)advised that if “freight prepaid” was mentioned on thetransport document, neither the holder nor the consigneewas liable for payment of the freight. Further, pursuant tosubparagraph 9.4 (b), if “freight collect” appeared on thetransport document, the consignee might be held liable forpayment of the freight. General support was expressed forthe aim of paragraph 9.4 to ensure that frequently-used con-tractual wording was understood. It was also consideredthat paragraph 9.4 could settle uncertainty in internationalmaritime law in a manner consistent with actual practice.

109. However, it was suggested that paragraph 9.4 was sovague as to be of little assistance in the unification of mar-itime law, and that there were certain reservations with

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respect to whether a provision in the draft instrument onfreight was necessary.

110. The suggestion was made that the declaration in sub-paragraph 9.4 (a) was too radical in freeing the holder andconsignee of any responsibility for the payment of freight,and instead that it would be better to create a presumptionof the absence of a debt for freight. However, the alterna-tive view was expressed that subparagraph 9.4 (a) shouldnot create a presumption that the freight had been paid.

111. It was pointed out that subparagraph 9.4 (b) was par-ticularly problematic, and given the vagueness of the words“may be liable”, it was of little utility. It was also said thatdraft articles 12.2.2 and 12.2.4 were intimately linked withsubparagraph 9.4 (b), and that consideration of these pro-visions should be undertaken at the same time. It was sug-gested that if the consignee took any responsibility for thedelivery of the goods, it should also be responsible for thefreight. At the same time, it was noted that subparagraph9.4 (b) could serve to provide information or a warningthat freight was still payable. However, it was suggestedthat the payment of freight should be a condition for theconsignee to obtain delivery of the goods, rather than anobligation. It was further noted that subparagraph 9.4 (b)should focus on the payment of freight in fact, rather thanon who should bear the obligation for the unpaid freight.

112. One proposal that was made to remedy the perceivedproblem in subparagraph 9.4 (b) was to replace the words“such a statement puts the consignee on notice that it maybe liable for the payment of the freight” with the words,“the payment of freight is a condition for the exercise bythe consignee of the right to obtain delivery of the goods.”

113. An alternative suggestion for subparagraph 9.4 (b)was as follows: “If the contract particulars in a transportdocument or an electronic record contain the statement‘freight collect’, or a statement of a similar nature, thatconstitutes a provision that, in addition to the shipper, anyholder or consignee who takes delivery of the goods orexercises any right in relation to the goods will thereuponbecome liable for the freight.”

114. The Working Group agreed that the text in paragraph9.4 should be retained, noting that subparagraph (b) shouldbe revisited in light of the comments above, and the textsproposed could be presented as alternatives in future draftsof the instrument. It was further noted that the content ofthe text would need to be further discussed together withdraft article 12.2.2 and 12.2.4.

(b) Paragraph 9.5

115. Paragraph 9.5 was described as one of the essentialprovisions of the draft instrument. It was explained that theprovision was intended to elaborate on the traditional prin-ciples applicable in maritime transport that goods shouldpay for the freight and that the carrier should be protectedagainst the insolvency of its debtors up to the value of thetransported goods. The view was also expressed, however,that attempting to legislate by way of uniform law in thefield of the right of retention of the carrier might consti-tute an overly ambitious task. In the context of its prelim-

inary discussion of the issue, the Working Group wasinvited to consider the following elements: (a) whether aprovision regarding the right of retention was needed; (b)the conditions to be met by the carrier to exercise such aright of retention; (c) the nature of the debts of the con-signee that could justify retention of the goods; (d) whetherparagraph 9.5 should be formulated as a mandatory provi-sion or be made subject to contrary agreement; and (e) thelegal regime governing the right of the carrier to disposeof the goods.

116. Regarding the need for a provision along the lines ofparagraph 9.5, doubts were expressed. It was pointed outthat, in certain regions, the only right of retention that wasknown in maritime transport was the right of retention ofthe ship that could be exercised by naval works to ensurethat a shipowner would pay for the costs associated withmaintenance or repair of the vessel. It was also observedthat no provision along the lines of paragraph 9.5 wasfound in existing transport conventions. The view wasexpressed that the provision should be restricted to pay-ments for which the consignee was liable. If the provisionwould include also payments for which the shipper wasliable, that could contradict certain Incoterm practicesunder which the freight was included in the price for thegoods. The prevailing view was that efforts should be pur-sued toward establishing a uniform regime for the right ofretention. It was generally agreed that considerable changeswould need to be introduced in paragraph 9.5.

117. A widely shared view was that, to the extent a pro-vision along the lines of paragraph 9.5 should be retained,it should not be made conditional upon the consignee beingliable for payment under applicable national law. In thatconnection, it was pointed out that the recognition of aright of retention might be appropriate in certain caseswhere the consignee was not liable for the freight, e.g.where the statement “freight collect” was contained in thetransport document. It was also pointed out that establish-ing a right of retention might be appropriate not only wherethe consignee was the debtor but also in certain cases whereanother person, for example the shipper or the holder ofthe bill of lading, was indebted to the carrier. Furthermore,it was explained that the purpose for which a right of reten-tion was established might be defeated if, prior to exer-cising that right, the carrier had to prove that the consigneewas liable under domestic law. A question was raised asto whether paragraph 9.5 should create a right of retentionor whether it should merely establish a security to com-plement a right of retention that might exist outside thedraft instrument. In the latter case, the need would arise todetermine the national law on the basis of which the exis-tence of the right of retention should be assessed. It wasemphasized that reference to applicable national law mightraise difficult question of private international law. It waspointed out that various approaches might be taken byexisting laws. For example, some laws were based on therule that the carrier should be protected against insolvencyof the consignee. Other laws might be based on a distinc-tion whether a negotiable transport document had beenissued, in which case the interest of the third party holderof the negotiable document should prevail over the inter-est of the carrier. It was generally felt that more discus-sion would be needed on that issue.

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118. The view was expressed that establishing a right ofretention might be regarded as affecting the balance ofinternational transport law in favour of the carrier and thatbalance would need to be closely examined. Concern wasexpressed about establishing in the draft instrument a uni-lateral right of the carrier to retain goods on the basis ofan alleged claim in the absence of any judicial interven-tion. In response, it was pointed out that the essential pur-pose of paragraph 9.5 was to establish at least the right ofthe carrier to obtain adequate security until payment of thefreight had been made. In that connection, it was suggestedthat the words “adequate security” might need to bereplaced by the words “adequate security acceptable to thecarrier”. It was suggested that future consideration shouldbe given to the possibility of ensuring that the interests ofthe carrier would receive adequate protection withoutaffecting the position of any consignee acting in good faith.

119. In the context of that discussion, the view wasexpressed that paragraph 9.5 should make it clear that theright of retention would not necessarily imply that thegoods would be retained on board the ship. Another viewwas that the right of retention of the goods should beexpressly limited to those goods for which freight had notbeen paid, unless the goods retained could not be identi-fied or separated from other goods.

120. With respect to the individual costs listed in subpara-graphs 9.5 (a) (i) to (iii) as grounds for exercise by the car-rier of a right of retention of the goods, the view wasexpressed that the list was too extensive. Doubts wereexpressed about the exact meaning and limit of “other reim-bursable costs” under subparagraph 9.5 (a) (i). The view wasexpressed that it might be essential to include a reference,not only to freight but also to associated costs, for exampleto deal with cases where damage had been caused by thetransported goods. While it was acknowledged that thoseclaims were not liquidated at the time when a right of reten-tion would be exercised, it was pointed out that at least asecurity should be put up for those claims. However, strongsupport was expressed in favour of limiting the list of coststo freight, demurrage, and possibly damages for detention ofthe goods. A suggestion was made that subparagraph9.5 (a) (ii) should be deleted since it was insufficiently linkedwith the issue of freight. As to the reference to general aver-age in subparagraph 9.5 (a) (iii), it was stated that the obli-gation of payment could only be justified if a correspondingclause had been inserted in the contract of carriage or thetransport document. It was also suggested that the issue ofgeneral average should not be linked with the issue of freightdue by the consignee since the owner of the goods at thetime of the general average might be different from the con-signee. More generally, it was stated that, while payment of

the freight might justify retention of the goods, the reim-bursement of other costs should be left for commercial nego-tiation between the parties or for discussion in the contextof judicial or arbitral proceedings in case of conflict betweenthe carrier and the consignee or the shipper.

121. Regarding the question whether paragraph 9.5 shouldbe formulated as a mandatory rule or not, a widely sharedview was that the rule should be made subject to partyautonomy. It was widely felt that mandatory rules wouldbe unnecessarily rigid in respect of the right of retentionof the goods, for which the carrier should be free to nego-tiate with its debtors.

122. With respect to the entitlement of the carrier to sellthe goods under subparagraph 9.5 (b), various views wereexpressed. One view was that the matter should not be dealtwith through the establishment of a broad entitlement butshould somehow involve judicial or other dispute settle-ment mechanisms to ensure that the right of retention wasexercised in good faith and that retention of the goods hadlegal grounds. Another view was that, as a matter of draft-ing, the words “the consignee” at the end of subparagraph9.5 (b) should be replaced by the words “the person enti-tled to the goods” to ensure consistency with the final sen-tence of draft article 10.4.1 (c). Yet another view, was thata cross-reference should be made in subparagraph 9.5 (b)to article 10.4. With respect to the law applicable to thesale of the goods under subparagraph 9.5 (b), the view wasexpressed that the draft instrument should contain an indi-cation that it should be the lex fori, i.e., the law of appli-cable at the location where the goods were retained.Regarding the right of the carrier to “satisfy the amountspayable to it”, it was pointed out that such a rule wentbeyond traditional rules governing the right of retention ina number of countries, where the holder of such a rightwould merely be given priority over other creditors.

123. After discussion, the Working Group decided that para-graph 9.5 should be retained in the draft instrument for con-tinuation of the discussion at a later stage. Due to the absenceof sufficient time, the Working Group deferred its consider-ation of draft article 4 (see above, para. 27) and the remain-ing provisions of the draft instrument until its next session.

124. At the close of the session, the Working Groupresumed its consultations with representatives from thetransport industry, and with observers from various organ-izations involved in different modes of transport (for ear-lier discussion, see above, para. 28). Comments from anumber of industry representatives are reproduced forinformation purposes as annexes I and II to this report, inthe form in which they were received by the secretariat.

The International Chamber of Shipping and BIMCO representall sectors of the shipping industry. ICS and BIMCO repre-sent shipowners that are trading tackle-to-tackle, port-to-portand door-to-door as well as every possible combination of

ANNEX I

Comments from the representative of the International Chamber of Shipping and theBaltic and International Maritime Council on the scope of the draft instrument

those periods, e.g. from the port at one end to the door at theother. As such, ICS and BIMCO support the development ofan international convention based on the draft prepared byCMI. The instrument as drafted by CMI is a maritime

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388 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIV

instrument which has the flexibility to apply to all of theabove scenarios.

When CMI drafted the instrument it set out to strengthenthe unimodal maritime rules—not just the liability regime—butalso other aspects which are not currently regulated. However, itwas soon recognized that the realities of containerized transportof goods could not be ignored. There would be little added valuein developing another unimodal regime. It would be remiss toignore door-to-door transport. Provided that carriage by sea iscontemplated at some stage, the provisions of the instrumentshould apply to the full scope of the carriage.

The shipping industry does not want to impinge on theregimes applicable to other modes of transport. The instrumentis drafted on the basis of a network system that aims at respect-

ANNEX II

Comments from the representative of the International Group of Protection & Indemnity Clubs

Thank you for the opportunity to indicate our views on the scopeof the draft instrument. As some of you may know, the thirteenP&I Clubs members of the International Group are mutual organ-izations which insure the third-party liabilities of approximately92 per cent of the world’s ocean-going tonnage.

The International Group has taken an active role in the CMI’sdeliberations, which have led to the draft instrument that delegatesare now considering. The Group has submitted two papers to theCMI, which are available to delegates. We believe that the instru-ment, if it is to meet its intended purpose of promoting uniformityand if it is to attract widespread international support, must providea regime suitable for both developing modes of transport such asdoor-to-door carriage that is increasingly common in the context ofthe container trade and traditional tackle-to-tackle carriage, thatremains prevalent in the bulk and break-bulk trades and which con-tinues to predominate in tonnage terms. In other words if the instru-ment is to be of use to the industry, it must be flexible and caterfor all modes of carriage involving a sea-leg.

We recognize that there will inevitably be a degree of con-flict between existing unimodal regimes that have been shaped tomeet the particular risks and potential liabilities associated withcarriage by road, rail and air, just as the sea-carriage regimes havebeen formulated to meet the particular risks associated with car-riage by sea. However, we believe that these potential problemsare capable of resolution albeit that it may require an innovativeapproach and we believe that the CMI draft goes a long waytowards achieving this. It does so by adopting a network systemapproach in the context of door-to-door carriage, an approach thatrespects the unimodal regimes and with which we agree.

The prime objective of this UNCITRAL initiative is, as we havesaid, to bring uniformity to an area of the law that is presently sub-ject to a multiplicity of regimes in different jurisdictions. However,it should not be forgotten that international conventions are intendedto ensure an acceptable and fair balance of rights and liabilitiesbetween competing interests, particularly if there is perceivedinequality in their bargaining positions. In the present case the com-peting interests are of course carrier and cargo. In our view theirrespective bargaining positions have changed considerably over the

last 80 years in favour of cargo interests. As I recall, the distin-guished delegate from France commented in New York that in anumber of instances the balance of power now lay with shippers.

We have already pointed out that if the obligation to exercisedue diligence is extended to the period throughout the voyage andthe navigational fault defence is excluded, it will substantiallyaffect the allocation of risk between carrier and cargo interestsand this is likely to have a very real effect on the economics ofboth door-to-door and tackle-to-tackle carriage, imposing agreater financial burden on the carrier. It was for this reason thatwe supported the distinguished delegate from the UnitedKingdom’s suggestion that at the very least loss or damage dueto pilot error be retained in the catalogue of exceptions.

This alteration in the allocation of risk and the associated costsof the transport adventure to the carrier, is likely to be all thegreater if as has been suggested by a number of delegations,although not yet of course decided:

(1) Firstly, the onus is placed on the carrier to prove theextent of loss or damage for which he is not liable, when the lossresults in part from a cause for which he is liable and in partfrom a cause for which he is not liable. That is alternative 1 ofdraft Article 6.1.4.

(2) Secondly, the carrier is made liable for delay generally,rather than any such liability being restricted to instances ofexpress agreement between carrier and cargo.

(3) Thirdly, the loss of the right to limit is not restricted tothe personal act or omission of the carrier but expanded toembrace the acts and omissions for those for whom he may bevicariously liable.

It is for these reasons that we suggested that those articlesdealing with matters affecting the carrier and shipper’s respectiverights and liabilities be considered as a whole, rather than as atpresent in isolation. Only then we believe will it be possible tomake a fair assessment of whether or not a fair balance has beenstruck between them.

ing other unimodal regimes and preserving them and we wouldfully support strengthening the instrument in this direction byappropriate additions to overcome possible conflicts of laws.

The instrument should not really affect the other sectorsof the industry, i.e. road, rail, air. They have their own regimesthat will continue to be applicable to them. Of course the pos-sibility of conflicts needs to be avoided but that should not betoo difficult. The instrument should govern the relationshipbetween the shipper and the maritime carrier or MTO. It shouldnot govern the relationship between the shipper and, e.g. theCMR carrier.

In sum, ICS and BIMCO support the development of aninternational “maritime plus” convention based on the draft pre-pared by CMI.

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Part Two. Studies and reports on specific subjects 389

1. Canada welcomes this new initiative by UNCITRAL to pro-mote the cause of harmonization of international law in a fieldthat can be best described as a legal medley. Our gratitude alsogoes to the Comité Maritime International (CMI) for its immensecontribution to this cause, not only in connection with the pres-ent subject, but also in the many other areas of international mar-itime law.

2. We also welcome the results of the 9th session of theWorking Group on Transport Law that met in April 2002 in NewYork. As a first meeting on the subject, the debate was prelimi-nary, focusing largely on conceptual issues, in particular, thescope of application of the draft instrument. As noted in the reportof the Working Group on this meeting (A/CN.9/510), there wasa general consensus that the purpose of its work was to end themultiplicity of the regimes of liability applying to the carriage ofgoods by sea and also to adjust maritime transport law to bettermeet the needs and realities of international maritime transportpractices. The Working Group placed considerable emphasis onthe “maritime aspects” of this project and Canada wholeheartedlyagrees with that approach.

3. At the same time, the Working Group recognized that thereis considerable interest and need to examine multimodal issuesand that it was therefore appropriate to study both a strictly mar-itime regime, on a port-to-port principle, and a regime extendedalso to land transport, a “multimodal regime”, on a door-to-doorprinciple, without taking a decision at this stage on the scope ofthe future instrument.

4. Both approaches received support as well as objections.Canada indicated its support for the development of a port-to-port instrument not because we do not recognize the reality ofthe widespread practice of door-to-door transport, but because westrongly believe that:

a) the initial objective of CMI to focus first on restoring uni-formity of international law in the marine mode was the rightone, and that the introduction of harmonized rules in areas whichhave not yet been regulated internationally (e.g. electronic docu-ments) was of great importance;

b) that this objective should not be delayed or jeopardized byextending the scope of the work of the Working Group to othermodes of transport; and

c) that a new instrument developed strictly for the marinemode would have better prospects of being widely adopted, thanif it was an instrument designed to regulate also other modes,

hitherto subject to national law in most countries, save for thosemainly European countries where international conventions forother modes are currently in effect.

5. It was evident that those who supported the extension of workto include rules for other modes, on a door-to-door principle, wereequally convinced that that is the right approach for the WorkingGroup to pursue. They argued that the transport concepts of todayand tomorrow especially in the field of container transport requirea fresh approach, which could give added value to the futureinstrument, although it would be maritime in its genesis.

6. Thus, it seems to us that no useful purpose would be servedat this juncture by restricting the scope of work in the WorkingGroup to only one approach, to the exclusion of the other. If thispremise is accepted, then the Working Group must look for waysof bridging the gap between the port-to-port and door-to-doorapproaches. Clearly, this is a policy dilemma that should be givensufficient time for discussion at the September meeting, perhapsearly on in the session before the Working Group resumes con-sideration of the draft articles, with the view of reaching a con-sensus on the future direction of work in the Working Group.

7. The following three (3) options could, in our view, be exam-ined as the basis of a possible consensus:

Option 1

8. Continue to work on the existing draft instrument, includingArticle 4.2.1, but add a reservation that would enable contract-ing States to decide whether or not to implement this Article andthe relevant rules governing the carriage of goods preceding orsubsequent to the carriage by sea.

Commentary

a) This option would advance the objective of restoring uni-formity of law in the marine mode, and would establish it inother modes, for those States that wish to pursue that goal. Atthe same time, States that do not share that goal would stillbe part of the new marine regime, and possibly in the futurecould revoke their reservation and apply the instrument fully.

b) By declaring their reservation at the time of ratification,there could be no confusion as to which contracting Statesapply all provisions of the instrument and which Statesreserved on the application of the instrument to inland car-riage under Article 4.2.1.

B. Working paper submitted to the Working Group on Transport Law at its tenth session: Preliminary draft instrument on the carriage

of goods [by sea]: Proposal by Canada

(A/CN.9/WG.III/WP.23) [Original: English]

NOTE BY THE SECRETARIAT

In preparation for the tenth session of Working Group III (Transport Law), during whichthe Working Group is expected to proceed with its reading of the draft instrument con-tained in document A/CN.9/WG.III/WP.21, the Government of Canada, on 20 August2002, submitted the text of a proposal concerning the scope and structure of the draftinstrument for consideration by the Working Group. The text of that proposal is repro-duced as an annex to this note in the form in which it was received by the secretariat.

ANNEX

Proposal by Canada

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390 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIV

Option 2

9. Continue to work on the existing draft instrument, includingArticle 4.2.1 but insert “national law” after “international con-vention” (in paragraph 4.2.1.b).

Commentary

a) Again, this option would provide an important signal tothose States that are interested in the development of a newregime for the marine mode, leaving the rules for othermodes to national law. It is recognized that under this optionit would be more difficult to establish, at any point in time,what law applies in any contracting State—a mandatoryinternational convention for inland carriage or nationallaw—since there would be no record of any declaration tothat effect.

b) In both Option 1 and 2, Article 4.2.1. could also be sub-ject to further elaboration regarding the liability for non-localized damages.

Option 3

10. Revise the existing draft instrument in a manner that wouldestablish:

Chapter 1 – definitions and all provisions common to Chapters2, 3 and 4;

Chapter 2 – provisions governing carriage of goods by sea (i.e.port to-port);

Chapter 3 – provisions governing carriage of goods by sea andby other modes before or after carriage by sea (i.e. door-to-door);

There seem to be two basic models for this purpose:

a) uniform system—a single regime that applies equally toall modes of transport involved in the carriage of goods fromdoor-to-door;

b) network system—same as in (a) above, but with the pro-viso that the uniform system is displaced where an interna-tional convention is applicable to the inland leg of acontract for carriage of goods by sea, and it is clear thatthe loss or damage occurred solely in the course of theinland carriage.

Chapter 4 – final clauses and reservations, including a provisionfor express reservations for:

• Chapter 2 for those contracting States that wish to imple-ment the new instrument for multimodal carriage of goods(door-to-door regime); or

• Chapter 3 for those States that wish to implement the newinstrument only for the carriage of goods by sea (port-to-portregime).

Commentary

This is a more robust option designed to:

a) make a major step in harmonization of international lawfor carriage of goods by accommodating both the port-to-portand door-to-door approaches in Chapter 2 and Chapter 3,respectively. Effectively, there would be two separate conven-tions in a single instrument, sharing those provisions thatwould be common to both Chapters. Under this option, itwould be abundantly clear which contracting States adhere tothe marine regime in Chapter 2 and which adhere to the mul-timodal regime in Chapter 3.

b) improve the prospects of long-term uniformity since Statesadhering only to Chapter 2 could join Chapter 3 by simplyrevoking their reservation on the latter. This may be a key dif-ference between Option 3 and Option 1 where revoking thatreservation may be complicated by different policy considera-tions, possibly requiring a decision whether or not to adopt aninternational convention for inland carriage to support Article4.2.1. Moreover, although these conventions are rather regionalin nature, and limited in number, there is no way of predictingif other regional conventions will be adopted in the future. Theyare not likely to be uniform and thus importing them into thisinstrument by virtue of Article 4.2.1 may not advance the causeof international uniformity for carriage of goods.

11. If it were decided to adopt a “network system” in Chapter3, then presumably the marine regime in that Chapter could beidentical to Chapter 2, thus achieving the widest possible unifor-mity of law in the marine mode. Under that scenario, it wouldbe possible to simplify Option 3 as follows:

Chapter 1 – definitions and all provisions common to Chapters2, 3 and 4;

Chapter 2 – provisions governing carriage of goods by sea (i.e.port to-port);

Chapter 3 – provisions governing carriage of goods by othermodes before or after carriage by sea (i.e. door-to-door);

Chapter 4 – final clauses and reservations, including a provisionfor express reservation for Chapter 3 for those contracting statesthat wish to implement the new instrument only for the carriageof goods by sea (i.e. only for port-to-port).

Summary

12. This paper raises issues that go beyond the scope of a con-ceptual paper, which is the sole purpose of this submission to theWorking Group. Nevertheless, we hope that it will assist in theconsideration of the various policy options that the Working Groupis facing and that it will facilitate the debate, at this or the nextsession in the spring of 2003, leading to a consensus along a paththat has the widest possible support and that can truly achieve theoverriding objective of this initiative—to end the multiplicity ofthe regimes of liability applying to the carriage of goods by sea.

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Part Two. Studies and reports on specific subjects 391

C. Report of Working Group on Transport Law on the work of its eleventh session (New York, 24 March-4 April 2003)

(A/CN.9/526) [Original: English]

CONTENTS

Paragraphs

I. Introduction 1-22

II. Deliberations and decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

A. Consideration of draft articles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24-218

1. Draft article 8 (Transport documents and electronic records) . . . . . . . . . . 24-61(a) Paragraph 8.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25-26(b) Paragraph 8.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27-34

(i) Subparagraph 8.2.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27-29(ii) Subparagraph 8.2.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30-31(iii) Subparagraph 8.2.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32(iv) Subparagraph 8.2.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33-34

(c) Paragraph 8.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35-52(i) Subparagraph 8.3.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35-41(ii) Subparagraph 8.3.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42-43(iii) Subparagraph 8.3.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44-48(iv) Subparagraph 8.3.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49-52

(d) Paragraph 8.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53-61(i) Subparagraph 8.4.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53-55(ii) Subparagraph 8.4.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56-60(iii) Subparagraph 8.4.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

2. Draft article 10 (Delivery to the consignee) . . . . . . . . . . . . . . . . . . . . . . . . 62-99(a) General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63-64(b) Paragraph 10.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65-72(c) Paragraph 10.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73(d) Paragraph 10.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-90

(i) Subparagraph 10.3.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-77(ii) Subparagraph 10.3.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78-90

(e) Paragraph 10.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91-99

3. Draft article 11 (Right of control) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100-126(a) General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101(b) Paragraph 11.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102-104(c) Paragraph 11.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105-113

(i) Subparagraph 11.2 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105-108(ii) Subparagraph 11.2 (b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109-111(iii) Subparagraph 11.2 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112(iv) Subparagraph 11.2 (d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113

(d) Paragraph 11.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114-119(i) Subparagraph 11.3 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114-117(ii) Subparagraph 11.3 (b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118(iii) Subparagraph 11.3 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

(e) Paragraph 11.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120(f) Paragraph 11.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121-123(g) Paragraph 11.6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124-126

4. Draft article 12 (Transfer of rights) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127-148(a) General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128-129(b) Paragraph 12.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130-136

(i) Subparagraph 12.1.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130-133(ii) Subparagraph 12.1.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134

(c) Paragraph 12.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135-141(i) Subparagraph 12.2.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135-136(ii) Subparagraph 12.2.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137-140(iii) Subparagraph 12.2.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141

(d) Paragraph 12.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142-145(e) Paragraph 12.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146-148

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392 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIV

I. INTRODUCTION

1. At its twenty-ninth session, in 1996,1 the Commissionconsidered a proposal to include in its work programme a review of current practices and laws in the area of theinternational carriage of goods by sea, with a view to establishing the need for uniform rules where no such rules existed and with a view to achieving greater unifor-mity of laws.2

2. At that session, the Commission had been informedthat existing national laws and international conventionshad left significant gaps regarding various issues. These

gaps constituted an obstacle to the free flow of goods andincreased the cost of transactions. The growing use of elec-tronic means of communication in the carriage of goodsfurther aggravated the consequences of those fragmentaryand disparate laws and also created the need for uniformprovisions addressing the issues particular to the use ofnew technologies.3

3. At that session, the Commission also decided that thesecretariat should gather information, ideas and opinions asto the problems that arose in practice and possible solu-tions to those problems, so as to be able to present at alater stage a report to the Commission. It was agreed thatsuch information-gathering should be broadly based andshould include, in addition to Governments, the interna-

Paragraphs

5. Draft article 13 (Rights of suit) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149-162(a) Paragraph 13.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150-159(b) Paragraph 13.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160-161(c) Paragraph 13.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162

6. Draft article 14 (Time for suit) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163-182(a) General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164(b) Paragraph 14.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165-169(c) Paragraph 14.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170-174(d) Paragraph 14.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175(e) Paragraph 14.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176-178(f) Paragraph 14.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179-182

7. Draft article 15 (General average) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183-190(a) General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184-185(b) Paragraph 15.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186(c) Paragraph 15.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187-190

8. Draft article 16 (Other conventions) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191-202(a) General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192-195(b) Paragraph 16.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196-197(c) Paragraph 16.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198-199(d) Paragraph 16.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200-202

9. Draft article 17 (Limits of contractual freedom). . . . . . . . . . . . . . . . . . . . . 203-218(a) Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204(b) Paragraph 17.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205-215

(i) Subparagraph 17.1 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205-213(ii) Subparagraph 17.1 (b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214(iii) Subparagraph 17.1 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215

(c) Paragraph 17.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216-218(i) Subparagraph 17.2 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216-217(ii) Subparagraph 17.2 (b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218

B. Scope of application of the draft instrument . . . . . . . . . . . . . . . . . . . . . . . . . . . 219-267

1. General discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219-239

2. Consideration of specific issues related to the scope of the draft instrument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240-267(a) Type of carriage covered by the draft instrument . . . . . . . . . . . . . . . 241-244(b) Relationship of the draft instrument with other transport

conventions and with domestic legislation . . . . . . . . . . . . . . . . . . . . . 245-250(c) Treatment of performing parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251-256(d) Limits of liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257-263(e) Treatment of non-localized damages . . . . . . . . . . . . . . . . . . . . . . . . . . 264-267

1Official Records of the General Assembly, Fifty-first Session,Supplement No. 17 (A/51/17), paras. 210-215.

2Ibid., para. 210. 3Ibid., para. 211.

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Part Two. Studies and reports on specific subjects 393

tional organizations representing the commercial sectorsinvolved in the carriage of goods by sea, such as theInternational Maritime Committee (CMI), the InternationalChamber of Commerce (ICC), the International Union ofMarine Insurance (IUMI), the International Federation ofFreight Forwarders Associations (FIATA), the InternationalChamber of Shipping (ICS) and the InternationalAssociation of Ports and Harbors.4

4. At its thirty-first session, in 1998, the Commission hearda statement on behalf of CMI to the effect that it welcomedthe invitation to cooperate with the secretariat in solicitingviews of the sectors involved in the international carriage ofgoods and in preparing an analysis of that information.5

5. At the thirty-second session of the Commission, in1999, it was reported on behalf of CMI that a CMI work-ing group had been instructed to prepare a study on a broadrange of issues in international transport law with the aimof identifying the areas where unification or harmonizationwas needed by the industries involved.6

6. At that session, it was also reported that the CMI work-ing group had sent a questionnaire to all CMI memberorganizations covering a large number of legal systems. Theintention of CMI was, once the replies to the questionnairehad been received, to create an international subcommitteeto analyse the data and find a basis for further work towardsharmonizing the law in the area of international transportof goods. The Commission had been assured that CMIwould provide it with assistance in preparing a universallyacceptable harmonizing instrument.7

7. At its thirty-third session, in 2000,8 the Commissionhad before it a report of the Secretary-General on possiblefuture work in transport law (A/CN.9/476), whichdescribed the progress of the work carried out by CMI incooperation with the secretariat. It also heard an oral reporton behalf of CMI. In cooperation with the secretariat, theCMI working group had launched an investigation basedon a questionnaire covering different legal systemsaddressed to the CMI member organizations. It was alsonoted that, at the same time, a number of round-table meet-ings had been held in order to discuss features of the futurework with international organizations representing variousindustries. Those meetings showed the continued supportfor and interest of the industry in the project.

8. In conjunction with the thirty-third session of theCommission in 2000, a transport law colloquium, organ-ized jointly by the secretariat and CMI, was held in NewYork on 6 July 2000. The purpose of the colloquium wasto gather ideas and expert opinions on problems that arosein the international carriage of goods, in particular the car-riage of goods by sea, identifying issues in transport lawon which the Commission might wish to consider under-taking future work and, to the extent possible, suggesting

possible solutions. On the occasion of that colloquium, amajority of speakers acknowledged that existing nationallaws and international conventions left significant gapsregarding issues such as the functioning of a bill of ladingand a sea waybill, the relationship of those transport doc-uments to the rights and obligations between the seller andthe buyer of the goods and the legal position of the enti-ties that provide financing to a party to a contract of car-riage. There was general consensus that, with the changeswrought by the development of multimodalism and the useof electronic commerce, the transport law regime was inneed of reform to regulate all transport contracts, whetherapplying to one or more modes of transport and whetherthe contract was made electronically or in writing.

9. At its thirty-fourth session, in 2001,9 the Commissionhad before it a report of the Secretary-General (A/CN.9/497)that had been prepared pursuant to the request by theCommission. That report summarized the considerationsand suggestions that had resulted so far from the discus-sions in the CMI International Subcommittee. The purposeof the report was to enable the Commission to assess thethrust and scope of possible solutions and decide how itwished to proceed. The issues described in the report thatwould have to be dealt with in the future instrumentincluded the following: the scope of application of theinstrument, the period of responsibility of the carrier, theobligations of the carrier, the liability of the carrier, the obli-gations of the shipper, transport documents, freight, deliv-ery to the consignee, right of control of parties interestedin the cargo during carriage, transfer of rights in goods, theparty that had the right to bring an action against the car-rier and time bar for actions against the carrier.

10. The report suggested that consultations conducted bythe secretariat pursuant to the mandate it received from theCommission in 1996 indicated that work could usefullycommence towards an international instrument, possiblyhaving the nature of an international treaty, that would mod-ernize the law of carriage, take into account the latest devel-opments in technology, including electronic commerce, andeliminate legal difficulties in the international transport ofgoods by sea that were identified by the Commission.

11. At its thirty-fourth session, the Commission decided toentrust the project to the Working Group on Transport Law.10

12. As to the scope of the work, the Commission, aftersome discussion, decided that the working document to bepresented to the Working Group should include issues ofliability. The Commission also decided that the considera-tions in the Working Group should initially cover port-to-port transport operations; however, the Working Groupwould be free to study the desirability and feasibility ofdealing also with door-to-door transport operations, or cer-tain aspects of those operations, and, depending on theresults of those studies, recommend to the Commission anappropriate extension of the Working Group’s mandate. Itwas stated that solutions embraced in the United NationsConvention on the Liability of Transport Terminals inInternational Trade (Vienna, 1991) should also be carefully

4Ibid., para. 215.5Ibid., Fifty-third Session, Supplement No. 17 (A/53/17), para. 264.6Ibid., Fifty-fourth Session, Supplement No. 17 (A/54/17), para. 413.7Ibid., paras. 414-415.8Ibid., Fifty-fifth Session, Supplement No. 17 (A/55/17), paras. 416-427.

9Ibid., Fifty-sixth Session, Supplement No. 17 (A/56/17), paras. 319-345.10Ibid., para. 345.

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394 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIV

taken into account. It was also agreed that the work wouldbe carried out in close cooperation with interested inter-governmental organizations involved in work on transportlaw, such as the United Nations Conference on Trade andDevelopment (UNCTAD), the Economic Commission forEurope (ECE) and other regional commissions of the UnitedNations, and the Organization of American States (OAS),as well as international non-governmental organizations.11

13. At its thirty-fifth session, in 2002,12 the Commissionhad before it the report of the ninth session of the WorkingGroup on Transport Law held in New York from 15 to 26April 2002 at which the consideration of this project com-menced (A/CN.9/510). At that session, the Working Groupundertook a preliminary review of the provisions of the draftinstrument on transport law contained in the annex to thenote by the secretariat (A/CN.9/WG.III/WP.21). TheWorking Group also had before it the comments preparedby ECE and UNCTAD, which were reproduced in theannex to the note by the secretariat (A/CN.9/WG.III/WP.21/Add.1). Due to the absence of sufficient time, theWorking Group did not complete its consideration of thedraft instrument, which was left for finalization at its tenthsession. The secretariat was requested to prepare revisedprovisions of the draft instrument based on the deliberationsand decisions of the Working Group (A/CN.9/510, para.21). The Commission expressed appreciation for the workthat had already been accomplished by the Working Group.

14. The Commission noted that the Working Group, con-scious of the mandate given to it by the Commission(A/56/17, para. 345) (and in particular of the fact that theCommission had decided that the considerations in theWorking Group should initially cover port-to-port transportoperations, but that the Working Group would be free toconsider the desirability and feasibility of dealing also withdoor-to-door transport operations, or certain aspects ofthose operations), had adopted the view that it would bedesirable to include within its discussions also door-to-dooroperations and to deal with these operations by develop-ing a regime that resolved any conflict between the draftinstrument and provisions governing land carriage in caseswhere sea carriage was complemented by one or more landcarriage segments (for considerations of the WorkingGroup on the issue of the scope of the draft instrument,see A/CN.9/510, paras. 26-32). It was also noted that theWorking Group considered that it would be useful for itto continue its discussions of the draft instrument under theprovisional working assumption that it would cover door-to-door transport operations. Consequently, the WorkingGroup had requested the Commission to approve thatapproach (A/CN.9/510, para. 32).

15. With respect to the scope of the draft instrument,strong support was expressed by a number of delegationsin favour of the working assumption that the scope of thedraft instrument should extend to door-to-door transportoperations. It was pointed out that harmonizing the legalregime governing door-to-door transport was a practicalnecessity, in view of the large and growing number of prac-

tical situations where transport (in particular transport ofcontainerized goods) was operated under door-to-door con-tracts. While no objection was raised against such anextended scope of the draft instrument, it was generallyagreed that, for continuation of its deliberations, theWorking Group should seek participation from internationalorganizations such as the International Road TransportUnion (IRU), the Intergovernmental Organisation forInternational Carriage by Rail (OTIF), and other interna-tional organizations involved in land transportation. TheWorking Group was invited to consider the dangers ofextending the rules governing maritime transport to landtransportation, and to take into account, in developing thedraft instrument, the specific needs of land carriage. TheCommission also invited member and observer States toinclude land transport experts in the delegations that par-ticipated in the deliberations of the Working Group. TheCommission further invited Working Groups III (TransportLaw) and IV (Electronic Commerce) to coordinate theirwork in respect of dematerialized transport documentation.While it was generally agreed that the draft instrumentshould provide appropriate mechanisms to avoid possibleconflicts between the draft instrument and other multilat-eral instruments (in particular those instruments that con-tained mandatory rules applicable to land transport), theview was expressed that avoiding such conflicts would notbe sufficient to guarantee the broad acceptability of the draftinstrument unless the substantive provisions of the draftinstrument established acceptable rules for both maritimeand land transport. The Working Group was invited toexplore the possibility of the draft instrument providing sep-arate yet interoperable sets of rules (some of which mightbe optional in nature) for maritime and road transport. Afterdiscussion, the Commission approved the working assump-tion that the draft instrument should cover door-to-doortransport operations, subject to further consideration of thescope of application of the draft instrument after theWorking Group had considered the substantive provisionsof the draft instrument and come to a more complete under-standing of their functioning in a door-to-door context.13

16. At its tenth session (Vienna, 16-20 September 2002),the Working Group continued to review the provisions of the draft instrument contained in the annex to the noteby the secretariat (A/CN.9/WG.III/WP.21). The report ofthat session is contained in document A/CN.9/525. TheWorking Group considered draft articles 6, 9.4 and 9.5 ofthe draft instrument. Due to the absence of sufficient time,the Working Group deferred its consideration of draft arti-cle 4 and the remaining provisions of the draft instrumentuntil its next session (A/CN.9/525, para. 123).

17. Working Group III on Transport Law, which wascomposed of all States members of the Commission, heldits eleventh session in New York from 24 March to 4 April2003. The session was attended by representatives of thefollowing States members of the Working Group: Austria,Brazil, Burkina Faso, Cameroon, Canada, China, Colombia,Fiji, France, Germany, India, Italy, Japan, Kenya, Lithuania,Mexico, Morocco, Paraguay, Russian Federation, SierraLeone, Spain, Sweden, Thailand, United Kingdom of GreatBritain and Northern Ireland and United States of America. 11Ibid.

12Ibid., Fifty-seventh Session, Supplement No. 17 (A/57/17), paras.210-224. 13Ibid., para. 224.

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Part Two. Studies and reports on specific subjects 395

18. The session was also attended by observers from thefollowing States: Australia, Belarus, Denmark, Finland,Gabon, Lebanon, Marshall Islands, Netherlands, NewZealand, Niger, Norway, Philippines, Republic of Korea,Switzerland, Turkey, Venezuela and Viet Nam.

19. The session was also attended by observers from thefollowing international organizations:

(a) United Nations system: the United NationsConference on Trade and Development (UNCTAD);

(b) Intergovernmental organizations: Intergovern-mental Organization for International Carriage by Rail(OTIF);

(c) International non-governmental organizationsinvited by the Commission: Association of AmericanRailroads (AAR), Center for International Legal Studies,Comité Maritime International (CMI), Institute of Inter-national Container Lessors (IICL), Instituto Iberoamericanode Derecho Marítimo, International Chamber of Shipping(ICS), International Federation of Freight ForwardersAssociations (FIATA), International Group of Protectionand Indemnity Clubs, International Multimodal TransportAssociation (IMTA), International Union of MarineInsurance (IUMI), The Baltic and International MaritimeCouncil (BIMCO) and Transportation IntermediariesAssociation (TIA).

20. The Working Group elected the following officers:

Chairman: Mr. Rafael Illescas (Spain)

Rapporteur: Mr. Walter De Sá Leitão (Brazil)

21. The Working Group had before it the following doc-uments:

(a) Provisional agenda (A/CN.9/WG.III/WP.24);

(b) Preliminary draft instrument on the carriage ofgoods by sea: Note by the secretariat (A/CN.9/WG.III/WP.21);

(c) Preliminary draft instrument on the carriage ofgoods by sea: Note by the secretariat (A/CN.9/WG.III/WP.21/Add.1);

(d) Proposals by the Governments of Canada(A/CN.9/WG.III/WP.23), Italy (A/CN.9/WG.III/WP.25)and Sweden (A/CN.9/WG.III/WP.26) regarding the scopeof the draft instrument;

(e) Comparative table of the provisions of the draftinstrument and corresponding provisions in existing trans-port conventions (A/CN.9/WG.III/WP.27);

(f) Compilation of comments received by the secre-tariat in relation to the preparation of the draft instrument(A/CN.9/WG.III/WP.28);

(g) Note by the secretariat on the scope of the draftinstrument (A/CN.9/WG.III/WP.29);

(h) Information document provided by the UnitedNations Conference on Trade and Development(A/CN.9/WG.III/WP.30).

22. The Working Group adopted the following agenda:

1. Election of officers.

2. Adoption of the agenda.

3. Preparation of a draft instrument on the carriage of goods by sea.

4. Other business.

5. Adoption of the report.

II. DELIBERATIONS AND DECISIONS

23. The Working Group completed its first reading of thedraft instrument contained in the annex to the note by thesecretariat (A/CN.9/WG.III/WP.21), with the exception ofthose provisions of the draft instrument dealing with theuse of electronic commerce techniques in transport docu-mentation, which were left for consideration at a laterstage. The deliberations and conclusions of the WorkingGroup are reflected below. The secretariat was requestedto prepare a revised version of the draft instrument toreflect the decisions made by the Working Group. Whereno such decision had been made, the secretariat wasrequested to conduct its work bearing in mind the variousviews and concerns expressed in the course of the delib-erations of the Working Group. The Working Groupencouraged the secretariat to exercise broad discretion inrestructuring the draft instrument and redrafting its indi-vidual provisions to facilitate continuation of the discus-sion at a future session on the basis of options reflectingthe spectrum of opinions that had been expressed at theninth, tenth and eleventh sessions of the Working Group.

A. Consideration of draft articles

1. Draft article 8 (Transport documents and electronic records)

24. The text of draft article 8 as considered by theWorking Group was as follows:

“8.1 Issuance of the transport document or the elec-tronic record

Upon delivery of the goods to a carrier or performingparty

(i) The consignor is entitled to obtain a transportdocument or, if the carrier so agrees, an elec-tronic record evidencing the carrier’s or per-forming party’s receipt of the goods;

(ii) The shipper or, if the shipper so indicates tothe carrier, the person referred to in article 7.7,is entitled to obtain from the carrier an appro-priate negotiable transport document, unless theshipper and the carrier, expressly or impliedly,have agreed not to use a negotiable transportdocument, or it is the custom, usage, or prac-tice in the trade not to use one. If pursuant toarticle 2.1 the carrier and the shipper haveagreed to the use of an electronic record, theshipper is entitled to obtain from the carrier anegotiable electronic record unless they haveagreed not to use a negotiable electronic recordor it is the custom, usage or practice in the tradenot to use one.

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396 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIV

“8.2 Contract particulars

“8.2.1 The contract particulars in the document orelectronic record referred to in article 8.1 must include

(a) A description of the goods;

(b) The leading marks necessary for identificationof the goods as furnished by the shipper before the car-rier or a performing party receives the goods;

(c)

(i) The number of packages, the number ofpieces, or the quantity, and

(ii) The weight as furnished by the shipperbefore the carrier or a performing partyreceives the goods;

(d) A statement of the apparent order and condi-tion of the goods at the time the carrier or a perform-ing party receives them for shipment;

(e) The name and address of the carrier; and

(f) The date:

(i) On which the carrier or a performingparty received the goods, or

(ii) On which the goods were loaded onboard the vessel, or

(iii) On which the transport document or elec-tronic record was issued.

“8.2.2 The phrase ‘apparent order and condition of thegoods’ in article 8.2.1 refers to the order and conditionof the goods based on:

(a) A reasonable external inspection of the goodsas packaged at the time the shipper delivers them to thecarrier or a performing party and

(b) Any additional inspection that the carrier or aperforming party actually performs before issuing thetransport document or the electronic record.

“8.2.3 Signature

(a) A transport document shall be signed by thecarrier or a person having authority from the carrier;

(b) An electronic record shall be authenticated bythe electronic signature of the carrier or a person havingauthority from the carrier. For the purpose of this pro-vision such electronic signature means data in elec-tronic form included in, or otherwise logicallyassociated with, the electronic record and that is usedto identify the signatory in relation to the electronicrecord and to indicate the carrier’s authorization of theelectronic record.

“8.2.4 Omission of required contents from the con-tract particulars

The absence of one or more of the contract particularsreferred to in article 8.2.1, or the inaccuracy of one ormore of those particulars, does not of itself affect thelegal character or validity of the transport document orof the electronic record.

“8.3 Qualifying the description of the goods in thecontract particulars

“8.3.1 Under the following circumstances, the carrier,if acting in good faith when issuing a transport docu-ment or an electronic record, may qualify the informa-tion mentioned in article 8.2.1 (b) or 8.2.1 (c) with anappropriate clause therein to indicate that the carrierdoes not assume responsibility for the accuracy of theinformation furnished by the shipper:

(a) For non-containerized goods

(i) If the carrier can show that it had no rea-sonable means of checking the informa-tion furnished by the shipper, it mayinclude an appropriate qualifying clausein the contract particulars, or

(ii) If the carrier reasonably considers theinformation furnished by the shipper tobe inaccurate, it may include a clauseproviding what it reasonably considersaccurate information;

(b) For goods delivered to the carrier in a closedcontainer, the carrier may include an appropriate quali-fying clause in the contract particulars with respect to

(i) The leading marks on the goods insidethe container, or

(ii) The number of packages, the number ofpieces, or the quantity of the goods insidethe container,

unless the carrier or a performing party in fact inspectsthe goods inside the container or otherwise has actualknowledge of the contents of the container;

(c) For goods delivered to the carrier or a per-forming party in a closed container, the carrier mayqualify any statement of the weight of goods or theweight of a container and its contents with an explicitstatement that the carrier has not weighed the con-tainer if

(i) The carrier can show that neither the car-rier nor a performing party weighed thecontainer, and

(ii) The shipper and the carrier did not agreeprior to the shipment that the containerwould be weighed and the weight wouldbe included in the contract particulars.

“8.3.2 Reasonable means of checking

For purposes of article 8.3.1:

(a) A “reasonable means of checking” must be notonly physically practicable but also commercially rea-sonable;

(b) A carrier acts in “good faith” when issuing atransport document or an electronic record if

(i) The carrier has no actual knowledge thatany material statement in the transportdocument or electronic record is materi-ally false or misleading, and

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Part Two. Studies and reports on specific subjects 397

(ii) The carrier has not intentionally failed todetermine whether a material statement inthe transport document or electronicrecord is materially false or misleadingbecause it believes that the statement islikely to be false or misleading;

(c) The burden of proving whether a carrier actedin good faith when issuing a transport document or anelectronic record is on the party claiming that the car-rier did not act in good faith.

“8.3.3 Prima facie and conclusive evidence

Except as otherwise provided in article 8.3.4, a trans-port document or an electronic record that evidencesreceipt of the goods is

(a) Prima facie evidence of the carrier’s receipt ofthe goods as described in the contract particulars; and

(b) Conclusive evidence of the carrier’s receipt ofthe goods as described in the contract particulars

[(i) If a negotiable transport document or anegotiable electronic record has beentransferred to a third party acting in goodfaith [or

(ii) If a person acting in good faith has paidvalue or otherwise altered its position inreliance on the description of the goodsin the contract particulars].

“8.3.4 Effect of qualifying clauses

If the contract particulars include a qualifying clause thatcomplies with the requirements of article 8.3.1, then thetransport document will not constitute prima facie orconclusive evidence under article 8.3.3 to the extent thatthe description of the goods is qualified by the clause.

“8.4 Deficiencies in the contract particulars

“8.4.1 Date

If the contract particulars include the date but fail toindicate the significance thereof, then the date is con-sidered to be:

(a) If the contract particulars indicate that thegoods have been loaded on board a vessel, the date onwhich all of the goods indicated in the transport docu-ment or electronic record were loaded on board thevessel; or

(b) If the contract particulars do not indicate thatthe goods have been loaded on board a vessel, the dateon which the carrier or a performing party received thegoods.

“[8.4.2 Failure to identify the carrier

If the contract particulars fail to identify the carrier butindicate that the goods have been loaded on board anamed vessel, then the registered owner of the vessel ispresumed to be the carrier. The registered owner candefeat this presumption if it proves that the ship wasunder a bareboat charter at the time of the carriagewhich transfers contractual responsibility for the car-

riage of the goods to an identified bareboat charterer.[If the registered owner defeats the presumption that itis the carrier under this article, then the bareboat char-terer at the time of the carriage is presumed to be thecarrier in the same manner as that in which the regis-tered owner was presumed to be the carrier.]]

“8.4.3 Apparent order and condition

If the contract particulars fail to state the apparent orderand condition of the goods at the time the carrier or aperforming party receives them from the shipper, thetransport document or electronic record is either primafacie or conclusive evidence under article 8.3.3, as thecase may be, that the goods were in apparent good orderand condition at the time the shipper delivered them tothe carrier or a performing party”.

(a) Paragraph 8.1

25. The substance of paragraph 8.1 was found to be gen-erally acceptable. It was pointed out that a purpose of para-graph 8.1 was to recall the traditional distinction betweenthe evidentiary function served by a transport document asa receipt for the goods and the commercial function servedby a negotiable transport document as representing thegoods. Those two functions were reflected in subparagraphs(i) and (ii) respectively. With respect to subparagraph (i), asuggestion was made that the words “transport document”should be replaced by the word “receipt”. While the term“transport document” was generally preferred for reasonsof consistency in terminology, it was acknowledged that,since not all transport documents as defined under para-graph 1.20 served the function of evidencing receipt of thegoods by the carrier, it was important to make it abundantlyclear that, under subparagraph 8.1 (i), the transport docu-ment should serve the receipt function. Subparagraph (ii)was found particularly useful as a reflection of the practiceunder which the parties might agree to use non-negotiabletransport documents. It was recalled that a third function ofa transport document was traditionally to record the rightsand obligations of the parties to the contract of carriage. Itwas not suggested that this contractual function should bereflected in the text of draft article 8.

26. A question was raised as to whether paragraph 8.1might interfere with various existing practices regarding theuse of specific types of transport documents such as“received for shipment” and “shipped on board” bills oflading. Concern was expressed that the draft instrumentshould not affect such practices, in particular in the con-text of documentary credit. It was stated in response thatparagraph 8.1 had been drafted broadly to encompass anytype of transport document that might be used in practice,including any specific type of bill of lading or even cer-tain types of non-negotiable waybills. Thus the draft instru-ment remained neutral, in particular with respect todocumentary credit practices.

(b) Paragraph 8.2

(i) Subparagraph 8.2.1

27. As a matter of drafting, it was suggested that thewords “as furnished by the shipper before the carrier or a

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performing party receives the goods” contained in sub-paragraph 8.2.1 (c) (ii) should also apply to subparagraph8.2.1 (c) (i). That suggestion was generally accepted by theWorking Group.

28. In that connection, a concern was expressed that thewords “as furnished by the shipper before the carrier or aperforming party receives the goods” might be read as plac-ing a heavy liability on the shipper, particularly if article 8was to be read in combination with paragraph 7.4. It waspointed out in response that subparagraph 8.2.1 was not tobe read as creating any liability for the shipper under draftarticle 7. However, before issuing the transport document,the carrier should have an opportunity to verify the infor-mation provided by the shipper, a reason why that infor-mation should be provided before the goods were loadedon a vessel.

29. Another concern was expressed that, in certain prac-tical cases, the combination of subparagraphs 8.2.1 (c) (i)and (ii) as cumulative elements to be included in the trans-port document might be excessively burdensome for thecarrier. The example was given of a shipment of bricks,where it might be superfluous to indicate both the weightunder subparagraph 8.2.1 (c) (ii) and the quantity undersubparagraph 8.2.1 (c) (i). It was pointed out in responsethat, while the list of contract particulars contained in sub-paragraph 8.2.1 was more extensive than correspondingprovisions in existing international instruments such as theHague Rules, such contract particulars were to appear inthe transport document only if the shipper so requested.Thus, subparagraph 8.2.1 was not to be regarded as estab-lishing a general obligation on either the shipper or the car-rier but rather as creating a way for the carrier to meet thecommercial needs of the shipper.

(ii) Subparagraph 8.2.2

30. It was recalled that subparagraph 8.2.2 provided bothan objective and a subjective component to the phrase“apparent order and condition of the goods”. Under sub-paragraph 8.2.2 (a), the carrier had no duty to inspect thegoods beyond what would be revealed by a reasonableexternal inspection of the goods as packaged at the timethe consignor delivered them to the carrier or a perform-ing party. Under subparagraph 8.2.2 (b), however, if thecarrier or a performing party actually carried out a morethorough inspection (e.g. inspecting the contents of pack-ages or opening a closed container), then the carrier wasresponsible for whatever such an inspection should haverevealed (see A/CN.9/WG.III/WP.21, paras. 135-136).

31. The Working Group found the substance of sub-paragraph 8.2.2 to be generally acceptable.

(iii) Subparagraph 8.2.3

32. It was recalled that subparagraph 8.2.3 (a) wasintended to reflect the provisions of the Uniform Customsand Practices for Documentary Credits (UCP 500) pub-lished by the International Chamber of Commerce, underwhich a transport document should be signed, and an elec-tronic record should be comparably authenticated.Subparagraph 8.2.3 (b) was intended provide a definition

of electronic signature based on the UNCITRAL ModelLaw on Electronic Signatures 2001, as specifically adjustedto bring its intended meaning within the scope of this pro-vision. In that context, the Working Group agreed that thedraft provision might need to be further discussed at a laterstage with a view to verify its consistency with the ModelLaw. Subject to that agreement, the substance of subpara-graph 8.2.3 was found to be generally acceptable.

(iv) Subparagraph 8.2.4

33. It was recalled that subparagraph 8.2.4 gave effect tothe view that the validity of the transport document or elec-tronic record did not depend on the inclusion of the partic-ulars that should be included. For example, an undated billof lading would still be valid, even though a bill of ladingshould be dated. Subparagraph 8.2.4 also extends the ration-ale behind that view to hold that the validity of the trans-port document or electronic record did not depend on theaccuracy of the contract particulars that should be included.Under this extension, for example, a misdated bill of ladingwould still be valid, even though a bill of lading should beaccurately dated (see A/CN.9/WG.III/WP.21, para. 138).

34. The Working Group found the substance of sub-paragraph 8.2.4 to be generally acceptable.

(c) Paragraph 8.3

(i) Subparagraph 8.3.1

35. It was recalled that subparagraph 8.3.1 generally cor-responded to existing law and practice in most countries(A/CN.9/WG.III/WP.21, para. 140). It was pointed out that,article III.3 of the Hague and Hague-Visby Rules containedlanguage excusing the carrier from including otherwiserequired information in the transport document if the car-rier had no reasonable means of verifying that the infor-mation furnished by the shipper accurately represented thegoods. However, for commercial or other reasons, a car-rier would typically prefer to issue a transport documentcontaining a description of the goods, and protect itself byqualifying the description of the goods. Subparagraph 8.3.1was intended to address that issue through a variety of rulesto reflect the fact that commercial shipments could occurin different forms.

36. Various suggestions were made regarding possibleimprovements of subparagraph 8.3.1. One suggestion,aimed at broadening the freedom of the carrier to qualifythe information contained in the transport document, wasthat the opening words of the paragraph, which referred tothe information mentioned in subparagraphs 8.2.1 (b) and8.2.1 (c) should also mention the information mentioned insubparagraph 8.2.1 (a). Another suggestion to the sameeffect was that language along the lines of subparagraph8.3.1 (a) (ii) should be included also in subparagraph 8.3.1 (b) to address the situation where the carrier reason-ably considers the information furnished by the shipperregarding the contents of the container to be inaccurate.With respect to subparagraph 8.3.1 (c), it was suggestedthat appropriate wording should be added to cover the casewhere there was no commercially reasonable possibility toweigh the container.

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37. Additional suggestions were made to complement thecurrent provisions contained in subparagraph 8.3.1. Onesuggestion was that the carrier who decided to qualify theinformation mentioned on the transport document shouldbe required to give the reasons for such qualification. Theeffect of such an obligation would be to avoid the use ofgeneral clauses along the lines of “said to be” or “said tocontain”. Another suggestion was that the draft instrumentshould deal with the situation where the carrier acceptednot to qualify the description of the goods, for example notto interfere with a documentary credit, but obtained a guar-antee from the shipper. It was stated that it should be madeclear that such a guarantee should not affect the positionof third parties. Yet another suggestion was that, where thecarrier acting in bad faith had voluntarily avoided to qual-ify the information in the contract particulars, such con-duct should be sanctioned and no limitation of liabilitycould be invoked by the carrier.

38. Questions were raised as to the standard of proof tobe applied in the context of subparagraph 8.3.1 (c) (i). Itwas pointed out that, depending on that standard of proof,it might be difficult for the carrier to demonstrate that aperforming party had not weighed the container. It wasexplained in response that the provision was not intendedto create a very high standard of proof and that there gen-erally existed records of the use of weighing facilities inports.

39. A more general question was raised regarding thepossible interplay between the draft instrument and anydomestic law that would prohibit the use of certain quali-fications such as “said to contain” clauses. It was stated inresponse that the draft instrument was not intended to inter-fere with such domestic law.

40. Another general question was raised regarding themanner in which the transport document would reflect apossible conflict between the information provided by theshipper and the assessment by the carrier of what consti-tuted accurate information. It was stated in response thatthe shipper should always be entitled to a document reflect-ing the information it had provided. Should the carrier dis-agree with that information, it should also reflect its ownassessment in the contract particulars.

41. After discussion, the Working Group came to the pro-visional conclusion that the above comments and sugges-tions should be borne in mind when preparing a reviseddraft of subparagraph 8.3.1 for continuation of the discus-sion at a future session.

(ii) Subparagraph 8.3.2

42. It was noted that this provision was intended to clar-ify the meaning of the terms used in subparagraph 8.3.1.It was pointed out that subparagraph 8.3.2 (a) clarified that“reasonable means of checking” in subparagraph 8.3.1must be both physically practicable and commercially rea-sonable, and that subparagraph 8.3.2 (b) set out that thecarrier acted in “good faith” when issuing a transport doc-ument or an electronic record if the carrier had no actualknowledge that any statement was materially false or mis-leading and that the carrier had not intentionally failed to

make such a determination because it believed the state-ment was likely to be false or misleading. It was also notedthat subparagraph 8.3.2 (c) assumed that the carrier wasacting in good faith unless otherwise proven. In responseto a question regarding the situation where a letter ofindemnity was issued by the shipper, who requested a cleanbill of lading even where the goods were damaged in orderto fulfil the requirements of a bank, it was noted that sub-paragraph 8.3.2 did not address the issue of the enforce-ability of a letter of indemnity.

43. The Working Group found the substance of sub-paragraph 8.3.2 to be generally acceptable.

(iii) Subparagraph 8.3.3

44. It was explained to the Working Group that the con-cept of a transport document or an electronic record thatevidences receipt of the goods constitutes prima facie andconclusive evidence of the carrier’s receipt of the goodsas described in the contract particulars was a conceptincluded in the Hague-Visby and Hamburg Rules. It wasnoted that subparagraph 8.3.3 (a) set out this principle withrespect to prima facie evidence, whilst subparagraph 8.3.3 (b) set it out with respect to conclusive evidence. Itwas suggested that subparagraph 8.3.3 (b) (i) was not con-troversial because it dealt with the case of a negotiabletransport document or a negotiable electronic record thathad been transferred to a third party in good faith. It wasfurther suggested that subparagraph 8.3.3 (b) (ii) was morecontroversial, and its inclusion in the draft instrumentwould have to be considered carefully, since it couldinclude the situation where there was good faith relianceon the description of goods in a non-negotiable transportdocument.

45. Opposition was expressed to the inclusion of sub-paragraph 8.3.3 (b) (ii) because it introduced a novel usefor non-negotiable documents that was unknown inEuropean law. It was suggested that this approachamounted to creating a new category of document that wassomewhere between a negotiable and a non-negotiable doc-ument, and that this was an unnecessary complication forthe draft instrument. Further concerns were expressed withrespect to the lack of clarity of this draft article.

46. Some support was expressed for the retention of sub-paragraph 8.3.3 (b) (ii) and the removal of the squarebrackets surrounding it in the draft instrument, since it wassuggested that the draft article reflected current trade prac-tice, where an estimated 50 per cent of letters of creditwere being paid on cargo receipts. It was urged that thelaw should keep pace with these changes.

47. It was suggested that a conclusive evidence rule withrespect to non-negotiable documents already existed withrespect to sea waybills in article 5 of the CMI UniformRules for Sea Waybills, and that since the concept was notnovel, subparagraph 8.3.3 (b) (ii) should be retained.However, it was also noted that the requirements for thisdraft provision that a person acting in good faith must havepaid value or otherwise altered its position in reliance onthe description of the goods in the contract particulars wasan unusual concept in civil law countries.

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48. It was suggested that in spite of the problems thatwere noted with respect to the possible creation of a newcategory of document, the advantages of including a pro-vision such as subparagraph 8.3.3 (b) (ii) could outweighits disadvantages. The prevailing view in the WorkingGroup was to retain subparagraph 8.3.3 (b) (ii) in squarebrackets in the draft instrument, and to request the secre-tariat to make the necessary modifications to it with dueconsideration being given to the views expressed and thesuggestions made.

(iv) Subparagraph 8.3.4

49. The Working Group heard that subparagraph 8.3.4was a clarification of subparagraph 8.3.3, that stated thatif there was a qualifying clause in the transport documentthat complied with the requirements of subparagraph 8.3.1,then the transport document, whether it was negotiable ornon-negotiable, was not prima facie or conclusive evidencepursuant to subparagraph 8.3.3.

50. It was suggested that subparagraph 8.3.4 was toomuch in favour of the carrier, in allowing the carrier torely upon the qualifying clause regardless of the conditionin which it delivered the goods. It was noted that while itwas appropriate to allow the carrier to rely upon the qual-ifying clause with respect to the situation where there wasdelivery of an unopened container, in the situation wherethe carrier delivered a damaged or opened container, andcould not establish the chain of custody, the carrier shouldnot be entitled to benefit from the qualifying clause. It wassuggested that subparagraph 8.3.4 should be redrafted inaccordance with paragraphs 153 and 154 of the commen-tary on the draft instrument (A/CN.9/WG.III/WP.21).

51. Another view was that the validity of the qualifyingclause should not depend upon the delivery of an undam-aged container by the carrier, and that the issue of the lia-bility of the carrier should not be confused with the issueof the description of the goods and the weight and con-tents of the container. It was emphasized that there was noconnection between the qualifying clause and the condi-tion of the container upon delivery, and that the carrier wasnot automatically relieved of responsibility by the existenceof a qualifying clause in the transport document.

52. While some support was expressed for redrafting sub-paragraph 8.3.4, the prevailing view was that it should beretained in substance for continuation of the discussion ata future session.

(d) Paragraph 8.4

(i) Subparagraph 8.4.1

53. The Working Group heard that subparagraph 8.4.1regarding the date operated only if the date was insertedinto the contract particulars without any statement of its sig-nificance. It was explained that this provision was insertedinto the draft instrument in order to deal with problems thathave arisen with respect to incorrectly dated bills of lading.

54. It was noted by way of general comment that theterms “transport document or electronic record” are

repeated throughout the provisions of chapter 8 of thedraft instrument, and that the repetition of this phraseemphasized the distinction between transport documentsand electronic records, rather than focusing on the con-tent of the document, as intended in the mandate of theWorking Group. It was suggested that care should betaken to avoid this problem when reviewing the provi-sions in chapter 8 in light of existing instruments on elec-tronic commerce.

55. The Working Group found the substance of sub-paragraph 8.4.1 to be generally acceptable, taking intoaccount the issue raised with respect to electronic records.

(ii) Subparagraph 8.4.2

56. The Working Group heard that whilst paragraph 8.2provided that the contract particulars should contain thename and address of the carrier, identity of carrier clauseshave caused problems in some jurisdictions. It wasexplained that subparagraph 8.4.2 was intended to remedythis situation by providing that where the contract partic-ulars fail to identify the carrier, but name a vessel, thenthe registered owner of the vessel is presumed to be thecarrier, unless the owner proves that the ship was undera bareboat charter at the time of the carriage. It was notedthat inclusion of such an article amounted to a policy deci-sion that was controversial in some quarters. It was fur-ther noted that if the Working Group agreed to include aprovision such as subparagraph 8.4.2, a further decisionwould have to be made with respect to the last sentenceof the draft article, which was in additional square brack-ets, and which sets out the additional presumption thatwhere the registered owner rebuts the presumption that itis the carrier, the bareboat charterer is presumed to be thecarrier.

57. Opposition was expressed to the approach taken inthis draft article, based upon the view that the registeredowner of the vessel should not play a role in the draftinstrument, but instead should have responsibility in con-ventions on liability where third parties were involved. Itwas also suggested that a party who was unrelated to thecontract should not, in some situations, become liable as aresult of it, and that a bareboat charterer should not beimplicated as a result of a contract of carriage.

58. The view was expressed that a provision such as sub-paragraph 8.4.2 was both important and justified, particu-larly since, in practice, the issue of identifying the carrieris key when establishing liability. Support for the draft arti-cle was expressed based on its clarity, and the fact that itsimply raised a presumption, rather than dictated a rigidrule. It was noted that there could be additional problemswith the draft article, such as where there was a consor-tium of carriers, but that overall, the principle embodied inthe draft article filled a gap, and deserved the support andfurther examination of the Working Group. It was alsonoted that the inclusion of non-contracting parties was nota novel idea, since many jurisdictions already create a lia-bility for registered owners on the basis of maritime liensfor cargo claims. Another suggestion was made to createan irrebuttable presumption by retaining the first sentenceand by deleting the final two sentences.

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59. Further, concerns were expressed that a provisionsuch as subparagraph 5.4.2 could create further uncertaintybecause its relationship with various case laws as to theidentity of the carrier in some jurisdictions is not clear.Reference was made to case law that put emphasis on theheading of the transport document when it did not includethe carrier’s name on its face or which imposed liabilityon more than one carrier for one bill of lading, or on anapparent carrier when the document failed to identifyclearly the carrier. A further reservation was expressed withrespect to the second sentence of subparagraph 8.4.2, pur-suant to which it was unclear whether this was the onlyway through which the registered owner could rebut thepresumption set out therein. It was suggested that the reg-istered owner should be free to introduce any evidence thatdefeats the presumption that it was the carrier. A note ofcaution was also voiced with respect to the possibility thatsince there is no requirement that the carrier provide itsproper name and address, the carrier may have an incen-tive to intentionally fail to include that information, thusleaving the registered owner of the vessel in the positionof the carrier, and potentially subject to liability. Other con-cerns were expressed regarding which document should beused to establish the identity of the carrier. It was alsonoted that the working assumption with respect to the draftinstrument was that it was to cover door-to-door carriage,and that the presumption contained in the draft article couldbe quite inappropriate in the case where, for example, thecarrier that failed to identify itself was a non-vessel oper-ating carrier.

60. It was also suggested that parties to a contract shouldbe more vigilant regarding the identity of their counter-parties. It was noted that the principle embodied by thedraft article was important to retain on behalf of cargoowners. The prevailing view in the Working Group wasthat subparagraph 8.4.2 identified a serious problem thatmust be treated in the draft instrument, but that the matterrequired further study with respect to other means throughwhich to combat the problem, and that the provision asdrafted was not yet satisfactory. The Working Groupdecided to keep subparagraph 8.4.2 in square brackets inthe draft instrument, and to discuss it in greater detail at afuture date.

(iii) Subparagraph 8.4.3

61. The Working Group found the substance of sub-paragraph 8.4.3 to be generally acceptable.

2. Draft article 10 (Delivery to the consignee)

62. The text of draft article 10 as considered by theWorking Group was as follows:

“10.1 When the goods have arrived at their destina-tion, the consignee that exercises any of its rights underthe contract of carriage shall accept delivery of thegoods at the time and location mentioned in article 4.1.3.If the consignee, in breach of this obligation, leaves thegoods in the custody of the carrier or the performingparty, the carrier or performing party will act in respect

of the goods as an agent of the consignee, but withoutany liability for loss or damage to these goods, unlessthe loss or damage results from a personal act or omis-sion of the carrier done with the intent to cause suchloss or damage, or recklessly, with the knowledge thatsuch loss or damage probably would result.

“10.2 On request of the carrier or the performingparty that delivers the goods, the consignee shall con-firm delivery of the goods by the carrier or the per-forming party in the manner that is customary at theplace of destination.

“10.3.1 If no negotiable transport document or no nego-tiable electronic record has been issued:

(i) The controlling party shall advise the car-rier, prior to or upon the arrival of thegoods at the place of destination, of thename of the consignee;

(ii) The carrier shall deliver the goods at thetime and location mentioned in article4.1.3 to the consignee upon the con-signee’s production of proper identifica-tion.

“10.3.2 If a negotiable transport document or a nego-tiable electronic record has been issued, the followingprovisions apply:

(a)

(i) Without prejudice to the provisions ofarticle 10.1 the holder of a negotiabletransport document is entitled to claimdelivery of the goods from the carrierafter they have arrived at the place ofdestination, in which event the carriershall deliver the goods at the time andlocation mentioned in article 4.1.3 tosuch holder upon surrender of the nego-tiable transport document. In the eventthat more than one original of the nego-tiable transport document has beenissued, the surrender of one original willsuffice and the other originals cease tohave any effect or validity;

(ii) Without prejudice to the provisions ofarticle 10.1 the holder of a negotiableelectronic record is entitled to claimdelivery of the goods from the carrierafter they have arrived at the place ofdestination, in which event the carriershall deliver the goods at the time andlocation mentioned in article 4.1.3 tosuch holder if it demonstrates in accor-dance with the rules of procedure men-tioned in article 2.4 that it is the holderof the electronic record. Upon such deliv-ery, the electronic record ceases to haveany effect or validity;

(b) If the holder does not claim delivery of thegoods from the carrier after their arrival at the place ofdestination, the carrier shall advise accordingly the con-

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trolling party or, if, after reasonable effort, it is unableto identify or find the controlling party, the shipper. Insuch event the controlling party or shipper shall give thecarrier instructions in respect of the delivery of thegoods. If the carrier is unable, after reasonable effort,to identify and find the controlling party or the shipper,then the person mentioned in article 7.7 is deemed tobe the shipper for purposes of this paragraph;

(c) Notwithstanding the provision of paragraph (d)of this article, a carrier that delivers the goods uponinstruction of the controlling party or the shipper inaccordance with paragraph (b) of this article is dis-charged from its obligation to deliver the goods underthe contract of carriage [to the holder], irrespective ofwhether the negotiable transport document has been sur-rendered to it, or the person claiming delivery under anegotiable electronic record has demonstrated, in accor-dance with the rules of procedure referred to in article2.4, that it is the holder;

(d) If the delivery of the goods by the carrier atthe place of destination takes place without the nego-tiable transport document being surrendered to the car-rier or without the demonstration referred to inparagraph (a) (ii) above, a holder who becomes a holderafter the carrier has delivered the goods to the con-signee or to a person entitled to these goods pursuantto any contractual or other arrangement other than thecontract of carriage will only acquire rights under thecontract of carriage if the passing of the negotiabletransport document or negotiable electronic record waseffected in pursuance of contractual or other arrange-ments made before such delivery of the goods, unlesssuch holder at the time it became holder did not haveor could not reasonably have had knowledge of suchdelivery;

(e) If the controlling party or the shipper does notgive the carrier adequate instructions as to the deliveryof the goods, the carrier is entitled, without prejudice toany other remedies that a carrier may have against suchcontrolling party or shipper, to exercise its rights underarticle 10.4.

“10.4.1 (a) If the goods have arrived at the place of des-tination and

(i) The goods are not actually taken over bythe consignee at the time and locationmentioned in article 4.1.3 and no expressor implied contract has been concludedbetween the carrier or the performingparty and the consignee that succeeds tothe contract of carriage; or

(ii) The carrier is not allowed under applica-ble law or regulations to deliver thegoods to the consignee,

then the carrier is entitled to exercise the rights andremedies mentioned in paragraph (b);

(b) Under the circumstances specified in paragraph(a), the carrier is entitled, at the risk and account of theperson entitled to the goods, to exercise some or all ofthe following rights and remedies:

(i) To store the goods at any suitable place;

(ii) To unpack the goods if they are packedin containers, or to act otherwise inrespect of the goods as, in the opinion ofthe carrier, circumstances reasonably mayrequire; or

(iii) To cause the goods to be sold in accor-dance with the practices, or the require-ments under the law or regulations, of theplace where the goods are located at thetime;

(c) If the goods are sold under paragraph (b) (iii),the carrier may deduct from the proceeds of the sale theamount necessary to:

(i) Pay or reimburse any costs incurred inrespect of the goods; and

(ii) Pay or reimburse the carrier any otheramounts that are referred to in article 9.5 (a) and that are due to the carrier.

Subject to these deductions, the carrier shall hold theproceeds of the sale for the benefit of the person enti-tled to the goods.

“10.4.2 The carrier is only allowed to exercise the rightreferred to in article 10.4.1 after it has given notice tothe person stated in the contract particulars as the personto be notified of the arrival of the goods at the place ofdestination, if any, or to the consignee, or otherwise tothe controlling party or the shipper that the goods havearrived at the place of destination.

“10.4.3 When exercising its rights referred to in article10.4.1, the carrier or performing party acts as an agentof the person entitled to the goods, but without any lia-bility for loss or damage to these goods, unless the lossor damage results from [a personal act or omission ofthe carrier done with the intent to cause such loss ordamage, or recklessly, with the knowledge that such lossor damage probably would result]”.

(a) General remarks

63. The Working Group heard that draft article 10 con-sisted mainly of innovative material intended to set outwhat constituted delivery, and to deal with two problemsthat were pressing and frequent in daily practice. The firstproblem that was encountered frequently was that goodswere not claimed by the consignee, and the second wasthat the consignee could demand delivery, but the nego-tiable transport document was not available to be surren-dered to the carrier. It was noted that paragraph 10.1 statedthat when the goods had arrived at their destination, theconsignee had to accept delivery if the consignee had exer-cised any of its rights under the contract of carriage. It wasstated that paragraph 10.2 was uncontroversial. Subpara-graph 10.3.1 dealt with the situation where, if no nego-tiable document was available, the carrier had to deliverthe goods to the consignee upon production of proper iden-tification. It was explained that subparagraph 10.3.2 waspotentially the most controversial aspect of this provision,since it dealt with the case of the negotiable transport doc-

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ument. Subparagraph 10.3.2 (a) (i) sets out the traditionalpractice where the holder of a negotiable instrument wasentitled to claim delivery of the goods, at which point thecarrier had to deliver the goods to the holder upon sur-render of the negotiable instrument. It was noted that sub-paragraphs 10.3.2 (c) and (d) were intended to deal withthe non-production of the transport document or bill oflading at the destination. The Working Group heard thatthese draft provisions were an attempt to remedy a long-standing problem to which there was no simple solution,and that the draft provisions attempted to strike a fair bal-ance between the rights of all of the parties involved.

64. It was suggested that paragraph 10.1 could beapproved in principle, since it contained provisions thatwere comparable to other texts, such as those that imposea liability regime on a warehouse manager or a bailee fortaking charge of the goods. A widely held view was that,while the various provisions in draft article 10 might needto be restructured and reordered in future versions of thedraft instrument, the substance of the draft article was gen-erally acceptable.

(b) Paragraph 10.1

65. Support was expressed for the principle that there bea provision in the draft instrument pursuant to which theconsignee was obliged to take delivery at the time andplace of delivery agreed in the contract of carriage, or inaccordance with trade practice, customs or usages. Thedraft provision was praised for attempting to strike a bal-ance between the interests of the shipper and of the car-rier, and for providing a flexible solution to some of theproblems associated with delivery. It was suggested thatparagraph 10.1 could look to additional sanctions on theconsignee in situations where the consignee was in breachof its obligation to accept delivery, such as the terminationof the contract.

66. However, a note of caution was raised with respectto the balance struck between cargo interests and the car-rier. It was suggested that paragraph 10.1 granted too broada set of rights to the carrier, in that the carrier bore noresponsibility for loss or damage to the goods unless it wascaused by the carrier’s intentional or reckless act or omis-sion. In response, it was stated that paragraph 10.1 wasintended to set out the basis for the carrier’s liability forloss or damage to the cargo in the situation where the car-rier was forced to act as a floating warehouse. Thus, itimposed a warehouseman’s level of care. By contrast, para-graph 10.4 was drafted using permissive language, and wasintended to provide the carrier with the entitlement to exer-cise certain rights, but those rights were circumscribed bycertain conditions included in the article to protect the con-signee.

67. A preference was expressed for the obligation toaccept delivery not to be made dependent upon the exer-cise of any rights by the consignee, but rather that it beunconditional. Further, concern was raised with respect tothe interaction between paragraphs 10.1 and 10.4, and itwas recommended that the relationship between the draftprovisions be clarified. A suggestion was made that para-graphs 10.1 and 10.4 could be merged. In order to reduce

the confusion caused by the interplay of paragraphs 10.1and 10.4, it was also suggested that the second sentence ofparagraph 10.1 be deleted, and that paragraph 10.4 be leftto stand on its own.

68. While general support was voiced for the principleembodied in paragraph 10.1, concerns were raised withrespect to the concept of “agent”. In some national legalregimes, the rights, obligations and responsibilities ofagents have been clearly set out, and it was suggested thatthe potential confusion generated in this regard could beavoided by deletion of the concept of agent in this draftprovision. However, the view was also expressed that thecharacterization of the carrier or performing party as agentof the consignee was important in order for the carrier toexercise power over the goods, and to avoid liability, pro-vided that no damage was caused and with an establishedlimit on inexcusable fault.

69. It was also suggested that paragraph 10.1 should beconsidered in light of the law of the sale of goods, whichdid not contain an unconditional obligation to take deliv-ery of the goods. The view was expressed, however, thatthe rule in this draft article was in accordance with theright of rejection pursuant to article 86 of the UnitedNations Convention on Contracts for the International Saleof Goods. It was cautioned that not all States were partiesto that convention, and that the provisions of the conven-tion were non-mandatory. It was suggested that this latterpoint was important since the obligation to accept deliveryunder paragraph 10.1 was a mandatory provision.

70. Concern was expressed that performing parties couldbecome liable through the act or omission of the carrierpursuant to the second sentence of paragraph 10.1. It wassuggested that this could be clarified with the addition ofthe phrase “or of the performing party” after the phrase“personal act or omission of the carrier”.

71. A risk of confusion was mentioned with respect tothe relationship between draft article 10 and draft article11 on right of control. It was suggested that this could beremedied by providing that the controlling party couldreplace the consignee only until the consignee exercised itsrights under the contract, after which the right of controlceased to exist.

72. After discussion, the Working Group requested thesecretariat to prepare a revised draft with due considera-tion being given to the views expressed and the sugges-tions made, and also to the need for consistency betweenthe various language versions.

(c) Paragraph 10.2

73. The Working Group found the substance of paragraph10.2 to be generally acceptable.

(d) Paragraph 10.3

(i) Subparagraph 10.3.1

74. The Working Group was reminded that subparagraph10.3.1 was intended to govern the situation where no nego-

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tiable transport document or electronic record had beenissued. It was suggested that provisions were drafted in aneven-handed fashion, where subparagraph 10.3.1 (i) statedthat the controlling party had to put the carrier in a posi-tion to be able to make delivery by providing it with theconsignee’s name, and subparagraph 10.3.1 (ii) providedthe corollary that the carrier had to deliver the goodsaccording to the agreement in the contract of carriage uponthe production of proper identification by the consignee.

75. It was suggested that this draft provision was con-fusing, since it could be read to imply that the carrier didnot know the identity of the consignee until the end of thecarriage. However, except where the controlling partywould change the consignee during the course of the car-riage, it was more likely that the carrier would know theidentity of the consignee from the outset. It was explainedthat subparagraph 10.3.1 was intended to set out the gen-eral obligation of the controlling party to put the carrier ina position where delivery could be effected. The sugges-tion was made that the Working Group should considerredrafting subparagraph 8.2.1 to include the name andaddress of the consignee in the contract particulars thatmust be put into the transport document.

76. A question was raised regarding what consequenceswould flow from the situation where the carrier did notfollow the rule set out in subparagraph 10.3.1 (ii). It wassuggested that this matter should be left to national law,and that subparagraph 10.3.1 (ii) should be revised byreferring to the carrier’s right to refuse delivery withoutthe production of proper identification, but that this shouldnot be made an obligation of the carrier.

77. The Working Group found the principles embodiedin subparagraph 10.3.1 to be generally acceptable. TheWorking Group requested the secretariat to prepare arevised draft with due consideration being given to theviews expressed and to the suggestions made.

(ii) Subparagraph 10.3.2

78. The Working Group was reminded that subparagraph10.3.2 considered delivery in the case of issued negotiabletransport documents, and that subparagraph 10.3.2 (a) (i)corresponded to the current practice, wherein the holder ofthe negotiable document had the right to claim delivery ofthe goods upon their arrival at the place of destination, andupon surrender of the negotiable document, the carrier hadthe obligation to deliver the goods. It was emphasized thatsubparagraph 10.3.2 (a) (ii), which referred to negotiableelectronic records, mirrored subparagraph 10.3.2 (a) (i)regarding negotiable documentary records, but that theholder of a negotiable electronic record had to demonstratein accordance with paragraph 2.4 that it was the holder. Itwas noted that paragraph 2.4 was fundamental to the oper-ation of the electronic system set out in the draft instru-ment. It was reiterated to the Working Group that in theevent the holder of the negotiable instrument did not claimdelivery, subparagraph 10.3.2 (b) provided a mechanismfor the carrier to put the controlling party, and failing it,the shipper, in a position to give the carrier instructionswith respect to the delivery of the goods. The WorkingGroup was reminded that subparagraph 10.3.2 (c) dis-

charged the carrier from the obligation to deliver the goodsunder the contract of carriage only, and not from its otherobligations. It was noted that subparagraph 10.3.2 (d)reduced the holder’s rights in certain circumstances, butthat the risk remained with the carrier if the transfer of thenegotiable instrument took place before the delivery. It waspointed out that subparagraph 10.3.2 was intended to pre-serve some of the risk on the part of the carrier, and toprovide an even-handed solution to the problems associ-ated with the failure of the holder of a negotiable transportdocument to claim delivery.

79. General support was expressed for the principleembodied in subparagraph 10.3.2 as a whole. Approvalwas expressed for the draft provision’s goal of solving animportant and practical problem with respect to the deliv-ery of cargo that has greatly troubled the shipping worldfor many years, both on the carrier and cargo sides of theissue. The Working Group welcomed a convention-basedsolution to the problem. It was noted that insurance coverfor the carrier was excluded by international group clubswhen the carrier delivered cargo without surrender of thetransport document, but it was acknowledged that it wasoften difficult for the consignee to obtain the negotiabletransport document prior to delivery of the goods. Supportwas expressed for providing protection to a carrier in suchcircumstances when the carrier had acted properly andprudently. It was generally agreed that this draft provi-sion provided a good basis from which to further refinethe text.

80. However, a note of caution was raised that theWorking Group would have to carefully examine the bal-ance of the different rights and obligations, and their con-sequences, amongst the parties, in order to strike the rightlevel and reach a workable solution.

81. The Working Group found the substance of sub-paragraphs 10.3.2 (a) (i) and (ii) to be generally accept-able.

82. The suggestion was made with respect to subpara-graph 10.3.2 (b), that the carrier should have the obliga-tion of accepting the negotiable transport document, andthat if the holder of the document did not claim deliveryof the goods, then the carrier should have the obligationof notifying the controlling party. Support was expressedfor the suggestion that the principle expressed in subpara-graph 10.3.2 (b) should also apply in cases where no nego-tiable instrument had been issued. Further, it was suggestedthat this subparagraph of the draft article should set out theconsequences for the carrier when it failed to notify thecontrolling party, or the shipper, or the deemed shipperpursuant to paragraph 7.7. However, it was noted that ifthe carrier was not able to locate the consignee for deliv-ery, then subparagraph 10.3.2 (e) became operational, andthe carrier became entitled to exercise its rights under para-graph 10.4.

83. It was suggested that it was unclear how subpara-graphs 10.3.2 (c) and (d) worked together, since the holderin good faith in the latter provision acquired some legalprotection, but the holder’s legal position was unclear. Itwas requested that the drafting in this regard be clarified.

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84. Concerns were expressed with respect to subpara-graph 10.3.2 (d). It was suggested that this subparagraphshould be revised to provide greater protection for the thirdparty who became a holder of the negotiable transport doc-ument after delivery was made. However, it was explainedthat the draft article was based on two pillars: the contractof carriage between the carrier and the shipper pursuant towhich the carrier agreed to deliver goods to a certainperson, and the general principle that the carrier had torefer to its contractual counterpart for instructions, and thatthe shipper had to enable the carrier to perform its part ofthe contract. In response to a question regarding why sub-paragraph 10.3.2 was limited to negotiable transport doc-uments, unlike conventions such as the CMR thatconsidered this issue with respect to non-negotiable docu-ments, it was noted that the real problem arose where therewas a negotiable transport document, since in principle, thearrival of the goods at their destination exhausted the billof lading.

85. Further concerns were expressed with respect to theeffect that this provision might have on the principle foundin some national legal regimes that the burden of proof incases of a good faith holder did not lie with the party claim-ing good faith, but rather with the party attempting to proveotherwise. It was stated in response to this concern thatsubparagraph 10.3.2 was not intended to govern the burdenof proof, which would be dependent upon the circum-stances, and that the draft article was intended only to grantcertain protections to an innocent third party holder whenthere was no knowledge of delivery. Additional concernssuggested that the rule in this subparagraph could weakenthe bill of lading as a document of title, and the sugges-tion was made that a way to solve this problem might beto develop a system for electronic bills of lading that weremore easily and more quickly transferred.

86. It was explained that the regime that subparagraph10.3.2 was attempting to establish was an effort to reformthe whole system of negotiable transport documents, since,it was suggested, it was an area that was in urgent need ofrepair. It was further suggested that the whole system wasbeing undermined by the current trade practice wherebybills of lading were often not available upon delivery, andindustry had filled the gap with its own documentary solu-tions, such as with letters of indemnity. It was suggestedthat these practices had weakened the bill of lading, andthat this provision was attempting to restore the integrityand strength of the bill of lading system. It was also statedthat the problem of bills of lading being unavailable upondelivery was not a result of the speed with which a bill oflading travelled, but rather it was a function of the fact thatvoyages are often much shorter than time period requiredfor the holding of bills of lading by the financial institutions.

87. The Working Group heard that the “contractual orother arrangements” referred to in subparagraph 10.3.2 (d)referred not to letters of indemnity, but principally to con-tracts of sale, and particularly to those situations in whichthere was a series of buyers and sellers and the bill oflading could not travel quickly enough through the entireseries in order to be there at the time of delivery. The goalof this draft article was to protect the buyer in the serieswho received the bill of lading after the goods had been

delivered, so that the buyer could acquire certain contrac-tual rights under the bill of lading, even though deliverycould not be obtained. It was noted that this provision wasinspired by a similar provision in the 1992 Carriage ofGoods by Sea Act in the United Kingdom. The second sit-uation that subparagraph 10.3.2 (d) was intended to coverwas the situation where there is a bona fide acquirer of abill of lading.

88. Other concerns expressed with respect to subpara-graph 10.3.2 (d) were that the rights of the holder who wasin possession of the negotiable transport document afterdelivery had been effected should be more precisely estab-lished. Further, concern was expressed with respect to thelack of certainty of the phrase “could not reasonably havehad knowledge of such delivery”.

89. The view was expressed that subparagraph 10.3.2 (e)should be aligned with subparagraph 10.3.2 (b), by addingto it, after the opening phrase, “If the controlling party orshipper does not give the carrier adequate instructions asto the delivery of the goods”, the phrase, “or in cases whenthe controlling party or the shipper cannot be found”.Support was expressed for this suggestion, and it wasagreed that it would appear in square brackets in the nextversion of the draft instrument prepared by the secretariat.

90. The prevailing view in the Working Group was thatsubparagraph 10.3.2 represented an important and welcomeadvancement in establishing the balance of interests amongparties in the situation where the holder of a negotiabletransport document failed to claim delivery of the goods.It was decided that the Working Group would resume adetailed discussion of this draft article in the future, andthe secretariat was requested to prepare a redraft of the pro-vision, taking into account the concerns expressed.

(e) Paragraph 10.4

91. The Working Group heard that subparagraph 10.4.1stated the general principle setting out the entitlement ofthe carrier to exercise certain rights and remedies in situ-ations of failure of delivery involving negotiable and non-negotiable transport documents, and concerning consigneeswho had or had not exercised any rights pursuant to thecontract of carriage. It was noted that subparagraph10.4.1 (b) entitled the carrier to store, unpack or sell thegoods at the risk and account of the person entitled to them,and subparagraph 10.4.1 (c) entitled the carrier to deductthe costs incurred with respect to the goods, or payable tothe carrier under subparagraph 9.5 (a). It was explainedthat subparagraph 10.4.2 provided a safeguard to the con-signee in requiring the carrier to give notice to the con-signee, controlling party or shipper prior to exercising itsrights, and that subparagraph 10.4.3 made the carrier liablefor loss of or damage to the goods sustained intentionallyor recklessly by the carrier.

92. While there was general support for subparagraph10.4.1, concern was expressed with respect to the phrase“no express or implied contract has been concludedbetween the carrier or the performing party and the con-signee that succeeds to the contract of carriage”. It wassuggested that this phrase was confusing, since it could be

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seen to concern a contract for warehousing if it is one that“succeeds to the contract of carriage”, and the notion of“express or implied” was also said to be difficult to under-stand.

93. General approval was also expressed for the policyreflected in subparagraph 10.4.2, with the proviso that itwas unclear why only notice was necessary and why thecarrier did not have to wait for a response or reaction fromthe person receiving the notice before exercising its rights.

94. Concern with respect to the use of the term “agent”in subparagraph 10.4.3 was again echoed, and it was notedthat the third line of this draft article should read “loss ofor damage to these goods”. An additional note of cautionwas again raised with respect to the wording of the draftarticle that could be seen to suggest that the act or omis-sion of the carrier could result in the liability of the per-forming party. Support was expressed for the suggestionthat this latter point could be clarified with the addition ofthe phrase “or of the performing party” after the phrase“personal act or omission of the carrier”. Support was alsoexpressed for the suggestion that the word “personal”should be deleted from this draft provision in order tobroaden its scope.

95. In response to a question regarding the placement ofthe square brackets in subparagraph 10.4.3, it wasexplained that the square brackets were in the correct posi-tion, since the contents of the brackets were intended todefine the carrier’s liability, but the Working Group hadto decide at what level to determine that liability beforethe brackets could be removed. Some support was receivedfor the suggestion that the square brackets should beremoved from this draft provision.

96. It was noted that subparagraphs 10.4.3 and 10.4.1 hadsimilarities in their content, and it was suggested that theirlanguage should be adjusted to reflect those similarities.There was some support for this suggestion.

97. It was suggested that when the carrier exercised itsrights under subparagraph 10.4.1, it could result in costsin addition to those arising from loss or damage, such as,for example, expenses arising from warehousing or sale.In addition, it was noted that the value of the goods mightnot in some cases cover the costs incurred. The suggestionwas made that subparagraph 10.4.3 should include the ideathat when exercising its rights in subparagraph 10.4.1, “the carrier or performing party may cause costs and risks, and that these shall be borne by the person entitledto the goods”.

98. The suggestion was made that the reference in sub-paragraph 10.4.1 (c) (ii) to the deduction by the carrierfrom the proceeds of the sale, the amount necessary toreimburse the carrier pursuant to subparagraph 9.5 (a)should be placed in square brackets in light of the fact thatsubparagraph 9.5 (a) had not yet been agreed upon by theWorking Group. It was noted that in the conclusionsreached with respect to subparagraph 9.5 (a), the WorkingGroup had not decided to place that provision in squarebrackets (A/CN.9/525, para.123), and that it would be inap-propriate to do so in subparagraph 10.4.1 (c) (ii).

99. The Working Group expressed its general approvalwith paragraph 10.4, and requested the secretariat to pre-pare a revised draft with due consideration being given tothe views expressed and to the suggestions made.

3. Draft article 11 (Right of control)

100. The text of draft article 11 as considered by theWorking Group was as follows:

“11.1 The right of control of the goods means theright under the contract of carriage to give the carrierinstructions in respect of these goods during the periodof its responsibility as stated in article 4.1.1. Such rightto give the carrier instructions comprises rights to:

(i) Give or modify instructions in respect ofthe goods that do not constitute a varia-tion of the contract of carriage;

(ii) Demand delivery of the goods beforetheir arrival at the place of destination;

(iii) Replace the consignee by any otherperson including the controlling party;

(iv) Agree with the carrier to a variation ofthe contract of carriage.

“11.2 (a) When no negotiable transport documentor no negotiable electronic record is issued, the follow-ing rules apply:

(i) The shipper is the controlling party unlessthe shipper and consignee agree thatanother person is to be the controllingparty and the shipper so notifies the car-rier. The shipper and consignee may agreethat the consignee is the controlling party;

(ii) The controlling party is entitled to trans-fer the right of control to another person,upon which transfer the transferor losesits right of control. The transferor or thetransferee shall notify the carrier of suchtransfer;

(iii) When the controlling party exercises theright of control in accordance with article11.1, it shall produce proper identification;

(b) When a negotiable transport document isissued, the following rules apply:

(i) The holder or, in the event that more thanone original of the negotiable transportdocument is issued, the holder of all orig-inals is the sole controlling party;

(ii) The holder is entitled to transfer the rightof control by passing the negotiabletransport document to another person inaccordance with article 12.1, upon whichtransfer the transferor loses its right ofcontrol. If more than one original of thatdocument was issued, all originals mustbe passed in order to effect a transfer ofthe right of control;

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(iii) In order to exercise the right of control,the holder shall, if the carrier so requires,produce the negotiable transport docu-ment to the carrier. If more than one orig-inal of the document was issued, alloriginals shall be produced;

(iv) Any instructions as referred to in article11.1 (ii), (iii) and (iv) given by the holderupon becoming effective in accordancewith article 11.3 shall be stated on thenegotiable transport document;

(c) When a negotiable electronic record is issued:

(i) The holder is the sole controlling partyand is entitled to transfer the right of con-trol to another person by passing thenegotiable electronic record in accor-dance with the rules of procedure referredto in article 2.4, upon which transfer thetransferor loses its right of control;

(ii) In order to exercise the right of control,the holder shall, if the carrier so requires,demonstrate, in accordance with the rulesof procedure referred to in article 2.4, thatit is the holder;

(iii) Any instructions as referred to in article11.1 (ii), (iii) and (iv) given by the holderupon becoming effective in accordancewith article 11.3 shall be stated in theelectronic record;

(d) Notwithstanding the provisions of article 12.4, aperson, not being the shipper or the person referred to inarticle 7.7, that transferred the right of control withouthaving exercised that right, shall upon such transfer bedischarged from the liabilities imposed on the controllingparty by the contract of carriage or by this instrument.

“11.3 (a) Subject to the provisions of paragraphs (b)and (c) of this article, if any instruction mentioned inarticle 11.1 (i), (ii) or (iii):

(i) Can reasonably be executed according toits terms at the moment that the instruc-tion reaches the person to perform it;

(ii) Will not interfere with the normal oper-ations of the carrier or a performingparty; and

(iii) Would not cause any additional expense,loss, or damage to the carrier, the per-forming party, or any person interested inother goods carried on the same voyage,

then the carrier shall execute the instruction. If it is rea-sonably expected that one or more of the conditionsmentioned in subparagraphs (i), (ii) and (iii) of this para-graph is not satisfied, then the carrier is under no obli-gation to execute the instruction;

(b) In any event, the controlling party shall indem-nify the carrier, performing parties, and any persons inter-ested in other goods carried on the same voyage againstany additional expense, loss, or damage that may occuras a result of executing any instruction under this article;

(c) If a carrier

(i) Reasonably expects that the execution ofan instruction under this article will causeadditional expense, loss, or damage; and

(ii) Is nevertheless willing to execute theinstruction,

then the carrier is entitled to obtain security from thecontrolling party for the amount of the reasonablyexpected additional expense, loss, or damage.

“11.4 Goods that are delivered pursuant to an instruc-tion in accordance with article 11.1 (ii) are deemed tobe delivered at the place of destination and the provi-sions relating to such delivery, as laid down in article10, are applicable to such goods.

“11.5 If during the period that the carrier holds thegoods in its custody, the carrier reasonably requiresinformation, instructions, or documents in addition tothose referred to in article 7.3 (a), it shall seek suchinformation, instructions, or documents from the con-trolling party. If the carrier, after reasonable effort, isunable to identify and find the controlling party, or thecontrolling party is unable to provide adequate infor-mation, instructions, or documents to the carrier, theobligation to do so shall be on the shipper or the personreferred to in article 7.7.

“11.6 The provisions of articles 11.1 (ii) and (iii) and11.3 may be varied by agreement between the parties.The parties may also restrict or exclude the transfer-ability of the right of control referred to in article 11.2 (a) (ii). If a transport document or an electronicrecord is issued, any agreement referred to in this para-graph must be stated in the contract particulars.”

(a) General remarks

101. While it was generally felt that a provision regard-ing the right of control would constitute a welcome addi-tion to traditional maritime transport instruments, the viewsand concerns expressed in respect of draft article 11 at theninth session of the Working Group were reiterated (seeA/CN.9/510, paras. 55-56). It was pointed out that, whenrevising draft article 11, particular attention should begiven to avoiding inconsistencies among the various lan-guage versions.

(b) Paragraph 11.1

102. As a matter of drafting, a concern was expressedthat subparagraph (i) was unclear as to the exact mean-ing of the words “give or modify instructions … that donot constitute a variation of the contract”. It was pointedout that those words might be read as contradicting them-selves. While it was acknowledged that clearer draftingmight be needed, it was stated in response that a cleardistinction should be made in substance between whatwas referred to as a minor or “normal” modification ofinstructions given in respect of the goods, for example,regarding the temperature at which those goods should bestored, and a more substantive variation of the contractof carriage.

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103. With respect to subparagraph (iv), it was suggestedthat the provision should be deleted to preserve the uni-lateral nature of any instruction that might be given to thecarrier by the controlling party, as opposed to any modifi-cation regarding the terms of the contract of carriage, whichwould require the mutual agreement of the parties to thatcontract. In response, it was stated that, while subparagraph(iv) was not directly related to the exercise of the right ofcontrol, it served a particularly useful purpose in the def-inition of the right of control in that it made it clear thatthe controlling party should be regarded as the counterpartof the carrier during the voyage. It was stated that, althougha variation of the contract of carriage would normally benegotiated between the parties to that contract, the con-tractual shipper might not always be the best person forthe carrier to contact where an urgent decision had to bemade in respect of the goods. In such a case where urgentdialogue should take place between the carrier and theperson most interested in the goods, with the possible con-sequence that certain terms of the contract of carriagewould need to be modified, it was suggested that the con-trolling party would be the best person for the carrier tocontact.

104. After discussion, the Working Group found the sub-stance of paragraph 11.1 to be generally acceptable. Thesecretariat was requested to bear the above discussion inmind when preparing a revised draft of the provision forcontinuation of the discussion at a future session.

(c) Paragraph 11.2

(i) Subparagraph 11.2 (a)

105. With respect to subparagraph 11.2 (a) (i), a questionwas raised as to the reasons why the consent of the con-signee was required to designate a controlling party otherthan the shipper. It was observed that the consignee wasnot a party to the contract of carriage. It was also observedthat if the contract provided for the shipper to be the con-trolling party, subparagraph (ii) conferred to him the powerto unilaterally transfer his right of control to anotherperson. In response, a view was expressed that the desig-nation of the controlling party took place at a very earlystage in the carriage process or even before the conclusionof the contract of carriage. At that stage, designating thecontrolling party might be an important point for the pur-poses of the underlying sale transaction that took placebetween the shipper and the consignee. For that reason, itwas considered appropriate under that view to involve theconsignee in the designation of the controlling party.

106. With respect to the duration of the right of control, itwas observed that, under paragraph 11.2, the controllingparty remained in control of the goods until their final deliv-ery (see A/CN.9/WG.III/WP.21, para. 188). A question wasraised as to the reasons why the draft instrument departedfrom the CMI Uniform Rules for Sea Waybills in that,under the draft instrument, there was no automatic transferof the right of control from the shipper to the consignee assoon as the goods had arrived at their place of delivery. Itwas suggested in that context that the draft instrument mightcreate a difficult situation for the carrier if the right of con-trol could be transferred or otherwise exercised after the

goods had arrived at their place of delivery. It was thus pro-posed that the draft instrument should be made fully con-sistent with the CMI Uniform Rules for Sea Waybills. TheWorking Group took note of that proposal. It was explainedin response that, if there were such automatic transfer, themost common shipper’s instruction to the carrier, namelynot to deliver the goods before it had received the confir-mation from the shipper that payment of the goods had beeneffected, could be frustrated. For that reason, the durationof the right of control under the draft instrument had beenextended until the goods had been actually delivered. Moregenerally, it was pointed out that subparagraph 11.2 (a)dealt with the situation where no negotiable document hadbeen issued, a situation where flexibility in the transfer ofthe right of control was essential.

107. With respect to subparagraph 11.2 (a) (ii), concernwas expressed that, under existing law in certain countries,the transfer of the right of control could not be completedby a mere notice given by the transferee to the carrier. Itwas suggested that only notification from the transferorshould be acceptable as a means of informing the carrierof such a transfer. In that connection, a more general ques-tion was raised regarding the relationship between para-graph 11.2 and paragraph 12.3. It was suggested that theissue of the transfer of the right of control should be madesubject to applicable domestic law. While the WorkingGroup took note of that suggestion, it was generally feltthat no reference to domestic law should be made in draftarticle 11. It was agreed that various options might needto be discussed further as to which parties should notifythe carrier of a transfer of the right of control.

108. After discussion, the Working Group found the sub-stance of subparagraph 11.2 (a) to be generally acceptable.The secretariat was requested to bear the above discussionin mind when preparing a revised draft of the provision forcontinuation of the discussion at a future session.

(ii) Subparagraph 11.2 (b)

109. A concern was raised that the reference to the“holder” of the bill of lading might be unduly restrictiveand the person to whom the bill of lading was endorsedshould also be listed under subparagraph 11.2 (b). Inresponse, it was explained that the definition of “holder”under paragraph 1.12 sufficiently took care of that issue.

110. With respect to subparagraph 11.2 (b) (iii), the viewwas expressed that the draft provision did not sufficientlyaddress the consequences of the situation where the holderfailed to produce all copies of the negotiable document tothe carrier. It was suggested that the draft instrument shouldprovide that, in such a case, the carrier should be free torefuse to follow the instructions given by the controllingparty. It was also suggested that a similar indication shouldbe given under subparagraph 11.2 (c) (ii). The WorkingGroup was generally of the opinion that, should not allcopies of the bill of lading be produced by the controllingparty, the right of control could not be exercised. It wasfurther suggested that an exception should be made to therule under which the controlling party should produce allthe copies of the bill of lading to address the situationwhere one copy of the bill of lading was already in the

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hands of the carrier. The Working Group generally agreedwith that suggestion.

111. After discussion, subject to the above-mentionedviews and suggestions, the Working Group found the sub-stance of subparagraph 11.2 (b) to be generally acceptable.The secretariat was requested to bear the above discussionin mind when preparing a revised draft of the provision forcontinuation of the discussion at a future session.

(iii) Subparagraph 11.2 (c)

112. The Working Group deferred consideration of sub-paragraph 11.2 (c) until it had come to a more precise under-standing of the manner in which the issues of electroniccommerce would be addressed in the draft instrument.

(iv) Subparagraph 11.2 (d)

113. The Working Group found the substance of sub-paragraph 11.2 (d) to be generally acceptable.

(d) Paragraph 11.3

(i) Subparagraph 11.3 (a)

114. A question was raised regarding the relationshipbetween subparagraph 11.3 (a) (iii) and subparagraph 11.1 (ii). It was stated that, under subparagraph 11.1 (ii),the exercise of the right of control would inevitably involve“additional expenses”. However, such expenses resultingfrom delivery of the goods before their arrival at the placeof destination might range from acceptable minor expensesto less acceptable expenses from the perspective of the car-rier, for example, if the instructions received from the con-trolling party resulted in a change in the port of destinationof the vessel. To avoid a contradiction between those twoprovisions, it was suggested that either the carrier shouldbe under no obligation to execute the instruction receivedunder subparagraph 11.1 (ii) or that subparagraph 11.3 (a)(iii) should limit the obligation of the carrier to execute tocases where the instruction would not cause “significant”additional expenses.

115. A contrary view was expressed that the issue of“additional expenses” should not be dealt with under sub-paragraph 11.3 (a). It was pointed out that the matter wassufficiently covered by subparagraph 11.3 (c). Broad sup-port was expressed for the deletion of subparagraph 11.3(a) (iii).

116. A more general question was raised regarding thenature of the obligation incurred by the carrier under para-graph 11.3. As to whether the carrier should be under anobligation to perform (“obligation de résultat”) or under aless stringent obligation to undertake its best efforts to exe-cute the instructions received from the controlling party(“obligation de moyens”), the view was expressed that theformer, more stringent obligation, should be preferred.However, it was stated by the proponents of that view thatthe carrier should not bear the consequences of failure toperform if it could demonstrate that it had undertaken rea-sonable efforts to perform or that performance would havebeen unreasonable under the circumstances. As to the con-

sequences of the failure to perform, it was suggested thatthe draft instrument should be more specific, for example,by establishing the type of liability incurred by the carrierand the consequences of non-performance on the subse-quent execution of the contract.

117. After discussion, the Working Group generallyagreed that subparagraph 11.3 (a) should be recast to reflectthe above views and suggestions. It was agreed that thenew structure of the paragraph should address, first, thecircumstances under which the carrier should follow theinstructions received from the controlling party, then, theconsequences of execution or non-execution of suchinstructions. The secretariat was requested to prepare arevised draft of the provision, with possible variants, forcontinuation of the discussion at a future session.

(ii) Subparagraph 11.3 (b)

118. A question was raised regarding the meaning of thewords “the controlling party shall indemnify the carrier”.As already pointed out at the ninth session of the WorkingGroup (see A/CN.9/510, para. 56), it was recalled that thenotion of indemnity inappropriately suggested that the con-trolling party might be exposed to liability. It was sug-gested that the notion of “indemnity” should be replacedby that of “remuneration”, which was more in line withthe rightful exercise of its right of control by the control-ling party. Subject to that suggestion, the Working Groupfound the substance of subparagraph 11.3 (b) to be gener-ally acceptable.

(iii) Subparagraph 11.3 (c)

119. The Working Group found the substance of sub-paragraph 11.3 (c) to be generally acceptable.

(e) Paragraph 11.4

120. The Working Group found the substance of para-graph 11.4 to be generally acceptable.

(f) Paragraph 11.5

121. The view was expressed that, since subparagraph 7.3 (a) dealt with the obligation of the shipper to provideinformation to the carrier, that obligation should bereflected in paragraph 11.5. It was suggested that the endof the first sentence of paragraph 11.5 should be amendedto provide the carrier with the choice to seek instructionsfrom “the shipper or the controlling party” and not exclu-sively from “the controlling party”. It was generally felt,however, that the obligation for the shipper to provideinformation in cases where the controlling party could notbe identified was already contained in the second sentenceof paragraph 11.5. It was thus unnecessary to refer to theshipper in the first sentence. Furthermore, providing thecarrier with a choice to seek instructions from either theshipper or the controlling party would run counter to thepolicy that, during the carriage, the counterpart of the car-rier should be the controlling party. Consistent with thatpolicy, the shipper would only intervene as a substitute forthe controlling party if that party could not be located orwas unable to provide the requested information.

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122. Another view was that, in addition to the carrier, per-forming parties such as warehouses or stevedores who heldthe goods in their custody might need to seek instructionsfrom the shipper or the controlling party. It was thus sug-gested that the first sentence of paragraph 11.5 should beamended to refer to “the carrier or the performing party”.That suggestion was generally supported.

123. As a matter of drafting, it was suggested that it mightbe misleading to combine in the same provision a first sen-tence dealing with an obligation of the carrier and a secondsentence dealing with an obligation of the shipper. It wasgenerally felt that the formulation of the paragraph shouldbe made clearer. Subject to the above suggestions, theWorking Group found the substance of paragraph 11.5 tobe generally acceptable.

(g) Paragraph 11.6

124. Broad support was expressed for the principleexpressed in paragraph 11.6 under which the provisionsregarding the right of control should be non-mandatory. Aquestion was raised regarding the interplay of paragraphs11.6 and 11.1 if paragraph 11.1 was to be interpreted asdefining the right of control by way of an open-ended list.It was stated in response that the word “comprises” in para-graph 11.1 had been used as opposed to the word“includes” precisely to make it clear that the list in thatparagraph was exhaustive.

125. Doubts were expressed regarding the extent to whichparty autonomy should be allowed to deviate from article11. It was stated that it might be inappropriate to allowcarriers, for example, to exclude totally the right of thecontrolling party to change the initial instructions regard-ing delivery of the goods, even where the carrier knew thatthe initial instructions had become unreasonable or shouldotherwise be changed.

126. Regarding the third sentence of the paragraph, theview was expressed that the words “any agreement … mustbe listed in the contract particulars” might overly restrictthe effect of paragraph 11.6 by allowing only agreementsfully expressed in a bill of lading. Other types of agreementcould be used for the purposes of paragraph 11.6, for exam-ple, through incorporation by reference to a contractual doc-ument outside the bill of lading. Such incorporation byreference would also be particularly important where elec-tronic documentation was used. It was suggested that arevised draft of paragraph 11.6 should avoid suggesting anyrestriction to the freedom of the parties to derogate fromarticle 11. That suggestion was broadly supported. Subjectto that suggestion, the Working Group found the substanceof paragraph 11.6 to be generally acceptable.

4. Draft article 12 (Transfer of rights)

127. The text of draft article 12 as considered by theWorking Group was as follows:

“12.1.1 If a negotiable transport document is issued, theholder is entitled to transfer the rights incorporated insuch document by passing such document to anotherperson,

(i) If an order document, duly endorsed either tosuch other person or in blank, or,

(ii) If a bearer document or a blank endorsed doc-ument, without endorsement, or,

(iii) If a document made out to the order of a namedparty and the transfer is between the first holderand such named party, without endorsement.

“12.1.2 If a negotiable electronic record is issued, itsholder is entitled to transfer the rights incorporated insuch electronic record, whether it be made out to orderor to the order of a named party, by passing the elec-tronic record in accordance with the rules of procedurereferred to in article 2.4.

“12.2.1 Without prejudice to the provisions of article11.5, any holder that is not the shipper and that doesnot exercise any right under the contract of carriage,does not assume any liability under the contract of car-riage solely by reason of becoming a holder.

“12.2.2 Any holder that is not the shipper and that exer-cises any right under the contract of carriage, assumesany liabilities imposed on it under the contract of car-riage to the extent that such liabilities are incorporatedin or ascertainable from the negotiable transport docu-ment or the negotiable electronic record.

“12.2.3 Any holder that is not the shipper and that:

(i) Under article 2.2 agrees with the carrier toreplace a negotiable transport document by anegotiable electronic record or to replace anegotiable electronic record by a negotiabletransport document, or

(ii) Under article 12.1 transfers its rights,

does not exercise any right under the contractof carriage for the purpose of the articles 12.2.1and 12.2.2.

“12.3 The transfer of rights under a contract of car-riage pursuant to which no negotiable transport docu-ment or no negotiable electronic record is issued shallbe effected in accordance with the provisions of thenational law applicable to the contract of carriage relat-ing to transfer of rights. Such transfer of rights may beeffected by means of electronic communication. A trans-fer of the right of control cannot be completed withouta notification of such transfer to the carrier by the trans-feror or the transferee.

“12.4 If the transfer of rights under a contract of car-riage pursuant to which no negotiable transport docu-ment or no negotiable electronic record has been issuedincludes the transfer of liabilities that are connected toor flow from the right that is transferred, the transferorand the transferee are jointly and severally liable inrespect of such liabilities.”

(a) General remarks

128. The Working Group heard that article 12 of the draftinstrument constituted a novel approach, at least with

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regard to maritime conventions. It was noted that therewere two principal reasons for the inclusion of a chapteron transfer of rights: first, to ensure that the provisions ofthe draft instrument were coherent throughout in terms ofthe issue of liability of the parties, and second, in order toset out the necessary rules to accommodate the electroniccommunication component of the draft instrument. It wasexplained that subparagraph 12.1.1 and paragraph 12.2related to a negotiable transport document, whilst para-graphs 12.3 and 12.4 concerned non-negotiable transportdocuments and instances where no transport document atall was issued. It was stated that subparagraph 12.1.1should be read in conjunction with the definition of“holder” in paragraph 1.12, and that subparagraph 12.1.2concerned negotiable electronic records. It was explainedthat subparagraph 12.2.1 contained a declaration of thenon-liability of a holder who did not exercise any rightunder the contract of carriage, whilst subparagraph 12.2.2made it clear that a holder who exercised a right under thecontract of carriage also assumed any liabilities pursuantto that contract, to the extent that they were ascertainablepursuant to that contract. Subparagraph 12.2.3 and para-graph 12.3 were said to be self-explanatory and adminis-trative in nature. It was further stated that paragraph 12.4should be read with subparagraph 11.2 (d), since that pro-vision constituted a qualification of paragraph 12.4.

129. The suggestion was made that article 12 be deletedfrom the draft instrument in its entirety, or that the entirechapter be placed in square brackets. In response to thesesuggestions, it was recalled that article 12 was inserted intothe draft instrument as a response to problems that hadbeen encountered in the preparation of the UNCITRALModel Law on Electronic Commerce, which were specificto bills of lading, and the notion of “functional equiva-lency” between electronic records and paper documents. Itwas concluded at that time that the law of bills of ladingwas insufficiently codified in an international instrument tobe able to accommodate an electronic record functionallyequivalent to a paper-based bill of lading. It was recalledthat the prevailing view at that time was that the develop-ment of rules regarding paper transport documents wouldfacilitate the development and use of electronic records.The Working Group was cautioned that if it decided thatthe task of codifying rules on bills of lading was too dif-ficult, then it would fail to accomplish its objective regard-ing electronic records. It was pointed out that thepreliminary exchange of views in the Working Group madeit clear that the entire chapter warranted further discussion.

(b) Paragraph 12.1

(i) Subparagraph 12.1.1

130. In considering the text of subparagraph 12.1.1, therewas general support for the principle embodied in the pro-vision that a holder of a negotiable transport document wasentitled to transfer the rights incorporated in the documentby transferring the document itself. It was stated, however,that there might be exceptions to this principle as, for exam-ple, in the case of paragraph 13.3, which provided that theshippers or consignees who were not holders could still suefor loss or damages. It was suggested that this matter couldbe dealt with through the addition of a phrase into sub-

paragraph 12.1.1 such as, “except for the provisions in arti-cle 13.3, the transfer of a negotiable transport documentmeans the transfer of all rights incorporated in it”.

131. A concern was raised with respect to the interactionof subparagraph 12.1.1 and article 71 of the United NationsConvention on Contracts for the International Sale ofGoods, which provided that a seller could in certain cir-cumstances suspend the delivery of the goods to the buyer,even after they had already been shipped. It was explainedthat article 71 of the Sale of Goods Convention representedan exception to the principal rule, which is embodied inthe draft instrument, that only the party with right of con-trol can stop the carriage of the goods. It was suggestedthat reading article 71 of the Sale of Goods Convention asan exception to the main rule removed the apparent incon-sistency between that convention and the draft instrument.

132. In the course of discussions in the Working Group,there was some support for the concern raised with respectto the types of negotiable transport documents includedwithin the terms of subparagraph 12.1.1. It was noted thatsome national law regimes included bills of lading to anamed person as negotiable documents, yet these nomina-tive documents were not included in the list of negotiabletransport documents in subparagraph 12.1.1, nor were theyincluded by virtue of the definition of “negotiable trans-port document” in paragraph 1.14. It was suggested that abill of lading to a named person should be included in sub-paragraph 12.1.1, either through direct inclusion, or byincluding it in paragraph 1.14. Through the course of dis-cussions, it was noted that in most national legal regimes,a nominative bill of lading was non-negotiable, and that itwas transferred by assignment rather than by endorsement.By way of explanation, it was noted that subparagraph12.1.1 was drafted in order to circumvent the difficultiesof dealing with the nominative aspect of electronic docu-ments. It was further noted that the drafting decision wasmade to limit these problems and promote harmonizationby using terms such as “to order” and “to bearer” todescribe negotiable documents, and it was suggested thatreintroducing the nominative document as a negotiabledocument could negatively affect the ability of the elec-tronic system to differentiate documents.

133. There was strong support in the Working Group tomaintain the text of subparagraph 12.1.1 as drafted in orderto promote the harmonization and to accommodate nego-tiable electronic records. The concern regarding nominativenegotiable documents under certain national laws was noted.

(ii) Subparagraph 12.1.2

134. The Working Group took note that subparagraph12.1.2 would be discussed at a later date in conjunctionwith the other provisions in the draft instrument regardingelectronic records.

(c) Paragraph 12.2

(i) Subparagraph 12.2.1

135. It was suggested that subparagraph 12.1.2 could beclarified by providing examples of the types of liabilities

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that could be assumed by a holder who was not the ship-per and who had not exercised any right under the con-tract of carriage. By way of explanation, it was pointed outthat this provision was intended to provide comfort to inter-mediate holders such as banks that, as long as they did notexercise any right under the contract of carriage, theywould not assume any liability under that contract. Thequestion was raised whether this was an appropriate rulefor the draft instrument, since the draft article might bemisread as suggesting that any time a holder became activeor exercised a right, the holder would automatically assumeresponsibilities or liabilities under the contract of carriage.In response, it was suggested that subparagraphs 12.2.1 and12.2.2 should be read together, since the latter provisionclarified what liabilities a holder would assume in the sit-uation where the holder exercised any right under the con-tract of carriage.

136. There was some support for the view that the con-cept in subparagraph 12.2.1 was superfluous. After dis-cussion, the Working Group requested the secretariat toprepare a revised draft with due consideration being givento the views expressed and to the suggestions made.

(ii) Subparagraph 12.2.2

137. The concerns raised with respect to subparagraph12.2.1 were echoed with respect to subparagraph 12.2.2, anda request was made that the text in the draft article stipu-late which liabilities the holder that exercised any right underthe contract of carriage would assume pursuant to that con-tract. It was suggested that it would be difficult to itemizewhich obligations in the contract of carriage could beassumed by the holder, and that, in any event, the text ofthe provision was sufficiently clear in stating that the lia-bilities were those that “are incorporated in or ascertainablefrom the negotiable transport document”. Further reserva-tions were noted with respect to the breadth of the sub-paragraph, and the possibility was suggested that carrierscould expand the liability of holders significantly pursuantto this provision by including standard clauses in the con-tract of carriage that extended the liabilities of the shipper.

138. By way of explanation, it was pointed out that sub-paragraph 12.2.2 was intended not to detail which obliga-tions would be imposed on the holder, but rather to statethat if there were obligations on a holder, then the laterholder would assume those liabilities once that holder exer-cised any rights under the contract. It was further stated thatthe existence of any such liabilities was to be decided bythe parties who negotiated the contract, and that any liabil-ities were limited to those that were incorporated in orascertainable from the contract. It was suggested that anyfurther specification of potential liabilities for the holderwould be impossible in an international instrument, andshould be left to national law to ascertain those potentialliabilities from the contract. In response to this suggestion,it was urged that the issue should be dealt with in the draftinstrument rather than be left to the applicable law.

139. Additional concern was raised with respect to thepossibility that specific liabilities that might be consideredunfair could be incorporated into the contract and thus beassumed by the holder. An example was given of the pos-

sibility that a demurrage claim could be incorporated intothe contract of carriage, and the receiver of cargo as theholder could become responsible for its payment.

140. The Working Group requested the secretariat to pre-pare a revised draft of subparagraph 12.2.2 with due con-sideration being given to the views expressed.

(iii) Subparagraph 12.2.3

141. The Working Group found the substance of sub-paragraph 12.2.3 to be generally acceptable.

(d) Paragraph 12.3

142. Concern was raised with respect to a conflict thatcould arise between paragraph 12.3 and national law incountries where notice of transfer of rights must be givenby the transferor, and may not be given by the transferoror the transferee as stated in the last sentence of the pro-vision. It was suggested that this potential conflict couldbe avoided through the inclusion of the following phraseafter the words “or the transferee” at the end of the finalsentence of the provision: “in accordance with the provi-sions of the national law applicable to the contract of car-riage relating to transfer of rights”. In the alternative, itwas suggested that the potential conflict could be avoidedthrough the deletion of the phrase “by the transferor or thetransferee” in the final sentence of paragraph 12.3.

143. Whilst support was expressed for the principle behindthe opening sentence of paragraph 12.3, concern wasexpressed with respect to the requirement in the provisionthat the transfer of rights under a contract of carriage pur-suant to which no negotiable transport document wasissued “shall be effected in accordance with the provisionsof the national law applicable to the contract of carriagerelating to transfer of rights”. In particular, it was notedthat this provision raised very complex conflict of lawissues for certain European countries, given its conflictwith the approach taken to the issue of assignment in theRome Convention on the Law Applicable to ContractualObligations. It was suggested that a simpler approach mightbe found, but some uncertainty was expressed regardingwhether it would be possible to solve the issue using asingle applicable law approach. The suggestion was alsomade that, with a view to avoiding conflict with anyregional convention, paragraph 12.3 could simply refer to“applicable law” in its first sentence, rather than statinghow to apply the law.

144. A view was expressed that the secretariat could pro-mote the harmonization of international approaches to theissue of transfer of rights by examining how theConvention on the Assignment of Receivables inInternational Trade dealt with the transfer of rights. TheWorking Group was reminded, however, that the draftinstrument was intended to focus on the carriage of goods,and not on the transfer of rights.

145. The Working Group requested the secretariat to pre-pare and place in square brackets a revised draft of para-graph 12.3, with due consideration being given to thesuggestions made in the course of the discussion.

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(e) Paragraph 12.4

146. It was suggested that the text of paragraph 12.4 wasunnecessarily complicated and difficult to understand.Criticism was heard that this provision derogated from thelaw of assignment, and that it did not appear consistentwith the approach taken in paragraph 12.3, wherein thetransfer of rights was to take place according to applica-ble law. Further, the specific substantive law set out inparagraph 12.4 appeared to strongly favour the carrier, andmight be seen as undermining the balance of rights in thedraft instrument as a whole. It was suggested that the mat-ters dealt with in this provision might better be left to theagreement of the parties, than to be decided by any spe-cific rule on joint and several liability.

147. In response to the specific criticisms of paragraph12.4, support was expressed for the view that paragraph12.4 was a welcome attempt to state the general principlethat a debtor cannot escape liability by transferring itsrights to another party. It was also suggested that a provi-sion that ensured that a debtor remained liable until thecarrier agreed to the transfer of rights was a positiveapproach, although it was questioned why a carrier wouldneed joint and several liability on the part of the holder ifthe carrier had agreed to the transfer. Further, in responseto the statement that draft paragraphs 12.3 and 12.4 couldapply when no document at all was issued, it was explainedthat the transfer of rights could take place pursuant to anexchange of electronic data.

148. In light of the discussion with respect to draft arti-cle 12 and to paragraph 12.4 in particular, the WorkingGroup requested the secretariat to prepare and place insquare brackets a revised draft of paragraph 12.4, with dueconsideration being given to the views expressed.

5. Draft article 13 (Rights of suit)

149. The text of draft article 13 as considered by theWorking Group was as follows:

“13.1 Without prejudice to articles 13.2 and 13.3,rights under the contract of carriage may be assertedagainst the carrier or a performing party only by:

(i) The shipper;

(ii) The consignee;

(iii) Any third party to which the shipper or the con-signee has assigned its rights, depending onwhich of the above parties suffered the loss ordamage in consequence of a breach of the con-tract of carriage;

(iv) Any third party that has acquired rights underthe contract of carriage by subrogation underthe applicable national law, such as an insurer.In case of any passing of rights of suit throughassignment or subrogation as referred to above,the carrier and the performing party are enti-tled to all defences and limitations of liabilitythat are available to it against such third partyunder the contract of carriage and under thisinstrument.

“13.2 In the event that a negotiable transport docu-ment or negotiable electronic record is issued, the holderis entitled to assert rights under the contract of carriageagainst the carrier or a performing party, without havingto prove that it itself has suffered loss or damage. Ifsuch holder did not suffer the loss or damage itself, itis deemed to act on behalf of the party that sufferedsuch loss or damage.

“13.3 In the event that a negotiable transport docu-ment or negotiable electronic record is issued and theclaimant is one of the persons referred to in article 13.1without being the holder, such claimant must, in addi-tion to its burden of proof that it suffered loss or damagein consequence of a breach of the contract of carriage,prove that the holder did not suffer such loss ordamage.”

(a) Paragraph 13.1

150. By way of introduction, it was recalled that para-graph 13.1 was intended to apply to any contract of car-riage, whether or not a document or electronic record hadbeen issued and, if it had been issued, irrespective of itsnature. That provision set out a general rule as to whichparties had a right of suit under the draft instrument. As apossible deficiency of the current draft, it was mentionedthat two parties listed in paragraph 13.1 might suffer loss,for example, where goods were damaged and delayed, aninsurer paid the insured portion of the loss, and the con-signee had to bear the uninsured portion, such as loss dueto delay. It was thus suggested that a revised draft of para-graph 13.1 should make it clear that both parties were enti-tled to claim to recover their respective portions of the loss.As a matter of drafting, it was also suggested that the read-ability of the provision might be improved if the words“Without prejudice to articles 13.2 and 13.3” were deleted.

151. Some support was expressed about the principleexpressed in paragraph 13.1, under which a contractingshipper or a consignee could only assert those contractualrights that belonged to it and if it had a sufficient interestto claim. This meant that in the case of loss of or damageto the goods the claimant should have suffered the loss ordamage itself. If another person, e.g. the owner of thegoods or an insurer, was the interested party, such otherperson should either acquire the right of suit from the con-tracting shipper or from the consignee, or, if possible, asserta claim against the carrier outside the contract of carriage.

152. Fundamental concerns and questions were raised withrespect to paragraph 13.1. It was pointed out that, undermost legal systems, the provision could be regarded assuperfluous since it established a right of suit where sucha right would normally be recognized by existing law toany person who had sufficient interest to claim. At the sametime, the provision might be regarded as unduly restrictivein respect of the persons whose right of suit was recog-nized. It was emphasized that recognizing a right of suit toa limited number of persons by way of closed list was adangerous technique in that it might inadvertently excludecertain persons whose legitimate right of suit should be rec-ognized. Among such persons possibly omitted unduly fromthe list contained in paragraph 13.1, it was suggested that

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the controlling party, in cases where the carrier had refusedto follow its instructions, and the person identified in para-graph 7.7 might need to be considered. In the course of thatdiscussion, a note of caution was struck regarding the appro-priateness of limiting in any way the exercise of rights ofsuit, a policy that might run counter to fundamental rights,possibly human rights, that should be recognized to anyperson who had sufficient interest to claim.

153. The view was expressed that the provision could alsobe regarded as unduly restrictive regarding the nature ofthe action that could be exercised. In that respect, a ques-tion was raised as to the reasons why paragraph 13.1 dealtonly with actions for damages and not with actions for per-formance.

154. The provision was further criticized on the groundsthat it dealt in general terms with claims asserted againstthe carrier or any performing party. The view wasexpressed that dealing with claims against the carrier wastoo restrictive and resulted in an insufficiently balancedprovision. Under that view, a provision on the rights ofsuit should also envisage claims asserted against the ship-per or the consignee, for example, claims for payment offreight. As regards claims asserted against the performingparty, the view was expressed that the scope of the provi-sion was too broad. It was suggested that, with a view toavoiding conflict with existing mandatory regimes appli-cable to land carriers, the scope of the provision should berestricted to claims asserted against sea carriers.

155. The overall structure of the provision was criticizedas reflective of an approach based on the recognition of anaction, as opposed to the recognition of a right, whichwould be the preferred approach under many legal systems.It was observed that the recognition of an action to a lim-ited number of persons offered the advantage of pre-dictability. However, widespread preference was expressedfor a general provision recognizing the right of any personto claim compensation where that person suffered loss ordamage as a consequence of the breach of the contract ofcarriage.

156. Some support was expressed for the retention of thelast sentence of paragraph 13.1, which was said to providea useful rule applicable both to suits based on breach ofcontract and to suit based on tort. It was generally felt thatthat sentence appropriately expressed the general principlethat when transferring rights, the transferee could notacquire more rights than the transferor had. The view wasexpressed, however, that the matter of assignment or sub-rogation should be left to applicable law. A contrary viewwas that the matter should not be dealt with through pri-vate international law but that the draft instrument shouldprovide a uniform rule governing the situation whereclaims were made by third parties. In that situation, it wassuggested that, where the carrier was sued by a third partyon the basis of an extra-contractual claim, the protectionafforded by the draft instrument, in particular the limits ofliability, should be available to the carrier. The WorkingGroup took note of that suggestion.

157. While strong support was expressed for the deletionof paragraph 13.1, the Working Group decided to defer any

decision regarding paragraph 13.1 until it had completedits review of the draft articles and further discussed thescope of application of the draft instrument. The secretariatwas requested to prepare alternative wording in the formof a general statement recognizing the right of any personwith a legitimate interest in the contract of transport toexercise a right of suit where that person had suffered lossor damage.

158. In the context of the discussion of paragraph 13.1,the view was expressed that the draft instrument shouldcontain provisions regarding the issues of applicable lawand dispute settlement through arbitration. While the viewwas expressed that no such provisions were needed andthat those issues should be entirely left to the discretion ofthe parties, the widely prevailing view was that such pro-visions should be introduced in the draft instrument. Strongsupport was expressed in favour of modelling such provi-sions on articles 21 and 22 of the Hamburg Rules, althoughthose provisions were criticized by some delegations. Otherpossible models, including articles 31 and 33 of the CMR,Regulation 44-2001 of the European Union, and theMontreal Convention, were suggested. It was pointed outthat a decision would need to be made as to whether thejurisdiction should be exclusive, as in the EuropeanRegulation, or not, as in the CMR Convention. A decisionwould also need to be made as to whether a jurisdictionclause would be binding only on parties to the contract ofcarriage or also on third parties. A further suggestion wasmade that the draft instrument should also encourage par-ties to conciliate before resorting to more adversarial dis-pute settlement mechanisms.

159. After discussion, the Working Group requested thesecretariat to prepare draft provisions on issues of juris-diction and arbitration, with possible variants reflecting thevarious views and suggestions expressed in the course ofthe above discussion.

(b) Paragraph 13.2

160. It was stated that, under existing law in certain coun-tries, the holder of a bill of lading would only be given aright of suit if the holder could produce a bill of ladingand prove that loss or damage had occurred. From that per-spective, the combination of paragraphs 13.2 and 13.3would lead to the questionable result that the holder of abill of lading would be entitled to exercise a right of suitwithout having to prove that it suffered loss or damage. Itwas generally felt, however, that the first sentence of para-graph 13.2 was in line with existing law in most countriesand served a useful purpose, in particular by establishingthat the holder did not have an exclusive right of suit. Fromthat perspective, it was however suggested that the sameprinciple should apply in the case of paragraph 13.1, whereno negotiable instrument had been issued.

161. Doubts were expressed regarding the meaning of thewords “on behalf” in the second sentence of paragraph13.2. While it was felt that the second sentence wasneeded in order to avoid the possibility that a carriermight have to pay twice, it was generally agreed that fur-ther clarification should be introduced in the provisionregarding the subrogation relationship to be established

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between the holder of a bill of lading and the party thatsuffered loss or damage.

(c) Paragraph 13.3

162. It was recalled that the person exercising a right ofsuit under the contract of carriage should not be dependenton the cooperation of the holder of a negotiable documentif that person, and not the holder, had suffered the damage.Doubts were expressed regarding the operation of the pro-vision under which the claimant should prove that the holderdid not suffer the damage. The Working Group agreed thatthe issue might need to be further discussed at a later stage.

6. Draft article 14 (Time for suit)

163. The text of draft article 14 as considered by theWorking Group was as follows:

“14.1 The carrier is discharged from all liability inrespect of the goods if judicial or arbitral proceedingshave not been instituted within a period of one year.The shipper is discharged from all liability under chap-ter 7 of this instrument if judicial or arbitral proceed-ings have not been instituted within a period of one year.

“14.2 The period mentioned in article 14.1 com-mences on the day on which the carrier has completeddelivery of the goods concerned pursuant to article 4.1.3or 4.1.4 or, in cases where no goods have been deliv-ered, on the last day on which the goods should havebeen delivered. The day on which the period commencesis not included in the period.

“14.3 The person against whom a claim is made atany time during the running of the period may extendthat period by a declaration to the claimant. This periodmay be further extended by another declaration or dec-larations.

“14.4 An action for indemnity by a person held liableunder this instrument may be instituted even after theexpiration of the period mentioned in article 14.1 if theindemnity action is instituted within the later of:

(a) The time allowed by the law of the State whereproceedings are instituted; or

(b) 90 days commencing from the day when theperson instituting the action for indemnity has either:

(i) Settled the claim; or

(ii) Been served with process in the actionagainst itself.

“[14.5 If the registered owner of a vessel defeats thepresumption that it is the carrier under article 8.4.2, anaction against the bareboat charterer may be institutedeven after the expiration of the period mentioned in arti-cle 14.1 if the action is instituted within the later of:

(a) The time allowed by the law of the State whereproceedings are instituted; or

(b) 90 days commencing from the day when theregistered owner both;

(i) Proves that the ship was under a bareboatcharter at the time of the carriage; and

(ii) Adequately identifies the bareboat char-terer.]”

(a) General remarks

164. It was recalled that draft article 14 on time for suitwas discussed in general terms by the Working Group atits ninth session (A/CN.9/510, para. 60). It was noted that,in keeping with the time for suit in the Hague and Hague-Visby Rules, paragraph 14.1 provided a period of one yearas the basic time limit for suits against the carrier and theshipper, while the question of adopting a different timeperiod, such as the two-year period specified in theHamburg Rules, remained open as a policy question forthe consideration of the Working Group. It was noted thatparagraph 14.2 was intended to clarify the basis on whichthe time for suit commenced to run in order to overcomeproblems that had arisen in practice with respect to previ-ous conventions. Paragraph 14.3 was described as animportant provision, which followed the Hague-Visby andHamburg Rules, and which was intended to clarify that avalid extension to the time for suit could be given. It wasexplained that paragraph 14.4 was also based on the Hague-Visby and Hamburg Rules, and that paragraph 14.5 wasplaced in square brackets in order to reflect its reliance onthe rule in subparagraph 8.4.2, also in square brackets, inaccommodating a claimant’s potential inability to identifythe carrier in a timely fashion.

(b) Paragraph 14.1

165. There was general support for the principle of limit-ing the time for suit, as set out in paragraph 14.1. It wasquestioned why the paragraph discharged the carrier fromall liability in respect of the goods once the time for suithad expired, yet it was silent on the discharge of liabilityof performing parties. Support was expressed for the inclu-sion of performing parties in this provision.

166. It was recognized that the inclusion of a time-for-suitprovision for the shipper in the second sentence of para-graph 14.1 was a new approach. Some general doubt wasexpressed with respect to this innovation, but support wasalso expressed for that provision which was said to pro-vide for a balanced approach in limiting the time for suitagainst both carriers and shippers. A question was raisedwhy the time for suit for shippers referred only to shipperliability pursuant to article 7 of the draft instrument, andwhy it did not also refer to shipper liability pursuant toother articles, such as article 9. It was suggested that allpersons subject to liability under the contract of carriageshould be included in this provision, and that they shouldbe subject to the same period of limitation. A further sug-gestion was made that paragraph 14.1 not make specificreference to carriers or shippers, but that it simply statethat any suit pursuant to the draft instrument would bebarred after a period of time to be agreed by the WorkingGroup. Another question raised with respect to the secondsentence of the paragraph was why it mentioned only ship-pers and not other persons who were subject to the sameresponsibilities and liabilities as shippers under article 7.

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A further question was raised with respect to a possibleerror in paragraph 7.7, which made reference to Chapter13 rather than to Chapter 14 in its reference to provisionsconcerning shipper’s rights and immunities.

167. An important question of terminology was raisedwith respect to paragraph 14.1. It was noted that the com-mentary to this provision (A/CN.9/WG.III/WP.21, para-graph 208) stated that the expiration of the time for suitresulted in the extinguishment of the rights of the poten-tial claimant, and as such, suggested that paragraph 14.1concerned a prescription period rather than a limitationperiod. It was noted that this distinction was very impor-tant, particularly in civil law systems, where the lawestablishing a time period for the extinction of a rightwould typically not allow a suspension of the time period.As to whether the lex fori or the lex contractus wouldgovern the issue of the limitation period, it was pointedout that certain existing international instruments such asthe Rome Convention on the Law Applicable toContractual Obligations would lead to the application ofthe lex contractus as matters of time for suit for claimsarising from the contract of carriage would be governedby the proper law of the contract. However, in some juris-dictions, the matter would be regarded as one of civil pro-cedure to be governed by the lex fori. It was suggestedthat any ambiguity with respect to prescription periodsversus limitation periods should be carefully avoided, inorder to ensure predictability of the time for suit provi-sions.

168. During the course of the discussion, significant sup-port was expressed for retaining the time period of oneyear, as set out in the paragraph and in accordance withthe Hague and Hague-Visby Rules. It was further sug-gested that a one-year period would avoid the situationwhere an extra year was not seen to have significantadvantages for the parties, but rather had major disadvan-tages in terms of increased uncertainty, both terms of thepractical aspects of the case such as preservation of evi-dence, but also with respect to unresolved potential lia-bility for claims. On the other hand, there was also supportfor the suggestion that one year was not long enough tofind the correct party to sue, given the complexity ofmodern cases and the number of parties involved, and thata two-year period such as that appearing in the HamburgRules would be more appropriate. Another suggestion wasto extend the one-year period in cases of wilful miscon-duct to a three-year period. It was noted that the lengthof the limitation period should be fair and balanced, andshould offset other changes that might be effected by thedraft instrument as a whole in the allocation of riskamongst the parties. Caution was raised that rules on timefor suit had caused difficulties of interpretation in othertransport conventions, and the Working Group was urgedto agree upon a simple and effective rule.

169. The suggestion was made to insert the one-year timeperiod in square brackets, or alternatively, to simply insertempty square brackets and not state any specific period oftime. The Working Group requested the secretariat to place“one” in square brackets, and to prepare a revised draft ofparagraph 14.1, with due consideration being given to theviews expressed.

(c) Paragraph 14.2

170. Whilst there was strong support for the principle thatit was necessary to have a very clear and easily ascer-tainable date for the commencement of the time for suit,doubt was expressed with respect to the choice in para-graph 14.2 of the date of delivery of the goods pursuantto the contract of carriage as set out in subparagraphs 4.1.3or 4.1.4 as that date. It was suggested that the date ofdelivery in the contract of carriage might be much earlierthan the date of actual delivery and might therefore bedetrimental to the consignee. It was further suggested thata better date for the commencement of the time periodwould be the actual date of delivery. The Working Groupwas reminded that delivery was not defined in the draftinstrument since it was thought to be impossible to pro-vide an appropriate definition of delivery that would sat-isfy most jurisdictions, thus it was left to national law. Itwas noted that the choice of the date of delivery in thecontract of carriage was intended to avoid the uncertaintysurrounding whether delivery meant actual delivery, orwhether it meant the date that the carrier offered the goodsfor delivery, or some other time involved in delivery. Itwas also noted that actual delivery could be unilaterallydelayed by the consignee, and that it could also be highlydependent on local customs authorities and regulations,thus causing great uncertainty concerning the date ofdelivery and the commencement of the running of the timefor suit. It was suggested that in order to avoid uncer-tainty, it was necessary to choose as the date of com-mencement of the time period a date that was easily fixedby all parties.

171. Concern was also raised with respect to the choiceof the last day on which the goods should have been deliv-ered as the commencement of the time period for suit inthe cases where no goods had been delivered. It was statedthat if the parties had not agreed, then subparagraph 6.4.1on delay stated that delivery should be within the time itwould be reasonable to expect of a diligent carrier, andthat this was not an easily fixed date either.

172. Another issue raised with respect to paragraph 14.2was the possibility that a plaintiff could wait until the endof the time period for suit to commence his claim, and pos-sibly bar any subsequent counterclaim against him as beingbeyond the time for suit. It was suggested that a possiblesolution to this problem could be to include counterclaimsin the terms provided for additional time under subpara-graph 14.4 (b) (ii) of the draft instrument (see para. 177below).

173. The suggestion was also made that there be a dif-ferent commencement day regarding the claim against theshipper than for a claim against the carrier.

174. The Working Group requested the secretariat toretain the text of paragraph 14.2, with consideration beinggiven to possible alternatives to reflect the views expressed.

(d) Paragraph 14.3

175. The Working Group found the substance of para-graph 14.3 to be generally acceptable.

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(e) Paragraph 14.4

176. Concerns were raised with respect to subparagraph14.4 (b) (ii), which set out that an action for indemnity bya person held liable under the draft instrument could beinstituted after the expiration of the paragraph 14.1 timefor suit in certain circumstances. It was noted that in cer-tain civil law countries, it was not possible to commencean indemnity action until after the final judgement in thecase had been rendered, and it was suggested that the 90-day period in subparagraph 14.4 (b) (ii) be adjusted tocommence from the date the legal judgement is effective.Support was expressed for this position, and alternative lan-guage was offered that the 90-day period should run fromthe day the judgement against the recourse claimantbecame final and unreviewable.

177. It was suggested that the concern raised with respectto the possibility of counterclaims being barred by the latecommencement of claims pursuant to paragraph 14.1 (seeabove, para. 172) could be met by allowing counterclaimsto be made after the expiration of the time for suit, provided that they are instituted within 90 days of the service of process in the main action, pursuant to sub-paragraph 14.4 (b) (ii) as currently drafted. A further sug-gestion was made that counterclaims could be dealt within a separate draft article, but that they should none-theless be treated in similar fashion to subparagraph 14.4 (b) (ii).

178. The Working Group requested the secretariat to pre-pare a revised draft of paragraph 14.4, with due consider-ation being given to the views expressed.

(f) Paragraph 14.5

179. It was recalled that paragraph 14.5 appeared in squarebrackets due to its link to subparagraph 8.4.2, which wasalso bracketed, and that if the decision was made to deletesubparagraph 8.4.2, then the entire text of paragraph 14.5would also be deleted as unnecessary. It was reiterated thatthis provision was intended to accommodate the claimantwho could be at risk of running out of time to file suitthrough no fault of its own if the registered owner waitedtoo long before producing the bareboat charterer pursuantto subparagraph 8.4.2.

180. Mindful of the fact that the fate of this provisiondepended upon that of subparagraph 8.4.2, the WorkingGroup expressed support for the principle embodied inparagraph 14.5, and for the 90-day time period. However,a doubt was raised whether this provision would be of anyassistance to cargo claimants that experienced difficultiesin identifying the carrier, since if the registered owner ofthe vessel successfully rebutted the presumption, theclaimant would need to introduce a new claim against thebareboat charterer.

181. It was suggested that subparagraphs (i) and (ii) ofsubparagraph 14.5 (b) be combined into one, since sub-paragraph (ii) could be considered a sufficiently rigorouscondition to subsume subparagraph (i). Whilst it was rec-ognized that the sheer size of a typical bareboat charter, inaddition to the likelihood that it would contain confiden-

tial information, would make it impractical to produce ina proceeding, it was thought that proof of the facts by theregistered owner of the vessel could be expressed in onesingle condition.

182. The Working Group requested the secretariat to pre-pare a revised draft of paragraph 14.4, with due consider-ation being given to the views expressed. Note was alsotaken that the Working Group had requested the secretariatto retain subparagraph 8.4.2 in square brackets, and that ittherefore requested the secretariat to retain paragraph 14.5in square brackets, bearing in mind that the fate of the latterarticle was linked to that of the former.

7. Draft article 15 (General average)

183. The text of draft article 15 as considered by theWorking Group was as follows:

“15.1 Nothing in this instrument prevents the appli-cation of provisions in the contract of carriage ornational law regarding the adjustment of general aver-age.

“15.2 With the exception of the provision on time forsuit, the provisions of this instrument relating to the lia-bility of the carrier for loss of or damage to the goodsalso determine whether the consignee may refuse con-tribution in general average and the liability of the car-rier to indemnify the consignee in respect of any suchcontribution made or any salvage paid.”

(a) General remarks

184. The Working Group was reminded that it had dis-cussed draft article 15 on general average in broad termsin relation to paragraph 5.5 during its ninth session (seeA/CN.9/510, paras. 137-143). It was recalled that draft arti-cle 15 was closely based upon article 24 of the HamburgRules, and that article 15 of the draft instrument wasintended to permit the incorporation into the contract ofcarriage the operation of the York-Antwerp Rules (1994)on general average. It was pointed out that the drafting inchapter 15 was intended to reflect the principle that thegeneral average award adjustment must first be made, andthe general average award established, and that pursuant toparagraph 15.2, liability matters would thereafter be deter-mined on the same basis as liability for a claim broughtby the cargo owner for loss of or damage to the goods. Itwas submitted it was reasonable to determine the twoclaims using the same liability rules, given that theyamounted to two sides of the same set of facts. It was fur-ther stated that the principles of general average have along history in maritime law, and that they form part ofthe national laws of most maritime countries.

185. There was broad support for the continued opera-tion of the rules on general average as a set of rules inde-pendent from the operation of those in the draftinstrument. Whilst there was some discussion as towhether it was necessary to specifically include provi-sions such as those in article 15 in order to accomplishthis goal, there was general support for the existing chap-ter as drafted. It was stated, however, that article 24 of

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the Hamburg Rules had been included due to the specificliability rules in that convention, and that the Hague andHague-Visby Rules had no specific provision on generalaverage, although they did contain in article V a state-ment that “Nothing in these Rules shall be held to pre-vent the insertion in a bill of lading of any lawfulprovision on general average”. It was recalled that thisstatement in the Hague and Hague-Visby rules allowedfor the operation of the York-Antwerp Rules on generalaverage, but it was pointed out that the issue was unclearand generated jurisprudence. It was suggested that sincethe liability provisions in the draft instrument moreclosely resembled the Hague and Hague-Visby Rules, itwould be appropriate to delete article 15 on general aver-age as unnecessary, without fear that it would impede theoperation of the general average rules. It was stated inresponse, however, that the insertion of an article such asdraft article 15 was of great assistance in clarifying therelationship between the draft instrument and the generalaverage rules, such that it could significantly reduce thepotential jurisprudence on this point.

(b) Paragraph 15.1

186. There was broad support for the continued incorpo-ration of the York-Antwerp Rules on general average intothe contract of carriage, and, with the Working Groupfound the substance of paragraph 15.1 to be generallyacceptable.

(c) Paragraph 15.2

187. Whilst it was generally conceded that paragraph 15.1served to clarify and ensure the incorporation of the ruleson general average, the question was raised whether para-graph 15.2 was necessary in the draft instrument. It wassuggested that the rules on liability pursuant to the con-tract of carriage would apply regardless of the inclusion ofparagraph 15.2, and that the statement to this effect in para-graph 15.2 only served to confuse the issue.

188. There was also support expressed for the retention ofparagraph 15.2, but there were suggestions for modifica-tion to the drafting. It was stated that the opening phraseof paragraph 15.2 with respect to time for suit was intendedto indicate that the time for suit provisions did not applyto general average awards, but it was suggested that clearerlanguage could be found to express that meaning. In thisconnection, it was also suggested that the Working Groupmight wish to establish a separate provision on time forsuit for general average awards, such as, for example, thatthe time for suit for general average began to run from theissuance of the general average statement. Some supportwas expressed for this approach.

189. In addition, it was questioned whether paragraph 15.2should also include liability for loss due to delay anddemurrage in those liabilities under the draft instrumentwhich should be applied to the determination of refusalsfor contribution to general average.

190. The Working Group requested the secretariat to pre-pare a revised draft of paragraph 15.2, with due consider-ation being given to the views expressed.

8. Draft article 16 (Other conventions)

191. The text of draft article 16 as considered by theWorking Group was as follows:

“16.1 This instrument does not modify the rights orobligations of the carrier, or the performing party pro-vided for in international conventions or national lawgoverning the limitation of liability relating to the oper-ation of [seagoing] ships.

“16.2 No liability arises under the provisions of thisinstrument for any loss of or damage to or delay indelivery of luggage for which the carrier is responsibleunder any convention or national law relating to the car-riage of passengers and their luggage by sea.

“16.3 No liability arises under the provisions of thisinstrument for damage caused by a nuclear incident ifthe operator of a nuclear installation is liable for suchdamage:

(a) Under either the Paris Convention of 29 July1960, on Third Party Liability in the Field of NuclearEnergy as amended by the Additional Protocol of 28January 1964, or the Vienna Convention of 21 May1963, on Civil Liability for Nuclear Damage, or

(b) By virtue of national law governing the liabil-ity for such damage, provided that such law is in allrespects as favourable to persons who may sufferdamage as either the Paris or Vienna Conventions.”

(a) General remarks

192. The Working Group heard that article 16 on otherconventions was based upon article 25 of the HamburgRules, although the order of the subparagraphs had beenadjusted somewhat in the draft instrument. Further, it wasnoted that the draft instrument did not contain an article inkeeping with article 25.2 of the Hamburg Rules withrespect to other conventions on jurisdiction and arbitration,since the draft instrument did not yet contain chapters onthese matters. It was suggested that the Working Groupmight wish to include a similar provision in the draft instru-ment if it decided to include provisions therein regardingjurisdiction and arbitration. The additional comment wasmade that if such a provision were included in the draftinstrument, the Working Group might wish to considerspecifying the Brussels Convention on Jurisdiction andEnforcement of Judgments in Civil and CommercialMatters (1968) and any subsequent regulation, as well asthe New York Convention on the Recognition andEnforcement of Foreign Arbitral Awards (1958).

193. It was also explained that article 25.5 of the HamburgRules had been omitted in the draft instrument in light ofthe scope of application issue. It was noted that theWorking Group might wish to revisit the possibility ofadding a provision similar to article 25.2 of the HamburgRules once it had made a decision regarding the scope ofapplication of the draft instrument.

194. General support was expressed for draft article 16 asa useful and appropriate addition to the draft instrument.

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195. It was noted that article 16 was intended to specifythe relationship between the draft instrument and other inter-national conventions, but that the list of other internationalconventions that could be affected by the draft instrumentwas much longer than that set out in article 16, and couldinclude, for example, the International Convention onLiability and Compensation for Damage in Connection withthe Carriage of Hazardous and Noxious Substances by Sea(1996). It was suggested that rather than risk omitting a con-vention in a specific list of instruments, a general clause beused instead that this instrument would not affect other inter-national conventions concerning the limitation of liability.Some support was expressed for this approach, however,caution was urged that too general a statement, such as, forexample, to state that all other conventions with limitationon liability should prevail, might not accurately reflect theintention of the Working Group. It was also suggested thatthe Working Group should carefully examine the list of otherconventions, keeping in mind the fact that the draft instru-ment, unlike the Hamburg Rules upon which draft article 16is based, dealt not only with the carrier’s liability, but alsowith the shipper’s liability, on a mandatory basis.

(b) Paragraph 16.1

196. The suggestion was made that it would be helpful tosome States attempting to avoid conflicts with other trans-port conventions if paragraph 16.1 were amended to addlanguage stating that the draft instrument would prevailover other transport conventions except in relation to Statesthat are not members of the instrument. It was stated thatthis addition would be particularly helpful if the WorkingGroup decided upon a door-to-door scope of application ofthe draft instrument, but that it would be equally welcomeif the Working Group were to decide upon a port-to-portscope of application.

197. It was noted that the word “seagoing” in paragraph16.1 appeared in square brackets, and it was suggested thatthis word be deleted, since in light of the BudapestConvention on the Contract for the Carriage of Goods byInland Waterway (2000), use of the term might cause con-fusion regarding which convention was applicable.

(c) Paragraph 16.2

198. Support was expressed for paragraph 16.2, however,it was suggested that the phrase “by sea” be deleted fromthe final line of paragraph 16.2, since a number of con-ventions govern the carriage of passengers and luggage bymeans other than sea, such as by road, railroad and air,and it would be helpful to clarify that the draft instrumentwas not intended to affect these conventions.

199. The Working Group found the substance of paragraph16.2 to be generally acceptable, and in keeping with thedrafting approach in paragraph 16.1, the Working Groupdecided to place square brackets around the phrase “by sea”.

(d) Paragraph 16.3

200. It was explained that the list of conventions in para-graph 16.3 was not yet complete, since the instrumentslisted had been supplemented by further protocols and

amendments, one of which was the Protocol to Amend the1963 Vienna Convention on Civil Liability for NuclearDamage (1998). It was noted that care would have to betaken to examine the list and to prepare an accurate andupdated version thereof.

201. The suggestion was made that other conventionstouching on liability could be added to those listed in para-graph 16.3, such as those with respect to pollution and acci-dents. However, some hesitation was voiced at extendingthe list of conventions in this fashion, and caution wasurged to include on the list only those conventions withwhich the draft instrument could have a conflict. It wassuggested that the list of conventions that appeared in para-graph 16.3 and in article 25.3 of the Hamburg Conventionmight be as a result of the requirements of the Conventionrelating to Civil Liability in the Field of Maritime Carriageof Nuclear Material (1971).

202. The Working Group requested the secretariat toupdate the list of conventions and instruments in paragraph16.3, and to prepare a revised draft of paragraph 16.3, withdue consideration being given to the views expressed.

9. Draft article 17 (Limits of contractual freedom)

203. The text of draft article 17 as considered by theWorking Group was as follows:

“17.1 (a) Unless otherwise specified in this instru-ment, any contractual stipulation that derogates from theprovisions of this instrument is null and void, if and tothe extent it is intended or has as its effect, directly orindirectly, to exclude, [or] limit [, or increase] the lia-bility for breach of any obligation of the carrier, a per-forming party, the shipper, the controlling party, or theconsignee under the provisions of this instrument.

(b) [Notwithstanding paragraph (a), the carrier ora performing party may increase its responsibilities andits obligations under this instrument.]

(c) Any stipulation assigning a benefit of insuranceof the goods in favour of the carrier is null and void.

“17.2 Notwithstanding the provisions of chapters 5and 6 of this instrument, both the carrier and any per-forming party may by the terms of the contract of car-riage exclude or limit their liability for loss of or damageto the goods if

(a) The goods are live animals, or

(b) The character or condition of the goods or thecircumstances and terms and conditions under which thecarriage is to be performed are such as reasonably tojustify a special agreement, provided that ordinary com-mercial shipments made in the ordinary course of tradeare not concerned and no negotiable transport documentor negotiable electronic record is or is to be issued forthe carriage of the goods.”

(a) Title

204. As a matter of drafting, it was suggested that the titleof the draft article should be revised to reflect more accu-

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rately the contents of the provision, which did not deal with“limits of contractual freedom” in general, but dealt withclauses limiting or increasing the level of liability incurredby the various parties involved in the contract of carriage.

(b) Paragraph 17.1

(i) Subparagraph 17.1 (a)

205. The discussion focused on the words “or increase”in square brackets in paragraph 17.1. With a view to ensur-ing a balanced and even treatment of the shipper and thecarrier under the draft instrument, the view was expressedthat the traditional solution allowing the carrier to increaseits liability should be extended to the shipper. In response,a widely shared view was expressed that, while the possi-bility for the carrier to increase its liability should be rec-ognized, as it was under the Hague Rules, the shippershould be protected against clauses that might increase itsliability, particularly in contracts agreed on standard terms.It was generally felt that, in examining the balance of rightsand obligations between the shipper and the carrier, itshould be borne in mind that, with the notable exceptionof certain very large shippers, a shipper would typicallyhave less bargaining power and should thus be protected.Another view was expressed that paragraph 17.1 shouldnot at all address the shipper, the controlling party, or theconsignee. In response to a question regarding the possi-bility for the carrier to increase its liability under CMR, itwas explained that such an increase was not necessary, inview of the higher limit of liability under CMR.

206. With respect to the liability incurred by the control-ling party, the view was expressed that further discussionwould be needed regarding clauses limiting or extendingsuch liability. It was suggested that the liability of agentsor employees of the contractual parties might also need tobe envisaged.

207. A proposal was made that special treatment should begiven under draft article 17 to competitively negotiated con-tracts between shippers and carriers. It was stated that par-ties to such contracts (which were described as “sophisticatedparties”) should have freedom to negotiate terms of their ownchoosing. Should these parties be allowed to negotiateclauses to increase or decrease their liability among them-selves, such clauses should not affect third parties.

208. In response to that proposal on the exclusion of cer-tain “competitively negotiated contracts between sophisti-cated parties”, several major concerns were expressed. Oneconcern was based on what was described as the “nearimpossibility” of a clear definition. While the Hague andHague-Visby Rules made it relatively easy to distinguishbetween matters included in and excluded from the con-ventions because the distinguishing element was the tradi-tional bill of lading, such distinguishing element was lostin the draft instrument, which was intended to apply to“contracts for the carriage of goods [by sea]”.Consequently, clear definitions should be provided in thedraft instrument in order to circumscribe the exact scopeof any exclusion. It was pointed out that a “volume” con-tract, also referred to as an “ocean transportation contract”or “OTC”, had few distinctive characteristics when com-

pared to a carriage contract. Expressions such as “contractof affreightment”, “volume contract”, “tonnage contract”and “quantity contract”, were also used and, depending onthe legal system, appeared to be treated as synonymous.The characteristics of such contracts were: that the carrierundertook to perform a “generic” obligation (i.e. a gener-ally defined duty which later needs to be further specified)to carry a specified quantity of goods; that no ships wereas yet nominated in the contract; that the cargo consistedof a large quantity which was to be carried in several shipsover a certain period of time; that the freight was calcu-lated on the basis of an agreed unit or as a lump sum; andthat the risk of delay was borne by the carrier. The volumecontract consequently had many of the characteristics of avoyage charter-party. However, the individual shipmentspursuant to such a contract would be mandatorily governedby the Hague or Hague-Visby Rules. This was said to con-tradict the allegations by the supporters of the exclusion ofsuch contracts from the scope of the draft instrument, thatunder current practice, no small shipper was ever forcedinto a so-called “service contract” (which would then bean adhesion contract), and that this practice would notchange under the draft instrument if service contracts wereexcluded from its scope of application. The fundamentaldifference was that in the present situation, such contractscould not be imposed on small shippers because of thecompulsory application of the Hague Rules to the individ-ual shipments. Were the scope of the draft instrument tobe reduced in the proposed manner, that protection wouldbe lost and the parties would be faced with the situationthat prevailed in the 19th century.

209. A second concern was that the exclusion of individ-ual shipments performed pursuant to a volume contractfrom the scope of the draft instrument would constitute alegal revolution, and would undermine the ambit of thedraft instrument to such an extent as to make it virtuallynon-existent in certain trades. The proposed exclusion wasdescribed as a first step towards the effective abolition ofthe Hague Rules regime, which was put in place to pro-tect cargo interests. In that context, it was recalled that, forexample, it had been said that 80 to 85 per cent of UnitedStates container trade was presently performed undervolume contracts.

210. A third concern was expressed with regard to theapplication of national legislation. It was stated that theexclusion of service contracts from the scope of the draftinstrument might create a competitive advantage for oceancarriers as opposed to non-vessel operating carriers(NVOC) where national legislation, for example, wouldallow an “individual ocean common carrier” to enter intoa “service contract” or “ocean transportation contract”, butwould not allow an NVOC (a freight forwarder acting asprincipal) to do so. Thus, the draft instrument would sig-nificantly change the legal situation with regard to com-petition in certain large domestic markets. It was stated thatthis should not be the purpose of an international conven-tion, and that this secondary effect of the proposed exclu-sion would be highly detrimental to freight-forwardinginterests.

211. A fourth concern was expressed with respect to thecreation of a possibility of opting out of the draft instru-

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ment. It was stated that the proposal envisaged the draftinstrument to apply by default, i.e. if the sophisticated par-ties did not decide otherwise. This amounted to creatingan opting-out possibility. It was stated that any opting-outor opting-in provision would constitute a fundamentalchange in the philosophy on which most international con-ventions on maritime carriage of goods were based.

212. In response to those concerns, it was indicated thata proposal for a draft provision excluding “competitivelynegotiated contracts between sophisticated parties” wouldbe made available to the secretariat before the next sessionof the Working Group. The above-mentioned concernswould be borne in mind when drafting that proposal. It waspointed out that the proposal, while innovative, was not asrevolutionary as might be feared, since it was based onanalogy between service contracts and charter-parties, andit would simply amplify the current exclusion of charter-parties from the scope of the Hague and Hague-VisbyRules. Interest in the proposal for the exclusion of com-petitively negotiated contracts was expressed.

213. After discussion, the Working Group decided tomaintain the text of subparagraph 17.1 (a) in the draftinstrument, including the words “or increase” in squarebrackets, for continuation of the discussion at a future ses-sion, possibly on the basis of one or more new proposals.

(ii) Subparagraph 17.1 (b)

214. The Working Group found the substance of sub-paragraph 17.1 (b) to be generally acceptable. It wasdecided that the square brackets around that provisionshould be removed.

(iii) Subparagraph 17. 1 (c)

215. The Working Group found the substance of sub-paragraph 17.1 (c) to be generally acceptable.

(c) Paragraph 17.2

(i) Subparagraph 17.2 (a)

216. It was recalled that, at the ninth session of theWorking Group, subparagraph 17.2 (a), which allowed thecarrier and the performing party to exclude or limit liabil-ity for loss or damage to goods where the goods were liveanimals, was widely supported. It was also recalled thatthe provision was a traditional exception, with both theHague and Hague-Visby Rules excluding live animals fromthe definition of goods. It was noted that trade in live ani-mals represented only a very small trade. However, a con-cern was raised against allowing the carrier to exclude orlimit the liability for loss or damage to live animals. It wassuggested that a better approach would be to simplyexclude carriage of live animals altogether from the draftinstrument rather than allowing exclusion of liability (seeA/CN.9/510, para. 64). Support was expressed for adopt-ing the text of subparagraph 17.2 (a) unchanged. Strongsupport was also expressed for the view that, while the tra-ditional exception with respect to live animals should bemaintained, the draft instrument should not simply recog-nize any clause that would “exclude or limit” the liability

of the carrier and any performing party where live animalswere transported. The carrier or the performing partyshould not be allowed to exempt itself from any liability,for example, in case of serious or intentional fault or mis-conduct in the treatment of live animals, or where the car-rier or performing party failed to follow the instructionsgiven by the shipper. Yet another view was that the draftinstrument should specify the circumstances under whichthe liability of the carrier or the performing party could beexcluded in the case of transport of live animals. It wassuggested that a reference to the “inherent vice of thegoods” might be helpful in that respect, for example, toestablish that a carrier carrying live cattle in poor healthcondition might be allowed to exclude its liability. It wasgenerally felt, however, that the inherent vice of the goods,which was already covered under subparagraph 17.2 (b),was difficult to characterize with respect to live animals.

217. After discussion, the Working Group decided that thesubstance of subparagraph 17.2 (a) should be maintainedin the draft instrument for continuation of the discussionat a future session. The secretariat was requested to pre-pare alternative wording to limit the ability of the carrierand the performing party carrying live animals to exoner-ate themselves from liability in case of serious fault of mis-conduct.

(ii) Subparagraph 17.2 (b)

218. The Working Group found the substance of sub-paragraph 17.2 (b) to be generally acceptable.

B. Scope of application of the draft instrument

1. General discussion

219. The Working Group agreed to proceed in its exam-ination of the scope of application of the draft instrumentby first hearing presentations from those delegations thathad made written proposals to the Working Group. It wasagreed that the second step would be to discuss the posi-tions of other delegations with respect to the proposals onthe table, taking into account that the existing proposalswere not necessarily intended to be mutually exclusive, butthat the decision of the Working Group on how to proceedin its work on scope of application could combine elementsfrom the various proposals, or generate new proposals. Itwas further agreed that once the Working Group had heardgeneral statements on the scope of application of the draftinstrument, it would revert its attention to the specific pro-visions of article 3 of the draft instrument on scope ofapplication, and article 4 on period of responsibility.

220. By way of presentation of the proposal by Italy(A/CN.9/WG.III/WP.25), it was stated that, whilst the bestsystem applicable to a door-to-door contract of carriageperformed partly by sea and partly by other modes of trans-port would clearly be a uniform system, a network systemhad been adopted in all multimodal transport instrumentsbecause it was impossible to derogate by contract from themandatory rules applicable to the different modes of trans-port, whether they were uniform rules or national rules. It

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was pointed out that provisions of the draft instrumentapplied to the non-contractual liability of the servants oragents of the contracting carrier, as did the 1980Convention on International Multimodal Transport ofGoods, but that the network system in the draft instrumenthad been extended to the carrier’s liability and time forsuit in an attempt to avoid a conflict between conventionsin lieu of a specific provision on conflict of conventions.It was also suggested that adopting a limited networksystem would not be an adequate means for avoiding apotential conflict with other conventions because the allo-cation of the burden of proof in paragraph 5.1 of the draftinstrument differed from that adopted in other transportconventions, and because matters other than liability, limitson liability and time for suit were regulated in other trans-port conventions. Further, it was suggested that if a con-tract of carriage entered into between a door-to-door carrierand a performing carrier came under the scope of applica-tion of another international convention, that conventionand the draft instrument would apply simultaneously. Itwas further noted that the contracting carrier who under-took to perform a carriage by a mode other than by seacould be unaware of the fact that the contract being enteredinto was subject to the draft instrument, rather than to theinternational convention or national law applicable to thetransport that contracting carrier had undertaken to per-form. It was suggested that this would create the situationwhere a recourse action of the door-to-door carrier againstthe performing carrier would be subject to the internationalconvention or national law applicable to the contractentered into by those two parties, while a direct action ofthe shipper or consignee against the performing carrierwould be subject to the draft instrument. It was further sug-gested that the liability of the performing carrier wouldthus be governed by different rules depending on whetherthe action was brought against the performing carrier bythe door-to-door carrier or by the shipper/consignee. It wasstated that the Italian proposal intended to overcome theanomalies of this situation, by having the draft instrumentapply to the performing carrier only when the performingcarrier was a carrier by sea. To this end, three basic prin-ciples were submitted by the Italian delegation for consid-eration by the Working Group. First, any person who hada right of suit under the contract of carriage against thecarrier would also have a right of suit against any per-forming carrier or performing party. Second, if the per-forming carrier against whom suit was brought was acarrier by sea, the provisions of the draft instrument wouldapply to the contract to which that performing carrier wasa party. Finally, if the performing carrier against whom suitwas brought was not a carrier by sea, the convention ornational law applicable to the contract to which such per-forming carrier was a party, as well as the terms and con-ditions of that contract, would apply.

221. By way of additional explanation of the proposal byCanada (A/CN.9/WG.III/WP.23; see also A/CN.9/525,para. 25), the Working Group heard that whilst theCanadian delegation preferred the first option set out inparagraph 8 of its proposal with respect to a port-to-portscope of application, that delegation was of the view thatthe Working Group was unlikely to reach consensus on aport-to-port scope of application in the draft instrument. Itwas stated that option 2 in paragraph 9 of the Canadian

proposal, under which the draft instrument should be mod-ified to include national law in subparagraph 4.2.1 in orderto deal with land-based carriage, was not the preferredoption, since inserting a reference to national law into thedraft instrument would not enhance the uniformity of thelaw in this area. It was submitted to the Working Groupthat the preferred option should be option 3 in paragraphs10 and 11 of the proposal by Canada, since, if the draftinstrument was to be a door-to-door regime, it should berecognized that some States were not yet ready to adoptsuch a regime. However, the option 3 approach wouldenhance the uniformity of the instrument, since a con-tracting State’s adoption of a door-to-door regime wouldbe as simple as removing the reservation placed earlier onthat chapter of the draft instrument.

222. The Working Group next heard a presentation by theSwedish delegation of its proposal (A/CN.9/WG.III/WP.26).It was submitted that, while the structure of the draft instru-ment remained open for discussion, the intention of theproposal was to ensure that, if the draft instrument were tobe a door-to-door regime, it would address certain issues.It was stated that one of these issues was the potential con-flict with other mandatory transport conventions, andanother was the potential conflict between the draft instru-ment and mandatory national laws dealing with inland car-riage. It was further suggested that the draft instrumentshould deal in the manner suggested in the Swedish pro-posal with other possible issues that could place it in con-flict with other transport conventions, such as the issue ofcalculation of compensation and the issue of non-localizeddamages (see below, paras. 258 and 264 to 267, respec-tively).

223. UNCTAD presented to the Working Group its find-ings in the responses it received to its questionnaire onMultimodal Transport Regulation (A/CN.9/WG.III/WP.30;the complete text was published by UNCTAD as“Multimodal transport: the feasibility of an internationalinstrument” (UNCTAD/SDTE/TLB/2003/1)). It was statedthat the questionnaire was sent to 191 States and industryorganizations, both governmental and non-governmental,and that 109 responses had been received, 60 from theGovernments of developed and developing countries, and49 from industry representatives and others. In response tothe question of how the status quo was perceived, it wassubmitted that over 80 per cent of respondents found thepresent legal framework unsatisfactory and that 70 per centconsidered that it was not cost-effective. It was suggestedthat there was interest in a multimodal instrument, but thatsome respondents wondered whether it was practical. Withrespect to the suitability of different approaches, it was sug-gested that around two thirds of the respondents appearedto prefer a new international instrument to govern multi-modal transport or a revision of the 1980 Convention onInternational Multimodal Transport of Goods. It was fur-ther stated that some respondents expressed support for anew instrument based on the UNCTAD/ICC Rules, whilea minority of respondents, mainly from maritime transportinterests, favoured the extension of an international sea car-riage regime to all contracts for multimodal transportinvolving a sea leg, and still others felt that the new instru-ment should reflect a completely new approach. It was sug-gested that with the exception of the maritime transport

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industry, there appeared to be limited support for theregime adopted in the draft instrument. With respect to theissue of the content and features of a multimodal system,it was suggested that approximately equal numbers ofrespondents expressed support for a fault-based liabilitysystem and for a strict liability system. It was further statedthat around 75 per cent of respondents felt that any inter-national instrument should adopt the same approach asexisting statutory or multimodal liability regimes by pro-viding for continuing responsibility of the contracting car-rier through the entire transport. It was noted that whilstgovernments and providers of services saw the need forchanges to the legal framework, views were divided onhow best to proceed, and some respondents supported thedevelopment of a binding international instrument, whileothers supported the development of a non-mandatoryregime. The view was expressed that there was interestamongst respondents in a new instrument and that therewas a willingness to debate controversial issues. It was sug-gested that these issues could be debated in an informalforum to assess how best to proceed with future work.

224. The Working Group next heard a summary of theposition of the Netherlands on the issue of scope as con-tained in a position paper on the multimodality of the draftinstrument (to be published in A/CN.9/WG.III/WP.28/Add.1). It was suggested that the position of theNetherlands in the discussion with respect to the scope ofapplication of the draft instrument should be considered inthe context of its view in the long term. It was recalledthat, in the current discussion in the Working Group, thesolution envisaged for multimodal carriage focused oneither a network liability system or a uniform liabilitysystem. It was stated that, while the network system hadwell-known disadvantages, a uniform system, such as thatcontained in the 1980 Multimodal Convention deviated toomuch from the practices of commercial parties in order forit to be broadly accepted. It was suggested that worldwideapplication of a liability regime on a uniform basis appli-cable to all modes of transport was not attainable. It wassubmitted that what might be envisaged realistically in thelong term was a multimodal convention for intercontinen-tal maritime transport (“maritime plus”); a multimodal con-vention for intercontinental air carriage (“air carriageplus”); and regional multimodal conventions that includedall modes of transport. It was explained that the term “inter-continental maritime transport” was used simply as a meansto differentiate it geographically from “regional maritimetransport”, and it was not meant as a term of art to sug-gest a scope of application for the draft instrument differ-ent from international maritime transport. It was suggestedthat the current draft instrument fit into this long-term per-spective in light of its maritime plus approach. It was notedthat in order to achieve regional multimodal conventions,the current trend was to extend the scope of unimodal con-ventions to carriage by other modes of carriage that pre-ceded or were subsequent to its own mode of carriage,using, for example, the model of the 1999 Convention forthe Unification of Certain Rules for the InternationalCarriage by Air (the Montreal Convention) for air carriageand the Uniform Rules concerning the Contract forInternational Carriage of Goods by Rail, Appendix B tothe Convention concerning International Carriage by Rail,as amended by the Protocol of Modification of 1999 (the

CIM-COTIF) for European rail carriage. It was suggestedthat if such an extension to other preceding and subsequentmodes of carriage was made generally for each mode andfor each unimodal convention on a cross-border basis, suchan approach could fit neatly into commercial practice. Inthis manner, it was suggested that the various modes oftransport would grow toward each other and the resulteventually could be a merged multimodal convention on aregional basis. It was noted that this approach wouldrequire an appropriate conflict of conventions provisionthat would have to be identical for each unimodal con-vention so extended. It was suggested that a further advan-tage of such a general “unimodal plus” approach would bethat it could act as a breakthrough for the current stalematebetween the network system and uniform systemapproaches. It was also emphasized that the proposal of theNetherlands was intended to serve as background infor-mation for the discussion on scope of application, and itwas not intended to preclude any of the current proposalsput forward by Canada, Sweden and Italy.

225. The Working Group was reminded by the CMI thatthe draft instrument adopted a contractual approach, whichwas intended to adjust maritime transport to modern real-ity by adopting a door-to-door regime. It was stated thatthe idea of a draft instrument was originally intended toharmonize maritime cargo regimes, but that it becameapparent that it would be necessary to go beyond the port-to-port approach and take into account the facts of moderncarriage of goods. It was suggested that the limited net-work scheme in subparagraph 4.2.1 was a workable system,but that there was further room for flexibility to exploreother approaches toward a workable and simple system indefining the scope of application of the draft instrument.It was stated that, when subparagraph 4.2.1 was formu-lated, the decision was made not to defer to national lawin order to achieve the greatest possible uniformity of law,and that the important and difficult issue of performing par-ties was also discussed at length. It was also stated that theWorking Group would have to consider how best to createa fair allocation of risk amongst parties in the overall con-text of a door-to-door regime.

226. It was stated in a submission by the United Statesdelegation that it did not yet have a final position on theissue of the scope of coverage of the draft instrument. Itwas suggested that this uncertainty stemmed from its viewthat certain key issues under discussion by the WorkingGroup were interrelated, in effect, those of the scope ofapplication and treatment of performing parties, choice offorum and jurisdiction, liability limits and freedom of con-tract, and that any position on a single issue would dependon a particular outcome being reached on other issues.Support was expressed for the view that a fully uniformsystem was most likely impossible to achieve, but it wassubmitted that the goal of the Working Group should beto attain as much uniformity as was politically attainable.With respect to the contracting parties, the United Statessuggested that subparagraph 4.2.1 could be adopted, so thatthe instrument’s liability limits would apply on a uniformbasis, subject only to the limited network exception whenCMR or some other mandatory international conventionwas applicable. It was also stated that the treatment of per-forming parties was an important aspect of the issue of

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scope of application, and that a distinction could be drawnbetween maritime performing parties and inland perform-ing parties. Support was expressed for the mandatory appli-cation of the draft instrument to maritime performingparties. With respect to inland performing parties, differ-ent concerns arose. The instrument could neither create norprohibit suits against them. They would instead be subjectto whatever legal regime would otherwise apply in theabsence of the instrument, and could take advantage of anyapplicable Himalaya clause to the extent permitted bynational law. The United States stated that, under its sug-gestion, there would be no need to add “national law” tosubparagraph 4.2.1’s exclusion for mandatory internationalconventions in order to protect the interests of either inlandperforming parties or cargo owners. Inland performing par-ties would be outside the scope of the instrument. As anexample, the United States noted that where there was nomandatory international convention applicable to the inlandcarrier’s activities (such as the United States or Canada),a cargo owner could sue the contracting carrier under theinstrument’s terms or sue the inland performing party underthe otherwise applicable law, for example, under UnitedStates tort law or Canadian legislation.

227. Certain differences between the United States sug-gestion and the Italian proposal were stressed. First, underthe Italian proposal, the contracting carrier’s liability to theshipper would be on a fully uniform basis (using the lia-bility limits established by the instrument), rather thanunder subparagraph 4.2.1’s limited network system.Second, under the Italian proposal, the instrument wouldcreate a cause of action by the cargo owner against theperforming party on the terms of the contract between theperforming party and the carrier. Thus, under the Italianproposal, the cargo interests would in effect step into theshoes of the contracting carrier vis-à-vis the performingparty. In contrast, under the United States suggestion, thecargo interests could sue the performing party under what-ever law would otherwise be applicable to the suit in theabsence of the instrument, for example, under domestic tortlaw.

228. The Working Group heard the InternationalFederation of Freight Forwarders Associations (FIATA)(see also pp. 3-5, A/CN.9/WG.III/WP.28) reiterate its posi-tion that the draft instrument was originally conceived asa maritime law draft, as was evident throughout its provi-sions, and that its scope should thus be confined to port-to-port coverage. It was also suggested that confining thescope of application to port-to-port was an opportunity toreunite maritime carriage of goods law, and that the instru-ment already sought to address issues that had not beforebeen addressed in a maritime convention, as well as press-ing daily issues, such as delivery of goods without the pro-duction of a bill of lading, on-deck carriage in the containertrade, and the use of electronic documents. It was also sug-gested that by expanding the scope of application to trueport-to-port carriage from that of tackle-to-tackle, a numberof the traditional liability gaps in the network system couldbe closed, and stevedores and terminal operators could bedrawn into the regime. It was submitted that the door-to-door approach advocated in the Working Group was trulymultimodal transport, and the Group should take care touse precise language in describing the various options it

was considering. It was also stated that experience shouldbe drawn from the UNCTAD/ICC Rules and from theMultimodal Convention, as well as from a previous effortby CMI, the Draft Convention on the InternationalCombined Transport of Goods, or the TCM Convention. Itwas suggested that the “maritime plus” expression wasmerely a euphemism for the expansion of maritime law onto land, and that at least a true multimodal approach shouldbe called for. Further, it was suggested that such a multi-modal approach should take into account “generic” or“unspecified” transport, where the consignor might give aninstruction to the carrier without indicating the mode oftransport to be used. It was also urged that there should bea clear definition of what was meant by “strict” liabilityand “fault-based” liability, and that the Working Groupshould exercise caution in including rules of private inter-national law in the draft instrument, since it was suggestedthat they tend to cause serious problems. It was also statedthat the scope of application and the position of the per-forming parties were closely linked.

229. The Working Group also heard from the Associationof American Railroads (AAR) (see also pp. 32-34,A/CN.9/WG.III/WP.28) that North American freight rail-roads had well-established systems in Canada and theUnited States that governed the liability of rail carriers forgoods transported in connection with a movement by sea,and that fundamental to those systems was the right ofevery ocean carrier to choose the level of protection itdesired for its cargo. It was stated that in this regard, therail carrier had privity of contract only with the ocean car-rier when transporting containers having a prior or subse-quent movement by sea, but that the draft instrument wouldrepress the ability of rail carriers to exercise this contrac-tual right and would significantly and adversely affect thecurrent system affecting United States and Canadian railcarriers’ liability. It was suggested that the draft instrumentwas a maritime-oriented instrument that neither addressedin-depth nor resolved the significant issues affecting railtransport, and that it should not apply to the rail inlandportion of a transport movement if a door-to-door conceptwas adopted. It was stated that vigorous debate over thefull spectrum of issues that affect and impact upon the pos-sible extension of the draft instrument on a door-to-doorbasis to rail land transport was welcomed and it was sug-gested that such a debate would result in an instrument thatwould not have application to rail carriage. It was also sub-mitted that an exclusion for rail carriage should applywhether such rail carriage was subject to international con-ventions or national domestic law.

230. The Working Group also heard from the Inter-governmental Organisation for International Carriage byRail (OTIF), which reiterated the support it expressed atthe tenth session of the Working Group (see para. 28,A/CN.9/525) for the establishment of global rules to governmultimodal transport, provided that unimodal regimes suchas COTIF and CMR were taken into consideration. It wassuggested that adopting a network system rather than a uni-form system would preserve the integrity of the existingunimodal conventions, and would thus reduce possible con-flicts with them, and enhance the likelihood of widespreadsupport for the draft instrument. It was suggested that onlyin cases when there was non-localized damage should a

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uniform regime for multimodal transport apply rather thana network system, and it was submitted that the primarypurpose of conventions for international carriage should notonly be to promote uniformity, but also to ensure an accept-able and fair balance of rights and liabilities amongst theparties to the contract of carriage. It was stated that OTIFhad doubts whether the draft instrument, as currentlydrafted, could serve as a useful basis for a door-to-doorinstrument, and that there was increasing scepticism that amultimodal regime on the basis of a maritime-based draftcould gain general acceptance. The Working Group wasurged to consider existing commercially-accepted solutionsfor multimodal transport, such as the UNCTAD/ICC Rules,as an alternative basis for a door-to-door convention.

231. The International Chamber of Shipping (ICS) reiter-ated its position on the scope of application of the draftinstrument to the Working Group (see pp. 9-11,A/CN.9/WG.III/WP.28), noting that the shipping industrywas in favour of a door-to-door regime that provided addedvalue and went beyond the port-to-port system. It was alsonoted that ICS was in favour of an international maritimeplus convention based upon the draft instrument, and thatit supported a limited network system as contained in sub-paragraph 4.2.1.

232. It was recalled that the International Group ofProtection & Indemnity Clubs (P&I Clubs) had made itsviews known to the Working Group (see pp. 36-41,A/CN.9/WG.III/WP.28) in the previous session. It was reit-erated that the P&I Clubs supported a door-to-door scopeof application, and it was suggested that although difficul-ties could arise with both the limited network system anda uniform system; it should be noted that industry had to alarge extent adopted a network system for multimodal trans-portation, such as those found in the UNCTAD/ICC Rulesand in the COMBICON bill of lading. The Working Groupwas urged to consider and respond to the needs of indus-try, and support was expressed for a limited networkapproach along the lines provided for in subparagraph 4.2.1.

233. Having heard the above statements, the WorkingGroup entered into a general exchange of views on thescope of application of the draft instrument. Broad supportwas expressed for a door-to-door scope of application asbest suited to meet current industry needs and demands. Itwas suggested that in its pursuit of appropriate provisionsfor door-to-door coverage, the Working Group shouldattempt to reach the optimal balance with respect to fourcompeting principles: the promotion of uniformity to asgreat an extent as possible; the avoidance of conflicts ofconvention to as great an extent as possible; the accom-modation to as great an extent as possible of those Statesthat would prefer to leave the regime covering their inlandcarriers untouched; and the provision of rules in the draftinstrument that should be particularly geared to the needsof practitioners so as to avoid ambiguity. It was suggested,however, that it was necessary to define more preciselywhat a door-to-door carrier meant, in particular, how a dis-tinction could be drawn between a door-to-door carriageand a multimodal carriage. In addition, several delegationsexpressed the view that the issue of non-localized damagein a door-to-door context had to be solved in a satisfactoryway regarding all parties concerned.

234. Support was expressed for the limited network prin-ciple embodied in subparagraph 4.2.1, since it would entailthat the liability rules in the recourse action and the mainaction would be the same. It was also noted that industryhad developed its own network system in the 1992UNCTAD/ICC Rules for Multimodal Transport Documentsand in the COMBICON combined transport bill of ladingadopted by the Baltic and International Maritime Council(BIMCO 1971, updated in 1995). Support was alsoexpressed for a true multimodal system. Some caution wasencouraged in this regard, however, since other multimodalregimes could be negotiated in the future, and States wereunlikely to ratify and implement multiple multimodalregimes. It was also suggested that paragraph 1.5 togetherwith subparagraph 4.2.1 was really a multimodal approach,but doubts were expressed regarding that characterization.A concern was also raised that the limited network systemwould disadvantage developing countries, because the draftinstrument was mainly a maritime instrument and, sincemost developing countries were not party to mandatoryinland transport conventions, this maritime draft instrumentwould govern the entire period of the multimodal transportin such countries.

235. Some support was expressed for the approach takenin option 2 of the Canadian proposal, in adding a refer-ence to national law in subparagraph 4.2.1. It was statedthat such an approach would be particularly appropriate forthose States that were not parties to the European unimodaltransport conventions, and that would prefer to have theirnational laws applicable in the treatment of performing car-riers. It was stated in response that including national lawin subparagraph 4.2.1 would dilute the uniformity of thelimited network principle to such an extent that it wouldno longer be acceptable. In addition, the suggestion wasmade that option 2 might not be clear enough on the issuewhich national law would apply to inland carriers, sincethe law governing the contract for inland carriage woulddepend on the rules of applicable law, as well as the choiceof law in the contract itself, and a provision regardingapplicable law might be necessary. It was also stated that,if mandatory national law were added to subparagraph4.2.1, aspects of its inclusion should be qualified, such that,for example, it could not create lower liability levels thanthe draft instrument. There was some support for anothersuggestion that the insertion of national law could be lim-ited to national law based on international conventions, inorder to limit the loss of uniformity that would result.

236. Support was also expressed for the Italian proposal,particularly for the third principle thereof which was felt toaccommodate the concerns of those States that wished topreserve the applicability of their national law by holdingthat any action by an inland carrier should be governed bythe applicable inland transport convention or applicableinland law. It was suggested that this aspect promoted uni-formity by replacing subparagraph 4.2.1 and making thecontracting carrier no longer potentially subject to an appli-cable inland convention, and by making clear that the inlandperforming carrier would at all times be subject to the inlandconvention or applicable national law through the contractconcluded by that inland performing carrier. However, con-cern was expressed that the performing carrier could con-clude a contract that would be detrimental for the shipper.

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237. Some support was expressed for option 3 of theCanadian proposal, since it was suggested that, leavingaside questions of reservation until later, structuring thedraft instrument in two separate chapters would deal withthe two different regimes, it could promote long-term uni-formity, and it would facilitate the discussion in theWorking Group by proceeding on a structured basis. Inaddition, the precedent of the Convention on Contracts forthe International Sale of Goods was cited in support ofthe structure suggested, since one part therein dealt withthe formation of contracts, and another dealt with sub-stantive sales contracts along with a reservation for optingout. Caution was expressed with respect to the approachsuggested in option 3 of the Canadian proposal, however,since it was felt that accommodating reservations to theinstrument at this point in the discussion was premature,and should be left to the closing stages of a diplomaticconference, when other means of bridging differences hadbeen exhausted. Further, it was suggested that this struc-ture could encourage States to opt for the port-to-portapproach rather than the door-to-door option, and that itwould thus dilute uniformity. An additional concern wasraised that option 3 might serve to divide the process, andencourage negotiations on maritime provisions at first, andon multimodal provisions in the future. In addition, it wasstated that option 3 would complicate discussions byrequiring reference throughout the discussions on two dif-ferent periods of responsibility. However, it was pointedout in response that there was no need to correlate theperiods of responsibility in the two chapters, since theperiod would simply apply to the contract of carriage,depending on which of the multimodal or the maritimecontract had been chosen. There was some support for theview that option 3 might be revisited at a later stage inthe discussions.

238. It was also stated that subparagraph 4.2.1 did notsolve the issue of a possible conflict with existing trans-port conventions, and that it should be deleted in favourof a general reservation for pre-existing transport conven-tions that could be inserted into chapter 16 of the draftinstrument as a type of conflict of conventions clause.

239. After discussion, however, wide support wasexpressed in the Working Group that the scope of appli-cation of the draft instrument should be door-to-door ratherthan port-to-port. Support was expressed for a uniformsystem in the door-to-door instrument, and it was suggestedthat an effort should be made to achieve such a uniformsystem. However, there was broad acceptance that a uni-form system was likely unattainable, and support was alsoexpressed in favour of a limited network system along thelines of that set out in subparagraph 4.2.1, but for a cor-rected version thereof. Various means of correcting the lim-ited network system were discussed, including thosesuggested in the Italian, the Canadian and the Swedish pro-posals, but no firm decision was made by the WorkingGroup in this regard.

2. Consideration of specific issues related to the scope of the draft instrument

240. Having provisionally agreed that the scope of thedraft instrument should cover door-to-door transport, the

Working Group proceeded with a more specific discussionof the following five issues: (a) the type of carriage cov-ered by the draft instrument; (b) the relationship of the draftinstrument with other conventions and with domestic leg-islation; (c) the manner in which performing parties shouldbe dealt with under the draft instrument; (d) the limits ofliability under the draft instrument; and (e) the treatmentof non-localized damages under the draft instrument.

(a) Type of carriage covered by the draft instrument

241. It was generally felt that more clarity was neededwith respect to the type of carriage covered by the draftinstrument. The frequent reference to the notion of “mar-itime plus” carriage, its implications regarding the use ofnon-maritime modes of transport, and the reliance on anetwork system to govern the relationships between thedraft instrument and other transport conventions, createda need to review precisely the respective limits of “mar-itime plus” carriage as covered by the draft instrument andmultimodal carriage of goods as understood, for example,in the 1980 Convention. One obvious distinction betweenthe type of carriage covered by the draft instrument andunqualified multimodal carriage resulted from the defini-tion of “contract of carriage” given by paragraph 1.5,under which the draft instrument applied to a carriage ofgoods “wholly or partly by sea”. The discussion thenfocused on whether it would be desirable and feasible toestablish any further distinction between multimodal car-riage and the type of carriage covered by the draft instru-ment, or whether carriage of goods under the draftinstrument should be understood as covering any multi-modal carriage involving a sea leg.

242. Several possible criteria were suggested for estab-lishing such a distinction. One suggestion was that the draftinstrument should cover “intercontinental” carriage ofgoods wholly or partly by sea. That suggestion was gen-erally objected to on the grounds that it would be highlyimpractical, politically unacceptable and legally unfoundedto attempt establishing a distinction between “interconti-nental” carriage and “international” carriage. Another sug-gestion was that, in view of the strong influence ofmaritime law reflected in the draft instrument, the draftinstrument should only apply to a multimodal carriagewhere the importance of the maritime leg was predomi-nant. Some support was expressed for the view that therespective importance of sea carriage and land carriage inthe overall multimodal carriage should be taken intoaccount. In that respect, it was stated that, in practice, thedraft instrument was expected to apply mostly to the trans-port of containers that would be carried for the most partby sea, with inland carriage taking place on relatively shortdistances before or after the sea carriage. That view wasobjected to on the grounds that the respective importanceof the sea carriage and carriage by other modes should notbe assessed by reference to the itinerary actually followedby the goods but more subjectively by reference to theintent of the parties as expressed in the contract of car-riage. From a statistical perspective, the example was givenof a region where containers carried by rail before or aftera sea leg would, on average, travel inland over 1,700 miles.The prevailing view was that no attempt should be madeto establish in the draft instrument the ancillary character

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of the land carriage. It was generally felt that the only prac-tical way of addressing that aspect of the scope of the draftinstrument was to decide that multimodal carriages involv-ing a sea leg should be covered by the draft instrument,irrespective of the relative duration or distance involved inthat sea leg.

243. A question was raised as to how the internationalityof the carriage covered by the draft instrument should bereflected in the individual unimodal legs of the carriage.The suggestion was made that the draft instrument shouldonly apply to those carriages where the maritime leginvolved cross-border transport. Under that suggestion, itwas said to be irrelevant whether the land legs involved inthe overall carriage did or did not involve cross-bordertransport. It was pointed out that such an approach wouldbe in line with other conventions such as the COTIF, underwhich the internationality of the carriage should be deter-mined in respect of the carriage by rail only. The WorkingGroup took note of that suggestion and requested the sec-retariat to reflect it, as a possible variant, in the reviseddraft to be prepared for continuation of the discussion at afuture session. The prevailing view, however, was that, pur-suant to draft article 3, the internationality of the carriageshould not be assessed in respect of any of the individualunimodal legs but in respect of the overall carriage, withthe place of receipt and the place of delivery being in dif-ferent States. For example, in the case of carriage of goodsfrom Vancouver to Honolulu, the applicability of the draftinstrument should not depend on whether the goods wereshipped directly to Honolulu or first carried by road toSeattle and subsequently shipped to Honolulu.

244. After discussion, the Working Group agreed on aprovisional basis that the draft instrument should cover anytype of multimodal carriage involving a sea leg. No fur-ther distinction would be needed, based on the relativeimportance of the various modes of transport used for thepurposes of the carriage. It was also agreed that draft arti-cle 3 might need to be redrafted to better reflect that theinternationality of the carriage should be assessed on thebasis of the contract of carriage. The secretariat wasrequested to prepare revised provisions, with possible vari-ants, for continuation of the discussion at a future session.In view of the decision made by the Working Groupregarding the type of carriage to be covered by the draftinstrument, the attention of States members of the UnitedNations Economic Commission for Europe (UN/ECE) wasdrawn to the need to ensure coordination of their delega-tions in the Working Group and in the UN/ECE to avoidduplication of efforts.

(b) Relationship of the draft instrument with other transport conventions and with domestic legislation

245. The Working Group next considered the issue of therelationship of the draft instrument with other conventionsand with domestic legislation. Discussion ensued in aneffort to clarify views regarding the relationship betweenthe draft instrument and multimodal and unimodal instru-ments, and with applicable national law.

246. The Working Group was reminded that subparagraph4.2.1 was intended to accommodate the continued appli-

cation of the normally applicable inland conventions forthe carriage of goods. The view was expressed that withrespect to pure unimodal conventions, with no multimodalaspects, no conflict with the draft instrument would arise,and that, as a consequence, subparagraph 4.2.1 was unnec-essary. A widely supported view was expressed that thelimited network principle in subparagraph 4.2.1 of the draftinstrument was effective in ensuring that there was no over-lap with unimodal conventions or any future regional mul-timodal convention. Another view was expressed, however,that subparagraph 4.2.1 did not solve the issue of conflictof conventions, since it gave preference only to specificprovisions of applicable unimodal conventions. TheWorking Group was reminded that certain States wouldfind it impossible to be signatory to more than one multi-modal convention, and that if the draft instrument was amultimodal instrument, ratification of it could precludesome States from ratifying broader multimodal conven-tions. A further concern was raised that if the draft instru-ment was multimodal, parties to other instruments that havemultimodal aspects, such as the Montreal Convention andCOTIF, might have to denounce those conventions infavour of the draft instrument.

247. It was also suggested that paragraph 3.1 should beclarified with respect to the situation where, for exam-ple, goods on a truck were not unloaded on to the vesselduring a multimodal carriage of goods, such that the draftinstrument and CMR would compete in terms of appli-cable law. A further suggestion was made that the net-work system in subparagraph 4.2.1 should be abandonedin favour of a uniform approach, and that, in its stead, aconflict of conventions provision could be inserted intoarticle 16 of the draft instrument. It was also suggestedthat such a provision should be added to article 16, inany event, if it was decided that subparagraph 4.2.1should be deleted.

248. Concern was raised with respect to how the draftinstrument would deal with future regional transport con-ventions. The view was expressed that the terms of suchfuture conventions might also prevail over those of thedraft instrument pursuant to subparagraph 4.2.1, and thusthat such future conventions represented at least as great athreat to uniformity as the inclusion of mandatory nationallaw. The suggestion was made that since the limited net-work principle was intended as a practical approach to gainas much support for the draft instrument as possible, theproblem of future conventions could be solved by limitingthe operation of subparagraph 4.2.1 to existing internationalconventions.

249. It was reiterated that there was an important rela-tionship between national law and the draft instrument,since the current version of the draft instrument wouldautomatically supersede national law pursuant to sub-paragraph 4.2.1, yet the provisions of international con-ventions would stand. The suggestion was again madethat the draft instrument should include mandatorynational law in the exception to its scope of applicationset out in subparagraph 4.2.1, and reference was againmade to option 2 of the Canadian proposal (see above,paras. 221 and 235). In response, the view was expressedthat subparagraph 4.2.1 should not be so amended in order

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to apply mandatory national law, since it could mean, insome cases, that the limit on liability in the national lawwould be lower than that set out in the draft instrument,and this would mean not only that performing partieswould be protected in terms of the lower liability limits,but that contracting carriers could claim the same liabil-ity limit. It was explained that the change suggested withrespect to the treatment of performing parties under thedraft instrument was intended to take into account theconcern with respect to national law, but at the same timeto allow cargo interests to proceed directly against per-forming parties under whatever law would apply in theabsence of the draft instrument. The point was made thatoption 2 of the Canadian proposal was not intended toallow the application of national law to the contractingcarrier, but that the possibility of this unintended conse-quence would have to be assessed. Interest was voiced inpursuing further discussions based on both the Italian pro-posal (see above paras. 220 and 236) and the UnitedStates suggestion (see above paras. 226 and 227), one ofwhich the Working Group might potentially adopt in thefuture to deal with concerns respecting the preservationof mandatory national law.

250. After discussion, the Working Group agreed provi-sionally to retain the text of subparagraph 4.2.1 as a meansof resolving possible conflicts between the draft instrumentand other conventions already in force. The secretariat wasinstructed to prepare a conflict of convention provision forpossible insertion into article 16 of the draft instrument,and to prepare language considering as an option theSwedish proposal to clarify paragraph 3.1. The exchangeof views regarding the relationship between the draft instru-ment and national law was inconclusive, and the decisionwas made to consider this issue further in light of antici-pated future proposals. Given the level of support withrespect to the issue of national law, however, the WorkingGroup requested the secretariat to insert a reference tonational law in square brackets into the text of subpara-graph 4.2.1 for further reflection in the future.

(c) Treatment of performing parties

251. The Working Group was reminded that the issue ofthe treatment of performing parties pursuant to the draftinstrument had been discussed in general terms by the del-egations of the United States and of Italy in the presenta-tion of their proposals regarding scope of application (seeabove, paras. 220, 226 and 227).

252. One concern raised with respect to the treatment ingeneral of performing parties was the geographic reach ofthe draft instrument. The example was given of goodsbeing shipped from Tokyo to Rotterdam via Singapore, andwhether the stevedore handling the goods in Singapore wassubject to the draft instrument if either Japan or theNetherlands had ratified it but Singapore had not. It wassaid that a direct cause of action against a performing partyin a non-contracting State should not be maintained in thedraft instrument.

253. Interest was shown in the proposal by the UnitedStates that the draft instrument should provide differenttreatment for maritime performing parties and for inland

performing parties, but the view was expressed that firmpositions on the proposal could not be expressed until itwas formally presented at a later date. It was stated that,under that proposal, maritime performing parties would betreated pursuant to paragraph 6.3, and thus they would besubject to action under the terms of the draft instrument,receiving all of the benefits of the carrier’s defences andlimitations. Subparagraphs 6.3.1 and 6.3.3 would have tobe modified with respect to inland performing parties, how-ever, so that the draft instrument would not create any addi-tional cause of action against them, nor create anyadditional Himalaya protection for them, outside of theexisting applicable law. The view was expressed that sep-arate treatment of maritime and inland performing partieswould be of particular importance if mandatory nationallaw was not included in subparagraph 4.2.1. One concernwas raised, however, that the institution of the performingparty was created to protect both the shipper and the per-forming party from potential exposure to unlimited liabil-ity pursuant to an action in tort, and that the proposal couldcreate problems in this regard in the multimodal environ-ment, since the performing party could be sued by aclaimant on the basis of a different contract. Another con-cern was raised with respect to whether the operation ofthis proposal could conflict with the 1991 Convention onthe Liability of Operators of Transport Terminals inInternational Trade.

254. A request was made for clarification with respect tothe difference between the performing party and the per-forming carrier in the Italian proposal. In responding tothis question, it was said that the Italian proposal narrowlydefined performing party to exclude from it those personswho handled and warehoused the goods, and who werenot subject to any inland convention, leaving only thosewho actually moved or carried the goods as performingparties under the draft instrument. The proposal was saidto include a right of suit against performing parties in thisnarrowed sense, such that the contract that the performingparty itself concluded would apply. Some concern wasexpressed with respect to this narrowed definition of per-forming party, particularly with the Himalaya protectionwhich, it was thought, should be available to all perform-ing parties. Another concern raised with respect to the nar-rowed definition of performing party was that it wasthought that performing parties should not be defined onthe basis of their function, since to do so could give riseto uncertainty over who was covered in the draft instru-ment, and who should be sued. It was said that anotheraspect of the Italian proposal was a distinction drawnbetween maritime performing parties and inland perform-ing parties, such that the draft instrument would apply tomaritime performing parties, and the inland performingparties would be subject to the contract that they them-selves concluded. It was thought that inland performingparties should have the Himalaya protection granted bythe contract concluded by them. The view was expressedthat allowing the inland performing party to make use ofthe protection in its own contract could unduly complicatematters, and might not provide sufficient clarity. Anotherconcern raised with respect to this proposal was that thereference to international conventions and to the nationallaw applicable between the performing carrier and theinland performing party could be understood to include

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non-mandatory national law, and the terms of that con-tract could be binding on the shipper who would like tosue the inland performing party directly. It was said thatthis would unfairly allow the contracting carrier and theperforming carrier to conclude a contract to the detrimentof the shipper.

255. Some tentative support was expressed for a combi-nation of the Italian and the United States proposals withrespect to the treatment of performing parties. For exam-ple, there was general support for the separate treatmentof maritime and inland performing parties, but it wasthought to be better for the purposes of uniformity if thedraft instrument would make specific reference to therights of suit of inland performing parties. No conclusionwas reached with regard to such a combination of pro-posals.

256. After discussion, it was agreed that the treatmentof performing parties under the draft instrument was animportant matter that would shape the entire instrument,and could help in the solution of other problems, suchas the inclusion of mandatory national law in subpara-graph 4.2.1. The anticipation of a more refined writtenproposal on this issue prevented a clear final or interimdecision from being made at this stage. It was thoughtthat the time was not yet ripe for revisions to be madeto the draft instrument with respect to its treatment ofperforming parties.

(d) Limits of liability

257. A widely shared view was that no attempt should bemade to reach an agreement on any specific amount forthe limits of liability under subparagraph 6.7.1 at the cur-rent stage of the discussion. A suggestion was made that,irrespective of the amount that was finally retained, a rapidamendment procedure should be established by the draftinstrument. It was suggested that the 1996 Protocol to theIMO Convention on Limitation of Liability for MaritimeClaims might provide a model in that respect. That sug-gestion was widely supported.

258. The view was expressed that the limits of liability inthe context of a multimodal instrument should be consid-erably higher than the maritime limits established in theHague and Hague-Visby Rules. It was explained that,should the carrier engage in multimodal transport, a situa-tion where different limits of liability might be applicable(ranging from 2 SDR per kilogram for maritime transportto 8.33 SDR per kilogram for road transport and even 17SDR per kilogram for air transport), the carrier would inany event get insurance coverage for the higher limit appli-cable during the carriage, provided that a network systemwas applicable. It was stated in response that the purposeof a limitation of liability was not to ensure that any con-ceivable shipment would result in the value of the goodsbeing compensated in case of damage or loss. The purposeof limitation of liability, it was stated, was to ensure pre-dictability and certainty. It was observed that even underthe liability limits set out in the Hague-Visby Rules, about90 per cent of losses and damages were fully compensatedon the basis of the limitation per package. By way of expla-nation, it was stated that packages in the practice of modern

containerized transport had generally become smaller andthat it was generally recognized that, in containerized trans-port, the notion of “package” applied to the individualpackages inside the container and not to the container itself.It was also explained that the limitation per kilogram setout in the Hague-Visby Rules still corresponded to theaverage value of containerized cargo, despite considerableregional variations. From a similar perspective, it wasstated that, since the adoption of the Hague-Visby proto-col, the freight rates in maritime trade had decreased andthat such decrease should be taken into account when deter-mining the limits of liability.

259. With respect to the last sentence of subparagraph6.7.1, it was recalled that the sentence had been bracketedpending a decision as to whether any mandatory provisionshould be one-sided or two-sided mandatory, that iswhether or not it should be permissible for either party toincrease its respective liabilities (see A/CN.9/WG.III/WP.21, para. 106). The earlier discussion by the WorkingGroup (see above, para. 214) was noted and it was provi-sionally agreed that the square brackets should be removedfrom that provision.

260. With respect to the loss of the right to limit liabilityunder paragraph 6.8, the view was expressed that the ref-erence to the “personal act or omission” of the personclaiming a right to limit should be replaced by a referenceto the “act or omission” of that person. It was recalled thata similar suggestion had been made at the previous sessionof the Working Group, for reasons of consistency with theAthens Convention relating to the Carriage of Passengersand their Luggage by Sea. It was pointed out in responsethat the issue of consistency with the Athens Conventionwould arise mostly in the case where both cargo and pas-sengers were carried on the same vessel, a case that wasdescribed as relatively rare. One delegation offered to pre-pare a study on the issue of consistency between the draftinstrument and the Athens Convention for consideration bythe Working Group at a future session.

261. It was widely felt that the reference to the “personalact or omission” of the person claiming a right to limitshould be considered in the context of the possibility ofadding a provision on the intentional fault of the servantor agent of the carrier. In favour of introducing such a pro-vision, it was stated that paragraph 6.8 dealt with theextreme situation where loss or damage to the goods hadbeen caused by the intentional act or omission of the car-rier who, in this case, should not be permitted to avoid lia-bility by demonstrating that the acts that caused the lossor damage were those of a servant or agent and not thepersonal acts or omissions of the carrier. In response, itwas recalled that, at the previous session of the WorkingGroup, it had been suggested that the rules on the limita-tion of liability should be made unbreakable or almostunbreakable to ensure consistency and certainty in inter-pretation of the rules (A/CN.9/525, para. 88). It was statedthat an almost unbreakable limit of liability would resultin a situation where it would be easier for the carrier toobtain insurance coverage. However, it was also recalledthat, while there existed precedents of international instru-ments where such unbreakable limits of liability had beenimplemented, such instruments relied on a relatively high-

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amount limitation (ibid.). With a view to alleviating theconcern that had been expressed regarding the possibilityfor the carrier to avoid liability, it was pointed out that thenotion of “personal act or omission” under paragraph 6.8should be understood to apply not only to the contractingcarrier but also to each performing party. After discussion,the Working Group decided that the word “personal”should be placed between square brackets for continuationof the discussion at a later stage.

262. A suggestion was made that the draft instrumentshould make it clear that the carrier should never be liablefor more than the value of the goods. It was stated inresponse that a provision to that effect had been placed insubparagraph 6.2.3. It was generally felt that the purposeof that provision might need to be expressed more clearlyin a future draft.

263. Another suggestion was made that the provisionsdealing with limits of liability in the draft instrument mightneed to be adjusted in view of the decisions made by theWorking Group with respect to the possibility for the car-rier to qualify the description of the goods given by theshipper in the transport document. Should such a qualifi-cation be made by the shipper regarding the weight of thegoods or the number of packages, the draft instrumentshould be clear as to which weight and number of pack-ages should be used for the purposes of applying the limitsof liability. It was suggested that, in such a context, thequalifications might need to be ignored, much in the sameway as a “said to weigh” clause would be ignored undercurrent practice. The Working Group took note of that sug-gestion.

(e) Treatment of non-localized damages

264. In light of the deliberations of the Working Groupregarding the limits of liability, the view was expressedthat the limits set out in the Hague-Visby Rules were toolow to be acceptable as a default rule in case of non-local-ized damages. Support was expressed for a proposal thatthe following provision should be inserted after subpara-

graph 6.7.1: “Notwithstanding the provisions of subpara-graph 6.7.1, if the carrier cannot establish whether thegoods were lost or damaged during the sea carriage orduring the carriage preceding or subsequent to the sea car-riage, the highest limit of liability in the international andnational mandatory provisions that govern the differentparts of the transport shall apply.” It was explained that,where a non-localized damage occurred, the damages tothe goods usually were detected at the place of receipt,which meant that only small amounts of goods were dam-aged (see A/CN.9/WG.III/WP.26). In addition to the pro-posal that higher limits of liability should apply in case ofnon-localized damages, it was suggested that the draftinstrument should be amended to reflect the policy that,should the carrier wish to avoid the higher limit of liabil-ity, it should bear the burden of proving the part of thecarriage during which the damage had occurred. It wasstated that such a policy regarding the burden of proof wasjustified by the fact that the carrier was in a better posi-tion than the shipper to investigate the events that hadoccurred during the voyage.

265. In response to a question regarding the reasons whythe draft instrument should apply as a default rule in caseof non-localized damages, the view was reiterated that themain consideration regarding that matter should be toensure predictability and certainty regarding the liabilityregime applicable to non-localized damages.

266. As a matter of drafting, it was suggested that the draftinstrument might need to reflect more clearly the legalregimes governing localized damages under subparagraph4.2.1 and non-localized damages under subparagraph 6.7.1.The secretariat was invited to consider the need forimproved consistency between those two provisions whenpreparing a revised draft of the instrument.

267. After discussion, the Working Group decided that theproposal in paragraph 264 above should be reflectedbetween square brackets as one possible variant in a revisedversion of the draft instrument to be considered at a futuresession.

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1. The first question that should be considered is whether it isright to approach the problem of the choice between a door-to-doorand a port-to-port instrument as if these were really two alterna-tives. This would be the case if also a port-to-port instrument wouldlikely obtain the support of the industry. It is felt, however, thatthis might not be the case and that certain sections of the industry(e.g. shipowners, P&I Clubs, insurers) might be prepared to leavethe safe grounds of a well tested, albeit old fashioned, system suchas that of the Hague-Visby Rules only if the new instrument wouldreally constitute an answer to the reality of modern transportation.And the reality is door-to-door container transportation.

What is needed is to adopt a set of rules that apply through-out the door-to-door carriage in the relationship between the ship-per and the carrier in order to ensure certainty in respect of therules by which the contract is governed.

The type of carriage that demands such rules is the carriageby sea of containers preceded and/or followed by a carriage byroad and/or railway: from the door of the shipper to the door ofthe consignee. This type of carriage, therefore, is a special cate-gory of multimodal transport.

The ideal solution would be to have a uniform set of rulesapplicable throughout the carriage, rather than a network system,even if limited in scope, because the network system createsuncertainty. The instrument however should apply only to thecontract between the shipper and the carrier while the recourseaction, if any, of the carrier against the performing carrier shouldremain subject to the specific rules applicable to the particulartransport mode, be it carriage by sea, by road or railway. Norought the instrument to apply to claims of the shipper against theperforming carrier, for that would again give rise to uncertainty,albeit in a different context: in that case the uncertainty wouldaffect the performing carrier, who often would not even knowwhat rules apply to the contract between the carrier and the ship-per, a contract to which he is not a party.

The application of the instrument to the claims of the shipperagainst the performing carrier would, moreover, entail a possibleconflict between the instrument and the transport conventionapplicable to the transport performed by the performing carrier.

This entails the restriction of the definition of “performingparty” to persons other than performing carriers and the additionof the definition of “performing carrier”.

The above change could be obtained by adding to the presentdefinition, after the words “Performing party means a person otherthan the carrier” the words “and the performing carrier(s)” andby adding the following new definition:

“Performing carrier” means a person that at the request of thecarrier performs in whole or in part the carriage of the goodseither by sea or by [another mode] [rail or road].

In order, however, to avoid possible actions in tort of the ship-per against the performing carrier, it should be provided that theaction of the shipper against the performing carrier is subject tothe rules that would apply if the action against the performingcarrier is brought by the carrier. If this principle is accepted, itwill of course be necessary to find out what legal technique canbe used in order to achieve that result: for example, a legal sub-rogation of the shipper into the rights of the carrier against theperforming carrier.

2. In order to see whether this scheme is workable it is neces-sary, however, to find out whether the provisions of conventionsapplicable to modes of transport other than maritime woulddirectly apply to the door-to-door transport under consideration,with the consequent application of Article 30 of the ViennaConvention on the Law of Treaties. This problem exists mainlyif not exclusively, in Europe, where there are already conventionsapplicable to carriage by road (the CMR)1, by rail (the COTIF-CIM)2 and by inland waterway (CMNI)3.

2.1 CMR

Article 1 of the CMR provides that the Convention shall applyto every contract of carriage of goods by road in vehicles forreward when the place of taking over of the goods and the placeof delivery are situated in two different countries of which at leastone is a contracting country.

ANNEX

Proposal by Italy on the application door-to-door of the instrument

D. Working paper submitted to the Working Group on Transport Law: Preparation of a draft instrument on the carriage of goods [by sea]:

Proposal by Italy

(A/CN.9/WG.III/WP.25) [Original: English]

NOTE BY THE SECRETARIAT

In preparation for the eleventh session of Working Group III (Transport Law), duringwhich the Working Group is expected to proceed with its reading of the draft instru-ment contained in document A/CN.9/WG.III/WP.21, the Government of Italy, on25 October 2002, submitted the text of a proposal concerning the scope and structure ofthe draft instrument for consideration by the Working Group. The text of that proposalis reproduced as an annex to this note in the form in which it was received by the secretariat.

1Convention on the Contract for the International Carriage of Goodsby Road, 1956 as amended by the Protocol.

2Uniform Rules concerning the International Carriage of Goods byRail, Appendix to the Convention concerning International Carriage byRail, as amended by the Protocol of Modification of 1999

3Budapest Convention on the Contract for the Carriage of Goods byInland Waterway, 2001.

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It is thought, therefore, that a door-to-door contract such as thatto which reference is made in article 4.2.1 of the Draft Instrumentwould not be subject to the CMR, first because it is not a “con-tract of carriage of goods by road” and, secondly, because theplace of taking over of the goods and the place of delivery arenot related to a specific contract of carriage by road, but rather tothe door-to-door contract: the taking over in fact occurs at theplace and time where the carrier (or a performing carrier) takesover the goods and delivery occurs at the time and place wherethe carrier (or a performing carrier) delivers the goods to the con-signee. If there are two road legs, one before and one after thesea leg, the taking over and delivery are not related to the sameroad leg and if there is only one road leg, for example before thesea leg, delivery is wholly unrelated to a carriage by road.

Nor can the reference in article 1(1) of the CMR to the placeof taking over and the place of delivery be read as a referenceto the places which the contract specifies for the taking over anddelivery by the carrier in its capacity as an international road car-rier. In fact the carriage by road is followed by the carriage bysea, at the end of the carriage by road there is no delivery, sincethe goods remain in the custody of the carrier until delivery tothe consignee at the final destination. In a door-to-door contractbetween Zurich and New York via Genoa, Genoa cannot be qual-ified as the place of delivery under that contract. It will only bethe place of delivery in so far as the contract between the carrierand the performing carrier who has performed the road carriageis concerned. While, therefore, that contract would be subject tothe CMR, the door-to-door contract would not.

The CMR would consequently apply to the contract of carriageby road between the carrier and the performing carrier if the con-ditions required by its Article 1 materialize. It would also applyto the claim of the shipper or consignee against the road carrier.

2.2 CIM

While CMR applies to any person who undertakes to carrygoods by road irrespective of a consignment note having beenissued or not, CIM in its 1980 version now in force only appliesto contracts of carriage entered into by railways, covered by athrough consignment note (art. 1). Its provisions, therefore, arenot applicable to the contract of carriage covered by the DraftInstrument and consequently no conflict is conceivable. Of coursethe recourse of the carrier against the railway in respect of loss,damage or delay occurred during the railway carriage would begoverned by the provisions of CIM.

The 1999 version of CIM instead provides (article 6 § 2), sim-ilarly to the CMR (article 4), that the absence, irregularity or lossof the consignment note shall not affect the existence or validityof the contract which shall remain subject to CIM. It is thereforenecessary to find out whether CIM, in its 1999 version, wouldapply to a door-to-door contract of carriage covered by the DraftInstrument where one of the legs of the carriage is performed byrail between places situated in two different States members ofCOTIF. The relevant provision of CIM is Article 1 § 4 which soprovides:

When international carriage being the subject of a single con-tract of carriage includes carriage by sea or transfrontier car-riage by inland waterway as a supplement to carriage by rail,these Uniform Rules shall apply if the carriage by sea orinland waterway is performed on services included in the listof services provided for in Article 24 § 1 of the Convention.

As previously stated, the first condition is, therefore, that thecarriage by sea must be a “supplement” to the carriage by rail.It is thought that this condition materializes where the contract ismade between the consignor and a railway and that, therefore,CIM does not apply where the contracting carrier is not a rail-

way. A potential conflict between the Draft Instrument and CIMwould thus be conceivable only if the “carrier”, as defined inArticle 1.1 of the Instrument, is a railway.

In any event, even in such a rather unlikely case, it would benecessary that the carriage by sea be included in the list of serv-ices provided for in article 24 § 1 of COTIF.

2.3 CMNI

Carriage by different modes of transport, and more specifi-cally by inland waterway and by sea, is regulated only in case itis performed by the same vessel, without transhipment. Article2(2) provides that in such a case CMNI applies except where a“marine bill of lading” has been issued or the distance travelledby sea is greater than that travelled by inland waterway.Therefore, since normally both these conditions will materialize,CMNI would not apply. The case of a contract of carriage by seaand by inland waterway with transhipment of the goods from theseagoing vessel to the inland waterway vessel or vice versa is notcontemplated. It is thought that such a contract is not covered bythe definition of “contract of carriage” in article 1(1) of CMNI,where reference is made to a contract whereby a carrier under-takes to carry goods by inland waterways. If this view is correct,CMNI would only apply to the relation between the person whohas stipulated the door-to-door contract and the carrier who per-formed the carriage by inland waterway.

It appears, therefore, that if the individual legs of the door-to-door carriage are subject to the international convention or to thelaw applicable to each of them, the application of the futureInstrument to the global door-to-door carriage would not give riseto any conflict.

3. Article 4.2.1 would consequently become unnecessary and ofcourse the text of the Draft Instrument should be reviewed in thelight of its application to different modes of transport, in orderto identify the provisions applicable to all transport modes andthose that instead are applicable only to carriage by sea.

Article 6.3.3 could be replaced by the following provisions:

6.3.3-A. The recourse action of the carrier against the per-forming carrier, as well as any action against a performing car-rier brought by the person entitled to assert claims in respect ofloss of or damage to or delay in the goods, shall be governed bythe international convention or national law applicable to the con-tract between the carrier and the performing carrier.

6.3.3-B. If an action is brought against the servants or agentsof the carrier or of a performing party, such servants or agents areentitled to the benefit of the defences and limitations of liabilityavailable to the carrier under this instrument if they prove that theyacted within the scope of their contract, employment or agency.

6.3.3-C. If an action is brought against the servants or agentsof a performing carrier, such servants or agent are entitled to thebenefit of the defences and limitations of liability available to theperforming carrier under the applicable international conventionor national law, if they prove that they acted within the scope oftheir contract, employment or agency.

Article 6.3.4 could be amended as follows:

6.3.4. If more than one person is liable for loss of, damageto, or delay in delivery of the goods, their liability is joint andseveral, but the aggregate liability of such persons shall notexceed the overall limits of liability under this instrument or theapplicable international convention or national law, whichever isthe highest.

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Part Two. Studies and reports on specific subjects 433

1. Background

Sweden welcomes the initiative by UNCITRAL to promote thecause of harmonization of international maritime law. Our grati-tude also goes to the Comité Maritime International (CMI) for itsimmense contribution to this cause.

At the tenth session of Working Group III on transport law, heldin Vienna, Austria, 16–20 September 2002, it was decided thatthe multimodal aspects of the draft instrument on maritime trans-port were to be discussed during the eleventh session in NewYork, USA, in the spring 2003. The secretariat also invited theStates to submit papers on the multimodal aspects during theautumn 2002. This proposal by Sweden is a response to that. Ifit later on is decided that the draft instrument is going to coverdoor-to-door transports Sweden proposes that the text of theInstrument in A/CN.9/WG.III/WP.21 are changed in the follow-ing way (changes and commentaries are in italics):

2. Scope of applicationArt. 3.1

3.1 Subject to article 3.3.1, the provisions of the draft instrumentapply to all contracts of carriage of goods by sea in which the placeof receipt and the place of delivery are in different States if

(a) the place of receipt [or port of loading] specified either inthe contract of carriage or in the particulars is located in aContracting State, or

(b) the place of delivery [or port of discharge] specified eitherin the contract of carriage or in the contract particulars is locatedin a Contracting State, or

(c) [the actual place of delivery is one of the optional placesof delivery specified either in the contract of carriage or in thecontract particulars and is located in a Contracting State, or]

(d) [the contract of carriage is entered into in a ContractingState or the contract particulars state the transport document orelectronic record is issued in a Contracting State, or]

(e) the contract of carriage provides that the provisions of thisinstrument, or the law of any State giving effect to them, are togovern the contract.

Subject to 4.2.1 the provisions of this instrument also apply tocarriage by inland waterway before and after the voyage by seaas well as to carriage by road or by rail from the place of receipt

to the port of loading and from the port of discharge to the placeof delivery, provided that the goods, during the sea voyage, havebeen unloaded from the means of transport with which the landsegment of the carriage is performed.

Commentary

In the first paragraph it is specified that the instrument apply tocontracts of carriage of goods by sea instead of contracts of car-riage. This is outlined also in paragraph 2 in which it is regulatedthat the instrument is not applicable to the ancillary transports ifthe goods are loaded on the truck or railway during the sea voyage.The idea behind this is to make it clear that the contract must befor a carriage of goods by sea and not by road or rail. Otherwisethere is a risk that there will be collision between on the one handart. 2 of the CMR Convention and art. 48 of the CIM Rules andon the other hand the proposed Instrument. If a ferry operatoragrees to carry goods from for example Leeds in Great Britain toStockholm in Sweden via the harbour of Gothen-burg and the goodsare loaded on a truck during the sea voyage it is, as 3.1 standstoday, uncertain whether the contract should be viewed as a con-tract of carriage by sea with ancillary transports under this instru-ment or as a contract of carriage by road under the CMRConvention. It is also important to notice here that a re-writing ofthe definition in 1.5 might be necessary.

Subparagraph 4.2.1Carriage preceding or subsequent to sea carriage

Where it has been established that a claim arises out of loss orof damage to goods or delay and the event which caused the loss,damage or delay took place solely during either of the followingperiods:

(a) from the time of receipt of the goods by the carrier or aperforming party until the goods are discharged in the sea portof loading from the means of transport with which the land seg-ment of the carriage is performed;

(b) from the loading of the goods in the sea port of dischargeon the means of transport with which the land segment of the car-riage is performed until the time of their delivery to the consignee;

and at the time of such loss, damage or delay there are interna-tional conventions or national legislations that according to theirterms apply to all or any of the carrier’s activities under the con-tract of carriage during that period and that cannot be departed

E. Working paper submitted to the Working Group on Transport Law at its eleventh session: Preparation of a draft instrument on the carriage of

goods [by sea]: Proposal by Sweden

(A/CN.9/WG.III.WP.26) [Original: English]

NOTE BY THE SECRETARIAT

In preparation for the eleventh session of Working Group III (Transport Law), during whichthe Working Group is expected to proceed with its reading of the draft instrument con-tained in document A/CN.9/WG.III/WP.21, the Government of Sweden, on 14 November2002, submitted the text of a proposal concerning the scope and structure of the draftinstrument for consideration by the Working Group. The text of that proposal is repro-duced as an annex to this note in the form in which it was received by the secretariat.

ANNEX

Proposal by Sweden on the regulation of door-to-door shipments

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434 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIV

from by private contract at all or to the detriment of the ship-per, such provisions, to the extent they are mandatory, shall pre-vail over the provisions of this instrument.

Art. 4.2.2 ought to be deleted

Commentary

The words “or as a consequence of” indicates that the loss,damage or delay does not need to materialize during the periodsin small (a) and (b). It is enough that they depend solely on whathappened during these periods. An illustration to that could bethat frozen food is carried by truck to the harbour at too high atemperature. The result of this is that the food starts to rot, butthis is not detected until the goods are loaded on board the vessel.The liability will in this situation be governed by the liabilityregime for carriage of goods by road.

In small (a) and (b) the words ”until the time of loading of thevessel” and ”from the time of their discharge from the vessel” havebeen changed to ”until the goods are discharged from the othertransport mode” and ”from the loading of the goods on the othertransport mode” in order to specifically point out that the instru-ment is not only applicable during the loading and the discharge ofthe seagoing vessel but also during the storage in a sea harbourterminal. However the instrument is not applicable during the load-ing or discharge of the other transport mode if that part of the trans-port is covered by an international or national mandatory regime.The reason for this wording is that the mandatory international andnational regulations on carriage of goods by land at least are appli-cable from the loading of the goods on to the truck or railway wagonto the discharge of the goods from those are completed. In the pro-posal the word “sea port” is used to point out that the instrumentis not applicable if there are international or national mandatoryprovisions that govern the carriage by inland waterway, i.e. ancil-lary transports to and from an inland waterway harbour.

According to this proposal all the provisions in these mandatoryregulations will prevail over the instrument. In the text in theWP.21 it is prescribed that only the specific provisions on car-rier liability, limitation of liability and time for suit prevail overthe instrument. The consequence of this is however, as the textappears in WP.21, that for example the mandatory provisions inthe CMR Convention on reservations are excluded here and thiswill constitute a breach of the Convention. The present text oughttherefore to be changed in this respect. As a consequence of thefact that national legislation will prevail over the instrument here,art. 4.2.2 should be deleted.

According to the proposed text this will also bring conformity inthe chain of carriers. It will for example become impossible for asub-carrier to hide behind the contracting carrier. If for examplegoods are carried by sea from USA to a harbour in Sweden andthen transported by train from the harbour to an inland city therailway carrier may according to the existing text in the Instrumenthide behind the sea carrier. According to the mandatory Swedishrailway legislation the shipper is entitled to a compensation ofSEK 150 per kilogram of the goods lost if there is a total loss.However if the American shipper sues the contracting carrier, i.e.the American shipping company—which is far more cheaper andconvenient for him than suing the Swedish railway carrier—, hewill only get 2 SDR per kilogram (i.e. approximately SEK 30.)After that the American shipping company will in the recourseaction only claim 2 SDR per kilogram from the railway carrier.

3. Calculation of the compensation

6.2.1 If the carrier is liable for loss of or damage to the goods,the compensation payable shall be calculated by reference to thevalue of such goods at the place and time of receipt according tothe contract of carriage. In addition to this the carrier shall refund

the freight, customs duties and other charges incurred in respectof the carriage.

6.2.2 The value of the goods shall be fixed according to the com-modity exchange price or, if there is no such price, according totheir market price or, or if there is no commodity exchange priceor market price, by reference to the normal value of the goodsof the same kind and quality at the place of receipt.

6.2.3 In case of loss of or damage to the goods and save as pro-vided for in article 6.4, the carrier shall not be liable for paymentof any compensation beyond what is provided for in subpara-graphs 6.2.1 and 6.2.2.

Commentary

In the proposed text the place for the calculation of the com-pensation and the value of the goods have been altered from theplace of delivery to the receipt. As a consequence of this it isalso regulated that the carrier shall refund the freight, customsduties and other charges incurred in respect of the carriage,values that normally are included in the market price at the placeof delivery. The reason for the change from the place of deliv-ery to the place of receipt is to make the Instrument to conformwith the CMR Convention art. 23 and the CIM Rules art. 40.Otherwise the calculation of the value of the goods will varydepending on during which leg, the land leg or the sea leg, thegoods are damaged. However this also requires that the provi-sions on freight in chapter 9 of the Instrument are changed.

6.7.1 Subject to article 6.4.2 the carrier’s liability for loss of ordamage to or in connection with the goods is limited to […] unitsof account per package or other shipping unit, or […] of accountper kilogram of the gross weight of the goods lost or damaged,whichever is the higher, except where the nature and the valueof the goods has been declared by the shipper before shipmentand included in the contract particulars, [or where a higheramount than the amount of limitation of liability set out in thisarticle has been agreed upon between the carrier and the shipper]

Notwithstanding the provisions of subparagraph 6.7.1, if the car-rier cannot establish whether the goods were lost or damagedduring the sea carriage or during the carriage preceding or sub-sequent to the sea carriage, the highest limit of liability in theinternational and national mandatory provisions that govern thedifferent parts of the transport shall apply.

Commentary

In addition to subparagraph 6.7.1 which is regulating that liabil-ity is limited to units of account per package regarding losses anddamages that have occurred during the sea voyage there is a needfor regulating the text of the Instrument the limitation level willhere be governed by article 6.7.1. Even if the exact level has notyet been decided upon it is likely that the level will be rather low(today it is 667 SDR per package or 2 SDR per kilogram) com-pared to other transport modes. A reason for having a rather lowlevel for losses and damages during the sea voyage could be thatif there is a total loss the carrier or his P&I Club would have topay a very high compensation in total. However this reason doesnot make sense in a situation where there is a non-located damage.Here the damages to the goods usually are detected at the placeof receipt which means that there are only small amounts of goodsthat are damaged. Regarding non-located damages, i.e. losses anddamages where it is impossible to say whether they occurredduring the sea voyage or during one of the ancillary transports,it seems preferable to protect the shipper/consignee by regulatingthat the carrier is only entitled to make use of the highest limita-tion level (according to the CMR Convention 8.33 SDR, andaccording to the CIM Rules 17 SDR) in the national or interna-tional mandatory liability regimes that govern the transport.

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Part Two. Studies and reports on specific subjects 435

F. Working paper submitted to the Working Group on Transport Law at its eleventh session: The UNCITRAL Draft Instrument on the Carriage of

Goods by Sea and the other transport conventions: Comparative tables

(A/CN.9/WG.III/WP.27) [Original: English]

NOTE BY THE SECRETARIAT

In preparation for the eleventh session of Working Group III (Transport Law), duringwhich the Working Group is expected to proceed with its reading of the draft instru-ment contained in document A/CN.9/WG.III/WP.21, Professor Francesco Berlingieri submitted a table comparing the provision of the UNCITRAL draft instrument on thecarriage of goods by sea with those of other transport conventions for the informationof the Working Group. The text of this extremely important reference document is repro-duced as an annex to this note in the form in which it was received by the secretariat.

THE UNCITRAL DRAFT INSTRUMENT ON THE CARRIAGE OF GOODS BY SEA AND THE OTHER TRANSPORT CONVENTIONS

Comparative Tables

CONTENTS

Page

Explanatory note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 436

Abbreviations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 436

Chapter 1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 437

Chapter 2. Electronic communications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 442

Chapter 3. Scope of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 443

A. General provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 443

B. Charter-party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 445

Chapter 4. Period of responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 447

A. General provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 447

B. Carriage preceding or subsequent to sea carriage. . . . . . . . . . . . . . . . . 448

C. Mixed contracts of carriage and forwarding . . . . . . . . . . . . . . . . . . . . . 451

Chapter 5. Obligations of the carrier . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 456

Chapter 6. Liability of the carrier. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 457

6.1. Basis of liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 457

6.2. Calculation of compensation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 461

6.3. Liability of performing parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 463

6.4. Delay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 465

6.5. Deviation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 467

6.6. Deck cargo. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 468

6.7. Limits of liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 470

6.8. Loss of the right to limit liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 477

6.9. Notice of loss, damage or delay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 479

6.10. Non-contractual claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 482

Live animals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 483

Chapter 7. Obligations of the shipper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 484

Chapter 8. Transport documents and electronic records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 489

8.1. Issuance of the transport document or the electronic record . . . . . . . . 489

8.2. Contract particulars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 491

8.3. Qualifying the description of the goods in the contract particulars. . . 494

8.4. Deficiencies in the contract particulars . . . . . . . . . . . . . . . . . . . . . . . . . 498

Chapter 9. Freight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 500

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436 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIV

Page

Chapter 10. Delivery to the consignee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503

Chapter 11. Right of control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 510

Chapter 12. Transfer of rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 516

Chapter 13. Rights of suit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 517

Chapter 14. Time for suit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 518

Chapter 15. General average . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522

Chapter 16. Other conventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523

Chapter 17. Limits of contractual freedom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 527

Chapter1 Jurisdiction and arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 530

EXPLANATORY NOTE

The comparative tables that follow are arranged in the order in which the individual subjects appearin the UNCITRAL Preliminary Draft Instrument on the Carriage of Goods by Sea and the title ofthe chapter shown in each table is the title of the individual chapter of the Preliminary DraftInstrument.

ABBREVIATIONS

INSTRUMENT: UNCITRAL Preliminary Draft Instrument on the Carriage of Goods by Sea

HAGUE-VISBY: International Convention for the Unification of Certain Rules of Law Relatingto Bills of Lading, Brussels 1924 as amended by the 1968 and 1979 Protocols

HAMBURG: United Nations Convention on the Carriage of Goods by Sea, 1978

MULTIMODAL: United Nations Convention on International Multimodal Transport of Goods,Geneva, 24 May 1980

CMR: Convention on the Contract for the International Carriage of Goods by Road,1956 as amended by the 1978 Protocol

COTIF-CIM 1999: Uniform Rules concerning the Contract for International Carriage of Goodsby Rail, Appendix to the Convention concerning International Carriage byRail, as amended by the Protocol of Modification of 1999

CMNI: Budapest Convention on the Contract for the Carriage of Goods by InlandWaterway, 2000

WARSAW: Convention for the Unification of Certain Rules Relating to InternationalCarriage by Air, Signed at Warsaw on 12 October 1929 as amended by theProtocol signed at Le Hague on 28 September 1955 and by the Protocol no. 4signed at Montreal on 25 September 1975

MONTREAL: Convention for the Unification of Certain Rules for the International Carriageby Air, Montreal 1999

1The chapter number, if any, to be determined in the course of discussions on the Draft Instrument.

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Part Two. Studies and reports on specific subjects 437C

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y to

suc

hun

it lo

ad.

1.5

“Con

trac

t of c

arri

age”

mea

ns a

cont

ract

unde

rw

hich

a ca

rrie

r, ag

ains

tpa

ymen

t of f

reig

ht,

unde

rtak

es to

carr

y go

ods

who

lly o

r par

tly b

y se

a fr

om o

ne p

lace

to a

noth

er.

1.6

“Con

trac

tpa

rtic

ular

s” m

eans

any

info

rmat

ion

rela

ting

toth

e co

ntra

ct o

fcar

riag

e or

to th

ego

ods

(incl

ud-

ing

term

s, n

otat

ions

,si

gnat

ures

and

end

orse

-m

ents

)tha

t app

ears

ina

tran

spor

tdoc

umen

tor

an

elec

tron

ic r

ecor

d.1.

7 “C

ontr

ollin

gpa

rty”

mea

ns th

e pe

rson

that

purs

uant

toar

ticle

11.

2is

ent

itled

to e

xerc

ise

the

righ

t ofc

ontr

ol.

Art

icle

1

In th

is C

onve

ntio

n th

e fo

llow

ing

wor

dsar

e em

ploy

ed w

ithth

e m

eani

ngs s

et o

ut

belo

w:

a) “

Car

rier”

incl

udes

the

owne

r ort

hech

arte

rer w

hoen

ters

into

a c

ontra

ct o

fca

rria

ge w

ith a

sh

ippe

r.b)

“C

ontra

ct o

fca

rria

ge”

appl

ies

only

to c

ontra

cts

ofca

rria

ge c

over

ed b

y a

bill

of la

ding

or a

nysi

mila

r doc

umen

tof

title

, in

so fa

r as

such

do

cum

ent r

elat

esto

the

carr

iage

of g

oods

by s

ea, i

nclu

ding

any

bill

of la

ding

or a

nysi

mila

r doc

umen

t as

afor

esai

d is

sued

un

dero

r pur

suan

t to

a ch

arte

r par

ty fr

omth

e m

omen

t at w

hich

su

chbi

ll of

ladi

ng o

rsi

mila

r doc

umen

tof

title

regu

late

sthe

re

latio

ns b

etw

een

a ca

rrie

r and

a h

olde

rof

the

sam

e.

c) “

Goo

ds”

incl

udes

good

s, w

ares

,m

erch

andi

ses,

and

artic

les

of e

very

kin

d w

hats

oeve

r exc

ept

live

anim

alsa

nd

carg

o w

hich

by

the

cont

ract

of c

arria

ge

is s

tate

d as

bein

gca

rrie

d on

dec

k an

d is

so

carr

ied.

d)

“Sh

ip”

mea

nsan

yve

ssel

use

d fo

r the

ca

rria

ge o

f goo

dsby

sea.

Art

icle

1 –

D

efin

ition

sIn

this

Con

vent

ion:

1. “

Car

rier”

mea

ns

any

pers

on b

yw

hom

orin

who

se n

ame

a co

ntra

ct o

f car

riage

of

goo

ds b

y se

a ha

sbe

en c

oncl

uded

with

a

ship

per.

2. “

Act

ual c

arrie

r”m

eans

any

pers

on to

who

m th

e pe

rfor

m-

ance

oft

he c

arria

ge

ofth

e go

ods,

or o

fpa

rt of

the

carr

iage

,ha

s bee

n en

trust

ed b

yth

e ca

rrie

r, an

d in

clud

es a

nyot

her

pers

on to

who

m s

uch

perf

orm

ance

has

been

ent

rust

ed.

3. “

Ship

per”

mea

nsan

y pe

rson

by

who

mor

in w

hose

nam

e or

on w

hose

beh

alfa

cont

ract

of c

arria

ge

of g

oods

by

sea

has

been

con

clud

ed w

ith

a ca

rrie

r,or

any

pers

on b

y w

hom

or

in w

hose

nam

e or

on

who

se b

ehal

fthe

good

s ar

e ac

tual

lyde

liver

ed to

the

carr

ier i

nre

latio

n to

the

cont

ract

of

carr

iage

by

sea.

4.

“C

onsi

gnee

”m

eans

the

pers

onen

title

d to

take

deliv

ery

ofth

ego

ods.

5. “

Goo

ds”

incl

udes

live

anim

als;

whe

re

the

good

s are

co

nsol

idat

ed in

a

cont

aine

r, pa

llet o

rsi

mila

r arti

cle

of

Art

icle

1 –

D

efin

ition

sFo

r the

pur

pose

s of

this

Con

vent

ion:

1. “

Inte

rnat

iona

lm

ultim

odal

tra

nspo

rt” m

eans

the

carr

iage

of g

oods

byat

leas

t tw

o di

ffer

ent

mod

es o

ftra

nspo

rton

the

basi

sof

a

mul

timod

al tr

ansp

ort

cont

ract

from

a pl

ace

in o

ne c

ount

ry a

t w

hich

the

good

s are

ta

ken

in c

harg

e by

the

mul

timod

al

trans

port

oper

ator

toa

plac

e de

sign

ated

fo

r del

iver

ysi

tuat

ed

in a

diff

eren

t cou

ntry

.Th

e op

erat

ions

of

pick

-up

and

deliv

ery

of g

oods

car

ried

out

in th

e pe

rfor

man

ceof

a

unim

odal

tran

spor

t co

ntra

ct, a

sdef

ined

in

suc

h co

ntra

ct,

shal

l not

be

con-

side

red

asin

ter-

natio

nal m

ultim

odal

trans

port.

2.

“M

ultim

odal

trans

port

oper

ator

”m

eans

any

pers

on

who

on

his

own

beha

lf or

thro

ugh

anot

her p

erso

n ac

ting

on h

is b

ehal

f con

-cl

udes

a m

ultim

odal

trans

port

cont

ract

an

d w

ho a

ctsa

s a

prin

cipa

l, no

t as

an

agen

t or o

n be

half

ofth

eco

nsig

nor o

r of

the

carr

iers

par

tici-

patin

g in

the

mul

ti-m

odal

tran

spor

t op

erat

ions

, and

who

Art

icle

3 –

D

efin

ition

sFo

r pur

pose

s of

thes

e U

nifo

rm R

ules

the

term

a) “

carr

ier”

mea

nsth

e co

ntra

ctua

lca

rrie

r with

who

m

the

cons

igno

r has

conc

lude

d th

eco

ntra

ct o

f car

riage

pu

rsua

nt to

thes

e U

nifo

rm R

ules

, or a

su

bseq

uent

car

rier

who

is li

able

on

the

basi

s of t

his c

ontra

ct;

b) “

subs

titut

e ca

rrie

r”m

eans

a c

arrie

r, w

ho

has n

ot c

oncl

uded

the

cont

ract

of c

arria

ge

with

the

cons

igno

r,bu

t to

who

m th

eca

rrie

rref

erre

d to

inle

tter a

)has

entru

sted

, in

who

leor

in p

art,

the

perf

orm

ance

oft

heca

rria

ge b

yra

il;

c) “

Gen

eral

Con

ditio

ns o

f C

arria

ge”

mea

nsth

eco

nditi

ons o

f the

carr

ier i

n th

efo

rmof

ge

nera

l con

ditio

ns o

rta

riffs

lega

llyin

forc

ein

eac

h M

embe

rSt

ate

and

whi

ch h

ave

beco

me,

by

the

conc

lusi

on o

fthe

cont

ract

of c

arria

ge,

an in

tegr

al p

arto

f it;

d) “

inte

rmod

altra

nspo

rt un

it” m

eans

a

cont

aine

r, sw

apbo

dy, s

emi-t

raile

r or

othe

r com

para

ble

load

ing

unit

used

in

inte

rmod

al tr

ansp

ort.

Art

icle

1 –

D

efin

ition

sIn

this

Con

vent

ion,

1.

“C

ontra

ct o

fca

rria

ge”

mea

ns a

nyco

ntra

ct, o

f any

kin

d,

whe

reby

a c

arrie

run

derta

kes

agai

nst

paym

ent o

f fre

ight

toca

rry

good

s by

inla

ndw

ater

way

s;2.

“C

arrie

r” m

eans

an

y pe

rson

by

who

mor

in w

hose

nam

e a

cont

ract

of c

arria

ge

has b

een

conc

lude

d w

ith a

ship

per;

3. “

Act

ual c

arrie

r”m

eans

any

pers

on,

othe

r tha

n a

serv

ant

or a

n ag

ent o

fthe

carr

ier,

tow

hom

the

perf

orm

ance

oft

heca

rria

ge o

r of p

art o

fsu

ch c

arria

ge h

asbe

en e

ntru

sted

by

the

carr

ier;

4. “

Ship

per”

mea

nsan

y pe

rson

by

who

mor

in w

hose

nam

e or

on w

hose

beh

alfa

cont

ract

of c

arria

ge

has b

een

conc

lude

d w

ith a

car

rier;

5. “

Con

sign

ee”

mea

ns th

epe

rson

entit

led

to ta

kede

liver

y of

the

good

s;6.

“Tr

ansp

ortd

ocu-

men

t” m

eans

ado

cum

ent w

hich

evid

ence

s a c

ontra

ctof

car

riage

and

the

taki

ng o

ver o

rlo

adin

g of

goo

ds b

y a

carr

ier,

mad

e ou

tin

the

form

ofa

bill

of

ladi

ng o

r con

sign

-

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 437

438 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

1.8

“Ele

ctro

nic

com

mu-

nica

tion”

mea

nsco

m-

mun

icat

ion

byel

ec-

tron

ic, o

ptic

al,o

r di

gita

lim

ages

or

bysi

mila

rm

eans

with

the

resu

ltth

at th

ein

form

atio

nco

mm

unic

ated

isac

cess

ible

so a

sto

be

usab

le fo

r su

bseq

uent

refe

renc

e. C

omm

uni-

catio

n in

clud

es g

ener

a-tio

n, st

orin

g, s

endi

ng,

and

rece

ivin

g.1.9

“Ele

ctro

nic

reco

rd”

mea

ns in

form

atio

n in

one

or m

ore

mes

sage

sis

sued

by

elec

tron

icco

mm

unic

atio

n pu

r-su

ant t

oa

cont

ract

of

carr

iage

by

a ca

rrie

ror

a

perf

orm

ing

part

y th

at(a

) evi

denc

esa

carr

ier’

sor

a pe

rfor

min

g pa

rty’

sre

ceip

tof g

oods

und

era

cont

ract

ofc

arri

age,

or

(b) e

vide

nces

or c

onta

ins

a co

ntra

ct o

fcar

riag

e,or

bot

h.

It in

clud

es in

form

atio

nat

tach

ed o

r ot

herw

ise

linke

d to

the

elec

tron

ic

reco

rd c

onte

mpo

ra-

neou

sly

with

or

sub-

sequ

entt

o its

issu

eby

the

carr

ier

or a

perf

orm

ing

part

y.1.10

“Fr

eigh

t” m

eans

the

rem

uner

atio

npa

yabl

e to

aca

rrie

rfo

rth

e ca

rria

ge o

f goo

ds

unde

ra

cont

ract

of

carr

iage

. 1.11

“G

oods

” m

eans

the

war

es, m

erch

andi

se,

and

artic

les

of e

very

ki

nd w

hats

oeve

rth

at a

carr

ier

or a

per

form

ing

part

y re

ceiv

edfo

rca

rria

ge a

nd in

clud

esth

e pa

ckin

g an

d an

y

e) “

Car

riage

of

good

s” c

over

s the

pe

riod

from

the

time

whe

n th

e go

ods a

re

load

ed o

n to

the

time

they

are

dis

char

ged

from

the

ship

.

trans

port

orw

here

th

ey a

re p

acke

d,

“goo

ds”

incl

udes

such

arti

cle

of tr

ans-

port

or p

acka

ging

ifsu

pplie

d by

the

ship

per.

6. “

Con

tract

of

carr

iage

by

sea”

mea

ns a

nyco

ntra

ct

whe

reby

the

carr

ier

unde

rtake

s ag

ains

t pa

ymen

t of f

reig

ht to

carr

y go

ods

by s

ea

from

one

por

t to

anot

her;

how

ever

, a

cont

ract

whi

ch

invo

lves

car

riage

by

sea

and

also

car

riage

byso

me

othe

r mea

nsis

dee

med

to b

e a

cont

ract

of c

arria

ge

by se

a fo

r the

purp

oses

of t

his

Con

vent

ion

only

in

so fa

r asi

t rel

ates

toth

e ca

rria

ge b

yse

a.7.

“B

ill o

f lad

ing”

mea

ns a

docu

men

tw

hich

evi

denc

esa

cont

ract

of c

arria

ge

by se

a an

d th

e ta

king

over

or l

oadi

ng o

f the

go

ods b

y th

e ca

rrie

r,an

d by

whi

ch th

e ca

rrie

r und

erta

kes

tode

liver

the

good

sag

ains

t sur

rend

er o

fth

e do

cum

ent.

Apr

ovis

ion

in th

e do

cum

ent t

hat t

he

good

sare

to b

ede

liver

ed to

the

orde

rof

a na

med

per

son,

or

to o

rder

, ort

obe

arer

, co

nstit

utes

such

an

unde

rtaki

ng.

8. “

Writ

ing”

incl

udes

, int

er a

lia,

tele

gram

and

tele

x.

assu

mes

resp

onsi

bi-

lity

for t

he p

erfo

r-m

ance

of t

heco

ntra

ct.

3. “

Mul

timod

altra

nspo

rt co

ntra

ct”

mea

ns a

con

tract

w

here

by a

mul

ti-m

odal

tran

spor

t op

erat

or u

nder

take

s, ag

ains

t pay

men

t of

frei

ght,

to p

erfo

rm o

rto

pro

cure

the

perf

orm

ance

of

inte

rnat

iona

l mul

ti-m

odal

tran

spor

t.

4. “

Mul

timod

altra

nspo

rt do

cum

ent”

mea

ns a

docu

men

tw

hich

evi

denc

esa

mul

timod

al tr

ansp

ort

cont

ract

, the

taki

ngin

cha

rge

of th

e go

ods b

y th

e m

ulti-

mod

al tr

ansp

ort

oper

ator

, and

an

unde

rtaki

ng b

y hi

m

to d

eliv

er th

ego

ods

in a

ccor

danc

ew

ithth

e te

rms

of th

at

cont

ract

.5.

“C

onsi

gnor

”m

eans

any

pers

on b

yw

hom

ori

n w

hose

na

me

or o

n w

hose

be

half

am

ultim

odal

trans

port

cont

ract

has

been

con

clud

ed w

ith

the

mul

timod

al

trans

port

oper

ator

, or

any

pers

on b

yw

hom

orin

who

se n

ame

oron

who

se b

ehal

fthe

go

ods

are

actu

ally

deliv

ered

to th

em

ultim

odal

tran

spor

t op

erat

or in

rela

tion

toth

e m

ultim

odal

tra

nspo

rt co

ntra

ct.

6. “

Con

sign

ee”

mea

ns th

epe

rson

men

t not

e or

of a

nyot

her t

rade

doc

u-m

ent;

7. “

Goo

ds”

does

not

incl

ude

eith

er to

wed

or

pus

hed

vess

els o

r th

e lu

ggag

e or

ve

hicl

es o

f pas

sen-

gers

; whe

re th

ego

ods a

re c

onso

li-da

ted

in a

con

tain

er,

palle

t or s

imila

rar

ticle

oft

rans

port

orw

here

they

are

pack

ed, “

good

s”in

clud

es su

char

ticle

of tr

ansp

ort o

r pa

ckag

ing

ifsu

pplie

dby

the

ship

per;

8. “

In w

ritin

g”in

clud

es, u

nles

sot

herw

ise

agre

ed

betw

een

the

parti

es

conc

erne

d, th

e tra

ns-

mis

sion

ofi

nfor

ma-

tion

byel

ectro

nic,

optic

al o

r sim

ilar

mea

ns o

f com

mun

i-ca

tion,

incl

udin

g, b

ut

not l

imite

d to

,te

legr

am, f

acsi

mile

,te

lex,

ele

ctro

nic

mai

lor

ele

ctro

nic

data

inte

rcha

nge

(ED

I),pr

ovid

ed th

e in

for-

mat

ion

is a

cces

sibl

e so

as t

obe

usab

le fo

rsu

bseq

uent

refe

renc

e.9.

The

law

of a

Sta

te

appl

icab

le in

acco

rdan

ce w

ithth

isC

onve

ntio

n m

eans

the

rule

s of

law

info

rce

in th

at S

tate

ot

her t

han

its ru

les

ofpr

ivat

e in

tern

atio

nal

law.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 438

Part Two. Studies and reports on specific subjects 439IN

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UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

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199

9C

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IW

AR

SAW

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NT

RE

AL

equi

pmen

t and

con

-ta

iner

not

sup

plie

d by

or

on

beha

lf of

a c

arri

eror

a pe

rfor

min

g pa

rty.

1.12

“H

olde

r” m

eans

ape

rson

that

(a) i

sfor

the

time

bein

gin

pos

sess

ion

of a

nego

tiabl

e tr

ansp

ort

docu

men

tor

has t

heex

clus

ive

[acc

ess

to]

[con

trol

of]

a ne

gotia

ble

elec

tron

ic r

ecor

d, a

nd(b

) eith

er:

(i) if

the

docu

men

t is a

nor

der

docu

men

t,is

iden

tifie

d in

it a

sthe

ship

per

or th

eco

n-si

gnee

, or

isth

e pe

rson

to w

hom

the

docu

men

t is

dul

yen

dors

ed, o

r(ii

) ift

hedo

cum

ent i

s abl

ank

endo

rsed

ord

erdo

cum

ent o

rbe

arer

docu

men

t,is

the

bear

erth

ereo

f, or

(iii)

if a

nego

tiabl

eel

ec-

tron

ic r

ecor

dis

use

d, is

purs

uant

toar

ticle

2.4

able

to d

emon

stra

te

that

it ha

s [ac

cess

to]

[con

trol

of]

such

rec

ord.

1.13

“N

egot

iabl

eel

ectr

onic

rec

ord”

mea

ns a

n el

ectr

onic

reco

rd(i)

that

indi

cate

s, by

stat

emen

tssu

ch a

s “to

orde

r”, o

r“n

egot

iabl

e”,

or o

ther

app

ropr

iate

stat

emen

ts r

ecog

nize

das

hav

ing

the

sam

eef

fect

by

the

law

gove

rnin

g th

e re

cord

,th

at th

ego

ods h

ave

been

con

sign

ed to

the

orde

rof

the

ship

per

orto

the

orde

r of

the

cons

igne

e, a

nd is

not

expl

icitl

y st

ated

as

entit

led

to ta

kede

liver

y of

the

good

s.7.

“G

oods

” in

clud

esan

y co

ntai

ner,

palle

t or

sim

ilar a

rticl

e of

trans

port

or p

acka

g-in

g, if

supp

lied

byth

e co

nsig

nor.

8. “

Inte

rnat

iona

lco

nven

tion”

mea

ns

an in

tern

atio

nal

agre

emen

t con

clud

ed

amon

g St

ates

in

writ

ten

form

and

gove

rned

by

inte

rnat

iona

l law

.9.

“M

anda

tory

natio

nal l

aw”

mea

nsan

y st

atut

ory

law

conc

erni

ng c

arria

geof

goo

ds th

epr

ovis

ions

ofw

hich

ca

nnot

be

depa

rted

from

by

cont

ract

ual

stip

ulat

ion

to th

e de

trim

ent o

fthe

cons

igno

r.10

. “W

ritin

g” m

eans

, in

ter a

lia, t

eleg

ram

orte

lex.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 439

440 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

bein

g “n

on-n

egot

iabl

e”or

“not

neg

otia

ble”

, and

(ii)i

s sub

ject

to r

ules

of

proc

edur

e as

ref

erre

dto

in a

rtic

le 2

.4, w

hich

in

clud

e ad

equa

tepr

ovi-

sion

s rel

atin

g to

the

tran

sfer

of th

at r

ecor

dto

a fu

rthe

r ho

lder

and

the

man

ner

in w

hich

the

hold

er o

ftha

tre

cord

is a

ble

to d

emon

-st

rate

that

it is

such

hold

er.

1.14

“N

egot

iabl

e tr

ans-

port

doc

umen

t” m

eans

a tr

ansp

ort d

ocum

ent t

hat

indi

cate

s, by

wor

ding

such

as“

to o

rder

”or

“neg

otia

ble”

or

othe

rap

prop

riat

e w

ordi

ng

reco

gniz

ed a

s hav

ing

the

sam

e ef

fect

by

the

law

go

vern

ing

the

docu

men

t, th

at th

e go

ods h

ave

been

cons

igne

d to

the

orde

rof

the

ship

per,

to th

eor

der

of th

e co

nsig

nee,

or to

bear

er, a

nd is

not

expl

icitl

y st

ated

as b

eing

“n

on-n

egot

iabl

e” o

r“n

ot n

egot

iabl

e”.

1.15

“N

on-n

egot

iabl

eel

ectr

onic

rec

ord”

mea

ns a

n el

ectr

onic

reco

rd th

at d

oes

not

qual

ify a

s a n

egot

iabl

e el

ectr

onic

rec

ord.

1.16

“N

on-n

egot

iabl

etr

ansp

ort d

ocum

ent”

mea

ns a

tran

spor

tdo

cum

ent t

hat d

oes n

otqu

alify

as a

neg

otia

ble

tran

spor

t doc

umen

t.1.17

“Pe

rfor

min

g pa

rty”

mea

nsa

pers

onot

her

than

the

carr

ier

that

phy

sica

lly p

er-

form

s [o

rfa

ils to

per

-fo

rmin

who

le o

rin

part

] any

oft

he

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 440

Part Two. Studies and reports on specific subjects 441IN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

carr

ier’

s res

pons

ibili

ties

unde

ra

cont

ract

of c

ar-

riag

e fo

rth

e ca

rria

ge,

hand

ling,

cus

tody

,or

stor

age

ofth

e go

ods,

toth

eex

tent

that

that

pers

on a

cts,

eith

er

dire

ctly

or

indi

rect

ly, a

tth

e ca

rrie

r’s r

eque

st o

run

der

the

carr

ier’

ssu

perv

isio

n or

con

trol

, re

gard

less

ofw

heth

er

that

pers

on is

apa

rty

to,i

dent

ified

in, o

rha

s le

gal r

espo

nsib

ility

unde

r th

e co

ntra

ctof

ca

rria

ge. T

he te

rm“p

erfo

rmin

g pa

rty”

does

not i

nclu

de a

nype

rson

who

is r

etai

ned

bya

ship

per

or c

on-

sign

ee, o

r is

an e

m-

ploy

ee, a

gent

, con

trac

-to

r, or

subc

ontr

acto

r of

a pe

rson

(oth

er th

an th

eca

rrie

r) w

ho is

ret

aine

dby

a sh

ippe

r or

cons

igne

e.

1.18

“R

ight

of c

ontr

ol”

has t

he m

eani

ng g

iven

in a

rtic

le 1

1.1.

1.19

“Sh

ippe

r” m

eans

ape

rson

that

ent

ers i

nto

a co

ntra

ct o

f car

riag

ew

ith a

car

rier

. 1.20

“Tr

ansp

ort d

ocu-

men

t”m

eans

a d

ocu-

men

t iss

ued

purs

uant

toa

cont

ract

of c

arri

age

by a

car

rier

or

a pe

rfor

min

g pa

rty

that

(a) e

vide

nces

a ca

rrie

r’s

ora

perf

orm

ing

part

y’s

rece

ipto

f goo

ds u

nder

a co

ntra

ct o

fcar

riag

e, o

r (b

) evi

denc

es o

rco

ntai

nsa

cont

ract

of

carr

iage

, or

bot

h.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 441

442 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVC

HA

PT

ER

2 –

EL

EC

TR

ON

IC C

OM

MU

NIC

AT

ION

S

INST

RU

ME

NT

H

AG

UE

-VIS

BY

HA

MB

UR

G

M

ULT

IMO

DA

L

CM

R

C

OT

IF-C

IM 1

999

C

MN

I

WA

RSA

W

MO

NT

RE

AL

Art

icle

2 –

Ele

ctro

nic

Com

mun

icat

ions

2.1

Any

thin

g th

at i

s to

be

inor

on

a tr

ansp

ort

docu

men

t in

pur

suan

ce o

f th

is i

nstr

umen

t m

ay b

ere

cord

ed o

rco

mm

unic

ated

by

usin

g el

ectr

onic

com

mun

icat

ion

inst

ead

of b

y m

eans

of

the

tran

spor

t do

cum

ent,

prov

ided

the

issu

ance

and

subs

eque

nt u

se o

f an

ele

ctro

nic

reco

rdis

wit

hth

e ex

pres

s or

impl

ied

cons

ent

ofth

e ca

rrie

r an

dth

e sh

ippe

r.2.

2.1

If a

neg

otia

ble

tran

spor

t do

cum

ent

has

been

iss

ued

and

the

carr

ier

and

the

hold

er a

gree

to

repl

ace

that

do

cum

ent b

y a

nego

tiab

leel

ectr

onic

reco

rd,

(a)

the

hold

ersh

all

surr

ende

r th

e ne

goti

able

tran

spor

tdo

cum

ent,

oral

l of

the

m i

f m

ore

than

one

has

bee

nis

sued

, to

the

carr

ier;

and

(b)

the

carr

ier

shal

l iss

ue t

o th

e ho

lder

a ne

goti

able

ele

ctro

nic

reco

rd t

hat

incl

udes

a s

tate

men

t th

at it

is is

sued

in s

ubst

itut

ion

for

the

nego

tiab

le tr

ansp

ort d

ocum

ent,

whe

reup

onth

e ne

goti

able

tran

spor

t doc

umen

t cea

ses

to h

ave

any

effe

ct o

r va

lidit

y.

2.2.

2 If

a ne

goti

able

ele

ctro

nic

reco

rd h

asbe

en i

ssue

d an

dth

e ca

rrie

r an

dth

e ho

lder

agr

ee t

o re

plac

eth

atel

ectr

onic

reco

rd b

ya

nego

tiab

le t

rans

port

doc

umen

t, (a

)th

e ca

rrie

r sh

all

issu

e to

the

hol

der,

in s

ubst

itut

ion

for

that

ele

ctro

nic

reco

rd,

a ne

goti

able

tra

nspo

rt

docu

men

t tha

t inc

lude

sa

stat

emen

t tha

t it i

s is

sued

in s

ubst

itut

ion

for

the

nego

tiab

le e

lect

roni

cre

cord

; and

(b)

upon

suc

h su

bsti

tuti

on, t

heel

ectr

onic

reco

rdce

ases

to h

ave

any

effe

ct o

r va

lidit

y.2.

3T

he n

otic

es a

nd c

onfi

rmat

ion

refe

rred

to

in a

rtic

les

6.9.

1, 6

.9.2

,6.

9.3,

8.2.

1 (b

) an

d(c

), 10

.2,

10.4

.2,

the

decl

arat

ion

in a

rtic

le14

.3an

d th

e ag

reem

ent

asto

wei

ght

inar

ticl

e 8.

3.1

(c)

may

be

mad

e us

ing

elec

tron

icco

mm

unic

atio

n, p

rovi

ded

the

use

of s

uch

mea

ns is

wit

hth

e ex

pres

s or

impl

ied

cons

ent

of t

he p

arty

by

who

m it

isco

mm

unic

ated

and

of th

e pa

rty

tow

hom

it is

com

mun

icat

ed. O

ther

wis

e, it

mus

tbe

mad

ein

wri

ting

. 2.

4 T

heus

e of

a n

egot

iabl

eel

ectr

onic

reco

rdis

sub

ject

to

rule

s of

pro

cedu

reag

reed

bet

wee

n th

eca

rrie

ran

dth

e sh

ippe

r or

the

hol

der

men

tion

ed i

n ar

ticl

e 2.

2.1.

The

rul

es o

f pr

oced

ure

shal

l be

ref

erre

d to

in

the

cont

ract

pa

rtic

ular

san

dsh

all i

nclu

de a

dequ

ate

prov

isio

ns r

elat

ing

to

(a)

the

tran

sfer

of t

hat r

ecor

dto

a fu

rthe

r ho

lder

, (b

)th

e m

anne

rin

whi

ch th

e ho

lder

of t

hat r

ecor

d is

able

to d

emon

stra

te th

at it

is s

uch

hold

er, a

nd(c

)th

e w

ay in

whi

ch c

onfi

rmat

ion

isgi

ven

that

(i

)de

liver

y to

the

cons

igne

e ha

s be

enef

fect

ed; o

r(i

i)pu

rsua

nt t

o ar

ticl

es 2

.2.2

or 1

0.3.

2(i)

(b),

the

nego

tiab

le e

lect

roni

cre

cord

has

cea

sed

to h

ave

any

effe

ctor

val

idit

y.

Ther

e ar

e no

cor

resp

ondi

ng

prov

isio

ns

in a

ny o

ther

Tran

spor

t C

onve

ntio

n

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 442

Part Two. Studies and reports on specific subjects 443C

HA

PT

ER

3 –

SC

OP

E O

FA

PPL

ICA

TIO

N

A. G

EN

ER

AL

PRO

VIS

ION

S

INST

RU

ME

NT

HA

GU

E-V

ISB

YH

AM

BU

RG

MU

LTIM

OD

AL

CM

RC

OT

IF-C

IM 1

999

CM

NI

WA

RSA

WM

ON

TR

EA

LA

rtic

le 3

-Sco

pe o

fap

plic

atio

n 3.

1 Su

bjec

t to

artic

le3.

3.1,

the

prov

isio

ns o

fth

is in

stru

men

tapp

ly to

all c

ontr

acts

of c

arri

age

in w

hich

the

plac

e of

rece

ipta

nd th

e pl

ace

of

deliv

ery

are

indi

ffer

ent

Stat

es if

(a) t

he p

lace

ofre

ceip

t[o

rpo

rt o

f loa

ding

]sp

ecifi

ed e

ither

in th

e co

ntra

ct o

fcar

riag

e2 o

rin

the

cont

ract

par

ticu-

lars

is lo

cate

d in

a

Con

trac

ting

Stat

e, o

r(b

) the

pla

ce o

f del

iver

y [o

r po

rtof

dis

char

ge]

spec

ified

eith

er in

the

cont

ract

of c

arri

age

orin

the

cont

ract

par

ticu-

lars

is lo

cate

d in

a

Con

trac

ting

Stat

e, o

r(c

) [th

e ac

tual

pla

ce o

fde

liver

y is

one

of th

eop

tiona

l pla

ceso

fde

liver

y sp

ecifi

edei

ther

in th

e co

ntra

ctof

carr

iage

or

inth

eco

ntra

ct p

artic

ular

san

d is

loca

ted

in a

Con

trac

ting

Stat

e, o

r](d

)[th

e co

ntra

ct o

fca

rria

ge is

ent

ered

into

in a

Con

trac

ting

Stat

eor

the

cont

ract

part

icul

ars

stat

e th

atth

e tr

ansp

ort d

ocum

ent

Art

icle

10

The

prov

isio

nsof

this

Con

vent

ion

shal

l ap

ply

to e

very

bill

of

ladi

ngre

latin

g to

the

carr

iage

of g

oods

3

betw

een

ports

in tw

odi

ffer

ent S

tate

s if:

(a)t

he b

ill o

f lad

ing

is is

sued

in a

C

ontra

ctin

g St

ate,

or

(b) t

heca

rria

ge is

from

a p

ort i

n a

Con

tract

ing

Stat

e, o

r(c

) the

cont

ract

cont

aine

d in

orev

iden

ced

by th

e bi

llof

ladi

ngpr

ovid

esth

at th

e ru

les

ofth

isC

onve

ntio

n or

legi

slat

ion

of a

nySt

ate

givi

ng e

ffec

t to

them

are

to g

over

nth

e co

ntra

ct,

wha

teve

rmay

be

the

natio

nalit

y of

the

ship

, the

car

rier,

the

ship

per,

the

cons

igne

e, o

r any

othe

r int

eres

ted

pers

on.

Each

Con

tract

ing

Stat

e sh

alla

pply

the

prov

isio

ns o

f thi

sC

onve

ntio

n to

the

bills

of l

adin

gm

entio

ned

abov

e.

This

Arti

cle

shal

lnot

pr

even

t a

Art

icle

2-S

cope

of

appl

icat

ion

1.Th

e pr

ovis

ions

of

this

Con

vent

ion

are

appl

icab

le to

all

cont

ract

s of

carr

iage

4 by

sea

betw

een

two

diff

eren

t Sta

tes,

if:(a

) the

por

t of

load

ing

as p

rovi

ded

for i

n th

e co

ntra

ct o

fca

rria

ge b

yse

a is

loca

ted

in a

Con

tract

ing

Stat

e, o

r(b

) the

por

t of

disc

harg

e as

prov

ided

for i

n th

e co

ntra

ct o

f car

riage

by

sea

islo

cate

d in

a

Con

tract

ing

Stat

e, o

r(c

) one

oft

heop

tiona

l por

tsof

disc

harg

e pr

ovid

ed

for i

n th

e co

ntra

ct o

fca

rria

ge b

yse

a is

the

actu

al p

orto

fdi

scha

rge

and

such

po

rt is

loca

ted

in a

C

ontra

ctin

g St

ate,

or

(d)t

he b

ill o

f lad

ing

or o

ther

doc

umen

t ev

iden

cing

the

cont

ract

of c

arria

ge

by se

a is

issu

ed in

a

Con

tract

ing

Stat

e, o

r(e

)the

bill

of l

adin

gor

oth

er d

ocum

ent

evid

enci

ng th

e

Art

icle

2-S

cope

of

appl

icat

ion

The

prov

isio

nsof

this

Con

vent

ion

shal

l app

lyto

all

cont

ract

s of m

ulti-

mod

al tr

ansp

ort5

betw

een

plac

es in

tw

o St

ates

, if:

(a) T

he p

lace

for t

he

taki

ngin

cha

rge

ofth

ego

ods b

y th

e m

ultim

odal

tra

nspo

rt op

erat

oras

prov

ided

for i

n th

e m

ultim

odal

tra

nspo

rt co

ntra

ct is

loca

ted

in a

Con

tract

ing

Stat

e, o

r(b

) The

pla

ce fo

rde

liver

y of

the

good

s by

the

mul

timod

al

trans

port

oper

ator

aspr

ovid

ed fo

r in

the

mul

timod

al

trans

port

cont

ract

islo

cate

d in

aC

ontra

ctin

g St

ate.

Art

icle

1-S

cope

of

appl

icat

ion

1. T

his C

onve

ntio

n sh

all a

pply

to e

very

cont

ract

for t

heca

rria

ge o

f goo

dsby

road

in v

ehic

les

for

rew

ard,

whe

nth

epl

ace

ofta

king

ove

r of

the

good

s and

the

plac

e de

sign

ated

for

deliv

ery,

ass

peci

fied

in th

e co

ntra

ct, a

re

situ

ated

in tw

o di

ffer

ent c

ount

ries,

ofw

hich

at l

east

one

isa

cont

ract

ing

coun

try,

irres

pect

ive

ofth

e pl

ace

of re

side

nce

and

the

natio

nalit

y of

the

parti

es.

2. F

or th

e pu

rpos

eof

this

Con

vent

ion,

“v

ehic

les”

mea

ns

mot

or v

ehic

les,

artic

ulat

ed v

ehic

les,

traile

rs a

nd s

emi-

traile

rs a

s def

ined

inar

ticle

4 o

f the

Con

vent

ion

on R

oad

Traf

fic d

ated

19th

Sept

embe

r 194

9.

3. T

his C

onve

ntio

n sh

all a

pply

also

whe

re c

arria

ge

com

ing

with

inits

scop

eis

car

ried

out

by S

tate

s or

bygo

vern

men

tal

Art

icle

1-S

cope

1.

The

se U

nifo

rmR

ules

sha

ll ap

ply

toev

ery

cont

ract

of

carr

iage

of g

oods

byra

il fo

r rew

ard

whe

nth

e pl

ace

of ta

king

over

of t

he g

oods

and

the

plac

e de

sign

ated

for d

eliv

ery

are

situ

ated

in tw

o di

ffer

ent M

embe

rSt

ates

, irr

espe

ctiv

e of

the

plac

e of

bus

ines

san

d th

ena

tiona

lity

ofth

e pa

rties

to th

eco

ntra

ct o

f car

riage

. 2.

The

se U

nifo

rmR

ules

sha

ll ap

ply

also

to c

ontra

cts o

fca

rria

ge o

f goo

dsby

rail

for r

ewar

d, w

hen

the

plac

e of

taki

ngov

er o

f the

goo

dsan

d th

e pl

ace

desi

gnat

edfo

r del

iver

yar

esi

tuat

ed in

two

diff

eren

t Sta

tes,

ofw

hich

at l

east

one

isa

Mem

ber S

tate

and

th

e pa

rties

to th

eco

ntra

ct a

gree

that

th

e co

ntra

ct is

subj

ect t

o th

ese

Uni

form

Rul

es.

3. W

hen

inte

rnat

iona

l car

riage

bein

g th

e su

bjec

t of a

si

ngle

con

tract

Art

icle

2-S

cope

of

appl

icat

ion

1. T

his C

onve

ntio

n is

app

licab

le to

any

cont

ract

of c

arria

ge6

acco

rdin

g to

whi

ch

the

port

of lo

adin

gor

the

plac

e of

ta

king

ove

r oft

hego

ods a

nd th

e po

rtof

dis

char

ge o

r the

pl

ace

of d

eliv

ery

of

the

good

s are

loca

ted

in tw

o di

ffere

nt

Stat

es o

fwhi

ch a

t le

ast o

neis

a S

tate

Pa

rty to

this

Con

vent

ion.

If th

eco

ntra

ct s

tipul

ates

a ch

oice

ofs

ever

alpo

rts o

f dis

char

ge o

rpl

aces

ofd

eliv

ery,

the

port

of d

isch

arge

or

the

plac

e of

de

liver

yto

whi

ch th

ego

ods h

ave

actu

ally

been

del

iver

ed s

hall

dete

rmin

e th

e ch

oice

. 2.

Thi

s Con

vent

ion

is a

pplic

able

if th

epu

rpos

eof

the

con-

tract

of c

arria

ge is

the

carr

iage

ofgo

ods,

with

out t

rans

-sh

ipm

ent,

both

onin

land

wat

erw

ays

and

inw

ater

s to

whi

ch m

ariti

me

Art

icle

1-S

cope

1.

Thi

s Con

vent

ion

appl

ies t

oal

l int

er-

natio

nal c

arria

ge o

f pe

rson

s, lu

ggag

e or

go

ods p

erfo

rmed

by

airc

raft

for r

ewar

d.It

appl

ies

equa

llyto

grat

uito

us c

arria

ge b

yai

rcra

ft pe

rfor

med

by

an a

irtra

nspo

rtun

derta

king

. 2.

For

the

purp

oses

of

this

Con

vent

ion,

the

expr

essi

on in

tern

atio

nal

carr

iage

mea

nsan

yca

rria

ge in

whi

ch,

acco

rdin

g to

the

agre

emen

t bet

wee

n th

e pa

rties

,the

pla

ce o

fde

partu

rean

d th

e pl

ace

of d

estin

atio

n, w

heth

eror

not t

here

be

a br

eak

in th

e ca

rria

ge o

r atra

nshi

pmen

t, ar

e si

tuat

ed e

ither

with

inth

e te

rrito

ries

of tw

o H

igh

Con

tract

ing

Parti

es o

rwith

inth

e te

rrito

ry o

f a si

ngle

Hig

h C

ontra

ctin

g Pa

rtyif

ther

e is

an

agre

ed

stop

ping

pla

cew

ithin

the

terr

itory

of a

noth

erSt

ate,

even

if th

at S

tate

is n

ot a

Hig

h C

ontra

ctin

g Pa

rty.

Car

riage

bet

wee

n tw

o po

ints

with

inth

e

Art

icle

1-S

cope

of

appl

icat

ion

1. T

his C

onve

ntio

n ap

plie

s to

all i

nter

-na

tiona

l car

riage

of

pers

ons,

bagg

age

orca

rgo

perf

orm

ed b

yai

rcra

ft fo

r rew

ard.

Itap

plie

s eq

ually

togr

atui

tous

car

riage

by

airc

raft

perf

orm

edby

an

air t

rans

port

unde

rtaki

ng.

2. F

or th

e pu

rpos

esof

this

Con

vent

ion,

th

e ex

pres

sion

in

tern

atio

nal

carr

iage

mea

ns a

nyca

rria

ge in

whi

ch,

acco

rdin

g to

the

agre

emen

t bet

wee

nth

e pa

rties

, the

plac

eof

depa

rture

and

the

plac

e of

des

tinat

ion,

whe

ther

or n

ot th

ere

be a

bre

ak in

the

carr

iage

or a

tra

nshi

pmen

t, ar

e si

tuat

ed e

ither

with

inth

e te

rrito

ries

of tw

o St

ates

Par

ties,

orw

ithin

the

terr

itory

of a

sin

gle

Stat

ePa

rty if

ther

eis

anag

reed

sto

ppin

gpl

ace

with

inth

e te

rrito

ry o

f ano

ther

Stat

e,ev

en if

that

St

ate

is n

ot a

Sta

te

2Se

e th

e de

fini

tion

of “

cont

ract

of

carr

iage

” in

Art

icle

1.5

at p

. 6.

3Se

e th

e de

fini

tion

of “

carr

iage

of

good

s” in

Art

icle

1(e

) at

p. 7

.4

See

the

defi

nitio

n of

“co

ntra

ct o

f ca

rria

ge b

y se

a” in

Art

icle

1.6

at p

. 7.

5Se

e th

e de

fini

tion

of “

mul

timod

al tr

ansp

ort c

ontr

act”

inA

rtic

le 1

.3 a

t p. 7

.6

See

the

defi

nitio

n of

“co

ntra

ct o

f ca

rria

ge”

inA

rtic

le 1

.1 a

t p. 6

.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 443

444 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

or e

lect

roni

c re

cord

isis

sued

in a

Con

trac

ting

Stat

e, o

r](e

)the

con

trac

t of

carr

iage

pro

vide

s th

atth

e pr

ovis

ions

of th

isin

stru

men

t, or

the

law

of

any

Sta

te g

ivin

gef

fect

to th

em, a

re to

gove

rn th

eco

ntra

ct.

3.2

The

pro

visi

onso

fth

is in

stru

men

tapp

ly

with

outr

egar

d to

the

natio

nalit

y of

the

ship

, th

e ca

rrie

r, th

e pe

rfor

min

g pa

rtie

s, th

e sh

ippe

r, th

eco

nsig

nee,

or a

ny o

ther

inte

rest

edpa

rtie

s.

Con

tract

ing

Stat

efr

om a

pply

ing

the

Rul

es o

f thi

sC

onve

ntio

n to

bills

of la

ding

not

incl

uded

in th

e pr

eced

ing

para

grap

hs.

cont

ract

of c

arria

ge

by s

ea p

rovi

des t

hat

the

prov

isio

nsof

this

Con

vent

ion

orth

e le

gisl

atio

n of

any

Stat

e gi

ving

effe

ct to

them

are

togo

vern

the

cont

ract

. 2.

The

pro

visi

ons

ofth

is C

onve

ntio

n ar

e ap

plic

able

with

out

rega

rd to

the

natio

nalit

y of

the

ship

, the

car

rier,

the

actu

al c

arrie

r,th

e sh

ippe

r, th

eco

nsig

nee

oran

yot

her i

nter

este

dpe

rson

.

inst

itutio

ns o

r or

gani

zatio

ns.

4. T

his C

onve

ntio

n sh

all n

ot a

pply

:(a

) to

carr

iage

perf

orm

ed u

nder

the

term

s of

any

inte

rnat

iona

l pos

tal

conv

entio

n;

(b) t

o fu

nera

l con

-si

gnm

ents

;(c

) to

furn

iture

rem

oval

. 5.

The

Con

tract

ing

Parti

es a

gree

not

tova

ry a

ny o

f the

pr

ovis

ions

of t

his

Con

vent

ion

bysp

ecia

l agr

eem

ents

betw

een

two

or m

ore

of th

em, e

xcep

t to

mak

e it

inap

plic

able

to

thei

rfro

ntie

rtra

ffic

ort

o au

thor

ise

the

use

in tr

ansp

ort

oper

atio

ns e

ntire

lyco

nfin

ed to

thei

rte

rrito

ry o

fco

nsig

nmen

t not

esre

pres

entin

ga

title

toth

e go

ods.

incl

udes

car

riage

by

road

or i

nlan

d w

ater

way

in in

tern

altra

ffic

ofa

Mem

ber

Stat

e as

a s

uppl

emen

t to

tran

sfro

ntie

r ca

rria

ge b

yra

il, th

ese

Uni

form

Rul

essh

all

appl

y.4.

Whe

n in

ter-

natio

nal c

arria

ge

bein

g th

e su

bjec

t of a

si

ngle

con

tract

of

carr

iage

incl

udes

carr

iage

by

sea

ortra

nsfr

ontie

r car

riage

by

inla

ndw

ater

way

as a

sup

plem

entt

oca

rria

ge b

yra

il, th

ese

Uni

form

Rul

essh

all

appl

yif

the

carri

age

by se

aor

inla

ndw

ater

way

ispe

rfor

med

on

serv

ices

incl

uded

inth

e lis

t of s

ervi

ces

prov

ided

fori

nA

rticl

e 24

§ 1

of t

he

Con

vent

ion.

5. T

hese

Uni

form

Rul

es s

hall

not a

pply

to c

arria

ge p

erfo

rmed

betw

een

stat

ions

situ

ated

on

the

terr

itory

of n

eigh

-bo

urin

g St

ates

, whe

n th

e in

fras

truct

ure

ofth

ese

stat

ions

ism

anag

ed b

y on

e or

mor

e in

fras

truct

ure

man

ager

s sub

ject

toon

ly o

ne o

f tho

se

Stat

es.

regu

latio

ns a

pply

,un

der t

heco

nditi

ons

set o

ut in

par

a-gr

aph

1, u

nles

s:(a

)a

mar

itim

ebi

ll of

ladi

ng h

asbe

enis

sued

in a

ccor

d-an

ce w

ith th

e m

ariti

me

law

appl

icab

le, o

r(b

)the

dis

tanc

e to

be

trave

lled

inw

ater

s to

whi

chm

ariti

me

regu

la-

tions

app

ly is

the

grea

ter.

3. T

his C

onve

ntio

n is

app

licab

le

rega

rdle

ss o

f the

na

tiona

lity,

pla

ce o

f re

gist

ratio

n or

hom

epo

rt of

the

vess

el o

rw

heth

er th

eve

ssel

isa

mar

itim

e or

inla

ndna

viga

tion

vess

el

and

rega

rdle

ss o

fthe

na

tiona

lity,

dom

icile

, he

ad o

ffic

e or

plac

eof

resi

denc

e of

the

carr

ier,

the

ship

per

or th

eco

nsig

nee.

terr

itory

of a

sing

le

Hig

h C

ontra

ctin

g Pa

rtyw

ithou

t an

agre

edst

oppi

ng p

lace

with

inth

ete

rrito

ry o

f ano

ther

Stat

e is

not

inte

r-na

tiona

l car

riage

for t

he

purp

oses

of t

his

Con

vent

ion.

3.

Car

riage

to b

epe

rfor

med

by

seve

ral

succ

essi

ve a

irca

rrie

rsis

dee

med

, for

the

purp

oses

of t

his

Con

vent

ion,

to b

eon

eun

divi

ded

carr

iage

if it

ha

s bee

n re

gard

ed b

yth

epa

rties

as

a si

ngle

op

erat

ion,

whe

ther

it ha

d be

en a

gree

d up

on

unde

rthe

form

of a

si

ngle

con

tract

or o

fase

ries

of c

ontra

cts,

and

it do

esno

t los

e its

inte

r-na

tiona

l cha

ract

erm

erel

y be

caus

e on

eco

ntra

ct o

ra s

erie

s of

cont

ract

s is t

obe

perf

orm

ed e

ntire

lyw

ithin

the

terr

itory

of

the

sam

e St

ate.

Art

icle

XIV

of t

heM

ontr

eal P

roto

col

The

War

saw

Con

vent

ion

asam

ende

d at

The

Hag

ue in

195

5an

d by

this

Pro

toco

lsh

all a

pply

toin

tern

atio

nal c

arria

ge a

sde

fined

inA

rticl

e 1

ofth

e C

onve

ntio

n,pr

o-vi

ded

that

the

plac

es o

fde

partu

re a

nd d

estin

a-tio

n re

ferr

ed to

in th

atA

rticl

e ar

e si

tuat

ed

eith

er in

the

terr

itorie

sof

two

Parti

es to

this

Prot

ocol

orw

ithin

the

terr

itory

of a

sing

le

Party

to th

isPr

otoc

olw

ith a

n ag

reed

stop

ping

Party

. Car

riage

betw

een

two

poin

tsw

ithin

the

terr

itory

of a

sin

gle

Stat

ePa

rty w

ithou

t an

agre

ed s

topp

ing

plac

e w

ithin

the

terr

itory

of a

noth

erSt

ate

is n

ot in

ter-

natio

nal c

arria

ge fo

r th

e pu

rpos

esof

this

Con

vent

ion.

3. C

arria

ge to

be

perf

orm

ed b

y se

vera

lsu

cces

sive

car

riers

isde

emed

, for

the

purp

oses

of t

his

Con

vent

ion,

to b

eon

e un

divi

ded

carr

iage

if it

has

been

rega

rded

by

the

parti

es a

s a

sing

le

oper

atio

n, w

heth

erit

had

been

agr

eed

upon

und

er th

e fo

rmof

a s

ingl

e co

ntra

ct

or o

f a s

erie

s of

cont

ract

s,an

d it

does

not l

ose

its in

ter-

natio

nal c

hara

cter

mer

ely

beca

use

one

cont

ract

ora

ser

ies

ofco

ntra

cts i

s to

bepe

rfor

med

ent

irely

with

in th

e te

rrito

ryof

the

sam

e St

ate.

4.

Thi

s Con

vent

ion

appl

ies

also

toca

rria

ge a

s set

out

in

Cha

pter

V,s

ubje

ct to

the

term

s con

tain

ed

ther

ein.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 444

Part Two. Studies and reports on specific subjects 445IN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

plac

e in

the

terr

itory

ofan

othe

r Sta

te.

Art

icle

2

1. T

his C

onve

ntio

n ap

plie

s to

carr

iage

perf

orm

ed b

y th

e St

ate

or b

y le

gally

con

sti-

tute

d pu

blic

bod

ies

prov

ided

it fa

lls w

ithin

th

e co

nditi

onsl

aid

dow

n in

Arti

cle

1.2.

In th

e ca

rria

geof

post

al it

ems t

he c

arrie

rsh

all b

e lia

ble

only

toth

e re

leva

nt p

osta

lad

min

istra

tion

in

acco

rdan

ce w

ithth

e ru

les a

pplic

able

to th

ere

latio

nshi

p be

twee

n th

e ca

rrie

rs a

nd th

epo

stal

adm

inis

tratio

ns.

3. E

xcep

t asp

rovi

ded

in p

arag

raph

2of

this

Arti

cle,

the

prov

isio

ns

of th

is C

onve

ntio

n sh

all

not a

pply

to th

eca

rria

ge o

f pos

tali

tem

s.

B. C

HA

RT

ER

PA

RTY

INST

RU

ME

NT

HA

GU

E-V

ISB

YH

AM

BU

RG

MU

LTIM

OD

AL

CM

RC

OT

IF-C

IM 1

999

CM

NI

WA

RSA

WM

ON

TR

EA

LA

rtic

le 3

.3.1

T

he p

rovi

sion

sof t

his

inst

rum

ent d

o no

t ap

ply

toch

arte

rpa

rtie

s, [c

ontr

acts

ofaf

frei

ghtm

ent,

volu

me

cont

ract

s, or

sim

ilar

agre

emen

ts].

3.3.

2 N

otw

ithst

andi

ngth

e pr

ovis

ions

ofar

ticle

3.3

.1, i

f a

nego

tiabl

e tr

ansp

ort

docu

men

t or

ane

gotia

ble

elec

tron

icre

cord

is is

sued

purs

uant

toa

char

ter

part

y, [c

ontr

acto

faf

frei

ghtm

ent,

volu

me

cont

ract

, or

sim

ilar

Art

icle

1(b

)“C

ontra

ct o

fca

rria

ge”

appl

ieso

nly

to c

ontra

ctso

f ca

rria

ge c

over

ed b

y a

bill

of la

ding

or a

nysi

mila

r doc

umen

tof

title

, in

so fa

r as

such

do

cum

ent r

elat

esto

the

carr

iage

of g

oods

by s

ea, i

nclu

ding

any

bill

of la

ding

or a

nysi

mila

r doc

umen

t as

afor

esai

d is

sued

un

dero

r pur

suan

t to

a ch

arte

r par

tyfr

om th

em

omen

t at w

hich

su

chbi

ll of

ladi

ng o

rsi

mila

r doc

umen

tof

Art

icle

2

3. T

he p

rovi

sion

s of

this

Con

vent

ion

are

not a

pplic

able

toch

arte

r-par

ties.

How

ever

, whe

re a

bill

of la

ding

isis

sued

pur

suan

t to

a ch

arte

r-pa

rty, t

hepr

ovis

ions

of t

heC

onve

ntio

n ap

ply

tosu

ch a

bill

ofla

ding

if it

gove

rns t

he

rela

tion

betw

een

the

carr

ier a

nd th

eho

lder

of th

e bi

ll of

ladi

ng, n

ot b

eing

the

char

tere

r.4.

If a

con

tract

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 445

446 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

agre

emen

t], t

hen

the

prov

isio

ns o

f thi

sin

stru

men

t app

ly to

the

cont

ract

evi

denc

edby

or

cont

aine

d in

that

docu

men

t or

that

elec

tron

ic r

ecor

d fr

omth

e tim

e w

hen

and

toth

eex

tent

that

the

docu

men

t or

the

elec

tron

ic r

ecor

dgo

vern

s the

rel

atio

nsbe

twee

n th

e ca

rrie

ran

d a

hold

er o

ther

than

the

char

tere

r. 3.

4 If

a co

ntra

ctpr

ovid

es fo

rth

e fu

ture

carr

iage

ofg

oods

in a

se

ries

of s

hipm

ents

, the

prov

isio

ns o

f thi

sin

stru

men

t app

ly to

each

ship

men

t to

the

exte

nt th

atar

ticle

s 3.1

, 3.

2, a

nd 3

.3 so

spec

ify.

title

regu

late

sthe

re

latio

ns b

etw

een

a ca

rrie

r and

a h

olde

rof

the

sam

e.

Art

icle

5Th

e pr

ovis

ions

of th

isco

nven

tion

shal

lnot

be a

pplic

able

toch

arte

r par

ties,

but i

fbi

lls o

f lad

ing

are

issu

ed in

the

case

of a

sh

ip u

nder

a c

harte

rpa

rty th

eysh

all

com

ply

with

the

term

s of

this

conv

entio

n. N

othi

ngin

thes

e ru

les

shal

lbe

held

to p

reve

nt th

e in

serti

on in

a b

illof

la

ding

of a

ny la

wfu

lpr

ovis

ion

rega

rdin

g ge

nera

l ave

rage

.

prov

ides

for f

utur

eca

rria

ge o

f goo

dsin

a

serie

s of

shi

pmen

ts

durin

g an

agr

eed

perio

d, th

epr

ovis

ions

of t

his

Con

vent

ion

appl

yto

each

shi

pmen

t. H

owev

er, w

here

ash

ipm

ent i

sm

ade

unde

r a c

harte

r-pa

rty, t

he p

rovi

sion

sof

par

agra

ph 3

of

this

arti

cle

appl

y.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 446

Part Two. Studies and reports on specific subjects 447C

HA

PT

ER

4 –

PE

RIO

D O

FR

ESP

ON

SIB

ILIT

Y

A. G

EN

ER

AL

PRO

VIS

ION

S

INST

RU

ME

NT

HA

GU

E-V

ISB

YH

AM

BU

RG

MU

LTIM

OD

AL

CM

RC

OT

IF-C

IM 1

999

CM

NI

WA

RSA

WM

ON

TR

EA

LA

rtic

le 4

-Per

iod

ofre

spon

sibi

lity

4.1.

1 Su

bjec

t to

the

prov

isio

nsof

art

icle

4.3

,th

ere

spon

sibi

lity

of th

eca

rrie

r fo

r th

e go

ods

unde

r th

isin

stru

men

t co

vers

the

peri

odfr

omth

e tim

e w

hen

the

carr

ier

or a

per

form

ing

part

y ha

s rec

eive

d th

e go

ods f

or c

arri

age

until

th

e tim

e w

hen

the

good

sar

e de

liver

ed to

the

cons

igne

e.

4.1.

2 T

he ti

me

and

loca

tion

of r

ecei

pt o

fth

e go

ods i

s th

etim

ean

d lo

catio

n ag

reed

inth

e co

ntra

ct o

fcar

riag

e or

, fai

ling

any

spec

ific

prov

isio

n re

latin

gto

the

rece

ipt o

fthe

goo

ds in

such

con

trac

t,th

e ti

me

and

loca

tion

that

is in

acco

rdan

ce w

ithth

ecu

stom

s, p

ract

ices

,or

usag

esin

the

trad

e.In

the

abse

nce

of a

nysu

chpr

ovis

ions

inth

eco

ntra

ctof

car

riag

e or

of s

uch

cust

oms,

prac

tices

, or

usag

es, t

he

time

and

loca

tion

ofre

ceip

t oft

he g

oods

isw

hen

and

whe

re th

eca

rrie

ror

a p

erfo

rmin

gpa

rty

actu

ally

take

scu

stod

y of

the

good

s. 4.

1.3

The

tim

ean

d lo

catio

n of

deliv

ery

ofth

e go

ods i

s th

etim

ean

d lo

catio

n ag

reed

inth

e co

ntra

ct o

fcar

riag

e,

or, f

ailin

g an

y sp

ecifi

c pr

ovis

ion

rela

ting

to th

e

Art

icle

1(e

)“C

arria

ge o

f goo

ds”

cove

rs th

epe

riod

from

the

time

whe

nth

e go

ods

are

load

ed

on to

the

time

they

are

disc

harg

ed fr

omth

e sh

ip. Art

icle

2

Subj

ect t

o th

e pr

ovi-

sion

s of

Arti

cle

6,un

der e

very

cont

ract

of

car

riage

of g

oods

by s

ea th

e ca

rrie

r, in

rela

tion

to th

elo

adin

g, h

andl

ing,

st

owag

e, c

arria

ge,

cust

ody,

car

ean

d di

scha

rge

of su

ch

good

s, sh

allb

esu

bjec

t to

the

resp

onsi

bilit

ies a

nd

liabi

litie

s, a

nd

entit

led

to th

e rig

hts

and

imm

uniti

eshe

rein

afte

r set

forth

.

Art

icle

4-P

erio

d of

resp

onsi

bilit

y1.

The

resp

onsi

bilit

yof

the

carr

ier f

or th

ego

ods u

nder

this

Con

vent

ion

cove

rsth

e pe

riod

durin

gw

hich

the

carr

ier i

s in

char

ge o

fthe

goo

dsat

the

por

tof

load

ing,

dur

ing

the

carr

iage

and

at t

he

port

of d

isch

arge

. 2.

For t

he p

urpo

seof

para

grap

h 1

of th

isA

rticl

e, th

e ca

rrie

r is

deem

ed t

obe

inch

arge

oft

he g

oods

(a) F

rom

the

time

heha

s tak

en o

ver t

he

good

s fro

m:

(i) T

he sh

ippe

r,or

ape

rson

act

ing

on h

isbe

half;

or

(ii)A

n au

thor

ity o

r ot

her t

hird

par

ty to

who

m, p

ursu

ant t

ola

w o

r re

gula

tions

appl

icab

leat

the

port

of lo

adin

g,th

e go

ods

mus

t be

hand

ed o

ver

for s

hipm

ent;

(b) U

ntil

the

time

heha

s del

iver

ed th

ego

ods:

(i) B

yha

ndin

g ov

erth

ego

ods t

o th

e co

nsig

nee;

or

(ii) I

nca

ses

whe

re

the

cons

igne

e do

esno

t rec

eive

the

good

sfr

om th

e ca

rrie

r,by

plac

ing

them

at t

hedi

spos

al o

f the

cons

igne

e in

acco

rdan

ce w

ithth

e

Art

icle

14-

Peri

od o

fre

spon

sibi

lity

1. T

he re

spon

sibi

lity

of th

em

ultim

odal

trans

port

oper

ator

for

the

good

s und

er th

isC

onve

ntio

n co

vers

the

perio

d fr

om th

etim

e he

take

s the

good

s in

his c

harg

e to

the

time

of th

eir

deliv

ery.

2.

For t

he p

urpo

seof

this

arti

cle,

the

mul

timod

al tr

ansp

ort

oper

ator

is d

eem

ed to

bein

cha

rge

ofth

e go

ods:

(a) F

rom

the

time

heha

s tak

en o

ver t

he

good

s fro

m:

(i) T

he c

onsi

gnor

or

a pe

rson

act

ing

onhi

s beh

alf;

or(ii

) An

auth

ority

or

othe

r thi

rd p

arty

tow

hom

, pur

suan

t to

law

or r

egul

atio

nsap

plic

able

at t

he

plac

e of

taki

ng in

char

ge, t

he g

oods

mus

t be

hand

ed o

ver

for t

rans

port;

(b

) Unt

il th

e tim

e he

has d

eliv

ered

the

good

s:(i)

By

hand

ing

over

the

good

s to

the

cons

igne

e; o

r(ii

) In

case

s w

here

th

e co

nsig

nee

does

not r

ecei

ve th

e go

ods

from

the

mul

timod

altra

nspo

rt op

erat

or, b

ypl

acin

g th

em a

t the

disp

osal

of t

he

Art

icle

23-

Bas

is o

flia

bilit

y1.

The

car

rier s

hall

belia

ble

for l

oss

orda

mag

e re

sulti

ng

from

the

tota

lor

parti

al lo

ss o

f, or

dam

age

to, t

hego

ods

betw

een

the

time

ofta

king

ove

r oft

hego

ods

and

the

time

ofde

liver

y an

d fo

r the

loss

or d

amag

e re

sulti

ng fr

om th

etra

nsit

perio

d be

ing

exce

eded

, wha

teve

rth

e ra

ilway

infr

astru

ctur

e us

ed.

Art

icle

16-

Liab

ility

fo

r los

s1.

The

carr

ier s

hall

belia

ble

for l

oss r

esul

t-in

g fr

om lo

ss o

r da

mag

e to

the

good

sca

used

bet

wee

n th

e tim

ew

hen

he to

ok

them

ove

rfor

carr

iage

and

the

time

ofth

eir d

eliv

ery,

or

resu

lting

from

del

ayin

del

iver

y, u

nles

s he

can

show

that

the

loss

was

due

toci

rcum

stan

ces

whi

ch

a di

ligen

t car

rier

coul

d no

t hav

epr

even

ted

and

the

cons

eque

nces

of

whi

ch h

e co

uld

not

have

ave

rted.

2.

The

car

rier’s

liabi

lity

for l

oss

resu

lting

from

loss

or

dam

age

to th

ego

ods

caus

ed d

urin

g th

etim

ebe

fore

the

good

sar

e lo

aded

on

the

vess

el o

r the

tim

e af

ter t

hey

have

bee

ndi

scha

rged

from

the

vess

el sh

all b

ego

vern

ed b

y th

ela

wof

the

Stat

e ap

plic

able

to th

eco

ntra

ct o

f car

riage

.

Art

icle

18

2. T

he c

arrie

r is

liabl

e fo

r dam

age

sust

aine

d in

the

even

t of

the

dest

ruct

ion

or

loss

of,

or d

amag

e to

, ca

rgo

upon

con

ditio

n on

ly th

at th

eoc

curr

ence

whi

ch

caus

ed th

e da

mag

eso

sust

aine

d to

ok

plac

e du

ring

the

carr

iage

by

air.

4.Th

e ca

rria

ge b

y ai

rw

ithin

the

mea

ning

of th

e pr

eced

ing

para

grap

hs o

f thi

sA

rticl

e co

mpr

ises

the

perio

d du

ring

whi

chth

eba

ggag

e or

car

gois

in th

e ch

arge

of t

he

carr

ier,

whe

ther

in a

n ai

rpor

t or o

n bo

ard

an a

ircra

ft, o

r, in

the

case

of a

land

ing

outs

ide

an a

irpor

t,in

an

y pl

ace

wha

tsoe

ver.

5. T

he p

erio

d of

the

carr

iage

by

aird

oes

note

xten

d to

any

carr

iage

by

land

, by

sea

orby

rive

r pe

rfor

med

out

side

an

airp

ort.

If, h

owev

er,

such

car

riage

take

spl

ace

in th

e pe

rfor

m-

ance

of a

con

tract

for

carr

iage

by

air,

for

the

purp

ose

oflo

adin

g, d

eliv

ery

or

trans

hipm

ent,

any

dam

age

is p

resu

med

,su

bjec

t to

proo

f to

the

cont

rary

, to

have

be

en th

e re

sult

ofan

Art

icle

18-

Dam

age

to c

argo

3.Th

e ca

rria

ge b

y ai

rw

ithin

the

mea

ning

of p

arag

raph

1 o

f th

is A

rticl

eco

m-

pris

es th

epe

riod

durin

g w

hich

the

carg

o is

in th

e ch

arge

of th

eca

rrie

r.4.

The

per

iod

ofth

eca

rria

ge b

y ai

rdoe

s no

text

end

to a

nyca

rria

ge b

y la

nd, b

yse

a or

by

inla

ndw

ater

way

per

form

edou

tsid

e an

airp

ort.

If,ho

wev

er, s

uch

carr

iage

take

spla

cein

the

perf

orm

ance

of a

con

tract

of

carr

iage

by

air,

for

the

purp

ose

oflo

adin

g, d

eliv

ery

or

trans

hipm

ent,

any

dam

age

is p

resu

med

,su

bjec

t to

proo

f to

the

cont

rary

, to

have

be

en th

e re

sult

ofan

even

t whi

ch to

ok

plac

e du

ring

the

carr

iage

by

air.

If a

carr

ier,

with

out t

heco

nsen

t oft

he c

on-

sign

or, s

ubst

itute

s ca

rria

ge b

y an

othe

r m

ode

oftra

nspo

rt fo

rth

ew

hole

or p

art o

f a

carr

iage

inte

nded

by

the

agre

emen

t be

twee

n th

e pa

rties

to

be

carr

iage

by

air,

such

car

riage

by

anot

her m

ode

oftra

nspo

rt is

dee

med

to b

ew

ithin

the

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 447

448 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

deliv

ery

ofth

e go

ods i

nsu

ch c

ontr

act,

the

time

and

loca

tion

that

is in

acco

rdan

ce w

ithth

ecu

stom

s, p

ract

ices

,or

usag

esin

the

trad

e.In

the

abse

nce

of a

nysu

chsp

ecifi

c pr

ovis

ion

in th

e co

ntra

ctof

car

riag

e or

of s

uch

cust

oms,

prac

tices

, or

usag

es, t

he

time

and

loca

tion

ofde

liver

y is

that

oft

he

disc

harg

e or

unl

oadi

ng

of th

e go

ods f

rom

the

final

ves

selo

r ve

hicl

ein

whi

chth

ey a

re c

arri

edun

der

the

cont

ract

of

carr

iage

. 4.

1.4

If th

eca

rrie

r is

requ

ired

to h

and

over

the

good

s at t

he p

lace

of

deliv

ery

to a

n au

thor

ityor

othe

r th

ird

part

y to

who

m, p

ursu

ant t

ola

w

or r

egul

atio

n ap

plic

able

at th

e pl

ace

of d

eliv

ery,

th

e go

ods

mus

tbe

hand

ed o

ver

and

from

who

m th

e co

nsig

nee

may

colle

ct th

em, s

uch

hand

ing

over

will

be

rega

rded

as a

del

iver

y of

the

good

sby

the

carr

ier

to th

eco

nsig

nee

unde

r ar

ticle

4.1

.3.

cont

ract

or w

ithth

e la

w o

r w

ithth

eus

age

of th

e pa

rticu

-la

r tra

de, a

pplic

able

at th

e po

rtof

dis

-ch

arge

, or

(iii)

By

hand

ing

over

th

ego

ods t

o an

auth

ority

or o

ther

third

par

ty to

who

m,

purs

uant

to la

w o

r re

gula

tions

app

li-ca

ble

at th

e po

rtof

disc

harg

e, th

e go

ods

mus

t be

hand

ed o

ver.

3. In

par

agra

phs 1

an

d 2

ofth

isA

rticl

e,re

fere

nce

to th

eca

rrie

ror t

o th

eco

nsig

nee

mea

ns,i

nad

ditio

n to

the

carr

ier

or th

eco

nsig

nee,

the

serv

ants

or a

gent

s, re

spec

tivel

y of

the

carr

ier o

rthe

co

nsig

nee.

cons

igne

e in

acco

rdan

ce w

ithth

e m

ultim

odal

tran

spor

t co

ntra

ct o

r with

the

law

or w

ithth

eus

age

of th

epa

rticu

lart

rade

ap

plic

able

at t

he

plac

e of

del

iver

y; o

r (ii

i) B

y ha

ndin

g ov

er

the

good

s to

anau

thor

ity o

r oth

erth

ird p

arty

tow

hom

, pu

rsua

ntto

law

or

regu

latio

ns a

ppli-

cabl

e at

the

plac

e of

deliv

ery,

the

good

sm

ust b

e ha

nded

ove

r.3.

In p

arag

raph

s 1

and

2 of

this

arti

cle,

re

fere

nce

to th

em

ultim

odal

tran

spor

t op

erat

or s

hall

incl

ude

his

serv

ants

or a

gent

s or a

nyot

her p

erso

n of

w

hose

ser

vice

she

mak

es u

se fo

rthe

perf

orm

ance

oft

hem

ultim

odal

tran

spor

t co

ntra

ct, a

ndre

fere

nce

to th

e co

n-si

gnor

or c

onsi

gnee

sh

all i

nclu

de th

eir

serv

ants

or a

gent

s.

even

t whi

ch to

ok

plac

e du

ring

the

carr

iage

by

air.

perio

dof

car

riage

by

air.

B. C

AR

RIA

GE

PR

EC

ED

ING

OR

SU

BSE

QU

EN

TTO

SEA

CA

RR

IAG

E (M

ULT

IMO

DA

L/D

OO

R-T

O-D

OO

R)

INST

RU

ME

NT

HA

GU

E-V

ISB

YH

AM

BU

RG

MU

LTIM

OD

AL

CM

RC

OT

IF-C

IM 1

999

CM

NI

WA

RSA

WM

ON

TR

EA

LA

rtic

le 4

-Per

iod

ofre

spon

sibi

lity

4.1.

1 Su

bjec

t to

the

prov

isio

nsof

art

icle

4.3

,th

ere

spon

sibi

lity

of th

eca

rrie

r fo

r th

e go

ods

unde

r th

isin

stru

men

t co

vers

the

peri

odfr

omth

e tim

e w

hen

the

carr

ier

or a

per

form

ing

Art

icle

1-D

efin

ition

s2.

“M

ultim

odal

trans

port

oper

ator

” m

eans

any

pers

on

who

on

his

own

beha

lf or

thro

ugh

anot

her p

erso

nac

ting

on h

is b

ehal

f co

nclu

des a

mul

ti-m

odal

tran

spor

t

Art

icle

2

1. W

here

the

vehi

cle

cont

aini

ng th

e go

ods

is c

arrie

dov

er p

arto

fth

e jo

urne

y by

sea,

rail,

inla

ndw

ater

-w

ays

orai

r, an

d,

exce

pt w

here

the

pro-

visi

ons

of a

rticl

e 14

ar

e ap

plic

able

, the

Art

icle

38-

Liab

ility

in

resp

ecto

f rai

l-sea

traf

fic1.

In ra

il-se

a ca

rria

ge

by th

e se

rvic

es

refe

rred

to in

Arti

cle

24 §

1 o

f the

C

onve

ntio

n an

yM

embe

r Sta

te m

ay,

byre

ques

ting

that

a

Art

icle

2-S

cope

of

appl

icat

ion

2. T

his C

onve

ntio

nis

appl

icab

le if

the

pur-

pose

oft

he c

ontra

ct

of c

arria

ge is

the

carr

iage

of g

oods

,w

ithou

t tra

nshi

p-m

ent,

both

on in

land

w

ater

way

s and

in

Art

icle

18

5.Th

e pe

riod

ofth

e ca

rria

ge b

y ai

rdoe

s no

text

end

to a

nyca

rria

ge b

yla

nd, b

yse

a or

by ri

ver

perf

orm

ed o

utsi

de a

n ai

rpor

t. If,

how

ever

,su

ch c

arria

ge ta

kes

plac

e in

the

Art

icle

38-

Com

bine

d ca

rria

ge1.

In th

e ca

seof

com

bine

d ca

rria

gepe

rfor

med

par

tlyby

air a

nd p

artly

by

any

othe

r mod

e of

carr

iage

, the

prov

i-si

ons o

fthi

sC

onve

ntio

n sh

all,

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 448

Part Two. Studies and reports on specific subjects 449IN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

part

y ha

s rec

eive

d th

e go

ods f

or c

arri

age

until

th

e tim

e w

hen

the

good

sare

del

iver

ed to

the

cons

igne

e.

4.2.

1 C

arri

age

prec

ed-

ing

or s

ubse

quen

t to

sea

carr

iage

. Whe

re a

cla

imor

dis

pute

aris

es o

utof

loss

of o

r da

mag

e to

good

s or

dela

y oc

curr

ing

sole

ly d

urin

g ei

ther

of t

he fo

llow

ing

peri

ods:

(a) f

rom

the

tim

eof

rece

ipt o

fthe

goo

dsby

the

carr

ier

or a

perf

orm

ing

part

y to

the

time

ofth

eir

load

ing

onto

the

vess

el;

(b)f

rom

the

time

ofth

eir

disc

harg

e fr

omth

e ve

ssel

to th

etim

e of

thei

r de

liver

yto

the

cons

igne

e;an

d, a

t the

tim

eof

suc

hlo

ss, d

amag

eor

del

ay,

ther

e ar

e pr

ovis

ions

ofan

inte

rnat

iona

l co

nven

tion

that

(i) a

ccor

ding

to th

eir

term

sapp

ly to

all

oran

y of

the

carr

ier’

sac

tiviti

es u

nder

the

cont

ract

ofc

arri

age

duri

ng th

atpe

riod

,[ir

resp

ectiv

e w

heth

erth

e is

suan

ce o

fany

part

icul

ar d

ocum

ent i

sne

eded

in o

rder

to

mak

e su

chin

ter-

natio

nal c

onve

ntio

nap

plic

able

],an

d

(ii) m

ake

spec

ific

prov

isio

ns fo

r ca

rrie

r’s

liabi

lity,

lim

itatio

n of

lia

bilit

y, o

rtim

e fo

r su

it, a

nd

(iii)

cann

ot b

e de

part

ed

cont

ract

and

who

ac

ts a

sa p

rinci

pal,

not a

s an

agen

t or o

n be

half

ofth

eco

nsig

nor o

r of t

heca

rrie

rs p

artic

ipat

ing

in th

e m

ultim

odal

trans

port

oper

atio

ns,

and

who

ass

umes

resp

onsi

bilit

y fo

r the

pe

rfor

man

ce o

fthe

cont

ract

.3.

“M

ultim

odal

trans

port

cont

ract

” m

eans

a c

ontra

ct

whe

reby

a m

ulti-

mod

al tr

ansp

ort

oper

ator

und

erta

kes,

agai

nst p

aym

ent o

ffr

eigh

t, to

per

form

or

to p

rocu

re th

epe

r-fo

rman

ce o

f int

er-

natio

nal m

ultim

odal

trans

port.

A

rtic

le 3

-Man

dato

ryap

plic

atio

n 2.

Not

hing

in th

isC

onve

ntio

n sh

all

affe

ct th

e rig

ht o

fthe

cons

igno

r to

choo

sebe

twee

n m

ultim

odal

trans

port

and

segm

ente

d tra

nspo

rt.

Art

icle

19-

Loca

lized

da

mag

e W

hen

the

loss

of o

rda

mag

e to

the

good

soc

curr

ed d

urin

g on

e pa

rticu

lar s

tage

of

the

mul

timod

al

trans

port,

inre

spec

t of

whi

ch a

n ap

pli-

cabl

e in

tern

atio

nal

conv

entio

n or

man

-da

tory

nat

iona

l law

prov

ides

a h

ighe

r lim

it of

liab

ility

than

th

e lim

it th

at w

ould

fo

llow

from

app

lica-

tion

of p

arag

raph

s 1

good

s ar

e no

t un

load

ed fr

om th

eve

hicl

e, th

isC

onve

ntio

n sh

all

neve

rthel

ess a

pply

toth

e w

hole

oft

heca

rria

ge. P

rovi

ded

that

to th

e ex

tent

that

it is

prov

ed th

at a

nylo

ss, d

amag

e or

del

ayin

del

iver

yof

the

good

s w

hich

occ

urs

durin

g th

eca

rria

geby

the

othe

r mea

ns o

ftra

nspo

rt w

asno

t ca

used

by

an a

ct o

rom

issi

on o

fthe

carr

ier b

y ro

ad, b

ut

byso

me

even

t whi

ch

coul

d on

lyha

veoc

curr

ed in

the

cour

seof

and

by

reas

on o

f the

car

riage

by

that

oth

er m

eans

of tr

ansp

ort,

the

liabi

lity

ofth

e ca

rrie

rby

road

sha

llbe

dete

rmin

ed n

ot b

yth

is C

onve

ntio

n bu

tin

the

man

ner i

n w

hich

the

liabi

lity

of

the

carr

ierb

y th

e ot

her m

eans

of

trans

port

wou

ld h

ave

been

det

erm

ined

if a

cont

ract

for t

heca

rria

ge o

f the

goo

dsal

one

had

been

mad

eby

the

send

erw

ithth

e ca

rrie

rby

the

othe

r mea

ns o

ftra

nspo

rt in

acc

ord-

ance

with

the

cond

i-tio

ns p

resc

ribed

by

law

for t

he c

arria

ge

of g

oods

by

that

m

eans

oft

rans

port.

If, h

owev

er, t

here

are

no su

ch p

resc

ribed

co

nditi

ons,

the

suita

ble

note

be

incl

uded

in th

e lis

tof

serv

ices

tow

hich

th

ese

Uni

form

Rul

esap

ply,

add

the

follo

win

g gr

ound

sfo

r exe

mpt

ion

from

lia

bilit

y in

thei

ren

tiret

y to

thos

epr

ovid

ed fo

rin

Arti

cle

23:

a)fir

e, if

the

carr

ier

prov

es th

at it

was

not

caus

ed b

y hi

s act

or

defa

ult,

orth

at o

f the

m

aste

r, a

mar

iner

, the

pilo

t ort

he c

arrie

r’sse

rvan

ts;

b) sa

ving

ora

ttem

pt-

ing

to s

ave

life

orpr

oper

ty a

t sea

; c)

load

ing

of g

oods

on th

e de

ckof

the

ship

, if t

hey

are

solo

aded

with

the

cons

ent o

fthe

con

-si

gnor

giv

en o

n th

eco

nsig

nmen

t not

ean

d ar

e no

t in

wag

ons;

d)pe

rils,

dang

ers a

ndac

cide

nts

ofth

e se

aor

oth

er n

avig

able

wat

ers.

2. T

he c

arrie

r may

only

ava

ilhi

mse

lf of

the

grou

nds f

orex

empt

ion

refe

rred

toin

§ 1

if h

e pr

oves

that

the

loss

, dam

age

or e

xcee

ding

the

trans

it pe

riod

occu

rred

in th

e co

urse

of th

e jo

urne

yby

sea

betw

een

the

time

whe

n th

e go

ods

wer

e lo

aded

on

boar

dth

esh

ip a

nd th

e tim

e w

hen

they

wer

eun

load

ed fr

om th

e

wat

ers t

ow

hich

mar

itim

e re

gula

tions

appl

y, u

nder

the

cond

ition

s set

out

inpa

ragr

aph

1, u

nles

s:(a

)A m

arin

e bi

ll of

ladi

ng h

asbe

enis

sued

in a

ccor

danc

ew

ith th

em

ariti

me

law

app

licab

le, o

r(b

) The

dis

tanc

e to

be tr

avel

led

inw

ater

sto

whi

ch m

ariti

me

regu

latio

ns a

pply

isth

e gr

eate

r.

perf

orm

ance

of a

co

ntra

ct fo

r car

riage

by a

ir,fo

r the

pu

rpos

e of

load

ing,

de

liver

y or

tran-

ship

men

t, an

yda

mag

e is

pre

sum

ed,

subj

ect t

o pr

oof t

oth

e co

ntra

ry, t

o ha

ve

been

the

resu

lt of

anev

ent w

hich

took

pl

ace

durin

g th

eca

rria

ge b

y ai

r.A

rtic

le 3

0 1.

In th

e ca

seof

carr

iage

to b

e pe

r-fo

rmed

by

vario

ussu

cces

sive

car

riers

and

falli

ng w

ithin

the

defin

ition

set

out

inth

e th

ird p

arag

raph

of

Arti

cle

1, e

ach

carr

ier

who

acc

epts

pass

enge

rs, l

ugga

ge

or g

oods

is su

bjec

ted

to th

e ru

less

etou

t in

this

Con

vent

ion,

and

is

dee

med

to b

eon

eof

the

cont

ract

ing

parti

es to

the

cont

ract

of

car

riage

in s

o fa

r as

the

cont

ract

dea

ls

with

that

par

t of t

heca

rria

ge w

hich

ispe

rfor

med

und

erhi

ssu

perv

isio

n.2.

In th

e ca

seof

carr

iage

of t

his

natu

re, t

he p

asse

nger

or

his

repr

esen

tativ

e ca

n ta

ke a

ctio

non

lyag

ains

t the

car

rier

who

per

form

edth

eca

rria

ge d

urin

gw

hich

the

acci

dent

orth

e de

lay

occu

rred

, sa

ve in

the

case

whe

re, b

yex

pres

s ag

reem

ent,

the

first

ca

rrie

r has

ass

umed

subj

ect t

o pa

ra-

grap

h 4

ofA

rticl

e 18

, ap

ply

only

to th

eca

rria

ge b

y ai

r,pr

ovid

ed th

at th

eca

rria

ge b

y ai

rfal

lsw

ithin

the

term

sof

Arti

cle

1.2.

Not

hing

in th

isC

onve

ntio

n sh

all

prev

ent t

he p

artie

s in

the

case

of c

ombi

ned

carr

iage

from

inse

rt-in

g in

the

docu

men

t of

air c

arria

ge c

ondi

-tio

nsre

latin

g to

oth

erm

odes

of c

arria

ge,

prov

ided

that

the

prov

isio

ns o

f thi

sC

onve

ntio

n ar

eob

serv

ed a

sre

gard

sth

e ca

rria

ge b

y ai

r.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 449

450 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

from

by

priv

ate

cont

ract

eith

er a

t all

orto

the

detr

imen

t of t

hesh

ippe

r,su

ch p

rovi

sion

s sha

ll, to

the

exte

nt th

at th

ey a

rem

anda

tory

as i

ndic

ated

in

(iii)

abo

ve, p

reva

il ov

er th

e pr

ovis

ions

of

this

inst

rum

ent.

[4.2

.2A

rtic

le 4

.2.1

ap

plie

s reg

ardl

ess

ofth

e na

tiona

l law

oth

er-

wis

e ap

plic

able

to th

eco

ntra

ct o

fcar

riag

e.]

to 3

of a

rticl

e 18

, th

enth

e lim

it of

the

mul

timod

al tr

ansp

ort

oper

ator

's lia

bilit

yfo

r suc

h lo

ss o

rda

mag

e sh

allb

ede

term

ined

by

refe

renc

e to

the

prov

isio

ns o

f suc

h co

nven

tion

orm

anda

tory

nat

iona

lla

w.

liabi

lity

ofth

e ca

rrie

rby

road

sha

llbe

dete

rmin

ed b

y th

isC

onve

ntio

n.2.

Ifth

e ca

rrie

r by

road

isal

so h

imse

lfth

e ca

rrie

rby

the

othe

r mea

ns o

ftra

nspo

rt, h

is li

abili

tysh

all a

lso

bede

ter-

min

ed in

acco

rdan

cew

ith th

e pr

ovis

ions

of

para

grap

h 1

of th

isar

ticle

, but

as i

f, in

his

capa

citie

s as

carr

ier b

y ro

ad a

nd a

sca

rrie

r by

the

othe

rm

eans

oft

rans

port,

he w

ere

two

sepa

rate

pers

ons.

ship

.3.

Whe

n th

e ca

rrie

rre

lies

onth

e gr

ound

s fo

r exe

mpt

ion

refe

rred

to in

§ 1

,he

shal

l nev

erth

eles

sre

mai

n lia

ble

if th

epe

rson

ent

itled

pr

oves

that

the

loss

, da

mag

e or

exc

eedi

ngth

e tra

nsit

perio

d is

due

to th

e fa

ult o

f the

ca

rrie

r,th

e m

aste

r, a

mar

iner

, the

pilo

t or

the

carr

ier’s

ser

vant

s.4.

Whe

re a

sea

rout

e is

ser

ved

by s

ever

alun

derta

king

sin

clud

ed in

the

listo

fse

rvic

es in

acco

rdan

ce w

ithA

rticl

e 24

§ 1

of t

he

Con

vent

ion,

the

liabi

lity

regi

me

appl

icab

le to

that

rout

em

ust b

e th

esa

me

for a

llth

ose

unde

rtaki

ngs.

Inad

ditio

n, w

here

thos

e un

derta

king

s hav

e be

en in

clud

ed in

the

list a

t the

requ

est o

fse

vera

l Mem

ber

Stat

es, t

he a

dopt

ion

of th

is re

gim

e m

ust

beth

e su

bjec

t of

prio

r agr

eem

ent

betw

een

thos

e St

ates

. 5.

The

mea

sure

s ta

ken

inac

cord

ance

with

§§

1 an

d 4

shal

lbe

not

ified

to th

eSe

cret

ary

Gen

eral

.Th

eysh

all c

ome

into

forc

e at

the

earli

est a

t th

e ex

piry

of a

per

iod

ofth

irty

days

from

the

day

on w

hich

the

Secr

etar

y G

ener

alno

tifie

s the

m to

the

othe

r Mem

ber S

tate

s.

liabi

lity

fort

he w

hole

jo

urne

y.3.

As

rega

rds l

ugga

ge

or g

oods

,the

pa

ssen

ger o

rco

nsig

nor w

illha

ve a

right

of a

ctio

n ag

ains

t the

firs

t ca

rrie

r, an

d th

e pa

ssen

ger o

rco

nsig

nee

who

isen

title

d to

del

iver

yw

ill h

ave

a rig

ht o

fac

tion

agai

nst t

he la

stca

rrie

r, an

d fu

rther

,ea

chm

ay ta

ke a

ctio

nag

ains

t the

car

rier

who

per

form

edth

eca

rria

ge d

urin

gw

hich

the

dest

ruc-

tion,

loss

, dam

age

orde

lay

took

pla

ce.

Thes

e ca

rrie

rs w

ill b

ejo

intly

and

seve

rally

liabl

e to

the

pass

enge

r or t

o th

e co

nsig

nor o

rco

nsig

nee.

Art

icle

30

A

Not

hing

in th

isC

onve

ntio

n sh

all

prej

udic

e th

e qu

estio

n w

heth

er a

pers

on li

able

for

dam

age

in a

ccor

d-an

cew

ith it

s pro

vi-

sion

shas

a ri

ght o

f re

cour

se a

gain

stan

yot

her p

erso

n.A

rtic

le 3

1 1.

In th

e ca

seof

com

bine

d ca

rria

gepe

rfor

med

par

tlyby

air a

nd p

artly

by

any

othe

r mod

e of

carr

iage

, the

prov

isio

ns o

f thi

sC

onve

ntio

n ap

ply

only

to th

e ca

rriag

e by

air,

pro

vide

d th

atth

e ca

rria

ge b

y ai

r

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 450

Part Two. Studies and reports on specific subjects 451IN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

Con

sign

men

tsal

read

y in

tran

sit

shal

l not

be

affe

cted

by s

uch

mea

sure

s.

falls

with

in th

e te

rms

of A

rticl

e1.

2.

Not

hing

in th

isC

onve

ntio

n sh

all

prev

ent t

he p

artie

s in

the

case

of c

ombi

ned

carr

iage

from

in

serti

ng in

the

docu

men

t of a

irca

rria

ge c

ondi

tions

rela

ting

toot

her

mod

es o

f car

riage

, pr

ovid

ed th

at th

epr

ovis

ions

of t

his

Con

vent

ion

are

obse

rved

as

rega

rds

the

carr

iage

by

air.

C. M

IXE

D C

ON

TRA

CT

S O

FC

AR

RIA

GE

AN

DF

OR

WA

RD

ING

INST

RU

ME

NT

HA

GU

E-V

ISB

YH

AM

BU

RG

MU

LTIM

OD

AL

CM

RC

OT

IF-C

IM 1

999

CM

NI

WA

RSA

WM

ON

TR

EA

LA

rtic

le 4

.3-M

ixed

co

ntra

cts o

f car

riag

e an

d fo

rwar

ding

4.

3.1

The

par

ties

may

expr

essl

y ag

ree

inth

e co

ntra

ct o

fcar

riag

e th

at in

res

pect

of a

sp

ecifi

ed p

arto

r pa

rts

of th

etr

ansp

ort o

fthe

good

s the

car

rier

, ac

ting

asag

ent,

will

ar

rang

e ca

rria

ge b

yan

othe

r ca

rrie

ror

carr

iers

. 4.

3.2

In s

uch

even

t the

carr

ier

shal

lexe

rcis

edu

e di

ligen

ce in

sele

ctin

g th

e ot

her

carr

ier,

conc

lude

aco

ntra

ct w

ith s

uch

othe

r ca

rrie

r on

usu

alan

dno

rmal

term

s, a

nddo

eve

ryth

ing

that

isre

ason

ably

req

uire

d to

enab

le s

uch

othe

rca

rrie

r to

per

form

dul

y un

der

itsco

ntra

ct.

Art

icle

11-

Thro

ugh

carr

iage

1. N

otw

ithst

andi

ngth

e pr

ovis

ions

ofpa

ragr

aph

1 of

A

rticl

e 10

, whe

re a

co

ntra

ct o

f car

riage

by

sea

prov

ides

expl

icitl

y th

at a

sp

ecifi

ed p

arto

f the

ca

rria

ge c

over

ed b

yth

esa

id c

ontra

ct is

tobe

per

form

ed b

y a

nam

ed p

erso

n ot

her

than

the

carr

ier,

the

cont

ract

may

als

opr

ovid

e th

at th

e ca

rrie

r is n

otlia

ble

for l

oss,

dam

age

orde

lay

inde

liver

yca

used

by

anoc

curr

ence

whi

ch

take

s pla

cew

hile

the

good

sare

in th

e ch

arge

oft

he a

ctua

lca

rrie

r dur

ing

such

part

ofth

e ca

rria

ge.

Nev

erth

eles

s, an

y

Art

icle

3 -

Man

dato

ry

appl

icat

ion

2.N

othi

ng in

this

Con

vent

ion

shal

laf

fect

the

right

oft

heco

nsig

nor t

och

oose

betw

een

mul

timod

altra

nspo

rt an

d se

g-m

ente

d tra

nspo

rt.

Art

icle

34

If c

arria

ge g

over

ned

bya

sing

le c

ontra

ctis

perf

orm

ed b

y su

cces

-si

ve ro

adca

rrie

rs,

each

of t

hem

sha

llbe

resp

onsi

ble

for t

he

perf

orm

ance

oft

hew

hole

ope

ratio

n, th

ese

cond

car

rier a

ndea

ch s

ucce

edin

g ca

rrie

r bec

omin

ga

party

to th

e co

ntra

ct

ofca

rria

ge, u

nder

the

term

sof

the

cons

ign-

men

t not

e, b

y re

ason

of

his

acc

epta

nce

ofth

e go

ods a

nd th

eco

nsig

nmen

t not

e.A

rtic

le 3

51.

A ca

rrie

r acc

eptin

gth

e go

ods

from

a

prev

ious

car

rier s

hall

give

the

latte

r a d

ated

an

d si

gned

rece

ipt.

He

shal

l ent

er h

isna

me

and

addr

ess o

n th

e se

cond

copy

of

Art

icle

26-

Succ

essi

ve

carr

iers

If

car

riage

gov

erne

dby

a si

ngle

con

tract

ispe

rfor

med

by

seve

ral

succ

essi

ve c

arrie

rs,

each

car

rier,

by th

eve

ry a

ct o

f tak

ing

over

the

good

sw

ith

the

cons

ignm

ent

note

, sha

ll be

com

ea

party

to th

e co

ntra

ct

of c

arria

ge in

acc

ord-

ance

with

the

term

sof

that

doc

umen

t and

sh

all a

ssum

e th

e ob

ligat

ions

aris

ing

ther

efro

m.I

n su

ch a

ca

se e

ach

carr

ier

shal

l be

resp

onsi

ble

in re

spec

t ofc

arria

ge

over

the

entir

e ro

ute

up to

deliv

ery.

A

rtic

le 4

9-Se

ttlem

ent

of a

ccou

nts

1. A

ny c

arrie

rwho

ha

s co

llect

edor

ough

t to

have

Art

icle

30

1. In

the

case

ofca

rria

ge to

be

per-

form

ed b

y va

rious

succ

essi

ve c

arrie

rsan

d fa

lling

with

in th

ede

finiti

on s

et o

ut in

the

third

par

agra

ph

of A

rticl

e 1,

eac

h ca

rrie

r who

acc

epts

pass

enge

rs, l

ugga

ge

or g

oods

is su

bjec

ted

to th

e ru

less

etou

t in

this

Con

vent

ion,

and

is

dee

med

to b

eon

eof

the

cont

ract

ing

parti

es to

the

cont

ract

of

car

riage

in s

o fa

r as

the

cont

ract

dea

ls

with

that

par

t of t

heca

rria

ge w

hich

ispe

rfor

med

und

erhi

ssu

perv

isio

n.2.

In th

e ca

seof

carr

iage

of t

his

natu

re, t

he p

asse

nger

or

his

repr

esen

tativ

e ca

n ta

ke a

ctio

non

ly

Art

icle

36-

Succ

essi

ve

Car

riag

e1.

In th

e ca

seof

carr

iage

to b

e pe

r-fo

rmed

by

vario

ussu

cces

sive

car

riers

and

falli

ng w

ithin

the

defin

ition

set

out

inpa

ragr

aph

3 of

A

rticl

e 1,

eac

h ca

rrie

rw

hich

acc

epts

pass

enge

rs, b

agga

ge

orca

rgo

is su

bjec

t to

the

rule

sse

t out

in

this

Con

vent

ion

and

is d

eem

ed to

be

one

ofth

e pa

rties

toth

eco

ntra

ct o

f car

riage

in

so fa

r ast

heco

ntra

ctde

als

with

that

par

tof

the

carr

iage

whi

ch is

perf

orm

ed u

nder

its

supe

rvis

ion.

2. In

the

case

ofca

rria

ge o

f thi

sna

ture

, the

pas

seng

er

or a

ny p

erso

n en

title

d to

com

pens

atio

n in

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 451

452 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

stip

ulat

ion

limiti

ng o

rex

clud

ing

such

liabi

lity

isw

ithou

t ef

fect

ifno

judi

cial

proc

eedi

ngs c

an b

ein

stitu

ted

agai

nst t

heac

tual

carr

ier i

n a

cour

t com

pete

ntun

der p

arag

raph

1 o

r 2

ofar

ticle

21.

The

bu

rden

ofp

rovi

ngth

at a

ny lo

ss, d

amag

e or

dela

y in

del

iver

yha

sbee

n ca

used

by

such

an

occu

rren

ce

rest

s upo

n th

eca

rrie

r.2.

The

act

ualc

arrie

ris

resp

onsi

ble

inac

cord

ance

with

the

prov

isio

ns o

fpa

ragr

aph

2 of

A

rticl

e 10

for l

oss,

dam

age

or d

elay

in

deliv

ery

caus

ed b

y an

occu

rren

ce w

hich

ta

kes p

lace

whi

le th

ego

odsa

re in

his

char

ge.

the

cons

ignm

ent n

ote.

Whe

re a

pplic

able

, he

shal

l ent

er o

n th

e se

cond

cop

yof

the

cons

ignm

ent n

ote

and

on th

e re

ceip

t re

serv

atio

ns o

fthe

kind

pro

vide

d fo

r in

artic

le 8

, par

agra

ph 2

. 2.

The

pro

visi

ons

ofar

ticle

9sh

all a

pply

to th

e re

latio

nsbe

twee

n su

cces

sive

ca

rrie

rs. Art

icle

36

Exce

pt in

the

case

ofa

coun

terc

laim

or a

se

toff

rais

ed in

an

actio

n co

ncer

ning

acl

aim

bas

ed o

n th

e sa

me

cont

ract

of

carr

iage

, leg

al

proc

eedi

ngs i

n re

spec

t of l

iabi

lity

for

loss

, dam

age

or d

elay

may

onl

y be

bro

ught

ag

ains

t the

firs

t ca

rrie

r,th

e la

st c

arrie

ror

the

carr

ier w

how

as p

erfo

rmin

g th

atpo

rtion

of t

he

carr

iage

dur

ing

whi

ch

the

even

t cau

sing

the

loss

, dam

age

or d

elay

occu

rred

, an

actio

n m

ay b

e br

ough

t att

he

sam

e tim

eag

ains

t se

vera

l oft

hese

ca

rrie

rs. Art

icle

37

A ca

rrie

rwho

has

paid

com

pens

atio

n in

co

mpl

ianc

e w

ithth

e pr

ovis

ions

of t

his

Con

vent

ion,

shal

lbe

entit

led

to re

cove

r su

ch c

ompe

nsat

ion,

toge

ther

with

inte

rest

ther

eon

and

all c

osts

and

expe

nses

in

curr

ed b

y re

ason

of

colle

cted

, eith

er a

t de

partu

re o

r on

arriv

al, c

harg

es o

rot

her c

osts

aris

ing

out o

fthe

con

tract

of

carr

iage

mus

t pay

toth

e ca

rrie

rsco

ncer

ned

thei

rre

spec

tive

shar

es.

The

met

hods

of

paym

ent s

hall

befix

ed b

y ag

reem

ent

betw

een

the

carr

iers

. 2.

Arti

cle

12 sh

all

also

app

ly to

the

rela

tions

bet

wee

n su

cces

sive

car

riers

.A

rtic

le 5

0-R

ight

of

reco

urse

1. A

car

rier w

ho h

aspa

id c

ompe

nsat

ion

purs

uant

to th

ese

Uni

form

Rul

essh

all

have

a ri

ght o

fre

cour

se a

gain

st th

eca

rrie

rs w

ho h

ave

take

n pa

rt in

the

carr

iage

in a

ccor

d-an

ce w

ith th

e fo

llow

ing

prov

isio

ns:

a) th

e ca

rrie

r who

has

ca

used

the

loss

or

dam

age

shal

lbe

sole

ly li

able

fori

t; b)

whe

n th

e lo

ss o

rda

mag

e ha

sbee

n ca

used

by

seve

ral

carr

iers

, eac

h sh

all b

elia

ble

for t

he lo

ssor

dam

age

he h

asca

used

; ifs

uch

dist

inct

ion

isim

poss

ible

, the

co

mpe

nsat

ion

shal

lbe

app

ortio

ned

betw

een

them

inac

cord

ance

with

lette

r c);

c)if

it ca

nnot

be

prov

ed w

hich

oft

he

carr

iers

has

cau

sed

agai

nst t

he c

arrie

rw

ho p

erfo

rmed

the

carr

iage

dur

ing

whi

ch th

e ac

cide

ntor

the

dela

yoc

curr

ed,

save

in th

e ca

sew

here

, by

expr

ess

agre

emen

t, th

efir

st

carr

ier h

as a

ssum

edlia

bilit

y fo

rthe

w

hole

jour

ney.

3. A

s re

gard

slu

ggag

e or

goo

ds,t

he

pass

enge

r or

cons

igno

r will

have

arig

ht o

f act

ion

agai

nst t

he fi

rst

carr

ier,

and

the

pass

enge

r or

cons

igne

e w

hois

entit

led

to d

eliv

ery

will

hav

e a

right

of

actio

n ag

ains

t the

last

carr

ier,

and

furth

er,

each

may

take

act

ion

agai

nst t

he c

arrie

rw

ho p

erfo

rmed

the

carr

iage

dur

ing

whi

ch th

e de

stru

c-tio

n, lo

ss, d

amag

e or

dela

y to

ok p

lace

. Th

ese

carr

iers

will

be

join

tly a

ndse

vera

llylia

ble

to th

epa

ssen

ger o

r to

the

cons

igno

r or

cons

igne

e.A

rtic

le 3

0A

N

othi

ng in

this

Con

vent

ion

shal

lpr

ejud

ice

the

ques

tion

whe

ther

ape

rson

liab

le fo

r da

mag

e in

acc

ord-

ance

with

its p

rovi

-si

ons

has a

righ

t of

reco

urse

aga

inst

any

othe

r per

son.

resp

ect o

fhim

orh

er

can

take

act

ion

only

agai

nst t

he c

arrie

rw

hich

per

form

ed th

eca

rria

ge d

urin

gw

hich

th

e ac

cide

ntor

the

dela

y oc

curr

ed, s

ave

in th

e ca

sew

here

, by

expr

ess a

gree

men

t, th

efir

st c

arrie

r has

assu

med

liab

ility

for

the

who

le jo

urne

y.3.

As

rega

rds

bagg

age

or c

argo

,the

pa

ssen

ger o

rco

nsig

nor w

illha

ve a

right

of a

ctio

n ag

ains

tth

e fir

stca

rrier

, and

the

pass

enge

ror

cons

igne

e w

hois

entit

led

to d

eliv

ery

will

hav

e a

right

of

actio

n ag

ains

t the

last

carr

ier,

and

furth

er,

each

may

take

act

ion

agai

nst t

he c

arrie

rw

hich

per

form

ed th

eca

rria

ge d

urin

gw

hich

th

e de

stru

ctio

n, lo

ss,

dam

age

or d

elay

took

pl

ace.

The

se c

arrie

rs

will

be

join

tlyan

d se

vera

llylia

ble

to th

e pa

ssen

ger o

r to

the

cons

igno

r or

cons

igne

e.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 452

Part Two. Studies and reports on specific subjects 453IN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

the

clai

m,f

rom

the

othe

r car

riers

who

have

take

n pa

rt in

the

carr

iage

, sub

ject

toth

e fo

llow

ing

prov

i-si

ons:

(a) T

he c

arrie

rre

spon

sibl

e fo

r the

lo

ss o

r dam

age

shal

l be

sol

ely

liabl

e fo

rth

e co

mpe

nsat

ion

whe

ther

pai

dby

him

self

or b

y an

othe

rca

rrie

r;(b

) Whe

nth

e lo

ss o

rda

mag

e ha

sbee

n ca

used

by

the

actio

nof

two

or m

ore

carr

iers

, eac

h of

them

shal

l pay

an a

mou

nt

prop

ortio

nate

tohi

ssh

are

of li

abili

ty;

shou

ldit

be im

pos-

sibl

e to

appo

rtion

the

liabi

lity,

eac

h ca

rrie

rsh

all b

elia

ble

inpr

opor

tion

toth

esh

are

ofth

e pa

ymen

t fo

r the

carr

iage

whi

ch

is d

ue to

him

;(c

) If i

t can

not b

eas

certa

ined

tow

hich

ca

rrie

rs li

abili

ty is

at

tribu

tabl

e fo

rthe

lo

ss o

r dam

age,

the

amou

nt o

fthe

com

-pe

nsat

ion

shal

lbe

appo

rtion

ed b

etw

een

all t

he c

arrie

rs a

slai

ddo

wn

in (b

) abo

ve.

Art

icle

38

If o

ne o

f the

car

riers

is in

solv

ent,

the

shar

e of

the

com

pens

atio

n du

efr

om h

im a

nd

unpa

id b

y hi

m sh

all

be d

ivid

ed a

mon

g th

e ot

her c

arrie

rsin

prop

ortio

n to

the

shar

e of

the

paym

ent

the

loss

or d

amag

e,

the

com

pens

atio

nsh

all b

e ap

porti

oned

betw

een

all t

he

carr

iers

who

hav

e ta

ken

part

in th

eca

rria

ge, e

xcep

ttho

se

who

pro

ve th

at th

e lo

ss o

r dam

age

was

not c

ause

d by

them

;su

ch a

ppor

tionm

ent

shal

l be

in p

ropo

rtion

to

thei

rres

pect

ive

shar

esof

the

carr

iage

char

ge.

2. In

the

case

ofin

solv

ency

of a

nyon

eof

thes

e ca

rrie

rs,

the

unpa

id sh

are

due

from

him

shal

lbe

appo

rtion

ed a

mon

g al

l the

othe

r car

riers

who

hav

e ta

ken

part

in th

e ca

rria

ge, i

n pr

opor

tion

toth

eir

resp

ectiv

e sh

ares

of

the

carr

iage

char

ge.

Art

icle

51-

Proc

edur

e fo

r rec

ours

e1.

The

val

idity

of t

he

paym

ent m

ade

byth

eca

rrie

r exe

rcis

ing

a rig

ht o

f rec

ours

epu

rsua

nt to

Arti

cle

50m

ay n

ot b

edi

sput

edby

the

carr

ier a

gain

stw

hom

the

right

of

reco

urse

isex

erci

sed,

w

hen

com

pens

atio

n ha

s bee

n de

term

ined

by

a co

urt o

rtrib

unal

an

d w

hen

the

latte

rca

rrie

r, du

ly se

rved

with

not

ice

of th

epr

ocee

ding

s, ha

sbe

en a

ffor

ded

an

oppo

rtuni

ty to

inte

r-ve

ne in

the

proc

eed-

ings

. The

cou

rt or

tribu

nal s

eize

d of

the

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 453

454 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

fort

he c

arria

ge d

ueto

them

. Art

icle

39

1. N

o ca

rrie

r aga

inst

w

hom

a c

laim

ism

ade

unde

rar

ticle

s 37

and

38

shal

l be

entit

led

todi

sput

eth

e va

lidity

of

the

paym

ent m

ade

byth

e ca

rrie

rmak

ing

the

clai

m if

the

amou

nt

of th

eco

mpe

nsat

ion

was

det

erm

ined

by

judi

cial

aut

horit

yaf

tert

he fi

rst m

en-

tione

d ca

rrie

r had

been

giv

en d

ue n

otic

eof

the

proc

eedi

ngs

and

affo

rded

anop

portu

nity

of e

nter

-in

g an

app

eara

nce.

2. A

car

rier w

ishi

ngto

take

pro

ceed

ings

toen

forc

e hi

s rig

ht o

fre

cove

ry m

ay m

ake

hisc

laim

bef

ore

the

com

pete

nt c

ourt

ortri

buna

l oft

he

coun

try in

whi

ch o

neof

the

carr

iers

con

-ce

rned

isor

dina

rily

resi

dent

,or h

as h

ispr

inci

pal p

lace

of

busi

ness

ort

he

bran

ch o

r age

ncy

thro

ugh

whi

ch th

eco

ntra

ct o

f car

riage

w

as m

ade.

All

the

carr

iers

con

cern

ed

may

be

mad

ede

fend

ants

in th

e sa

me

actio

n.

3. T

he p

rovi

sion

s of

artic

le 3

1, p

ara-

grap

hs 3

and

4, s

hall

appl

y to

judg

emen

tsen

tere

d in

the

pro-

ceed

ings

refe

rred

toin

arti

cles

37

and

38.

4. T

he p

rovi

sion

s of

prin

cipa

l act

ion

shal

l de

term

ine

wha

t tim

esh

all b

e al

low

ed fo

rsu

ch n

otifi

catio

nof

the

proc

eedi

ngs a

nd

for i

nter

vent

ion

in th

e pr

ocee

ding

s. 2.

A c

arrie

r exe

rcis

-in

ghi

s rig

ht o

fre

cour

se m

ust m

ake

his

clai

min

one

and

th

e sa

me

proc

eedi

ngs

agai

nst a

ll th

eca

rrie

rs w

ith w

hom

he

has

not

reac

hed

a se

ttlem

ent,

faili

ng

whi

ch h

e sh

all l

ose

his r

ight

of r

ecou

rse

in th

e ca

seof

thos

eag

ains

t who

m h

e ha

sno

t tak

en p

ro-

ceed

ings

. 3.

The

cou

rt or

tribu

nal m

ust g

ive

itsde

cisi

on in

one

and

th

e sa

me

judg

men

ton

all

reco

urse

clai

ms

brou

ght b

efor

e it.

4.

The

car

rier w

ish-

ing

to e

nfor

ce h

is

right

of r

ecou

rse

may

brin

g hi

sact

ion

in th

e co

urts

ort

ribun

als

ofth

e St

ate

onth

ete

rri-

tory

ofw

hich

one

of

the

carr

iers

par

tici-

patin

g in

the

carr

iage

ha

s hi

s prin

cipa

lpl

ace

of b

usin

ess,

orth

ebr

anch

or a

genc

yw

hich

con

clud

ed th

e co

ntra

ct o

f car

riage

. 5.

The

n th

e ac

tion

mus

t be

brou

ght

agai

nst s

ever

alca

rrie

rs, t

he p

lain

tiff

carr

ier s

hall

been

title

d to

cho

ose

the

cour

t or t

ribun

al in

whi

ch h

ew

ill b

ring

the

proc

eedi

ngsf

rom

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 454

Part Two. Studies and reports on specific subjects 455

24

INST

RU

ME

NT

HA

GU

E-V

ISB

YH

AM

BU

RG

MU

LTIM

OD

AL

CM

RC

OT

IF-C

IM 1

999

CM

NI

WA

RSA

WM

ON

TR

EA

Lar

ticle

32

shal

l app

lyto

cla

ims b

etw

een

carr

iers

. The

per

iod

of li

mita

tion

shal

l,ho

wev

er, b

egin

toru

nei

ther

on

the

date

of

the

final

judi

cial

deci

sion

fixi

ngth

eam

ount

of c

ompe

n-sa

tion

paya

ble

unde

rth

epr

ovis

ions

of t

his

Con

vent

ion,

or,

ifth

ere

is n

o su

ch

judi

cial

dec

isio

n,

from

the

actu

al d

ate

of p

aym

ent.

Art

icle

40

Car

riers

shal

lbe

free

to a

gree

amon

gth

emse

lves

on

prov

isio

ns o

ther

than

thos

e la

id d

own

in

artic

les

37 a

nd 3

8.

amon

g th

ose

havi

ngco

mpe

tenc

e pu

rsua

nt

to §

4.

6. R

ecou

rse

proc

eed-

ings

may

not

be

join

ed w

ithpr

o-ce

edin

gs fo

r com

pen-

satio

n ta

ken

by th

e pe

rson

ent

itled

unde

rth

e co

ntra

ct o

f ca

rria

ge.

Art

icle

52-

A

gree

men

tsco

ncer

ning

reco

urse

The

carr

iers

may

conc

lude

agr

eem

ents

whi

ch d

erog

ate

from

A

rticl

es 4

9 an

d 50

.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 455

456 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVC

HA

PT

ER

5 –

OB

LIG

AT

ION

S O

FT

HE

CA

RR

IER

INST

RU

ME

NT

HA

GU

E-V

ISB

Y

Art

icle

5-O

blig

atio

ns o

fthe

car

rier

5.1

The

car

rier

shal

l, su

bjec

t to

the

pro

visi

ons

ofth

is i

nstr

umen

t an

d in

acco

rdan

ce w

ith t

he t

erm

s of

the

con

trac

t of

car

riag

e, c

arry

the

goo

ds t

o th

e pl

ace

of d

estin

atio

n an

dde

liver

them

to th

e co

nsig

nee.

5.2.

1 T

he c

arri

er s

hall

duri

ngth

e pe

riod

of

its r

espo

nsib

ility

as

defin

ed i

nar

ticle

4.1

, and

sub

ject

to

artic

le4.

2,pr

oper

ly a

ndca

refu

llylo

ad, h

andl

e, s

tow

, ca

rry,

kee

p, c

are

for

and

disc

harg

e th

e go

ods.

5.2.

2T

he p

artie

s m

ay a

gree

tha

t ce

rtai

n of

the

fun

ctio

ns r

efer

red

to i

nar

ticle

5.2

.1sh

all

bepe

rfor

med

by o

r on

beha

lf of

the

shi

pper

, the

cont

rolli

ngpa

rty

orth

e co

nsig

nee.

Such

an

agre

emen

t m

ust

be r

efer

red

to in

the

cont

ract

pa

rtic

ular

s.5.

3 N

otw

ithst

andi

ngth

e pr

ovis

ions

of

artic

les

5.1,

5.2

,and

5.4,

the

car

rier

may

de

clin

e to

load

, or

may

unlo

ad, d

estr

oy,o

r re

nder

goo

ds h

arm

less

or

take

suc

h ot

her

mea

sure

s as

are

rea

sona

ble

if go

ods

are,

or

reas

onab

ly a

ppea

r lik

ely

duri

ngits

per

iod

of r

espo

nsib

ility

tobe

com

e, a

dang

er to

per

sons

or

prop

erty

oran

ille

gal o

run

acce

ptab

le d

ange

rto

the

envi

ronm

ent.

5.4

The

carr

ier

shal

lbe

bou

nd,

befo

re,

at t

he b

egin

ning

of,

[and

dur

ing]

the

voya

ge b

yse

a, to

exe

rcis

e du

e di

ligen

ce to

:(a

) mak

e [a

nd k

eep]

the

ship

sea

wor

thy;

(b

) pro

perl

y m

an, e

quip

and

sup

ply

the

ship

;(c

)mak

e [a

nd k

eep]

the

hold

san

dal

loth

er p

arts

ofth

e sh

ipin

whi

ch th

e go

ods

are

carr

ied,

incl

udin

g co

ntai

ners

whe

resu

pplie

d by

the

carr

ier,

in o

r up

onw

hich

the

good

s ar

e ca

rrie

dfit

and

safe

for

the

ir r

ecep

tion,

car

riag

e an

dpr

eser

vatio

n.5.

5 N

otw

ithst

andi

ng th

e pr

ovis

ions

of a

rtic

les

5.1,

5.2

, and

5.4

,the

car

rier

inth

e ca

se o

f ca

rria

ge b

yse

a[o

rby

inl

and

wat

erw

ay]

may

sac

rific

e go

ods

whe

nth

esa

crifi

ce i

s re

ason

ably

mad

efo

r th

e co

mm

on s

afet

yor

for

the

purp

ose

ofpr

eser

ving

oth

er p

rope

rty

invo

lved

inth

e co

mm

on a

dven

ture

.

Art

icle

3

1.Th

e ca

rrie

r sh

all

be b

ound

befo

re a

nd a

t th

e be

ginn

ing

of t

he v

oyag

e to

exe

rcis

edu

e di

ligen

ce to

:a)

Mak

e th

e sh

ip s

eaw

orth

y.b)

Pro

perly

man

, equ

ip a

nd s

uppl

y th

e sh

ip.

c) M

ake

the

hold

s, r

efrig

erat

ing

and

cool

cha

mbe

rs, a

nd a

ll ot

her

parts

of

the

ship

inw

hich

goo

ds a

re c

arrie

d, fi

t and

saf

e fo

r the

ir re

cept

ion,

car

riage

and

pre

serv

atio

n.2.

Subj

ect t

o th

e pr

ovis

ions

of a

rticl

e 4,

the

carr

ier

shal

l pro

perly

and

car

eful

ly lo

ad,

hand

le, s

tow,

car

ry, k

eep,

car

e fo

r, an

d di

scha

rge

the

good

s ca

rrie

d.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 456

Part Two. Studies and reports on specific subjects 457C

HA

PT

ER

6 –

LIA

BIL

ITY

OF

TH

E C

AR

RIE

R

6.1.

B

ASI

S O

FLI

AB

ILIT

Y

INST

RU

ME

NT

HA

GU

E-V

ISB

YH

AM

BU

RG

MU

LTIM

OD

AL

CM

RC

OT

IF-C

IM 1

999

CM

NI

WA

RSA

WM

ON

TR

EA

LA

rtic

le 6

-Lia

bilit

y of

the

carr

ier

6.1

Bas

is o

f lia

bilit

y 6.

1.1

The

car

rier

islia

ble

for

loss

res

ultin

gfr

om lo

ss o

f or

dam

age

toth

e go

ods,

asw

ell a

sfr

om d

elay

in d

eliv

ery,

if th

e oc

curr

ence

that

caus

ed th

e lo

ss, d

amag

e or

del

ay to

ok p

lace

du

ring

the

peri

od o

fthe

ca

rrie

r’s r

espo

nsib

ility

as d

efin

ed in

art

icle

4,un

less

the

carr

ier

prov

es th

at n

eith

erits

faul

t nor

that

ofan

ype

rson

ref

erre

dto

inar

ticle

6.3

.2(a

)cau

sed

orco

ntri

bute

d to

the

loss

, dam

age

or d

elay

.6.

1.2

[Not

with

stan

ding

the

prov

isio

nsof

artic

le 6

.1.1

the

carr

ier

is n

ot r

espo

nsib

lefo

r lo

ss, d

amag

eor

del

ayar

isin

g or

resu

lting

from

(a) a

ct,n

egle

ct o

rde

faul

t oft

hem

aste

r,m

arin

er,p

ilot o

r ot

her

serv

ants

oft

he c

arri

erin

the

navi

gatio

nor

inth

e m

anag

emen

t of t

he

ship

;(b

) fir

e on

the

ship

,un

less

caus

ed b

y th

efa

ult o

r pr

ivity

of t

he

carr

ier.]

6.1.

3 N

otw

ithst

andi

ngth

e pr

ovis

ions

ofar

ticle

6.1

.1, i

f the

ca

rrie

r pr

oves

that

loss

ofor

dam

age

to th

e go

ods o

rde

lay

inde

liver

y ha

s be

en

Art

icle

4

1. N

eith

er th

e ca

rrie

r no

r the

ship

shal

l be

liabl

efo

r los

s or

dam

age

aris

ing

orre

sulti

ng fr

om u

n-se

awor

thin

ess u

nles

s ca

used

by

wan

t of

due

dilig

ence

on

the

part

ofth

e ca

rrie

rto

mak

eth

e sh

ip s

ea-

wor

thy,

and

to s

ecur

eth

at th

e sh

ip is

prop

erly

man

ned,

eq

uipp

ed a

nd

supp

lied,

and

tom

ake

the

hold

s,re

frig

erat

ing

and

cool

ch

ambe

rs a

nd a

llot

her p

arts

of th

esh

ip in

whi

ch g

oods

are

carr

ied

fit a

nd

safe

fort

heir

rece

p-tio

n, c

arria

ge a

nd

pres

erva

tion

inac

cord

ance

with

the

prov

isio

ns o

f par

a-gr

aph

1 of

arti

cle

3.

Whe

neve

r los

s or

dam

age

hasr

esul

ted

from

uns

eaw

orth

i-ne

ssth

e bu

rden

of

prov

ing

the

exer

cise

of d

ue d

ilige

nce

shal

lbe

on th

e ca

rrier

or

othe

r per

son

clai

m-

ing

exem

ptio

n un

der

this

arti

cle.

2.N

eith

er th

e ca

rrie

r no

r the

ship

shal

l be

resp

onsi

ble

for l

oss

or d

amag

e ar

isin

g or

resu

lting

from

: a)

Act

, neg

lect

,or

defa

ult o

fthe

mas

ter,

mar

iner

,pilo

t, or

the

Art

icle

5-B

asis

of

liabi

lity

1. T

he c

arrie

r is

liabl

efo

r los

s res

ult-

ing

from

loss

of o

rda

mag

e to

the

good

s,as

wel

l as f

rom

del

ayin

del

iver

y, if

the

occu

rren

ce w

hich

ca

used

the

loss

, da

mag

e or

del

ay to

ok

plac

e w

hile

the

good

s w

ere

in h

isch

arge

as d

efin

ed in

artic

le 4

, unl

ess t

he

carr

ier p

rove

stha

t he

, his

ser

vant

s or

ag

ents

took

all

mea

sure

s tha

t cou

ld

reas

onab

ly b

ere

quire

d to

avoi

d th

e oc

curr

ence

and

its

cons

eque

nces

. 4.

(a) T

heca

rrie

r is

liabl

e(i)

For

loss

or

dam

age

to th

ego

ods

orde

lay

in d

eliv

ery

caus

ed b

yfir

e, if

the

clai

man

t pro

ves t

hat

the

fire

aros

e fr

om

faul

t or n

egle

ct o

nth

e pa

rtof

the

carr

ier,

his s

erva

nts

or

agen

ts;

(ii) F

or s

uch

loss

,da

mag

e or

del

ay in

de

liver

y w

hich

ispr

oved

by

the

clai

man

t to

have

re

sulte

d fr

om th

efa

ult o

r neg

lect

oft

he

carr

ier,

hiss

erva

nts

orag

ents

, in

taki

ngal

l mea

sure

stha

tco

uld

reas

onab

ly b

e

Art

icle

15-

The

liabi

lity

of th

e m

ultim

odal

tr

ansp

ort o

pera

tor

for h

is se

rvan

ts,

agen

ts a

nd o

ther

pers

ons

Subj

ect t

o ar

ticle

21,

the

mul

timod

al

trans

port

oper

ator

shal

l be

liabl

e fo

r the

ac

ts a

nd o

mis

sion

sof

his

serv

ants

or

agen

ts, w

hen

any

such

ser

vant

ora

gent

is a

ctin

g w

ithin

the

scop

e of

his

empl

oym

ent,

or o

fan

y ot

her p

erso

n of

who

se s

ervi

cesh

em

akes

use

fort

hepe

rfor

man

ce o

fthe

mul

timod

al tr

ansp

ort

cont

ract

, whe

n su

ch

pers

on is

actin

g in

th

e pe

rfor

man

ceof

the

cont

ract

, as i

fsu

ch a

cts a

ndom

is-

sion

s w

ere

his o

wn.

Art

icle

16-

Bas

is o

flia

bilit

y 1.

The

mul

timod

altra

nspo

rt op

erat

orsh

all b

e lia

ble

for

loss

resu

lting

from

lo

ss o

f or d

amag

e to

the

good

s, as

wel

l as

from

del

ay in

deliv

ery,

if th

eoc

curr

ence

whi

ch

caus

ed th

e lo

ss,

dam

age

or d

elay

in

deliv

ery

took

pla

cew

hile

the

good

s w

ere

in h

is c

harg

e as

defin

ed in

arti

cle

14,

Art

icle

17

1.Th

e ca

rrie

r sha

ll be

liabl

e fo

r the

tota

lor

parti

al lo

ss o

f the

go

ods a

nd fo

r da

mag

e th

eret

ooc

curr

ing

betw

een

the

time

whe

n he

take

s ove

r the

goo

dsan

d th

e tim

e of

de

liver

y, a

sw

ella

sfo

r any

del

ay in

deliv

ery.

2.

The

car

rier s

hall,

how

ever

, be

relie

ved

oflia

bilit

y if

the

loss

,da

mag

e or

dela

y w

asca

used

by

the

wro

ng-

ful a

ct o

rneg

lect

of

the

clai

man

t, by

the

inst

ruct

ions

of t

he

clai

man

t giv

en

othe

rwis

e th

an a

s th

e re

sult

ofa

wro

ngfu

lac

t or n

egle

ct o

nth

e pa

rt of

the

carr

ier,

byin

here

nt v

ice

ofth

e go

ods o

r thr

ough

ci

rcum

stan

ces

whi

ch

the

carr

ierc

ould

not

avoi

d an

d th

e co

nse-

quen

ces

of w

hich

he

was

una

ble

topr

even

t. 3.

The

carr

ier s

hall

notb

e re

lieve

d of

liabi

lity

by re

ason

of

the

defe

ctiv

e co

ndi-

tion

ofth

e ve

hicl

e us

ed b

y hi

m in

ord

erto

per

form

the

carr

iage

, or b

y re

ason

of

the

wro

ngfu

l act

or

negl

ect o

f the

per

son

from

who

m h

e m

ayha

ve h

ired

the

vehi

cle

Art

icle

23-

Bas

is o

flia

bilit

y1.

The

car

rier s

hall

belia

ble

for l

oss

orda

mag

e re

sulti

ng

from

the

tota

lor

parti

al lo

ss o

f, or

dam

age

to, t

hego

ods

betw

een

the

time

ofta

king

ove

r oft

hego

ods

and

the

time

ofde

liver

y an

d fo

r the

loss

or d

amag

e re

sulti

ng fr

om th

etra

nsit

perio

d be

ing

exce

eded

, wha

teve

rth

e ra

ilway

infr

a-st

ruct

ure

used

. 2.

The

car

rier s

hall

bere

lieve

d of

this

liabi

lity

to th

eex

tent

that

the

loss

or

dam

age

orth

e ex

ceed

ing

ofth

e tra

nsit

perio

d w

asca

used

by

the

faul

tof

the

pers

on e

ntitl

ed,

byan

ord

er g

iven

by

the

pers

on e

ntitl

ed

othe

r tha

n as

a re

sult

ofth

e fa

ult o

f the

ca

rrie

r, by

an

inhe

rent

def

ect i

n th

ego

ods (

deca

y,

was

tage

etc

.) or

byci

rcum

stan

ces

whi

ch

the

carr

ierc

ould

not

avoi

d an

d th

e co

nseq

uenc

es o

fw

hich

he

was

una

ble

to p

reve

nt.

3. T

he c

arrie

r sha

ll be

relie

ved

ofth

islia

bilit

y to

the

exte

ntth

at th

e lo

ss o

rda

mag

e ar

ises

from

Art

icle

16-

Liab

ility

fo

r los

s1.

The

carr

iers

hall

be li

able

for l

oss

resu

lting

from

loss

or

dam

age

to th

ego

ods

caus

ed b

etw

een

the

time

whe

n he

took

them

over

for c

ar-

riage

and

the

time

ofth

eir d

eliv

ery,

or

resu

lting

from

del

ayin

del

iver

y, u

nles

s he

can

show

that

the

loss

was

due

to c

ir-cu

mst

ance

s whi

ch a

di

ligen

t car

rier c

ould

no

t hav

e pr

even

ted

and

the

cons

eque

nces

ofw

hich

he

coul

d no

t hav

e av

erte

d.

2. T

he c

arrie

r’sl

iabi

-lit

y fo

rlos

s res

ultin

gfr

om lo

ss o

rdam

age

to th

ego

ods c

ause

ddu

ring

the

time

befo

re th

ego

ods a

relo

aded

on

the

vess

elor

the

time

afte

r the

yha

ve b

een

disc

harg

edfr

omth

e ve

ssel

sha

llbe

gove

rned

by

the

law

of t

he S

tate

ap

plic

able

to th

eco

ntra

ct o

fcar

riage

.A

rtic

le 1

7-Se

rvan

tsan

d ag

ents

1. T

he c

arrie

r sha

llbe

resp

onsi

ble

for t

heac

ts a

nd o

mis

sion

s of

his s

erva

nts a

nd

agen

ts o

f who

se

serv

ices

he

mak

esus

e du

ring

the

per-

form

ance

of th

e co

n-tra

ct o

f car

riage

,

Art

icle

10.

3 Su

bjec

t to

the

prov

i-si

onso

f par

agra

phs 1

an

d 2

ofth

is a

rticl

e,

the

carr

iers

hall

inde

mni

fy th

eco

n-si

gnor

aga

inst

all

dam

age

suff

ered

by

him

, or b

y an

y ot

her

pers

on to

who

m th

eco

nsig

nor i

slia

ble,

by

reas

on o

fthe

irreg

ular

ity, i

ncor

-re

ctne

ss o

rinc

om-

plet

enes

s of

the

parti

cula

rs a

nd

stat

emen

ts in

serte

d by

the

carr

iero

ron

his b

ehal

fin

the

rece

ipt f

orth

e ca

rgo

or in

the

reco

rdpr

eser

ved

by th

e ot

her m

eans

refe

rred

to

in p

arag

raph

2 o

f A

rticl

e 5.

Art

icle

18

2. T

he c

arrie

r is

liabl

e fo

r dam

age

sust

aine

d in

the

even

t of

the

dest

ruct

ion

or

loss

of,

or d

amag

e to

, ca

rgo

upon

con

ditio

n on

ly th

at th

eoc

cur-

renc

e w

hich

cau

sed

the

dam

age

sosu

stai

ned

took

pla

ce

durin

g th

eca

rria

geby

air.

3. H

owev

er,t

he

carr

ier i

s not

liabl

e if

he p

rove

s tha

t the

dest

ruct

ion,

loss

of,

orda

mag

e to

, the

ca

rgo

resu

lted

sole

lyfr

om o

ne o

r mor

e of

th

e fo

llow

ing:

Art

icle

18-

Dam

age

to

carg

o 1.

The

car

rier i

s lia

ble

for d

amag

e su

stai

ned

in th

e ev

ent o

f the

de

stru

ctio

n or

loss

of,

orda

mag

e to

, car

go

upon

con

ditio

n on

lyth

at th

e ev

ent w

hich

ca

used

the

dam

age

sosu

stai

ned

took

pla

ce

durin

gth

e ca

rria

ge b

yai

r.2.

How

ever

,the

ca

rrie

r is n

otlia

ble

ifan

d to

the

exte

nt it

pr

oves

that

the

dest

ruct

ion,

or l

oss

of, o

r dam

age

to, t

he

carg

o re

sulte

d fr

omon

e or

mor

e of

the

follo

win

g:(a

) inh

eren

tdef

ect,

qual

ity o

r vic

e of

that

ca

rgo;

(b) d

efec

tive

pack

ing

of th

at c

argo

per

-fo

rmed

by

ape

rson

ot

her t

han

the

carr

ier

orits

ser

vant

s or

agen

ts;

(c) a

n ac

t of w

ar o

r an

arm

ed c

onfli

ct;

(d) a

n ac

t ofp

ublic

au

thor

ity c

arrie

dou

t in

con

nect

ion

with

th

e en

try, e

xit o

rtra

nsit

ofth

e ca

rgo.

3.Th

e ca

rria

ge b

y ai

rw

ithin

the

mea

ning

of

para

grap

h 1

of th

isar

ticle

com

pris

es th

e pe

riod

durin

g w

hich

the

carg

o is

in th

ech

arge

oft

he c

arrie

r.4.

The

per

iod

ofth

e

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 457

458 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

caus

ed b

yon

e of

the

follo

win

g ev

ents

it is

pres

umed

, in

the

abse

nce

of p

roof

to th

e co

ntra

ry, t

hat n

eith

erits

faul

tnor

that

of a

perf

orm

ing

part

y ha

sca

used

or

cont

ribu

ted

to c

ause

that

loss

, da

mag

e or

dela

y.(i)

[Act

of G

od],

war

,ho

stili

ties,

arm

ed c

on-

flict

, pir

acy,

terr

oris

m,

riot

s an

dci

vil c

omm

o-tio

ns;

(ii) q

uara

ntin

e re

stri

c-tio

ns;i

nter

fere

nce

by o

rim

pedi

men

ts c

reat

edby

gove

rnm

ents

, pub

licau

thor

ities

rul

ers

orpe

ople

[inc

ludi

ngin

terf

eren

ce b

yor

pur

-su

ant t

ole

gal p

roce

ss];

(iii)

act o

r om

issi

onof

the

ship

per,

the

cont

rolli

ng p

arty

or

the

cons

igne

e;(iv

) str

ikes

,loc

k-ou

ts,

stop

page

s or

rest

rain

tsof

labo

ur;

(v) s

avin

g or

atte

mpt

ing

tosa

ve li

fe o

r pr

oper

tyat

sea

;(v

i) w

asta

gein

bul

k or

wei

ghto

r an

y ot

her

loss

orda

mag

e ar

isin

g fr

omin

here

nt q

ualit

y, d

efec

t, or

vic

e of

the

good

s;(v

ii) in

suff

icie

ncy

orde

fect

ive

cond

ition

of

pack

ing

or m

arki

ng;

(viii

) lat

ent d

efec

ts n

ot

disc

over

able

by

due

dilig

ence

. (ix

) han

dlin

g, lo

adin

g,

stow

age

or u

nloa

ding

of

the

good

s by

oron

beha

lf of

the

ship

per,

the

cont

rolli

ng p

arty

or

the

cons

igne

e;(x

) act

s oft

he c

arri

eror

serv

ants

oft

he c

ar-

rier i

n th

e na

viga

tion

or in

the

man

age-

men

t of t

he sh

ip.

b) F

ire, u

nles

scau

sed

by th

e ac

tual

faul

t or

priv

ityof

the

carr

ier.

c)Pe

rils,

dang

ers a

nd

acci

dent

s of

the

sea

or o

ther

nav

igab

lew

ater

s.d)

Act

ofG

od.

e) A

ctof

war

.f)

Act

of p

ublic

en

emie

s. g)

Arr

est o

r res

train

tof

prin

ces,

rule

rs o

r pe

ople

, or s

eizu

re

unde

r leg

al p

roce

ss.

h) Q

uara

ntin

ere

stric

tions

.i)

Act

or o

mis

sion

of

the

ship

per o

r ow

ner

of th

ego

ods,

his

agen

t or r

epre

sen-

tativ

e.

j) St

rikes

or l

ocko

uts

or st

oppa

ge o

r re

stra

int o

f lab

our

from

wha

teve

r cau

se,

whe

ther

par

tial o

rge

nera

l.k)

Rio

ts a

nd c

ivil

com

mot

ion.

l) Sa

ving

or a

ttem

pt-

ing

to s

ave

life

orpr

oper

ty a

t sea

. m

) Was

tage

in b

ulk

or w

eigh

t or a

nyot

her l

oss o

r dam

age

aris

ing

from

inhe

rent

defe

ct, q

ualit

yor

vice

of t

he g

oods

.n)

Insu

ffici

ency

of

pack

ing.

o) In

suffi

cien

cyor

in

adeq

uacy

of m

arks

. p)

Lat

ent d

efec

tsno

t di

scov

erab

le b

y du

e di

ligen

ce.

q)A

ny o

ther

cau

se

requ

ired

to p

ut o

ut

the

fire

and

avoi

d or

m

itiga

te it

sco

nse-

quen

ces.

(b) I

n ca

se o

f fire

on

boar

d th

esh

ipaf

fect

ing

the

good

s,if

the

clai

man

t ort

he

carr

ier s

o de

sire

s, a

surv

ey in

acc

orda

nce

with

ship

men

tpr

actic

es m

ustb

ehe

ld in

to th

eca

use

and

circ

umst

ance

s of

the

fire,

and

a c

opy

of th

esu

rvey

or's

repo

rt sh

allb

e m

ade

avai

labl

e on

dem

and

to th

e ca

rrie

r and

the

clai

man

t.6.

The

carr

ier i

s not

lia

ble,

exc

ept i

nge

nera

l ave

rage

,w

here

loss

, dam

age

orde

lay

in d

eliv

ery

resu

lted

from

m

easu

rest

o sa

ve li

feor

from

reas

onab

lem

easu

res

tosa

vepr

oper

ty a

t sea

. 7.

Whe

re fa

ult o

rne

glec

t on

the

part

ofth

e ca

rrie

r, hi

sse

rvan

ts o

r age

nts

com

bine

s w

ith

anot

her c

ause

topr

oduc

e lo

ss, d

amag

e or

dela

y in

del

iver

yth

e ca

rrie

r isl

iabl

e on

ly to

the

exte

ntth

at th

e lo

ss, d

amag

e or

dela

y in

del

iver

yis

attr

ibut

able

tosu

ch

faul

t or n

egle

ct,

prov

ided

that

the

carr

ier p

rove

sthe

amou

nt o

fthe

loss

, da

mag

e or

del

ay in

de

liver

y no

tat

tribu

tabl

e th

eret

o.

unle

ss th

e m

ulti-

mod

al tr

ansp

ort

oper

ator

pro

ves t

hat

he, h

is s

erva

nts o

r ag

ents

ora

ny o

ther

pers

on re

ferr

ed to

inar

ticle

15

took

all

mea

sure

s tha

t cou

ld

reas

onab

ly b

ere

quire

d to

avoi

d th

e oc

curr

ence

and

its

cons

eque

nces

.A

rtic

le 1

7-C

oncu

rren

t cau

ses

Whe

re fa

ult o

rne

glec

t on

the

part

ofth

e m

ultim

odal

tra

nspo

rt op

erat

or,

his s

erva

nts

or

agen

ts o

rany

oth

erpe

rson

refe

rred

to in

artic

le 1

5 co

mbi

nes

with

ano

ther

cau

seto

prod

uce

loss

, da

mag

e or

del

ay in

de

liver

y, th

e m

ulti-

mod

al tr

ansp

ort

oper

ator

sha

ll be

liabl

eon

ly to

the

exte

nt th

at th

e lo

ss,

dam

age

or d

elay

in

deliv

ery

is a

ttri-

buta

ble

to s

uch

faul

t or

neg

lect

, pro

vide

d th

at th

e m

ultim

odal

trans

port

oper

ator

prov

es th

e pa

rtof

the

loss

, dam

age

orde

lay

in d

eliv

ery

not

attri

buta

ble

ther

eto.

orof

the

agen

tsor

serv

ants

oft

he la

tter.

4. S

ubje

ct to

artic

le 8

, pa

ragr

aphs

2 to

5, t

he

carr

ier s

hall

bere

lieve

d of

liab

ility

whe

nth

e lo

ss o

rda

mag

e ar

ises

from

th

e sp

ecia

l ris

ks

inhe

rent

in o

ne m

ore

of th

efo

llow

ing

circ

umst

ance

s:(a

) Use

of o

pen

unsh

eete

d ve

hicl

es,

whe

n th

eir u

seha

s be

en e

xpre

ssly

agr

eed

and

spec

ified

in th

e co

nsig

nmen

t not

e;(b

) The

lack

of,

orde

fect

ive

cond

ition

of

pack

ing

in th

e ca

seof

go

ods

whi

ch, b

y th

eir

natu

re, a

relia

ble

tow

asta

geor

to b

eda

mag

ed w

hen

not

pack

ed o

r whe

nno

t pr

oper

ly p

acke

d;

(c) H

andl

ing,

load

ing,

stow

age

or u

nloa

ding

ofth

e go

ods b

yth

ese

nder

, the

con

sign

eeor

per

son

actin

g on

be

half

ofth

e se

nder

or th

eco

nsig

nee;

(d) T

he n

atur

eof

certa

in k

inds

ofgo

ods

whi

ch p

artic

u-la

rlyex

pose

s the

m to

tota

l or p

artia

l los

s or

to d

amag

e, e

spec

ially

thro

ugh

brea

kage

,ru

st, d

ecay

,des

ic-

catio

n, le

akag

e,

norm

al w

asta

ge, o

rth

eac

tion

of m

oth

or

verm

in;

(e) I

nsuf

ficie

ncy

orin

adeq

uacy

of m

arks

or

num

bers

on

the

pack

ages

;(f

)The

car

riage

of

the

spec

ial r

isks

in

here

nt in

one

or

mor

e of

the

follo

win

gci

rcum

stan

ces:

a) c

arria

ge in

ope

n w

agon

s pur

suan

t to

the

Gen

eral

Con

ditio

ns o

f C

arria

ge o

r whe

nit

has b

een

expr

essl

yag

reed

and

ent

ered

in

the

cons

ignm

ent

note

; sub

ject

toda

mag

e su

stai

ned

byth

e go

odsb

ecau

se o

f at

mos

pher

ic

influ

ence

s, go

ods

carr

ied

in in

term

odal

trans

port

units

and

incl

osed

road

veh

icle

sca

rrie

d on

wag

ons

shal

l not

be

con-

side

red

asbe

ing

carr

ied

in o

pen

wag

ons;

iffo

r the

carr

iage

of g

oods

in

open

wag

ons,

the

cons

igno

r use

ssh

eets

, the

car

rier

shal

l ass

ume

the

sam

e lia

bilit

yas

falls

to h

imfo

r car

riage

in

open

wag

ons

with

out

shee

ting,

eve

nin

res-

pect

of g

oods

whi

ch,

acco

rdin

g to

the

Gen

eral

Con

ditio

nsof

Car

riage

, are

not

ca

rrie

d in

ope

n w

agon

s;b)

abs

ence

ori

nade

-qu

acy

of p

acka

ging

in

the

case

ofgo

ods

whi

ch b

y th

eir n

atur

ear

e lia

ble

to lo

ss o

rda

mag

e w

hen

not

pack

ed o

r whe

nno

t pa

cked

pro

perly

; c)

load

ing

ofth

e go

ods b

y th

e co

nsig

nor o

r

whe

n su

chpe

rson

s ar

e ac

ting

with

in th

esc

ope

of th

eir

empl

oym

ent,

as if

such

act

s or

om

is-

sion

s wer

ehi

s ow

n.2.

Whe

n th

e ca

rria

ge

is p

erfo

rmed

by

anac

tual

car

rier i

n ac

cord

ance

with

ar

ticle

4, t

he c

arrie

ris

als

o re

spon

sibl

efo

r the

act

s and

om

is-

sion

s of

the

actu

alca

rrie

r and

of t

hese

rvan

ts a

nd a

gent

sof

the

actu

al c

arrie

rac

ting

with

in th

esc

ope

of th

eir

empl

oym

ent.

3. If

an

actio

n is

brou

ght a

gain

st th

ese

rvan

ts a

nd a

gent

sof

the

carri

eror

the

actu

al c

arrie

r, su

ch

pers

ons,

if th

ey p

rove

that

they

act

edw

ithin

th

e sc

ope

ofth

eir

empl

oym

ent,

are

entit

led

to a

vail

them

selv

es o

fthe

defe

nces

and

lim

itsof

liab

ility

whi

ch th

eca

rrie

ror t

he a

ctua

lca

rrie

r is

entit

led

toin

voke

und

er th

isC

onve

ntio

n.

4. A

pilo

t des

igna

ted

by a

n au

thor

ity a

nd

who

can

not b

efr

eely

sele

cted

shal

l not

be

cons

ider

ed to

be

ase

rvan

t ora

gent

w

ithin

the

mea

ning

of p

arag

raph

1.

Arti

cle

18-S

peci

al

exon

erat

ions

from

liabi

lity

1. T

he c

arrie

r and

the

actu

al c

arrie

r sha

ll be

exon

erat

ed fr

omth

eir

(a) i

nher

entd

efec

t,qu

ality

or v

ice

ofth

at

carg

o;(b

) def

ectiv

e pa

ckin

gof

that

car

go p

er-

form

ed b

y a

pers

on

othe

r tha

n th

e ca

rrie

ror

his

serv

ants

or

agen

ts;

(c) a

n ac

t of w

ar o

ran

arm

ed c

onfli

ct;

(d) a

n ac

t ofp

ublic

au

thor

ity c

arrie

dou

t in

con

nexi

on w

ithth

e en

try, e

xit o

rtra

nsit

ofth

e ca

rgo.

Art

icle

21

1. In

the

carr

iage

ofpa

ssen

gers

and

ba

ggag

e, if

the

carr

ier p

rove

stha

t th

e da

mag

e w

asca

used

by

or c

ontri

-bu

ted

toby

the

negl

igen

ce o

f the

pe

rson

suff

erin

g th

e da

mag

e th

e C

ourt

may

, in

acco

rdan

cew

ith th

epr

ovis

ions

ofits

ow

n la

w,ex

oner

ate

the

carr

ier

who

lly o

r par

tly fr

om

his l

iabi

lity.

2. In

the

carr

iage

ofca

rgo,

if th

e ca

rrie

r pr

oves

that

the

dam

age

was

cau

sed

by o

r con

tribu

ted

toby

the

negl

igen

ceor

othe

r wro

ngfu

lact

or

omis

sion

oft

hepe

rson

cla

imin

gco

mpe

nsat

ion,

ort

he

pers

on fr

om w

hom

he

der

ives

his r

ight

s,th

e ca

rrie

rsha

ll be

who

lly o

r par

tlyex

oner

ated

from

his

liabi

lity

to th

ecl

aim

ant t

o th

e ex

tent

th

at s

uch

negl

igen

ce

carr

iage

by

aird

oes

note

xten

d to

any

carr

iage

by

land

, by

sea

or b

y in

land

wat

erw

ay p

erfo

rmed

outs

ide

an a

irpor

t. If,

how

ever

, suc

hca

rria

ge ta

kesp

lace

in th

e pe

rfor

man

ceof

a

cont

ract

ofc

arria

ge

by a

ir,fo

r the

pur

pose

of lo

adin

g,de

liver

yor

tran

ship

men

t, an

yda

mag

e is

pre

sum

ed,

subj

ect t

o pr

oof t

oth

eco

ntra

ry, t

o ha

ve b

een

the

resu

lt of

an e

vent

w

hich

took

pla

ce

durin

gth

e ca

rria

ge b

yai

r. If

a ca

rrie

r,w

ithou

t the

con

sent

of

the

cons

igno

r,su

bstit

utes

car

riage

byan

othe

r mod

e of

trans

port

fort

hew

hole

or p

art o

f a

carr

iage

inte

nded

by

the

agre

emen

t be

twee

n th

e pa

rties

tobe

car

riage

by

air,

such

car

riage

by

anot

her m

ode

oftra

nspo

rt is

dee

med

to b

ew

ithin

the

perio

dof

car

riage

by

air.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 458

Part Two. Studies and reports on specific subjects 459IN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

a pe

rfor

min

g pa

rty

inpu

rsua

nce

of th

e po

wer

s con

ferr

edby

artic

le 5

.3 a

nd 5

.5 w

hen

the

good

s hav

e be

enbe

com

e a

dang

er to

pers

ons,

prop

erty

orth

e en

viro

nmen

tor

have

bee

n sa

crifi

ced;

[(xi

) per

ils, d

ange

rs a

ndac

cide

nts o

f the

sea

orot

her

navi

gabl

ew

ater

s;]

6.1.

4 [I

f los

s,da

mag

e or

dela

yin

del

iver

y is

caus

edin

par

t by

anev

entf

or w

hich

the

carr

ier

isno

t lia

ble

and

inpa

rtby

an

even

t for

whi

ch th

e ca

rrie

ris

liabl

e, th

e ca

rrie

r is

liabl

e fo

r al

l the

loss

, da

mag

e, o

rde

lay

inde

liver

yex

cept

to th

e ex

tent

that

it pr

oves

that

a s

peci

fied

part

of

the

loss

was

cau

sed

byan

eve

nt fo

r w

hich

it is

not l

iabl

e.]

[If l

oss,

dam

age,

or

dela

yin

del

iver

y is

caus

edin

par

t by

anev

entf

or w

hich

the

carr

ier

isno

t lia

ble

and

inpa

rtby

an

even

t for

whi

ch th

e ca

rrie

ris

liabl

e,th

en th

e ca

rrie

ris (a

) lia

ble

for

the

loss

, da

mag

e, o

rde

lay

inde

liver

y to

the

exte

ntth

at th

e pa

rty

seek

ing

tore

cove

r fo

r th

e lo

ss,

dam

age,

or

dela

ypr

oves

that

it w

asat

trib

utab

le to

one

or

mor

e ev

ents

for

whi

chth

e ca

rrie

r is

liab

le; a

nd(b

)not

liab

le fo

rth

elo

ss, d

amag

e, o

r de

lay

aris

ing

with

out t

he

actu

al fa

ult o

r priv

ityof

the

carr

ier,

orw

ithou

t the

faul

t or

negl

ect o

f the

age

nts

or s

erva

nts o

f the

ca

rrie

r, bu

t the

bu

rden

ofp

roof

shal

l be

on th

e pe

rson

cl

aim

ing

the

bene

fitof

this

exce

ptio

n to

show

that

nei

ther

the

actu

al fa

ult o

r priv

ityof

the

carr

ier n

or th

efa

ult o

r neg

lect

oft

he

agen

ts o

r ser

vant

s of

the

carr

ierc

ontri

-bu

ted

to th

elo

ssor

dam

age.

liv

esto

ck.

5. W

here

und

er th

is

artic

le th

e ca

rrie

r is

not u

nder

any

liabi

lity

in re

spec

t so

me

ofth

e fa

ctor

sca

usin

g th

e lo

ss,

dam

age

orde

lay,

he

shal

l onl

ybe

liab

le to

the

exte

nt th

at th

ose

fact

ors f

or w

hich

heis

liabl

e un

der t

his

artic

le h

ave

cont

ri-bu

ted

to th

elo

ss,

dam

age

orde

lay.

Art

icle

18

1. T

he b

urde

n of

pr

ovin

g th

at lo

ss,

dam

age

orde

lay

was

due

to o

ne o

fthe

caus

es s

peci

fied

inar

ticle

17,

par

a-gr

aph

2, sh

all r

est

upon

the

carr

ier.

2.W

hen

the

carr

ier

esta

blis

hes t

hat i

n th

eci

rcum

stan

ces

ofth

eca

se,t

he lo

ss o

rda

mag

e co

uld

beat

tribu

ted

to o

ne o

rm

ore

of th

e sp

ecia

lris

ksre

ferr

ed to

in

artic

le 1

7, p

ara-

grap

h 4,

it s

hall

bepr

esum

ed th

at it

was

so

caus

ed. T

he c

laim

-an

t sha

ll, h

owev

er, b

een

title

d to

pro

ve th

at

the

loss

or d

amag

e w

as n

ot, i

n fa

ct,

attri

buta

ble

eith

erw

holly

or p

artly

toon

e of

thes

e ris

ks.

3. T

his p

resu

mpt

ion

shal

l not

app

ly in

the

circ

umst

ance

s se

t out

in

arti

cle

17, p

ara-

grap

h 4(

a), i

f the

re

hasb

een

an a

bnor

mal

shor

tage

, or a

loss

of

unlo

adin

g by

the

cons

igne

e;d)

the

natu

re o

fce

rtain

goo

dsw

hich

pa

rticu

larly

exp

oses

them

to to

talo

rpa

rtial

loss

or

dam

age,

esp

ecia

llyth

roug

h br

eaka

ge,

rust

, int

erio

rand

spon

tane

ous d

ecay

,de

sicc

atio

n or

was

tage

;e)

irre

gula

r,in

corr

ect

or in

com

plet

ede

s-cr

iptio

n or

num

ber-

ing

ofpa

ckag

es;

f)ca

rria

ge o

f liv

ean

imal

s;g)

car

riage

whi

ch,

purs

uant

toap

pli-

cabl

e pr

ovis

ions

orag

reem

ents

mad

ebe

twee

n th

e co

n-si

gnor

and

the

carr

ier

and

ente

red

on th

eco

nsig

nmen

t not

e,m

ust b

e ac

com

pani

edby

an

atte

ndan

t, if

the

loss

or d

amag

e re

sults

from

a ri

skw

hich

the

atte

ndan

tw

as in

tend

ed to

aver

t.A

rtic

le 2

4-Li

abili

ty

inca

se o

f car

riag

e of

railw

ay v

ehic

les a

sgo

ods

1. In

cas

eof

car

riage

of

railw

ay v

ehic

les

runn

ing

on th

eir o

wn

whe

els

and

con-

sign

ed a

s goo

ds,t

he

carr

ier s

hall

be li

able

fort

he lo

ss o

rda

mag

e re

sulti

ng

from

the

loss

of,

orda

mag

e to

, the

vehi

cle

or to

its

rem

ovab

le p

arts

liabi

lity

whe

nth

elo

ss, d

amag

eor

del

ayar

e th

e re

sult

of o

ne

of th

e ci

rcum

stan

ces

or ri

sks l

iste

d be

low

:(a

) Act

s or o

mis

sion

sof

the

ship

per,

the

cons

igne

e or

the

pers

on e

ntitl

ed to

disp

ose

ofth

e go

ods;

(b

) Han

dlin

g, lo

ad-

ing,

stow

age

or d

is-

char

ge o

fthe

goo

dsby

the

ship

per,

the

cons

igne

e or

third

pa

rties

act

ing

onbe

half

ofth

e sh

ippe

ror

the

cons

igne

e;(c

) Car

riage

oft

hego

ods o

nde

ck o

rin

open

ves

sels

, whe

resu

ch c

arria

ge h

as

been

agr

eed

with

the

ship

pero

r is i

n ac

cord

ance

with

the

prac

tice

of th

e pa

rti-

cula

r tra

de,o

r if i

t is

requ

ired

by th

ere

gula

tions

info

rce;

(d) T

he n

atur

eof

the

good

s w

hich

exp

oses

them

to to

talo

r par

-tia

l los

s ord

amag

e,

espe

cial

ly th

roug

h br

eaka

ge, r

ust,

deca

y,de

sicc

atio

n, le

akag

e,no

rmal

was

tage

(in

volu

me

orw

eigh

t),or

the

actio

n of

verm

in o

r rod

ents

;(e

)The

lack

of o

rde

fect

ive

cond

ition

of p

acka

ging

in th

eca

se o

f goo

ds w

hich

, by

thei

r nat

ure,

are

liabl

eto

loss

or

dam

age

whe

n no

t pa

cked

orw

hen

the

pack

agin

g is

def

ec-

tive;

orw

rong

ful a

ct o

r om

issi

on c

ause

d or

cont

ribut

ed to

the

dam

age.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 459

460 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

in d

eliv

ery

to th

e ex

tent

the

carr

ier

prov

es th

atit

is a

ttri

buta

ble

toon

eor

mor

eev

ents

for

whi

ch th

e ca

rrie

ris

not

liabl

e.

If th

ere

is n

oev

iden

ceon

whi

chth

e ov

eral

l ap

port

ionm

ent c

anbe

esta

blis

hed,

then

the

carr

ier

is li

able

for

one-

half

ofth

e lo

ss, d

amag

e,

or d

elay

in d

eliv

ery.

]

any

pack

age.

4.

Ifth

e ca

rria

ge is

perf

orm

ed in

vehi

cles

spec

ially

equ

ippe

d to

prot

ect t

he g

oods

from

the

effe

cts o

f he

at, c

old,

var

iatio

nsin

tem

pera

ture

or th

e hu

mid

ity o

fthe

air,

the

carr

iers

hall

not

been

title

d to

cla

imth

e be

nefit

of

artic

le 1

7, p

ara-

grap

h 4

(d),

unle

sshe

prov

esth

at a

ll st

eps

incu

mbe

nt o

n hi

m in

th

e ci

rcum

stan

ces

with

resp

ect t

o th

ech

oice

, mai

nten

ance

and

use

of su

ch

equi

pmen

t wer

e ta

ken

and

that

he

com

plie

d w

ith a

ny s

peci

alin

stru

ctio

ns is

sued

tohi

m.

5.Th

e ca

rrie

r sha

llno

t be

entit

led

tocl

aim

the

bene

fit o

f ar

ticle

17,

par

a-gr

aph

4 (f

), un

less

he

prov

esth

at a

ll st

eps

norm

ally

incu

mbe

nt

on h

im in

the

circ

um-

stan

ces

wer

eta

ken

and

that

he

com

plie

d w

ith a

ny s

peci

alin

stru

ctio

ns is

sued

tohi

m.

aris

ing

betw

een

the

time

of ta

king

ove

r fo

r car

riage

and

the

time

of d

eliv

ery

and

for l

oss o

r dam

age

resu

lting

from

ex

ceed

ing

the

trans

it pe

riod,

unl

essh

epr

oves

that

the

loss

or d

amag

e w

asno

tca

used

by

hisf

ault.

2.

The

car

rier s

hall

not b

e lia

ble

for l

oss

or d

amag

e re

sulti

ngfr

om th

e lo

ss o

fac

cess

orie

s w

hich

are

no

t men

tione

d on

both

side

s of

the

vehi

cle

or in

the

inve

ntor

y w

hich

ac

com

pani

es it

. A

rtic

le 2

5-B

urde

n of

proo

f1.

The

bur

den

of

prov

ing

that

the

loss

, da

mag

e or

exc

eedi

ngof

the

trans

it pe

riod

was

due

toon

e of

the

caus

es s

peci

fied

inar

ticle

23

§ 2

shal

l lie

on

the

carr

ier.

2. W

hen

the

carr

ier

esta

blis

hes t

hat,

havi

ngre

gard

to th

e ci

rcum

stan

ces

of a

pa

rticu

lar c

ase,

the

loss

or d

amag

e co

uld

have

aris

en fr

om o

ne

or m

ore

ofth

e sp

ecia

lris

ksre

ferr

ed to

in

artic

le 2

3 §

3, it

shal

l be

pre

sum

ed th

at it

did

so a

rise.

The

pe

rson

ent

itled

sha

ll,ho

wev

er, h

ave

the

right

topr

ove

that

the

loss

or d

amag

e w

asno

t attr

ibut

able

eith

erw

holly

or in

par

t to

one

of th

ose

risks

.3.

The

pre

sum

ptio

n

(f) I

nsuf

ficie

ncy

orin

adeq

uacy

of m

arks

iden

tifyi

ng th

ego

ods;

(g

) Res

cue

or sa

lvag

eop

erat

ions

or

atte

mpt

ed re

scue

or

salv

age

oper

atio

ns o

nin

land

wat

erw

ays;

(h) C

arria

ge o

f liv

ean

imal

s, un

less

the

carr

ier h

as n

ot ta

ken

the

mea

sure

s or

obse

rved

the

inst

ruc-

tions

agr

eed

upon

in

the

cont

ract

of

carr

iage

.2.

Whe

n, in

the

circ

umst

ance

s of

the

case

,the

loss

or

dam

age

coul

d be

attri

bute

dto

one

or

mor

eof

the

circ

um-

stan

ces o

r ris

ks li

sted

in p

arag

raph

1 o

f the

pres

ent a

rticl

e, it

ispr

esum

ed to

hav

ebe

en c

ause

d by

suc

h a

circ

umst

ance

orris

k. T

his p

resu

mp-

tion

does

not

app

ly if

the

inju

red

party

prov

es th

at th

elo

sssu

ffere

d do

es n

ot

resu

lt, o

r doe

s not

re

sult

excl

usiv

ely,

from

one

oft

heci

rcum

stan

ces

orris

ks li

sted

inpa

ragr

aph

1 of

this

artic

le. Art

icle

22-

App

licat

ion

of th

e de

fenc

es a

nd li

mits

of li

abili

ty

The

exon

erat

ions

and

lim

its o

f lia

bilit

ypr

ovid

ed fo

r in

this

Con

vent

ion

or in

the

cont

ract

ofc

arria

geap

ply

in a

ny a

ctio

n in

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 460

Part Two. Studies and reports on specific subjects 461IN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

acco

rdin

g to

§ 2

shal

lno

t app

lyin

the

case

prov

ided

fori

nar

ticle

23

§ 3,

lette

r a)

if an

abn

orm

ally

larg

e qu

antit

yha

sbe

en lo

st o

rif a

pa

ckag

e ha

s be

en

lost

.

resp

ect o

f los

s or

dam

age

toor

del

ay in

de

liver

y of

the

good

sco

vere

d by

the

cont

ract

ofc

arria

ge,

whe

ther

the

actio

n is

foun

ded

in c

ontra

ct,

in to

rt or

on

som

eot

her l

egal

gro

unds

.

6.2.

CA

LCU

LATI

ON

OF

CO

MPE

NSA

TIO

N

INST

RU

ME

NT

HA

GU

E-V

ISB

YH

AM

BU

RG

MU

LTIM

OD

AL

CM

RC

OT

IF-C

IM 1

999

CM

NI

WA

RSA

WM

ON

TR

EA

L6.

2 C

alcu

latio

n of

com

pens

atio

n6.

2.1

If th

e ca

rrie

r is

lia

ble

for

loss

of o

rda

mag

e to

the

good

s,

the

com

pens

atio

npa

yabl

e sh

all b

e ca

l-cu

late

d by

ref

eren

ce to

the

valu

e of

suc

hgo

ods

at th

e pl

ace

and

tim

e of

del

iver

y ac

cord

ing

to th

e co

ntra

ct o

f ca

rria

ge.

6.2.

2T

he v

alue

of t

he

good

s sh

all b

e fi

xed

acco

rdin

g to

the

com

mod

ity

exch

ange

pric

e or

, if t

here

is n

osu

ch p

rice

, acc

ordi

ng

to th

eir

mar

ket p

rice

or

, if t

here

is n

oco

mm

odit

y ex

chan

gepr

ice

or m

arke

t pri

ce,

by r

efer

ence

to th

eno

rmal

val

ue o

f th

e go

ods

of th

e sa

me

kind

and

qual

ity

atth

e pl

ace

of d

eliv

ery.

6.

2.3

In c

ase

of lo

ss o

for

dam

age

to th

e go

ods

and

save

as

pro-

vide

d fo

r in

art

icle

6.4

, th

e ca

rrie

r sh

all n

otbe

liab

le fo

r pa

ymen

t of

any

com

pens

atio

nbe

yond

wha

t is

prov

ided

for

in

Art

icle

4.5

b)

The

tota

l am

ount

re

cove

rabl

e sh

allb

eca

lcul

ated

by

refe

renc

e to

the

valu

e of

suc

h go

ods

at th

e pl

ace

and

time

at w

hich

the

good

s ar

e di

s-ch

arge

d fr

om th

esh

ip in

acc

orda

nce

with

the

cont

ract

or

shou

ld h

ave

been

so

disc

harg

ed.

The

valu

e of

the

good

s sh

all b

e fi

xed

acco

rdin

g to

the

com

mod

ityex

chan

ge p

rice

, or,

if th

ere

be n

osu

ch

pric

e, a

ccor

ding

toth

e cu

rren

tmar

ket

pric

e, o

r, if

ther

e be

no c

omm

odity

exch

ange

pri

ceor

curr

ent m

arke

tpr

ice,

by

refe

renc

eto

the

norm

al v

alue

ofgo

ods

of th

esa

me

kind

and

qu

ality

.

Art

icle

23

1. W

hen,

und

er th

e pr

ovis

ions

of t

his

Con

vent

ion,

a

carr

ier i

s lia

ble

for

com

pens

atio

n in

re

spec

t of t

otal

or

part

ial l

oss

ofgo

ods,

su

ch c

ompe

nsat

ion

shal

l be

calc

ulat

edby

refe

renc

e to

the

valu

e of

the

good

sat

th

e pl

ace

and

time

atw

hich

they

wer

eac

cept

ed f

orca

rria

ge.

2.Th

e va

lue

ofth

e go

ods

shal

l be

fixe

d ac

cord

ing

to th

eco

mm

odity

ex-

chan

ge p

rice

or,

ifth

ere

is n

o su

chpr

ice,

acc

ordi

ng to

the

curr

entm

arke

tpr

ice

or, i

f the

re is

no c

omm

odity

exch

ange

pri

ceor

curr

ent m

arke

tpri

ce,

by re

fere

nce

tono

rmal

val

ue o

fgo

ods

of th

e sa

me

kind

and

qua

lity.

Art

icle

19-

Cal

cula

tion

ofco

mpe

nsat

ion

1. W

here

the

carr

ier

is li

able

in re

spec

t of

tota

l los

sof

good

s, th

e co

mpe

n-sa

tion

paya

ble

byhi

m s

hall

be e

qual

to th

eva

lue

of th

ego

ods

at th

e pl

ace

and

on th

e da

yof

deliv

ery

acco

rdin

gto

the

cont

ract

of

carr

iage

. Del

iver

yto

a p

erso

not

her

than

the

pers

onen

title

d is

dee

med

to b

e a

loss

.2.

Inth

e ev

ento

fpa

rtia

l los

s or

dam

age

togo

ods,

th

e ca

rrie

rsha

ll be

liabl

eon

ly to

the

exte

nt o

f the

loss

in

valu

e.3.

The

valu

e of

the

good

s sh

all b

efi

xed

acco

rdin

g to

the

com

mod

ityex

chan

ge p

rice

or,

if th

ere

is n

o su

ch

pric

e, a

ccor

ding

toth

eir m

arke

tpri

ce

or, i

f the

re is

no

com

mod

ity e

x-ch

ange

pri

ce o

r

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 461

462 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

arti

cles

6.2

.1 a

nd6.

2.2.

m

arke

t pri

ce, b

yre

fere

nce

to th

eno

rmal

val

ue o

fgo

ods

of th

e sa

me

kind

and

qua

lity

at

the

plac

e of

deliv

ery.

4.

Inre

spec

t of

good

s w

hich

by

reas

on o

f the

ir

natu

re a

reex

pose

d to

nor

mal

was

tage

duri

ng c

arri

age,

the

carr

ier s

hall

only

be

held

liab

le,w

hat-

ever

the

leng

th o

fth

e ca

rria

ge, f

orth

at p

art o

f the

was

tage

whi

chex

ceed

s no

rmal

was

tage

(in

volu

me

orw

eigh

t) a

s de

ter-

min

ed b

y th

epa

rtie

s to

the

con-

trac

t of c

arri

age

or,

if n

ot, b

y th

e re

gu-

latio

ns o

rest

ab-

lishe

d pr

actic

e at

the

plac

e of

dest

inat

ion.

5.

The

prov

isio

nsof

this

art

icle

sha

llno

t aff

ect t

heca

rrie

r’s

righ

tco

ncer

ning

the

frei

ght a

s pr

ovid

edby

the

cont

ract

of

carr

iage

or, i

n th

eab

senc

e of

spec

ial

agre

emen

ts in

this

rega

rd, b

y th

eap

plic

able

nat

iona

lre

gula

tions

or

prac

tices

.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 462

Part Two. Studies and reports on specific subjects 4636.

3. L

IAB

ILIT

Y O

FP

ER

FO

RM

ING

PAR

TIE

SIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

6.3

Liab

ility

ofpe

rfor

min

g pa

rtie

s6.

3.1(

a) A

perf

orm

ing

part

yis

sub

ject

to th

ere

spon

sibi

litie

s and

liabi

litie

s im

pose

don

the

carr

ier

unde

r th

isin

stru

men

t, an

den

title

d to

the

carr

ier’

sri

ghts

and

imm

uniti

espr

ovid

ed b

y th

isin

stru

men

t (i)

duri

ng

the

peri

odin

whi

chit

has c

usto

dy o

f the

go

ods;

and

(ii)

at a

ny

othe

r tim

e to

the

exte

ntth

atit

is p

artic

ipat

ing

in th

e pe

rfor

man

ceof

any

ofth

e ac

tiviti

esco

ntem

plat

ed b

y th

eco

ntra

ct o

fcar

riag

e.

(b) I

f the

car

rier

agre

esto

ass

ume

resp

onsi

-bi

litie

s oth

erth

an th

ose

impo

sed

on th

eca

rrie

run

der

this

inst

rum

ent,

or a

gree

stha

t its

liabi

lity

for

the

dela

y in

deliv

ery

of, l

oss o

f, or

dam

age

to o

rin

con

nec-

tion

with

the

good

s is

high

er th

anth

e lim

itsim

pose

d un

der

artic

les

6.4.

2, 6

.6.4

, and

6.7

, ape

rfor

min

g pa

rty

is n

ot

boun

d by

this

agre

e-m

ent u

nles

s th

epe

rfor

min

g pa

rty

expr

essl

y ag

rees

toac

cept

suc

hre

spon

si-

bilit

ies o

rsu

ch li

mits

. 6.

3.2(

a) S

ubje

ct to

artic

le 6

.3.3

, the

car

rier

is r

espo

nsib

le fo

rth

e ac

ts a

ndom

issi

ons o

f(i)

any

perf

orm

ing

part

y, a

nd

(ii) a

ny o

ther

pers

on,

incl

udin

g a

perf

orm

ing

Art

icle

10-

Liab

ility

of

the

carr

ier a

ndac

tual

car

rier

1. W

here

the

per-

form

ance

of t

heca

rria

ge o

r par

tth

ereo

f has

bee

nen

trust

ed to

an

actu

alca

rrie

r, w

heth

er o

rno

t in

purs

uanc

e of

a

liber

tyun

der t

he c

on-

tract

of c

arria

ge b

yse

a to

do

so, t

heca

rrie

r nev

erth

eles

s re

mai

ns re

spon

sibl

efo

r the

entir

e ca

rria

geac

cord

ing

to th

epr

ovis

ions

of t

his

Con

vent

ion.

The

ca

rrie

r is

resp

onsi

ble,

in re

latio

n to

the

carr

iage

per

form

edby

the

actu

al c

arrie

r,fo

rthe

act

s an

d om

issi

ons o

fthe

ac

tual

car

rier a

nd o

fhi

s se

rvan

ts a

ndag

ents

act

ing

with

inth

e sc

ope

ofth

eir

empl

oym

ent.

2.A

ll th

e pr

ovis

ions

of th

is C

onve

ntio

n go

vern

ing

the

resp

on-

sibi

lity

ofth

e ca

rrie

ral

so a

pply

to th

ere

spon

sibi

lity

ofth

eac

tual

car

rier f

orth

eca

rria

ge p

erfo

rmed

by h

im. T

he p

rovi

-si

onso

f par

agra

phs 2

an

d 3

ofA

rticl

e 7

and

of p

arag

raph

2 o

f A

rticl

e 8

appl

y if

anac

tion

is b

roug

ht

agai

nsta

ser

vant

or

agen

t oft

he a

ctua

lca

rrie

r.3.

Any

spec

iala

gree

-m

ent u

nder

whi

ch th

e

Art

icle

20-

Non

-co

ntra

ctua

l lia

bilit

y 2.

If a

n ac

tion

inre

spec

t of l

oss

resu

lting

from

loss

ofor

dam

age

to th

e go

ods o

r fro

m d

elay

in d

eliv

ery

isbr

ough

t aga

inst

the

serv

ant o

rage

nt o

fth

e m

ultim

odal

tra

nspo

rt op

erat

or, i

fsu

ch s

erva

nt o

rag

ent p

rove

s tha

t he

acte

d w

ithin

the

scop

e of

his

em

ploy

-m

ent,

orag

ains

t any

othe

r per

son

of

who

se s

ervi

cesh

em

akes

use

fort

hepe

rfor

man

ce o

fthe

mul

timod

al tr

ans-

port

cont

ract

, ifs

uch

othe

r per

son

prov

esth

at h

eac

ted

with

inth

e pe

rfor

man

ceof

the

cont

ract

, the

se

rvan

t ora

gent

of

such

oth

erpe

rson

shal

l be

entit

led

toav

ail h

imse

lfof

the

defe

nces

and

lim

itsof

liab

ility

whi

chth

em

ultim

odal

tran

s-po

rt op

erat

oris

en

title

d to

invo

ke

unde

r thi

sC

onve

ntio

n.

3. E

xcep

t asp

ro-

vide

d in

arti

cle

21,

the

aggr

egat

e of

the

amou

nts r

ecov

erab

le

from

the

mul

timod

altra

nspo

rt op

erat

oran

d fr

om a

ser

vant

or

age

nt o

r any

oth

er

pers

on o

fwho

se

serv

ices

he

mak

esus

e fo

r the

per

form

-

Art

icle

27-

Subs

titut

e ca

rrie

r1.

Whe

re th

e ca

rrie

rha

s en

trust

ed th

epe

rfor

man

ce o

fthe

carr

iage

, in

who

le o

rin

par

t, to

a su

bstit

ute

carr

ier,

whe

ther

orn

ot

in p

ursu

ance

of a

rig

ht u

nder

the

cont

ract

of c

arria

ge to

do so

, the

car

riers

hall

neve

rthel

ess r

emai

nlia

ble

in re

spec

t oft

he

entir

e ca

rria

ge.

2.A

ll th

e pr

ovis

ions

of th

ese

Uni

form

Rul

es g

over

ning

the

liabi

lity

ofth

e ca

rrie

rsh

all a

lso

appl

y to

the

liabi

lity

ofth

e su

b-st

itute

car

rierf

or th

eca

rria

ge p

erfo

rmed

by

him

.Arti

cles

36

and

41 sh

all a

pply

ifan

ac

tion

is b

roug

ht

agai

nst t

he se

rvan

tsan

d an

y ot

her p

erso

nsw

hose

ser

vice

sth

e su

bstit

ute

carr

ier

mak

es u

se o

f for

the

perf

orm

ance

oft

heca

rria

ge.

3. A

nysp

ecia

lagr

ee-

men

t und

er w

hich

the

carr

ier a

ssum

es o

bli-

gatio

ns n

ot im

pose

d by

thes

e U

nifo

rmR

ules

or w

aive

srig

hts

conf

erre

d by

thes

e U

nifo

rm R

ules

shal

l be

of n

o ef

fect

inre

spec

t oft

he s

ub-

stitu

te c

arrie

rwho

has

not a

ccep

ted

it ex

pres

sly

and

in

writ

ing.

Whe

ther

or

not t

he su

bstit

ute

carr

ier h

asac

cept

ed

Art

icle

4-A

ctua

lca

rrie

r1.

A c

ontra

ct c

om-

plyi

ngw

ith th

e de

fi-ni

tion

set o

utin

ar

ticle

1, p

ara-

grap

h 1,

con

clud

ed

betw

een

a ca

rrie

ran

d an

act

ual c

arrie

rco

nstit

utes

a c

ontra

ctof

car

riage

with

in

the

mea

ning

oft

his

Con

vent

ion.

For

the

purp

ose

of su

chco

ntra

ct, a

llth

epr

ovis

ions

of t

his

Con

vent

ion

con-

cern

ing

the

ship

per

shal

l app

lyto

the

carr

ier a

nd th

ose

conc

erni

ng th

eca

rrie

r to

the

actu

alca

rrie

r.2.

Whe

re th

e ca

rrie

rha

s en

trust

ed th

epe

rfor

man

ce o

fthe

carr

iage

or p

art

ther

eof t

oan

act

ual

carr

ier,

whe

ther

or

not i

n pu

rsua

nce

of a

lib

erty

und

erth

e co

ntra

ct o

f car

riage

to

do

so, t

he c

arrie

r ne

verth

eles

s rem

ains

resp

onsi

ble

for t

he

entir

e ca

rria

ge

acco

rdin

g to

the

prov

isio

ns o

f thi

sC

onve

ntio

n. A

ll th

e pr

ovis

ions

of t

his

Con

vent

ion

gove

rn-

ing

the

resp

onsi

bilit

yof

the

carr

ier a

lso

appl

y to

the

resp

on-

sibi

lity

ofth

e ac

tual

carr

ier f

orth

eca

rria

ge p

erfo

rmed

by h

im.

3. T

he c

arrie

r sha

ll

Art

icle

30

1.In

the

case

ofca

rria

ge to

be

per-

form

ed b

y va

rious

succ

essi

ve c

arrie

rsan

d fa

lling

with

in th

ede

finiti

on s

et o

ut in

the

third

par

agra

ph

of A

rticl

e 1,

eac

h ca

rrie

r who

acc

epts

pass

enge

rs, l

ugga

ge

or g

oods

is su

bjec

ted

to th

e ru

less

etou

t in

this

Con

vent

ion,

and

is

dee

med

to b

eon

eof

the

cont

ract

ing

parti

es to

the

con-

tract

of c

arria

ge in

so

far a

s the

con

tract

deal

s w

ith th

at p

art

of th

eca

rria

gew

hich

is p

erfo

rmed

und

erhi

s sup

ervi

sion

. 2.

In th

e ca

seof

carr

iage

of t

his

natu

re, t

he p

asse

nger

or

his

repr

esen

tativ

e ca

n ta

ke a

ctio

non

lyag

ains

t the

car

rier

who

per

form

edth

eca

rria

ge d

urin

gw

hich

the

acci

dent

orth

e de

lay

occu

rred

, sa

ve in

the

case

whe

re, b

yex

pres

s ag

reem

ent,

the

first

ca

rrie

r has

ass

umed

liabi

lity

fort

he

who

le jo

urne

y.3.

As

rega

rds

lugg

age

or g

oods

,th

e pa

ssen

gero

rco

nsig

nor w

illha

ve a

right

of a

ctio

n ag

ains

t the

firs

t ca

rrie

r, an

d th

e pa

ssen

ger o

r con

-si

gnee

who

isen

title

d to

del

iver

y

Art

icle

39-

Con

trac

ting

Car

rier

-A

ctua

l Car

rier

Th

e pr

ovis

ions

ofth

is C

hapt

er a

pply

whe

n a

pers

on(h

erei

nafte

r ref

erre

dto

as “

the

cont

ract

ing

carr

ier”

) as a

prin

-ci

pal m

akes

a c

on-

tract

of c

arria

ge

gove

rned

by

this

Con

vent

ion

with

a pa

ssen

ger o

r con

-si

gnor

orw

ith a

pe

rson

act

ing

on

beha

lfof

the

pass

en-

ger o

r con

sign

or, a

nd

anot

her p

erso

n(h

erei

nafte

r ref

erre

dto

as “

the

actu

alca

rrie

r”) p

erfo

rms,

by v

irtue

of a

utho

rity

from

the

cont

ract

ing

carr

ier,

the

who

le o

rpa

rt of

the

carr

iage

,bu

t is n

ot w

ithre

spec

t to

such

par

t a

succ

essi

ve c

arrie

rw

ithin

the

mea

ning

of th

is C

onve

ntio

n.

Such

aut

horit

y sh

all

be p

resu

med

inth

eab

senc

e of

pro

of to

the

cont

rary

.A

rtic

le 4

0-R

espe

ctiv

e Li

abili

ty o

fC

ontr

actin

g an

d A

ctua

l Car

rier

sIf

an

actu

al c

arrie

rpe

rfor

ms t

he w

hole

or

par

t of c

arria

ge

whi

ch, a

ccor

ding

toth

e co

ntra

ctre

ferr

edto

in A

rticl

e 39

, is

gove

rned

by

this

Con

vent

ion,

bot

h th

e co

ntra

ctin

g ca

rrie

ran

d th

e ac

tual

car

rier

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 463

464 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

part

y’s

sub-

cont

ract

ors

and

agen

ts, w

ho

perf

orm

s or

unde

rtak

esto

per

form

any

of t

he

carr

ier’

s res

pons

i-bi

litie

s un

der

the

cont

ract

ofc

arri

age,

toth

eex

tent

that

the

pers

on a

cts,

eith

er

dire

ctly

or

indi

rect

ly, a

tth

e ca

rrie

r’s r

eque

st o

run

der

the

carr

ier’

ssu

perv

isio

n or

con

trol

, as

ifsu

ch a

cts o

rom

issi

ons w

ere

its o

wn.

A c

arri

er is

res

pons

ible

un

der

this

pro

visi

onon

ly w

hen

the

perf

orm

ing

part

y’so

rot

her

pers

on’s

act

or

omis

sion

is w

ithin

the

scop

e of

its c

ontr

act,

empl

oym

ent,

orag

ency

.(b

) Sub

ject

to

artic

le 6

.3.3

, a p

erfo

rm-

ing

part

y is

res

pons

ible

for

the

acts

and

om

is-

sion

s of a

nype

rson

tow

hom

it h

as d

eleg

ated

the

perf

orm

ance

ofa

nyof

the

carr

ier’

s res

pon-

sibi

litie

s un

der

the

cont

ract

ofc

arri

age,

incl

udin

g its

sub-

cont

ract

ors,

em

ploy

ees,

and

agen

ts, a

s ifs

uch

acts

or

omis

sion

s wer

eits

ow

n.A

perf

orm

ing

part

y is

res

pons

ible

unde

r th

is p

rovi

sion

only

whe

nth

e ac

tor

omis

sion

of th

e pe

rson

conc

erne

dis

with

in th

e sc

ope

ofits

con

trac

t, em

ploy

men

t, or

agen

cy.

6.3.

3If

an

actio

n is

brou

ght a

gain

st a

ny

pers

on, o

ther

than

the

carr

ier,

men

tione

d in

artic

le 6

.3.2

, tha

tpe

rson

is e

ntitl

ed to

the

carr

ier a

ssum

esob

ligat

ions

not

im

pose

d by

this

Con

vent

ion

or w

aive

s rig

hts c

onfe

rred

byth

is C

onve

ntio

n af

fect

s the

act

ual

carr

ier o

nly

if ag

reed

toby

him

exp

ress

lyan

d in

writ

ing.

W

heth

eror

not

the

actu

al c

arrie

r has

so

agre

ed, t

heca

rrie

rne

verth

eles

s rem

ains

boun

d by

the

oblig

a-tio

ns o

rwai

vers

resu

lting

from

such

spec

ial a

gree

men

t.4.

Whe

re a

nd to

the

exte

nt th

at b

oth

the

carr

ier a

nd th

e ac

tual

ca

rrie

r are

liab

le,

thei

rlia

bilit

y is

join

tan

d se

vera

l. 5.

The

aggr

egat

e of

the

amou

ntsr

ecov

er-

able

from

the

carr

ier,

the

actu

alca

rrie

rand

thei

r ser

vant

sand

ag

ents

sha

ll no

tex

ceed

the

limits

of

liabi

lity

prov

ided

for

in th

isC

onve

ntio

n.6.

Not

hing

in th

isA

rticl

e sh

all p

reju

-di

ce a

ny ri

ght o

fre

cour

se a

s bet

wee

nth

eca

rrie

r and

the

actu

al c

arrie

r.

ance

oft

he m

ulti-

mod

al tr

ansp

ort

cont

ract

shal

lnot

exce

edth

e lim

its o

flia

bilit

y pr

ovid

ed fo

rin

this

Con

vent

ion.

it, th

eca

rrie

r sha

llne

verth

eles

s rem

ain

boun

d by

the

oblig

a-tio

ns o

rwai

vers

resu

lting

from

such

spec

ial a

gree

men

t.4.

Whe

re a

nd to

the

exte

nt th

at b

oth

the

carr

ier a

nd th

e su

b-st

itute

car

riera

re

liabl

e, th

eirl

iabi

lity

shal

l be

join

t and

se

vera

l.5.

The

agg

rega

te

amou

nt o

f com

pens

a-tio

n pa

yabl

e by

the

carr

ier,

the

subs

titut

eca

rrie

r and

thei

r se

rvan

ts a

nd o

ther

pers

ons w

hose

se

rvic

es th

eym

ake

use

of fo

rthe

per-

form

ance

of t

heca

rria

ge sh

alln

ot

exce

ed th

e lim

itspr

ovid

ed fo

r in

thes

e U

nifo

rm R

ules

.6.

Thi

s arti

cle

shal

lno

t pre

judi

ce ri

ghts

of

reco

urse

whi

ch m

ayex

ist b

etw

een

the

carr

ier a

nd th

esu

bstit

ute

carr

ier.

in a

llca

ses i

nfor

mth

e sh

ippe

rwhe

nhe

entru

sts t

he p

erfo

rm-

ance

oft

he c

arria

ge

orpa

rt th

ereo

f to

an

actu

al c

arrie

r.4.

Any

agr

eem

ent

with

the

ship

per o

rth

e co

nsig

nee

ex-

tend

ing

the

carr

ier's

re

spon

sibi

lity

acco

rdin

g to

the

prov

isio

ns o

f thi

sC

onve

ntio

n af

fect

s th

e ac

tual

carr

ier

only

to th

e ex

tent

that

he

has a

gree

d to

it ex

pres

sly

and

in

writ

ing.

The

act

ual

carr

ier m

ay a

vail

him

self

of a

llth

eob

ject

ions

invo

cabl

eby

the

carr

ier u

nder

the

cont

ract

of

carr

iage

. 5.

Ifan

d to

the

exte

nt th

at b

oth

the

carr

ier a

nd th

e ac

tual

ca

rrie

r are

liab

le,

thei

rlia

bilit

y is

join

tan

d se

vera

l. N

othi

ngin

this

arti

cle

shal

lpr

ejud

ice

any

right

of re

cour

seas

betw

een

the

carr

ier

and

the

actu

alca

rrie

r.

will

hav

e a

right

of

actio

n ag

ains

t the

last

car

rier,

and

furth

er, e

ach

may

ta

ke a

ctio

n ag

ains

t th

e ca

rrie

rwho

perf

orm

ed th

e ca

rria

ge d

urin

gw

hich

the

dest

ruc-

tion,

loss

, dam

age

orde

lay

took

pla

ce.

Thes

e ca

rrie

rs w

ill

be jo

intly

and

seve

rally

liabl

e to

the

pass

enge

r or t

o th

e co

nsig

nor o

r con

-si

gnee

. A

rtic

le 3

0A

N

othi

ng in

this

Con

vent

ion

shal

lpr

ejud

ice

the

ques

-tio

n w

heth

er a

pe

rson

liab

le fo

r da

mag

e in

acc

ord-

ance

with

its p

rovi

-si

ons

has a

righ

t of

reco

urse

aga

inst

any

othe

r per

son.

shal

l, ex

cept

as

othe

rwis

e pr

ovid

edin

this

Cha

pter

, be

subj

ect t

o th

eru

les

ofth

is C

onve

ntio

n, th

e fo

rmer

fort

hew

hole

of th

eca

rria

geco

ntem

plat

ed in

the

cont

ract

, the

latte

r so

lely

fort

heca

rria

ge w

hich

it

perf

orm

s.A

rtic

le 4

1-M

utua

l Li

abili

ty1.

The

acts

and

om

issi

ons o

fthe

ac

tual

car

rier a

nd o

fits

ser

vant

s and

ag

ents

act

ing

with

inth

e sc

ope

ofth

eir

empl

oym

ent s

hall,

inre

latio

n to

the

carr

iage

per

form

edby

the

actu

al c

arrie

r,be

dee

med

to b

e al

soth

ose

ofth

e co

ntra

ct-

ing

carr

ier.

2. T

heac

ts a

nd

omis

sion

s oft

he

cont

ract

ing

carr

ier

and

of it

s ser

vant

san

d ag

ents

actin

g w

ithin

the

scop

e of

thei

r em

ploy

men

tsh

all,

in re

latio

n to

the

carr

iage

per

-fo

rmed

by

the

actu

alca

rrie

r, be

dee

med

tobe

als

o th

ose

of th

e ac

tual

car

rier.

Nev

erth

eles

s, no

such

act o

r om

issi

onsh

all s

ubje

ct th

eac

tual

car

riert

olia

bilit

y ex

ceed

ing

the

amou

ntsr

efer

red

to in

Arti

cles

21,

22,

23 a

nd 2

4. A

nysp

ecia

l agr

eem

ent

unde

r whi

ch th

eco

ntra

ctin

g ca

rrie

r

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 464

Part Two. Studies and reports on specific subjects 465IN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

bene

fit o

fthe

def

ence

san

d lim

itatio

ns o

flia

bilit

y av

aila

ble

to th

e ca

rrie

r un

der

this

inst

rum

ent i

f it p

rove

sth

at it

acte

d w

ithin

the

scop

e of

its c

ontr

act,

empl

oym

ent,

orag

ency

.6.

3.4

Ifm

ore

than

one

pers

on is

liabl

e fo

rth

e lo

ssof

, dam

age

to, o

r de

lay

in d

eliv

ery

of th

e go

ods,

thei

r lia

bilit

y is

join

t and

seve

ral b

uton

ly u

p to

the

limits

prov

ided

for

in a

rtic

les

6.4,

6.6

and

6.7

. 6.

3.5

With

out p

reju

dice

to th

e pr

ovis

ions

of

artic

le 6

.8, t

he a

ggre

-ga

te li

abili

tyof

all

such

pers

ons

shal

l not

exc

eed

the

over

all l

imits

of

liabi

lity

unde

r th

isin

stru

men

t.

assu

mes

obl

igat

ions

not i

mpo

sed

by th

isC

onve

ntio

n or

any

wai

ver o

f rig

hts o

rde

fenc

es c

onfe

rred

byth

is C

onve

ntio

n or

any

spec

iald

ecla

ra-

tion

ofin

tere

st in

de

liver

y at

dest

ina-

tion

cont

empl

ated

inA

rticl

e 22

sha

llno

taf

fect

the

actu

alca

rrie

r unl

essa

gree

dto

by

it.

6.4.

DE

LAY

INST

RU

ME

NT

HA

GU

E-V

ISB

YH

AM

BU

RG

MU

LTIM

OD

AL

CM

RC

OT

IF-C

IM 1

999

CM

NI

WA

RSA

WM

ON

TR

EA

L6.

4 D

elay

6.

4.1

Del

ayin

del

iver

yoc

curs

whe

nth

e go

ods

are

not d

eliv

ered

at t

he

plac

e of

dest

inat

ion

prov

ided

for

inth

eco

ntra

ct o

fcar

riag

e w

ithin

any

tim

eex

pres

sly

agre

edup

on[o

r, in

the

abse

nce

ofsu

ch a

gree

men

t, w

ithin

the

time

it w

ould

be

reas

onab

leto

exp

ect o

fa

dilig

entc

arri

er,

havi

ngre

gard

to th

e te

rms o

fthe

con

trac

t, th

e ch

arac

teri

stic

s of

the

tran

spor

t, an

d th

eci

rcum

stan

ces

ofth

e vo

yage

].6.

4.2

If d

elay

in d

eliv

ery

caus

es lo

ssno

t res

ultin

g

Art

icle

5-B

asis

of

liabi

lity

2. D

elay

in d

eliv

ery

occu

rs w

hen

the

good

s hav

e no

t bee

n de

liver

ed a

t the

port

of d

isch

arge

pro

vide

d fo

r in

the

cont

ract

of

carr

iage

by

sea

with

in

the

time

expr

essl

yag

reed

upo

n or

, in

the

abse

nce

ofsu

chag

reem

ent,

with

inth

e tim

e w

hich

it w

ould

be

reas

onab

le to

requ

ire o

fa d

ilige

nt

carr

ier,

havi

ng re

gard

to

the

circ

umst

ance

sof

the

case

.

Art

icle

16-

Bas

is o

flia

bilit

y2.

Del

ayin

del

iver

yoc

curs

whe

n th

e go

ods h

ave

not b

een

deliv

ered

with

inth

etim

e ex

pres

sly

agre

ed u

pon

or, i

nth

e ab

senc

e of

such

agre

emen

t, w

ithin

the

time

whi

ch it

w

ould

be

reas

onab

leto

requ

ire o

fa

dilig

ent m

ultim

odal

tra

nspo

rt op

erat

or,

havi

ngre

gard

to th

e ci

rcum

stan

ces

ofth

eca

se.

3. If

the

good

shav

e no

t bee

n de

liver

edw

ithin

90

cons

ecu-

tive

days

follo

win

g

Art

icle

19

Del

ay in

del

iver

ysh

all b

e sa

id to

occu

r w

hen

the

good

s hav

e no

t bee

n de

liver

edw

ithin

the

agre

edtim

e-lim

it or

whe

n,fa

iling

an

agre

ed

time-

limit,

the

actu

aldu

ratio

n of

the

carr

iage

hav

ing

rega

rd to

the

circ

umst

ance

s of

the

case

, and

in

parti

cula

r, in

the

case

of p

artia

l loa

ds,t

he

time

requ

ired

for

mak

ing

up a

com

-pl

ete

load

in th

eno

rmal

way

, exc

eeds

th

e tim

e it

wou

ld b

ere

ason

able

toal

low

a

Art

icle

16-

Tran

sit

peri

ods

1. T

he c

onsi

gnor

and

th

e ca

rrie

rsha

ll ag

ree

the

trans

it pe

riod.

Inth

e ab

senc

e of

an

agre

emen

t, th

e tra

nsit

perio

d m

ustn

otex

ceed

that

whi

chw

ould

resu

lt fr

om th

eap

plic

atio

n of

§§

2 to

4.

2. S

ubje

ct to

§§ 3

and

4,

the

max

imum

trans

it pe

riods

shal

l be

asf

ollo

ws:

a)

for w

agon

-load

co

nsig

nmen

ts- p

erio

d fo

r con

sign

-m

ent 1

2 ho

urs,

- per

iod

for c

arria

ge,

fore

ach

400

kmor

Art

icle

5-D

eliv

ery

time

The

carr

iers

hall

deliv

er th

e go

ods

with

in th

e tim

e lim

itag

reed

in th

e co

ntra

ct o

f car

riage

or

, if n

o tim

elim

itha

s be

en a

gree

d,w

ithin

the

time

limit

whi

ch c

ould

re

ason

ably

be

requ

ired

of a

dili

gent

carr

ier,

taki

ng in

toac

coun

t the

ci

rcum

stan

ces

ofth

evo

yage

and

unhi

nder

ed

navi

gatio

n.

Art

icle

19

The

carr

ier i

slia

ble

for d

amag

eoc

casi

oned

by

dela

yin

the

carr

iage

by

air

of p

asse

nger

s,

lugg

age

or g

oods

.A

rtic

le 2

0 In

the

carr

iage

of

pass

enge

rs a

nd

bagg

age,

and

in th

e ca

se o

f dam

age

occa

sion

ed b

y de

lay

in th

e ca

rria

ge o

fca

rgo,

the

carr

ier

shal

l not

be

liabl

e if

he p

rove

s th

at h

ean

dhi

s se

rvan

ts a

ndag

ents

have

take

n al

l ne

cess

ary

mea

sure

sto

avo

id th

eda

mag

e or

that

itw

as

Art

icle

19-

Del

ay

The

carr

ier i

slia

ble

for d

amag

eoc

casi

oned

by

dela

yin

the

carr

iage

by

air

of p

asse

nger

s,

bagg

age

or c

argo

.N

ever

thel

ess,

the

carr

iers

hall

not b

elia

ble

for d

amag

eoc

casi

oned

by

dela

yif

it pr

oves

that

it a

nd

its s

erva

nts a

nd

agen

ts to

ok a

llm

easu

res t

hat c

ould

re

ason

ably

be

requ

ired

toav

oid

the

dam

age

or th

at it

was

impo

ssib

le fo

r it o

rth

em to

take

such

mea

sure

s.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 465

466 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

from

dest

ruct

ion

of o

rda

mag

e to

the

good

sca

rrie

d an

d he

nce

not

cove

red

by a

rtic

le 6

.2,

the

amou

ntpa

yabl

e as

com

pens

atio

n fo

rsu

chlo

ss is

lim

ited

toan

amou

nt e

quiv

alen

t to

[...ti

mes

the

frei

ght

paya

ble

on th

e go

ods

dela

yed]

. The

tota

l am

ount

pay

able

und

erth

is p

rovi

sion

and

artic

le 6

.7.1

sha

ll no

tex

ceed

the

limit

that

wou

ld b

e es

tabl

ishe

dun

der

artic

le 6

.7.1

inre

spec

t oft

he to

tal l

oss

of th

e go

ods c

once

rned

.

the

date

of d

eliv

ery

dete

rmin

ed a

ccor

d-in

g to

para

grap

h 2

of

this

arti

cle,

the

clai

man

t may

treat

th

e go

ods a

s los

t.

dilig

ent c

arrie

r. A

rtic

le 2

0 1.

The

fact

that

goo

dsha

ve n

ot b

een

deliv

ered

with

inth

irty

days

follo

win

gth

e ex

piry

of t

he

agre

ed ti

me-

limit,

or,

ifth

ere

is n

o ag

reed

tim

e-lim

it, w

ithin

si

xty

days

from

the

time

whe

n th

e ca

rrie

rto

ok o

ver t

he g

oods

,sh

all b

e co

nclu

sive

ev

iden

ce o

fthe

loss

of th

ego

ods,

and

the

pers

on e

ntitl

ed to

mak

ea

clai

m m

ayth

ereu

pon

treat

them

as

lost

. 2.

The

per

son

soen

title

d m

ay, o

n re

ceip

t of c

ompe

n-sa

tion

fort

he m

issi

nggo

ods,

requ

esti

n w

ritin

g th

at h

esh

all

be n

otifi

ed im

me-

diat

ely

shou

ldth

ego

ods b

ere

cove

red

in

the

cour

seof

the

year

follo

win

g th

e pa

ymen

t ofc

ompe

n-sa

tion.

He

shal

l be

give

n a

writ

ten

ackn

owle

dgem

ent o

f su

ch re

ques

t.3.

With

in th

e th

irty

days

follo

win

gre

ceip

t of s

uch

noti-

ficat

ion,

the

pers

on

entit

led

as a

fore

said

m

ay re

quire

the

good

s to

be d

eliv

ered

to

him

agai

nst p

ay-

men

t of t

he c

harg

essh

own

to b

e du

e on

th

e co

nsig

nmen

t not

ean

d al

soag

ains

tre

fund

of t

he c

om-

pens

atio

n he

rece

ived

less

any

cha

rges

frac

tion

ther

eof

24 h

ours

;b)

for l

esst

han

wag

on-lo

ad c

onsi

gn-

men

t - p

erio

d fo

r con

sign

-m

ents

24

hour

s,- p

erio

d fo

r car

riage

,fo

reac

h 20

0 km

orfr

actio

n th

ereo

f 24

hou

rs.

The

dist

ance

s sh

all

rela

te to

the

agre

edro

ute

or, i

n th

eab

senc

e th

ereo

f, to

the

shor

test

poss

ible

ro

ute.

3. T

he c

arrie

r may

fix

addi

tiona

l tra

nsit

perio

ds o

f spe

cifie

d du

ratio

n in

the

follo

win

g ca

ses:

a)co

nsig

nmen

ts to

be

carr

ied

- by

lines

ofa

diff

eren

t gau

ge,

- by

sea

or in

land

wat

erw

ay,

- by

road

if th

ere

isno

rail

link;

b)

exc

eptio

nalc

ir-cu

mst

ance

s cau

sing

an e

xcep

tiona

lin

crea

se in

traf

fic o

rex

cept

iona

l ope

ratin

gdi

fficu

lties

.Th

e du

ratio

n of

the

addi

tiona

l tra

nsit

perio

ds m

usta

ppea

rin

the

Gen

eral

Con

-di

tions

of C

arria

ge.

4. T

he tr

ansi

t per

iod

shal

l sta

rt to

run

afte

rth

eta

king

ove

r oft

hego

ods;

it sh

allb

eex

tend

ed b

y th

e du

ratio

n of

a st

ayca

used

with

out a

nyfa

ult o

fthe

car

rier.

The

trans

it pe

riod

shal

l be

susp

ende

don

impo

ssib

le fo

r the

m

to ta

kesu

ch

mea

sure

s.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 466

Part Two. Studies and reports on specific subjects 467IN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

incl

uded

ther

ein

but

with

out p

reju

dice

toan

y cl

aim

sto

com

-pe

nsat

ion

for d

elay

inde

liver

y un

der

artic

le 2

3 an

d w

here

ap

plic

able

, arti

cle

26.

4. In

the

abse

nce

ofth

e re

ques

t men

tione

d in

par

agra

ph 2

orof

any

inst

ruct

ions

give

n w

ithin

the

perio

d of

thirt

y da

yssp

ecifi

ed

in p

arag

raph

3,o

r if

the

good

s ar

e no

t re

cove

red

until

mor

e th

an o

ne y

eara

fter

the

paym

ento

fco

mpe

nsat

ion,

the

carr

ier s

hall

been

title

d to

dea

lwith

th

em in

acc

orda

nce

with

the

law

of t

he

plac

e w

here

the

good

s are

situ

ated

.

Sund

ays a

nd st

atut

ory

holid

ays.

6.5.

DE

VIA

TIO

N

INST

RU

ME

NT

HA

GU

E-V

ISB

YH

AM

BU

RG

MU

LTIM

OD

AL

CM

RC

OT

IF-C

IM 1

999

CM

NI

WA

RSA

WM

ON

TR

EA

L6.

5-D

evia

tion

(a) T

he c

arri

er is

not

liabl

e fo

r lo

ss, d

amag

e,

or d

elay

in d

eliv

ery

caus

ed b

ya

devi

atio

nto

save

or

atte

mpt

tosa

ve li

fe o

rpr

oper

ty a

tse

a, o

r by

any

oth

erre

ason

able

dev

iatio

n.(b

) Whe

re u

nder

natio

nal l

awa

devi

a-tio

n of

itse

lfco

nstit

utes

a

brea

ch o

f the

ca

rrie

r’s o

blig

atio

ns,

such

bre

ach

only

has

effe

ct c

onsi

sten

tlyw

ithth

e pr

ovis

ions

of th

isin

stru

men

t.

Art

icle

4

4. A

ny d

evia

tion

insa

ving

or a

ttem

ptin

gto

save

life

or

prop

erty

at s

ea o

r any

reas

onab

le d

evia

tion

shal

l not

be

deem

edto

be

an in

frin

gem

ent

or b

reac

h of

this

conv

entio

n or

of t

he

cont

ract

of c

arria

ge,

and

the

carr

ier s

hall

notb

e lia

ble

fora

nylo

ss o

r dam

age

resu

lting

ther

efro

m.

Art

icle

5-B

asis

of

liabi

lity

6. T

he c

arrie

r is

not

liabl

e, e

xcep

t in

gene

ral a

vera

ge,

whe

re lo

ss, d

amag

eor

dela

y in

del

iver

yre

sulte

d fr

om

mea

sure

sto

save

life

or fr

om re

ason

able

mea

sure

s to

save

prop

erty

at s

ea.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 467

468 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIV6.

6. D

EC

K C

AR

GO

INST

RU

ME

NT

HA

GU

E-V

ISB

YH

AM

BU

RG

MU

LTIM

OD

AL

CM

RC

OT

IF-C

IM 1

999

CM

NI

WA

RSA

WM

ON

TR

EA

L6.

6 D

eck

carg

o 6.

6.1

Goo

dsm

ay b

e ca

rrie

d on

or a

bove

deck

onl

yif

(i)su

ch c

arri

age

isre

quir

ed b

y ap

plic

able

la

ws o

r ad

min

istr

ativ

e ru

les o

r re

gula

tions

, or

(ii) t

hey

are

carr

ied

inor

on

cont

aine

rs o

nde

cks

that

are

spec

ially

fitte

d to

carr

y su

chco

ntai

ners

, or

(iii)

in c

ases

not

cov

ered

by p

arag

raph

s (i)

or (i

i)of

this

art

icle

, the

ca

rria

ge o

nde

ck is

inac

cord

ance

with

the

cont

ract

ofc

arri

age,

or

com

plie

s with

the

cust

oms,

usag

es, a

nd

prac

tices

oft

he tr

ade,

or fo

llow

s fro

mot

her

usag

es o

rpr

actic

es in

the

trad

e in

que

stio

n.

6.6.

2 If

the

good

s ha

vebe

ensh

ippe

d in

acc

ord-

ance

with

art

icle

6.6

.1(i)

and

(iii),

the

carr

ier

isno

t lia

ble

for

loss

of o

rda

mag

e to

thes

ego

ods

or d

elay

in d

eliv

ery

caus

ed b

y th

e sp

ecia

l ri

sksi

nvol

ved

in th

eir

carr

iage

on d

eck.

If th

ego

ods a

re c

arri

ed o

nor

abov

e de

ck p

ursu

ant t

oar

ticle

6.6

.1 (i

i), th

e ca

rrie

r is

liab

le fo

r lo

ssof

or d

amag

e to

suc

hgo

ods,

or fo

rde

lay

inde

liver

y, w

ithou

t reg

ard

to w

heth

er th

ey a

reca

rrie

d on

or a

bove

deck

. Ift

he g

oods

are

carr

ied

on d

eck

in c

ases

othe

r th

an th

ose

perm

itted

und

erar

ticle

6.6

.1, t

he c

arri

er

Art

icle

1

c) “

Goo

ds”

incl

udes

good

s, w

ares

,m

erch

andi

ses,

and

artic

les

of e

very

kin

d w

hats

oeve

r exc

ept

live

anim

alsa

nd

carg

o w

hich

by

the

cont

ract

of c

arria

ge is

stat

ed a

sbei

ngca

rrie

d on

dec

k an

d is

so

car

ried.

Art

icle

9 - D

eck

carg

o 1.

The

carr

ier i

sen

title

d to

car

ry th

e go

ods

on d

eck

only

ifsu

ch c

arria

ge is

inac

cord

ance

with

anag

reem

ent w

ith th

esh

ippe

r or w

ithth

eus

age

of th

e pa

rticu

lar

trade

or is

requ

ired

byst

atut

ory

rule

s or

regu

latio

ns.

2. If

the

carr

iera

nd

the

ship

per h

ave

agre

ed th

at th

ego

ods

shal

l or m

ay b

eca

rrie

d on

dec

k, th

eca

rrie

r mus

tins

ert i

nth

ebi

ll of

ladi

ng o

rot

her d

ocum

ent

evid

enci

ng th

eco

ntra

ct o

f car

riage

by

sea

a st

atem

ent t

oth

at e

ffec

t. In

the

abse

nce

ofsu

chst

atem

ent t

heca

rrie

rha

s the

bur

den

of

prov

ing

that

an

agre

e-m

ent f

or c

arria

ge o

nde

ck h

asbe

enen

tere

din

to; h

owev

er, t

he

carr

ier i

s not

ent

itled

to

invo

ke su

ch a

n ag

reem

ent a

gain

st a

th

ird p

arty

, inc

ludi

nga

cons

igne

e, w

ho h

asac

quire

d th

e bi

ll of

ladi

ngin

goo

d fa

ith.

3. W

here

the

good

sha

ve b

een

carr

ied

on

deck

con

trary

to th

epr

ovis

ions

of p

ara-

grap

h 1

ofth

isA

rticl

eor

whe

re th

eca

rrie

rm

ay n

ot u

nder

par

a-gr

aph

2 of

this

Arti

cle

invo

ke a

n ag

reem

ent

for c

arria

ge o

n de

ck,

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 468

Part Two. Studies and reports on specific subjects 469IN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

is li

able

, irr

espe

ctiv

e of

the

prov

isio

nsof

artic

le 6

.1, f

or lo

ss o

f or

dam

age

to th

ego

odso

rde

lay

in d

eliv

ery

that

are

excl

usiv

ely

the

cons

eque

nce

ofth

eir

carr

iage

on

deck

.6.

6.3

If th

e go

ods

have

been

shi

pped

inac

cord

ance

with

artic

le 6

.6.1

(iii),

the

fact

that

par

ticul

argo

ods

are

carr

ied

on d

eck

mus

tbe

incl

uded

inth

eco

ntra

ct p

artic

ular

s.Fa

iling

this

, the

car

rier

ha

s the

bur

den

of

prov

ing

that

car

riag

eon

dec

k co

mpl

iesw

ithar

ticle

6.6

.1(ii

i)an

d, if

a ne

gotia

ble

tran

spor

tdo

cum

ent o

r a

nego

-tia

ble

elec

tron

icre

cord

is is

sued

, is

not e

ntitl

edto

invo

ke th

at p

rovi

sion

agai

nsta

thir

d pa

rty

that

has

acqu

ired

suc

hne

gotia

ble

tran

spor

tdo

cum

ent o

r el

ectr

onic

reco

rd in

goo

d fa

ith.

6.6.

4 If

the

carr

ier

unde

rth

is ar

ticle

6.6

is lia

ble

for

loss

or

dam

age

togo

ods c

arri

ed o

n de

ck o

rfo

r de

lay

in th

eir

deli-

very

, its

liab

ility

islim

ited

to th

eex

tent

pro

-vi

ded

for

in a

rtic

les 6

.4

and

6.7;

how

ever

, if t

heca

rrie

r and

ship

per

expr

essl

y ha

veag

reed

that

the

good

s will

be

carr

ied

unde

r de

ck, t

heca

rrie

r is

not e

ntitl

edto

limit

its li

abili

ty fo

r any

lo

ssof

or d

amag

e to

the

good

s tha

t exc

lusi

vely

re

sulte

d fr

omth

eir

carr

iage

on

deck

.

the

carr

ier,

notw

ith-

stan

ding

the

prov

i-si

onso

f par

agra

ph 1

ofar

ticle

5, i

slia

ble

for l

oss o

f or d

amag

e to

the

good

s, as

wel

l as

for d

elay

inde

li-ve

ry, r

esul

ting

sole

lyfr

om th

e ca

rria

geon

deck

, and

the

exte

nt

ofhi

slia

bilit

y is

to b

ede

term

ined

in a

ccor

d-an

cew

ith th

e pr

ovi-

sion

s of A

rticl

e 6

or

Arti

cle

8 of

this

Con

vent

ion,

as t

he

case

may

be.

4.

Car

riage

of g

oods

on d

eck

cont

rary

toex

pres

s agr

eem

ent f

orca

rria

ge u

nder

dec

k is

deem

ed to

be

an a

ct

or o

mis

sion

of t

he

carr

ier w

ithin

the

mea

ning

ofA

rticl

e 8.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 469

470 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIV6.

7. L

IMIT

S O

FL

IAB

ILIT

Y

INST

RU

ME

NT

HA

GU

E-V

ISB

YH

AM

BU

RG

MU

LTIM

OD

AL

CM

RC

OT

IF-C

IM 1

999

CM

NI

WA

RSA

WM

ON

TR

EA

L6.

7-Li

mits

of l

iabi

lity

6.7.

1.Su

bjec

t to

artic

le 6

.4.2

the

carr

ier’

s lia

bilit

y fo

rlo

ssof

or

dam

age

to o

rin

con

nect

ion

with

the

good

s is l

imite

dto

[…]

units

of a

ccou

ntpe

rpa

ckag

e or

othe

rsh

ippi

ng u

nit,

or […

] un

its o

f acc

ount

per

kilo

gram

oft

he g

ross

wei

ght o

f the

goo

ds lo

stor

dam

aged

, whi

chev

eris

the

high

er, e

xcep

tw

here

the

natu

rean

dva

lue

ofth

e go

ods

has

been

dec

lare

d by

the

ship

per

befo

re s

hip-

men

t and

incl

uded

inth

e co

ntra

ctpa

rtic

u-la

rs, [

or w

here

ahi

gher

am

ount

than

the

amou

nt o

f lim

ita-

tion

of li

abili

tyse

t out

in

this

art

icle

has

bee

nag

reed

upo

n be

twee

n th

e ca

rrie

r an

d th

e sh

ippe

r.]6.

7.2.

Whe

n go

ods a

reca

rrie

d in

or

ona

cont

aine

r, th

e pa

ckag

esor

ship

ping

uni

tsen

umer

ated

inth

eco

ntra

ct p

artic

ular

s as

pack

ed in

or o

n su

chco

ntai

ner

are

deem

edpa

ckag

es o

rsh

ippi

ngun

its. I

f not

soen

umer

ated

, the

good

sin

or

on s

uch

cont

aine

rar

e de

emed

one

sh

ippi

ng u

nit.

6.7.

3.T

he u

nit o

fac

coun

t ref

erre

dto

inth

is a

rtic

le is

the

Spec

ial D

raw

ing

Rig

htas

def

ined

by

the

Inte

rnat

iona

l

Art

icle

4

5.a)

Unl

ess t

he n

atur

e an

d va

lue

of su

ch

good

s hav

e be

ende

clar

ed b

y th

esh

ippe

r bef

ore

ship

-m

ent a

nd in

serte

d in

the

bill

of la

ding

, ne

ither

the

carri

er n

orth

esh

ip sh

all i

n an

yev

ent b

eor

bec

ome

liabl

e fo

r any

loss

orda

mag

e to

or i

n co

nnec

tion

with

the

good

s in

an a

mou

ntex

ceed

ing

666.

67

units

of a

ccou

nt p

erpa

ckag

e or

uni

t or 2

un

itsof

acc

ount

per

kilo

gram

me

of g

ross

wei

ght o

fthe

goo

dslo

st o

r dam

aged

,w

hich

ever

is th

e hi

gher

. b)

The

tota

lam

ount

re

cove

rabl

e sh

allb

eca

lcul

ated

by

refe

renc

e to

the

valu

eof

such

goo

ds a

t the

pl

ace

and

time

at

whi

ch th

e go

ods a

re

disc

harg

ed fr

om th

e sh

ip in

acco

rdan

cew

ith th

e co

ntra

ct o

rsh

ould

hav

e be

en so

disc

harg

ed.

The

valu

e of

the

good

s sha

llbe

fixe

d ac

cord

ing

to th

eco

mm

odity

exc

hang

e pr

ice,

or, i

f the

re b

eno

such

pric

e,ac

cord

ing

to th

ecu

rren

t mar

ket p

rice,

or

, if t

here

be

noco

mm

odity

exc

hang

e pr

ice

or c

urre

nt

mar

ket p

rice,

by

refe

renc

e to

the

Art

icle

6-L

imits

oflia

bilit

y1.

(a)T

he li

abili

ty o

fth

eca

rrie

r for

loss

resu

lting

from

loss

of

or d

amag

e to

goo

dsac

cord

ing

to th

epr

ovis

ions

of a

rticl

e 5

is li

mite

d to

an

amou

nt e

quiv

alen

t to

835

units

of a

ccou

ntpe

rpac

kage

or o

ther

ship

ping

uni

tor

2.5

units

of a

ccou

nt

per k

ilogr

am o

f gro

ssw

eigh

t oft

he g

oods

lost

or d

amag

ed,

whi

chev

er is

the

high

er.

(b) T

he li

abili

ty o

fthe

carr

ier f

or d

elay

inde

liver

y ac

cord

ing

toth

e pr

ovis

ions

ofar

ticle

5 is

limite

d to

an a

mou

nt e

quiv

alen

t to

two

and

a ha

lftim

es th

e fr

eigh

t pa

yabl

e fo

r the

goo

dsde

laye

d, b

ut n

otex

ceed

ing

the

tota

l fr

eigh

t pay

able

und

erth

e co

ntra

ct o

f ca

rria

ge o

f goo

dsby

sea.

(c

) In

noca

se sh

all

the

aggr

egat

e lia

bilit

yof

the

carr

ier,

unde

rbo

th su

bpar

agra

phs

(a) a

nd(b

) oft

his

para

grap

h, e

xcee

d th

elim

itatio

n w

hich

w

ould

be

esta

blis

hed

unde

r sub

para

-gr

aph

(a) o

fthi

spa

ragr

aph

for t

otal

loss

oft

he g

oods

with

resp

ect t

ow

hich

such

liabi

lity

was

incu

rred

. 2.

For

the

purp

ose

of

Art

icle

18-

Lim

itatio

n of

liabi

lity

1.W

hen

the

mul

ti-m

odal

tran

spor

t op

erat

oris

liab

le fo

rlo

ss re

sulti

ng fr

om

loss

of o

r dam

age

toth

e go

ods

acco

rdin

g to

arti

cle

16, h

islia

bilit

y sh

all b

elim

ited

to a

n am

ount

no

t exc

eedi

ng 9

20

units

of a

ccou

nt p

erpa

ckag

e of

oth

ersh

ippi

ng u

nito

r 2.7

5 un

itsof

acc

ount

per

kilo

gram

of g

ross

wei

ght o

fthe

goo

dslo

st o

r dam

aged

,w

hich

ever

is th

e hi

gher

. 2.

For

the

purp

ose

ofca

lcul

atin

g w

hich

am

ount

is th

e hi

gher

in a

ccor

danc

ew

ithpa

ragr

aph

1 of

this

artic

le, t

he fo

llow

ing

rule

s app

ly:

(a) W

here

a c

on-

tain

er, p

alle

t or

sim

ilar a

rticl

eof

tra

nspo

rt is

use

d to

cons

olid

ate

good

s,th

e pa

ckag

esor

othe

r shi

ppin

gun

itsen

umer

ated

in th

e m

ultim

odal

tran

s-po

rt do

cum

ent a

spa

cked

in su

ch

artic

le o

ftra

nspo

rt ar

e de

emed

pac

k-ag

es o

r shi

ppin

gun

its. E

xcep

tas

afor

esai

d, th

e go

ods

in s

uch

artic

le o

ftra

nspo

rt ar

e de

emed

one

ship

ping

unit.

(b

) In

case

s w

here

Art

icle

23

3. C

ompe

nsat

ion

shal

l not

, how

ever

, ex

ceed

8.3

3 un

itsof

acco

unt p

erki

logr

amof

gro

ssw

eigh

t sho

rt.

4. In

add

ition

, the

carr

iage

cha

rges

,C

usto

ms d

utie

sand

ot

her c

harg

esin

curr

ed in

resp

ect o

fth

eca

rria

ge o

f the

good

s sha

llbe

refu

nded

in fu

ll in

case

oft

otal

loss

and

in p

ropo

rtion

to th

e lo

ss s

usta

ined

in c

ase

of p

artia

l los

s, bu

t no

furth

er d

amag

esh

all

be p

ayab

le.

5. In

the

case

ofde

lay

if th

e cl

aim

ant

prov

es th

at d

amag

e ha

s re

sulte

d th

ere-

from

the

carr

ier s

hall

pay

com

pens

atio

nfo

rsu

ch d

amag

e no

tex

ceed

ing

the

carr

iage

cha

rges

.6.

Hig

her c

ompe

n-sa

tion

may

onl

y be

clai

med

whe

re th

eva

lue

ofth

e go

ods

or

a sp

ecia

l int

eres

t in

deliv

ery

has b

een

decl

ared

inac

cord

-an

ce w

ith a

rticl

es 2

4 an

d 26

. 7.

The

unit

of

acco

unt m

entio

ned

in

this

Con

vent

ion

isth

e Sp

ecia

l Dra

win

gR

ight

as d

efin

ed b

yth

e In

tern

atio

nal

Mon

etar

y Fu

nd. T

he

amou

nt m

entio

ned

in

para

grap

h 3

of th

isar

ticle

sha

llbe

conv

erte

d in

to th

e

Art

icle

30-

Com

pens

atio

n fo

rlo

ss2.

Com

pens

atio

n sh

all

not e

xcee

d 17

units

of

acco

unt p

er k

ilo-

gram

me

of g

ross

mas

ssh

ort.

3. In

case

of l

oss o

f a

railw

ay v

ehic

leru

nnin

g on

its

own

whe

els a

nd c

onsi

gned

as g

oods

, or o

f an

inte

rmod

al tr

ansp

ort

unit,

or o

f the

irre

mov

able

par

ts, t

heco

mpe

nsat

ion

shal

lbe

limite

d, to

the

excl

u-si

on o

fall

othe

rda

mag

es,t

o th

e us

ual

valu

e of

the

vehi

cle

or th

e in

term

odal

trans

port

unit,

or t

heir

rem

ovab

le p

arts

,on

the

day

and

at th

epl

ace

of lo

ss. I

fiti

sim

poss

ible

toas

cer-

tain

the

day

or th

e pl

ace

ofth

e lo

ss, t

heco

mpe

nsat

ion

shal

lbe

limite

d to

the

usua

lva

lue

on th

e da

y an

d at

the

plac

e w

here

the

vehi

cle

hasb

een

take

n ov

er b

y th

e ca

rrie

r.4.

The

car

rier m

ust,

in

addi

tion,

refu

ndth

e ca

rria

ge c

harg

e,

cust

oms d

utie

s al

read

y pa

idan

dot

her

sum

s pai

d in

rela

tion

to th

eca

rria

ge o

f the

goo

dslo

st e

xcep

t exc

ise

dutie

s for

goo

dsca

rrie

d un

dera

pr

oced

ure

susp

endi

ngth

ose

dutie

s.

Art

icle

20-

Max

imum

lim

itsof

liabi

lity

1. S

ubje

ct to

artic

le 2

1 an

d pa

ra-

grap

h 4

ofth

epr

esen

t arti

cle,

and

re

gard

less

of t

he

actio

n br

ough

tag

ains

t him

, the

ca

rrie

r sha

ll un

der

no c

ircum

stan

ces b

elia

ble

for a

mou

nts

exce

edin

g 66

6.67

un

itsof

acc

ount

per

pack

age

or o

ther

load

ing

unit,

or2

un

itsof

acc

ount

per

kilo

gram

ofw

eigh

t, sp

ecifi

ed in

the

trans

port

docu

men

t, of

the

good

s los

t or

dam

aged

, whi

chev

er

is th

e hi

gher

. If t

he

pack

age

or o

ther

load

ing

unit

is a

cont

aine

r and

ifth

ere

is n

o m

entio

n in

the

trans

port

docu

men

t of a

nypa

ckag

e or

load

ing

unit

cons

olid

ated

inth

e co

ntai

ner,

the

amou

nt o

f 666

.67

units

ofa

ccou

ntsh

all b

e re

plac

ed b

yth

eam

ount

of 1

,500

un

itsof

acc

ount

for

the

cont

aine

r w

ithou

t the

goo

ds it

co

ntai

ns a

nd, i

nad

ditio

n, th

eam

ount

of

25,

000

units

of

acco

unt f

or th

e go

ods

whi

ch a

re in

th

e co

ntai

ner.

2. W

here

a c

on-

tain

er, p

alle

t or

sim

ilar a

rticl

eof

Art

icle

22

2.(b

)In

the

carr

iage

of c

argo

, the

liab

ility

of th

eca

rrie

r is

limite

dto

a su

m o

f 17

Spec

ial D

raw

ing

Rig

hts p

er k

ilo-

gram

me,

unl

esst

he

cons

igno

r has

mad

e,at

the

time

whe

n th

e pa

ckag

e w

asha

nded

over

to th

e ca

rrie

r,a

spec

ial d

ecla

ratio

n of

inte

rest

in d

eliv

ery

atde

stin

atio

n an

d ha

spa

id a

sup

plem

enta

rysu

m if

the

case

sore

quire

s.In

that

cas

eth

e ca

rrie

rwill

be

liabl

e to

pay

a s

umno

t exc

eedi

ngth

ede

clar

ed s

um,u

nles

she

pro

ves t

hat t

hesu

m is

grea

ter t

han

the

cons

igno

r’sac

tual

inte

rest

in d

eliv

ery

atde

stin

atio

n.

5.Th

e su

ms

men

-tio

ned

in fr

ancs

inth

is A

rticl

esh

allb

ede

emed

tore

fer t

oa

curr

ency

uni

t con

sist

-in

g of

sixt

y-fiv

e an

da

half

mill

igra

mm

es o

f go

ld o

f mill

esim

alfin

enes

s nin

ehu

ndre

d. T

hese

sum

sm

ay b

e co

nver

ted

into

nat

iona

lcur

ren-

cies

in ro

und

figur

es.

Con

vers

ion

ofth

e su

ms i

nto

natio

nal

curr

enci

es o

ther

than

gold

shal

l, in

cas

eof

judi

cial

pro

ceed

ings

, be

mad

eac

cord

ing

toth

e go

ld v

alue

of s

uch

curr

enci

es a

t the

dat

eof

the

judg

men

t.

Art

icle

22-

Lim

its o

fLi

abili

ty in

Rel

atio

nto

Del

ay, B

agga

ge

and

Car

go3.

Inth

e ca

rria

ge o

fca

rgo,

the

liabi

lity

ofth

e ca

rrie

r in

the

case

of d

estru

ctio

n, lo

ss,

dam

age

or d

elay

islim

ited

to a

sum

of

17 S

peci

al D

raw

ing

Rig

hts p

er k

ilo-

gram

me,

unl

esst

he

cons

igno

r has

mad

e,at

the

time

whe

n th

e pa

ckag

e w

asha

nded

over

to th

e ca

rrie

r,a

spec

ial d

ecla

ratio

n of

inte

rest

in d

eliv

ery

atde

stin

atio

n an

d ha

spa

id a

sup

plem

enta

rysu

m if

the

case

sore

quire

s.In

that

cas

eth

e ca

rrie

rwill

be

liabl

e to

pay

a s

umno

t exc

eedi

ngth

ede

clar

ed s

um,u

nles

sit

prov

esth

at th

e su

mis

gre

ater

than

the

cons

igno

r's a

ctua

lin

tere

st in

del

iver

y at

dest

inat

ion.

4.

Inth

e ca

se o

fde

stru

ctio

n, lo

ss,

dam

age

orde

lay

ofpa

rt of

the

carg

o, o

rof

any

obj

ect

cont

aine

d th

erei

n, th

e w

eigh

t to

beta

ken

into

con

side

ratio

n in

de

term

inin

g th

e am

ount

to w

hich

the

carr

ier's

liab

ility

islim

ited

shal

l be

only

the

tota

lwei

ghto

fth

e “p

acka

ge o

r pa

ckag

es”

con-

cern

ed. N

ever

thel

ess,

whe

n th

e de

stru

ctio

n,

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 470

Part Two. Studies and reports on specific subjects 471IN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

Mon

etar

y Fu

nd. T

heam

ount

s m

entio

ned

inth

is a

rtic

le a

re to

beco

nver

ted

into

the

natio

nal c

urre

ncy

ofa

Stat

e ac

cord

ing

toth

eva

lue

ofsu

ch c

urre

ncy

at th

e da

teof

judg

emen

t or

the

date

agre

ed u

pon

by th

epa

rtie

s. T

he v

alue

ofa

na

tiona

l cur

renc

y,in

term

sof t

he S

peci

al

Dra

win

gR

ight

s, of

a

Con

trac

ting

Stat

e th

atis

a m

embe

r of

the

Inte

rnat

iona

l M

onet

ary

Fund

is to

be

cal

cula

ted

inac

cord

ance

with

the

met

hod

of v

alua

tion

appl

ied

by th

eIn

tern

atio

nal

Mon

etar

y Fu

nd in

effe

ctat

the

date

inqu

estio

n fo

r its

oper

atio

ns a

nd

tran

sact

ions

. The

val

ue

ofa

natio

nal c

urre

ncy,

in te

rms

ofth

e Sp

ecia

lD

raw

ing

Rig

ht,o

f a

Con

trac

ting

Stat

e th

atis

not

a m

embe

rof

the

Inte

rnat

iona

l M

onet

ary

Fund

is to

be

cal

cula

ted

in a

man

ner

to b

ede

term

ined

by

that

Stat

e.

norm

al v

alue

of

good

s of t

he s

ame

kind

and

qua

lity.

c) W

here

a c

onta

iner

,pa

llet o

r sim

ilar

artic

le o

f tra

nspo

rt is

used

toco

nsol

idat

ego

ods,

the

num

ber o

fpa

ckag

es o

runi

tsen

umer

ated

in th

e bi

ll of

ladi

ng a

s pac

ked

in

such

arti

cle

oftra

nspo

rt sh

allb

ede

emed

the

num

ber

of p

acka

ges

or u

nits

fort

he p

urpo

se o

fthi

spa

ragr

aph

as fa

r as

thes

e pa

ckag

esor

units

are

con

cern

ed.

Exce

pt a

safo

resa

id

such

arti

cle

of tr

ans-

port

shal

l be

con-

side

red

the

pack

age

or u

nit.

d) T

he u

nit o

facc

ount

m

entio

ned

in th

isA

rticl

e is

the

Spec

ial

Dra

win

g R

ight

asde

fined

by

the

Inte

rnat

iona

lM

onet

ary

Fund

. The

am

ount

s m

entio

ned

in

sub-

para

grap

h a)

of

this

par

agra

ph sh

all

be c

onve

rted

into

natio

nal c

urre

ncy

on

the

basi

sof

the

valu

e of

that

cur

renc

y on

a

date

to b

e de

term

ined

byth

e la

w o

fthe

Cou

rt se

ized

of t

heca

se. T

he v

alue

oft

hena

tiona

l cur

renc

y,in

term

s of

the

Spec

ial

Dra

win

g R

ight

, of a

St

ate

whi

ch is

a

mem

ber o

fthe

Inte

rnat

iona

lM

onet

ary

Fund

, sha

llbe

cal

cula

ted

in

calc

ulat

ing

whi

ch

amou

nt is

the

high

erin

acc

orda

nce

with

para

grap

h1

(a) o

f thi

sar

ticle

, the

follo

win

gru

les a

pply

:(a

) Whe

re a

con

tain

er,

palle

t or s

imila

rar

ticle

of t

rans

port

isus

ed to

cons

olid

ate

good

s,th

e pa

ckag

e or

ot

her s

hipp

ing

units

enum

erat

ed in

the

bill

ofla

ding

, if i

ssue

d, o

rot

herw

ise

in a

ny o

ther

docu

men

t evi

denc

ing

the

cont

ract

of

carr

iage

by

sea,

as

pack

ed in

such

arti

cle

of tr

ansp

ort a

rede

emed

pac

kage

s or

ship

ping

uni

ts. E

xcep

t as

afo

resa

id th

e go

ods

in su

ch a

rticl

e of

trans

port

are

deem

edon

e sh

ippi

ngun

it.

(b) I

nca

ses

whe

re th

ear

ticle

oft

rans

port

itsel

f has

bee

n lo

st o

rda

mag

ed, t

hat a

rticl

e of

tran

spor

t, if

not

owne

d or

oth

erw

ise

supp

lied

byth

eca

rrie

r, is

con

side

red

one

sepa

rate

ship

ping

unit.

3.

Uni

t of a

ccou

nt

mea

ns th

e un

it of

ac

coun

t men

tione

d in

ar

ticle

26.

4. B

y ag

reem

ent

betw

een

the

carr

ier

and

the

ship

per,

limits

of li

abili

ty e

xcee

ding

thos

e pr

ovid

ed fo

r in

para

grap

h1

may

be

fixed

. A

rtic

le 2

6-U

nit o

fac

coun

tl.

The

unit

ofac

coun

t

the

artic

leof

tran

s-po

rt its

elf h

as b

een

lost

or d

amag

ed, t

hat

artic

le o

ftra

nspo

rt,

if no

tow

ned

orot

herw

ise

supp

lied

by th

em

ultim

odal

tra

nspo

rt op

erat

or, i

sco

nsid

ered

one

se

para

te sh

ippi

ngun

it.

3. N

otw

ithst

andi

ngth

e pr

ovis

ions

ofpa

ragr

aphs

1 an

d 2

of th

is a

rticl

e,if

the

inte

rnat

iona

l mul

ti-m

odal

tran

spor

t doe

sno

t, ac

cord

ing

to th

eco

ntra

ct, i

nclu

deca

rria

ge o

f goo

dsby

sea

or b

y in

land

wat

erw

ays,

the

liabi

lity

ofth

e m

ultim

odal

tran

s-po

rt op

erat

orsh

all

be li

mite

d to

an

amou

nt n

ot e

xcee

d-in

g 8.

33 u

nits

ofac

coun

t per

kilo

-gr

am o

f gro

ssw

eigh

t oft

he g

oods

lost

or d

amag

ed.

4.Th

e lia

bilit

y of

the

mul

timod

al

trans

port

oper

ator

for l

oss

resu

lting

from

del

ay in

deliv

ery

acco

rdin

gto

the

prov

isio

nsof

artic

le 1

6 sh

all b

elim

ited

to a

n am

ount

eq

uiva

lent

to tw

o an

d a

half

times

the

frei

ght p

ayab

lefo

rth

e go

odsd

elay

ed,

but n

ot e

xcee

ding

the

tota

l fre

ight

pay

-ab

le u

nder

the

mul

ti-m

odal

tran

spor

t co

ntra

ct.

natio

nal c

urre

ncy

of

the

Stat

e of

the

Cou

rt se

ized

of th

e ca

seon

th

e ba

sis

of th

e va

lue

ofth

at c

urre

ncy

on

the

date

of th

e ju

dg-

men

t or t

he d

ate

agre

ed u

pon

by th

ePa

rties

. The

val

ue o

fth

e na

tiona

lcur

renc

y,in

term

sof t

he

Spec

ial D

raw

ing

Rig

ht, o

f a S

tate

w

hich

is a

mem

bero

f th

e In

tern

atio

nal

Mon

etar

y Fu

nd, s

hall

be c

alcu

late

d in

acco

rdan

ce w

ithth

e m

etho

d of

val

uatio

n ap

plie

d by

the

Inte

rnat

iona

lM

onet

ary

Fund

inef

fect

on

the

date

inqu

estio

n fo

rits

oper

atio

ns a

nd tr

ans-

actio

ns. T

he v

alue

of

the

natio

nalc

urre

ncy,

in te

rmso

f the

Sp

ecia

l Dra

win

gR

ight

, of a

Sta

te

whi

ch is

not

a

mem

ber o

fthe

Inte

rnat

iona

lM

onet

ary

Fund

, sha

llbe

cal

cula

ted

in a

man

ner d

eter

min

ed

by th

e St

ate.

8.

Nev

erth

eles

s, a

Stat

ew

hich

is n

ot a

mem

ber o

fthe

Inte

rnat

iona

lM

onet

ary

Fund

and

w

hose

law

doe

s no

tpe

rmit

the

appl

ica-

tion

ofth

e pr

ovis

ions

of p

arag

raph

7 o

f thi

sar

ticle

may

, at t

hetim

e of

ratif

icat

ion

ofor

acc

essi

on to

the

Prot

ocol

to th

eC

MR

Art

icle

33-

Com

pens

atio

n fo

r ex

ceed

ing

the

tran

sit

peri

od1.

If lo

ss o

r dam

age

resu

lts fr

om th

etra

nsit

perio

d be

ing

exce

eded

, the

car

rier

mus

t pay

com

pens

a-tio

n no

t exc

eedi

ngfo

ur ti

mes

the

carr

iage

cha

rge.

2.

In c

ase

of to

tal l

oss

of th

ego

ods,

the

com

pens

atio

n pr

o-vi

ded

for i

n§

1sh

all

not b

e pa

yabl

e in

addi

tion

to th

at

prov

ided

fori

nar

ticle

30.

3.

In c

ase

of p

artia

llo

ss o

fthe

goo

ds,t

he

com

pens

atio

n pr

o-vi

ded

for i

n§

1sh

all

not e

xcee

d fo

ur ti

mes

the

carr

iage

char

ge in

resp

ecto

f tha

t par

tof

the

cons

ignm

ent

whi

ch h

as n

otbe

enlo

st.

4. In

cas

eof

dam

age

to th

e go

ods,

not

resu

lting

from

the

trans

it pe

riod

bein

g ex

ceed

ed, t

he c

om-

pens

atio

n pr

ovid

ed

for i

n §

1 sh

all,

whe

re

appr

opria

te, b

epa

yabl

e in

add

ition

toth

at p

rovi

ded

for i

nar

ticle

32.

5.

In n

o ca

sesh

all t

he

tota

l of c

ompe

nsat

ion

prov

ided

for i

n §

1 to

geth

er w

ith th

at

prov

ided

fori

nar

ticle

s 30

and

32

exce

ed th

e co

m-

pens

atio

n w

hich

w

ould

be

paya

ble

in

trans

port

is u

sed

toco

nsol

idat

e go

ods,

the

pack

age

orsh

ippi

ng u

nits

enum

erat

ed in

the

trans

port

docu

men

t as

pac

ked

in o

r on

such

arti

cle

oftra

nspo

rt ar

e de

emed

pack

ages

or s

hipp

ing

units

. Exc

epta

saf

ores

aid

the

good

sin

or o

nsu

char

ticle

of tr

ansp

ort a

rede

emed

one

sh

ippi

ng u

nit.

Inca

ses

whe

re th

e ar

ticle

oft

rans

port

itsel

f has

bee

n lo

st

or d

amag

ed, t

hat

artic

le o

ftra

nspo

rt,

if no

tow

ned

orot

herw

ise

supp

lied

by th

e ca

rrie

r, is

co

nsid

ered

one

se

para

te sh

ippi

ngun

it.

3. In

the

even

t of

loss

due

to d

elay

in

deliv

ery,

the

carri

ersh

all b

e lia

ble

only

for a

n am

ount

not

ex

ceed

ing

the

valu

eof

the

frei

ght.

How

ever

, the

ag

greg

ate

liabi

lity

unde

r par

agra

ph 1

an

dth

e fir

st s

ente

nce

of th

e pr

esen

tpa

ragr

aph

shal

lnot

ex

ceed

the

limita

tion,

whi

ch

wou

ld b

ees

tabl

ishe

dun

der p

arag

raph

1

fort

otal

loss

of t

he

good

s w

ith re

spec

t to

whi

ch s

uch

liabi

-lit

y w

asin

curr

ed.

4. T

hem

axim

um

limits

of l

iabi

lity

6.Th

e su

ms

men

-tio

ned

in te

rms

of th

eSp

ecia

l Dra

win

gR

ight

in th

isA

rticl

e sh

all b

e de

emed

tore

fer t

o th

eSp

ecia

lD

raw

ing

Rig

htas

defin

ed b

y th

eIn

tern

atio

nal

Mon

etar

y Fu

nd.

Con

vers

ion

ofth

e su

ms i

nto

natio

nal

curr

enci

es s

hall,

inca

se o

f jud

icia

lpr

ocee

ding

s, be

mad

eac

cord

ing

to th

eva

lue

of su

ch

curr

enci

es in

term

s of

the

Spec

ial D

raw

ing

Rig

ht a

t the

date

ofth

e ju

dgm

ent.

The

valu

e of

a n

atio

nal

curr

ency

, in

term

s of

the

Spec

ial D

raw

ing

Rig

ht, o

f a H

igh

Con

tract

ing

Party

w

hich

is a

Mem

bero

fth

e In

tern

atio

nal

Mon

etar

y Fu

nd, s

hall

be c

alcu

late

d in

acco

rdan

ce w

ithth

e m

etho

d of

val

uatio

n ap

plie

d by

the

Inte

rnat

iona

lM

onet

ary

Fund

,in

effe

ct a

t the

dat

eof

the

judg

men

t, fo

r its

oper

atio

ns a

nd

trans

actio

ns. T

he

valu

e of

a n

atio

nal

curr

ency

, in

term

s of

the

Spec

ial D

raw

ing

Rig

ht, o

f a H

igh

Con

tract

ing

Party

w

hich

is n

ot a

M

embe

r oft

he

Inte

rnat

iona

lM

onet

ary

Fund

, sha

llbe

cal

cula

ted

in a

man

ner d

eter

min

ed

loss

, dam

age

or d

elay

of a

par

t oft

he c

argo

,or

of a

n ob

ject

con

-ta

ined

ther

ein,

aff

ects

the

valu

e of

oth

erpa

ckag

es c

over

ed b

yth

e sa

me

air w

aybi

ll,

or th

esa

me

rece

ipt

or, i

f the

yw

ere

not

issu

ed, b

y th

e sa

me

reco

rd p

rese

rved

by

the

othe

r mea

nsre

ferr

ed to

in p

ara-

grap

h 2

of a

rticl

e 4,

th

e to

talw

eigh

tof

such

pac

kage

orpa

ckag

es s

hall

also

be ta

ken

into

cons

ider

atio

n in

de

term

inin

g th

e lim

it of

liab

ility

.5.

Th

efo

rego

ing

prov

isio

ns o

fpa

ragr

aphs

1 an

d 2

of

this

arti

cle

shal

l not

appl

yif

it is

pro

ved

that

the

dam

age

resu

lted

from

an

act

or o

mis

sion

of t

he

carr

ier,

its se

rvan

tsor

agen

ts, d

one

with

in

tent

to c

ause

dam

age

or re

ckle

ssly

and

with

know

ledg

eth

at d

amag

ew

ould

prob

ably

resu

lt;

prov

ided

that

in th

e ca

seof

such

act

or

omis

sion

of a

ser

vant

or

agen

t, it

is a

lso

prov

ed th

at su

chse

rvan

t ora

gent

was

ac

ting

with

in th

esc

ope

of it

s em

ploy

-m

ent.

6.Th

e lim

its p

res-

crib

ed in

arti

cle

21an

d in

this

artic

le

shal

l not

pre

vent

the

cour

t fro

maw

ardi

ng,

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 471

472 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

acco

rdan

ce w

ithth

e m

etho

d of

val

uatio

n ap

plie

d by

the

Inte

rnat

iona

lM

onet

ary

Fund

inef

fect

at t

he d

ate

inqu

estio

n fo

rits

oper

atio

ns a

nd

trans

actio

ns. T

he

valu

e of

the

natio

nal

curr

ency

, in

term

s of

the

Spec

ial D

raw

ing

Rig

ht, o

f a S

tate

w

hich

is n

ot a

m

embe

r oft

heIn

tern

atio

nal

Mon

etar

y Fu

nd, s

hall

be c

alcu

late

d in

am

anne

r det

erm

ined

by

that

Sta

te.

Nev

erth

eles

s, a

Stat

e w

hich

is n

ot a

m

embe

r oft

heIn

tern

atio

nal

Mon

etar

y Fu

nd a

nd

who

sela

w d

oes

not

perm

it th

eap

plic

atio

n of

the

prov

isio

ns o

f th

e pr

eced

ing

sent

ence

s m

ay, a

t the

tim

e of

ratif

icat

ion

ofth

e Pr

otoc

ol o

f197

9 or

acc

essi

on th

eret

oor

at a

ny ti

me

ther

e-af

ter,

decl

are

that

the

limits

of l

iabi

lity

prov

ided

for i

n th

isC

onve

ntio

n to

beap

plie

d in

its t

errit

ory

shal

l be

fixed

as

follo

ws:

i)

in re

spec

t oft

heam

ount

of 6

66.6

7 un

its o

facc

ount

men

tione

d in

sub-

para

grap

h a)

ofpa

ragr

aph

5 of

this

Arti

cle,

10,

000

mon

etar

y un

its;

ii)in

resp

ect o

f the

am

ount

of 2

uni

ts o

f

refe

rred

to in

Arti

cle

6 of

this

Con

vent

ion

isth

eSp

ecia

l Dra

win

gR

ight

as d

efin

ed b

yth

e In

tern

atio

nal

Mon

etar

yFu

nd. T

he

amou

nts

men

tione

din

A

rticl

e 6

are

to b

eco

nver

ted

into

the

natio

nal

curr

ency

of

a St

ate

acco

rdin

g to

the

valu

e of

such

cu

rren

cyat

the

date

of ju

dgem

ent o

r the

da

teag

reed

upo

n by

the

parti

es. T

he v

alue

of

a na

tiona

lcu

rren

cy, i

n te

rms

ofth

e Sp

ecia

l Dra

win

gR

ight

, of a

C

ontra

ctin

g St

ate

whi

ch is

am

embe

rof

the

Inte

rnat

iona

lM

onet

ary

Fund

is to

be c

alcu

late

din

acco

rdan

ce w

ithth

e m

etho

d of

val

uatio

n ap

plie

d by

the

Inte

rnat

iona

lM

onet

ary

Fund

inef

fect

at t

he d

ate

inqu

estio

n fo

rits

oper

atio

ns a

nd

trans

actio

ns. T

he

valu

e of

a n

atio

nal

curr

ency

in te

rms

ofth

e Sp

ecia

l D

raw

ing

Rig

ht o

f a

Con

tract

ing

Stat

ew

hich

is n

ot a

m

embe

r oft

heIn

tern

atio

nal

Mon

etar

yFu

nd is

tobe

cal

cula

ted

in a

man

ner d

eter

min

ed

by t

hat S

tate

.2.

Nev

erth

eles

s, th

ose

Stat

esw

hich

are

not

m

embe

rs o

fthe

Inte

rnat

iona

l

5. T

he a

ggre

gate

lia

bilit

y of

the

mul

timod

al tr

ans-

port

oper

ator

,und

erpa

ragr

aphs

1 an

d 4

orpa

ragr

aphs

3 a

nd

4 of

this

arti

cle,

sh

all n

otex

ceed

the

limit

of li

abili

ty fo

rto

tal l

oss

of th

ego

ods

as d

eter

min

ed

bypa

ragr

aph

1 or

3of

this

arti

cle.

6. B

y ag

reem

ent

betw

een

the

mul

ti-m

odal

tran

spor

t op

erat

or a

nd th

e co

nsig

nor,

limits

of

liabi

lity

exce

edin

gth

ose

prov

ided

for i

npa

ragr

aphs

1, 3

and

4 of

this

arti

cle

may

befix

ed in

the

mul

timod

al tr

ans-

port

docu

men

t.7.

“U

nit o

f acc

ount

”m

eans

the

unit

of

acco

unt m

entio

ned

in a

rticl

e 31

. A

rtic

le 3

1-U

nit o

fac

coun

t of

mon

etar

y un

it an

d co

nver

sion

1.Th

e un

it of

ac

coun

t ref

erre

d to

in a

rticl

e 18

oft

his

Con

vent

ion

isth

eSp

ecia

l Dra

win

gR

ight

as d

efin

ed b

yth

e In

tern

atio

nal

Mon

etar

y Fu

nd. T

he

amou

nts r

efer

red

toin

arti

cle

18 sh

all b

eco

nver

ted

into

the

natio

nal c

urre

ncy

of

a St

ate

acco

rdin

g to

the

valu

e of

such

cu

rren

cyon

the

date

of th

e ju

dgem

ento

raw

ard

or th

e da

teag

reed

upo

nby

the

orat

any

tim

eth

ere-

afte

r,de

clar

e th

at th

elim

it of

liab

ility

pro-

vide

d fo

r in

para

-gr

aph

3 of

this

artic

le

to b

eap

plie

d in

its

terr

itory

shal

lbe

25 m

onet

ary

units

.Th

e m

onet

ary

unit

refe

rred

to in

this

para

grap

h co

rres

-po

nds t

o th

e 10

/31

gram

of g

old

ofm

illes

imal

fine

ness

nine

hun

dred

. The

co

nver

sion

sha

llbe

mad

e ac

cord

ing

toth

e la

w o

f the

Sta

te

conc

erne

d.9.

The

cal

cula

tion

men

tione

d in

the

last

sent

ence

ofp

ara-

grap

h 7

ofth

isar

ticle

an

d th

eco

nver

sion

men

tione

d in

par

a-gr

aph

8 of

this

artic

le

shal

l be

mad

e in

such

a

man

ner a

s to

ex-

pres

s in

the

natio

nal

curr

ency

of th

e St

ate

asfa

r as p

ossi

ble

the

sam

e re

al v

alue

for

the

amou

nt in

par

a-gr

aph

3 of

this

artic

le

as is

expr

esse

d th

ere

in u

nits

of a

ccou

nt.

Stat

es sh

allc

om-

mun

icat

e to

the

Secr

etar

y-G

ener

al o

fth

e U

nite

d N

atio

nsth

e m

anne

r of c

alcu

-la

tion

purs

uant

topa

ragr

aph

7 of

this

artic

le o

rthe

resu

lt of

the

conv

ersi

on in

para

grap

h 8

of th

isar

ticle

as t

he c

ase

may

be,

whe

nde

posi

ting

anin

stru

men

t ref

erre

d to

in A

rticl

e 3

of th

e

case

oft

otal

loss

of

the

good

s.6.

If, i

nac

cord

ance

with

arti

cle

16 §

1,

the

trans

it pe

riod

has

been

est

ablis

hed

byag

reem

ent,

othe

rfo

rms o

f com

pen-

satio

n th

an th

ose

prov

ided

for i

n §

1 m

ay b

e so

agr

eed.

If,

in th

is c

ase,

the

trans

it pe

riods

pro

vide

d fo

rin

arti

cle

16 §

§ 2

to 4

ar

e ex

ceed

ed,t

he

pers

on e

ntitl

ed m

aycl

aim

eith

erth

e co

m-

pens

atio

n pr

ovid

ed

for i

n th

e ag

reem

ent

men

tione

d ab

ove

orth

at p

rovi

ded

for i

n§§

1 to

5.

men

tione

d in

pa

ragr

aph

1 do

not

appl

y:

(a) w

here

the

natu

rean

d hi

gher

val

ue o

fth

e go

ods

or a

rticl

esof

tran

spor

t hav

e be

en e

xpre

ssly

spec

ified

in th

etra

nspo

rt do

cum

ent

and

the

carr

ier h

asno

t ref

uted

thos

esp

ecifi

catio

ns, o

r(b

)whe

re th

e pa

rties

ha

ve e

xpre

ssly

agre

ed to

hig

her

max

imum

lim

its o

flia

bilit

y.5.

The

aggr

egat

eof

the

amou

ntso

fco

mpe

nsat

ion

reco

vera

ble

from

the

carr

ier,

the

actu

alca

rrie

r and

thei

r se

rvan

ts a

nd a

gent

sfo

rthe

sam

e lo

sssh

all n

otex

ceed

ov

eral

l the

lim

its o

f lia

bilit

y pr

ovid

ed fo

rin

this

arti

cle.

A

rtic

le 2

8-U

nit o

fac

coun

tTh

e un

it of

acc

ount

re

ferr

ed to

in

artic

le 2

0 of

this

Con

vent

ion

isth

eSp

ecia

l Dra

win

gR

ight

as d

efin

ed b

yth

e In

tern

atio

nal

Mon

etar

y Fu

nd. T

he

amou

nts m

entio

ned

in a

rticl

e 20

are

tobe

conv

erte

d in

to th

ena

tiona

l cur

renc

y of

a

Stat

e ac

cord

ing

toth

e va

lue

of su

ch

curr

ency

at th

e da

teof

judg

emen

t or t

he

date

agre

ed u

pon

byth

e pa

rties

. The

va

lue

of a

nat

iona

l

by th

atH

igh

Con

tract

ing

Party

.N

ever

thel

ess,

thos

e St

ates

whi

ch a

re n

ot

Mem

bers

oft

he

Inte

rnat

iona

lM

onet

ary

Fund

and

w

hose

law

doe

s not

perm

it th

eap

plic

atio

n of

the

prov

isio

ns o

f pa

ragr

aph

2 (b

) of

Arti

cle

22m

ay, a

t the

time

of ra

tific

atio

n or

acce

ssio

n or

at a

nytim

e th

erea

fter,

decl

are

that

the

limit

of li

abili

ty o

fthe

carr

ier i

n ju

dici

alpr

ocee

ding

s in

thei

rte

rrito

riesi

s fix

ed a

tasu

m o

f tw

o hu

ndre

d an

d fif

ty m

onet

ary

units

per

kilo

gram

me.

Th

is m

onet

ary

unit

corr

espo

nds t

osi

xty-

five

and

a ha

lfm

illi-

gram

mes

of g

old

of

mill

esim

al fi

nene

ssni

ne h

undr

ed. T

his

sum

may

be

con-

verte

d in

to th

e na

tiona

l cur

renc

yco

ncer

ned

inro

und

figur

es. T

he

conv

ersi

on o

fthi

ssu

m in

toth

e na

tiona

lcu

rren

cy s

hall

bem

ade

acco

rdin

g to

the

law

of t

he S

tate

co

ncer

ned.

in a

ccor

danc

ew

ithits

ow

n la

w,in

addi

-tio

n, th

e w

hole

or

part

ofth

e co

urt c

osts

and

of th

e ot

her

expe

nses

oft

he li

ti-ga

tion

incu

rred

by

the

plai

ntiff

, inc

lud-

ing

inte

rest

. The

fore

-go

ing

prov

isio

n sh

all

not a

pply

if th

e am

ount

oft

heda

mag

es a

war

ded,

ex

clud

ing

cour

t cos

tsan

d ot

her e

xpen

ses o

f th

e lit

igat

ion,

doe

sno

t exc

eed

the

sum

whi

ch th

e ca

rrie

r has

offe

red

inw

ritin

g to

the

plai

ntiff

with

in a

pe

riod

of si

x m

onth

sfr

om th

e da

teof

the

occu

rren

ce c

ausi

ngth

e da

mag

e, o

rbe

fore

the

com

-m

ence

men

t oft

he

actio

n, if

that

isla

ter.

Art

icle

23-

Conv

ersi

on o

fM

onet

ary

Uni

ts 1.

The

sum

s men

-tio

ned

in te

rms

ofSp

ecia

l Dra

win

gR

ight

in th

isC

onve

ntio

n sh

all b

ede

emed

tore

fer t

oth

e Sp

ecia

l Dra

win

gR

ight

as d

efin

ed b

yth

e In

tern

atio

nal

Mon

etar

y Fu

nd.

Con

vers

ion

ofth

e su

ms i

nto

natio

nal

curr

enci

es s

hall,

inca

se o

f jud

icia

lpr

ocee

ding

s, be

mad

eac

cord

ing

to th

eva

lue

of s

uch

curr

en-

cies

in te

rms

of th

eSp

ecia

l Dra

win

gR

ight

at t

heda

teof

the

judg

emen

t. Th

e

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 472

Part Two. Studies and reports on specific subjects 473IN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

acco

unt m

entio

ned

in

sub-

para

grap

h a)

of

para

grap

h 5

of th

isA

rticl

e, 3

0m

onet

ary

units

. Th

e m

onet

ary

unit

refe

rred

to in

the

prec

edin

g se

nten

ceco

rres

pond

s to

65.5

mill

igra

mm

es o

f gol

d of

mill

esim

al fi

nene

ss90

0'. T

he c

onve

rsio

nof

the

amou

nts

spec

ified

in th

atse

nten

ce in

toth

ena

tiona

l cur

renc

ysh

all b

em

ade

acco

rdin

g to

the

law

of th

eSt

ate

con-

cern

ed. T

he c

alcu

la-

tion

and

the

conv

er-

sion

men

tione

d in

the

prec

edin

g se

nten

ces

shal

l be

mad

e in

such

a

man

ner a

s to

expr

ess i

n th

e na

tiona

l cur

renc

y of

th

at S

tate

asf

aras

poss

ible

the

sam

e re

alva

lue

for t

he a

mou

nts

in su

b-pa

ragr

aph

a) o

fpa

ragr

aph

5 of

this

Arti

cle

as is

expr

esse

d th

ere

inun

its o

facc

ount

. St

ates

shal

lcom

mu-

nica

te to

the

depo

si-

tary

the

man

ner o

fca

lcul

atio

n or

the

resu

ltof

the

con-

vers

ion

as th

e ca

sem

ay b

e,w

hen

depo

sitin

g an

inst

ru-

men

t of r

atifi

catio

n of

the

Prot

ocol

of1

979

or o

f acc

essi

on

ther

eto

and

whe

neve

rth

ere

isa

chan

ge in

eith

er.

f) T

hede

clar

atio

n

Mon

etar

y Fu

nd a

nd

who

sela

w d

oes

not

perm

it th

eap

plic

atio

n of

the

prov

isio

nsof

para

grap

h 1

of th

isA

rticl

e m

ay,a

t the

time

of si

gnat

ure,

or

at th

e tim

e of

ratif

ica-

tion,

acc

epta

nce,

ap

prov

al o

r acc

essi

on

orat

any

time

ther

eafte

r, de

clar

e th

at th

e lim

itsof

liabi

lity

prov

ided

for

in th

isC

onve

ntio

nto

be a

pplie

d in

thei

rte

rrito

ries s

hall

befix

ed a

s: 1

2,50

0

mon

etar

y un

itspe

rpa

ckag

e or

oth

ersh

ippi

ng u

nito

r 37.

5 m

onet

ary

units

per

kilo

gram

of g

ross

wei

ght o

fthe

goo

ds.

3.Th

e m

onet

ary

unit

refe

rred

to in

par

a-gr

aph

2 of

this

Arti

cle

corr

espo

nds t

osi

xty-

five

and

a ha

lfm

illig

ram

s of

gol

d of

mill

esim

alfin

enes

sni

ne h

undr

ed. T

he

conv

ersi

on o

fthe

am

ount

sre

ferr

ed to

in

para

grap

h 2

into

the

natio

nal c

urre

ncy

isto

be m

ade

acco

rdin

g to

the

law

of t

he S

tate

co

ncer

ned.

4. T

heca

lcul

atio

nm

entio

ned

in th

e la

stse

nten

ce o

fpar

a-gr

aph

Iand

the

conv

ersi

on m

entio

ned

in p

arag

raph

3of

this

Arti

cle

is to

bem

ade

in s

uch

a m

anne

r as

to e

xpre

ss in

the

natio

nal c

urre

ncy

of

the

Con

tract

ing

Stat

e

parti

es.T

he v

alue

of

a na

tiona

l cur

renc

y,

in te

rmso

f the

Sp

ecia

l Dra

win

gR

ight

, of a

C

ontra

ctin

g St

ate

whi

ch is

am

embe

rof

the

Inte

rnat

iona

lM

onet

ary

Fund

, sh

all b

e ca

lcul

ated

in a

ccor

danc

ew

ithth

e m

etho

d of

valu

atio

n ap

plie

d by

the

Inte

rnat

iona

lM

onet

ary

Fund

,in

effe

ct o

n th

e da

te in

ques

tion,

fori

tsop

erat

ions

and

tra

nsac

tions

. The

va

lue

of a

nat

iona

lcu

rren

cy in

term

s of

the

Spec

ial D

raw

ing

right

of a

C

ontra

ctin

g St

ate

whi

ch is

not

a

mem

ber o

fthe

Inte

rnat

iona

lM

onet

ary

Fund

shal

lbe

cal

cula

ted

in a

man

ner d

eter

min

ed

by th

at S

tate

. 2.

Nev

erth

eles

s, a

Stat

ew

hich

is n

ot a

mem

ber o

fthe

Inte

rnat

iona

lM

onet

ary

Fund

and

w

hose

law

doe

s no

tpe

rmit

the

appl

ica-

tion

ofth

e pr

ovi-

sion

sof p

arag

raph

1of

this

arti

cle

may

,at

the

time

of si

gna-

ture

, rat

ifica

tion,

acce

ptan

ce, a

ppro

val

or a

cces

sion

, ora

tan

y tim

eth

erea

fter,

decl

are

that

the

limits

of l

iabi

lity

prov

ided

for i

n th

isC

onve

ntio

n to

be

Prot

ocol

to th

eC

MR

an

d w

hene

vert

here

is

a c

hang

e in

eith

er.

Art

icle

24

The

send

er m

ay,

agai

nstp

aym

ent o

f a

surc

harg

e to

beag

reed

upo

n, d

ecla

rein

the

cons

ignm

ent

note

a v

alue

fort

he

good

s exc

eedi

ng th

elim

itla

id d

own

inar

ticle

23,

par

a-gr

aph

3, a

nd in

that

ca

seth

e am

ount

of

the

decl

ared

valu

e sh

all b

e su

bstit

uted

fo

r tha

t lim

it.

Art

icle

25

1. In

cas

eof

dam

age,

th

e ca

rrie

rsha

ll be

liabl

e fo

r the

am

ount

by

whi

ch th

e go

ods

have

dim

inis

hed

in

valu

e, c

alcu

late

dby

refe

renc

e to

the

valu

eof

the

good

s fix

edin

ac

cord

ance

with

artic

le 2

3, p

ara-

grap

hs 1

, 2 a

nd 4

. 2.

The

com

pens

atio

n m

ay n

ot, h

owev

er,

exce

ed:

(a) I

fthe

who

leco

n-si

gnm

ent h

asbe

enda

mag

ed, t

he a

mou

nt

paya

ble

in th

eca

seof

tota

l los

s;

(b) I

fpar

t onl

y of

the

cons

ignm

ent h

asbe

en d

amag

ed, t

heam

ount

pay

able

inth

eca

se o

f los

s of

the

part

affe

cted

. A

rtic

le 2

6 1.

The

sen

der m

ay,

agai

nstp

aym

ent o

f a

surc

harg

e to

beag

reed

upo

n, fi

x th

e am

ount

of a

spe

cial

curr

ency

, in

term

s of

the

Spec

ial D

raw

ing

Rig

hts,

ofa

Con

tract

ing

Stat

ew

hich

is a

mem

ber

of th

eIn

tern

atio

nal

Mon

etar

yFu

nd is

tobe

cal

cula

ted

inac

cord

ance

with

the

met

hod

of e

valu

a-tio

n ap

plie

d by

the

Inte

rnat

iona

lM

onet

ary

Fund

inef

fect

at t

he d

ate

inqu

estio

n fo

rits

oper

atio

ns a

nd

trans

actio

ns.

valu

e of

a n

atio

nal

curr

ency

, in

term

s of

the

Spec

ial D

raw

ing

Rig

ht, o

f a S

tate

Pa

rtyw

hich

is a

Mem

ber o

fthe

In

tern

atio

nal

Mon

etar

y Fu

nd, s

hall

be c

alcu

late

d in

acco

rdan

ce w

ithth

e m

etho

d of

val

uatio

n ap

plie

d by

the

Inte

rnat

iona

lM

onet

ary

Fund

,in

effe

ct a

t the

dat

eof

the

judg

emen

t, fo

r its

oper

atio

ns a

nd

trans

actio

ns. T

he

valu

e of

a n

atio

nal

curr

ency

, in

term

s of

the

Spec

ial D

raw

ing

Rig

ht, o

f a S

tate

Pa

rtyw

hich

is n

ot a

M

embe

r oft

he

Inte

rnat

iona

lM

onet

ary

Fund

, sha

llbe

cal

cula

ted

in a

man

ner d

eter

min

ed

by th

at S

tate

. 2.

N

ever

thel

ess,

thos

e St

ates

whi

ch

are

not M

embe

rs o

fth

e In

tern

atio

nal

Mon

etar

y Fu

nd a

nd

who

sela

w d

oes

not

perm

it th

eap

plic

a-tio

n of

the

prov

isio

nsof

par

agra

ph 1

of t

his

artic

le m

ay, a

t the

time

of ra

tific

atio

n or

acce

ssio

n or

at a

nytim

e th

erea

fter,

decl

are

that

the

limit

of li

abili

ty o

fthe

carr

ier p

resc

ribed

inar

ticle

21

is fi

xed

at a

su

m o

f150

0000

m

onet

ary

units

per

pass

enge

r in

judi

cial

proc

eedi

ngs i

n th

eir

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 473

474 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

men

tione

d in

sub-

para

grap

h (a

)of t

his

para

grap

h, if

embo

died

in th

ebi

llof

ladi

ng, s

hall

bepr

ima

faci

e ev

iden

ce,

buts

hall

not b

ebi

ndin

g or

con

clus

ive

on th

e ca

rrie

r. g)

By

agre

emen

t be

twee

n th

e ca

rrie

r, m

aste

r or a

gent

oft

he

carr

ier a

nd th

esh

ippe

r oth

er m

axi-

mum

am

ount

stha

n th

ose

men

tione

d in

su

b-pa

ragr

aph

(a) o

fth

is p

arag

raph

may

befix

ed, p

rovi

ded

that

no m

axim

um a

mou

nt

so fi

xed

shal

lbe

less

than

the

appr

opria

te

max

imum

men

tione

d in

that

sub-

para

grap

h.

h) N

eith

erth

e ca

rrie

rno

r the

ship

shal

l be

resp

onsi

ble

inan

yev

ent f

or lo

ss o

rda

mag

e to

, or i

n co

nnec

tion

with

,go

ods i

f the

natu

re o

rva

lue

ther

eofh

as

been

kno

win

gly

mis

-st

ated

by

the

ship

per

in th

e bi

llof

ladi

ng.

asfa

r as p

ossi

ble

the

sam

e re

al v

alue

for

the

amou

nts i

nA

rticl

e 6

as is

expr

esse

d th

ere

inun

its o

facc

ount

. C

ontra

ctin

g St

ates

m

ust c

omm

unic

ate

toth

e de

posi

tary

the

man

ner o

f cal

cula

tion

purs

uant

to p

ara-

grap

h 1

ofth

isA

rticl

e, o

rthe

resu

ltof

the

conv

ersi

onm

entio

ned

in p

ara-

grap

h 3

ofth

isA

rticl

e, a

s the

case

may

be,

att

hetim

e of

si

gnat

ure

orw

hen

depo

sitin

g th

eir

inst

rum

ents

of

ratif

icat

ion,

acc

ept-

ance

, app

rova

l or

acce

ssio

n, o

r whe

n av

ailin

g th

emse

lves

of

the

optio

n pr

ovid

ed

for i

n p

arag

raph

2 o

fth

is A

rticl

ean

dw

hene

ver t

here

isa

chan

ge in

the

man

ner

of su

ch c

alcu

latio

n or

in th

e re

sult

of su

ch

conv

ersi

on.

appl

ied

in it

s ter

ri-to

ry sh

all b

efix

ed a

sfo

llow

s: w

ith re

gard

to

the

limits

prov

ided

fori

npa

ragr

aph

1 of

artic

le 1

8, to

13,

750

mon

etar

y un

itspe

rpa

ckag

e or

oth

ersh

ippi

ng u

nito

r41

.25

mon

etar

yun

its p

erki

logr

amof

gro

ssw

eigh

t of

the

good

s, an

d w

ithre

gard

toth

e lim

it pr

ovid

ed fo

rin

para

grap

h 3

ofar

ticle

18,

to 1

24

mon

etar

y un

its.

3.Th

e m

onet

ary

unit

refe

rred

to in

par

a-gr

aph

2 of

this

artic

le c

orre

spon

ds

to si

xty-

five

and

aha

lf m

illig

ram

s of

gold

of m

illes

imal

finen

ess n

ine

hund

red.

The

con

-ve

rsio

n of

the

amou

nt re

ferr

ed to

in p

arag

raph

2of

this

arti

cle

into

natio

nal c

urre

ncy

shal

l be

mad

eac

cord

ing

to th

ela

wof

the

Stat

e co

ncer

ned.

4. T

heca

lcul

atio

nm

entio

ned

in th

e la

stse

nten

ce o

fpar

a-gr

aph

1 of

this

artic

le a

nd th

e co

nver

sion

refe

rred

to in

par

agra

ph 3

of

this

arti

cle

shal

l be

mad

ein

suc

h a

man

ner a

s to

expr

ess

in th

e na

tiona

lcu

rren

cy o

fthe

C

ontra

ctin

g St

ate

asfa

ras p

ossi

ble

the

inte

rest

in d

eliv

ery

in

the

case

of l

oss

orda

mag

e or

oft

heag

reed

tim

e-lim

it be

ing

exce

eded

, by

ente

ring

such

am

ount

in

the

cons

ignm

ent

note

.2.

If a

dec

lara

tion

of

a sp

ecia

l int

eres

t in

deliv

ery

has b

een

mad

e, c

ompe

nsat

ion

for t

head

ditio

nal

loss

or d

amag

e pr

oved

may

becl

aim

ed, u

p to

the

tota

l am

ount

of t

he

inte

rest

dec

lare

d,in

depe

nden

tly o

fthe

com

pens

atio

npr

ovid

ed fo

rin

artic

les

23, 2

4 an

d 25

. A

rtic

le 2

7 1.

The

cla

iman

t sha

llbe

entit

led

to c

laim

inte

rest

on

com

pen-

satio

n pa

yabl

e.Su

chin

tere

st, c

alcu

late

d at

fiv

e pe

r cen

tum

per

annu

m, s

hall

accr

uefr

om th

e da

teon

w

hich

the

clai

m w

asse

nt in

writ

ing

to th

eca

rrie

ror,

if no

such

clai

mha

s be

en m

ade,

fr

om th

e da

teon

w

hich

lega

l pro

ceed

-in

gs w

ere

inst

itute

d.

2. W

hen

the

amou

nts

on w

hich

the

calc

u-la

tion

of th

e co

mpe

n-sa

tion

is b

ased

are

note

xpre

ssed

in th

ecu

rren

cy o

fthe

co

untr

y in

whi

ch

paym

ent i

scl

aim

ed,

conv

ersi

on sh

allb

eat

the

rate

of

exch

ange

app

licab

le

on th

e da

yan

d at

the

terr

itorie

s; 6

2500

m

onet

ary

units

per

pass

enge

r with

res-

pect

to p

arag

raph

1of

Arti

cle

22; 1

5000

m

onet

ary

units

per

pass

enge

r with

res-

pect

to p

arag

raph

2of

artic

le 2

2; a

nd 2

50

mon

etar

y un

itspe

rki

logr

amm

e w

ith re

s-pe

ctto

par

agra

ph 3

ofar

ticle

22.

Thi

sm

onet

ary

unit

corr

es-

pond

s to

sixt

y-fiv

e an

d a

half

mill

i-gr

amm

es o

f gol

d of

m

illes

imal

fine

ness

nine

hun

dred

. The

se

sum

s may

be

con-

verte

d in

to th

e na

tiona

l cur

renc

yco

ncer

ned

inro

und

figur

es. T

he c

onve

r-si

on o

fthe

se s

ums

into

nat

iona

lcur

-re

ncy

shal

l be

mad

eac

cord

ing

to th

ela

wof

the

Stat

e co

ncer

ned.

3.

The

calc

ulat

ion

men

tione

d in

the

last

sent

ence

ofp

ara-

grap

h 1

of th

is a

rticl

e an

d th

eco

nver

sion

met

hod

men

tione

d in

pa

ragr

aph

2 of

this

artic

le sh

all b

e m

ade

in su

ch m

anne

r ast

oex

pres

s in

the

natio

nal c

urre

ncy

of

the

Stat

e Pa

rty a

sfar

as p

ossi

ble

the

sam

ere

al v

alue

fort

heam

ount

s in

artic

les 2

1 an

d 22

as

wou

ld re

sult

from

the

appl

icat

ion

of th

efir

st th

ree

sent

ence

s of

par

agra

ph 1

of t

his

artic

le. S

tate

s Pa

rties

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 474

Part Two. Studies and reports on specific subjects 475IN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

sam

e re

al v

alue

for

the

amou

nts i

n ar

ticle

18

as is

expr

esse

d th

ere

inun

its o

facc

ount

. 5.

Con

tract

ing

Stat

essh

all c

omm

unic

ate

to th

e de

posi

tary

the

man

ner o

f cal

cula

-tio

n pu

rsua

nt to

the

last

sen

tenc

e of

para

grap

h 1

of th

isar

ticle

, ort

he re

sult

of th

eco

nver

sion

purs

uant

to p

ara-

grap

h 3

ofth

isar

ticle

, as t

heca

sem

ay b

e, a

tthe

time

of si

gnat

ure

orw

hen

depo

sitin

g th

eir

inst

rum

ents

of

ratif

icat

ion,

acc

ept-

ance

, app

rova

l or

acce

ssio

n, o

r whe

n av

ailin

g th

emse

lves

of

the

optio

n pr

ovid

ed fo

rin

para

grap

h 2

of th

isar

ticle

and

whe

neve

rth

ere

isa

chan

ge in

the

man

ner o

f suc

hca

lcul

atio

nor

in th

ere

sult

of su

chco

nver

sion

.

plac

e of

pay

men

t of

com

pens

atio

n.sh

all c

omm

unic

ate

toth

e de

posi

tary

the

man

ner o

f cal

cula

-tio

n pu

rsua

nt to

para

grap

h 1

of th

isar

ticle

, ort

he re

sult

of th

eco

nver

sion

in

para

grap

h 2

of th

isar

ticle

as t

he c

ase

may

be,

whe

n de

po-

sitin

g an

inst

rum

ent

of ra

tific

atio

n,

acce

ptan

ce, a

ppro

val

ofor

acc

essi

on to

this

Con

vent

ion

and

whe

neve

r the

re is

a ch

ange

in e

ither

. A

rtic

le 2

4-R

evie

w o

fLi

mits

1.

With

outp

reju

-di

ceto

the

prov

isio

nsof

artic

le 2

5of

this

Con

vent

ion

and

sub-

ject

to p

arag

raph

2

belo

w,th

e lim

its o

flia

bilit

y pr

escr

ibed

in

artic

les

21, 2

2 an

d 23

sh

allb

e re

view

ed b

yth

e D

epos

itary

at

five-

year

inte

rval

s,th

e fir

stsu

ch re

view

to ta

ke p

lace

at t

he

end

of th

e fif

th y

ear

follo

win

g th

e da

teof

entry

into

forc

e of

this

Con

vent

ion,

ori

fth

e C

onve

ntio

n do

esno

t ent

erin

to fo

rce

with

in fi

ve y

ears

of

the

date

it is

first

op

en fo

r sig

natu

re,

with

in th

e fir

st y

ear

ofits

ent

ry in

to fo

rce,

by

refe

renc

e to

an

infla

tion

fact

or w

hich

co

rres

pond

s to

the

accu

mul

ated

rate

of

infla

tion

sinc

e th

e pr

evio

us re

visi

on o

rin

the

first

inst

ance

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 475

476 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

sinc

e th

e da

te o

fen

tryin

to fo

rce

ofth

e C

onve

ntio

n. T

he

mea

sure

oft

he ra

teof

infla

tion

to b

eus

ed in

det

erm

inin

gth

e in

flatio

n fa

ctor

shal

l be

the

wei

ghte

dav

erag

eof

the

annu

alra

tes

ofin

crea

se o

rde

crea

se in

the

Con

-su

mer

Pric

e In

dice

s of

the

Stat

es w

hose

cu

rren

cies

com

pris

eth

e Sp

ecia

l Dra

win

gR

ight

men

tione

d in

para

grap

h 1

ofar

ticle

23.

2.

If

the

revi

ewre

ferr

ed to

in th

epr

eced

ing

para

grap

h co

nclu

des t

hat t

hein

flatio

n fa

ctor

has

exce

eded

10

perc

ent,

the

Dep

osita

ry sh

all

notif

y St

ates

Par

ties

of a

revi

sion

of t

he

limits

of l

iabi

lity.

Any

suc

h re

visi

onsh

all b

ecom

eef

fec-

tive

six

mon

thsa

fter

its n

otifi

catio

n to

the

Stat

es P

artie

s.If

with

in th

ree

mon

ths

afte

r its

not

ifica

tion

to th

e St

ates

Par

ties

a m

ajor

ity o

fthe

Sta

tes

Parti

es re

gist

erth

eir

disa

ppro

val,

the

revi

sion

sha

llno

t be

com

e ef

fect

ive

and

the

Dep

osita

rysh

all r

efer

the

mat

ter

to a

mee

ting

of th

e St

ates

Par

ties.

The

Dep

osita

ry s

hall

imm

edia

tely

not

ifyal

l Sta

tes

Parti

es o

fth

e co

min

g in

tofo

rce

of a

nyre

visi

on.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 476

Part Two. Studies and reports on specific subjects 477

46

INST

RU

ME

NT

HA

GU

E-V

ISB

YH

AM

BU

RG

MU

LTIM

OD

AL

CM

RC

OT

IF-C

IM 1

999

CM

NI

WA

RSA

WM

ON

TR

EA

L3.

Not

with

stan

ding

para

grap

h 1

of th

isar

ticle

, the

pro

cedu

rere

ferr

ed to

in p

ara-

grap

h 2

of th

is a

rticl

e sh

all b

e ap

plie

d at

any

time

prov

ided

that

one

-third

oft

heSt

ates

Par

ties

expr

ess

a de

sire

to th

at e

ffec

t an

d up

on c

ondi

tion

that

the

infla

tion

fact

or re

ferr

ed to

inpa

ragr

aph

1 ha

sex

ceed

ed 3

0 pe

rcen

tsi

nce

the

prev

ious

revi

sion

or s

ince

the

date

of e

ntry

into

forc

e of

this

Con

vent

ion

if th

ere

has b

een

no p

revi

ous

revi

sion

. Sub

sequ

ent

revi

ews u

sing

the

proc

edur

e de

scrib

edin

par

agra

ph 1

of th

isar

ticle

will

take

pla

ce

at fi

ve-y

eari

nter

vals

st

artin

g at

the

end

ofth

e fif

thye

arfo

llow

ing

the

date

ofth

ere

view

s und

er th

e pr

esen

t par

agra

ph.

6.8.

LOSS

OF

TH

E R

IGH

TTO

LIM

IT L

IAB

ILIT

Y

INST

RU

ME

NT

HA

GU

E-V

ISB

YH

AM

BU

RG

MU

LTIM

OD

AL

CM

RC

OT

IF-C

IM 1

999

CM

NI

WA

RSA

WM

ON

TR

EA

L6.

8 Lo

ss o

f the

rig

ht to

lim

it lia

bilit

y N

eith

er th

e ca

rrie

r no

ran

y of

the

pers

ons

men

tione

d in

artic

le 6

.3.2

isen

title

dto

lim

it th

eir

liabi

lity

as p

rovi

ded

inar

ticle

s [6

.4.2

,] 6.

6.4,

an

d 6.

7 of

this

inst

ru-

men

t, [o

ras

pro

vide

din

the

cont

ract

ofca

rria

ge,]

if th

e cl

aim

ant p

rove

s tha

t

Art

icle

4.5

(e

) Nei

ther

the

carr

ier

nor t

he sh

ip sh

all b

een

title

d to

the

bene

fit

ofth

e lim

itatio

n of

liabi

lity

prov

ided

for

in th

is p

arag

raph

ifit

is p

rove

d th

at th

e da

mag

e re

sulte

dfr

om

an a

ct o

r om

issi

on o

f th

eca

rrie

r don

e w

ithin

tent

to c

ause

dam

age,

or r

eckl

essl

yan

d w

ithkn

owle

dge

Art

icle

8 - L

osso

fri

ght t

o lim

it re

spon

sibi

lity

1.Th

e ca

rrie

r is n

ot

entit

led

to th

e be

nefit

of

the

limita

tion

oflia

bilit

y pr

ovid

ed fo

rin

Arti

cle

6 if

it is

prov

ed th

at th

e lo

ss,

dam

age

or d

elay

in

deliv

ery

resu

lted

from

an

act

or o

mis

sion

of

the

carr

ier d

one

with

the

inte

nt to

caus

e

Art

icle

21

- Los

sof

the

righ

t to

limit

liabi

lity

1. T

hem

ultim

odal

trans

port

oper

ator

isno

t ent

itled

to th

ebe

nefit

oft

he li

mita

-tio

n of

liab

ility

prov

ided

for i

n th

isC

onve

ntio

nif

it is

prov

ed th

at th

e lo

ss,

dam

age

or d

elay

in

deliv

ery

resu

lted

from

an

act o

r

Art

icle

29

1.Th

e ca

rrie

r sha

llno

t be

entit

led

toav

ail h

imse

lfof

the

prov

isio

ns o

f thi

sch

apte

r whi

chex

clud

e or

lim

it hi

slia

bilit

y or

whi

ch

shift

the

burd

en o

fpr

oof i

f the

dam

age

was

cau

sed

byhi

sw

ilful

mis

cond

uct o

rby

such

def

ault

onhi

spa

rt as

, in

acco

rdan

ce

Art

icle

36-

Loss

of

righ

t to

invo

ke th

elim

itsof

liab

ility

The

limits

of l

iabi

lity

prov

ided

fori

nA

rticl

e 15

§ 3

,A

rticl

e 19

§§

6 an

d 7,

Arti

cle

30 a

nd

Arti

cles

32 to

35

shal

lno

t app

lyif

it is

prov

ed th

at th

e lo

ssor

dam

age

resu

ltsfr

om a

n ac

t or

Art

icle

21-

Loss

of

righ

t to

limit

liabi

lity

1. T

heca

rrie

ror t

he

actu

alca

rrie

r is n

ot

entit

led

to th

e de

fenc

es a

nd li

mits

of li

abili

typr

ovid

ed

for i

n th

isC

onve

ntio

nor

in th

eco

ntra

ct o

f car

riage

if

it is

prov

ed th

at h

ehi

mse

lf ca

used

the

dam

age

by a

n ac

t or

Art

icle

25

Inth

e ca

rria

ge o

fpa

ssen

gers

and

ba

ggag

e, th

e lim

its o

flia

bilit

y sp

ecifi

ed in

A

rticl

e 22

sha

llno

tap

ply

if it

is p

rove

d th

at th

e da

mag

e re

sulte

dfr

om a

n ac

t or

om

issi

on o

f the

ca

rrie

r, hi

sser

vant

sor

age

nts,

done

with

inte

nt to

cau

seda

mag

e or

reck

less

ly

Art

icle

22-

Lim

its o

fLi

abili

ty in

Rel

atio

nto

Del

ay, B

agga

ge

and

Car

go5.

The

fore

goin

gpr

ovis

ions

of

para

grap

hs1

and

2 of

th

is A

rticl

esh

alln

ot

appl

yif

it is

pro

ved

that

the

dam

age

resu

lted

from

an

act

or o

mis

sion

of t

he

carr

ier,

its se

rvan

tsor

agen

ts, d

one

with

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 477

478 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

[the

del

ay in

del

iver

y of

,] th

e lo

ssof

, or

the

dam

age

to o

rin

conn

ectio

n w

ith th

ego

ods r

esul

ted

from

ape

rson

al a

ct o

rom

issi

onof

the

pers

oncl

aim

ing

a ri

ght t

olim

itdo

ne w

ith th

ein

tent

to c

ause

suc

hlo

ss o

rda

mag

e, o

r re

ckle

ssly

and

with

know

ledg

e th

at s

uch

loss

or

dam

age

wou

ld

prob

ably

res

ult.

that

dam

age

wou

ldpr

obab

ly re

sult.

su

ch lo

ss, d

amag

e or

dela

y, o

r rec

kles

sly

and

with

know

ledg

eth

at s

uch

loss

, dam

-ag

e or

dela

yw

ould

prob

ably

resu

lt.

2. N

otw

ithst

andi

ngth

e pr

ovis

ions

ofpa

ragr

aph

2 of

A

rticl

e 7,

a s

erva

nt o

rag

ent o

fthe

car

rieri

sno

t ent

itled

to th

ebe

nefit

oft

helim

itatio

n of

liab

ility

prov

ided

fori

nA

rticl

e 6

if it

ispr

oved

that

the

loss

, da

mag

e or

del

ay in

de

liver

y re

sulte

d fr

om

an a

ct o

r om

issi

on o

f su

ch s

erva

nt o

rage

nt,

done

with

the

inte

ntto

cau

se s

uch

loss

, da

mag

e or

dela

y, o

r re

ckle

ssly

and

with

kn

owle

dge

that

suc

h lo

ss, d

amag

e or

del

ayw

ould

pro

babl

yre

sult.

omis

sion

oft

hem

ultim

odal

tran

s-po

rt op

erat

ordo

new

ith th

e in

tent

toca

use

such

loss

,da

mag

e or

dela

y or

reck

less

ly a

nd w

ith

know

ledg

e th

at s

uch

loss

, dam

age

orde

lay

wou

ld

prob

ably

resu

lt.

2. N

otw

ithst

andi

ngpa

ragr

aph

2 of

artic

le 2

0, a

ser

vant

or a

gent

of t

hem

ultim

odal

tran

s-po

rt op

erat

or o

rot

her p

erso

n of

w

hose

ser

vice

she

mak

es u

se fo

rthe

perf

orm

ance

oft

hem

ultim

odal

tran

s-po

rt co

ntra

ct is

not

entit

led

to th

e be

nefit

oft

helim

itatio

n of

liab

ility

prov

ided

for i

n th

isC

onve

ntio

nif

it is

prov

ed th

at th

e lo

ss,

dam

age

or d

elay

in

deliv

ery

resu

lted

from

an

act o

rom

issi

on o

f suc

h se

rvan

t, ag

ent o

rot

her p

erso

n,do

new

ith th

e in

tent

toca

use

such

loss

,da

mag

e or

dela

y or

reck

less

ly a

nd w

ith

know

ledg

e th

at s

uch

loss

, dam

age

orde

lay

wou

ld

prob

ably

resu

lt.

with

the

law

of t

he

cour

t or t

ribun

alse

ised

oft

he c

ase,

isco

nsid

ered

as e

quiv

a-le

nt to

wilf

ul m

isco

n-du

ct.

2.Th

e sa

me

prov

i-si

on sh

all a

pply

if th

ew

ilful

mis

cond

uct o

rde

faul

t is c

omm

itted

by

the

agen

tsor

serv

ants

oft

he c

arrie

ror

by

any

othe

r pe

rson

s ofw

hose

se

rvic

es h

e m

akes

use

for t

he p

erfo

rm-

ance

oft

he c

arria

ge,

whe

n su

ch a

gent

s,se

rvan

ts o

r oth

er

pers

ons a

re a

ctin

gw

ithin

the

scop

e of

thei

r em

ploy

men

t.Fu

rther

mor

e, in

such

a ca

sesu

ch a

gent

s,se

rvan

ts o

r oth

er

pers

ons s

hall

not b

een

title

d to

ava

ilth

emse

lves

, with

re

gard

toth

eir

pers

onal

liab

ility

, of

the

prov

isio

ns o

f thi

sch

apte

rref

erre

d to

inpa

ragr

aph

1.

omis

sion

, whi

ch th

e ca

rrie

r has

com

mitt

edei

ther

with

inte

nt to

caus

esu

ch lo

ss o

rda

mag

e, o

r rec

kles

sly

and

with

know

ledg

eth

at s

uch

loss

or

dam

age

wou

ld

prob

ably

resu

lt.

omis

sion

, eith

er w

ithth

e in

tent

toca

use

such

dam

age,

or

reck

less

ly a

nd w

ith

know

ledg

e th

at s

uch

dam

age

wou

ld

prob

ably

resu

lt.

2. S

imila

rly,t

he

serv

ants

and

age

nts

actin

g on

beh

alf o

f th

e ca

rrie

ror t

he

actu

al c

arrie

r are

not

en

title

d to

the

defe

nces

and

lim

itsof

liab

ility

prov

ided

fo

r in

this

Con

vent

ion

or in

the

cont

ract

of c

arria

ge,

if it

ispr

oved

that

th

ey c

ause

d th

eda

mag

e in

the

man

ner d

escr

ibed

inpa

ragr

aph

1.

and

with

know

ledg

eth

at d

amag

ew

ould

prob

ably

resu

lt;

prov

ided

that

, in

the

case

of su

ch a

ct o

rom

issi

on o

f a s

erva

nt

orag

ent,

it is

als

opr

oved

that

he

was

actin

g w

ithin

the

scop

e of

his

empl

oym

ent.

inte

nt to

cau

seda

mag

e or

reck

less

lyan

d w

ithkn

owle

dge

that

dam

age

wou

ldpr

obab

ly re

sult;

pr

ovid

ed th

at in

the

case

of su

ch a

ct o

rom

issi

on o

f a s

erva

nt

orag

ent,

it is

als

opr

oved

that

such

serv

ant o

rage

nt w

as

actin

g w

ithin

the

scop

e of

its

empl

oym

ent.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 478

Part Two. Studies and reports on specific subjects 479

48

6.9.

N

OTI

CE

OF

LO

SS, D

AM

AG

E O

R D

ELA

Y

INST

RU

ME

NT

HA

GU

E-V

ISB

YH

AM

BU

RG

MU

LTIM

OD

AL

CM

RC

OT

IF-C

IM 1

999

CM

NI

WA

RSA

WM

ON

TR

EA

L6.

9 N

otic

e of

loss

,da

mag

e or

del

ay

6.9.

1 T

he c

arri

eris

pres

umed

, in

abse

nce

of p

roof

to th

e co

ntra

ry, t

o ha

vede

liver

ed th

ego

ods

acco

rdin

g to

thei

rde

scri

ptio

n in

the

cont

ract

par

ticul

ars

unle

ssno

tice

of lo

ssof

or d

amag

e to

orin

conn

ectio

n w

ith th

ego

ods,

indi

catin

g th

ege

nera

l nat

ure

of s

uch

loss

or

dam

age,

was

gi

ven

toth

e ca

rrie

r or

the

perf

orm

ing

part

y w

ho d

eliv

ered

the

good

s bef

ore

or a

t the

tim

eof

the

deliv

ery,

or,

if th

e lo

ss o

rda

mag

e is

not a

ppar

ent,

with

inth

ree

wor

king

day

saf

ter

the

deliv

ery

ofth

e go

ods.

Such

ano

tice

isno

t req

uire

din

resp

ect o

f los

sor

dam

age

that

isas

cert

aine

d in

a jo

int

insp

ectio

n of

the

good

sby

the

cons

igne

ean

d th

e ca

rrie

r or

the

perf

orm

ing

part

y ag

ains

t who

mlia

bilit

yis

bei

ng a

sser

ted.

6.9.

2 N

o co

mpe

nsat

ion

is p

ayab

le u

nder

artic

le 6

.4 u

nles

sno

tice

ofsu

ch lo

ss w

as

give

n to

the

pers

onag

ains

t who

mlia

bilit

yis

bei

ng a

sser

ted

with

in 2

1 co

nsec

utiv

eda

ys fo

llow

ing

deliv

ery

of th

e go

ods.

6.9.

3 W

hen

the

notic

ere

ferr

ed to

inth

is

Art

icle

3

6. U

nles

snot

ice

of

loss

or d

amag

e an

d th

e ge

nera

lnat

ure

ofsu

ch lo

ss o

r dam

age

begi

ven

in w

ritin

g to

the

carr

iero

r his

agen

t at t

he p

orto

fdi

scha

rge

befo

re o

r at

the

time

of th

e re

mov

al o

fthe

goo

dsin

to th

e cu

stod

yof

th

e pe

rson

ent

itled

tode

liver

y th

ereo

f und

er

the

cont

ract

of

carr

iage

, or,

if th

elo

ssor

dam

age

be n

ot

appa

rent

, with

in th

ree

days

, suc

h re

mov

al

shal

l be

prim

afa

cie

evid

ence

oft

hede

liver

y by

the

carr

ier

ofth

e go

ods a

sde

scrib

ed in

the

bill

of la

ding

. Th

e no

tice

in w

ritin

g ne

ed n

ot b

egi

ven

ifth

e st

ate

ofth

e go

ods

has,

at th

e tim

eof

thei

rrec

eipt

, bee

n th

e su

bjec

t ofj

oint

surv

eyor

insp

ectio

n.

Art

icle

19-

Not

ice

oflo

ss, d

amag

e or

del

ay1.

Unl

essn

otic

e of

lo

ss o

r dam

age,

sp

ecify

ing

the

gene

ral

natu

re o

f suc

h lo

ss o

rda

mag

e, is

give

n in

writ

ing

byth

eco

nsig

nee

toth

eca

rrie

r not

late

rtha

nth

e w

orki

ng d

ayaf

ter

the

day

whe

n th

e go

ods

wer

e ha

nded

ov

er to

the

cons

igne

e,

such

han

ding

over

ispr

ima

faci

e ev

iden

ceof

the

deliv

ery

byth

eca

rrie

r of t

he g

oods

asde

scrib

ed in

the

docu

-m

ent o

f tra

nspo

rt or

,if

nosu

ch d

ocum

ent

has

been

issu

ed, i

ngo

od c

ondi

tion.

2.

Whe

re th

e lo

ss o

rda

mag

e is

not

app

a-re

nt, t

he p

rovi

sion

sof

para

grap

h 1

of th

isA

rticl

e ap

ply

corr

espo

ndin

gly

ifno

tice

in w

ritin

g is

not g

iven

with

in15

con

secu

tive

days

afte

r the

day

whe

n th

e go

ods

wer

e ha

nded

ov

er to

the

cons

igne

e.

3. If

the

stat

e of

the

good

sat

the

time

they

wer

e ha

nded

ove

r to

the

cons

igne

e ha

sbe

en th

e su

bjec

t of a

jo

int s

urve

y or

insp

ectio

n by

the

parti

es, n

otic

ein

writ

ing

need

not

be

give

n of

loss

or

dam

age

asce

rtain

ed

durin

g su

ch su

rvey

or

insp

ectio

n.

Art

icle

24-

Not

ice

oflo

ss, d

amag

e or

dela

y 1.

Unl

essn

otic

e of

lo

ss o

r dam

age,

sp

ecify

ing

the

gene

ral n

atur

eof

such

loss

or d

amag

e,

isgi

ven

in w

ritin

g by

the

cons

igne

e to

the

mul

timod

al tr

ansp

ort

oper

ator

not

late

rth

an th

ew

orki

ngda

yaf

ter t

he d

ayw

hen

the

good

sw

ere

hand

ed o

ver t

oth

e co

nsig

nee,

suc

hha

ndin

g ov

er is

prim

a fa

cie

evid

ence

ofth

e de

liver

y by

the

mul

timod

al tr

ansp

ort

oper

ator

oft

he g

oods

as d

escr

ibed

inth

em

ultim

odal

tran

spor

t do

cum

ent.

2.W

here

the

loss

or

dam

age

is n

ot

appa

rent

, the

pro

vi-

sion

sof p

arag

raph

1of

this

arti

cle

appl

yco

rres

pond

ingl

y if

notic

e in

writ

ing

isno

t giv

en w

ithin

six

cons

ecut

ive

days

afte

r the

day

whe

n th

e go

ods

wer

e ha

nded

ove

r to

the

cons

igne

e.3.

If th

e st

ate

ofth

e go

odsa

t the

tim

e th

ey w

ere

hand

ed

over

to th

e co

nsig

nee

has b

een

the

subj

ect

of a

join

t sur

vey

orin

spec

tion

byth

e pa

rties

or t

heir

auth

oris

ed re

pres

en-

tativ

es a

t the

pla

ce o

f

Art

icle

30

1. If

the

cons

igne

e ta

kes d

eliv

ery

of th

e go

ods

with

out d

uly

chec

king

thei

r con

-di

tion

with

the

carr

ier

or w

ithou

t sen

ding

him

rese

rvat

ions

givi

ng a

gen

eral

indi

catio

n of

the

loss

or d

amag

e, n

ot la

ter

than

the

time

ofde

liver

y in

the

case

of a

ppar

ent l

oss o

rda

mag

e an

d w

ithin

se

ven

days

of

deliv

ery,

Sun

days

and

publ

ic h

olid

ays

exce

pted

, in

the

case

of lo

ss o

r dam

age

whi

ch is

not

ap

pare

nt, t

he fa

ctof

this

taki

ng d

eliv

ery

shal

l be

prim

afa

cie,

evid

ence

that

he

has

rece

ived

the

good

s in

the

cond

ition

des-

crib

ed in

the

cons

ign-

men

t not

e.In

the

case

of lo

ss o

r dam

age

whi

ch is

not

app

aren

t th

e re

serv

atio

nsre

ferr

ed to

shal

l be

mad

e in

writ

ing.

2.

Whe

n th

e co

ndi-

tion

ofth

e go

ods h

asbe

en d

uly

chec

ked

byth

e co

nsig

nee

and

the

carr

ier,

evid

ence

cont

radi

ctin

g th

ere

sult

ofth

is c

heck

-in

g sh

all o

nly

bead

mis

sibl

e in

the

case

of lo

ss o

r dam

age

whi

ch is

not

app

aren

t an

d pr

ovid

ed th

at th

eco

nsig

nee

has d

uly

sent

rese

rvat

ions

in

Art

icle

44-

Pers

ons

who

may

bri

ng a

nac

tion

agai

nst t

heca

rrie

r2.

The

right

oft

heco

nsig

nee

tobr

ing

anac

tion

shal

l be

extin

guis

hed

from

the

time

whe

n th

e pe

rson

des

igna

ted

byth

e co

nsig

nee

in

acco

rdan

ce w

ithA

rticl

e 18

§ 5

has

take

n po

sses

sion

of

the

cons

ignm

ent

note

, acc

epte

d th

e go

ods o

r ass

erte

dhi

srig

hts p

ursu

ant t

oA

rticl

e 17

§ 3

.

Art

icle

23-

Not

ice

ofda

mag

e 1.

The

acce

ptan

cew

ithou

t res

erva

tion

ofth

e go

ods b

yth

eco

nsig

nee

ispr

ima

faci

e ev

iden

ce o

fthe

de

liver

y by

the

carr

ier o

f the

goo

dsin

the

sam

e co

nditi

onan

d qu

antit

y as

whe

n th

ey w

ere

hand

ed

over

to h

im fo

r ca

rria

ge.

2. T

heca

rrie

rand

the

cons

igne

e m

ayre

quire

an

insp

ectio

n of

the

cond

ition

and

qu

antit

y of

the

good

son

del

iver

y in

the

pres

ence

of th

e tw

o pa

rties

.3.

Whe

re th

e lo

ss o

rda

mag

e to

the

good

sis

app

aren

t, an

yre

serv

atio

n on

the

part

ofth

e co

nsig

nee

mus

t be

form

ulat

edin

writ

ing

spec

ifyin

gth

e ge

nera

lnat

ure

ofth

e da

mag

e, a

t lat

est

at th

e tim

eof

deliv

ery,

unl

esst

heco

nsig

nee

and

the

carr

ier h

ave

join

tlych

ecke

d th

e co

ndi-

tion

ofth

e go

ods.

4.W

here

the

loss

or

dam

age

to th

ego

ods

is n

ot a

ppar

ent,

any

rese

rvat

ion

on th

e pa

rt of

the

cons

igne

e m

ust b

e no

tifie

d in

writ

ing

spec

ifyi

ngth

e ge

nera

lnat

ure

ofth

e da

mag

e, a

t lat

est

with

in 7

con

secu

tive

days

from

the

time

of

Art

icle

26

1. R

ecei

pt b

y th

epe

rson

ent

itled

tode

liver

y of

lugg

age

or g

oods

with

out

com

plai

nt is

prim

a fa

cie

evid

ence

that

the

sam

e ha

ve b

een

deliv

ered

in g

ood

cond

ition

and

in

acco

rdan

ce w

ithth

e do

cum

ent o

fca

rria

ge.

2.In

the

case

ofda

mag

e, th

e pe

rson

en

title

d to

del

iver

ym

ust c

ompl

ain

to th

e ca

rrie

r for

thw

ith a

fter

the

disc

over

yof

the

dam

age,

and

, at t

he

late

st, w

ithin

seve

n da

ysfr

om th

e da

teof

rece

ipt i

n th

e ca

se o

fba

ggag

e an

d fo

urte

enda

ysfr

om th

e da

teof

rece

ipt i

n th

e ca

se o

fca

rgo.

In th

e ca

seof

dela

y th

e co

mpl

aint

m

ustb

e m

ade

atth

ela

test

with

intw

enty

-on

e da

ys fr

om th

e da

te o

n w

hich

the

bagg

age

or c

argo

have

bee

n pl

aced

at

his

disp

osal

.3.

Eve

ryco

mpl

aint

m

ust b

em

ade

inw

ritin

g up

on th

e do

cum

ent o

f car

riage

or b

y se

para

teno

tice

in w

ritin

g de

spat

ched

w

ithin

the

times

afor

esai

d.

4. F

ailin

g co

mpl

aint

with

in th

e tim

esaf

ores

aid,

no

actio

nsh

all l

ie a

gain

st th

eca

rrie

r, sa

ve in

the

Art

icle

31-

Tim

ely

Not

ice

ofC

ompl

aint

s1.

Rec

eipt

by

the

pers

on e

ntitl

ed to

deliv

ery

of c

heck

ed

bagg

age

or c

argo

with

out c

ompl

aint

ispr

ima

faci

e ev

iden

ceth

at th

e sa

me

has

been

del

iver

ed in

good

con

ditio

n an

d in

acc

orda

nce

with

the

docu

men

tof

carr

iage

orw

ithth

e re

cord

pre

serv

ed b

yth

e ot

her m

eans

refe

rred

to in

pa

ragr

aph

2 of

A

rticl

e 3

and

para

grap

h 2

of

Arti

cle

4.2.

In th

e ca

seof

dam

age,

the

pers

on

entit

led

to d

eliv

ery

mus

t com

plai

n to

the

carr

ier f

orth

with

af

ter t

he d

isco

very

ofth

e da

mag

e, a

nd, a

t th

e la

test

, with

inse

ven

days

from

the

date

of r

ecei

pt in

the

case

ofc

heck

edba

ggag

e an

d fo

urte

enda

ysfr

om th

e da

teof

rece

ipt i

n th

e ca

se o

fca

rgo.

In th

e ca

seof

dela

y, th

e co

mpl

aint

m

ustb

e m

ade

atth

ela

test

with

intw

enty

-on

e da

ys fr

om th

e da

te o

n w

hich

the

bagg

age

or c

argo

have

bee

n pl

aced

at

his o

r her

dis

posa

l. 3.

Eve

ryco

mpl

aint

m

ust b

em

ade

inw

ritin

g an

d gi

ven

or

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 479

480 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

chap

ter

is g

iven

toth

e pe

rfor

min

g pa

rty

that

deliv

ered

the

good

s, it

has

the

sam

eef

fect

asif

that

not

ice

was

give

nto

the

carr

ier,

and

notic

egi

ven

to th

e ca

rrie

r ha

s th

e sa

me

effe

ct a

sno

tice

give

nto

the

perf

orm

ing

part

y th

at d

eliv

ered

th

e go

ods.

6.9.

4In

the

case

of

any

actu

al o

rap

preh

ende

d lo

ssor

dam

age,

the

part

ies t

oth

e cl

aim

or

disp

ute

mus

t giv

eal

l re

ason

able

faci

litie

s to

each

oth

er fo

r in

spec

ting

and

tally

ing

the

good

s.

4.In

the

case

of a

nyac

tual

or a

ppre

hend

edlo

ss o

r dam

age

the

carr

ier a

nd th

eco

nsig

nee

mus

t giv

e al

l rea

sona

ble

faci

litie

sto

each

oth

erfo

r ins

pect

ing

and

tally

ing

the

good

s.5.

No

com

pens

atio

n sh

all b

e pa

yabl

efo

rlo

ss re

sulti

ng fr

om

dela

y in

deliv

ery

unle

ssa

notic

e ha

sbe

en g

iven

in w

ritin

gto

the

carr

ier w

ithin

60

con

secu

tive

days

afte

r the

day

whe

n th

e go

ods

wer

e ha

nded

ov

er to

the

cons

igne

e.

6. If

the

good

shav

e be

en d

eliv

ered

by a

nac

tual

car

rier,

any

notic

e gi

ven

unde

r th

isA

rticl

e to

him

sh

all h

ave

the

sam

e ef

fect

as

if it

had

been

give

n to

the

carr

ier,

and

any

notic

e gi

ven

to th

e ca

rrie

r sha

ll ha

ve e

ffec

t as i

fgiv

en

to su

ch a

ctua

l car

rier.

7. U

nles

snot

ice

of

loss

or d

amag

e,

spec

ifyin

g th

e ge

nera

lna

ture

oft

he lo

ss o

rda

mag

e, is

give

n in

writ

ing

byth

e ca

rrie

ror

act

ual c

arrie

rto

the

ship

per n

ot la

tert

han

90 c

onse

cutiv

e da

ysaf

ter t

he o

ccur

renc

e of

such

loss

or

dam

age

or a

fter t

he

deliv

ery

ofth

e go

ods

in a

ccor

danc

ew

ithpa

ragr

aph

2 of

A

rticl

e 4,

whi

chev

eris

late

r, th

e fa

ilure

togi

ve su

ch n

otic

eis

prim

a fa

cie

evid

ence

deliv

ery,

not

ice

inw

ritin

gne

ed n

ot b

egi

ven

of lo

ss o

rda

mag

e as

certa

ined

du

ring

such

surv

ey o

r in

spec

tion.

4.

In th

e ca

seof

any

actu

al o

r app

re-

hend

ed lo

ss o

r da

mag

e th

e m

ulti-

mod

al tr

ansp

ort

oper

ator

and

the

cons

igne

e sh

all g

ive

all r

easo

nabl

e fa

cili-

ties t

o ea

ch o

ther

for

insp

ectin

g an

dta

llyin

g th

e go

ods.

5. N

o co

mpe

nsat

ion

shal

l be

paya

ble

for

loss

resu

lting

from

de

lay

inde

liver

yun

less

not

ice

has

been

giv

en in

writ

ing

to th

e m

ultim

odal

trans

port

oper

ator

with

in 6

0 co

nsec

u-tiv

e da

ysaf

ter t

he

day

whe

n th

e go

ods

wer

e de

liver

ed b

yha

ndin

gov

er to

the

cons

igne

e or

whe

nth

e co

nsig

nee

has

been

not

ified

that

the

good

s hav

e be

ende

liver

ed in

acco

rdan

ce w

ithpa

ragr

aph

2 (b

) (ii)

or (i

ii) o

f arti

cle

14.

6. U

nles

snot

ice

of

loss

or d

amag

e,

spec

ifyin

g th

e ge

nera

l nat

ure

of th

elo

ss o

r dam

age,

isgi

ven

in w

ritin

g by

the

mul

timod

al

trans

port

oper

ator

toth

e co

nsig

nor n

otla

tert

han

90 c

onse

-cu

tive

days

afte

r the

oc

curr

ence

of s

uch

loss

or d

amag

e or

writ

ing

to th

e ca

rrie

rw

ithin

seve

n da

ys,

Sund

ays a

nd p

ublic

holid

ays

exce

pted

,fr

om th

e da

teof

chec

king

. 3.

No

com

pens

atio

n sh

all b

e pa

yabl

efo

rde

lay

inde

liver

yun

less

are

serv

atio

nha

s bee

nse

nt in

writ

ing

to th

e ca

rrie

r,w

ithin

twen

ty-o

neda

ysfr

om th

e tim

e th

at th

e go

ods

wer

epl

aced

at t

he d

ispo

sal

of th

eco

nsig

nee.

4.In

cal

cula

ting

the

time-

limits

pro

vide

dfo

r in

this

artic

le th

eda

te o

f del

iver

y, o

rth

e da

teof

che

ckin

g,or

the

date

whe

n th

e go

ods

wer

e pl

aced

at

the

disp

osal

of t

heco

nsig

nee,

as t

he

case

may

be,

shal

lno

t be

incl

uded

.5.

The

carr

ier a

nd th

e co

nsig

nee

shal

l giv

eea

ch o

ther

eve

ryre

ason

able

faci

lity

for m

akin

gth

ere

quis

itein

vest

igat

ions

and

ch

ecks

.

deliv

ery;

in su

chca

se, t

hein

jure

d pa

rty sh

all s

how

that

the

dam

age

was

caus

ed w

hile

the

good

s w

ere

in th

ech

arge

oft

he c

arrie

r.5.

No

com

pens

atio

n sh

all b

e pa

yabl

efo

rda

mag

e re

sulti

ng

from

del

ay in

deliv

ery

unle

ss th

eco

nsig

nee

can

prov

eth

at h

ega

ve n

otic

eof

the

dela

y to

the

carr

ier w

ithin

21 c

onse

cutiv

e da

ysfo

llow

ing

deliv

ery

ofth

e go

ods

and

that

th

is n

otic

e re

ache

d th

e ca

rrie

r.

case

of f

raud

on

his

part.

di

spat

ched

with

in th

etim

es a

fore

said

.4.

If n

o co

mpl

aint

ism

ade

with

in th

etim

es a

fore

said

, no

actio

n sh

all l

ieag

ains

t the

car

rier,

save

in th

e ca

seof

frau

d on

its p

art.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 480

Part Two. Studies and reports on specific subjects 481IN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

that

the

carr

ier o

rthe

ac

tual

car

rier h

as

sust

aine

d no

loss

orda

mag

e du

e to

the

faul

t or n

egle

ct o

fthe

sh

ippe

r, hi

s se

rvan

tsor

age

nts.

8.Fo

r the

pur

pose

ofth

is A

rticl

e,no

tice

give

n to

a pe

rson

ac

ting

on th

e ca

rrie

r'sor

the

actu

al c

arrie

rs'

beha

lf, in

clud

ing

the

mas

ter o

r the

off

icer

in

cha

rge

of th

e sh

ip,

or to

ape

rson

act

ing

on th

e sh

ippe

r'sbe

half

is d

eem

ed to

have

bee

n gi

ven

toth

e ca

rrie

r, to

the

actu

al c

arrie

r ort

oth

esh

ippe

r, re

spec

tivel

y.

afte

r the

del

iver

yof

the

good

sin

acco

rdan

ce w

ithpa

ragr

aph

2 (b

) of

artic

le 1

4,w

hich

ever

is la

ter,

the

failu

reto

give

such

not

ice

ispr

ima

faci

e ev

iden

ceth

at th

e m

ultim

odal

trans

port

oper

ator

has s

usta

ined

no

loss

orda

mag

e du

e to

the

faul

t or n

egle

ct o

fthe

co

nsig

nor,

his

serv

ants

or a

gent

s. 7.

If a

ny o

fthe

not

ice

perio

ds p

rovi

ded

for

in p

arag

raph

s 2,5

and

6

ofth

is a

rticl

e te

rmin

ates

on

a da

yw

hich

is n

ot a

w

orki

ng d

ayat

the

plac

e of

del

iver

y,

such

perio

d sh

all b

eex

tend

ed u

ntil

the

next

wor

king

day

.8.

For t

he p

urpo

seof

this

arti

cle,

not

ice

give

n to

a pe

rson

ac

ting

on th

e m

ulti-

mod

al tr

ansp

ort

oper

ator

's be

half,

in

clud

ing

any

pers

on

of w

hose

ser

vice

she

mak

es u

se a

tthe

plac

e of

del

iver

y, o

rto

a p

erso

n ac

ting

on

the

cons

igno

r'sbe

half,

sha

llbe

deem

ed to

hav

e be

engi

ven

to th

em

ulti-

mod

al tr

ansp

ort

oper

ator

, or t

o th

e co

nsig

nor,

res-

pect

ivel

y.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 481

482 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIV6.

10.

NO

N-C

ON

TRA

CT

UA

L C

LAIM

S

INST

RU

ME

NT

HA

GU

E-V

ISB

YH

AM

BU

RG

MU

LTIM

OD

AL

CM

RC

OT

IF-C

IM 1

999

CM

NI

WA

RSA

WM

ON

TR

EA

L6.

10-N

on-c

ontr

actu

al

clai

ms

The

def

ence

san

d lim

its o

f lia

bilit

y pr

ovid

ed fo

r in

this

inst

rum

ent a

nd th

e re

spon

sibi

litie

sim

pose

d by

this

inst

rum

ent a

pply

inan

y ac

tion

agai

nst t

he

carr

ier

or a

per

form

-in

g pa

rty

for

loss

of,

for

dam

age

to, o

r in

conn

ectio

n w

ith th

ego

odsc

over

ed b

y a

cont

ract

ofc

arri

age,

whe

ther

the

actio

n is

foun

ded

in c

ontr

act,

into

rt, o

r ot

herw

ise.

Art

icle

4 b

is1.

The

defe

nces

and

lim

its o

f lia

bilit

ypr

ovid

ed fo

r in

this

Con

vent

ion

shal

lap

ply

in a

ny a

ctio

n ag

ains

t the

car

rier i

n re

spec

t of l

oss o

rda

mag

e to

good

sco

vere

d by

a c

ontra

ct

of c

arria

gew

heth

er

the

actio

n be

foun

ded

in c

ontra

ct o

r in

tort.

Art

icle

7-A

pplic

atio

nto

non

-con

trac

tual

clai

ms

1.Th

e de

fenc

es a

nd

limits

of l

iabi

lity

prov

ided

for i

n th

isC

onve

ntio

n ap

ply

inan

y ac

tion

agai

nst t

he

carr

ieri

n re

spec

t of

loss

or d

amag

e to

the

good

s cov

ered

by

the

cont

ract

of c

arria

ge

by s

ea, a

sw

ella

sof

dela

y in

deliv

ery

whe

ther

the

actio

n is

foun

ded

in c

ontra

ct,

in to

rt or

oth

erw

ise.

2. If

such

act

ion

isbr

ough

t aga

inst

a

serv

ant o

r age

nt o

f the

ca

rrie

r, su

ch se

rvan

t or

age

nt, i

f he

prov

esth

at h

eac

ted

with

inth

e sc

ope

of h

isem

ploy

men

t, is

entit

led

to a

vail

him

self

ofth

ede

fenc

es a

nd li

mits

of

liabi

lity

whi

chth

e ca

rrie

r ise

ntitl

ed to

invo

ke u

nder

this

Con

vent

ion.

3.

Exc

ept a

spro

vide

d in

Arti

cle

8, th

eag

greg

ate

ofth

eam

ount

s rec

over

able

fr

om th

e ca

rrie

r and

fr

om a

ny p

erso

ns

refe

rred

to in

par

a-gr

aph

2 of

this

Arti

cle

shal

l not

exce

ed th

elim

its o

f lia

bilit

ypr

ovid

ed fo

r in

this

Con

vent

ion.

Art

icle

20-

Non

-co

ntra

ctua

l lia

bilit

y 1.

The

defe

nces

and

lim

its o

f lia

bilit

ypr

ovid

ed fo

r in

this

Con

vent

ion

shal

lap

ply

in a

ny a

ctio

n ag

ains

t the

mul

ti-m

odal

tran

spor

t op

erat

orin

resp

ect o

flo

ss re

sulti

ng fr

om

loss

of o

r dam

age

toth

e go

ods,

as w

ell a

sfr

om d

elay

in d

eli-

very

, whe

ther

the

actio

n be

foun

ded

inco

ntra

ct, i

n to

rtor

othe

rwis

e.

Art

icle

28

1. In

case

s w

here

, un

der t

hela

w a

ppli-

cabl

e, lo

ss, d

amag

e or

del

ay a

risin

g ou

t of

car

riage

und

er th

isC

onve

ntio

n gi

ves r

ise

to a

n ex

tra-

cont

ract

ual c

laim

,the

ca

rrie

r may

ava

ilhi

mse

lf of

the

prov

isio

ns o

f thi

sC

onve

ntio

n w

hich

excl

ude

his

liabi

lity

ofw

hich

fix

or li

mit

the

com

pens

atio

ndu

e.2.

Inca

ses

whe

re th

e ex

tra-c

ontra

ctua

llia

bilit

y fo

r los

s, da

mag

e or

dela

y of

one

of th

e pe

rson

sfor

w

hom

the

carr

ier i

sre

spon

sibl

e un

der t

hete

rms

of a

rticl

e 3

is in

issu

e, su

ch p

erso

nm

ay a

lso

avai

lhi

mse

lf of

the

prov

isio

ns o

f thi

sC

onve

ntio

n w

hich

excl

ude

the

liabi

lity

ofth

e ca

rrie

r or

whi

ch fi

x or

lim

it th

eco

mpe

nsat

ion

due.

Art

icle

41-

Oth

erac

tions

1.In

all

case

s w

here

thes

e U

nifo

rm R

ules

shal

l app

ly,a

nyac

tion

in re

spec

t of

liabi

lity,

on

wha

teve

rgr

ound

s, m

aybe

brou

ght a

gain

st th

eca

rrie

r onl

y su

bjec

t to

the

cond

ition

s and

lim

itatio

ns la

iddo

wn

in th

ese

Uni

form

Rul

es.

2.Th

e sa

me

shal

lap

ply

to a

ny a

ctio

n br

ough

t aga

inst

the

serv

ants

or o

ther

pe

rson

s for

who

mth

e ca

rrie

r isl

iabl

e pu

rsua

nt to

Arti

cle

40.

Art

icle

22-

App

licat

ion

ofth

e de

fenc

es a

nd li

mits

of li

abili

ty

The

defe

nces

and

lim

its o

f lia

bilit

ypr

ovid

ed fo

r in

this

Con

vent

ion

or in

the

cont

ract

of c

arria

ge

appl

y in

any

act

ion

inre

spec

t of l

oss o

rda

mag

e to

or d

elay

inde

liver

y of

the

good

sco

vere

d by

the

cont

ract

of c

arria

ge,

whe

ther

the

actio

n is

foun

ded

in c

ontra

ct,

in to

rt or

oth

erw

ise.

Art

icle

24

1.In

the

carr

iage

ofpa

ssen

gers

and

ba

ggag

e, a

nyac

tion

for d

amag

es,

how

ever

foun

ded,

can

only

be

brou

ght

subj

ect t

o th

eco

ndi-

tions

and

limits

set

ou

t in

this

Con

vent

ion,

with

out

prej

udic

e to

the

ques

tion

as to

who

ar

e th

e pe

rson

s w

ho

have

the

right

tobr

ing

suit

and

wha

t ar

e th

eirr

espe

ctiv

e rig

hts.

Art

icle

29-

Bas

is o

fC

laim

sIn

the

carr

iage

of

pass

enge

rs, b

agga

ge

and

carg

o, a

ny a

ctio

n fo

r dam

ages

,ho

wev

er fo

unde

d,w

heth

er u

nder

this

Con

vent

ion

or in

co

ntra

ct o

r in

tort

orot

herw

ise,

can

onl

ybe

bro

ught

subj

ect t

oth

e co

nditi

onsa

nd

such

lim

its o

f lia

bilit

yas

are

set

out

in

this

Con

vent

ion

with

out p

reju

dice

toth

e qu

estio

n as

tow

ho a

re th

e pe

rson

sw

ho h

ave

the

right

tobr

ing

suit

and

wha

t ar

e th

eirr

espe

ctiv

e rig

hts.

Inan

y su

chac

tion,

pun

itive

, ex

empl

ary

or a

nyot

her n

on-

com

pens

ator

yda

mag

essh

all n

ot b

ere

cove

rabl

e.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 482

Part Two. Studies and reports on specific subjects 483

52

LIV

E A

NIM

ALS

INST

RU

ME

NT

HA

GU

E-V

ISB

YH

AM

BU

RG

MU

LTIM

OD

AL

CM

RC

OT

IF-C

IM 1

999

CM

NI

WA

RSA

WM

ON

TR

EA

L17

-Lim

its o

fco

ntra

ctua

l fre

edom

17.2

Not

with

stan

ding

th

e pr

ovis

ions

ofch

apte

rs 5

and

6 of

this

inst

rum

ent,

both

the

carr

ier

and

any

perf

orm

ing

part

ym

ayby

the

term

s of

the

cont

ract

ofc

arri

age

excl

ude

orlim

it th

eir

liabi

lity

for

loss

or

dam

age

to th

ego

odsi

f(a

)the

goo

ds a

re li

ve

anim

als,

or

(b)t

he c

hara

cter

or

cond

ition

of t

he g

oods

or th

e ci

rcum

stan

ces

and

term

s and

con

di-

tions

und

erw

hich

the

carr

iage

is to

be

perf

orm

ed a

re s

uch

asre

ason

ably

to ju

stify

asp

ecia

l agr

eem

ent,

prov

ided

that

ord

inar

yco

mm

erci

al s

hipm

ents

mad

ein

the

ordi

nary

cour

se o

ftra

de a

re n

otco

ncer

ned

and

none

gotia

ble

tran

spor

tdo

cum

ent o

rne

gotia

ble

elec

tron

icre

cord

is o

ris

to b

eis

sued

for

the

carr

iage

of th

e go

ods.

Art

icle

1

c) “

Goo

ds”

incl

udes

good

s, w

ares

,mer

-ch

andi

ses,

and

artic

les

of e

very

kin

d w

hats

oeve

r exc

ept

live

anim

alsa

nd

carg

o w

hich

by

the

cont

ract

of c

arria

ge is

stat

ed a

sbei

ngca

rrie

d on

dec

k an

d is

so

car

ried.

Art

icle

5-B

asis

of

liabi

lity

5. W

ith re

spec

t to

live

anim

als,

the

carr

ier i

sno

t lia

ble

for l

oss,

da

mag

e or

del

ay in

de

liver

y re

sulti

ngfr

om a

nysp

ecia

l ris

ks

inhe

rent

in th

at k

ind

of c

arria

ge. I

f the

carr

ier p

rove

stha

t he

has

com

plie

d w

ith

any

spec

iali

nstru

c-tio

nsgi

ven

to h

im b

yth

e sh

ippe

r res

pect

ing

the

anim

als a

nd th

at,

in th

e ci

rcum

stan

ces

of th

eca

se, t

he lo

ss,

dam

age

or d

elay

in

deliv

ery

coul

dbe

attri

bute

d to

suc

hris

ks, i

t is p

resu

med

that

the

loss

, dam

age

orde

lay

in d

eliv

ery

was

so

caus

ed,u

nles

sth

ere

ispr

oof t

hat a

llor

a p

art o

fthe

loss

, da

mag

e or

del

ay in

de

liver

y re

sulte

d fr

om

faul

t or n

egle

ct o

nth

epa

rt of

the

carr

ier,

his

serv

ants

or a

gent

s.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 483

484 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVC

HA

PT

ER

7 –

OB

LIG

AT

ION

S O

FT

HE

SH

IPP

ER

INST

RU

ME

NT

HA

GU

E-V

ISB

YH

AM

BU

RG

MU

LTIM

OD

AL

CM

RC

OT

IF-C

IM 1

999

CM

NI

WA

RSA

WM

ON

TR

EA

LA

rtic

le 7

-Obl

igat

ions

of

the

ship

per

7.1

Subj

ect t

oth

epr

ovis

ions

oft

heco

ntra

ct o

fcar

riag

e,th

e sh

ippe

rsh

all

deliv

er th

ego

ods

read

yfo

r ca

rria

ge a

ndin

suc

h co

nditi

on th

atth

ey w

ill w

ithst

and

the

inte

nded

car

riag

e,in

clud

ing

thei

rlo

adin

g, h

andl

ing,

stow

age,

lash

ing

and

secu

ring

, and

disc

harg

e, a

nd th

atth

ey w

ill n

ot c

ause

in

jury

or

dam

age.

In

the

even

tthe

goo

ds a

re

deliv

ered

in o

r on

a co

ntai

ner

or tr

aile

r pa

cked

by

the

ship

per,

the

ship

per

mus

t sto

w,

lash

and

sec

ure

the

good

s in

or o

nth

e co

ntai

ner

or tr

aile

r in

such

aw

ay th

atth

e go

ods

will

with

stan

dth

e in

tend

edca

rria

ge,

incl

udin

g lo

adin

g,ha

ndlin

g an

d di

s-ch

arge

of t

he c

onta

iner

or

trai

ler,

and

that

they

will

not

cau

se

inju

ry o

r da

mag

e.7.

2T

he c

arri

er s

hall

prov

ide

to th

e sh

ippe

r,on

its r

eque

st, s

uch

info

rmat

ion

as is

with

in th

eca

rrie

r’s

know

ledg

e, a

ndin

stru

ctio

ns, t

hata

rere

ason

ably

nec

essa

ry

or o

f im

port

ance

toth

e sh

ippe

r in

ord

erto

co

mpl

y w

ith it

s ob

ligat

ions

und

erar

ticle

7.1

.

Art

icle

3(5

)Th

e sh

ippe

r sha

llbe

deem

ed to

hav

e gu

aran

teed

to th

e ca

rrie

rthe

acc

urac

y at

th

e tim

e of

ship

men

t of

the

mar

ks, n

umbe

r,qu

antit

y an

d w

eigh

t, as

furn

ishe

dby

him

,an

dth

e sh

ippe

r sha

llin

dem

nify

the

carr

ier

agai

nst a

lllo

ss,

dam

ages

and

expe

nses

aris

ing

orre

sulti

ng fr

om in

ac-

cura

cies

in su

ch

parti

cula

rs. T

he ri

ght

of th

eca

rrie

r to

such

inde

mni

tysh

all i

n no

way

lim

it hi

sres

pon-

sibi

lity

and

liabi

lity

unde

rthe

con

tract

of

carr

iage

to a

ny p

erso

n ot

her t

han

the

ship

per.

Art

icle

4(3

)Th

e sh

ippe

r sha

llno

tbe

resp

onsi

ble

for

loss

or d

amag

e su

s-ta

ined

by

the

carr

ier

or th

esh

ip a

risin

gor

resu

lting

from

any

caus

e w

ithou

t the

act

, fa

ult o

r neg

lect

oft

he

ship

per,

his a

gent

sor

his s

erva

nts.

Art

icle

4(6

)G

oods

of a

n in

flam

-m

able

, exp

losi

ve o

rda

nger

ous n

atur

e to

the

ship

men

t whe

reof

th

eca

rrie

r, m

aste

r or

agen

t oft

he c

arrie

rha

s no

t con

sent

ed

with

kno

wle

dge

ofth

eir n

atur

e an

d ch

arac

ter,

may

at a

nytim

e be

fore

disc

harg

ebe

land

ed a

t any

Art

icle

12-

Gen

eral

rule

The

ship

per i

s not

liabl

e fo

r los

s sus

-ta

ined

by

the

carr

ier

orth

e ac

tual

car

rier,

or fo

r dam

age

sus-

tain

ed b

y th

e sh

ip,

unle

sssu

ch lo

ss o

rda

mag

e w

as c

ause

d by

the

faul

t orn

egle

ct

of th

esh

ippe

r, hi

sse

rvan

ts o

r age

nts.

Nor

is a

nyse

rvan

t or

agen

t oft

he s

hipp

erlia

ble

for s

uch

loss

or

dam

age

unle

ss th

elo

ss o

r dam

age

was

caus

ed b

y fa

ult o

rne

glec

t on

his

part.

A

rtic

le 1

3-Sp

ecia

l ru

les o

nda

nger

ous

good

s1.

The

ship

per m

ust

mar

k or

labe

l in

a su

itabl

e m

anne

r da

nger

ous

good

s as

dang

erou

s.2.

Whe

re th

e sh

ippe

rha

nds o

ver d

ange

rous

good

s to

the

carr

ier o

ran

act

ual c

arrie

r, as

the

case

may

be,

the

ship

per m

usti

nfor

mhi

m o

fthe

dan

gero

usch

arac

ter o

fthe

goo

dsan

d, if

nec

essa

ry, o

fth

e pr

ecau

tions

to b

eta

ken.

Ifth

e sh

ippe

rfa

ils to

do

so a

ndsu

chca

rrie

r ora

ctua

lca

rrie

r doe

s not

ot

herw

ise

have

know

ledg

e of

thei

r da

nger

ous

char

acte

r: (a

) The

ship

per i

slia

ble

to th

eca

rrie

ran

d an

y ac

tual

carr

ier

Art

icle

12-

Gua

rant

ee b

y th

e co

nsig

nor

1. T

heco

nsig

nor

shal

l be

deem

ed to

have

gua

rant

eed

toth

e m

ultim

odal

tran

s-po

rt op

erat

orth

e ac

cura

cy, a

t the

tim

e th

e go

ods

wer

e ta

ken

in c

harg

e by

the

mul

timod

al tr

ansp

ort

oper

ator

, of p

artic

u-la

rsre

latin

g to

the

gene

ral n

atur

eof

the

good

s, th

eirm

arks

,nu

mbe

r, w

eigh

t and

qu

antit

y an

d,if

appl

icab

le, t

o th

eda

nger

ous

char

acte

rof

the

good

s, as

furn

ishe

d by

him

for

inse

rtion

in th

em

ultim

odal

tran

spor

t do

cum

ent.

2. T

he c

onsi

gnor

shal

l ind

emni

fy th

e m

ultim

odal

tran

spor

t op

erat

or a

gain

st lo

ssre

sulti

ng fr

om

inac

cura

cies

inor

inad

equa

cies

oft

he

parti

cula

rs re

ferr

ed

to in

par

agra

ph 1

of

this

arti

cle.

The

co

nsig

nor s

hall

rem

ain

liabl

e ev

en if

the

mul

timod

al

trans

port

docu

men

t ha

s bee

n tra

nsfe

rred

by

him

. The

righ

t of

the

mul

timod

al

trans

port

oper

ator

tosu

ch in

dem

nity

shal

lin

no

way

limit

his

liabi

lity

unde

r the

mul

timod

al tr

ansp

ort

cont

ract

to a

ny

Art

icle

7

1. T

hese

nder

sha

llbe

resp

onsi

ble

for a

llex

pens

es, l

ossa

ndda

mag

e su

stai

ned

byth

eca

rrie

r by

reas

on

of th

e in

accu

racy

orin

adeq

uacy

of:

(a) T

he p

artic

ular

s sp

ecifi

ed in

arti

cle

6,pa

ragr

aph

1, (b

), (d

),(e

), (f

), (g

), (h

)and

(j)

;(b

) The

par

ticul

ars

spec

ified

in a

rticl

e 6,

para

grap

h 2;

(c

) Any

oth

er p

arti-

cula

rs o

rins

truct

ions

give

n by

him

toen

able

the

cons

ign-

men

t not

eto

be

mad

eou

t or f

orth

e pu

rpos

e of

thei

r bei

ng e

nter

ed

ther

ein.

2.

If, a

t the

requ

est o

fth

ese

nder

, the

car

rier

ente

rs in

the

cons

ign-

men

tnot

e th

e pa

rtic-

ular

s ref

erre

d to

inpa

ragr

aph

1 of

this

artic

le, h

e sh

all b

ede

emed

, unl

ess

the

cont

rary

is p

rove

d, to

have

don

e so

on

beha

lf of

the

send

er.

3. If

the

cons

ignm

ent

note

doe

s not

con

tain

the

stat

emen

t spe

ci-

fied

in a

rticl

e 6,

para

grap

h 1

(k),

the

carr

ier s

hall

be li

able

for a

ll ex

pens

es, l

oss

and

dam

age

sust

aine

d th

roug

h su

chom

issi

on b

y th

e pe

rson

ent

itled

todi

spos

e of

the

good

s.

Art

icle

8-

Res

pons

ibili

ty fo

rpa

rtic

ular

s ent

ered

on

the

cons

ignm

ent

note

1. T

heco

nsig

nor

shal

l be

resp

onsi

ble

for a

llco

sts,

loss

or

dam

age

sust

aine

d by

the

carr

ier b

y re

ason

of a)

the

entri

es m

ade

by th

e co

nsig

nor i

nth

e co

nsig

nmen

t not

ebe

ing

irreg

ular

,in

corr

ect,

inco

mpl

ete

or m

ade

else

whe

re

than

in th

e al

lotte

d sp

ace,

or

b) th

eco

nsig

nor

omitt

ing

tom

ake

the

entri

es p

resc

ribed

by

RID

.2.

If,a

t the

requ

est o

fth

e co

nsig

nor,

the

carr

ier m

akes

ent

ries

on th

e co

nsig

nmen

tno

te, h

e sh

all b

ede

emed

, unl

ess

the

cont

rary

is p

rove

d, to

have

don

e so

on

beha

lf of

the

cons

igno

r.3.

If th

e co

nsig

nmen

t no

te d

oes n

ot c

onta

inth

e st

atem

ent

prov

ided

fori

nA

rticl

e 7

§ 1,

lette

rp)

, the

car

rier s

hall

belia

ble

for a

ll co

sts,

loss

or d

amag

e su

stai

ned

thro

ugh

such

omis

sion

by

the

pers

on e

ntitl

ed.

Art

icle

9-D

ange

rous

good

sIf

the

cons

igno

r has

faile

d to

mak

e th

e

Art

icle

6-O

blig

atio

nsof

th

e sh

ippe

r1.

The

shi

pper

sha

ll be

requ

ired

to p

ay th

e am

ount

s due

und

er th

eco

ntra

ct o

f car

riage

. 2.

The

shi

pper

sha

llfu

rnis

h th

e ca

rrie

r in

writ

ing,

bef

ore

the

good

s ar

e ha

nded

ove

r,w

ith th

efo

llow

ing

parti

cula

rs c

once

rnin

gth

ego

ods t

o be

car

ried:

(a) D

imen

sion

s,nu

mbe

ror

wei

ght a

ndst

owag

e fa

ctor

of t

he g

oods

; (b

) Mar

ks n

eces

sary

for

iden

tific

atio

n of

the

good

s;(c

) Nat

ure,

cha

ract

eris

-tic

s an

d pr

oper

ties

ofth

e go

ods;

(d) I

nstru

ctio

nsco

n-ce

rnin

g th

e C

usto

ms o

r ad

min

istra

tive

regu

latio

ns a

pply

ing

toth

e go

ods;

and

(e

) Oth

er n

eces

sary

parti

cula

rs to

been

tere

din

the

trans

port

docu

men

t.Th

e sh

ippe

r sha

llal

soha

ndov

er to

the

carr

ier,

whe

n th

e go

ods a

re

hand

ed o

ver,

all t

here

quire

d ac

com

pany

ing

docu

men

ts.

3. If

the

natu

re o

f the

good

s so

requ

ires,

the

ship

pers

hall,

bea

ring

inm

ind

the

agre

ed

trans

port

oper

atio

n,pa

ckth

e go

odsi

n su

ch a

w

ay a

sto

prev

ent t

heir

loss

or d

amag

e be

twee

nth

e tim

e th

eyar

eta

ken

over

by

the

carr

iera

nd

thei

r del

iver

y an

d so

as

Art

icle

10

1. T

heco

nsig

nor i

sre

spon

sibl

e fo

r the

co

rrec

tnes

s of

the

parti

cula

rs a

nd

stat

emen

ts re

latin

g to

the

carg

o in

serte

d by

him

or o

n hi

sbe

half

in th

eai

rw

aybi

ll or

furn

ishe

d by

him

or o

n hi

sbe

half

to th

eca

rrie

rfo

r ins

ertio

n in

the

rece

ipt f

orth

e ca

rgo

or fo

r ins

ertio

n in

th

e re

cord

pre

serv

ed

byth

e ot

her m

eans

refe

rred

to in

pa

ragr

aph

2 of

artic

le 5

. 2.

The

con

sign

orsh

all i

ndem

nify

the

carr

ier a

gain

stal

lda

mag

e su

ffer

ed b

yhi

m, o

r by

any

othe

r pe

rson

tow

hom

the

carr

ier i

slia

ble,

by

reas

on o

f the

irre

-gu

larit

y, in

corr

ect-

ness

or i

ncom

plet

e-ne

ss o

fthe

parti

cula

rs a

nd

stat

emen

tsfu

rnis

hed

byth

eco

nsig

nor o

r on

his

beha

lf.3.

Subj

ect t

o th

epr

ovis

ions

of p

ara-

grap

hs 1

and

2 o

f th

is a

rticl

e, th

eca

rrie

r sha

llin

dem

nify

the

cons

igno

r aga

inst

all d

amag

e su

ffer

ed

byhi

m, o

r by

any

othe

r per

son

tow

hom

the

cons

igno

ris

liab

le, b

y re

ason

Art

icle

10-

Res

pons

ibili

ty fo

rPa

rticu

lars

of

Doc

umen

tatio

n1.

The

cons

igno

r is

resp

onsi

ble

for t

he

corr

ectn

ess

ofth

epa

rticu

lars

and

st

atem

ents

rela

ting

to th

e ca

rgo

inse

rted

byit

or o

n its

beh

alf

in th

e ai

rway

bill

orfu

rnis

hed

byit

or o

nits

beh

alf t

o th

eca

rrie

r for

inse

rtion

in

the

carg

o re

ceip

t or

for i

nser

tion

in

the

reco

rd p

rese

rved

by

the

othe

r mea

nsre

ferr

ed to

in

para

grap

h 2

ofar

ticle

4. T

he

fore

goin

g sh

all a

lso

appl

y w

here

the

pers

on a

ctin

g on

be

half

ofth

eco

nsig

nor i

s als

oth

eag

ent o

fthe

car

rier.

2. T

heco

nsig

nor

shal

l ind

emni

fy th

e ca

rrie

r aga

inst

all

dam

age

suff

ered

by

it, o

rby

any

othe

r pe

rson

tow

hom

the

carr

ier i

slia

ble,

by

reas

on o

f the

irre

-gu

larit

y, in

corr

ect-

ness

or i

ncom

plet

e-ne

ssof

the

parti

cu-

lars

and

stat

emen

ts

furn

ishe

d by

the

cons

igno

r or o

n its

beha

lf.3.

Subj

ect t

o th

epr

ovis

ions

of

para

grap

hs1

and

2 of

this

arti

cle,

the

carr

ier s

hall

inde

m-

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 484

Part Two. Studies and reports on specific subjects 485IN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

7.3

The

shi

pper

shal

l pr

ovid

e to

the

carr

ier

the

info

rmat

ion,

inst

ruct

ions

, and

docu

men

ts th

atar

ere

ason

ably

nec

essa

ry

for:

(a) t

he h

andl

ing

and

carr

iage

oft

he g

oods

,in

clud

ing

prec

autio

ns

to b

e ta

ken

by th

eca

rrie

r or

a pe

rfor

min

g pa

rty;

(b) c

ompl

ianc

e w

ith

rule

s, re

gula

tions

, and

othe

r re

quir

emen

ts o

f au

thor

ities

inco

nnec

-tio

n w

ithth

e in

tend

edca

rria

ge, i

nclu

ding

fil

ings

, app

licat

ions

, an

d lic

ence

s rel

atin

g to

the

good

s;(c

) the

com

pila

tion

ofth

e co

ntra

ctpa

rtic

u-la

rs a

nd th

e is

suan

ceof

the

tran

spor

t doc

u-m

ents

or

elec

tron

ic

reco

rds,

incl

udin

g th

e pa

rtic

ular

s ref

erre

d to

in a

rtic

le 8

.2.1

(b)a

nd(c

), th

e na

me

of th

epa

rty

to b

e id

entif

ied

as th

e sh

ippe

rin

the

cont

ract

par

ticul

ars,

and

the

nam

eof

the

cons

igne

e or

orde

r,un

less

the

ship

per

may

re

ason

ably

ass

ume

that

suc

hin

form

atio

nis

alr

eady

kno

wn

toth

e ca

rrie

r. 7.

4 T

he in

form

atio

n,in

stru

ctio

ns, a

nddo

cum

ents

that

the

ship

per

and

the

carr

ier

prov

ide

to e

ach

othe

r un

der

artic

les 7

.2 a

nd7.

3 m

ust b

e gi

ven

ina

timel

y m

anne

r,an

d be

plac

e, o

r des

troye

d or

re

nder

ed in

nocu

ous

by th

e ca

rrie

rwith

out

com

pens

atio

n an

dth

e sh

ippe

r of s

uch

good

ssh

all b

e lia

ble

for a

llda

mag

e an

d ex

pens

esdi

rect

ly o

rind

irect

lyar

isin

g ou

t of o

rre

sulti

ng fr

om su

chsh

ipm

ent.

Ifan

ysu

chgo

ods s

hipp

ed w

ithsu

ch k

now

ledg

e an

d co

nsen

t sha

ll be

com

e a

dang

er to

the

ship

orca

rgo,

they

may

inlik

e m

anne

rbe

land

edat

any

pla

ce, o

rde

stro

yed

or re

nder

edin

nocu

ous b

yth

eca

rrie

r with

out

liabi

lity

on th

epa

rt of

the

carr

ier e

xcep

t to

gene

ral a

vera

geif

any.

fort

he lo

ss re

sulti

ngfr

om th

e sh

ipm

ent o

f su

ch g

oods

, and

(b

)The

goo

ds m

ay a

t an

ytim

e be

unl

oade

d,

dest

roye

d or

rend

ered

inno

cuou

s, as

the

circ

umst

ance

s m

ayre

quire

, with

out

paym

ent o

fcom

pen-

satio

n.

3.Th

e pr

ovis

ions

of

para

grap

h 2

of th

isar

ticle

may

not

be

invo

ked

by a

nype

rson

ifdu

ring

the

carr

iage

he

has t

aken

th

ego

ods i

n hi

sch

arge

with

kn

owle

dge

of th

eir

dang

erou

s ch

arac

ter.

4. If

,in

case

s w

here

th

e pr

ovis

ions

ofpa

ragr

aph

2, s

ub-

para

grap

h (b

),of

this

artic

le d

o no

t app

ly o

rm

ay n

ot b

ein

voke

d,da

nger

ous g

oods

beco

me

anac

tual

dang

erto

life

or

prop

erty

, the

ym

ay b

eun

load

ed, d

estro

yed

or re

nder

edin

no-

cuou

s, as

the

circ

um-

stan

ces m

ay re

quire

,w

ithou

t pay

men

t of

com

pens

atio

n ex

cept

whe

re th

ere

isan

ob

ligat

ion

to c

ontri

-bu

te in

gene

ral

aver

age

or w

here

the

carr

ier i

slia

ble

inac

cord

ance

with

the

prov

isio

ns o

far

ticle

5.

Art

icle

17-

Gua

rant

ees b

yth

esh

ippe

r1.

The

shi

pper

isde

emed

to h

ave

pers

on o

ther

than

the

cons

igno

r.A

rtic

le 2

2-G

ener

alru

leTh

e co

nsig

nor s

hall

be li

able

for l

oss

sust

aine

d by

the

mul

timod

al tr

ansp

ort

oper

ator

if su

ch lo

ssis

cau

sed

byth

e fa

ult

or n

egle

ct o

fthe

co

nsig

nor,

orhi

sse

rvan

ts o

r age

nts

whe

n su

ch s

erva

nts

orag

ents

are

act

ing

with

in th

e sc

ope

ofth

eir e

mpl

oym

ent.

Any

ser

vant

ora

gent

of

the

cons

igno

r sha

llbe

liabl

e fo

r suc

hlo

ss if

the

loss

isca

used

by

faul

t or

negl

ect o

n hi

s par

t. A

rtic

le 2

3-Sp

ecia

l ru

les o

nda

nger

ous

good

s1.

The

cons

igno

rsh

all m

ark

or la

bel i

n a

suita

ble

man

ner

dang

erou

s goo

ds a

sda

nger

ous.

2. W

here

the

con-

sign

or h

ands

over

da

nger

ous g

oods

toth

e m

ultim

odal

tran

s-po

rt op

erat

or o

rany

pers

on a

ctin

g on

his

beha

lf, th

e co

nsig

nor

shal

l inf

orm

him

of

the

dang

erou

sch

arac

ter o

fthe

go

ods

and,

if n

eces

-sa

ry, t

hepr

ecau

tions

to

be

take

n. If

the

cons

igno

rfai

ls to

do

so a

ndth

e m

ulti-

mod

al tr

ansp

ort

oper

ator

doe

s no

tot

herw

ise

have

know

ledg

e of

Art

icle

10

The

send

er sh

allb

elia

ble

to th

eca

rrie

rfo

r dam

age

tope

rson

s, eq

uipm

ent

or o

ther

goo

ds, a

nd

for a

ny e

xpen

ses

due

to d

efec

tive

pack

ing

of th

ego

ods,

unle

ssth

e de

fect

was

appa

rent

or k

now

n to

the

carr

iera

t the

tim

ew

hen

he to

ok o

ver

the

good

s and

he

mad

e no

rese

rvat

ions

conc

erni

ng it

.A

rtic

le 1

11.

For t

he p

urpo

seso

fth

e C

usto

ms

or o

ther

form

aliti

es w

hich

ha

ve to

be

com

plet

ed

befo

re d

eliv

ery

of th

ego

ods,

the

send

er

shal

l atta

ch th

e ne

ces-

sary

docu

men

ts to

the

cons

ignm

ent n

ote

orpl

ace

them

at th

e di

spos

al o

f the

car

rier

and

shal

l fur

nish

him

w

ith a

ll th

e in

form

a-tio

n w

hich

he

requ

ires.

2. T

he c

arrie

r sha

llno

t be

unde

rany

duty

to e

nqui

re in

to e

ither

th

e ac

cura

cyor

the

adeq

uacy

ofs

uch

docu

men

ts a

nd in

for-

mat

ion.

The

send

er

shal

l be

liabl

e to

the

carr

ier f

or a

nyda

mag

e ca

used

by th

eab

senc

e, in

adeq

uacy

or ir

regu

larit

yof

such

do

cum

ents

and

info

rmat

ion,

exc

ept

in th

e ca

seof

som

e w

rong

ful a

ct o

rne

glec

t on

the

part

ofth

e ca

rrie

r.

entri

es p

resc

ribed

by

RID

, the

car

rier m

ayat

any

tim

e un

load

or

dest

roy

the

good

s or

rend

er th

emin

nocu

ous,

asth

eci

rcum

stan

ces

may

requ

ire, w

ithou

tpa

ymen

t ofc

ompe

n-sa

tion,

save

whe

n he

was

aw

are

of th

eir

dang

erou

s nat

ure

onta

king

them

ove

r.A

rtic

le 1

3-Lo

adin

g an

d un

load

ing

of th

e go

ods

1.Th

e co

nsig

nor a

ndth

e ca

rrie

rsha

ll ag

ree

who

isre

spon

sibl

efo

rthe

load

ing

and

unlo

adin

g of

the

good

s.In

the

abse

nce

of s

uch

an a

gree

-m

ent,

for p

acka

ges

the

load

ing

and

unlo

adin

g sh

allb

eth

e re

spon

sibi

lity

ofth

e ca

rrie

rwhe

reas

fo

r ful

l wag

on lo

ads

load

ing

shal

l be

the

resp

onsi

bilit

y of

the

cons

igno

r and

unlo

adin

g, a

fter

deliv

ery,

the

res-

pons

ibili

ty o

fthe

cons

igne

e.2.

The

con

sign

orsh

all b

e lia

ble

for a

llth

e co

nseq

uenc

esof

defe

ctiv

e lo

adin

g ca

rrie

d ou

t by

him

and

mus

tin

parti

cula

r co

mpe

nsat

e th

eca

rrie

r for

the

loss

or

dam

age

sust

aine

d in

cons

eque

nce

byhi

m.

The

burd

enof

pro

of

of d

efec

tive

load

ing

shal

l lie

on

the

carr

ier.

to e

nsur

e th

at th

eydo

not c

ause

dam

age

to th

eve

ssel

ort

o ot

her g

oods

.A

ccor

ding

tow

hat h

as

been

agr

eed

with

avi

ewto

car

riage

, the

ship

per

shal

l als

o m

ake

prov

i-si

on fo

r app

ropr

iate

mar

king

in c

onfo

rmity

with

the

appl

icab

lein

tern

atio

nal o

r nat

iona

l re

gula

tions

or, i

n th

eab

senc

eof

such

regu

-la

tions

, in

acco

rdan

cew

ith ru

les a

nd p

ract

ices

ge

nera

lly re

cogn

ized

in

inla

nd n

avig

atio

n.

4.Su

bjec

t to

the

oblig

atio

ns to

be

born

e by

the

carr

ier,

the

ship

per s

hall

load

and

st

ow th

e go

ods a

nd

secu

re th

emin

ac

cord

ance

with

inla

ndna

viga

tion

prac

tice

unle

ss th

e co

ntra

ct o

fca

rria

ge s

peci

fies

othe

rwis

e.A

rtic

le 7

-Dan

gero

usan

d po

llutin

g go

ods

1. If

dan

gero

us o

rpo

llutin

g go

ods

are

tobe

car

ried,

the

ship

per

shal

l, be

fore

han

ding

ov

er th

e go

ods,

and

in

addi

tion

to th

e pa

rticu

lars

refe

rred

to in

ar

ticle

6, p

arag

raph

2,

info

rm th

e ca

rrie

rcl

early

and

inw

ritin

gof

the

dang

er a

nd th

eris

ksof

pollu

tion,

inhe

rent

in

the

good

s an

d of

the

prec

autio

ns to

be

take

n.

2.W

here

the

carr

iage

of

the

dang

erou

sor p

ollu

t-in

g go

ods r

equi

res a

n au

thor

izat

ion,

the

ship

per s

hall

hand

ove

rth

e ne

cess

ary

docu

-

of th

e irr

egul

arity

,in

corr

ectn

ess o

rin

com

plet

enes

s of

the

parti

cula

rs a

nd

stat

emen

ts in

serte

d by

the

carr

iero

ron

his b

ehal

fin

the

rece

ipt f

orth

e ca

rgo

or in

the

reco

rdpr

eser

ved

by th

e ot

her m

eans

refe

rred

to in

pa

ragr

aph

2 of

artic

le 5

. A

rtic

le 1

6 1.

The

con

sign

orm

ust f

urni

shsu

chin

form

atio

n an

d su

ch d

ocum

ents

as

are

nece

ssar

y to

mee

t the

form

aliti

esof

cus

tom

s, oc

troi

or p

olic

e be

fore

the

carg

o ca

n be

deliv

ered

to th

eco

nsig

nee.

The

cons

igno

r isl

iabl

eto

the

carr

ier f

oran

y da

mag

e oc

casi

oned

by

the

abse

nce,

insu

ffic

ienc

y or

irreg

ular

ity o

f any

such

info

rmat

ion

ordo

cum

ents

, unl

ess

the

dam

age

is d

ue

to th

e fa

ulto

f the

ca

rrie

r, hi

sser

vant

sor

age

nts.

2. T

heca

rrie

r is

unde

r no

oblig

atio

n to

enq

uire

into

the

corr

ectn

ess

orsu

ffici

ency

of s

uch

info

rmat

ion

or

docu

men

ts.

nify

the

cons

igno

r ag

ains

t all

dam

age

suffe

red

by it

, or b

yan

y ot

her p

erso

nto

who

m th

e co

nsig

nor

is li

able

, by

reas

on

of th

e irr

egul

arity

,in

corr

ectn

ess o

rin

com

plet

enes

s of

the

parti

cula

rs a

nd

stat

emen

ts in

serte

d by

the

carr

iero

ron

its b

ehal

f in

the

carg

o re

ceip

t or i

n th

e re

cord

pre

serv

ed

byth

e ot

her m

eans

refe

rred

to in

pa

ragr

aph

2 of

artic

le 4

.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 485

486 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

accu

rate

and

co

mpl

ete.

7.

5 T

he s

hipp

er a

ndth

e ca

rrie

rar

e lia

ble

toea

ch o

ther

,the

co

nsig

nee,

and

the

cont

rolli

ng p

arty

for

any

loss

or

dam

age

caus

ed b

y ei

ther

pa

rty’

s fai

lure

toco

mpl

y w

ith it

s re

spec

tive

oblig

atio

nsun

der

artic

les 7

.2, 7

.3,

and

7.4.

7.

6 T

he s

hipp

er is

liabl

e to

the

carr

ier

for

any

loss

, dam

age,

or

inju

ry c

ause

d by

the

good

s and

for

a br

each

of it

s obl

igat

ions

unde

rar

ticle

7.1

, unl

ess t

he

ship

per

prov

esth

atsu

ch lo

ss o

rda

mag

ew

as c

ause

dby

eve

nts

or th

roug

h ci

rcum

-st

ance

s tha

t a d

ilige

ntsh

ippe

r co

uld

not

avoi

d or

the

cons

e-qu

ence

s of w

hich

a

dilig

ent s

hipp

erw

asun

able

topr

even

t.7.

7 If

a pe

rson

iden

tifie

d as

“sh

ippe

r”in

the

cont

ract

part

icul

ars,

alth

ough

not t

he s

hipp

er a

sde

fined

in a

rtic

le 1

.19,

ac

cept

s th

e tr

ansp

ort

docu

men

t or

elec

tron

icre

cord

, the

n su

chpe

rson

is(a

) sub

ject

toth

e re

spon

sibi

litie

sand

liabi

litie

s im

pose

don

the

ship

per

unde

r th

isch

apte

r an

d un

der

artic

le 1

1.5,

and

(b)

entit

led

to th

esh

ippe

r’s r

ight

s and

imm

uniti

es p

rovi

ded

byth

is c

hapt

er a

ndby

chap

ter

13.

guar

ante

ed to

the

carr

ier t

heac

cura

cyof

parti

cula

rs re

latin

g to

the

gene

raln

atur

e of

the

good

s,th

eir

mar

ks, n

umbe

r,w

eigh

t and

qua

ntity

as fu

rnis

hed

by h

imfo

r ins

ertio

n in

the

bill

of la

ding

. The

sh

ippe

r mus

tind

em-

nify

the

carr

ier

agai

nst t

he lo

ssre

sulti

ng fr

om in

ac-

cura

cies

in su

ch

parti

cula

rs. T

he

ship

per r

emai

ns li

able

even

if th

e bi

ll of

ladi

ng h

asbe

entra

nsfe

rred

by

him

.Th

e rig

ht o

fthe

ca

rrie

r to

such

inde

mni

ty in

no

way

limits

his

liabi

lity

unde

rthe

con

tract

of

carr

iage

by

sea

toan

ype

rson

oth

er th

an th

e sh

ippe

r.2.

Any

lette

r of

guar

ante

e or

agr

ee-

men

t by

whi

ch th

e sh

ippe

r und

erta

kes

toin

dem

nify

the

carr

ier

agai

nst l

ossr

esul

ting

from

the

issu

ance

of

the

bill

of la

ding

byth

e ca

rrie

r,or

by

a pe

rson

act

ing

on h

isbe

half,

with

out

ente

ring

a re

serv

atio

n re

latin

g to

parti

cula

rsfu

rnis

hed

byth

esh

ippe

r for

inse

rtion

in th

e bi

llof

ladi

ng,

or to

the

appa

rent

co

nditi

on o

f the

go

ods,

is v

oid

and

ofno

eff

ecta

s aga

inst

any

third

par

ty,

incl

udin

g a

cons

igne

e,to

who

m th

e bi

ll of

thei

r dan

gero

usch

arac

ter:

(a) T

he c

onsi

gnor

shal

l be

liabl

e to

the

mul

timod

al tr

ansp

ort

oper

ator

fora

ll lo

ssre

sulti

ng fr

om th

esh

ipm

ent o

f suc

hgo

ods;

and

(b

)The

goo

ds m

ay a

t an

ytim

e be

un-

load

ed, d

estro

yed

or

rend

ered

inno

cuou

s,as

the

circ

umst

ance

s m

ay re

quire

, with

out

paym

ent o

fcom

pen-

satio

n.

3.Th

e pr

ovis

ions

of

para

grap

h 2

of th

isar

ticle

may

not

be

invo

ked

by a

nype

rson

ifdu

ring

the

mul

timod

al tr

ansp

ort

he h

as ta

ken

the

good

s in

his c

harg

e w

ith k

now

ledg

eof

thei

r dan

gero

usch

arac

ter.

4. If

, in

case

s w

here

th

e pr

ovis

ions

ofpa

ragr

aph

2 (b

) of

this

artic

le d

o no

tap

ply

or m

ay n

otbe

invo

ked,

dan

gero

usgo

ods b

ecom

e an

actu

al d

ange

r to

life

or p

rope

rty, t

hey

may

be u

nloa

ded,

des

-tro

yed

or re

nder

edin

nocu

ous,

asth

eci

rcum

stan

ces

may

requ

ire, w

ithou

tpay

-m

ent o

f com

pens

a-tio

n ex

cept

whe

re

ther

eis

an

oblig

atio

n to

con

tribu

te in

gene

ral a

vera

ge o

rw

here

the

mul

ti-m

odal

tran

spor

t op

erat

or is

liabl

e in

acco

rdan

ce w

ithth

e

Art

icle

22

1. W

hen

the

send

erha

nds

good

s of

a

dang

erou

s na

ture

toth

e ca

rrie

r, he

sha

llin

form

the

carr

iero

f th

e ex

act n

atur

e of

the

dang

er a

nd in

di-

cate

if n

eces

sary

,pr

ecau

tions

to b

eta

ken.

If th

is in

for-

mat

ion

has n

ot b

een

ente

red

in th

e co

n-si

gnm

ent n

ote,

the

burd

en o

f pro

ving

, by

som

e ot

her m

eans

,th

at th

e ca

rrie

r kne

wth

e ex

act n

atur

e of

the

dang

er c

onst

i-tu

ted

byth

e ca

rria

geof

the

said

goo

dssh

all r

estu

pon

the

send

er o

rthe

cons

igne

e.2.

Goo

ds o

f a

dang

erou

s nat

ure

whi

ch, i

n th

e ci

r-cu

mst

ance

refe

rred

toin

par

agra

ph 1

of th

isar

ticle

, the

car

rier d

id

not k

now

wer

eda

nger

ous,

may

, at

any

time

or p

lace

, be

unlo

aded

, des

troye

d or

rend

ered

harm

less

by th

e ca

rrie

rwith

out

com

pens

atio

n;

furth

er, t

hese

nder

shal

l be

liabl

e fo

r all

expe

nses

, los

s or

dam

age

aris

ing

out o

f th

eirh

andi

ng o

ver f

orca

rria

ge o

r of t

heir

carr

iage

.

Art

icle

14-

Pack

ing

The

cons

igno

r sha

llbe

liabl

e to

the

carr

ier f

or a

ny lo

ss o

rda

mag

e an

d co

stsd

ueto

the

abse

nce

of, o

rde

fect

s in,

the

pack

ing

of g

oods

,un

less

the

defe

c-tiv

enes

s w

as a

ppar

ent

orkn

own

to th

e ca

rrie

rat t

he ti

me

whe

n he

took

ove

r th

e go

ods a

nd h

em

ade

no re

serv

atio

nsco

ncer

ning

it.

men

ts a

t lat

est w

hen

hand

ing

over

the

good

s.3.

Whe

re th

e co

ntin

ua-

tion

ofth

e ca

rria

ge,t

he

disc

harg

e or

the

deli-

very

of t

he d

ange

rous

or

pollu

ting

good

sis r

en-

dere

d im

poss

ible

owin

gto

the

abse

nce

ofan

ad

min

istra

tive

auth

o-riz

atio

n, th

e sh

ippe

rsh

all b

ear t

he c

osts

in-

curr

ed b

yth

e ca

rrie

r for

the

retu

rn o

fthe

goo

dsto

the

port

of lo

adin

g or

a ne

arer

plac

e, w

here

th

e go

ods m

ay b

e di

s-ch

arge

d an

dde

liver

ed

or d

ispo

sed

of.

4. In

the

even

t ofi

mm

e-di

ate

dang

er to

life

, pro

-pe

rty o

r the

env

iron-

men

t, th

e ca

rrie

r sha

ll be

entit

led

to u

nloa

d th

ego

ods,

tore

nder

them

in

nocu

ous o

r, pr

ovid

ed

that

suc

h a

mea

sure

is

not d

ispr

opor

tiona

te to

the

dang

er th

eyre

pre-

sent

,to

dest

roy

them

,ev

en if

, bef

ore

they

wer

e ta

ken

over

,he

was

info

rmed

orw

asap

pris

-ed

by

othe

r mea

ns o

fth

e na

ture

of t

he

dang

er o

rthe

risk

s of

pollu

tion

inhe

rent

in th

e go

ods.

5.W

here

the

carr

ier i

sen

title

d to

take

the

mea

sure

s re

ferr

ed to

inpa

ragr

aphs

3 o

r4

abov

e, h

e m

ay c

laim

com

pens

atio

n fo

r da

mag

es.

Art

icle

8-L

iabi

lity

ofth

e sh

ippe

r1.

The

shi

pper

shal

l,ev

en if

no

faul

t can

be

attri

bute

d to

him

, be

liabl

e fo

r all

the

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 486

Part Two. Studies and reports on specific subjects 487IN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

7.8

The

shi

pper

isre

spon

sibl

e fo

r th

e ac

tsan

d om

issi

ons

of a

ny

pers

on to

whi

chit

has

dele

gate

d th

e pe

rfor

-m

ance

of a

ny o

f its

resp

onsi

bilit

ies

unde

rth

is c

hapt

er, i

nclu

ding

its s

ub-c

ontr

acto

rs,

empl

oyee

s, ag

ents

, and

an

y ot

her

pers

ons w

ho

act,

eith

er d

irec

tly o

rin

dire

ctly

, ati

tsre

ques

t, or

und

erits

supe

rvis

ion

or c

ontr

ol,

as if

such

act

s or

omis

sion

s wer

e its

ow

n. R

espo

nsib

ility

isim

pose

d on

the

ship

per

unde

r th

ispr

ovis

ion

only

whe

nth

e ac

tor

omis

sion

of

the

pers

on c

once

rned

is w

ithin

the

scop

eof

that

per

son’

scon

trac

t,em

ploy

men

t, or

agen

cy.

ladi

ng h

asbe

en tr

ans-

ferr

ed.

3. S

uch

lette

r of

guar

ante

e or

agr

ee-

men

t isv

alid

as

agai

nst t

he sh

ippe

run

less

the

carri

er o

rth

e pe

rson

act

ing

on

his b

ehal

f,by

omitt

ing

the

rese

r-va

tion

refe

rred

to in

pa

ragr

aph

2 of

this

artic

le, i

nten

ds to

defr

aud

a th

ird p

arty

,in

clud

ing

a co

nsig

nee,

who

act

s in

relia

nce

on th

e de

scrip

tion

ofth

ego

ods i

n th

e bi

llof

ladi

ng. I

nth

e la

tter

case

, if t

he re

serv

a-tio

n om

itted

rela

test

opa

rticu

lars

furn

ishe

dby

the

ship

perf

orin

serti

on in

the

bill

ofla

ding

, the

car

rier h

asno

righ

t ofi

ndem

nity

from

the

ship

per

purs

uant

to p

ara-

grap

h 1

ofth

isar

ticle

. 4.

In th

e ca

seof

inte

nded

frau

dre

ferr

ed to

in p

ara-

grap

h 3

ofth

isar

ticle

th

e ca

rrie

r isl

iabl

e,

with

out t

he b

enef

itof

the

limita

tion

oflia

bilit

y pr

ovid

ed fo

rin

this

Con

vent

ion,

for t

helo

ss in

curr

ed

by a

third

party

,in

clud

ing

a co

nsig

nee,

beca

use

he h

asac

ted

in re

lianc

e on

the

desc

riptio

n of

the

good

s in

the

bill

of

ladi

ng.

prov

isio

ns o

far

ticle

16.

dam

ages

and

cost

s in

curr

ed b

yth

e ca

rrie

r or

the

actu

al c

arrie

rby

reas

on o

fthe

fact

th

at:

(a) T

he p

artic

ular

s ori

n-fo

rmat

ion

refe

rred

to in

ar

ticle

s 6,

par

agra

ph 2

, or

7, p

arag

raph

1, a

re

mis

sing

, ina

ccur

ate

orin

com

plet

e;

(b) T

heda

nger

ous o

rpo

llutin

g go

ods a

re n

ot

mar

ked

or la

belle

din

ac

cord

ance

with

the

appl

icab

le in

tern

atio

nal

or n

atio

nal r

egul

atio

nsor

, if n

o su

ch re

gula

-tio

ns e

xist

,in

acco

rd-

ance

with

rule

sand

pr

actic

es g

ener

ally

reco

gniz

ed in

inla

nd

navi

gatio

n;

(c) T

he n

eces

sary

acco

mpa

nyin

g do

cu-

men

ts a

re m

issi

ng,

inac

cura

te o

rin

com

plet

e.

The

carr

ier m

ay n

ot

avai

l him

self

of th

e lia

bilit

y of

the

ship

per

if it

ispr

oven

that

the

faul

t is a

ttrib

utab

le to

the

carr

ier h

imse

lf, h

isse

rvan

ts o

r age

nts.

The

sam

eap

plie

s to

the

actu

al c

arrie

r.2.

The

shi

pper

sha

ll be

resp

onsi

ble

for t

he a

cts

and

omis

sion

s of p

er-

sons

ofw

hose

ser

vice

she

mak

es u

seto

perf

orm

the

task

s an

d m

eet t

heob

ligat

ions

refe

rred

toin

arti

cles

6 a

nd 7

, whe

n su

ch p

erso

ns a

re a

ctin

gw

ithin

the

scop

e of

thei

rem

ploy

men

t, as

if su

chac

ts o

r om

issi

ons

wer

ehi

s ow

n.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 487

488 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

Art

icle

9-T

erm

inat

ion

of th

e co

ntra

ct o

fca

rria

ge b

y th

e ca

rrie

r 1.

The

car

rier m

ayte

rmin

ate

the

cont

ract

ofca

rria

ge if

the

ship

per

has f

aile

d to

per

form

the

oblig

atio

ns s

et o

ut in

ar

ticle

6, p

arag

raph

2, o

r ar

ticle

7, p

arag

raph

s 1

and

2.

2. If

the

carr

ier m

akes

us

e of

his r

ight

of

term

inat

ion,

he

may

unlo

adth

e go

ods a

t the

sh

ippe

r's e

xpen

se a

ndcl

aim

opt

iona

llyth

epa

ymen

t ofa

ny o

fthe

follo

win

g am

ount

s:(a

) one

third

of t

he

agre

ed fr

eigh

t; or

(b) i

n ad

ditio

n to

any

dem

urra

ge c

harg

e, a

co

mpe

nsat

ion

equa

lto

the

amou

nt o

f cos

tsin

curr

ed a

nd th

e lo

ssca

used

, as

wel

las,

shou

ldth

e vo

yage

hav

e al

read

y be

gun,

apr

opor

tiona

l fre

ight

for

the

part

of th

evo

yage

al

read

y pe

rfor

med

.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 488

Part Two. Studies and reports on specific subjects 489

58

CH

AP

TE

R 8

– T

RA

NSP

OR

T D

OC

UM

EN

TS

AN

D E

LE

CT

RO

NIC

RE

CO

RD

S

8.1.

ISS

UA

NC

E O

FTH

E T

RA

NSP

OR

T D

OC

UM

EN

T O

R T

HE

ELE

CTR

ON

IC R

EC

OR

D

INST

RU

ME

NT

HA

GU

E-V

ISB

YH

AM

BU

RG

MU

LTIM

OD

AL

CM

RC

OT

IF-C

IM 1

999

CM

NI

WA

RSA

WM

ON

TR

EA

L8.

Tra

nspo

rt d

ocum

ents

and

elec

troni

c re

cord

s8.

1 Is

suan

ce o

f the

tr

ansp

ort d

ocum

ent o

rth

e el

ectr

onic

reco

rd

Upo

n de

liver

yof

the

good

s to

a c

arri

er o

rpe

rfor

min

g pa

rty

(i) th

e co

nsig

nor

isen

title

dto

obt

ain

atr

ansp

ort d

ocum

ento

r,if

the

carr

ier

so a

gree

s, an

ele

ctro

nic

reco

rdev

iden

cing

the

carr

ier’

s or

perf

orm

-in

g pa

rty’

s rec

eipt

of

the

good

s;(ii

)the

shi

pper

or,

ifth

e sh

ippe

rso

indi

-ca

tes

to th

e ca

rrie

r, th

e pe

rson

ref

erre

dto

inar

ticle

7.7

, is e

ntitl

edto

obta

in fr

omth

e ca

rrie

ran

app

ropr

iate

nego

-tia

ble

tran

spor

tdo

cum

ent,

unle

ss th

esh

ippe

r an

d th

eca

rrie

r, ex

pres

sly

orim

plie

dly,

hav

eag

reed

no

t to

use

a ne

gotia

ble

tran

spor

t doc

umen

t,or

it is

the

cust

om,u

sage

, or

prac

tice

in th

e tr

ade

not t

o us

e on

e.If

purs

uant

toar

ticle

2.1

the

carr

ier

and

the

ship

per

have

agre

ed to

the

use

ofan

ele

ctro

nic

reco

rd, t

he s

hipp

eris

entit

led

to o

btai

n fr

omth

e ca

rrie

r a

nego

tiabl

e el

ectr

onic

rec

ord

unle

ss th

eyha

veag

reed

not

to u

se a

nego

tiabl

e el

ectr

onic

reco

rdor

it is

the

Art

icle

3

3. A

fter r

ecei

ving

the

good

s int

o hi

scha

rge

the

carr

iero

r the

m

aste

r or a

gent

oft

he

carr

ier s

hall,

on

dem

and

of th

e sh

ippe

r, is

sue

to th

e sh

ippe

r a b

ill o

fla

ding

sho

win

gam

ong

othe

r thi

ngs:

a)

the

lead

ing

mar

ksne

cess

ary

fori

dent

ifi-

catio

n of

the

good

s as

the

sam

e ar

e fu

r-ni

shed

in w

ritin

g by

the

ship

per b

efor

eth

elo

adin

g of

such

goo

dsst

arts

, pro

vide

d su

ch

mar

ks a

re s

tam

ped

orot

herw

ise

show

ncl

early

upo

n th

e go

ods i

func

over

ed,

or o

n th

e ca

ses o

rco

verin

gs in

whi

ch

such

goo

ds a

re

cont

aine

d, in

such

a

man

ner a

ssho

uld

ordi

naril

y re

mai

nle

gibl

e un

til th

e en

d of

the

voya

ge.

b) E

ither

the

num

ber

of p

acka

ges

orpi

eces

, or t

he q

uan-

tity,

or w

eigh

t,as

the

case

may

be,

as

furn

ishe

d in

writ

ing

by th

e sh

ippe

r.c)

The

appa

rent

ord

eran

d co

nditi

ons o

f the

go

ods.

Prov

ided

that

no

carr

ier,

mas

ter o

rag

ent o

fthe

car

rier

shal

l be

boun

d to

stat

e or

sho

win

the

Art

icle

14-

Issu

e of

bill

of la

ding

1.W

hen

the

carr

ier o

rth

e ac

tual

carr

ier

take

s the

good

s in

his

char

ge, t

he c

arrie

rm

ust,

onde

man

d of

the

ship

per,

issu

e to

the

ship

per a

bill

of

ladi

ng.

2.Th

e bi

ll of

ladi

ngm

ay b

e si

gned

by a

pers

on h

avin

gau

thor

ity fr

om th

e ca

rrie

r. A

bill

of

ladi

ng si

gned

by

the

mas

ter o

f the

ship

carr

ying

the

good

s is

deem

ed to

hav

e be

ensi

gned

on

beha

lf of

the

carr

ier.

3.

The

sign

atur

e on

th

ebi

ll of

ladi

ng m

aybe

in h

andw

ritin

g,pr

inte

d in

facs

imile

,pe

rfor

ated

, sta

mpe

d,

in s

ymbo

ls, o

r mad

eby

any

oth

er

mec

hani

cal o

rel

ectro

nic

mea

ns,

if no

t inc

onsi

sten

t w

ith th

e la

w o

f the

co

untry

whe

re th

e bi

ll of

ladi

ngis

issu

ed.

Art

icle

15-

Con

tent

sof

bill

of la

ding

2.

Afte

r the

goo

dsha

ve b

een

load

ed o

nbo

ard,

if th

e sh

ippe

r so

dem

ands

,the

carr

ierm

ust i

ssue

toth

e sh

ippe

r a

"shi

pped

" bi

llof

la

ding

whi

ch,i

n ad

di-

tion

to th

e pa

rticu

lars

Art

icle

5-I

ssue

of

mul

timod

al

tran

spor

t do

cum

ent

1. W

hen

the

good

sar

e ta

ken

in c

harg

e by

the

mul

timod

al

trans

port

oper

ator

, he

shal

liss

ue a

mul

ti-m

odal

tran

spor

t do

cum

ent w

hich

,at

the

optio

n of

the

cons

igno

r,sh

all b

e in

eith

er n

egot

iabl

e or

no

n-ne

gotia

ble

form

.2.

The

mul

timod

altra

nspo

rt do

cum

ent

shal

l be

sign

ed b

yth

e m

ultim

odal

tra

nspo

rt op

erat

or o

rby

ape

rson

hav

ing

auth

ority

from

him

.3.

The

sign

atur

e on

th

e m

ultim

odal

tran

s-po

rt do

cum

entm

aybe

in h

andw

ritin

g,pr

inte

d in

facs

imile

,pe

rfor

ated

, sta

mpe

d,

in s

ymbo

ls, o

r mad

eby

any

othe

r mec

ha-

nica

l or e

lect

roni

cm

eans

, if n

ot in

con-

sist

ent w

ithth

e la

wof

the

coun

tryw

here

the

mul

timod

al

trans

port

docu

men

t is

issu

ed.

4. If

the

cons

igno

r so

agre

es, a

non

-ne

gotia

ble

mul

ti-m

odal

tran

spor

t do

cum

ent m

aybe

issu

ed b

ym

akin

g us

eof

any

mec

hani

cal o

rot

her m

eans

pres

erv-

ing

a re

cord

oft

he

Art

icle

4

The

cont

ract

of

carr

iage

shal

l be

con-

firm

ed b

y th

e m

akin

gou

t of a

con

sign

men

t no

te. T

he a

bsen

ce,

irreg

ular

ity o

r los

s of

the

cons

ignm

ent n

ote

shal

l not

aff

ect t

he

exis

tenc

e or

the

valid

ity o

fthe

cont

ract

of c

arria

ge

whi

ch sh

all r

emai

n su

bjec

t the

pro

visi

ons

of th

is C

onve

ntio

n.

Art

icle

5

1. T

heco

nsig

nmen

tno

te sh

allb

e m

ade

out i

n th

ree

orig

inal

copi

es s

igne

d by

the

send

eran

d by

the

carr

ier.

Thes

e si

gnat

ures

may

bepr

inte

d or

repl

aced

by

the

stam

ps o

fthe

se

nder

and

the

carr

ier

ifth

e la

w o

f the

co

untry

in w

hich

the

cons

ignm

ent n

ote

has

been

mad

e ou

t so

perm

its. T

hefir

stco

py s

hall

be h

ande

d to

the

send

er, t

hese

cond

sha

ll ac

com

-pa

ny th

e go

odsa

nd

the

third

shal

l be

reta

ined

by

the

carr

ier.

2. W

hen

the

good

sw

hich

are

tobe

carr

ied

have

to b

elo

aded

in d

iffer

ent

vehi

cles

, or a

re o

f di

ffer

ent k

inds

or a

redi

vide

d in

to d

iffer

ent

lots

, the

sen

der o

rthe

Art

icle

6-C

ontr

act o

fca

rria

ge2.

The

cont

ract

of

carr

iage

mus

t be

con-

firm

ed b

y a

cons

ign-

men

t not

e w

hich

ac

cord

s with

aun

iform

mod

el.

How

ever

, the

ab

senc

e, ir

regu

larit

yor

loss

of t

he c

on-

sign

men

t not

esh

all

not a

ffec

t the

ex

iste

nce

or v

alid

ityof

the

cont

ract

whi

chsh

all r

emai

nsu

bjec

t to

thes

e U

nifo

rmR

ules

. 3.

The

con

sign

men

t no

te sh

allb

e si

gned

by th

e co

nsig

nor a

ndth

e ca

rrie

r. Th

e si

gnat

ure

can

bere

plac

ed b

y a

stam

p,by

an

acco

untin

gm

achi

ne e

ntry

ori

nan

y ot

her a

ppro

pria

te

man

ner.

4. T

he c

arrie

r mus

tce

rtify

the

taki

ngov

er o

f the

goo

ds o

nth

e du

plic

ate

of th

e co

nsig

nmen

t not

e in

an a

ppro

pria

tem

anne

r and

retu

rnth

e du

plic

ate

to th

eco

nsig

nor.

5. T

he c

onsi

gnm

ent

note

shal

l not

hav

eef

fect

as

a bi

ll of

ladi

ng.

6. A

con

sign

men

t no

te m

ustb

e m

ade

out f

or e

ach

con-

sign

men

t. In

the

abse

nce

ofa

cont

rary

Art

icle

11-

Nat

ure

and

cont

ent

1. F

or e

ach

carr

iage

go

vern

ed b

y th

isC

onve

ntio

n th

eca

rrie

r sha

llis

sue

atra

nspo

rt do

cum

ent;

he s

hall

issu

e a

bill

of

ladi

ngon

ly if

the

ship

per s

o re

ques

tsan

d if

it ha

sbee

n so

agre

ed b

efor

eth

ego

ods

wer

e lo

aded

or

befo

re th

ey w

ere

take

n ov

er fo

rca

rria

ge. T

he la

ck o

fa

trans

port

docu

men

tor

the

fact

that

it is

inco

mpl

ete

shal

lnot

af

fect

the

valid

ity o

fth

e co

ntra

ct o

f ca

rria

ge.

2. T

heor

igin

alof

the

trans

port

docu

men

t m

ust b

e si

gned

by

the

carr

ier,

the

mas

ter o

fth

e ve

ssel

or a

per

son

auth

oriz

ed b

yth

e ca

rrie

r. Th

e ca

rrie

rm

ay re

quire

the

ship

per t

o co

unte

r-si

gnth

e or

igin

al o

raco

py. T

he s

igna

ture

m

ay b

ein

hand

writ

ing,

prin

ted

in fa

csim

ile,p

er-

fora

ted,

stam

ped,

insy

mbo

ls o

r mad

eby

any

othe

r mec

hani

cal

or e

lect

roni

c m

eans

,if

this

isno

t pro

hi-

bite

d by

the

law

of

the

Stat

ew

here

the

trans

port

docu

men

t w

as is

sued

.

Art

icle

5

1. In

resp

ect o

fthe

ca

rria

ge o

f car

go a

nai

r way

bill

shal

l be

deliv

ered

.2.

Any

oth

er m

eans

whi

ch w

ould

pre

serv

ea

reco

rd o

f the

carr

iage

to b

epe

rfor

med

may

,with

th

e co

nsen

t of t

heco

nsig

nor,

besu

bstit

uted

for t

he

deliv

ery

of a

n ai

rw

aybi

ll. If

such

othe

r m

eans

are

use

d, th

eca

rrie

r sha

ll,if

sore

ques

ted

by th

e co

nsig

nor,

deliv

erto

the

cons

igno

r are

ceip

t for

the

carg

ope

rmitt

ing

iden

tific

a-tio

n of

the

cons

ign-

men

t and

acc

ess t

oth

e in

form

atio

n co

ntai

ned

in th

e re

cord

pre

serv

ed b

ysu

ch o

ther

mea

ns.

3. T

he im

poss

ibili

tyof

usi

ng, a

t poi

nts o

ftra

nsit

and

dest

ina-

tion,

the

othe

r mea

nsw

hich

wou

ld p

rese

rve

the

reco

rd o

f the

ca

rria

ge re

ferr

ed to

inpa

ragr

aph

2 of

this

Arti

cle

does

not

entit

le th

e ca

rrier

tore

fuse

toac

cept

the

carg

o fo

r car

riage

.A

rtic

le 6

1.

The

air w

aybi

llsh

allb

e m

ade

out b

yth

e co

nsig

nor i

n th

ree

orig

inal

par

ts.

2. T

hefir

st p

arts

hall

Art

icle

4-C

argo

1. In

resp

ect o

fthe

ca

rria

ge o

f car

go, a

nai

r way

bill

shal

l be

deliv

ered

.2.

Any

oth

er m

eans

whi

ch p

rese

rves

a re

cord

of t

heca

rria

ge to

be

perf

orm

ed m

ay b

esu

bstit

uted

for t

he

deliv

ery

of a

n ai

rw

aybi

ll. If

such

othe

r mea

nsar

eus

ed, t

he c

arrie

rsh

all,

if so

requ

este

dby

the

cons

igno

r,de

liver

to th

eco

nsig

nor a

carg

ore

ceip

t per

mitt

ing

iden

tific

atio

n of

the

cons

ignm

ent a

ndac

cess

to th

e in

for-

mat

ion

cont

aine

d in

th

e re

cord

pre

serv

ed

by su

chot

her

mea

ns.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 489

490 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

cust

om, u

sage

or

prac

tice

in th

etr

ade

not t

o us

e on

e.8.

2 C

ontr

act

Parti

cula

rs

8.2.

3 Si

gnat

ure

(a) A

tran

spor

t do

cum

ent s

hall

besi

gned

by o

r fo

rth

e ca

rrie

ror

a p

erso

nha

ving

aut

hori

ty fr

omth

e ca

rrie

r.

(b) A

nel

ectr

onic

re

cord

sha

ll be

auth

entic

ated

by

the

elec

tron

ic si

gnat

ure

ofth

e ca

rrie

ror

ape

rson

havi

ng a

utho

rity

from

the

carr

ier.

For

the

purp

ose

of th

is p

ro-

visi

on s

uch

elec

tron

ic

sign

atur

e m

eans

data

in e

lect

roni

c fo

rmin

clud

ed in

, or

othe

rwis

e lo

gica

lly

asso

ciat

ed w

ith, t

heel

ectr

onic

rec

ord

and

that

is u

sed

toid

entif

yth

e si

gnat

ory

in r

ela-

tion

toth

e el

ectr

onic

reco

rd a

nd to

indi

cate

the

carr

ier’

sau

thor

izat

ion

ofth

e el

ectr

onic

rec

ord.

bill

of la

ding

any

mar

ks, n

umbe

r,qu

antit

y, o

rwei

ght

whi

ch h

e ha

sre

ason

able

gro

und

for

susp

ectin

g no

t ac

cura

tely

tore

pres

ent t

he g

oods

actu

ally

rece

ived

, or

whi

ch h

e ha

shad

no

reas

onab

le m

eans

of

chec

king

. 7.

Afte

r the

goo

ds a

re

load

ed th

e bi

llof

ladi

ng to

be is

sued

by

the

carr

ier,

mas

ter,

orag

ent o

fthe

car

riert

oth

e sh

ippe

r sha

ll,if

the

ship

per s

ode

man

ds, b

e a

“shi

pped

” bi

llof

la

ding

, pro

vide

d th

at

ifth

e sh

ippe

r sha

llha

ve p

revi

ousl

yta

ken

up a

ny d

ocum

ento

ftit

le to

suc

h go

ods,

hesh

all s

urre

nder

the

sam

eas

aga

inst

the

issu

e of

the

“shi

pped

” bi

ll of

ladi

ng, b

ut a

t th

e op

tion

ofth

e ca

rrie

r suc

h do

cum

ent o

ftitl

e m

aybe

not

ed a

t the

port

ofsh

ipm

ent b

yth

eca

rrie

r, m

aste

r or

agen

t with

the

nam

e or

nam

es o

fthe

ship

or sh

ipsu

pon

whi

ch

the

good

s hav

e be

ensh

ippe

d an

d th

e da

teor

dat

es o

f shi

pmen

t, an

d w

hen

so n

oted

, if

it sh

ows t

he p

artic

u-la

rs m

entio

ned

inpa

ragr

aph

3 of

A

rticl

e3,

shal

l for

the

purp

ose

of th

isA

rticl

e be

dee

med

toco

nstit

ute

a “s

hipp

ed”

bill

of la

ding

.

requ

ired

unde

rpar

a-gr

aph

1 of

this

Arti

cle,

mus

tsta

teth

at th

e go

ods a

re o

n bo

ard

a na

med

ship

or

ship

s,an

d th

e da

teor

date

s of l

oadi

ng. I

fth

e ca

rrie

rhas

prev

ious

ly is

sued

toth

e sh

ippe

r a b

ill o

fla

ding

or o

ther

docu

men

t oft

itle

with

re

spec

tto

any

ofsu

chgo

ods,

on re

ques

t of

the

carr

ier,

the

ship

per

mus

t sur

rend

ersu

chdo

cum

ent i

nex

chan

gefo

r a "

ship

ped"

bill

of

ladi

ng. T

he c

arrie

rm

ay a

men

d an

y pr

evio

usly

issu

eddo

cum

ent i

nor

der t

om

eet t

he sh

ippe

r's

dem

and

for a

"shi

pped

" bi

llof

la

ding

if, a

sam

ende

d,su

ch d

ocum

ent

incl

udes

all

the

info

rmat

ion

requ

ired

to b

e co

ntai

ned

in a

"shi

pped

" bi

llof

la

ding

. 3.

The

abse

nce

in th

ebi

ll of

ladi

ng o

f one

or m

ore

parti

cula

rsre

ferr

ed to

in th

isA

rticl

e do

es n

ot a

ffect

the

lega

l cha

ract

er o

f th

e do

cum

ent a

sa b

illof

ladi

ngpr

ovid

ed

that

it n

ever

thel

ess

mee

ts th

ere

quire

-m

ents

set

out

inpa

ra-

grap

h 7

ofA

rticl

e 1.

Art

icle

18-

Doc

umen

ts ot

her

than

bill

sof l

adin

g W

here

a c

arrie

r iss

ues

a do

cum

ent o

ther

than

a bi

ll of

ladi

ngto

evid

ence

the

rece

ipt

parti

cula

rs st

ated

inar

ticle

8 to

be

con-

tain

ed in

the

mul

ti-m

odal

tran

spor

t do

cum

ent.

In s

uch

a ca

se th

em

ultim

odal

trans

port

oper

ator

, af

ter h

avin

g ta

ken

the

good

s in

char

ge,

shal

l del

iver

to th

e co

nsig

nor a

read

able

docu

men

t con

tain

ing

all t

he p

artic

ular

s so

reco

rded

, and

such

docu

men

t sha

llfo

rth

epu

rpos

es o

f the

prov

isio

ns o

f thi

sC

onve

ntio

n be

deem

ed to

be

a m

ultim

odal

tran

spor

t do

cum

ent.

carr

iers

hall

have

the

right

tore

quire

a

sepa

rate

con

sign

men

tno

te to

be

mad

eou

tfo

r eac

h ve

hicl

e us

ed,

or fo

r eac

h ki

nd o

r lot

of

goo

ds.

agre

emen

t bet

wee

nth

e co

nsig

nor a

nd th

eca

rrie

r, a

cons

ign-

men

t not

e m

ayno

t re

late

tom

ore

than

one

wag

on lo

ad.

7. In

the

case

ofca

rria

ge w

hich

ent

ers

the

cust

oms t

errit

ory

of th

eEu

rope

an

Com

mun

ity o

r the

terr

itory

on

whi

ch th

e co

mm

on tr

ansi

t pr

oced

ure

isap

plie

d,ea

ch c

onsi

gnm

ent

mus

t be

acco

mpa

nied

by a

cons

ignm

ent

note

satis

fyin

gth

ere

quire

men

ts o

f A

rticl

e 7.

8. T

he in

tern

atio

nal

asso

ciat

ions

of

carr

iers

shal

l est

ab-

lish

unifo

rm m

odel

cons

ignm

ent n

otes

inag

reem

ent w

ith th

ecu

stom

ers’

inte

r-na

tiona

l ass

ocia

tions

and

the

bodi

es h

avin

gco

mpe

tenc

e fo

rcu

stom

s m

atte

rs in

the

Mem

ber S

tate

sas

wel

l as

any

inte

r-go

vern

men

tal

regi

onal

eco

nom

icin

tegr

atio

n or

gani

satio

n ha

ving

com

pete

nce

toad

opt

its o

wn

cust

oms

legi

slat

ion.

9.

The

con

sign

men

t no

tean

d its

dup

licat

em

ay b

e es

tabl

ishe

din

the

form

of e

lect

roni

cda

ta re

gist

ratio

n w

hich

can

be

trans

-fo

rmed

into

legi

ble

writ

ten

sym

bols

. The

proc

edur

e us

edfo

r th

e re

gist

ratio

n an

d tre

atm

ent o

f dat

a

be m

arke

d “f

orth

e ca

rrie

r”; i

t sha

ll be

sign

ed b

yth

e co

n-si

gnor

. The

seco

nd

part

shal

l be

mar

ked

“for

the

cons

igne

e”;

it sh

all b

esi

gned

byth

e co

nsig

nor a

nd b

yth

e ca

rrie

r. Th

e th

ird

part

shal

l be

sign

edby

the

carr

ier a

nd

hand

ed b

y hi

m to

the

cons

igno

r afte

r the

carg

o ha

s bee

nac

cept

ed.

3.Th

e si

gnat

ure

ofth

eca

rrie

r and

that

of

the

cons

igno

rmay

be

prin

ted

or st

ampe

d.

4. If

,at t

he re

ques

t of

the

cons

igno

r, th

eca

rrie

r mak

es o

ut th

eai

r way

bill,

he

shal

lbe

dee

med

, sub

ject

topr

oof t

o th

eco

ntra

ry,

to h

ave

done

so

on

beha

lf of

the

cons

igno

r.A

rtic

le 7

W

hen

ther

e is

mor

eth

an o

ne p

acka

ge:

(a) t

he c

arrie

r of

carg

o ha

sthe

righ

t to

requ

ire th

e co

nsig

nor

to m

ake

out s

epar

ate

air w

aybi

lls;

(b) t

heco

nsig

nor h

asth

e rig

ht to

requ

ire

the

carr

ier t

o de

liver

se

para

te re

ceip

tsw

hen

the

othe

rmea

ns

refe

rred

to in

par

a-gr

aph

2 of

Arti

cle

5ar

e us

ed.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 490

Part Two. Studies and reports on specific subjects 491IN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

ofth

e go

ods t

obe

carr

ied,

suc

ha

docu

-m

ent i

spr

ima

faci

e ev

iden

ce o

fthe

con

-cl

usio

n of

the

cont

ract

of

car

riage

by

sea

and

the

taki

ngov

er b

yth

e ca

rrie

r of t

he g

oods

asth

erei

n de

scrib

ed.

mus

t be

equi

vale

ntfr

om th

e fu

nctio

nal

poin

t of v

iew,

par

ti-cu

larly

so fa

r as

conc

erns

the

evid

en-

tial v

alue

oft

he

cons

ignm

ent n

ote

repr

esen

ted

byth

ose

data

.

8.2.

CO

NTR

AC

T PA

RTI

CU

LAR

S

INST

RU

ME

NT

HA

GU

E-V

ISB

YH

AM

BU

RG

MU

LTIM

OD

AL

CM

RC

OT

IF-C

IM 1

999

CM

NI

WA

RSA

WM

ON

TR

EA

L8.

2-C

ontr

act

Part

icul

ars

8.2.

1 T

he c

ontr

act

part

icul

ars i

nth

edo

cum

ent o

r el

ectr

onic

reco

rd r

efer

red

toin

artic

le 8

.1 m

ust

incl

ude:

(a) a

desc

ript

ion

ofth

e go

ods;

(b) t

hele

adin

gm

arks

ne

cess

ary

for

iden

ti-fic

atio

n of

the

good

s as

furn

ishe

d by

the

ship

per

befo

re th

eca

rrie

ror

a p

erfo

rm-

ing

part

y re

ceiv

es th

e go

ods;

(c)(

i) th

e nu

mbe

r of

pack

ages

, the

num

ber

of p

iece

s, or

the

quan

-tit

y, a

nd

(ii) t

hew

eigh

t as

furn

ishe

d by

the

ship

per

befo

re th

eca

rrie

ror

a p

erfo

rm-

ing

part

y re

ceiv

es th

e go

ods;

(d) a

stat

emen

t oft

heap

pare

nt o

rder

and

co

nditi

on o

f the

goo

dsat

the

time

the

carr

ier

ora

perf

orm

ing

part

y re

ceiv

es th

emfo

rsh

ipm

ent;

(e

) the

nam

e an

d ad

dres

s oft

he c

arri

er;

and

Art

icle

3

3. A

fter r

ecei

ving

the

good

s int

o hi

scha

rge

the

carr

iero

r the

m

aste

r or a

gent

of

the

carr

ier s

hall,

on

dem

and

of th

e sh

ippe

r, is

sue

to th

e sh

ippe

r a b

ill o

fla

ding

sho

win

gam

ong

othe

r thi

ngs:

a)

the

lead

ing

mar

ksne

cess

ary

fori

dent

i-fic

atio

n of

the

good

sas

the

sam

e ar

e fu

rnis

hed

inw

ritin

g by

the

ship

per b

efor

eth

e lo

adin

g of

suc

h go

ods

star

ts, p

ro-

vide

d su

ch m

arks

are

stam

ped

or o

ther

wis

esh

own

clea

rly u

pon

the

good

sif

unco

vere

d, o

r on

the

case

s or

cov

erin

gsin

whi

ch su

ch g

oods

are

cont

aine

d, in

such

a

man

ner a

ssho

uld

ordi

naril

y re

mai

nle

gibl

e un

til th

e en

d of

the

voya

ge.

b) E

ither

the

num

ber

of p

acka

ges

orpi

eces

, or t

he q

uan-

tity,

or w

eigh

t,as

the

case

may

be,

as

furn

ishe

d in

writ

ing

by th

e sh

ippe

r.

Art

icle

15-

Con

tent

sof

bill

of la

ding

1.

The

bill

of la

ding

mus

t inc

lude

, int

er

alia

, the

follo

win

gpa

rticu

lars

:(a

) The

gene

ral n

atur

eof

the

good

s, th

e le

adin

g m

arks

nec

es-

sary

for i

dent

ifica

tion

of th

ego

ods,

anex

pres

s st

atem

ent,

ifap

plic

able

,as t

o th

eda

nger

ous

char

acte

rof

the

good

s, th

e nu

mbe

r ofp

acka

ges

or p

iece

s, an

d th

ew

eigh

t oft

he g

oods

or

thei

r qua

ntity

othe

r-w

ise

expr

esse

d,al

lsu

ch p

artic

ular

s as

furn

ishe

d by

the

ship

per;

(b) t

heap

pare

ntco

nditi

on o

f the

go

ods;

(c)t

he n

ame

and

prin

cipa

l pla

ce o

fbu

sine

ss o

fthe

ca

rrie

r;(d

) the

nam

e of

the

ship

per;

(e) t

heco

nsig

nee

ifna

med

by

the

ship

per;

(f) t

he p

orto

f loa

ding

un

dert

he c

ontra

ct o

fca

rria

ge b

yse

a an

d th

e da

teon

whi

ch th

e

Art

icle

8-C

onte

nts o

fth

e m

ultim

odal

tr

ansp

ort d

ocum

ent

1. T

hem

ultim

odal

trans

port

docu

men

t sh

all c

onta

in th

e fo

llow

ing

parti

cula

rs:

(a) T

hege

nera

l na

ture

oft

he g

oods

,th

e le

adin

g m

arks

nece

ssar

y fo

ride

nti-

ficat

ion

ofth

e go

ods,

an e

xpre

ss s

tate

men

t, if

appl

icab

le, a

sto

the

dang

erou

sch

arac

ter o

fthe

go

ods,

the

num

ber o

fpa

ckag

es o

rpie

ces,

and

the

gros

sw

eigh

t of

the

good

s or t

heir

quan

tity

othe

rwis

e ex

pres

sed,

all

such

parti

cula

rs a

sfur

-ni

shed

by

the

cons

igno

r;(b

) The

app

aren

t co

nditi

on o

f the

go

ods;

(c) T

he n

ame

and

prin

cipa

l pla

ce o

fbu

sine

ss o

fthe

m

ultim

odal

tran

spor

t op

erat

or;

(d) T

he n

ame

of th

eco

nsig

nor;

(e) T

he c

onsi

gnee

, if

nam

ed b

y th

e co

nsig

nor;

Art

icle

6

1. T

heco

nsig

nmen

tno

te sh

all c

onta

inth

efo

llow

ing

parti

cula

rs:

(a) T

he d

ate

of th

eco

nsig

nmen

t not

ean

dth

e pl

ace

atw

hich

it

is m

ade

out;

(b) T

he n

ame

and

addr

ess

ofth

e se

nder

;(c

) The

nam

e an

dad

dres

s of

the

carr

ier;

(d) T

he p

lace

and

the

date

of t

akin

g ov

er o

fth

e go

ods a

nd th

epl

ace

desi

gnat

ed fo

rde

liver

y;(e

) The

nam

e an

d ad

dres

s of

the

con-

sign

ee;

(f)T

he d

escr

iptio

n in

co

mm

on u

se o

fthe

natu

re o

fthe

goo

dsan

d th

e m

etho

d of

pa

ckin

g, a

nd, i

n th

e ca

se o

f dan

gero

usgo

ods,

thei

rgen

eral

lyre

cogn

ized

de

scrip

tion;

(g

) The

num

bero

fpa

ckag

es a

nd th

eir

spec

ial m

arks

and

num

bers

;(h

)The

gro

ss w

eigh

t of

the

good

s or t

heir

quan

tity

othe

rwis

e ex

pres

sed;

(i)

Cha

rges

rela

ting

to

Art

icle

7-W

ordi

ng o

fth

e co

nsig

nmen

t no

te1.

The

cons

ignm

ent

note

mus

t con

tain

the

follo

win

g pa

rticu

lars

:a)

the

plac

e at

whi

ch

and

the

day

on w

hich

it

is m

ade

out;

b)th

e na

me

and

addr

ess

ofth

e co

n-si

gnor

;c)

the

nam

e an

dad

dres

s of

the

carr

ier

who

has

conc

lude

d th

e co

ntra

ct o

f ca

rria

ge;

d)th

e na

me

and

addr

ess

ofth

e pe

rson

to w

hom

the

good

sha

ve e

ffec

tivel

ybe

enha

nded

ove

r if h

e is

not t

he c

arrie

rre

ferr

ed to

in le

tter

c);

e) th

e pl

ace

and

the

day

of ta

king

ove

r of

the

good

s;f)

the

plac

e of

deliv

ery;

g)th

e na

me

and

addr

ess

ofth

eco

nsig

nee;

h)th

e de

scrip

tion

of

the

natu

re o

f the

go

ods a

nd th

em

etho

d of

pac

king

, an

d, in

cas

eof

Art

icle

11-

Nat

ure

and

cont

ent

5. T

he tr

ansp

ort

docu

men

t, in

add

i-tio

n to

its d

enom

ina-

tion,

con

tain

sthe

fo

llow

ing

parti

cula

rs:

(a) T

he n

ame,

addr

ess,

head

offic

eor

pla

ce o

f res

iden

ce

of th

eca

rrie

r and

of

the

ship

per;

(b) T

he c

onsi

gnee

of

the

good

s;(c

) The

nam

eor

num

ber o

fthe

ves

sel,

whe

re th

e go

ods h

ave

been

take

n on

boa

rd,

orpa

rticu

lars

in th

e tra

nspo

rt do

cum

ent

stat

ing

that

the

good

sha

ve b

een

take

n ov

er

by th

e ca

rrie

r but

not

yet l

oade

d on

the

vess

el;

(d) T

he p

orto

flo

adin

g or

the

plac

ew

here

the

good

s wer

e ta

ken

over

and

the

port

ofdi

scha

rge

orth

epl

ace

of d

eliv

ery;

(e

) The

usu

al n

ame

of th

e ty

peof

good

san

d th

eir m

etho

d of

pa

ckag

ing

and,

for

dang

erou

s or

pollu

ting

good

s,th

eir

nam

e ac

cord

ing

to

Art

icle

8

The

airw

aybi

llan

d th

e re

ceip

t for

the

carg

o sh

all c

onta

in:

(a) a

n in

dica

tion

ofth

e pl

aces

of d

epar

-tu

re a

nd d

estin

atio

n;

(b) i

f the

plac

es o

fde

partu

re a

nd d

es-

tinat

ion

are

with

in

the

terr

itory

of a

si

ngle

Hig

hC

ontra

ctin

g Pa

rty,

one

or m

ore

agre

edst

oppi

ng p

lace

sbe

ing

with

in th

ete

rrito

ry o

f ano

ther

Stat

e, a

n in

dica

tion

ofat

leas

t one

suc

hst

oppi

ng p

lace

; an

d (c

) an

indi

catio

n of

the

wei

ght o

fthe

cons

ignm

ent.

Art

icle

9

Non

-com

plia

nce

with

the

prov

isio

nsof

artic

les 5

to 8

shal

l no

t aff

ect t

he e

xis-

tenc

e or

the

valid

ityof

the

cont

ract

of

carr

iage

, whi

ch s

hall,

none

the

less

, be

subj

ect t

o th

eru

les

ofth

is C

onve

ntio

n in

clud

ing

thos

ere

latin

g to

limita

tion

of li

abili

ty.

Art

icle

5-C

onte

nts

of A

irW

aybi

ll or

Car

go R

ecei

ptTh

e ai

rway

bill

orth

e ca

rgo

rece

ipt

shal

l inc

lude

: (a

) an

indi

catio

n of

the

plac

esof

dep

ar-

ture

and

des

tinat

ion;

(b

) if t

hepl

aces

of

depa

rture

and

des

-tin

atio

n ar

e w

ithin

th

ete

rrito

ry o

f a

sing

le S

tate

Par

ty,

one

or m

ore

agre

edst

oppi

ng p

lace

sbe

ing

with

in th

ete

rrito

ry o

f ano

ther

Stat

e, a

n in

dica

tion

of a

t lea

st o

ne su

ch

stop

ping

pla

ce; a

nd(c

) an

indi

catio

n of

the

wei

ght o

fthe

cons

ignm

ent.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 491

492 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

(f) t

he d

ate:

(i)

on

whi

chth

e ca

rrie

r or

a pe

rfor

min

g pa

rty

rece

ived

the

good

s, o

r(ii

) on

whi

chth

e go

ods

wer

e lo

aded

on

boar

dth

e ve

ssel

, or

(iii)

on w

hich

the

tran

spor

t doc

umen

tor

elec

tron

ic r

ecor

dw

as

issu

ed.

8.2.

2 T

he p

hras

e“a

ppar

ent o

rder

and

cond

ition

of t

he g

oods

”in

art

icle

8.2

.1 r

efer

s to

the

orde

ran

dco

nditi

on o

f the

goo

dsba

sed

on(a

) a r

easo

nabl

eex

tern

al in

spec

tion

ofth

e go

ods a

spac

kage

dat

the

time

the

ship

per

deliv

ers t

hem

to th

eca

rrie

r or

a pe

rfor

min

g pa

rty

and

(b

) any

add

ition

alin

spec

tion

that

the

carr

ier

ora

perf

orm

ing

part

y ac

tual

ly p

erfo

rms

befo

re is

suin

g th

e tr

ansp

ort d

ocum

ento

rth

e el

ectr

onic

rec

ord.

8.

2.3-

Sign

atur

e (a

) Atr

ansp

ort

docu

men

t sha

ll be

sign

edby

or

for

the

carr

ier

or a

per

son

havi

ng a

utho

rity

from

the

carr

ier.

(b

) An

elec

tron

ic

reco

rd s

hall

beau

then

ticat

ed b

y th

eel

ectr

onic

sign

atur

e of

the

carr

ier

or a

pers

onha

ving

aut

hori

ty fr

omth

e ca

rrie

r. Fo

r th

e pu

rpos

e of

this

prov

isio

n su

chel

ectr

onic

sign

atur

em

eans

dat

ain

c)Th

e ap

pare

nt o

rder

and

cond

ition

s of t

he

good

s.Pr

ovid

ed th

at n

oca

rrie

r, m

aste

r or

agen

t oft

he c

arrie

rsh

all b

e bo

und

tost

ate

or s

how

inth

e bi

ll of

ladi

ngan

ym

arks

, num

ber,

quan

tity,

orw

eigh

t w

hich

he

has

reas

onab

le g

roun

d fo

r sus

pect

ing

not

accu

rate

ly to

repr

e-se

nt th

e go

ods

actu

ally

rece

ived

, or

whi

ch h

e ha

shad

no

reas

onab

le m

eans

of

chec

king

.

good

s w

ere

take

n ov

er b

y th

e ca

rrie

rat

the

port

of lo

adin

g;(g

) the

por

t of

disc

harg

e un

der t

heco

ntra

ct o

f car

riage

by

sea;

(h

) the

num

ber o

for

igin

also

f the

bill

of

ladi

ng, i

fmor

e th

anon

e;(i)

the

plac

e of

issu

ance

of th

e bi

ll of

ladi

ng;

(j)th

e si

gnat

ure

ofth

e ca

rrie

ror a

per

son

actin

g on

his

beh

alf;

(k) t

hefr

eigh

t to

the

exte

nt p

ayab

leby

the

cons

igne

e or

oth

erin

dica

tion

that

frei

ght

is p

ayab

le b

yhi

m;

(l) th

e st

atem

ent

refe

rred

to in

par

a-gr

aph

3 of

arti

cle

23;

(m) t

hest

atem

ent,

ifap

plic

able

, tha

tthe

good

s sha

ll or

may

be

carr

ied

on d

eck;

(n

) the

dat

e or

the

perio

d of

del

iver

y of

the

good

s at t

he p

ort

of d

isch

arge

ifex

pres

sly

agre

ed u

pon

betw

een

the

parti

es;

and

(o) a

ny in

crea

sed

limit

or li

mits

of

liabi

lity

whe

re a

gree

din

acc

orda

nce

with

para

grap

h 4

ofar

ticle

6.

(f)T

he p

lace

and

da

teof

taki

ng in

ch

arge

oft

he g

oods

by th

em

ultim

odal

tra

nspo

rt op

erat

or;

(g) T

he p

lace

of

deliv

ery

ofth

ego

ods;

(h) T

he d

ate

or th

epe

riod

of d

eliv

ery

ofth

e go

ods a

t the

pl

ace

of d

eliv

ery,

ifex

pres

sly

agre

ed

upon

bet

wee

n th

epa

rties

;(i)

Ast

atem

ent

indi

catin

g w

heth

er

the

mul

timod

al

trans

port

docu

men

t is

nego

tiabl

e or

non

-ne

gotia

ble;

(j)

The

pla

ce a

ndda

te o

f iss

ue o

f the

m

ultim

odal

tran

spor

t do

cum

ent;

(k)T

he s

igna

ture

of

the

mul

timod

al

trans

port

oper

ator

or

ofa

pers

on h

avin

gau

thor

ity fr

om h

im;

(l) T

he fr

eigh

tfor

each

mod

e of

trans

port,

ifex

pres

sly

agre

ed

betw

een

the

parti

es,

or th

efr

eigh

t, in

clud

ing

itscu

rren

cy, t

oth

eex

tent

pay

able

by th

eco

nsig

nee

or o

ther

indi

catio

n th

at

frei

ght i

s pay

able

by

him

;(m

) The

inte

nded

jo

urne

y ro

ute,

mod

esof

tran

spor

t and

pl

aces

oft

rans

hip-

men

t, if

know

n at

the

time

of is

suan

ce o

fth

e m

ultim

odal

tra

nspo

rt do

cum

ent;

the

carr

iage

(car

riage

char

ges,

supp

lem

en-

tary

cha

rges

, cus

tom

s du

ties a

nd o

ther

ch

arge

s in

curr

edfr

om th

e m

akin

g of

the

cont

ract

to th

e tim

e of

del

iver

y);

(j) T

he re

quis

itein

stru

ctio

ns fo

r C

usto

ms

and

othe

rfo

rmal

ities

; (k

) Ast

atem

entt

hat

the

carr

iage

issu

b-je

ct, n

otw

ithst

andi

ngan

y cl

ause

to th

eco

ntra

ry, t

o th

epr

ovis

ions

of t

his

Con

vent

ion.

2. W

here

app

licab

le,

the

cons

ignm

ent n

ote

shal

l als

o co

ntai

n th

e fo

llow

ing

parti

cula

rs:

(a) A

stat

emen

t tha

t tra

ns-s

hipm

ent i

s not

allo

wed

; (b

) The

cha

rges

w

hich

the

send

erun

derta

kes t

opa

y;(c

) The

am

ount

of

“cas

h on

del

iver

y”ch

arge

s;

(d)A

dec

lara

tion

ofth

e va

lue

ofth

ego

ods a

nd th

eam

ount

repr

esen

ting

spec

ial i

nter

est i

n de

liver

y;(e

) The

send

er's

inst

ruct

ions

toth

e ca

rrie

r reg

ardi

ngin

sura

nce

of th

ego

ods;

(f) T

heag

reed

tim

e lim

it w

ithin

whi

ch

the

carr

iage

is to

be

carr

ied

out;

(g)A

list

of t

hedo

cum

ents

han

ded

toth

e ca

rrie

r.3.

The

parti

es m

ay

dang

erou

s goo

ds, t

hede

scrip

tion

prov

ided

fo

r in

the

Reg

ulat

ion

conc

erni

ng th

eIn

tern

atio

nal

Car

riage

of

Dan

gero

us G

oods

byR

ail (

RID

); i)

the

num

bero

fpa

ckag

es a

nd th

e sp

ecia

l mar

ksan

d nu

mbe

rs n

eces

sary

for t

he id

entif

icat

ion

of c

onsi

gnm

ents

inle

ssth

an fu

ll w

agon

lo

ads;

j) th

e nu

mbe

rof t

hew

agon

in th

e ca

seof

carr

iage

of f

ull

wag

on lo

ads;

k)th

e nu

mbe

r of t

hera

ilway

veh

icle

runn

ing

on it

s ow

n w

heel

s, if

it is

hand

edov

er fo

r car

riage

as

good

s;l)

in a

dditi

on, i

n th

eca

se o

f int

erm

odal

trans

port

units

, the

ca

tego

ry, t

he n

umbe

ror

oth

er c

hara

cter

is-

tics n

eces

sary

for

thei

r ide

ntifi

catio

n;

m)t

he g

ross

mas

s or

the

quan

tity

of th

ego

ods e

xpre

ssed

in

othe

r way

s;n)

a d

etai

led

list o

f th

e do

cum

ents

whi

char

e re

quire

d by

cust

oms o

r oth

er

adm

inis

trativ

e au

tho-

ritie

s an

d ar

e at

tach

ed

to th

e co

nsig

nmen

t no

teor

hel

d at

the

disp

osal

of t

he c

arrie

r at

the

offic

es o

fa

duly

des

igna

ted

auth

ority

or a

bod

yde

sign

ated

in th

eco

ntra

ct;

the

requ

irem

ents

in

forc

e or

, oth

erw

ise,

thei

r gen

eral

nam

e;(f

) The

dim

ensi

ons,

num

ber o

rwei

ght a

sw

ell a

sthe

id

entif

icat

ion

mar

ksof

the

good

s ta

ken

on

boar

d or

take

n ov

er

fort

he p

urpo

se o

fca

rria

ge;

(g) T

he s

tate

men

t, if

appl

icab

le, t

hatt

hego

ods s

hall

or m

aybe

carr

ied

on d

eck

oron

boa

rd o

pen

vess

els;

(h

) The

agr

eed

prov

isio

ns c

once

rn-

ing

frei

ght;

(i) F

or c

onsi

gnm

ent

note

s, th

esp

ecifi

ca-

tion

as to

whe

ther

it

is a

nor

igin

alor

a

copy

; for

bill

sof

la

ding

, the

num

bero

for

igin

als;

(j) T

he p

lace

and

dat

eof

issu

e.

The

lega

l cha

ract

er o

fa

trans

port

docu

men

tin

the

sens

eof

ar

ticle

1, p

arag

raph

6,

of th

is C

onve

ntio

n is

not a

ffec

ted

byth

e ab

senc

e of

one

or

mor

e pa

rticu

lars

refe

rred

to in

this

para

grap

h.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 492

Part Two. Studies and reports on specific subjects 493IN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

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elec

tron

ic fo

rmin

clud

ed in

, or

othe

rwis

e lo

gica

lly

asso

ciat

ed w

ith, t

heel

ectr

onic

rec

ord

and

that

is u

sed

toid

entif

yth

e si

gnat

ory

inre

latio

n to

the

elec

tron

ic r

ecor

d an

dto

indi

cate

the

carr

ier’

s aut

hori

satio

nof

the

elec

tron

icre

cord

. 8.

2.4-

Om

issi

on o

fre

quir

ed c

onte

nts f

rom

the

cont

ract

par

ticul

ars.

The

abs

ence

of o

ne o

rm

ore

of th

e co

ntra

ctpa

rtic

ular

s ref

erre

d to

in a

rtic

le 8

.2.1

, or

the

inac

cura

cy o

f one

or

mor

e of

thos

epa

rtic

ular

s, do

es n

otof

its

elf a

ffec

t the

lega

l ch

arac

ter

or v

alid

ity o

fth

e tr

ansp

ort

docu

men

t or

ofth

eel

ectr

onic

rec

ord.

(n) T

he s

tate

men

t re

ferr

ed to

in

para

grap

h 3

ofar

ticle

28;

(o

) Any

oth

erpa

rticu

lars

whi

ch th

e pa

rties

may

agr

eeto

inse

rt in

the

mul

ti-m

odal

tran

spor

t do

cum

ent,

if no

tin

cons

iste

nt w

ithth

ela

wof

the

coun

tryw

here

the

mul

ti-m

odal

tran

spor

t do

cum

ent i

s iss

ued.

2. T

heab

senc

e fr

omth

e m

ultim

odal

tra

nspo

rt do

cum

ent

of o

ne o

r mor

e of

the

parti

cula

rs re

ferr

ed to

in p

arag

raph

1of

this

artic

le sh

alln

ot

affe

ct th

ele

gal

char

acte

r oft

he

docu

men

t asa

mul

timod

al tr

ansp

ort

docu

men

t pro

vide

dth

at it

nev

erth

eles

sm

eets

the

requ

ire-

men

ts s

et o

utin

para

-gr

aph

4 of

arti

cle

1.

ente

r in

the

cons

ign-

men

t not

ean

y ot

her

parti

cula

rs w

hich

th

ey m

ayde

emus

eful

.

o)th

e co

sts r

elat

ing

to c

arria

ge (t

heca

rria

ge c

harg

e,

inci

dent

al c

osts

,cu

stom

s dut

ies

and

othe

r cos

ts in

curr

edfr

om th

e co

nclu

sion

of

the

cont

ract

unt

ilde

liver

y) in

so

far a

sth

eym

ust b

e pa

idby

the

cons

igne

eor

any

othe

r sta

tem

ent t

hat

the

cost

s are

pay

able

by th

e co

nsig

nee;

p) a

sta

tem

ent t

hat

the

carr

iage

issu

bjec

t, no

twith

-st

andi

ng a

ny c

laus

eto

the

cont

rary

, to

thes

e U

nifo

rm R

ules

.2.

Whe

re a

pplic

able

th

e co

nsig

nmen

t not

em

ust a

lso

cont

ain

the

follo

win

g pa

rticu

lars

:a)

in th

e ca

se o

fca

rria

ge b

ysu

cces

-si

ve c

arrie

rs, t

he

carr

ier w

ho m

ust

deliv

er th

e go

ods

whe

n he

has

con-

sent

ed to

this

ent

ry in

th

e co

nsig

nmen

tno

te;

b)th

e co

sts

whi

chth

e co

nsig

nor u

nder

take

sto

pay

;c)

the

amou

nt o

fthe

ca

sh o

n de

liver

ych

arge

; d)

the

decl

arat

ion

ofth

e va

lue

ofth

ego

ods a

nd th

eam

ount

repr

esen

ting

the

spec

ial i

nter

est i

n de

liver

y;e)

the

agre

edtra

nsit

perio

d;f)

the

agre

edro

ute;

g)

a li

st o

fthe

docu

men

ts n

ot

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 493

494 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

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men

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ded

over

to

the

carr

ier;

h)th

e en

tries

mad

eby

the

cons

igno

r con

-ce

rnin

g th

e nu

mbe

ran

d de

scrip

tion

of

seal

s he

has

affix

ed

to th

e w

agon

. 3.

The

parti

es to

the

cont

ract

may

ent

er o

nth

e co

nsig

nmen

t not

ean

y ot

her p

artic

ular

sth

ey c

onsi

deru

sefu

l.

8.3.

QU

ALI

FYI

NG

THE

DE

SCR

IPTI

ON

OF

THE

GO

OD

S IN

THE

CO

NTR

AC

TPA

RTI

CU

LAR

S

INST

RU

ME

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HA

GU

E-V

ISB

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WA

RSA

WM

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L8.

3- Q

ualif

ying

the

desc

ript

ion

of th

e go

ods

in th

e co

ntra

ct

part

icul

ars

8.3.

1.U

nder

the

follo

win

g ci

rcum

stan

ces,

the

carr

ier,

ifac

ting

ingo

od fa

ith w

hen

issu

ing

a tr

ansp

ortd

ocum

ent o

ran

ele

ctro

nic

reco

rd,

may

qua

lify

the

info

rmat

ion

men

tione

din

art

icle

8.2

.1(b

)or

8.2.

1(c)

with

anap

prop

riat

e cl

ause

th

erei

n to

indi

cate

that

the

carr

ier

does

not

assu

me

resp

onsi

bilit

yfo

rth

e ac

cura

cy o

f the

in

form

atio

n fu

rnis

hed

by th

e sh

ippe

r:(a

) For

non

-co

ntai

neri

zed

good

s:(i)

ifth

e ca

rrie

rca

nsh

ow th

atit

had

nore

ason

able

mea

nsof

chec

king

the

info

rma-

tion

furn

ishe

d by

the

ship

per,

itm

ay in

clud

ean

app

ropr

iate

qual

ifyin

g cl

ause

in th

eco

ntra

ct p

artic

ular

s,or

(ii) i

fthe

car

rier

Art

icle

3

Prov

ided

that

no

carr

ier,

mas

ter o

rag

ent o

fthe

car

rier

shal

l be

boun

d to

stat

e or

sho

win

the

bill

of la

ding

any

mar

ks, n

umbe

r,qu

antit

y, o

rwei

ght

whi

ch h

e ha

sre

ason

able

gro

und

for s

uspe

ctin

gno

tac

cura

tely

tore

pres

ent t

he g

oods

actu

ally

rece

ived

, or

whi

ch h

e ha

shad

no

reas

onab

le m

eans

of

chec

king

. 4.

Such

a b

ill o

fla

ding

shal

l be

prim

afa

cie

evid

ence

oft

he

rece

ipt b

y th

e ca

rrie

r of

the

good

s as

ther

ein

desc

ribed

inac

cord

ance

with

para

grap

h3

(a),

(b)

and

(c).

How

ever

,pr

oof t

o th

eco

ntra

rysh

all n

ot b

ead

mis

sibl

e w

hen

the

bill

of la

ding

has

been

tran

sfer

red

to a

th

ird p

arty

act

ing

in

Art

icle

16-

Bill

sof

ladi

ng: r

eser

vatio

nsan

d ev

iden

tiary

effe

ct1.

If th

e bi

ll of

ladi

ngco

ntai

ns p

artic

ular

sco

ncer

ning

the

gene

ral n

atur

e,le

ad-

ing

mar

ks,n

umbe

r of

pack

ages

orp

iece

s, w

eigh

t or q

uant

ity o

f th

e go

ods

whi

ch th

e ca

rrie

r or o

ther

pe

rson

issu

ing

the

bill

of la

ding

on

his

beha

lfkn

ows

or h

asre

ason

able

gro

unds

to su

spec

t do

not

accu

rate

ly re

pres

ent

the

good

s act

ually

take

n ov

er o

r, w

here

a

“shi

pped

” bi

ll of

ladi

ng is

issu

ed,

load

ed, o

r if h

e ha

d no

reas

onab

le m

eans

of c

heck

ing

such

pa

rticu

lars

, the

ca

rrie

r ors

uch

othe

rpe

rson

mus

t ins

ert i

nth

ebi

ll of

ladi

nga

rese

rvat

ion

spec

ify-

ing

thes

e in

accu

raci

es, g

roun

ds

Art

icle

9-

Res

erva

tions

inth

em

ultim

odal

tran

spor

t do

cum

ent

1. If

the

mul

timod

altra

nspo

rt do

cum

ent

cont

ains

par

ticul

ars

conc

erni

ng th

ege

nera

l nat

ure,

lead

ing

mar

ks,

num

ber o

fpac

kage

sor

pie

ces,

wei

ght o

rqu

antit

y of

the

good

sw

hich

the

mul

ti-m

odal

tran

spor

t op

erat

or o

r a p

erso

n ac

ting

on h

is b

ehal

f kn

ows,

or h

asre

ason

able

gro

unds

to su

spec

t, do

not

accu

rate

ly re

pres

ent

the

good

s act

ually

take

n in

cha

rge,

or i

fhe

has

no

reas

onab

lem

eans

ofc

heck

ing

such

par

ticul

ars,

the

mul

timod

al tr

ansp

ort

oper

ator

or a

per

son

actin

g on

his

beh

alf

shal

l ins

erti

n th

e m

ultim

odal

tran

spor

t do

cum

ent a

rese

rva-

tion

spec

ifyin

gth

ese

Art

icle

8

1. O

nta

king

ove

r the

good

s, th

eca

rrie

rsh

all c

heck

:(a

) The

acc

urac

yof

the

stat

emen

tsin

the

cons

ignm

ent n

ote

asto

the

num

bero

f pa

ckag

es a

nd th

eir

mar

ks a

nd n

umbe

rs,

and

(b) T

he a

ppar

ent

cond

ition

of t

he

good

s and

thei

rpa

ckag

ing.

2. W

here

the

carr

ier

has n

ore

ason

able

m

eans

ofc

heck

ing

the

accu

racy

of th

est

atem

ents

refe

rred

toin

par

agra

ph 1

(a)o

fth

is a

rticl

e, h

e sh

all

ente

r his

rese

rvat

ions

in th

e co

nsig

nmen

t no

te to

geth

erw

ith th

e gr

ound

s on

whi

ch

they

are

bas

ed. H

e sh

all l

ikew

ise

spec

ifyth

e gr

ound

s for

any

rese

rvat

ions

whi

ch h

em

akes

with

rega

rdto

the

appa

rent

con

di-

tion

ofth

e go

ods a

nd

Art

icle

11-

Exa

min

atio

n1.

The

carr

ier s

hall

have

the

right

toex

amin

e at

any

time

whe

ther

the

cond

i-tio

nsof

car

riage

hav

e be

en c

ompl

ied

with

an

d w

heth

erth

eco

nsig

nmen

t cor

res-

pond

s w

ith th

een

tries

in th

e co

n-si

gnm

ent n

ote

mad

eby

the

cons

igno

r.If

the

exam

inat

ion

conc

erns

the

cont

ents

of th

eco

nsig

nmen

t,th

is sh

allb

e ca

rrie

d ou

t asf

ar a

s pos

sibl

ein

the

pres

ence

of th

e pe

rson

ent

itled

; w

here

this

is n

ot

poss

ible

, the

carr

ier

shal

l req

uire

the

pres

ence

of t

wo

inde

-pe

nden

t witn

esse

s,un

less

the

law

s and

pr

escr

iptio

ns o

fthe

St

ate

whe

re th

e ex

amin

atio

n ta

kes

plac

e pr

ovid

eot

herw

ise.

2. If

the

cons

ignm

ent

Art

icle

11-

Nat

ure

and

cont

ent

3. T

he tr

ansp

ort

docu

men

t sha

llbe

prim

a fa

cie

evid

ence

, un

less

pro

ved

to th

e co

ntra

ry,o

f the

con

-cl

usio

n an

d co

nten

t of

the

cont

ract

of

carr

iage

and

of t

he

taki

ng o

ver o

fthe

good

s by

the

carr

ier.

In p

artic

ular

,it s

hall

prov

ide

a ba

sis f

orth

e pr

esum

ptio

n th

atth

ego

ods h

ave

been

take

n ov

er fo

rca

rria

ge a

s th

eyar

e de

scrib

ed in

the

trans

port

docu

men

t. 4.

Whe

n th

e tra

nspo

rt do

cum

ent i

s abi

llof

ladi

ng, i

t alo

ne sh

all

dete

rmin

e th

e re

la-

tions

bet

wee

n th

eca

rrie

r and

the

cons

igne

e. T

heco

nditi

ons o

f the

cont

ract

of c

arria

ge

shal

l con

tinue

tode

term

ine

the

rela

-tio

ns b

etw

een

carr

ier

and

ship

per.

Art

icle

11

1.Th

e ai

r way

bill

orth

e re

ceip

t for

the

carg

o is

prim

a fa

cie

evid

ence

oft

heco

nclu

sion

oft

heco

ntra

ct, o

f the

ac

cept

ance

of t

heca

rgo

and

ofth

e co

nditi

ons o

f car

riage

m

entio

ned

ther

ein.

2. A

ny s

tate

men

tsin

th

eai

r way

bill

orth

e re

ceip

t for

the

carg

ore

latin

g to

the

wei

ght,

dim

ensi

ons

and

pack

ing

ofth

e ca

rgo,

as

wel

l as

thos

e re

latin

g to

the

num

ber o

fpac

kage

s,

are

prim

a fa

cie

evid

ence

oft

he fa

cts

stat

ed; t

hose

rela

ting

to th

e qu

antit

y,vo

lum

e an

d co

nditi

on

of th

eca

rgo

dono

t co

nstit

ute

evid

ence

agai

nst t

he c

arrie

rex

cept

so

fara

sthe

ybo

th h

ave

been

, and

are

stat

ed in

the

air

way

bill

to h

ave

been

,ch

ecke

d by

him

in

Art

icle

11-

Evi

dent

iary

val

ue

of d

ocum

enta

tion

1. T

he a

ir w

aybi

llor

the

carg

o re

ceip

tis

prim

a fa

cie

evid

ence

oft

heco

nclu

sion

oft

heco

ntra

ct, o

f the

ac

cept

ance

of t

heca

rgo

and

ofth

e co

nditi

ons o

fca

rria

ge m

entio

ned

ther

ein.

2.

Any

sta

tem

ents

in th

e ai

rway

bill

orth

e ca

rgo

rece

ipt

rela

ting

to th

ew

eigh

t, di

men

-si

ons

and

pack

ing

of th

eca

rgo,

as

wel

l ast

hose

re

latin

g to

the

num

ber o

fpa

ckag

es, a

repr

ima

faci

e ev

iden

ce o

fthe

fact

s sta

ted;

thos

e re

latin

g to

the

quan

tity,

vol

ume

and

cond

ition

of

the

carg

odo

not

cons

titut

e ev

iden

ce

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 494

Part Two. Studies and reports on specific subjects 495IN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

reas

onab

ly c

onsi

ders

the

info

rmat

ion

furn

ishe

d by

the

ship

per

to b

ein

accu

rate

, itm

ayin

clud

e a

clau

sepr

ovid

ing

wha

t it

reas

onab

ly c

onsi

ders

accu

rate

info

rmat

ion.

(b) F

orgo

ods d

eliv

ered

toth

e ca

rrie

r in

a c

lose

dco

ntai

ner,

the

carr

ier

may

incl

ude

anap

prop

riat

e qu

alify

ing

clau

se in

the

cont

ract

part

icul

ars w

ithre

spec

tto

: (i)

the

lead

ing

mar

ks o

nth

e go

ods i

nsid

e th

e co

ntai

ner,

or(ii

) the

num

ber

ofpa

ckag

es, t

he n

umbe

r of

piec

es, o

r th

e qu

antit

y of

the

good

s ins

ide

the

cont

aine

r,un

less

the

carr

ier

or a

pe

rfor

min

gpa

rty

in fa

ctin

spec

tsth

e go

ods i

nsid

eth

e co

ntai

ner

or

othe

rwis

e ha

sact

ual

know

ledg

e of

the

cont

ents

oft

heco

ntai

ner.

(c) F

orgo

ods d

eliv

ered

toth

e ca

rrie

r or

a pe

rfor

min

g pa

rty

in a

cl

osed

con

tain

er, t

he

carr

ier

may

qual

ify a

ny

stat

emen

t of t

he w

eigh

tof

good

s or

the

wei

ght o

fa

cont

aine

r an

d its

cont

ents

with

an

expl

icit

stat

emen

t tha

t the

carr

ier

has n

ot w

eigh

edth

e co

ntai

ner

if:(i)

the

carr

ier

can

show

th

at n

eith

er th

e ca

rrie

rno

ra

perf

orm

ing

part

y w

eigh

ed th

e co

ntai

ner,

and

(ii)t

he sh

ippe

r an

d th

e

good

faith

. of

sus

pici

on o

rthe

ab

senc

e of

reas

on-

able

mea

ns o

fch

ecki

ng.

2. If

the

carr

ier o

rot

her p

erso

n is

suin

g th

ebi

ll of

ladi

ng o

nhi

s beh

alf f

ails

tono

teon

the

bill

ofla

ding

the

appa

rent

co

nditi

on o

f the

go

ods,

he is

dee

med

to h

ave

note

d on

the

bill

of la

ding

that

the

good

s w

ere

in

appa

rent

goo

dco

nditi

on.

3. E

xcep

t for

pa

rticu

lars

in re

spec

t of

whi

ch a

nd to

the

exte

nt to

whi

cha

rese

rvat

ion

perm

itted

unde

r par

agra

ph 1

of

this

artic

le h

as b

een

ente

red:

(a) T

he b

ill o

flad

ing

is p

rima

faci

e ev

iden

ce o

fthe

taki

ng o

ver o

r, w

here

a

“shi

pped

” bi

ll of

ladi

ng is

issu

ed,

load

ing,

by

the

carr

ier o

f the

goo

dsas

des

crib

ed in

the

bill

of la

ding

; and

(b

) Pro

of to

the

cont

rary

by

the

carr

ier i

s not

adm

issi

ble

if th

e bi

ll of

ladi

ng h

as b

een

trans

ferr

ed to

a th

irdpa

rty, i

nclu

ding

a co

nsig

nee,

who

ingo

od fa

ith h

asac

ted

in re

lianc

e on

the

desc

riptio

n of

the

good

s the

rein

. 4.

Abi

ll of

ladi

ngw

hich

doe

s not

, as

prov

ided

in

inac

cura

cies

, gro

unds

of

sus

pici

on o

rthe

ab

senc

e of

reas

on-

able

mea

ns o

fch

ecki

ng.

2. If

the

mul

timod

altra

nspo

rt op

erat

or o

ra

pers

on a

ctin

g on

his

beha

lffa

ils to

not

eon

the

mul

timod

al

trans

port

docu

men

t th

e ap

pare

nt c

ondi

-tio

n of

the

good

s,he

is d

eem

ed to

hav

eno

ted

on th

e m

ulti-

mod

al tr

ansp

ort

docu

men

t tha

t the

go

ods

wer

e in

ap

pare

nt g

ood

cond

ition

.

thei

r pac

kagi

ng,s

uch

rese

rvat

ions

shal

l not

bi

nd th

ese

nder

unle

ss h

e ha

sex

pres

sly

agre

ed to

be b

ound

by

them

in

the

cons

ignm

ent

note

.3.

The

send

er s

hall

been

title

d to

requ

ire th

e ca

rrie

r to

chec

k th

egr

oss

wei

ght o

fthe

good

s or t

heir

quan

tity

othe

rwis

e ex

pres

sed.

He

may

also

requ

ireth

e co

n-te

ntso

f the

pac

kage

sto

be

chec

ked.

The

ca

rrie

r sha

llbe

entit

led

to c

laim

the

cost

of s

uch

chec

king

. The

resu

ltof

the

chec

ks s

hall

been

tere

d in

the

cons

ignm

ent n

ote.

Art

icle

9

1. T

heco

nsig

nmen

tno

tesh

all b

e pr

ima

faci

e ev

iden

ce o

fthe

m

akin

g of

the

cont

ract

of c

arria

ge,

the

cond

ition

s of t

heco

ntra

ct a

nd th

ere

ceip

t oft

he g

oods

by th

e ca

rrie

r. 2.

If th

e co

nsig

nmen

t no

te c

onta

ins n

osp

ecifi

c re

serv

atio

nsby

the

carr

ier,

it sh

all

be p

resu

med

, unl

ess

the

cont

rary

ispr

oved

, tha

t the

go

ods a

nd th

eir

pack

agin

g ap

pear

edto

be

in g

ood

cond

ition

whe

n th

eca

rrie

r too

k th

em

over

and

that

the

num

ber o

fpac

kage

s,

thei

r mar

ks a

nd

does

not

cor

resp

ond

with

the

entri

es in

the

cons

ignm

ent n

ote

orif

the

prov

isio

nsre

latin

g to

the

carr

iage

of g

oods

acce

pted

sub

ject

toco

nditi

ons h

ave

not

been

com

plie

d w

ith,

the

resu

lt of

the

exam

inat

ion

mus

t be

ente

red

in th

e co

pyof

the

cons

ignm

ent n

ote

whi

ch a

ccom

pani

esth

e go

ods,

and

also

inth

e du

plic

ate

of th

e co

nsig

nmen

t not

e, if

it is

still

hel

d by

the

carr

ier.

Inth

is c

ase

the

cost

sof

the

exam

inat

ion

shal

l be

char

ged

agai

nst t

he

good

s, if

they

hav

e no

t bee

n pa

idim

med

iate

ly.

3.W

hen

the

con-

sign

or lo

ads t

he

good

s, he

shal

lbe

entit

led

to re

quire

the

carr

ier t

oex

amin

e th

eco

nditi

on o

f the

go

ods a

nd th

eir

pack

agin

g as

wel

las

the

accu

racy

ofst

atem

ents

on

the

cons

ignm

ent n

ote

asto

the

num

bero

f pa

ckag

es, t

heir

mar

ks

and

num

bers

asw

ell

asth

e gr

oss m

ass o

fth

e go

ods o

r the

irqu

antit

y ot

herw

ise

expr

esse

d. T

he

carr

ier s

hall

beob

liged

to p

roce

ed

with

the

exam

inat

ion

only

if he

has

appr

o-pr

iate

mea

ns o

fca

rryi

ng it

out

. The

ca

rrie

r may

dem

and

Art

icle

12-

Res

erva

tions

intr

ansp

ort d

ocum

ents

1. T

he c

arrie

r is

entit

led

to in

clud

e in

th

e tra

nspo

rt do

cu-

men

t res

erva

tions

conc

erni

ng:

(a) T

he d

imen

sion

s,nu

mbe

r orw

eigh

t of

the

good

s,if

he h

asgr

ound

s to

susp

ect

that

the

parti

cula

rssu

pplie

d by

the

ship

per a

rein

accu

rate

or i

fhe

had

no re

ason

able

m

eans

ofc

heck

ing

such

par

ticul

ars,

espe

cial

ly b

ecau

se

the

good

s hav

e no

t be

en c

ount

ed,

mea

sure

d or

wei

ghed

in h

is p

rese

nce

orbe

caus

e, w

ithou

tex

plic

it ag

reem

ent,

the

dim

ensi

onso

rw

eigh

ts h

ave

been

de

term

ined

by

drau

ght m

easu

re-

men

t; (b

) Ide

ntifi

catio

nm

arks

whi

ch a

re n

otcl

early

and

dur

ably

affix

ed o

n th

e go

ods

them

selv

esor

, if t

hey

are

pack

ed,o

n th

ere

cept

acle

s or

pack

agin

g;(c

) The

app

aren

t con

-di

tion

of th

e go

ods.

2. If

the

carr

ier f

ails

to

not

e th

e ap

pare

nt

cond

ition

of t

he

good

s or

doe

s no

t en

ter r

eser

vatio

nsin

that

resp

ect,

he is

deem

ed to

hav

e no

ted

in th

e tra

nspo

rt do

cum

ent t

hat t

he

the

pres

ence

of th

e co

nsig

nor,

or re

late

toth

e ap

pare

nt c

ondi

-tio

n of

the

carg

o.

agai

nst t

he c

arrie

rex

cept

so

fara

sth

ey b

oth

have

be

en, a

nd a

re

stat

ed in

the

air

way

bill

orth

eca

rgo

rece

ipt t

oha

ve b

een,

chec

ked

by it

inth

e pr

esen

ceof

the

cons

igno

r, or

rela

teto

the

appa

rent

co

nditi

on o

f the

ca

rgo.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 495

496 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

carr

ier

did

not a

gree

prio

r to

the

ship

men

t th

at th

e co

ntai

ner

wou

ld

bew

eigh

ed a

nd th

ew

eigh

t wou

ld b

ein

clud

edin

the

cont

ract

part

icul

ars.

8.3.

2-R

easo

nabl

e m

eans

of c

heck

ing

For

purp

oses

ofar

ticle

8.3

.1:

(a) a

“re

ason

able

mea

ns

ofch

ecki

ng”

mus

t be

not

only

phy

sica

lly

prac

ticab

le b

ut a

lso

com

mer

cial

lyre

ason

able

;(b

) a c

arri

er a

cts i

n“g

ood

faith

”w

hen

issu

ing

a tr

ansp

ort

docu

men

t or

anel

ectr

onic

rec

ord

if:(i)

the

carr

ier

has

noac

tual

kno

wle

dge

that

any

mat

eria

l sta

tem

ent

in th

e tr

ansp

ort d

ocu-

men

t or

elec

tron

ic

reco

rd is

mat

eria

lly fa

lse

or m

isle

adin

g,an

d (ii

) the

car

rier

has

not

inte

ntio

nally

faile

dto

dete

rmin

e w

heth

er a

mat

eria

l sta

tem

enti

nth

e tr

ansp

ort d

ocum

ent

or e

lect

roni

c re

cord

ism

ater

ially

fals

e or

m

isle

adin

g be

caus

e it

belie

ves t

hat t

hest

atem

ent i

s lik

ely

to b

efa

lse

orm

isle

adin

g.(c

) The

burd

en o

f pr

ovin

g w

heth

er a

ca

rrie

r ac

ted

in g

ood

faith

whe

nis

suin

g a

tran

spor

t doc

umen

tor

an e

lect

roni

c re

cord

ison

the

part

ycl

aim

ing

that

the

carr

ier

did

not

act i

ngo

od fa

ith.

8.3.

3-Pr

ima

faci

e an

d co

nclu

sive

evi

denc

e

para

grap

h 1,

sub-

para

grap

h (h

)of

artic

le 1

5, se

t for

thth

e fr

eigh

t or o

ther

-w

ise

indi

cate

that

frei

ght i

s pay

able

by

the

cons

igne

eor

doe

sno

t set

forth

dem

ur-

rage

incu

rred

at t

he

port

of lo

adin

gpa

yabl

e by

the

con-

sign

ee, i

s prim

a fa

cie

evid

ence

that

no

frei

ght o

r suc

h de

mur

rage

is p

ayab

le

by h

im.

How

ever

, pro

of to

the

cont

rary

by

the

carr

ier i

s not

adm

issi

ble

whe

nth

e bi

ll of

ladi

ngha

sbe

en tr

ansf

erre

d to

a

third

par

ty, i

nclu

ding

a co

nsig

nee,

who

in

good

faith

has

acte

d in

relia

nce

on th

e ab

senc

e in

the

bill

ofla

ding

of a

ny su

ch

indi

catio

n.

num

bers

cor

res-

pond

ed w

ith th

est

atem

ents

in th

eco

nsig

nmen

t not

e.

the

paym

ento

f the

co

sts o

fthe

exa

min

a-tio

n. T

he re

sult

of th

e ex

amin

atio

n sh

all b

een

tere

d on

the

con-

sign

men

t not

e.A

rtic

le 1

2-E

vide

ntia

l va

lue

of th

e co

nsig

nmen

t not

e1.

The

cons

ignm

ent

note

shal

l be

prim

afa

cie

evid

ence

oft

he

conc

lusi

on a

nd th

e co

nditi

ons o

f the

cont

ract

of c

arria

ge

and

the

taki

ngov

er

ofth

e go

ods b

yth

eca

rrie

r.2.

Ifth

e ca

rrie

r has

lo

aded

the

good

s, th

eco

nsig

nmen

t not

esh

all b

e pr

ima

faci

eev

iden

ce o

fthe

con

-di

tion

of th

e go

ods

and

thei

rpac

kagi

ngin

dica

ted

onth

e co

nsig

nmen

t not

eor

,in

the

abse

nce

ofsu

ch in

dica

tions

,of

thei

r app

aren

tlygo

od

cond

ition

at t

hem

omen

t the

yw

ere

take

n ov

er b

y th

e ca

rrie

r and

of t

he

accu

racy

oft

hest

atem

ents

in th

eco

nsig

nmen

t not

eco

ncer

ning

the

num

ber o

fpac

kage

s,

thei

r mar

ks a

ndnu

mbe

rsas

wel

l as

the

gros

s m

ass

of th

e go

ods o

r the

irqu

antit

y ot

herw

ise

expr

esse

d.

3. If

the

cons

igno

rha

s lo

aded

the

good

s,th

e co

nsig

nmen

t not

esh

all b

e pr

ima

faci

eev

iden

ce o

fthe

con

-di

tion

of th

e go

ods

good

sw

ere

in a

ppa-

rent

goo

d co

nditi

on.

3. If

, in

acco

rdan

cew

ith th

epa

rticu

lars

set o

ut in

the

trans

-po

rt do

cum

ent,

the

good

sar

e pl

aced

in a

co

ntai

ner o

r in

the

hold

s oft

he v

esse

l an

d se

aled

by

othe

r pe

rson

s tha

n th

eca

rrie

r, hi

sser

vant

sor

his

agen

ts, a

nd if

ne

ither

the

cont

aine

rno

r the

sea

lsar

eda

mag

ed o

r bro

ken

whe

n th

eyre

ach

the

port

ofdi

scha

rge

orth

epl

ace

of d

eliv

ery,

it

shal

l be

pres

umed

that

the

loss

or

dam

age

to th

ego

ods

did

not o

ccur

dur

ing

carr

iage

.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 496

Part Two. Studies and reports on specific subjects 497IN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

Exc

ept a

s ot

herw

ise

prov

ided

in a

rtic

le 8

.3.4

, a

tran

spor

tdoc

umen

t or

anel

ectr

onic

rec

ord

that

evid

ence

s re

ceip

t of t

hego

ods i

s:(a

) pri

ma

faci

e ev

iden

ceof

the

carr

ier’

s rec

eipt

of th

e go

ods a

sdes

crib

edin

the

cont

ract

part

icul

ars;

and

(b

) con

clus

ive

evid

ence

of

the

carr

ier’

s rec

eipt

of th

e go

ods a

sdes

crib

edin

the

cont

ract

part

icul

ars

[(i)]

if a

nego

tiabl

etr

ansp

ort d

ocum

ento

r a

nego

tiabl

e el

ectr

onic

reco

rd h

as b

een

tran

s-fe

rred

to a

thir

dpa

rty

actin

g in

goo

d fa

ith [o

r(ii

) if a

per

son

actin

gin

good

faith

has

pai

dva

lue

orot

herw

ise

alte

red

its p

ositi

on in

relia

nce

on th

e de

scri

ptio

n of

the

good

s in

the

cont

ract

part

icul

ars]

.8.

3.4-

Eff

ect o

f qua

lifyi

ngcl

ause

s If

the

cont

ract

par

ticu-

lars

incl

ude

a qu

alify

ing

clau

se th

atco

mpl

ies

with

the

requ

irem

ents

of

artic

le 8

.3.1

, the

n th

e tr

ansp

ort d

ocum

entw

illno

t con

stitu

tepr

ima

faci

e or

con

clus

ive

evi-

denc

e un

der

artic

le 8

.3.3

to

the

exte

nt th

at th

ede

scri

ptio

n of

the

good

s is

qua

lifie

d by

the

clau

se.

and

of th

eir p

acka

g-in

g in

dica

ted

in th

eco

nsig

nmen

t not

eor

,in

the

abse

nce

ofsu

ch in

dica

tion,

ofth

eir a

ppar

ently

good

co

nditi

on a

nd o

fthe

ac

cura

cy o

fthe

stat

emen

ts re

ferr

ed to

in §

2 s

olel

yin

the

case

whe

re th

e ca

rrie

rha

s ex

amin

edth

eman

d re

cord

ed o

n th

eco

nsig

nmen

t not

ea

resu

lt of

his

exam

ina-

tion

whi

ch ta

llies

. 4.

How

ever

, the

co

nsig

nmen

t not

ew

ill n

ot b

e pr

ima

faci

e ev

iden

cein

a

case

whe

re it

bea

rs a

re

ason

ed re

serv

atio

n.

A re

ason

for a

rese

r-va

tion

coul

d be

that

th

e ca

rrie

rdoe

s not

ha

ve th

e ap

prop

riate

mea

ns to

exa

min

ew

heth

er th

e co

n-si

gnm

ent c

orre

spon

dsto

the

entri

es in

the

cons

ignm

ent n

ote.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 497

498 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIV8.

4. D

EF

ICIE

NC

IES

IN T

HE

CO

NTR

AC

TPA

RTI

CU

LA

RS

INST

RU

ME

NT

HA

GU

E-V

ISB

YH

AM

BU

RG

MU

LTIM

OD

AL

CM

RC

OT

IF-C

IM 1

999

CM

NI

WA

RSA

WM

ON

TR

EA

L8.

4-D

efic

ienc

ies i

n th

e co

ntra

ct p

artic

ular

s 8.

4.1-

Dat

eIf

the

cont

ract

par

ticu-

lars

incl

ude

the

date

but f

ail t

o in

dica

teth

esi

gnifi

canc

e th

ereo

f,th

en th

e da

teis

con

-si

dere

d to

be:

(a) i

fthe

con

trac

tpa

rtic

ular

s ind

icat

eth

at th

ego

ods h

ave

been

load

edon

boa

rda

vess

el,t

he d

ate

onw

hich

all

of th

e go

ods

indi

cate

d in

the

tran

spor

t doc

umen

tor

elec

tron

ic r

ecor

dw

ere

load

edon

boa

rd th

e ve

ssel

; or

(b) i

f the

con

trac

tpa

rtic

ular

s do

not

indi

cate

that

the

good

sha

vebe

en lo

aded

on

boar

d a

vess

el, t

he

date

on

whi

ch th

eca

rrie

r or

a pe

rfor

min

g pa

rty

rece

ived

the

good

s.[8

.4.2

. Fai

lure

toid

entif

y th

e ca

rrie

rIf

the

cont

ract

par

ticu-

lars

fail

to id

entif

yth

e ca

rrie

r bu

tind

icat

eth

at th

ego

ods h

ave

been

load

edon

boa

rda

nam

ed v

esse

l, th

enth

e re

gist

ered

ow

ner

ofth

e ve

ssel

is p

resu

med

to b

e th

e ca

rrie

r.T

he

regi

ster

ed o

wne

r ca

nde

feat

this

pre

sum

p-tio

n if

itpr

oves

that

the

ship

was

und

er a

ba

rebo

at c

hart

er a

t the

time

ofth

e ca

rria

gew

hich

tran

sfer

s con

-tr

actu

al r

espo

nsib

ility

for

the

carr

iage

oft

he

Art

icle

15-

Con

tent

sof

bill

of la

ding

3.

The

abse

nce

in th

ebi

ll of

ladi

ng o

f one

or m

ore

parti

cula

rsre

ferr

ed to

in th

isar

ticle

doe

s not

affe

ctth

e le

gal c

hara

cter

of

the

docu

men

t asa

bill

of la

ding

pro-

vide

d th

at it

nev

er-

thel

ess

mee

ts th

ere

quire

men

ts s

et o

ut

in p

arag

raph

7of

artic

le 1

.

Art

icle

8-C

onte

nts o

fth

e m

ultim

odal

tr

ansp

ort d

ocum

ent

2. T

he a

bsen

ce fr

omth

e m

ultim

odal

tran

s-po

rtdo

cum

ent o

f one

or m

ore

of th

e pa

rti-

cula

rsre

ferr

ed to

in

para

grap

h 1

of th

isar

ticle

sha

ll no

t aff

ect

the

lega

l cha

ract

er o

f th

e do

cum

ent a

sam

ultim

odal

tran

spor

t do

cum

ent p

rovi

ded

that

it n

ever

thel

ess

mee

ts th

ere

quire

-m

ents

set

out

inpa

ra-

grap

h 4

of a

rticl

e 1.

Art

icle

4

The

cont

ract

of

carr

iage

shal

l be

con-

firm

ed b

y th

e m

akin

gou

t of a

con

sign

men

t no

te. T

he a

bsen

ce,

irreg

ular

ity o

r los

s of

the

cons

ignm

ent n

ote

shal

l not

aff

ect t

he

exis

tenc

e or

the

valid

ity o

fthe

con

tract

of

car

riage

whi

ch

shal

l rem

ain

subj

ect t

oth

epr

ovis

ions

of t

his

Con

vent

ion.

Art

icle

6-C

ontr

act o

fca

rria

ge2.

The

con

tract

of

carr

iage

mus

t be

con-

firm

ed b

y a

cons

ign-

men

t not

e w

hich

ac

cord

s with

aun

iform

mod

el.

How

ever

, the

ab

senc

e, ir

regu

larit

yor

loss

of t

he c

on-

sign

men

t not

esh

all

not a

ffec

t the

ex

iste

nce

or v

alid

ityof

the

cont

ract

whi

chsh

all r

emai

nsu

bjec

t to

thes

e U

nifo

rmR

ules

.

Art

icle

11-

Nat

ure

and

cont

ent

1.

Fore

ach

carr

iage

gov

erne

dby

this

Con

vent

ion

the

carr

ier s

hall

issu

e a

trans

port

docu

men

t; he

sha

ll is

sue

a bi

ll of

la

ding

only

if th

esh

ippe

r so

requ

ests

and

if it

hasb

een

soag

reed

bef

ore

the

good

sw

ere

load

ed o

rbe

fore

they

wer

eta

ken

over

for

carr

iage

. The

lack

of

a tra

nspo

rt do

cum

ent

or th

efa

ct th

atit

isin

com

plet

e sh

alln

ot

affe

ct th

e va

lidity

of

the

cont

ract

of

carr

iage

.

Art

icle

9

Non

-com

plia

nce

with

the

prov

isio

nsof

artic

les 5

to 8

shal

l no

t aff

ect t

he e

xis-

tenc

e or

the

valid

ityof

the

cont

ract

of

carr

iage

, whi

ch s

hall,

none

the

less

, be

subj

ect t

o th

eru

les

ofth

is C

onve

ntio

n in

clud

ing

thos

ere

lat-

ing

to li

mita

tion

oflia

bilit

y.

Art

icle

9-N

on-

com

plia

nce

with

Doc

umen

tary

R

equi

rem

ents

Non

-com

plia

nce

with

the

prov

isio

nsof

artic

les

4 to

8

shal

l not

aff

ect t

he

exis

tenc

e or

the

valid

ity o

fthe

cont

ract

of c

arria

ge,

whi

ch sh

all,

none

-th

eles

s, be

subj

ect t

oth

e ru

les

ofth

isC

onve

ntio

nin

clud

ing

thos

ere

latin

g to

limita

tion

of li

abili

ty.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 498

Part Two. Studies and reports on specific subjects 499IN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

good

s to

anid

entif

ied

bare

boat

cha

rter

er.I

fth

e re

gist

ered

ow

ner

defe

ats

the

pres

ump-

tion

that

it is

the

carr

ier

unde

r th

isar

ticle

, the

n th

e ba

re-

boat

cha

rter

er a

tthe

time

ofth

e ca

rria

ge is

pres

umed

to b

e th

e ca

rrie

r in

the

sam

em

anne

r as

that

inw

hich

the

regi

ster

edow

ner

was

pre

sum

edto

be

the

carr

ier.]

8.

4.3-

App

aren

t ord

eran

d co

nditi

onIf

the

cont

ract

par

ticu-

lars

fail

to st

ate

the

appa

rent

ord

er a

nd

cond

ition

of t

he g

oods

at th

e tim

e th

e ca

rrie

ror

a pe

rfor

min

g pa

rty

rece

ives

them

from

the

ship

per,

the

tran

spor

t do

cum

ent o

r el

ectr

onic

reco

rdis

eith

er p

rim

afa

cie

or c

oncl

usiv

eev

iden

ce u

nder

artic

le 8

.3.3

, as

the

case

may

be,

that

the

good

s wer

e in

app

a-re

nt g

ood

orde

r an

dco

nditi

on a

t the

tim

eth

e sh

ippe

rde

liver

ed

them

to th

e ca

rrie

r or

a pe

rfor

min

g pa

rty.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 499

500 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVC

HA

PT

ER

9 –

FR

EIG

HT

INST

RU

ME

NT

HA

GU

E-V

ISB

YH

AM

BU

RG

MU

LTIM

OD

AL

CM

RC

OT

IF-C

IM 1

999

CM

NI

WA

RSA

WM

ON

TR

EA

LA

rtic

le 9

-Fre

ight

9.

1(a)

Fre

ight

is e

arne

dup

on d

eliv

ery

of th

ego

ods

to th

e co

nsig

nee

at th

e tim

ean

d lo

catio

nm

entio

ned

inar

ticle

4.1

.3, u

nles

s th

epa

rtie

s ha

ve a

gree

d th

at th

e fr

eigh

t is

earn

ed, w

holly

or

part

ly, a

t an

earl

ier

poin

t in

time.

(b) U

nles

soth

erw

ise

agre

ed, n

ofr

eigh

t bec

omes

due

for

any

good

s th

at a

relo

st b

efor

e th

efr

eigh

t for

thos

e go

ods i

s ear

ned.

9.2(

a) F

reig

ht is

pay

able

whe

n it

is e

arne

d,un

less

the

part

ies

have

agr

eed

that

the

frei

ght i

spa

yabl

e,

who

lly o

rpa

rtly

, ata

nea

rlie

r or

late

r po

inti

ntim

e.(b

) If s

ubse

quen

t to

the

mom

ent a

twhi

ch th

efr

eigh

t has

bee

nea

rned

the

good

s are

lost

, dam

aged

, or

othe

rwis

e no

t del

iver

ed to

th

e co

nsig

nee

inac

cord

ance

w

ith th

e pr

ovis

ions

of th

eco

ntra

ct o

fcar

riag

e, fr

eigh

tre

mai

ns p

ayab

le

irre

spec

tive

ofth

e ca

use

ofsu

ch lo

ss, d

amag

e or

failu

re

in d

eliv

ery.

(c

) Unl

ess

othe

rwis

eag

reed

,pa

ymen

t of f

reig

ht is

not

subj

ect t

o se

t-of

f, de

duct

ion

ordi

scou

nt o

n th

e gr

ound

sof

any

coun

terc

laim

that

the

ship

per

or c

onsi

gnee

m

ay h

ave

agai

nst t

he

carr

ier,

[the

inde

bted

ness

or th

e am

ount

of w

hich

has

not y

etbe

en a

gree

d or

es

tabl

ishe

d].

9.3(

a) U

nles

soth

erw

ise

agre

ed, t

he s

hipp

eris

liabl

eto

pay

the

frei

ght a

nd o

ther

Art

icle

16-

Bill

sof

ladi

ng: r

eser

vatio

nsan

d ev

iden

tiary

effe

ct4.

Abi

ll of

ladi

ngw

hich

doe

s not

, as

prov

ided

in p

ara-

grap

h 1,

subp

ara-

grap

h (h

) of

Arti

cle

15, s

etfo

rthth

e fr

eigh

t or o

ther

-w

ise

indi

cate

that

frei

ght i

s pay

able

by

the

cons

igne

eor

doe

sno

t set

forth

dem

ur-

rage

incu

rred

at t

he

port

of lo

adin

gpa

y-ab

le b

yth

e co

n-si

gnee

, is p

rima

faci

eev

iden

ce th

at n

ofr

eigh

t or s

uch

dem

urra

ge is

pay

able

by

him

. How

ever

,pr

oof t

o th

eco

ntra

ryby

the

carr

ier i

s not

ad

mis

sibl

e w

hen

the

bill

of la

ding

has

been

tran

sfer

red

to a

th

ird p

arty

, inc

ludi

nga

cons

igne

e, w

ho in

go

od fa

ith h

asac

ted

in re

lianc

e on

the

abse

nce

in th

e bi

ll of

ladi

ng o

f any

such

in

dica

tion.

Art

icle

10-

Paym

ent

of c

osts

1.

Unl

ess

othe

rwis

eag

reed

bet

wee

n th

e co

nsig

nor a

nd th

eca

rrie

r, th

e co

sts

(the

carr

iage

cha

rge,

inci

-de

ntal

cos

ts,c

usto

ms

dutie

s and

oth

er c

osts

incu

rred

from

the

time

of th

e co

nclu

-si

onof

the

cont

ract

toth

e tim

e of

del

iver

y)

shal

l be

paid

by

the

cons

igno

r.2.

Whe

n by

virt

ue o

fan

agr

eem

ent

betw

een

the

con-

sign

or a

nd th

e ca

rrie

r,th

eco

sts a

re p

ayab

leby

the

cons

igne

e an

dth

e co

nsig

nee

has

not

take

n po

sses

sion

of

the

cons

ignm

ent n

ote

nor a

sser

ted

his

right

s in

acc

orda

nce

with

Arti

cle

17 §

3,

nor m

odifi

edth

e co

ntra

ct o

f car

riage

in

acc

orda

nce

with

Arti

cle

18, t

he c

on-

sign

or sh

all r

emai

n lia

ble

to p

ay th

eco

sts.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 500

Part Two. Studies and reports on specific subjects 501IN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

char

gesi

ncid

enta

l to

the

carr

iage

oft

he g

oods

.(b

) If t

he c

ontr

acto

fca

rria

ge p

rovi

des t

hat t

helia

bilit

y of

the

ship

per

oran

y ot

her

pers

on id

entif

ied

in th

e co

ntra

ct p

artic

ular

sas

the

ship

per

will

cea

se,

who

llyor

par

tly, u

pon

ace

rtai

n ev

ento

r af

ter

a ce

rtai

n po

into

f tim

e, s

uch

cess

atio

nis

not

val

id:

(i) w

ithre

spec

t to

any

liabi

lity

unde

r ch

apte

r 7

of

the

ship

per

or a

per

son

men

tione

d in

art

icle

7.7

;or

(ii) w

ithre

spec

t to

any

amou

nts p

ayab

le to

the

carr

ier

unde

r th

eco

ntra

ctof

car

riag

e, e

xcep

tto

the

exte

nt th

at th

e ca

rrie

r ha

s ad

equa

te se

curi

ty p

ursu

ant

to a

rtic

le 9

.5 o

rot

herw

ise

for

the

paym

ent o

fsuc

ham

ount

s.(ii

i) to

the

exte

nt th

atit

conf

licts

with

the

pro-

visi

ons o

f art

icle

12.

4.

9.4(

a) I

f the

con

trac

tpa

rtic

ular

s in

a tr

ansp

ort

docu

men

t or

anel

ectr

onic

reco

rd c

onta

in th

est

atem

ent “

frei

ghtp

repa

id”

ora

stat

emen

t ofa

sim

ilar

natu

re,t

hen

neith

er th

eho

lder

, nor

the

cons

igne

e,is

liabl

efo

r th

e pa

ymen

t of

the

frei

ght.

Thi

spr

ovis

ion

does

not

app

lyif

the

hold

eror

the

cons

igne

e is

also

the

ship

per.

(b) I

f the

con

trac

tpa

rtic

ular

s in

a tr

ansp

ort

docu

men

t or

anel

ectr

onic

reco

rd c

onta

in th

est

atem

ent “

frei

ght c

olle

ct”

ora

stat

emen

t ofs

imila

rna

ture

, suc

ha

stat

emen

t pu

tsth

e co

nsig

nee

onno

tice

that

itm

ay b

e lia

ble

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 501

502 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

for

the

paym

ent o

fthe

frei

ght.

9.5(

a) [N

otw

ithst

andi

ngan

y ag

reem

ent t

oth

eco

ntra

ry,]

if an

d to

the

exte

nt th

at u

nder

nat

iona

lla

w a

pplic

able

to th

eco

ntra

ctof

car

riag

e th

e co

nsig

nee

is li

able

for

the

paym

ents

ref

erre

d to

belo

w, t

he c

arri

er is

entit

led

tore

tain

the

good

s un

til p

aym

ent o

f (i)

frei

ght,

dead

frei

ght,

dem

urra

ge, d

amag

esfo

rde

tent

ion

and

all o

ther

reim

burs

able

cos

tsin

curr

ed b

y th

eca

rrie

r in

rela

tion

to th

ego

ods,

(ii)a

ny d

amag

es d

ue to

the

carr

ier

unde

r th

eco

ntra

ctof

car

riag

e,

(iii)

any

cont

ribu

tion

inge

nera

l ave

rage

due

toth

e ca

rrie

r re

latin

g to

the

good

sha

sbee

n ef

fect

ed, o

rad

equa

te se

curi

tyfo

r su

chpa

ymen

t has

bee

npr

ovid

ed.

(b) I

f the

pay

men

t as

refe

rred

to in

para

-gr

aph

(a) o

fthi

s art

icle

isno

t, or

isno

t ful

ly, e

ffec

ted,

th

e ca

rrie

r is

entit

led

tose

ll th

ego

ods (

acco

rdin

g to

the

proc

edur

e, if

any

, as

prov

ided

for

inth

eap

plic

able

nat

iona

l law

)an

d to

satis

fy th

eam

ount

spa

yabl

e to

it (in

clud

ing

the

cost

s of

such

rec

ours

e)fr

om th

e pr

ocee

ds o

f suc

hsa

le. A

ny b

alan

cere

mai

ning

from

the

proc

eeds

ofs

uch

sale

sha

llbe

mad

eav

aila

ble

to th

eco

nsig

nee.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 502

Part Two. Studies and reports on specific subjects 503

72

CH

AP

TE

R 1

0–

DE

LIV

ER

YT

OT

HE

CO

NSI

GN

EE

INST

RU

ME

NT

HA

GU

E-V

ISB

YH

AM

BU

RG

MU

LTIM

OD

AL

CM

RC

OT

IF-C

IM 1

999

CM

NI

WA

RSA

WM

ON

TR

EA

LA

rtic

le 1

0-D

eliv

ery

to th

e co

nsig

nee

10.1

Whe

n th

e go

ods

have

arr

ived

at th

eir

dest

inat

ion,

the

con-

sign

ee th

at e

xerc

ises

any

of

its

righ

ts u

nder

the

cont

ract

of c

arri

age

shal

l ac

cept

del

iver

y of

the

good

sat t

he ti

me

and

loca

tion

men

tione

din

artic

le 4

.1.3

. If t

he

cons

igne

e, in

brea

ch o

fth

is o

blig

atio

n, le

aves

the

good

s in

the

cust

ody

of th

e ca

rrie

r or

the

perf

orm

ing

part

y, s

uch

carr

ier

orpe

rfor

min

gpa

rty

will

act

in r

espe

ctof

the

good

s as

an a

gent

of th

e co

nsig

nee,

but

with

outa

ny li

abili

ty fo

rlo

ssor

dam

age

to th

ese

good

s, un

less

the

loss

or

dam

age

resu

lts fr

om a

pe

rson

al a

ct o

rom

issi

onof

the

carr

ier

done

with

the

inte

ntto

cau

sesu

chlo

ss o

rda

mag

e, o

r re

ckle

ssly

, with

the

know

ledg

e th

at s

uch

loss

or d

amag

e pr

obab

lyw

ould

res

ult.

10.2

On

requ

esto

f the

ca

rrie

r or

the

perf

orm

ing

part

y th

atde

liver

s th

e go

ods,

the

cons

igne

e sh

all c

onfir

mde

liver

y of

the

good

sby

the

carr

ier

or th

e pe

rfor

min

g pa

rty

in th

e m

anne

r th

atis

cust

omar

y at

the

plac

e of

dest

inat

ion.

10.3

.1If

no

nego

tiabl

etr

ansp

ort d

ocum

ento

rno

neg

otia

ble

elec

tron

icre

cord

has

bee

nis

sued

:

Art

icle

13

1. A

fter a

rriv

alof

the

good

sat t

he p

lace

de

sign

ated

ford

eli-

very

, the

con

sign

ee

shal

l be

entit

led

tore

quire

the

carr

ier t

ode

liver

to h

im, a

gain

st

a re

ceip

t, th

e se

cond

co

pyof

the

cons

ign-

men

t not

e an

d th

e go

ods.

Ifth

e lo

ss o

fth

e go

odsi

ses

tabl

ishe

d or

ifth

ego

ods h

ave

not

arriv

ed a

fter t

heex

piry

of th

e pe

riod

prov

ided

fori

nar

ticle

19,

the

con-

sign

ee s

hall

been

title

d to

enf

orce

in

his o

wn

nam

e ag

ains

tth

eca

rrie

r any

righ

ts

aris

ing

from

the

cont

ract

of c

arria

ge.

2. T

he c

onsi

gnee

who

avai

ls h

imse

lf of

the

right

s gra

nted

tohi

m

unde

r par

agra

ph 1

of

this

arti

cle

shal

l pay

the

char

ges

show

n to

be d

ueon

the

con-

sign

men

t not

e,bu

t in

the

even

t ofd

ispu

te

on th

ism

atte

r the

ca

rrie

rsha

ll no

t be

requ

ired

tode

liver

the

good

s unl

esss

ecur

ityha

s bee

nfu

rnis

hed

byth

e co

nsig

nee.

Art

icle

14

1. If

for a

ny re

ason

it

is o

r bec

omes

impo

s-si

ble

to c

arry

out

the

cont

ract

inac

cord

ance

with

the

term

sla

id d

own

in th

eco

nsig

nmen

t not

e

Art

icle

17-

Del

iver

y 1.

The

carr

ier m

ust

hand

over

the

con-

sign

men

t not

ean

dde

liver

the

good

s to

the

cons

igne

e at

the

plac

e de

sign

ated

for

deliv

ery

agai

nst

rece

ipt a

nd p

aym

ent

of th

eam

ount

s due

acco

rdin

g to

the

cont

ract

of c

arria

ge.

2. It

shal

l be

equi

vale

nt to

del

iver

yto

the

cons

igne

e if,

inac

cord

ance

with

the

pres

crip

tions

in fo

rce

at th

e pl

ace

of d

es-

tinat

ion,

a)

the

good

shav

e be

en h

ande

d ov

er to

cust

oms o

r oct

roi

auth

oriti

es a

t the

irpr

emis

es o

rwar

e-ho

uses

, whe

n th

ese

are

not s

ubje

ct to

the

carr

ier’s

supe

rvis

ion;

b)th

e go

ods h

ave

been

dep

osite

dfo

rst

orag

e w

ithth

e ca

rrie

r, w

itha

forw

ardi

ng a

gent

ori

na

publ

icw

areh

ouse

.3.

Afte

r the

arr

ival

ofth

e go

ods a

t the

pla

ce

of d

estin

atio

n, th

e co

nsig

nee

may

ask

the

carr

ier t

o ha

ndov

er th

eco

nsig

nmen

tno

tean

d de

liver

the

good

s to

him

. If t

he

loss

oft

he g

oods

ises

tabl

ishe

d or

ifth

ego

ods h

ave

not

arriv

ed o

nth

e ex

piry

of th

epe

riod

prov

ided

fo

r in

Arti

cle

29 §

1,

the

cons

igne

em

ay

Art

icle

10-

Del

iver

y of

the

good

s1.

Not

with

stan

ding

the

oblig

atio

n of

the

ship

per u

nder

artic

le 6

, par

agra

ph 1

, th

e co

nsig

nee

who

,fo

llow

ing

the

arriv

alof

the

good

sat t

hepl

ace

of d

eliv

ery

requ

ests

thei

rde

liver

y, sh

all,

in

acco

rdan

ce w

ithth

e co

ntra

ct o

f car

riage

, be

resp

onsi

ble

for t

he

frei

ght a

nd o

ther

ch

arge

s due

on

the

good

s, as

wel

l as f

orhi

s con

tribu

tion

toan

y ge

nera

l ave

rage

. In

the

abse

nce

ofa

trans

port

docu

men

t, or

if su

ch d

ocum

ent

has n

otbe

enpr

esen

ted,

the

cons

igne

e sh

all b

ere

spon

sibl

e fo

r the

fr

eigh

t agr

eed

with

th

esh

ippe

r if i

t cor

-re

spon

ds to

mar

ket

prac

tice.

2. T

he p

laci

ng o

fthe

go

odsa

t the

dis

posa

lof

the

cons

igne

e in

acco

rdan

ce w

ithth

e co

ntra

ct o

f car

riage

or

with

the

usag

e of

the

parti

cula

r tra

deor

w

ith th

est

atut

ory

regu

latio

nsap

plic

able

at th

e po

rtof

dis

char

ge sh

allb

eco

nsid

ered

a d

eliv

ery.

The

impo

sed

hand

ing

over

the

good

s to

anau

thor

ity o

r a th

ird

party

shal

l als

o be

cons

ider

ed a

del

iver

y.

Art

icle

13

1. E

xcep

twhe

nth

eco

nsig

nor h

asex

er-

cise

d hi

srig

ht u

nder

ar

ticle

12,

the

con-

sign

ee is

ent

itled

, on

arriv

alof

the

carg

o at

the

plac

e of

des

tina-

tion,

to re

quire

the

carr

ier t

o de

liver

the

carg

o to

him

, on

pay-

men

t of t

he c

harg

esdu

e an

d on

com

plyi

ng w

ithth

eco

nditi

ons o

fca

rria

ge.

2. U

nles

s it

isot

her-

wis

e ag

reed

, it i

s the

duty

of t

he c

arrie

r to

give

not

ice

to th

e co

nsig

nee

as s

oon

asth

e ca

rgo

arriv

es.

3. If

the

carr

ier

adm

itsth

e lo

ss o

f the

carg

o,or

if th

e ca

rgo

has n

ot a

rriv

ed a

t the

ex

pira

tion

of se

ven

days

afte

r the

dat

eon

w

hich

it o

ught

toha

ve a

rriv

ed, t

heco

nsig

nee

is e

ntitl

edto

enf

orce

aga

inst

the

carr

ier t

herig

hts

whi

ch fl

ow fr

omth

eco

ntra

ct o

f car

riage

. A

rtic

le 1

4 Th

e co

nsig

nor a

ndth

e co

nsig

nee

can

resp

ectiv

ely

enfo

rce

allt

he ri

ghts

giv

en

them

by

artic

les

12

and

13, e

ach

inhi

sow

n na

me,

whe

ther

he is

act

ing

in h

isow

n in

tere

stor

in th

ein

tere

st o

f ano

ther

,pr

ovid

ed th

at h

eca

rrie

s out

the

oblig

a-

Art

icle

13-

Del

iver

y of

the

Car

go

1. E

xcep

twhe

nth

eco

nsig

nor h

asex

er-

cise

d its

right

und

erar

ticle

12,

the

con-

sign

ee is

ent

itled

, on

arriv

alof

the

carg

o at

the

plac

e of

des

ti-na

tion,

tore

quire

the

carr

ier t

o de

liver

the

carg

o to

it,o

n pa

y-m

ent o

f the

cha

rges

due

and

on c

ompl

y-in

g w

ith th

e co

ndit-

ions

ofc

arria

ge.

2. U

nles

s it i

sot

herw

ise

agre

ed, i

t is

the

duty

ofth

eca

rrie

r to

give

not

ice

to th

e co

nsig

nee

as

soon

as t

heca

rgo

arriv

es.

3. If

the

carr

ier

adm

itsth

e lo

ss o

fth

e ca

rgo,

or if

the

carg

o ha

s not

ar

rived

at t

heex

pira

tion

of se

ven

days

afte

r the

dat

eon

whi

ch it

oug

ht to

have

arr

ived

, the

cons

igne

e is

ent

itled

to e

nfor

ce a

gain

st

the

carr

ier t

he ri

ghts

whi

ch fl

ow fr

omth

eco

ntra

ct o

f car

riage

. A

rtic

le 1

4-E

nfor

cem

ento

f the

Righ

ts of

Con

sign

oran

d C

onsi

gnee

Th

e co

nsig

nor a

ndth

e co

nsig

nee

can

resp

ectiv

ely

enfo

rce

allt

he ri

ghts

giv

en

to th

em b

yar

ticle

s 12

and

13,

ea

ch in

its o

wn

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 503

504 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

(i)T

he c

ontr

ollin

g pa

rty

shal

ladv

ise

the

carr

ier,

prio

r to

or

upon

the

arri

val o

f the

goo

dsat

the

plac

e of

des

tinat

ion,

ofth

e na

me

ofth

e co

nsig

nee.

(ii

)The

car

rier

sha

llde

liver

the

good

s att

he

time

and

loca

tion

men

-tio

ned

in a

rtic

le 4

.1.3

toth

e co

nsig

nee

upon

the

cons

igne

e’s p

rodu

ctio

nof

pro

per

iden

tific

atio

n.10

.3.2

If a

neg

otia

ble

tran

spor

t doc

umen

tor

ane

gotia

ble

elec

tron

icre

cord

has

bee

nis

sued

,th

e fo

llow

ing

prov

isio

nssh

all a

pply

:(a

)(i)

With

outp

reju

dice

to th

e pr

ovis

ions

of

artic

le 1

0.1

the

hold

er o

fa

nego

tiabl

e tr

ansp

ort

docu

men

t is e

ntitl

edto

clai

m d

eliv

ery

of th

e go

odsf

rom

the

carr

ier

afte

r th

ey h

ave

arri

ved

at th

e pl

ace

of d

estin

a-tio

n, in

whi

ch e

vent

the

carr

ier

shal

l del

iver

the

good

sat t

he ti

me

and

loca

tion

men

tione

din

artic

le 4

.1.3

to su

chho

lder

upo

nsu

rren

der

of th

e ne

gotia

ble

tran

spor

t doc

umen

t.In

the

even

t tha

tmor

e th

anon

e or

igin

al o

fthe

neg

o-tia

ble

tran

spor

t doc

u-m

ent h

as b

een

issu

ed,

the

surr

ende

r of

one

orig

inal

will

suf

fice

and

the

othe

r or

igin

als w

illce

ase

to h

ave

any

effe

ctor

val

idity

. (ii

)With

out p

reju

dice

toth

e pr

ovis

ions

ofar

ticle

10.

1 th

e ho

lder

of

a ne

gotia

ble

elec

tron

icre

cord

isen

title

d to

befo

re th

e go

ods

reac

h th

e pl

ace

desi

gnat

ed fo

rdel

i-ve

ry, t

he c

arrie

rsha

llas

k fo

r ins

truct

ions

from

the

pers

on

entit

led

to d

ispo

se o

fth

ego

ods i

n ac

cord

-an

cew

ith th

e pr

ovi-

sion

s of a

rticl

e 12

. 2.

Nev

erth

eles

s, if

circ

umst

ance

s are

su

ch a

s to

allo

wth

eca

rria

ge to

be

carr

ied

out u

nder

cond

ition

sdi

ffer

ing

from

thos

e la

id d

own

in th

eco

nsig

nmen

t not

ean

dif

the

carr

ier h

as b

een

unab

le to

obta

inin

stru

ctio

ns in

reas

on-

able

time

the

pers

on

entit

led

to d

ispo

se o

fth

ego

ods i

n ac

cord

-an

cew

ith th

e pr

ovi-

sion

s of a

rticl

e 12

, he

shal

ltak

e su

ch s

teps

as s

eem

to h

im to

be

in th

e be

st in

tere

sts

ofth

e pe

rson

ent

itled

todi

spos

e of

the

good

s.A

rtic

le 1

5 1.

Whe

re c

ircum

-st

ance

s pr

even

tde

liver

y of

the

good

saf

ter t

heir

arriv

alat

th

e pl

ace

desi

gnat

edfo

r del

iver

y, th

e ca

rrie

rsha

ll as

k th

ese

nder

for h

is in

stru

c-tio

ns. I

f the

con

sign

ee

refu

ses t

he g

oods

the

send

er sh

allb

een

title

d to

dis

pose

of

them

with

out b

eing

ob

liged

to p

rodu

ce th

e fir

st c

opy

of th

e co

n-si

gnm

ent n

ote.

2. E

ven

if he

has

refu

sed

the

good

s, th

eco

nsig

nee

may

asse

rt, in

his

own

nam

e, h

isrig

hts

agai

nst t

he c

arrie

run

dert

he c

ontra

ct o

fca

rria

ge.

4. T

he p

erso

n en

title

dm

ayre

fuse

to a

ccep

t th

e go

ods,

even

whe

n he

has

rece

ived

the

cons

ignm

ent n

ote

and

paid

the

char

ges

resu

lting

from

the

cont

ract

of c

arria

ge,

so lo

ng a

san

exam

inat

ion

whi

ch h

eha

s dem

ande

d in

or

der t

oes

tabl

ish

alle

ged

loss

or

dam

age

hasn

ot b

een

carr

ied

out.

5. In

oth

er re

spec

ts,

deliv

ery

ofth

e go

ods

shal

l be

carri

ed o

ut in

acco

rdan

ce w

ithth

e pr

escr

iptio

ns in

forc

eat

the

plac

e of

des

ti-na

tion.

6.

If th

e go

odsh

ave

been

del

iver

ed w

ith-

out p

rior c

olle

ctio

n of

a

cash

on d

eliv

ery

char

ge, t

he c

arrie

rsh

all b

eob

liged

toco

mpe

nsat

e th

eco

nsig

nor u

p to

the

amou

nt o

fthe

cas

h on

de

liver

y ch

arge

w

ithou

t pre

judi

ce to

his r

ight

of r

ecou

rse

agai

nst t

he c

onsi

gnee

. A

rtic

le 2

1-C

ircu

m-

stanc

es p

reve

ntin

gde

liver

y1.

Whe

n ci

rcum

-st

ance

s pr

even

t del

i-ve

ry, t

he c

arrie

rmus

tw

ithou

t del

ay in

form

th

e co

nsig

nor a

nd a

sk

him

fori

nstru

ctio

ns,

save

whe

re th

e co

n-si

gnor

has

requ

este

d,

Art

icle

13-

Bill

of

ladi

ng1.

The

orig

inal

s of

abi

ll of

ladi

ngsh

all b

edo

cum

ents

oft

itle

issu

ed in

the

nam

e of

the

cons

igne

e, to

orde

r or t

o be

arer

. 2.

At t

he p

lace

of

dest

inat

ion,

the

good

ssh

all b

e de

liver

ed

only

in e

xcha

nge

for

the

orig

inal

oft

he b

ill

of la

ding

subm

itted

in

itial

ly; t

here

afte

r, fu

rther

del

iver

yca

nnot

be

clai

med

agai

nst o

ther

orig

inal

s.3.

Whe

n th

e go

ods

are

take

n ov

er b

yth

e ca

rrie

r, ha

ndin

gov

er

the

bill

of la

ding

toth

e pe

rson

ent

itled

tota

ke d

eliv

ery

ofth

ego

ods h

as th

e sa

me

effe

cts a

s the

han

ding

over

of t

he g

oods

asfa

ras t

he a

cqui

sitio

n of

right

s to

the

good

sis

con

cern

ed.

4. If

the

bill

of la

ding

has b

een

trans

ferr

ed

to a

third

par

ty,

incl

udin

g th

eco

nsig

nee,

who

has

acte

d in

goo

d fa

ith in

re

lianc

e on

the

desc

riptio

n of

the

good

s the

rein

, pro

of

to th

e co

ntra

ryof

the

pres

umpt

ion

set o

utin

arti

cle

11, p

ara-

grap

h 3,

and

ar

ticle

12,

par

a-gr

aph

2, s

hall

not b

ead

mis

sibl

e.

tions

impo

sed

by th

eco

ntra

ct o

f car

riage

. A

rtic

le 1

5 1.

Arti

cles

12,

13

and

14 d

o no

taffe

ctei

ther

the

rela

tions

of

the

cons

igno

r and

the

cons

igne

e w

ithea

chot

her o

rthe

mut

ual

rela

tions

oft

hird

parti

es w

hose

righ

tsar

e de

rived

eith

erfr

om th

e co

nsig

noro

r fr

om th

e co

nsig

nee.

2.

The

pro

visi

ons

ofar

ticle

s 12

, 13

and

14

can

only

be

varie

d by

expr

ess p

rovi

sion

inth

eai

r way

bill

orth

e re

ceip

t for

the

carg

o.

nam

e, w

heth

erit

isac

ting

in it

s ow

nin

tere

stor

in th

e in

tere

st o

f ano

ther

,pr

ovid

ed th

at it

carr

ies

out t

he

oblig

atio

ns im

pose

d by

the

cont

ract

of

carr

iage

.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 504

Part Two. Studies and reports on specific subjects 505IN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

clai

m d

eliv

ery

of th

e go

odsf

rom

the

carr

ier

afte

r th

ey h

ave

arri

ved

at th

e pl

ace

of d

estin

a-tio

n, in

whi

ch e

vent

the

carr

ier

shal

l del

iver

the

good

sat t

he ti

me

and

loca

tion

men

tione

din

artic

le 4

.1.3

to su

chho

lder

if it

dem

onst

rate

sin

acc

orda

nce

with

the

rule

s of p

roce

dure

men

tione

d in

art

icle

2.4

th

atit

is th

e ho

lder

ofth

e el

ectr

onic

rec

ord.

U

pon

such

del

iver

y, th

eel

ectr

onic

rec

ord

will

ce

ase

to h

ave

any

effe

ctor

val

idity

. (b

) If t

he h

olde

r do

es n

otcl

aim

del

iver

yof

the

good

sfro

m th

e ca

rrie

raf

ter

thei

r ar

riva

l att

he

plac

e of

dest

inat

ion,

the

carr

ier

shal

l adv

ise

the

cont

rolli

ngpa

rty

or, i

f it,

afte

rre

ason

able

eff

ort,

is

unab

le to

iden

tify

or fi

ndth

e co

ntro

lling

part

y, th

e sh

ippe

r, ac

cord

ingl

y. I

nsu

ch e

vent

such

cont

rolli

ng p

arty

or

ship

per

shal

lgiv

e th

eca

rrie

r in

stru

ctio

ns in

resp

ecto

f the

del

iver

y of

the

good

s. If

the

carr

ier

is u

nabl

e,af

ter

reas

onab

le e

ffor

t, to

iden

tify

and

find

the

cont

rolli

ng p

arty

or

the

ship

per,

then

the

pers

onm

entio

ned

in a

rtic

le 7

.7

shal

l be

deem

ed to

be

the

ship

per

for

purp

oses

of

this

par

agra

ph.

(c) N

otw

ithst

andi

ng th

epr

ovis

ion

ofpa

ra-

grap

h (d

) oft

his a

rtic

le,

a ca

rrie

r th

at d

eliv

ers

the

good

supo

n

neve

rthel

ess r

equi

re

deliv

ery

so lo

ng a

sth

e ca

rrie

rhas

not

re

ceiv

ed in

stru

ctio

nsto

the

cont

rary

from

th

e se

nder

.3.

Whe

n ci

rcum

-st

ance

s pre

vent

ing

deliv

ery

ofth

e go

ods

aris

e af

ter t

he c

on-

sign

ee,i

n ex

erci

se o

fhi

s rig

htsu

nder

artic

le 1

2, p

ara-

grap

h 3,

has

giv

en a

n or

der f

orth

e go

odst

obe

del

iver

edto

anot

her p

erso

n,pa

ragr

aphs

1 an

d 2

of

this

arti

cle

shal

l app

lyas

if th

eco

nsig

nee

wer

e th

e se

nder

and

th

at o

ther

per

son

wer

eth

e co

nsig

nee.

Art

icle

16

1. T

he c

arrie

r sha

ll be

entit

led

to re

cove

r the

cost

ofh

is re

ques

tfor

in

stru

ctio

ns a

nd a

nyex

pens

es e

ntai

led

inca

rryi

ng o

ut su

chin

stru

ctio

ns, u

nles

ssu

ch e

xpen

ses w

ere

caus

ed b

y th

e w

rong

ful a

ct o

rne

glec

t of t

he c

arrie

r.2.

In th

e ca

ses

refe

rred

to in

ar

ticle

14,

par

a-gr

aph

1, a

nd in

artic

le 1

5, th

e ca

rrie

rm

ay im

med

iate

lyun

load

the

good

s for

acco

unto

f the

per

son

entit

led

to d

ispo

se o

fth

em a

nd th

ereu

pon

the

carr

iage

shal

l be

deem

ed to

be

at a

nen

d. T

he c

arrie

r sha

llth

en h

old

the

good

son

beh

alfo

f the

by a

nen

try in

the

cons

ignm

ent n

ote,

that

the

good

s be

retu

rned

to h

im a

sa

mat

tero

f cou

rse

inth

e ev

ent o

f circ

um-

stan

ces p

reve

ntin

gde

liver

y.

2. W

hen

the

circ

um-

stan

ces p

reve

ntin

gde

liver

y ce

ase

to e

xist

befo

re a

rriv

al o

fin

stru

ctio

ns fr

om th

e co

nsig

nor t

o th

eca

rrie

rthe

goo

ds s

hall

be d

eliv

ered

to th

eco

nsig

nee.

The

cons

igno

r mus

t be

notif

ied

with

out

dela

y.3.

If th

e co

nsig

nee

refu

ses t

he g

oods

, the

co

nsig

nor s

hall

been

title

d to

give

in

stru

ctio

ns e

ven

if he

is u

nabl

e to

pro

duce

th

e du

plic

ate

of th

e co

nsig

nmen

t not

e.4.

Whe

n th

e ci

rcum

-st

ance

s pre

vent

ing

deliv

ery

aris

e af

ter t

he

cons

igne

e ha

s m

odi-

fied

the

cont

ract

of

carr

iage

inac

cord

ance

with

Arti

cle

18 §

§ 3

to5

the

carr

ierm

ust n

otify

the

cons

igne

e.A

rtic

le 2

2-C

onse

quen

ces o

fci

rcum

stanc

es

prev

entin

g ca

rria

gean

d de

liver

y1.

The

carr

ier s

hall

been

title

d to

reco

ver t

heco

sts

occa

sion

ed b

ya)

his

requ

est f

or

inst

ruct

ions

, b)

the

carr

ying

out

of

inst

ruct

ions

rece

ived

,

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 505

506 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

inst

ruct

ion

ofth

e co

ntro

lling

par

ty o

r th

esh

ippe

r in

acc

orda

nce

with

par

agra

ph (b

)of

this

artic

le, s

hall

bedi

scha

rged

of i

ts o

blig

a-tio

nto

del

iver

the

good

sun

der

the

cont

ract

of

carr

iage

[to

the

hold

er],

irre

spec

tive

ofw

heth

erth

e ne

gotia

ble

tran

spor

tdo

cum

ent h

as b

een

surr

ende

red

to it

, or

the

pers

on c

laim

ing

deliv

ery

unde

r a

nego

tiabl

eel

ectr

onic

rec

ord

has

dem

onst

rate

d, in

acc

ord-

ance

with

the

rule

s of

proc

edur

e re

ferr

edto

inar

ticle

2.4

, tha

t he

is th

e ho

lder

.(d

) If t

he d

eliv

ery

of th

ego

ods

by th

e ca

rrie

rat

the

plac

e of

des

tinat

ion

take

s pl

ace

with

out t

hene

gotia

ble

tran

spor

tdo

cum

ent b

eing

su

rren

dere

d to

the

carr

ier

orw

ithou

t the

dem

onst

ratio

n re

ferr

edto

in p

arag

raph

(a)(

ii)

abov

e, a

hol

der

who

be

com

es a

hol

der

afte

rth

e ca

rrie

r ha

s de

liver

edth

ego

ods t

o th

eco

nsig

nee

or to

a p

erso

nen

title

d to

thes

e go

ods

purs

uant

toan

y co

ntra

ctua

l or

othe

r ar

rang

emen

t oth

erth

anth

e co

ntra

ct o

fcar

riag

e w

ill o

nly

acqu

ire

righ

tsun

der

the

cont

ract

of

carr

iage

if th

e pa

ssin

g of

th

e ne

gotia

ble

tran

spor

tdo

cum

ent o

rne

gotia

ble

elec

tron

ic r

ecor

dw

as

effe

cted

inpu

rsua

nce

ofco

ntra

ctua

l or

othe

r ar

rang

emen

ts m

ade

befo

re su

chde

liver

y of

pers

on s

o en

title

d. H

e m

ay, h

owev

er,e

ntru

stth

em to

a th

ird p

arty

,an

d in

that

cas

e he

shal

l not

be

unde

r any

liabi

lity

exce

pt fo

rthe

exer

cise

of r

easo

nabl

e ca

rein

the

choi

ceof

su

ch th

ird p

arty

. The

ch

arge

s due

und

er th

eco

nsig

nmen

t not

ean

dal

l oth

er e

xpen

ses

shal

l rem

ain

char

ge-

able

aga

inst

the

good

s.3.

The

car

rier m

ayse

ll th

e go

ods,

with

out a

wai

ting

inst

ruct

ions

from

the

pers

on e

ntitl

ed to

disp

ose

of th

em, i

f the

go

ods a

re p

eris

habl

eor

thei

rcon

ditio

n w

arra

nts

such

a

cour

se, o

r whe

nth

e st

orag

e ex

pens

es

wou

ldbe

out

ofp

ro-

porti

on to

the

valu

e of

the

good

s. H

e m

ayal

so p

roce

ed to

the

sale

oft

he g

oods

inot

her c

ases

if af

tert

heex

piry

of a

reas

onab

le

perio

d he

has

not

rece

ived

from

the

pers

on e

ntitl

ed to

disp

ose

ofth

e go

ods

inst

ruct

ions

toth

e co

ntra

ry w

hich

he

may

reas

onab

lybe

requ

ired

to c

arry

out

. 4.

If th

e go

odsh

ave

been

sold

pur

suan

t to

this

arti

cle,

the

proc

eeds

of s

ale,

afte

rde

duct

ion

ofth

eex

pens

es c

harg

eabl

e ag

ains

t the

goo

ds,

shal

l be

plac

ed a

t the

di

spos

al o

f the

per

son

entit

led

to d

ispo

se o

f

c) th

e fa

ctth

atin

stru

ctio

ns re

ques

ted

do n

ot re

ach

him

or

do n

ot re

ach

him

intim

e,

d)th

e fa

ct th

at h

e ha

s ta

ken

a de

cisi

on in

acco

rdan

ce w

ithar

ticle

20

§ 1,

with

out

havi

ng a

sked

for

inst

ruct

ions

, un

less

suc

h co

sts

wer

e ca

used

by

his

faul

t. Th

e ca

rrie

rmay

in

par

ticul

arre

cove

rth

e ca

rria

gech

arge

appl

icab

le to

the

rout

e fo

llow

ed a

nd sh

allb

eal

low

ed th

e tra

nsit

perio

ds a

pplic

able

tosu

ch ro

ute.

2. In

the

case

s re

-fe

rred

to in

arti

cle

20

§ 2

and

artic

le 2

1 §

1th

e ca

rrie

rmay

imm

edia

tely

unl

oad

the

good

s at t

he c

ost

ofth

e pe

rson

ent

itled

. Th

ereu

pon

the

carr

iage

sha

llbe

deem

ed to

be

at a

nen

d. T

he c

arrie

r sha

llth

enbe

in c

harg

eof

the

good

s on

beha

lf of

the

pers

on e

ntitl

ed.

He

may

, how

ever

,en

trust

them

to a

third

pa

rty, a

nd sh

all t

hen

be re

spon

sibl

e on

lyfo

rthe

exe

rcis

e of

reas

onab

le c

are

in th

e ch

oice

of su

ch th

ird

party

. The

cha

rges

due

unde

r the

con

tract

of

car

riage

and

all

othe

r cos

ts s

hall

rem

ain

char

geab

leag

ains

t the

goo

ds.

3. T

he c

arrie

r may

proc

eed

to th

e sa

le o

fth

e go

ods,

with

out

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 506

Part Two. Studies and reports on specific subjects 507IN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

the

good

s, un

less

suc

hho

lder

att

he ti

me

itbe

cam

e ho

lder

did

not

have

or

coul

d no

t re

ason

ably

hav

e ha

dkn

owle

dge

ofsu

chde

liver

y.

(e) I

f the

cont

rolli

ngpa

rty

or th

esh

ippe

r do

esno

t giv

e th

e ca

rrie

rad

equa

te in

stru

ctio

nsas

to th

e de

liver

yof

the

good

s, th

eca

rrie

r is

entit

led,

with

out

prej

udic

eto

any

oth

erre

med

ies t

hat a

carr

ier

may

hav

e ag

ains

t suc

hco

ntro

lling

par

ty o

rsh

ippe

r, to

use

itsri

ghts

unde

r ar

ticle

10.

4.10.4.1

(a) I

fthe

goo

dsha

ve a

rriv

edat

the

plac

eof

des

tinat

ion

and

(i) th

e go

ods a

reno

t ac

tual

ly ta

ken

over

by

the

cons

igne

e at

the

time

and

loca

tion

men

tione

d in

art

icle

4.1

.3 a

nd n

oex

pres

s or

impl

ied

cont

ract

has

bee

nco

nclu

ded

betw

een

the

carr

ier

or th

e pe

rfor

m-

ing

part

y an

d th

eco

n-si

gnee

that

suc

ceed

s to

the

cont

ract

ofc

arri

age;

or

(ii)t

he c

arri

er is

not

allo

wed

und

erap

plic

able

law

or

regu

latio

nsto

deliv

er th

ego

ods t

o th

eco

nsig

nee,

then

the

carr

ier

isen

title

d to

exer

cise

the

righ

ts a

nd r

emed

ies

men

tione

d in

para

-gr

aph

(b).

(b) U

nder

the

circ

um-

stan

ces s

peci

fied

inpa

ragr

aph

(a),

the

carr

ier

is e

ntitl

ed, a

tthe

the

good

s.If

thes

ech

arge

s ex

ceed

the

proc

eeds

of s

ale,

the

carr

ier s

hall

been

title

d to

the

diff

eren

ce.

5. T

he p

roce

dure

inth

e ca

seof

sal

esh

all

be d

eter

min

ed b

yth

ela

w o

r cus

tom

oft

hepl

ace

whe

re th

e go

ods

are

situ

ated

.

awai

ting

inst

ruct

ions

from

the

pers

on

entit

led,

if th

is is

just

ified

by

the

peris

habl

e na

ture

or

the

cond

ition

of th

e go

ods o

r if t

he c

osts

of st

orag

e w

ould

be

out o

f pro

porti

on to

the

valu

e of

the

good

s. In

othe

r cas

eshe

may

als

opr

ocee

dto

the

sale

of th

e go

ods i

fwith

in a

re

ason

able

tim

e he

has n

ot re

ceiv

ed fr

om

the

pers

on e

ntitl

ed

inst

ruct

ions

toth

e co

ntra

ry w

hich

he

may

reas

onab

lybe

requ

ired

toca

rry

out.

4. If

the

good

sha

ve

been

sold

, the

proc

eeds

of s

ale,

afte

rde

duct

ion

ofth

e co

sts

char

geab

le a

gain

st th

e go

ods,

mus

t be

plac

ed

at th

e di

spos

alof

the

pers

on e

ntitl

ed. I

fthe

proc

eeds

of s

ale

are

less

than

thos

e co

sts,

the

cons

igno

rmus

tpa

y th

edi

ffer

ence

. 5.

The

proc

edur

e in

th

e ca

seof

sal

esh

all

be d

eter

min

ed b

yth

ela

ws a

nd p

resc

riptio

nsin

forc

e at

,or b

yth

e cu

stom

of, t

he p

lace

w

here

the

good

s are

si

tuat

ed.

6. If

the

cons

igno

r,in

th

e ca

se o

f circ

um-

stan

ces p

reve

ntin

gca

rria

ge o

r del

iver

y,

fails

togi

ve in

stru

c-tio

ns w

ithin

a re

ason

-ab

letim

e an

d if

the

circ

umst

ance

s pr

even

ting

carr

iage

or

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 507

508 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

risk

and

acc

ount

of t

he

pers

onen

title

d to

the

good

s, to

exe

rcis

e so

me

oral

l of t

he fo

llow

ing

righ

ts a

nd r

emed

ies:

(i) to

sto

re th

ego

ods a

tan

y su

itabl

e pl

ace;

(ii) t

o un

pack

the

good

sif

they

are

pac

ked

inco

ntai

ners

, or

to a

ctot

herw

ise

in r

espe

ctof

the

good

s as,

inth

eop

inio

n of

the

carr

ier,

circ

umst

ance

s re

ason

-ab

ly m

ay r

equi

re; o

r(ii

i) to

cau

se th

e go

ods t

obe

sold

in a

ccor

danc

ew

ith th

e pr

actic

es,o

rth

ere

quir

emen

ts u

nder

the

law

or

regu

latio

ns, o

fthe

pl

ace

whe

re th

e go

ods

are

loca

ted

atth

e tim

e.

(c) I

f the

goo

ds a

re so

ldun

der

clau

se (b

)(iii

), th

eca

rrie

r m

ayde

duct

from

the

proc

eeds

of th

e sa

leth

e am

ount

nec

essa

ry to

(i)pa

y or

rei

mbu

rse

any

cost

s inc

urre

d in

res

pect

of th

e go

ods;

and

(ii)p

ay o

r re

imbu

rse

the

carr

ier

any

othe

ram

ount

s tha

t are

refe

rred

to in

artic

le 9

.5(a

) and

that

are

due

to th

e ca

rrie

r.Su

bjec

t to

thes

ede

duct

ions

, the

carr

ier

shal

l hol

d th

e pr

ocee

dsof

the

sale

for

the

bene

fitof

the

pers

on e

ntitl

edto

the

good

s.10

.4.2

The

car

rier

is o

nly

allo

wed

to e

xerc

ise

the

righ

t ref

erre

d to

inar

ticle

10.

4.1

afte

rit

has

give

n no

tice

to th

epe

rson

sta

ted

inth

eco

ntra

ct p

artic

ular

s as

the

pers

on to

be

notif

ied

of th

e ar

riva

l of t

he

deliv

ery

cann

otbe

elim

inat

ed in

acc

ord-

ance

with

§§

2 an

d 3,

th

eca

rrie

r may

retu

rnth

ego

ods t

o th

e co

nsig

nor o

r, if

it is

just

ified

, des

troy

them

, at t

heco

st o

fth

e co

nsig

nor.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 508

Part Two. Studies and reports on specific subjects 509IN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

good

sat t

he p

lace

of

dest

inat

ion,

if a

ny, o

rto

the

cons

igne

e, o

r ot

her-

wis

e to

the

cont

rolli

ngpa

rty

or th

e sh

ippe

r th

atth

e go

ods

have

arr

ived

at th

e pl

ace

of d

estin

a-tio

n.10.4.3

Whe

nex

erci

sing

its r

ight

s ref

erre

dto

inar

ticle

10.

4.1,

the

carr

ier

or p

erfo

rmin

g pa

rty

acts

as a

nag

ento

f the

per

son

entit

led

to th

e go

ods,

but

with

outa

ny li

abili

ty fo

rlo

ssor

dam

age

to th

ese

good

s, un

less

the

loss

or

dam

age

resu

lts fr

om[a

pers

onal

act

or

omis

sion

of th

e ca

rrie

r do

new

ithth

e in

tent

to c

ause

such

loss

or

dam

age,

or

reck

less

ly, w

ith th

ekn

owle

dge

that

suc

hlo

ssor

dam

age

prob

ably

wou

ld r

esul

t].

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 509

510 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVC

HA

PT

ER

11

– R

IGH

T O

F C

ON

TR

OL

INST

RU

ME

NT

HA

GU

E-V

ISB

YH

AM

BU

RG

MU

LTIM

OD

AL

CM

RC

OT

IF-C

IM 1

999

CM

NI

WA

RSA

WM

ON

TR

EA

LA

rtic

le 1

1-R

ight

of c

ontr

ol

1.T

he r

ight

ofc

ontr

ol o

fth

e go

ods

mea

nsth

eri

ght u

nder

the

cont

ract

of c

arri

age

to g

ive

the

carr

ier

inst

ruct

ions

inre

spec

t oft

hese

goo

dsdu

ring

the

peri

od o

fits

re

spon

sibi

lity

asst

ated

in a

rtic

le 4

.1.1

. Suc

hri

ght t

o gi

ve th

e ca

rrie

rin

stru

ctio

ns c

ompr

ises

righ

ts to

: (i)

giv

e or

mod

ifyin

stru

ctio

ns in

res

pect

ofth

ego

ods

that

do

not

cons

titut

e a

vari

atio

n of

the

cont

ract

ofc

arri

age;

(ii) d

eman

d de

liver

y of

th

ego

ods

befo

re th

eir

arri

val a

tthe

pla

ce o

fde

stin

atio

n;(ii

i) re

plac

e th

e co

nsig

nee

by a

ny o

ther

pers

on in

clud

ing

the

cont

rolli

ng p

arty

;(iv

) agr

ee w

ith th

e ca

rrie

r to

a va

riat

ion

ofth

e co

ntra

ct o

fcar

riag

e.

2.(a

) Whe

n no

neg

o-tia

ble

tran

spor

t doc

u-m

ent o

r no

neg

otia

ble

elec

tron

ic r

ecor

d is

issu

ed, t

he fo

llow

ing

rule

s app

ly:

(i) T

he s

hipp

er is

the

cont

rolli

ng p

arty

unl

ess

the

ship

per

and

con-

sign

ee a

gree

that

anot

her

pers

onis

to b

eth

e co

ntro

lling

part

y an

dth

e sh

ippe

r so

notif

ies

the

carr

ier.

The

ship

per

and

cons

igne

em

ayag

ree

that

the

cons

igne

e is

the

cont

rolli

ng p

arty

.(ii

)The

con

trol

ling

part

y

Art

icle

12

1. T

hese

nder

has

the

right

to d

ispo

se o

f the

go

ods,

in p

artic

ular

by a

skin

g th

eca

rrie

rto

stop

the

good

s in

trans

it, to

chan

ge th

e pl

ace

atw

hich

del

i-ve

ry is

to ta

ke p

lace

or to

del

iver

the

good

s to

a co

nsig

nee

othe

r tha

n th

e co

n-si

gnee

indi

cate

d in

the

cons

ignm

ent n

ote.

2. T

his r

ight

shal

lce

ase

toex

ist w

hen

the

seco

ndco

py o

fth

e co

nsig

nmen

t not

eis

han

ded

to th

e co

nsig

nee

or w

hen

the

cons

igne

e ex

er-

cise

s hi

srig

ht u

nder

artic

le 1

3, p

ara-

grap

h 1;

from

that

time

onw

ards

the

carr

ier s

hall

obey

the

orde

rsof

the

con-

sign

ee.

3. T

he c

onsi

gnee

sh

all,

how

ever

, hav

eth

e rig

ht o

fdis

posa

lfr

om th

e tim

e w

hen

the

cons

ignm

ent n

ote

is d

raw

n up

, if t

he

send

er m

akes

an e

ntry

to th

atef

fect

in th

eco

nsig

nmen

t not

e.4.

If in

exe

rcis

ing

his

right

of d

ispo

sal t

heco

nsig

nee

has o

rder

ed

the

deliv

ery

of th

ego

ods t

o an

othe

r pe

rson

, tha

t oth

er

pers

onsh

all n

ot b

een

title

d to

nam

e ot

her

cons

igne

es.

5.Th

e ex

erci

se o

fthe

rig

ht o

fdis

posa

l sha

llbe

subj

ect t

o th

e

Art

icle

18-

Rig

ht to

di

spos

e of

the

good

s1.

The

cons

igno

r sha

llbe

entit

led

to d

ispo

se

ofth

e go

ods a

nd to

mod

ifyth

e co

ntra

ct o

fca

rria

ge b

ygi

ving

subs

eque

nt o

rder

s. H

em

ay in

par

ticul

ar a

sk

the

carr

ier

a)to

dis

cont

inue

the

carr

iage

of t

he g

oods

;b)

to d

elay

the

deliv

ery

ofth

e go

ods;

c)to

del

iver

the

good

sto

a c

onsi

gnee

di

ffer

ent f

rom

the

one

ente

red

on th

e co

nsig

nmen

t not

e;d)

to d

eliv

er th

e go

ods

ata

plac

e ot

her t

han

the

plac

e of

dest

ina-

tion

ente

red

on th

e co

nsig

nmen

t not

e.2.

The

con

sign

or’s

right

tom

odif

y th

e co

ntra

ct o

f car

riage

sh

all,

notw

ithst

andi

ngth

at h

e is

in p

osse

s-si

onof

the

dupl

icat

e of

the

cons

ignm

ent

note

, be

extin

guis

hed

in c

ases

whe

re th

eco

nsig

nee

a)ha

s tak

en p

osse

s-si

onof

the

cons

ign-

men

t not

e;

b)ha

s acc

epte

d th

ego

ods;

c) h

as a

sser

ted

his

right

s in

acc

orda

nce

with

arti

cle

17 §

3;

d)is

ent

itled

, in

acco

rdan

ce w

ith§

3,

to g

ive

orde

rs;f

rom

th

at ti

me

onw

ards

, the

ca

rrie

r sha

llco

mpl

yw

ith th

eor

ders

and

in

stru

ctio

ns o

f the

Art

icle

14-

Hol

der o

fth

e ri

ght o

fdi

spos

al

1.Th

e sh

ippe

r sha

llbe

aut

horiz

ed to

dis-

pose

oft

he g

oods

; in

parti

cula

r, he

may

requ

ire th

e ca

rrie

r to

disc

ontin

ue th

e ca

rria

ge o

f the

goo

ds,

to c

hang

e th

e pl

ace

of d

eliv

ery

or to

deliv

er th

e go

ods t

oa

cons

igne

e ot

hert

han

the

cons

igne

e in

di-

cate

d in

the

trans

port

docu

men

t.2.

The

shi

pper

's rig

htof

dis

posa

l sha

llce

ase

to e

xist

onc

e th

e co

nsig

nee,

follo

win

g th

e ar

rival

of th

ego

odsa

t the

sche

dule

d pl

ace

ofde

liver

y, h

asre

ques

ted

deliv

ery

ofth

e go

ods a

nd,

(a) W

here

car

riage

isun

der a

con

sign

men

t no

te, o

nce

the

orig

i-na

l has

bee

nha

nded

over

to th

e co

n-si

gnee

; (b

) Whe

re c

arria

ge is

unde

r a b

ill o

f lad

ing,

on

ce th

e sh

ippe

r has

relin

quis

hed

allt

heor

igin

als i

n hi

s pos

-se

ssio

n by

han

ding

them

ove

rto

anot

her

pers

on.

3. B

y an

app

ropr

iate

entry

in th

e co

nsig

n-m

ent n

ote,

the

ship

per m

ay,w

hen

the

cons

ignm

ent n

ote

is is

sued

,wai

ve h

isrig

ht o

f dis

posa

l to

the

cons

igne

e.

Art

icle

12

1. S

ubje

ct to

his

liabi

lity

to c

arry

out

all h

isob

ligat

ions

unde

rthe

con

tract

of

carr

iage

, the

con-

sign

or h

as th

erig

ht to

disp

ose

ofth

e ca

rgo

by w

ithdr

awin

g it

at

the

airp

ort o

f dep

ar-

ture

or d

estin

atio

n, o

rby

stop

ping

it in

the

cour

seof

the

jour

ney

on a

nyla

ndin

g, o

r by

calli

ng fo

rit t

obe

deliv

ered

at t

hepl

ace

of d

estin

atio

n or

inth

e co

urse

of th

e jo

urne

y to

a pe

rson

othe

r tha

n th

e co

nsig

nee

orig

inal

lyde

sign

ated

, orb

yre

quiri

ng it

to b

ere

turn

ed to

the

airp

ort

of d

epar

ture

.H

e m

ust n

ot e

xerc

ise

this

righ

t of d

ispo

si-

tion

in su

ch a

way

as

to p

reju

dice

the

carr

ier o

r oth

er c

on-

sign

ors

and

he m

ust

repa

y an

y ex

pens

esoc

casi

oned

by

the

exer

cise

of th

is ri

ght.

2.If

it is

impo

ssib

leto

car

ry o

ut th

eor

ders

of th

eco

nsig

nor t

heca

rrie

r mus

t so

info

rm h

im fo

rthw

ith.

3. If

the

carr

ier o

beys

the

orde

rs o

fthe

con

-si

gnor

for t

he d

ispo

si-

tion

ofth

e ca

rgo

with

out r

equi

ring

the

prod

uctio

nof

the

part

ofth

e ai

r way

bill

orth

e re

ceip

t for

the

carg

ode

liver

ed to

the

latte

r, he

will

be

Art

icle

12-

Rig

ht o

fD

ispo

sitio

n of

Car

go1.

Subj

ect t

o its

liabi

lity

to c

arry

out

all i

tsob

ligat

ions

unde

rthe

con

tract

of

carr

iage

, the

con-

sign

or h

as th

erig

ht

to d

ispo

se o

f the

ca

rgo

byw

ith-

draw

ing

it at

the

airp

ort o

f dep

artu

re

or d

estin

atio

n, o

rby

stop

ping

it in

the

cour

se o

fthe

jour

ney

onan

y la

ndin

g, o

r by

calli

ng fo

rit t

obe

deliv

ered

at t

hepl

ace

of d

estin

atio

nor

in th

e co

urse

ofth

e jo

urne

y to

ape

rson

oth

er th

an th

e co

nsig

nee

orig

inal

lyde

sign

ated

, orb

yre

quiri

ng it

to b

ere

turn

ed to

the

airp

ort o

f dep

artu

re.

The

cons

igno

rmus

tno

t exe

rcis

eth

isrig

ht o

fdis

posi

tion

in su

ch a

way

ast

opr

ejud

ice

the

carr

ier

or o

ther

con

sign

ors

and

mus

t rei

mbu

rse

any

expe

nses

occ

a-si

oned

by

the

exer

-ci

seof

this

righ

t. 2.

Ifit

is im

poss

ible

to c

arry

out

the

inst

ruct

ions

of t

he

cons

igno

r, th

eca

rrie

r mus

t so

info

rm th

e co

nsig

nor

forth

with

. 3.

If th

e ca

rrie

rca

rrie

s ou

t the

in

stru

ctio

ns o

f the

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 510

Part Two. Studies and reports on specific subjects 511IN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

is e

ntitl

edto

tran

sfer

the

righ

tof c

ontr

ol to

anot

her

pers

on, u

pon

whi

ch tr

ansf

er th

e tr

ansf

eror

lose

s its

rig

ht

of c

ontr

ol. T

he tr

ans-

fero

r or

the

tran

sfer

eesh

all n

otify

the

carr

ier

of su

chtr

ansf

er.

(iii)

Whe

nth

e co

ntro

ll-in

g pa

rty

exer

cise

s the

righ

t ofc

ontr

ol in

acco

rdan

ce w

ithar

ticle

11.

1, it

shal

l pr

oduc

e pr

oper

iden

tific

atio

n.(b

)Whe

n a

nego

tiabl

e tr

ansp

ort d

ocum

enti

sis

sued

, the

follo

win

gru

les a

pply

:(i)

The

hol

der

or, i

nth

e ev

ent t

hatm

ore

than

one

orig

inal

oft

hat

nego

tiabl

e tr

ansp

ort

docu

men

t is i

ssue

d,th

eho

lder

of a

ll or

igin

als i

sth

e so

le c

ontr

ollin

gpa

rty.

(ii) T

heho

lder

is e

ntitl

edto

tran

sfer

the

righ

t of

cont

rol b

y pa

ssin

g th

atne

gotia

ble

tran

spor

tdo

cum

ent t

o an

othe

rpe

rson

in a

ccor

danc

ew

ith a

rtic

le 1

2.1,

upo

nw

hich

tran

sfer

the

tran

sfer

or lo

ses i

ts r

ight

of

cont

rol.

Ifm

ore

than

one

orig

inal

oft

hat

docu

men

t was

issu

ed, a

llor

igin

als

mus

t be

pass

edin

ord

er to

effe

cta

tran

sfer

oft

he r

ight

of

cont

rol.

(iii)

Inor

der

to e

xerc

ise

the

righ

t ofc

ontr

ol,t

he

hold

er sh

all,

if th

e ca

rrie

r so

req

uire

s, pr

oduc

e th

e ne

gotia

ble

tran

spor

t doc

umen

tto

follo

win

g co

nditi

ons:

(a) T

hat t

he s

ende

ror,

in th

e ca

sere

ferr

ed to

in p

arag

raph

3of

this

artic

le, t

he c

onsi

gnee

w

ho w

ishe

sto

exer

cise

the

right

pr

oduc

es th

e fir

stco

pyof

the

cons

ign-

men

t not

e on

whi

chth

e ne

win

stru

ctio

nsto

the

carr

ier h

ave

been

ent

ered

and

in

dem

nifie

s the

carr

ier a

gain

stal

lex

pens

es, l

ossa

ndda

mag

e in

volv

ed in

ca

rryi

ng o

ut su

chin

stru

ctio

ns;

(b) T

hat t

he c

arry

ing

out o

f suc

h in

stru

c-tio

ns is

pos

sibl

e at

the

time

whe

n th

e in

stru

ctio

ns re

ach

the

pers

on w

hois

to c

arry

them

out

and

does

not

ei

ther

inte

rfer

e w

ith

the

norm

alw

orki

ngof

the

carr

iers

' und

er-

taki

ng o

rpre

judi

ceth

e se

nder

s or c

on-

sign

ees

of o

ther

cons

ignm

ents

;(c

) Tha

t the

inst

ruc-

tions

do n

ot re

sult

in a

di

visi

onof

the

con-

sign

men

t.6.

Whe

n, b

yre

ason

ofth

e pr

ovis

ions

ofpa

ragr

aph

5 (b

) of

this

arti

cle,

the

carr

ier

cann

ot c

arry

out

the

inst

ruct

ions

whi

ch h

ere

ceiv

es, h

esh

all

imm

edia

tely

not

ifyth

e pe

rson

who

gave

hi

m su

chin

stru

ctio

ns.

7. A

car

rier w

ho h

asno

t car

ried

out t

hein

stru

ctio

ns g

iven

cons

igne

e.3.

The

con

sign

ee sh

all

have

the

right

tom

odify

the

cont

ract

of

carr

iage

from

the

time

whe

n th

e co

nsig

nmen

t no

te is

draw

n up

,un

less

the

cons

igno

r in

dica

tes t

o th

eco

ntra

ry o

nth

eco

nsig

nmen

t not

e.4.

The

con

sign

ee’s

right

tom

odif

y th

e co

ntra

ct o

f car

riage

sh

all b

eex

tingu

ishe

din

cas

es w

here

he

has

a) ta

ken

poss

essi

on o

fth

e co

nsig

nmen

t not

e;b)

acc

epte

dth

e go

ods;

c)

ass

erte

d hi

s rig

hts

in a

ccor

danc

ew

ithar

ticle

17

§ 3;

d)

giv

en in

stru

ctio

nsfo

r del

iver

yof

the

good

s to

anot

her

pers

on in

acc

orda

nce

with

§ 5

and

whe

n th

at p

erso

n ha

sas

serte

d hi

s rig

htsi

n ac

cord

ance

with

artic

le 1

7 §

3.

5. If

the

cons

igne

e ha

s gi

ven

inst

ruct

ions

for

deliv

ery

ofth

e go

ods

to a

noth

er p

erso

n, th

atpe

rson

shal

l not

be

entit

led

tom

odify

the

cont

ract

of c

arria

ge.

Art

icle

19-

Exe

rcis

eof

the

righ

t to

disp

ose

ofth

e go

ods

1. If

the

cons

igno

r or,

in th

e ca

sere

ferr

ed to

in a

rticl

e 18

§ 3

, the

co

nsig

nee

wis

hes

tom

odify

the

cont

ract

of

carr

iage

by

givi

ngsu

bseq

uent

ord

ers,

hem

ust p

rodu

ce to

the

carr

ier t

hedu

plic

ate

Art

icle

15-

Con

ditio

ns fo

rthe

ex

erci

se o

f the

righ

t of

dis

posa

l Th

e sh

ippe

r or,

inth

eca

se o

f arti

cle

14,

para

grap

hs2

and

3,th

e co

nsig

nee,

mus

t, if

hew

ishe

s to

exer

cise

his r

ight

of

disp

osal

:(a

) Whe

re a

bill

of

ladi

ng is

use

d, su

bmit

allo

rigin

als p

rior t

oth

e ar

rival

of th

e go

ods a

t the

sc

hedu

led

plac

eof

deliv

ery;

(b)W

here

a tr

ansp

ort

docu

men

t oth

erth

ana

bill

of la

ding

isus

ed, s

ubm

it th

isdo

cum

ent,

whi

chsh

all i

nclu

de th

e ne

win

stru

ctio

ns g

iven

toth

e ca

rrie

r; (c

) Rei

mbu

rse

the

carr

ier f

or a

llth

eco

sts a

nd d

amag

esen

taile

d in

car

ryin

g ou

t suc

hin

stru

ctio

ns;

(d) P

ay a

llth

e ag

reed

fr

eigh

t in

the

even

t of

the

disc

harg

e of

the

good

s bef

ore

arriv

alat

the

sche

dule

d pl

ace

of d

eliv

ery,

un

less

the

cont

ract

of

carr

iage

pro

vide

sot

herw

ise.

liabl

e, w

ithou

t pr

ejud

ice

to h

isrig

ht

of re

cove

ry fr

om th

e co

nsig

nor,

for a

nyda

mag

e w

hich

may

be c

ause

d th

ereb

y to

any

pers

onw

hois

law

fully

in p

osse

s-si

onof

that

par

tof

the

air w

aybi

ll or

the

rece

ipt f

orth

e ca

rgo.

4. T

he ri

ght c

onfe

rred

on

the

cons

igno

rce

ases

att

he m

omen

tw

hen

that

of t

heco

nsig

nee

begi

nsin

acco

rdan

ce w

ithar

ticle

13.

Nev

erth

eles

s, if

the

cons

igne

e de

clin

esto

acce

pt th

e ca

rgo,

ori

fhe

can

not b

e co

mm

u-ni

cate

d w

ith, t

he c

on-

sign

or re

sum

eshi

s rig

ht o

fdis

posi

tion.

cons

igno

r for

the

disp

ositi

on o

f the

ca

rgo

with

out

requ

iring

the

pro-

duct

ion

ofth

e pa

rtof

the

air w

aybi

ll or

the

carg

ore

ceip

t de

liver

ed to

the

latte

r, th

e ca

rrie

r will

be

liab

le, w

ithou

t pr

ejud

ice

to it

srig

ht

of re

cove

ry fr

om th

e co

nsig

nor,

for a

nyda

mag

e w

hich

may

be c

ause

d th

ereb

y to

any

pers

onw

hois

law

fully

in p

osse

s-si

onof

that

par

tof

the

air w

aybi

ll or

the

carg

o re

ceip

t. 4.

The

righ

t con

-fe

rred

on

the

con-

sign

or c

ease

s at

the

mom

ent w

hen

that

of

the

cons

igne

ebe

gins

in a

ccor

danc

ew

ith a

rticl

e 13

. N

ever

thel

ess,

if th

eco

nsig

nee

decl

ines

to a

ccep

t the

car

go,

or c

anno

t be

com

mun

icat

ed w

ith,

the

cons

igno

rre

sum

es it

srig

ht o

fdi

spos

ition

.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 511

512 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

the

carr

ier.

Ifm

ore

than

one

orig

inal

oft

hat

docu

men

t was

issu

ed, a

llor

igin

als s

hall

be

prod

uced

. (iv

)Any

inst

ruct

ions

as

refe

rred

to in

artic

le 1

1.1(

ii),(

iii),

and

(iv) g

iven

by

the

hold

erup

on b

ecom

ing

effe

ctiv

e in

acc

orda

nce

with

artic

le 1

1.3

shal

l be

stat

edon

the

nego

tiabl

etr

ansp

ort d

ocum

ent.

(c) W

hen

a ne

gotia

ble

elec

tron

ic r

ecor

d is

issu

ed:

(i) T

heho

lder

isth

e so

leco

ntro

lling

part

y an

d is

entit

led

to tr

ansf

er th

eri

ghto

f con

trol

toan

othe

r pe

rson

by

pass

-in

g th

e ne

gotia

ble

elec

-tr

onic

reco

rd in

acc

ord-

ance

with

the

rule

s of

proc

edur

e re

ferr

edto

inar

ticle

2.4

, upo

n w

hich

tr

ansf

er th

e tr

ansf

eror

lose

s its

rig

ht o

f con

trol

. (ii

) In

orde

r to

exe

rcis

eth

e ri

ght o

fcon

trol

,the

ho

lder

shal

l, if

the

carr

ier

so r

equi

res,

dem

onst

rate

, in

acco

rdan

ce w

ithth

eru

les o

f pro

cedu

rere

ferr

ed to

inar

ticle

2.4

,th

atit

is th

e ho

lder

.(ii

i)A

ny in

stru

ctio

ns a

sre

ferr

ed to

inar

ticle

11.

1, (i

i),(ii

i), a

nd(iv

) giv

en b

y th

e ho

lder

upon

bec

omin

g ef

fect

ive

in a

ccor

danc

e w

ithar

ticle

11.

3 sh

all b

est

ated

inth

e el

ectr

onic

reco

rd.

(d) N

otw

ithst

andi

ng th

epr

ovis

ions

of

artic

le 1

2.4,

a p

erso

n,

not b

eing

the

ship

per

or

unde

r the

cond

ition

spr

ovid

ed fo

r in

this

artic

le o

rwho

has

ca

rrie

d th

em o

ut

with

out r

equi

ring

the

first

cop

yof

the

cons

ignm

ent n

ote

tobe

pro

duce

d, sh

allb

elia

ble

to th

epe

rson

entit

led

tom

ake

a cl

aim

for a

nylo

ssor

dam

age

caus

edth

ereb

y.

of th

eco

nsig

nmen

tno

te o

n w

hich

the

mod

ifica

tions

hav

e to

be e

nter

ed.

2. T

he c

onsi

gnor

or,

in th

e ca

sere

ferr

ed to

in a

rticl

e 18

§ 3

, the

co

nsig

nee

mus

t com

-pe

nsat

e th

e ca

rrie

rfor

the

cost

sand

the

prej

udic

e ar

isin

gfr

om

the

carr

ying

out

of

subs

eque

nt m

odifi

ca-

tions

. 3.

The

car

ryin

g ou

t of

the

subs

eque

nt m

odi-

ficat

ions

mus

tbe

poss

ible

, law

fula

nd

reas

onab

le to

requ

ireat

the

time

whe

n th

e or

ders

reac

h th

epe

rson

who

is to

car

ryth

em o

ut, a

nd m

usti

npa

rticu

lar n

eith

er

inte

rfer

e w

ithth

eno

rmal

wor

king

of t

heca

rrie

r’s u

nder

taki

ngno

r pre

judi

ce th

eco

nsig

nors

orc

on-

sign

ees

of o

ther

cons

ignm

ents

.4.

The

sub

sequ

ent

mod

ifica

tions

mus

tno

t hav

e th

eef

fect

ofsp

littin

g th

eco

nsig

n-m

ent.

5. W

hen,

by

reas

onof

the

cond

ition

s pro

-vi

ded

for i

n§

3,th

eca

rrie

r can

not c

arry

out t

he o

rder

s w

hich

he

rece

ives

he sh

all

imm

edia

tely

not

ifyth

e pe

rson

from

w

hom

the

orde

rsem

anat

e.

6. In

the

case

of fa

ult

of th

eca

rrie

r he

shal

lbe

liabl

e fo

r the

cons

eque

nces

of

failu

re to

car

ryou

t an

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 512

Part Two. Studies and reports on specific subjects 513IN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

the

pers

onre

ferr

ed to

inar

ticle

7.7

, tha

ttr

ansf

erre

d th

e ri

ghto

fco

ntro

l with

out h

avin

gex

erci

sed

that

rig

ht,

shal

l upo

nsu

ch tr

ansf

erbe

dis

char

ged

from

the

liabi

litie

s im

pose

d o

nth

e co

ntro

lling

par

ty b

y th

e co

ntra

ct o

fcar

riag

e or

by

this

inst

rum

ent.

3.(a

) Sub

ject

to th

epr

ovis

ions

of

para

grap

hs (b

) and

(c)

of th

isar

ticle

, ifa

ny

inst

ruct

ion

men

tione

d in

artic

le11

.1(i)

, (ii)

, or

(iii)

(i) c

an r

easo

nabl

ybe

exec

uted

acc

ordi

ng to

its

term

s att

hem

omen

tth

at th

ein

stru

ctio

n re

ache

s the

per

son

tope

rfor

m it

;(ii

) will

not

inte

rfer

e w

ith th

e no

rmal

ope

ra-

tions

of t

he c

arri

er o

r a

perf

orm

ing

part

y;an

d (ii

i) w

ould

not

cau

se a

nyad

ditio

nal e

xpen

se, l

oss,

or d

amag

e to

the

carr

ier,

the

perf

orm

ing

part

y,or

any

pers

on in

tere

sted

inot

her

good

s car

ried

on

the

sam

evo

yage

,th

en th

eca

rrie

r sh

all

exec

ute

the

inst

ruct

ion.

If it

is r

easo

nabl

yex

pect

ed th

at o

ne o

rm

ore

of th

e co

nditi

ons

men

tione

d in

cla

uses

(1),

(2),

and

(3) o

f thi

s par

a-gr

aph

is n

ot sa

tisfie

d,

then

the

carr

ier

isun

der

no o

blig

atio

n to

exe

cute

the

inst

ruct

ion.

(b)

In a

nyev

ent,

the

cont

rolli

ng p

arty

shal

lin

dem

nify

the

carr

ier,

perf

orm

ing

part

ies,

and

any

pers

ons i

nter

este

d in

orde

r or f

ailu

re to

carr

yit

out p

rope

rly.

Nev

erth

eles

s, an

yco

mpe

nsat

ion

paya

ble

shal

l not

exce

ed th

at

prov

ided

for i

n ca

seof

loss

of t

he g

oods

.7.

Ifth

e ca

rrie

r im

ple-

men

ts th

eco

nsig

nor’s

subs

eque

nt m

odifi

ca-

tions

with

outr

equi

r-in

g th

e pr

oduc

tion

of

the

dupl

icat

e of

the

cons

ignm

ent n

ote,

the

carr

ier s

hall

be li

able

to th

e co

nsig

nee

for

any

loss

or d

amag

e su

stai

ned

byhi

m if

the

dupl

icat

e ha

s be

en

pass

ed o

n to

the

cons

igne

e.N

ever

thel

ess,

any

com

pens

atio

n pa

yabl

esh

all n

otex

ceed

that

pr

ovid

ed fo

r in

case

of lo

ss o

f the

goo

ds.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 513

514 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

othe

r go

ods c

arri

ed o

nth

e sa

me

voya

ge a

gain

stan

y ad

ditio

nal e

xpen

se,

loss

,or

dam

age

that

may

occu

r as

a r

esul

tof

exec

utin

g an

y in

stru

c-tio

n un

der

this

artic

le.

(c)I

f a c

arri

er

(i) r

easo

nabl

yex

pect

s th

at th

e ex

ecut

ion

ofan

inst

ruct

ion

unde

r th

isar

ticle

will

cau

se

addi

tiona

l exp

ense

, los

s, or

dam

age;

and

(ii) i

snev

erth

eles

sw

illin

g to

exe

cute

the

inst

ruct

ion,

then

the

carr

ier

isen

title

dto

obt

ain

secu

-ri

tyfr

om th

e co

ntro

lling

part

y fo

rth

e am

ount

of

the

reas

onab

ly e

xpec

ted

addi

tiona

l exp

ense

, los

s, or

dam

age.

4.

Goo

ds th

atar

ede

liver

ed p

ursu

ant t

o an

inst

ruct

ion

in a

ccor

d-an

cew

ith a

rtic

le 1

1.1(

ii)ar

e de

emed

to b

ede

liver

ed a

t the

pla

ce o

f de

stin

atio

n an

d th

epr

ovis

ions

rel

atin

g to

such

deliv

ery,

as l

aid

dow

n in

art

icle

10,

are

ap

plic

able

to s

uch

good

s.5.

If d

urin

g th

e pe

riod

that

the

carr

ier

hold

sth

e go

ods i

n its

cus

tody

,th

e ca

rrie

rre

ason

ably

requ

ires

info

rmat

ion,

in

stru

ctio

ns, o

r do

cu-

men

ts in

add

ition

to

thos

e re

ferr

edto

inar

ticle

7.3

(a),

itsh

all

seek

suc

hin

form

atio

n,in

stru

ctio

ns, o

rdo

cum

ents

from

the

cont

rolli

ng p

arty

. If t

heca

rrie

r, af

ter

reas

onab

leef

fort

,is u

nabl

e to

iden

tify

and

find

the

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 514

Part Two. Studies and reports on specific subjects 515IN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

cont

rolli

ngpa

rty,

or

the

cont

rolli

ng p

arty

isun

able

topr

ovid

e ad

e-qu

ate

info

rmat

ion,

inst

ruct

ions

, or

docu

-m

ents

toth

e ca

rrie

r, th

e ob

ligat

ion

to d

o so

sha

llbe

on th

e sh

ippe

r or

the

pers

on r

efer

red

to in

artic

le 7

.7.

6.T

he p

rovi

sion

s of

artic

les

11.1

(ii) a

nd(ii

i),an

d 11

.3 m

ay b

e va

ried

by a

gree

men

t bet

wee

n th

e pa

rtie

s. T

he p

artie

s m

ay a

lso

rest

rict

or

excl

ude

the

tran

sfer

-ab

ility

of th

e ri

ghto

fco

ntro

lref

erre

d to

inar

ticle

11.

2 (a

) (ii)

. Ifa

tr

ansp

ort d

ocum

ento

ran

ele

ctro

nic

reco

rd is

issu

ed, a

ny a

gree

men

tre

ferr

ed to

inth

ispa

ragr

aph

mus

tbe

stat

ed in

the

cont

ract

part

icul

ars.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 515

516 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIV

85

CH

AP

TE

R 1

2 –

TR

AN

SFE

R O

FR

IGH

TS

INST

RU

ME

NT

H

AG

UE

-VIS

BY

HA

MB

UR

G

M

ULT

IMO

DA

L

CM

R

C

OT

IF-C

IM 1

999

C

MN

I

WA

RSA

W

MO

NT

RE

AL

Art

icle

12-

Tran

sfer

of r

ight

s

12.1

.1If

a n

egot

iabl

e tr

ansp

ort

docu

men

tis

issu

ed, t

he h

olde

ris

enti

tled

to

tran

sfer

the

rig

hts

inco

rpor

ated

insu

ch d

ocum

ent b

y pa

ssin

g su

ch d

ocum

ent t

o an

othe

rpe

rson

, (i

)if

an

orde

r do

cum

ent,

duly

end

orse

dei

ther

to s

uch

othe

rpe

rson

or

inbl

ank,

or,

(ii)

if a

bea

rer

docu

men

t or

a bl

ank

endo

rsed

doc

umen

t, w

itho

ut e

ndor

sem

ent,

or,

(iii)

if a

doc

umen

t m

ade

out

to t

heor

der

of a

nam

ed p

arty

and

the

tra

nsfe

r is

betw

een

the

firs

t ho

lder

and

suc

hna

med

par

ty, w

itho

ut e

ndor

sem

ent.

12.1

.2.

If a

neg

otia

ble

elec

tron

ic r

ecor

dis

iss

ued,

its

hol

der

is e

ntit

led

to t

rans

fer

the

righ

tsin

corp

orat

ed i

nsu

ch e

lect

roni

cre

cord

, w

heth

er i

t be

mad

eou

t to

ord

er o

rto

the

ord

erof

a n

amed

par

ty,

by p

assi

ng t

heel

ectr

onic

rec

ord

in a

ccor

danc

e w

ith

the

rule

s of

pro

cedu

re r

efer

red

to in

art

icle

2.4

. 12

.2.1

.W

itho

ut p

reju

dice

to

the

prov

isio

nsof

art

icle

11.

5,an

y ho

lder

tha

tis

not

the

ship

per

and

that

doe

s no

t ex

erci

sean

yri

ght

unde

r th

eco

ntra

ct o

fca

rria

ge,

does

not

assu

me

any

liabi

lity

unde

r th

e co

ntra

ct o

f ca

rria

geso

lely

by

reas

on o

f bec

omin

ga

hold

er.

12.2

.2.

Any

hol

der

that

is n

ot t

he s

hipp

er a

nd t

hat

exer

cise

s an

y ri

ght

unde

r th

e co

ntra

ct o

f ca

rria

ge, a

ssum

esan

y lia

bilit

ies

impo

sed

on i

t un

der

the

cont

ract

of

carr

iage

to

the

exte

nt t

hat

such

lia

bilit

ies

are

inco

rpor

ated

inor

asc

erta

inab

le fr

om th

ene

goti

able

tran

spor

t doc

umen

t or

the

nego

tiab

le e

lect

roni

cre

cord

. 12

.2.3

.A

ny h

olde

r th

atis

not

the

ship

per

and

that

(i)

unde

r ar

ticl

e2.

2 ag

rees

wit

hth

e ca

rrie

r to

rep

lace

a ne

goti

able

tran

spor

t do

cum

ent

bya

nego

tiab

leel

ectr

onic

rec

ord

orto

rep

lace

a n

egot

iabl

eel

ectr

onic

rec

ord

by a

neg

otia

ble

tran

spor

t doc

umen

t, or

(ii)

unde

r ar

ticl

e 12

.1 tr

ansf

ers

its

righ

ts,

does

not e

xerc

ise

any

righ

tund

er th

e co

ntra

ct o

f car

riag

e fo

rth

e pu

rpos

eof

the

arti

cles

12.

2.1

and

12.2

.2.

12.3

.T

he t

rans

fer

of r

ight

s un

der

a co

ntra

ct o

f ca

rria

ge,

purs

uant

to

whi

chno

neg

otia

ble

tran

spor

t do

cum

ent

or n

o ne

goti

able

ele

ctro

nic

reco

rd i

s is

sued

sha

ll be

eff

ecte

din

acc

orda

nce

wit

h th

e pr

ovis

ions

of

the

nati

onal

law

app

licab

leto

the

con

trac

tof

car

riag

e re

lati

ngto

tra

nsfe

r of

rig

hts.

Such

tra

nsfe

rof

rig

hts

may

be

effe

cted

by

mea

ns o

f el

ectr

onic

com

mun

icat

ion.

A t

rans

fer

of t

he r

ight

of

cont

rol

cann

ot b

e co

mpl

eted

wit

hout

ano

tifi

cati

on o

fsuc

h tr

ansf

er to

the

carr

ier

by th

etr

ansf

eror

or

the

tran

sfer

ee.

12.4

.If

the

tran

sfer

of

righ

ts u

nder

aco

ntra

ctof

car

riag

e, p

ursu

ant

to w

hich

none

goti

able

tran

spor

t do

cum

ent o

r no

neg

otia

ble

elec

tron

ic r

ecor

dha

s be

enis

sued

, inc

lude

sth

e tr

ansf

erof

liabi

litie

s th

at a

re c

onne

cted

to o

r fl

ow f

rom

the

righ

t th

at is

tra

nsfe

rred

, the

tra

nsfe

ror

and

the

tran

sfer

ee a

re j

oint

ly a

nd s

ever

ally

liab

le i

nre

spec

tof s

uch

liabi

litie

s.

Ther

e ar

e no

cor

resp

ondi

ng

prov

isio

nsin

any

oth

erTr

ansp

ort C

onve

ntio

n

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 516

Part Two. Studies and reports on specific subjects 517C

HA

PT

ER

13

–RIG

HT

S O

FSU

IT

INST

RU

ME

NT

CO

TIF

-CIM

199

9

Art

icle

13-

Rig

hts o

fsui

t

13.1

With

out

prej

udic

eto

artic

les

13.2

and

13.

3, r

ight

sun

der

the

cont

ract

of

carr

iage

may

be

asse

rted

aga

inst

the

carr

ier

ora

perf

orm

ing

part

yon

ly b

y:(i)

the

ship

per,

(ii)t

he c

onsi

gnee

, (ii

i) an

y th

ird

part

y to

whi

ch t

hesh

ippe

ror

the

con

sign

ee h

asas

sign

edits

righ

ts,

depe

ndin

g on

whi

ch

ofth

e ab

ove

part

ies

suff

ered

th

e lo

ss

or

dam

age

inco

nseq

uenc

e of

a br

each

of th

e co

ntra

ctof

car

riag

e,

(iv)

any

thir

d pa

rty

that

has

acqu

ired

righ

ts u

nder

the

con

trac

tof

carr

iage

by

subr

ogat

ion

unde

r th

eap

plic

able

nat

iona

l law

, suc

has

anin

sure

r.In

cas

e of

any

pas

sing

of

righ

tsof

sui

tth

roug

has

sign

men

tor

sub

roga

tion

asre

ferr

ed t

o ab

ove,

the

car

rier

and

the

Perf

orm

ing

Part

y ar

e en

title

d to

all

defe

nces

and

lim

itatio

ns o

f lia

bilit

yth

at a

re a

vaila

ble

to i

t ag

ains

t su

chth

ird

part

y un

der

the

cont

ract

of c

arri

age

and

unde

r th

isin

stru

men

t. 13

.2 I

n th

e ev

ent

that

a n

egot

iabl

etr

ansp

ort

docu

men

t or

neg

otia

ble

elec

tron

icre

cord

is

issu

ed,

the

hold

er i

s en

title

d to

ass

ert

righ

tsun

der

the

cont

ract

of

carr

iage

agai

nst t

he c

arri

eror

a pe

rfor

min

g pa

rty,

with

out h

avin

g to

pro

ve th

atit

itsel

f has

suf

fere

d lo

ssor

dam

age.

Ifs

uch

hold

er d

id n

ot s

uffe

r th

elo

ss o

r da

mag

eits

elf,

itis

deem

ed to

act

on

beha

lf of

the

part

y th

atsu

ffer

ed s

uch

loss

or d

amag

e.

13.3

In

the

even

t th

at a

neg

otia

ble

tran

spor

t do

cum

ent

or n

egot

iabl

eel

ectr

onic

reco

rd is

issu

ed a

ndth

e cl

aim

ant

is o

ne o

f th

e pe

rson

s re

ferr

edto

in a

rtic

le 1

3.1

with

out

bein

g th

e ho

lder

, suc

h cl

aim

ant

mus

t, in

addi

tion

toits

bur

den

of p

roof

th

atit

suff

ered

loss

or

dam

age

inco

nseq

uenc

e of

a b

reac

h of

the

con

trac

tof

carr

iage

, pro

ve th

at th

e ho

lder

did

nots

uffe

r su

chlo

ssor

dam

age.

Art

icle

43-

Cla

ims

1.C

laim

s re

latin

g to

the

cont

ract

of c

arria

ge m

ust

be a

ddre

ssed

in

writ

ing

to th

e ca

rrie

rag

ains

t w

hom

an

actio

n m

aybe

brou

ght.

2. A

cla

im m

ay b

e m

ade

bype

rson

s w

ho h

ave

the

right

to b

ring

an a

ctio

nag

ains

t the

car

rier.

3. T

o m

ake

the

clai

mth

e co

nsig

nor

mus

tpro

duce

the

dupl

icat

e of

the

cons

ignm

entn

ote.

Fai

ling

this

he m

ust p

rodu

cean

auth

oris

atio

n fr

om th

e co

nsig

nee

orfu

rnis

h pr

oof t

hat t

he c

onsi

gnee

has

refu

sed

to a

ccep

t the

good

s.4.

To

mak

e th

e cl

aim

the

cons

igne

e m

ust p

rodu

ce th

e co

nsig

nmen

t not

e if

it ha

s bee

n ha

nded

ove

r to

him

.5.

The

con

sign

men

t not

e, th

e du

plic

ate

and

any

othe

rdoc

umen

tsw

hich

the

pers

onen

title

d th

inks

fit to

subm

it w

ith th

e cl

aim

mus

t be

prod

uced

eith

er in

the

orig

inal

or a

sco

pies

, the

cop

ies,

whe

re a

ppro

pria

te, d

uly

certi

fied

if th

e ca

rrie

rso

requ

ests

.6.

On

settl

emen

t of

the

cla

im t

he c

arrie

r m

ay r

equi

re t

he p

rodu

ctio

n,in

the

orig

inal

for

m,

of t

he c

onsi

gnm

ent

note

, th

edu

plic

ate

orth

e ca

sh o

n de

liver

y vo

uche

r so

that

they

may

be e

ndor

sed

to th

e ef

fect

that

set

tlem

enth

as b

een

mad

e.

Art

icle

44-

Pers

ons w

ho m

ay b

ring

an

actio

n ag

ains

t the

car

rier

1. S

ubje

ct to

§§

3 an

d 4

actio

nsba

sed

onth

e co

ntra

ct o

f car

riage

may

be

brou

ght:

a)by

the

cons

igno

r, un

til su

chtim

e as

the

cons

igne

eha

s1.

take

n po

sses

sion

of t

he c

onsi

gnm

ent n

ote,

2.

acc

epte

d th

e go

ods,

or3.

ass

erte

d hi

srig

hts p

ursu

ant t

o ar

ticle

17

§ 3

orar

ticle

18

§ 3;

b) b

yth

e co

nsig

nee,

from

the

time

whe

n he

has

1. ta

ken

poss

essi

on o

f the

con

sign

men

t not

e,

2. a

ccep

ted

the

good

s,or

3. a

sser

ted

hisr

ight

s pur

suan

t to

artic

le 1

7 §

3 or

artic

le 1

8 §

3.3.

An

actio

n fo

r the

reco

very

ofa

sum

pai

d pu

rsua

nt to

the

cont

ract

of c

arria

ge m

ayon

lybe

bro

ught

by

the

pers

onw

ho m

ade

the

paym

ent.

4. A

n ac

tion

inre

spec

tof c

ash

on d

eliv

ery

paym

ents

may

only

be

brou

ght b

y th

e co

nsig

nor.

5. In

orde

r to

brin

g an

actio

n th

eco

nsig

norm

ust p

rodu

ce th

e du

plic

ate

of th

e co

nsig

nmen

t not

e.Fa

iling

this

hem

ust p

rodu

cean

aut

horis

atio

n fr

om th

eco

nsig

nee

or f

urni

sh p

roof

that

the

cons

igne

e ha

sre

fuse

d to

acc

ept t

hego

ods.

If n

eces

sary

, the

co

nsig

nor m

ust p

rove

the

abse

nce

or th

e lo

ss o

fthe

con

sign

men

t not

e.6.

Inor

der t

obr

ing

anac

tion

the

cons

igne

em

ust p

rodu

ce th

eco

nsig

nmen

t not

e if

it ha

s bee

nha

nded

over

tohi

m.

Art

icle

45-

Car

rier

s aga

inst

who

m a

nac

tion

may

be

brou

ght

1. S

ubje

ct to

§§

3 an

d 4

actio

ns b

ased

on

the

cont

ract

ofc

arria

gem

ay b

ebr

ough

tonl

y ag

ains

t the

firs

t car

rier,

the

last

carr

ier

or th

eca

rrie

r hav

ing

perf

orm

ed th

e pa

rtof

the

carr

iage

on

whi

ch th

e ev

ent g

ivin

gris

e to

the

proc

eedi

ngs

occu

rred

. 2.

Whe

n, in

the

case

ofca

rria

ge p

erfo

rmed

by

succ

essi

ve c

arrie

rs, t

he c

arrie

r who

mus

t del

iver

the

good

s is

ente

red

with

his

cons

ent

on t

he c

onsi

gnm

ent

note

, an

act

ion

may

be

brou

ght

agai

nst

him

in

acco

rdan

cew

ith §

1 e

ven

ifhe

has

rec

eive

d ne

ither

the

good

s nor

the

cons

ignm

ent n

ote.

3.

An

actio

n fo

rthe

rec

over

y of

a su

m p

aid

purs

uant

toth

e co

ntra

ct o

fcar

riage

may

be

brou

ght a

gain

st th

e ca

rrie

rw

ho h

asco

llect

ed th

at su

m o

raga

inst

the

carr

ier o

nw

hose

beh

alf i

t was

colle

cted

.4.

An

actio

n in

resp

ect o

f cas

h on

del

iver

y pa

ymen

ts m

ay b

ebr

ough

t onl

y ag

ains

t the

car

rier w

ho h

asta

ken

over

the

good

sat

the

plac

e of

con

sign

men

t.5.

An

actio

nm

ay b

e br

ough

t aga

inst

a c

arrie

r oth

er th

an th

ose

spec

ified

in §

§ 1

to4

whe

n in

stitu

ted

byw

ayof

coun

ter-

clai

mor

by

way

of e

xcep

tion

in p

roce

edin

gs re

latin

gto

a pr

inci

pal c

laim

bas

edon

the

sam

e co

ntra

ct o

f car

riage

. 6.

To

the

exte

nt th

at th

ese

Uni

form

Rul

es a

pply

to th

e su

bstit

ute

carr

ier,

an a

ctio

n m

ay a

lso

bebr

ough

t aga

inst

him

.7.

If th

e pl

aint

iff h

asa

choi

ce b

etw

een

seve

ral c

arrie

rs, h

is r

ight

to

choo

se s

hall

beex

tingu

ishe

d as

soon

as

he b

rings

an

actio

n ag

ains

t any

one

of th

em; t

his s

hall

also

app

ly if

the

plai

ntiff

has

a c

hoic

ebe

twee

n on

eor

mor

e ca

rrie

rsan

d a

subs

titut

eca

rrie

r.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 517

518 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVC

HA

PT

ER

14

–TIM

E F

OR

SU

IT

INST

RU

ME

NT

HA

GU

E-V

ISB

YH

AM

BU

RG

MU

LTIM

OD

AL

CM

RC

OT

IF-C

IM 1

999

CM

NI

WA

RSA

WM

ON

TR

EA

LA

rtic

le 1

4-Ti

me

for s

uit

14.1

The

car

rier

isdi

scha

rged

from

all

liabi

lity

in r

espe

ctof

the

good

sif j

udic

ial o

rar

bitr

al p

roce

edin

gsha

ve n

ot b

een

inst

itute

dw

ithin

a pe

riod

ofo

neye

ar. T

he s

hipp

er is

disc

harg

ed fr

omal

llia

bilit

y un

der

chap

ter

7 of

this

inst

rum

ent i

fju

dici

al o

rar

bitr

al

proc

eedi

ngs

have

not

be

en in

stitu

ted

with

in a

peri

od o

f one

year

.14

.2 T

he p

erio

dm

entio

ned

in a

rtic

le 1

4.1

com

men

ceso

n th

e da

y on

whi

chth

e ca

rrie

r ha

s co

mpl

eted

del

iver

yof

the

good

s con

cern

ed o

r, in

cas

es w

here

no

good

s ha

ve b

een

deliv

ered

, on

the

last

day

on w

hich

the

good

s sh

ould

hav

e be

ende

liver

ed. T

heda

y on

whi

ch th

e pe

riod

com

men

ces i

sno

t in

clud

edin

the

peri

od.

14.3

The

per

son

agai

nst

who

ma

clai

m is

mad

e at

any

time

duri

ng th

e ru

nnin

g of

the

peri

odm

ay e

xten

d th

atpe

riod

bya

decl

arat

ion

to th

e cl

aim

ant.

Thi

spe

riod

may

be

furt

her

exte

nded

by

ano

ther

decl

arat

ion

or d

ecla

ratio

ns.

14.4

An

actio

nfo

rin

dem

nity

by

a pe

rson

held

liabl

e un

der

this

inst

rum

ent m

aybe

inst

itute

dev

en a

fter

the

expi

ratio

n of

the

peri

odm

entio

ned

in a

rtic

le 1

4.1

if th

e in

dem

nity

actio

n is

inst

itute

d w

ithin

the

Art

icle

3(6

)Su

bjec

t to

para

-gr

aph

6bis

the

carr

ier a

nd th

e sh

ip

shal

l in

any

even

t be

disc

harg

ed fr

om a

ll lia

bilit

y w

hats

oeve

rin

resp

ect o

f the

good

s, un

less

suit

isbr

ough

t with

in o

neye

arof

thei

r del

iver

yor

of th

e da

tew

hen

they

shou

ldha

ve

been

del

iver

ed. T

his

perio

d m

ay,h

ow-

ever

, be

exte

nded

ifth

epa

rties

so

agre

e af

ter t

he c

ause

ofac

tion

has a

risen

. 6b

is. A

nac

tion

for

inde

mni

ty a

gain

st a

th

ird p

erso

n m

ay b

ebr

ough

t eve

n af

ter

the

expi

ratio

n of

the

year

pro

vide

d fo

r in

the

prec

edin

g pa

ragr

aph

if br

ough

t w

ithin

the

time

allo

wed

by

the

law

ofth

e C

ourt

seiz

edof

the

case

. H

owev

er, t

he ti

me

allo

wed

shal

l be

not

less

than

thre

e m

onth

s, co

mm

enc-

ing

from

the

day

whe

n th

e pe

rson

br

ingi

ng s

uch

actio

nfo

r ind

emni

ty h

asse

ttled

the

clai

m o

rha

sbee

n se

rved

with

proc

ess i

n th

e ac

tion

agai

nst h

imse

lf.

Art

icle

20-

Lim

itatio

n of

actio

ns1.

Any

act

ion

rela

ting

toca

rria

geof

goo

ds u

nder

this

Con

vent

ion

istim

e-ba

rred

if ju

dici

al o

rar

bitra

l pro

ceed

ings

ha

ve n

ot b

een

inst

itute

d w

ithin

a

perio

d of

two

year

s.2.

The

lim

itatio

npe

riod

com

men

ces

on th

e da

yon

whi

ch

the

carr

ierh

asde

liver

ed th

e go

ods

or p

artt

here

of o

r, in

ca

ses

whe

re n

ogo

ods h

ave

been

deliv

ered

, on

the

last

day

on w

hich

the

good

s sho

uld

have

be

en d

eliv

ered

. 3.

The

day

on

whi

chth

e lim

itatio

n pe

riod

com

men

ces i

s not

incl

uded

in th

e pe

riod.

4.

The

per

son

agai

nst w

hom

a

clai

m is

mad

e m

ayat

any

time

durin

g th

e ru

nnin

g of

the

limita

tion

perio

dex

tend

that

per

iod

bya

decl

arat

ion

inw

ritin

g to

the

clai

man

t. Th

ispe

riod

may

be

furth

er e

xten

ded

byan

othe

r dec

lara

tion

or d

ecla

ratio

ns.

5. A

n ac

tion

for

inde

mni

ty b

y a

pers

on h

eld

liabl

em

ay b

ein

stitu

ted

even

afte

r the

ex

pira

tion

of th

e

Art

icle

25-

Lim

itatio

n of

actio

ns1.

Any

act

ion

rela

t-in

g to

inte

rnat

iona

lm

ultim

odal

tran

spor

t un

der t

his

Con

vent

ion

shal

l be

time-

barr

ed if

judi

cial

or a

rbitr

alpr

ocee

ding

s hav

eno

t be

en in

stitu

ted

with

ina

perio

d of

two

year

s. H

owev

er,

if no

tific

atio

n in

w

ritin

g, st

atin

g th

e na

ture

and

mai

n pa

rticu

lars

oft

hecl

aim

,has

not

bee

ngi

ven

with

in si

x m

onth

safte

r the

day

whe

nth

e go

ods w

ere

deliv

ered

or,

whe

reth

ego

ods h

ave

not

been

del

iver

ed, a

fter

the

day

on w

hich

th

ey sh

ould

have

be

en d

eliv

ered

, the

actio

n sh

all b

e tim

e-ba

rred

at t

he e

xpiry

of th

is p

erio

d.

2. T

he li

mita

tion

perio

d co

mm

ence

s on

the

day

afte

r the

da

y on

whi

ch th

e m

ultim

odal

tran

spor

t op

erat

or h

as d

eli-

vere

dth

e go

ods

orpa

rt th

ereo

for,

whe

re th

e go

ods

have

not

bee

nde

li-ve

red,

on th

e da

yaf

ter t

he la

st d

ay o

n w

hich

the

good

ssh

ould

hav

e be

ende

liver

ed.

3.Th

e pe

rson

aga

inst

who

m a

cla

im is

mad

e m

ay a

tany

Art

icle

32

1.Th

e pe

riod

oflim

itatio

n fo

r an

actio

n ar

isin

g ou

t of

carr

iage

und

er th

isC

onve

ntio

n sh

all b

eon

e ye

ar.N

ever

the-

less

, in

the

case

ofw

ilful

mis

cond

uct,

orsu

ch d

efau

lt as

inac

cord

ance

with

the

law

of th

e co

urt o

rtri

buna

l sei

sed

of th

e ca

se, i

scon

side

red

aseq

uiva

lent

tow

ilful

mis

cond

uct,

the

perio

d of

lim

itatio

n sh

all b

e th

ree

year

s.Th

e pe

riod

of li

mita

-tio

n sh

all b

egin

toru

n:(a

) In

the

case

ofpa

rtial

loss

,dam

age

orde

lay

in d

eliv

ery,

from

the

date

ofde

liver

y;(b

) In

the

case

oft

otal

lo

ss, f

rom

the

thirt

ieth

da

y af

tert

he e

xpiry

of

the

agre

ed ti

me-

limit

orw

here

ther

e is

no

agre

ed ti

me-

limit

from

the

sixt

ieth

day

from

the

date

on

whi

ch th

e go

ods

wer

e ta

ken

over

by

the

carr

ier;

(c) I

n al

l oth

er c

ases

,on

the

expi

ry o

f a

perio

d of

thre

e m

onth

s afte

rthe

mak

ing

ofth

eco

ntra

ct o

f car

riage

. Th

e da

y on

whi

ch th

e pe

riod

of li

mita

tion

begi

ns to

run

shal

lnot

be in

clud

ed in

the

perio

d.2.

A w

ritte

n cl

aim

Art

icle

47-

Ext

inct

ion

ofri

ght o

f act

ion

1. A

ccep

tanc

e of

the

good

s by

the

pers

on

entit

led

shal

l ext

in-

guis

hal

l rig

hts

ofac

tion

agai

nst t

heca

rrie

r aris

ing

from

th

e c

ontra

ct o

f ca

rria

ge in

cas

eof

parti

al l

oss,

dam

age

or e

xcee

ding

oft

he

trans

it pe

riod.

2.

Nev

erth

eles

s, th

erig

ht o

f act

ion

shal

l no

t be

extin

guis

hed:

a) in

cas

e of

par

tial

loss

or d

amag

e, if

1. th

e lo

ss o

rdam

age

was

asc

erta

ined

inac

cord

ance

with

artic

le 4

2 be

fore

the

acce

ptan

ce o

f the

good

s by

the

pers

on

entit

led;

2.

the

asce

rtain

men

t w

hich

sho

uld

have

be

en c

arrie

d ou

t in

acco

rdan

ce w

ithar

ticle

42

was

om

itted

sol

ely

thro

ugh

the

faul

t of

the

carr

ier;

b)in

case

of l

oss o

r da

mag

e w

hich

is n

ot

appa

rent

who

se

exis

tenc

e is

asce

r-ta

ined

afte

r acc

ept-

ance

oft

he g

oods

by

the

pers

on e

ntitl

ed, i

fhe 1.

asks

for a

scer

tain

-m

ent i

n ac

cord

ance

with

arti

cle

42im

med

iate

ly a

fter

disc

over

y of

the

loss

orda

mag

e an

d no

t la

ter t

han

seve

n da

ysaf

ter t

he a

ccep

tanc

e

Art

icle

24-

Lim

itatio

nof

act

ions

1. A

ll ac

tions

aris

ing

out o

f a c

ontra

ct

gove

rned

by

this

Con

vent

ion

shal

l be

time-

barr

ed a

fter o

neye

ar c

omm

enci

ngfr

om th

e da

yw

hen

the

good

sw

ere,

or s

houl

dha

ve b

een,

del

iver

ed

to th

e co

nsig

nee.

The

da

y on

whi

ch th

e lim

itatio

n pe

riod

com

men

ces i

s not

incl

uded

in th

e pe

riod.

2. T

hepe

rson

agai

nst

who

m a

n ac

tion

isin

stitu

ted,

may

at a

nytim

e du

ring

the

limi-

tatio

n pe

riod

exte

nd

that

per

iod

bya

decl

arat

ion

inw

ritin

gto

the

inju

red

party

.Th

is p

erio

dm

ay b

efu

rther

ext

ende

dby

anot

her d

ecla

ratio

n or

decl

arat

ions

.3.

The

susp

ensi

on a

ndin

terr

uptio

n of

the

limita

tion

perio

d ar

e go

vern

ed b

y th

ela

wof

the

Stat

e ap

plic

able

to

the

cont

ract

of

carr

iage

. The

filin

gof

a cl

aim

durin

g pr

o-ce

edin

gs to

app

ortio

n lim

ited

liabi

lity

fora

ll cl

aim

s aris

ing

from

anev

ent h

avin

gle

d to

dam

age

shal

l int

erru

pt

the

limita

tion.

4.

Any

act

ion

for

inde

mni

ty b

y a

pers

onhe

ldlia

ble

unde

r thi

sC

onve

ntio

n m

ay b

ein

stitu

ted

even

afte

rth

e ex

piry

of t

he

limita

tion

perio

d

Art

icle

29

1. T

herig

ht to

dam

ages

sha

llbe

extin

guis

hed

if an

actio

n is

not

bro

ught

w

ithin

two

year

s,re

ckon

ed fr

omth

eda

te o

f arr

ival

at t

he

dest

inat

ion,

or f

rom

the

date

onw

hich

the

airc

raft

ough

t to

have

ar

rived

, or f

rom

the

date

on

whi

ch th

eca

rria

ge s

topp

ed.

Art

icle

35-

Lim

itatio

n of

Act

ions

1.

The

righ

t to

dam

ages

sha

llbe

extin

guis

hed

if an

actio

n is

not

bro

ught

w

ithin

a pe

riod

oftw

o ye

ars,

reck

oned

fr

om th

e da

teof

arriv

alat

the

dest

i-na

tion,

or f

rom

the

date

on

whi

ch th

eai

rcra

ft ou

ght t

oha

ve a

rriv

ed, o

r fr

om th

e da

teon

w

hich

the

carr

iage

stop

ped.

2. T

he m

etho

d of

calc

ulat

ing

that

pe

riod

shal

l be

dete

rmin

ed b

y th

e la

wof

the

cour

t se

ised

oft

he c

ase.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 518

Part Two. Studies and reports on specific subjects 519IN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

late

r of

(a

) the

tim

eal

low

ed b

yth

e la

w o

fthe

Sta

te

whe

re p

roce

edin

gs a

re

inst

itute

d; o

r (b

) 90

days

com

men

cing

from

the

day

whe

n th

epe

rson

inst

itutin

gth

eac

tion

for

inde

mni

ty h

asei

ther

(i) se

ttle

d th

e cl

aim

; or

(ii) b

een

serv

ed w

ithpr

oces

s in

the

actio

nag

ains

t its

elf.

[14.

5 If

the

regi

ster

edow

ner

of a

ves

sel d

efea

tsth

e pr

esum

ptio

n th

atit

is th

eca

rrie

r un

der

artic

le 8

.4.2

, an

actio

nag

ains

t the

bar

eboa

tch

arte

rer

may

bein

stitu

ted

even

aft

er th

eex

pira

tion

of th

e lim

itatio

n pe

riod

men

tione

d in

art

icle

14.

1 if

the

actio

n is

inst

itute

dw

ithin

the

late

r of

(a) t

he ti

me

allo

wed

by

the

law

oft

he S

tate

w

here

pro

ceed

ings

are

in

stitu

ted;

or

(b) 9

0da

ys c

omm

enci

ngfr

om th

e da

y w

hen

the

regi

ster

ed o

wne

r bo

th(i)

pro

ves t

hat t

he s

hip

was

und

er a

bar

eboa

tch

arte

rat

the

time

of th

eca

rria

ge; a

nd(ii

) ade

quat

ely

iden

tifie

sth

e ba

rebo

atch

arte

rer.]

limita

tion

perio

dpr

ovid

ed fo

r in

the

prec

edin

g pa

ra-

grap

hs if

inst

itute

dw

ithin

the

time

allo

wed

by

the

law

ofth

e St

ate

whe

re

proc

eedi

ngs a

re

inst

itute

d. H

owev

er,

the

time

allo

wed

shal

l not

be

less

than

90

day

s com

men

cing

from

the

day

whe

nth

e pe

rson

inst

itutin

g su

ch a

ctio

nfo

rin

dem

nity

has

set

tled

the

clai

mor

has

bee

n se

rved

with

pro

cess

in

the

actio

nag

ains

t hi

mse

lf.

time

durin

g th

e ru

nnin

g of

the

limita

tion

perio

dex

tend

that

per

iod

bya

decl

arat

ion

inw

ritin

g to

the

clai

man

t. Th

is p

erio

d m

ay b

e fu

rther

ex

tend

ed b

y an

othe

rde

clar

atio

n or

decl

arat

ions

.4.

Pro

vide

d th

at th

e pr

ovis

ions

of a

noth

erap

plic

able

inte

r-na

tiona

l con

vent

ion

are

not t

o th

eco

n-tra

ry, a

reco

urse

actio

n fo

rind

emni

tyby

ape

rson

hel

dlia

ble

unde

r thi

sC

onve

ntio

n m

ay b

ein

stitu

ted

even

afte

rth

e ex

pira

tion

of th

e lim

itatio

n pe

riod

prov

ided

for i

n th

e pr

eced

ing

para

grap

hsif

inst

itute

d w

ithin

th

e tim

e al

low

ed b

yth

e la

w o

f the

Sta

te

whe

re p

roce

edin

gsar

e in

stitu

ted;

ho

wev

er, t

he ti

me

allo

wed

shal

l not

be

less

than

90

days

com

men

cing

from

th

e da

yw

hen

the

pers

on in

stitu

ting

such

act

ion

for

inde

mni

ty h

as s

ettle

d th

e cl

aim

or h

as b

een

serv

ed w

ith p

roce

ss

in th

e ac

tion

agai

nst

him

self.

shal

l sus

pend

the

perio

d of

lim

itatio

n un

til s

uch

date

ast

heca

rrie

r rej

ects

the

clai

m b

yno

tific

atio

n in

writ

ing

and

retu

rns

the

docu

men

tsat

tach

ed th

eret

o. If

a

part

ofth

e cl

aim

isad

mitt

ed th

e pe

riod

oflim

itatio

n sh

all s

tart

to ru

n ag

ain

only

inre

spec

tof t

hat p

arto

fth

e cl

aim

still

in

disp

ute.

The

bur

den

of p

roof

of t

he re

ceip

t of

the

clai

m, o

r of t

he

repl

y an

d of

the

retu

rn

of th

edo

cum

ents

,sh

all r

estw

ith th

epa

rty re

lyin

g up

on

thes

e fa

cts.

The

runn

ing

of th

e pe

riod

of li

mita

tion

shal

l not

be

sus

pend

edby

furth

er c

laim

shav

ing

the

sam

e ob

ject

. 3.

Sub

ject

to th

epr

ovis

ions

of p

ara-

grap

h 2

abov

e, th

e ex

tens

ion

of th

e pe

riod

of li

mita

tion

shal

l be

gove

rned

by

the

law

of t

he c

ourt

ortri

buna

l sei

zed

of th

e ca

se. T

hat l

aw s

hall

also

gov

ern

the

fres

hac

crua

l of r

ight

s of

actio

n.

4. A

righ

t of a

ctio

nw

hich

has

bec

ome

barr

ed b

y la

pse

oftim

e m

ay n

ot b

eex

erci

sed

byw

ay o

fco

unte

rcla

im o

r set

-of

f.

of th

ego

ods,

and

2.

in a

dditi

on, p

rove

sth

at th

e lo

ss o

rda

mag

e oc

curr

ed

betw

een

the

time

ofta

king

over

and

the

time

of d

eliv

ery;

c)

in c

ases

whe

re th

e tra

nsit

perio

d ha

sbe

en e

xcee

ded,

if th

epe

rson

ent

itled

has

,w

ithin

sixt

yda

ys,

asse

rted

his r

ight

sag

ains

t one

oft

heca

rrie

rsre

ferr

ed to

in

artic

le 4

5 §

1;

d) if

the

pers

onen

title

d pr

oves

that

th

e lo

ss o

r dam

age

resu

ltsfr

om a

n ac

t or

omis

sion

, don

ew

ithin

tent

to c

ause

such

loss

or d

amag

e, o

rre

ckle

ssly

and

with

kn

owle

dge

that

suc

h lo

ss o

r dam

age

wou

ldpr

obab

ly re

sult.

3.

If th

e go

odsh

ave

been

reco

nsig

ned

inac

cord

ance

with

artic

le 2

8 rig

hts o

fac

tion

in c

ase

ofpa

rtial

loss

or i

n ca

seof

dam

age,

aris

ing

from

one

oft

hepr

evio

us c

ontra

cts

of

carr

iage

, sha

llbe

extin

guis

hed

as if

ther

e ha

dbe

en o

nly

a si

ngle

con

tract

of

carr

iage

. A

rtic

le 4

8-Li

mita

tion

of a

ctio

ns1.

The

per

iod

oflim

itatio

n fo

r an

actio

n ar

isin

g fr

omth

e co

ntra

ct o

f ca

rria

ge s

hall

be o

ne

year

. Nev

erth

eles

s, th

e pe

riod

of

prov

ided

fori

npa

ragr

aphs

1 an

d 2

of

the

pres

ent a

rticl

e, if

proc

eedi

ngs a

re

inst

itute

d w

ithin

a

perio

dof

90

days

com

men

cing

from

the

day

on w

hich

the

pers

on in

stitu

ting

the

actio

n ha

s set

tled

the

clai

mor

has

bee

n se

rved

with

pro

cess

,or

if pr

ocee

ding

s ar

e in

stitu

ted

with

in a

lo

nger

per

iod

aspr

ovid

ed b

y th

e la

wof

the

Stat

e w

here

pr

ocee

ding

s are

in

stitu

ted.

5.

A ri

ght o

f act

ion

whi

ch h

as b

ecom

eba

rred

by

laps

e of

time

may

not

be

exer

cise

d by

way

of

coun

ter-

clai

m o

r set

-of

f.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 519

520 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

limita

tion

shal

lbe

two

year

s in

the

case

of a

n ac

tion

a) to

reco

ver a

cash

on

del

iver

y pa

ymen

t co

llect

ed b

y th

e ca

rrie

r fro

m th

eco

nsig

nee;

b) to

reco

ver t

he

proc

eeds

of a

sale

ef

fect

ed b

y th

e ca

rrie

r;c)

for l

oss

orda

mag

ere

sulti

ngfr

om a

n ac

t or

om

issi

on d

one

with

inte

nt to

caus

esu

ch lo

ss o

r dam

age,

or

reck

less

lyan

d w

ith k

now

ledg

eth

atsu

ch lo

ss o

r dam

age

wou

ld p

roba

bly

resu

lt;

d) b

ased

on

one

ofth

e co

ntra

ctso

fca

rria

ge p

rior t

o th

ere

cons

ignm

ent i

n th

eca

se p

rovi

ded

for i

n ar

ticle

28.

2.

The

per

iod

oflim

itatio

n sh

all

run

for a

ctio

nsa)

for c

ompe

nsat

ion

fort

otal

loss

, fro

m

the

thirt

ieth

day

afte

r ex

piry

of th

e tra

nsit

perio

d;b)

for c

ompe

nsat

ion

for p

artia

l los

s,

dam

age

or e

xcee

ding

of th

e tra

nsit

perio

d,fr

om th

e da

yw

hen

deliv

ery

took

pla

ce;

c) in

all

othe

rcas

es,

from

the

day

whe

nth

e rig

ht o

f act

ion

may

be

exer

cise

d.Th

e da

y in

dica

ted

for

the

com

men

cem

ent

ofth

e pe

riod

of li

mi-

tatio

n sh

all n

ot b

ein

clud

ed in

the

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 520

Part Two. Studies and reports on specific subjects 521IN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

perio

d.3.

The

per

iod

oflim

itatio

n sh

allb

esu

spen

ded

by a

cla

im

in w

ritin

g in

acc

ord-

ance

with

arti

cle

43

until

the

day

that

the

carr

ier r

ejec

ts th

ecl

aim

by

notif

icat

ion

in w

ritin

g an

d re

turn

sth

e do

cum

ents

sub-

mitt

edw

ith it

. If p

art

of th

ecl

aim

isad

mitt

ed, t

he p

erio

d of

lim

itatio

n sh

all

star

t to

run

agai

n in

resp

ecto

f the

par

tof

the

clai

m st

ill in

dis

-pu

te. T

he b

urde

n of

proo

f of r

ecei

pt o

fth

ecl

aim

or o

fthe

repl

y an

d of

the

retu

rn o

fthe

doc

u-m

ents

sha

ll lie

on

the

party

who

relie

son

thos

e fa

cts.

The

perio

d of

lim

itatio

n sh

all n

ot b

e su

s-pe

nded

by

furth

ercl

aim

s hav

ing

the

sam

e ob

ject

. 4.

A rig

ht o

fact

ion

whi

ch h

as b

ecom

etim

e-ba

rred

may

not

be

exe

rcis

ed fu

rther

,ev

en b

yw

ayof

coun

ter-

clai

m o

rre

lied

upon

by

way

of e

xcep

tion.

5.

Oth

erw

ise,

the

susp

ensi

on a

ndin

ter-

rupt

ion

of p

erio

ds o

flim

itatio

n sh

allb

ego

vern

ed b

yna

tiona

l la

w.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 521

522 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVC

HA

PT

ER

15

– G

EN

ER

AL

AVE

RA

GE

INST

RU

ME

NT

HA

GU

E-V

ISB

YH

AM

BU

RG

MU

LTIM

OD

AL

CM

RC

OT

IF-C

IM 1

999

CM

NI

WA

RSA

WM

ON

TR

EA

LA

rtic

le 1

5-G

ener

alav

erag

e 15

.1 N

othi

ng in

this

inst

rum

ent p

reve

nts

the

appl

icat

ion

ofpr

ovis

ions

inth

eco

ntra

ctof

car

riag

e or

natio

nal l

awre

gard

ing

the

adju

stm

ent o

fge

nera

l ave

rage

. 15

.2W

ith th

e ex

cep-

tion

of th

e pr

ovis

ion

ontim

efo

r su

it, th

epr

ovis

ions

of t

his

inst

rum

ent r

elat

ing

toth

e lia

bilit

y of

the

carr

ier

for

loss

orda

mag

e to

the

good

sal

so d

eter

min

e w

heth

er th

eco

nsig

nee

may

ref

use

cont

ribu

-tio

n in

gen

eral

aver

age

and

the

liabi

lity

of th

e ca

rrie

r to

inde

mni

fy

the

cons

igne

e in

resp

ect o

f any

suc

hco

ntri

butio

n m

ade

oran

y sa

lvag

e pa

id.

Art

icle

24-

Gen

eral

aver

age

1.N

othi

ng in

this

Con

vent

ion

shal

lpr

even

t the

app

lica-

tion

of p

rovi

sion

sin

the

cont

ract

of

carr

iage

by

sea

orna

tiona

l law

rega

rd-

ing

the

adju

stm

ent o

f ge

nera

l ave

rage

.2.

With

the

exce

ptio

nof

Arti

cle

20, t

hepr

ovis

ions

of t

his

Con

vent

ion

rela

ting

to th

e lia

bilit

y of

the

carr

ier f

or lo

ss o

f or

dam

age

to th

ego

ods

also

det

erm

ine

whe

ther

the

con-

sign

ee m

ay re

fuse

cont

ribut

ion

in

gene

ral a

vera

ge a

nd

the

liabi

lity

ofth

e ca

rrie

r to

inde

mni

fyth

e co

nsig

nee

in

resp

ect o

fany

suc

h co

ntrib

utio

n m

ade

or

any

salv

age

paid

.

Art

icle

29-

Gen

eral

aver

age

1.N

othi

ng in

this

Con

vent

ion

shal

lpr

even

t the

app

lica-

tion

of p

rovi

sion

sin

the

mul

timod

al

trans

port

cont

ract

or

natio

nal l

aw re

gard

-in

g th

e ad

just

men

t of

gene

ral a

vera

ge,i

fan

d to

the

exte

ntap

plic

able

. 2.

With

the

exce

p-tio

n of

arti

cle

25, t

he

prov

isio

ns o

f thi

sC

onve

ntio

n re

latin

gto

the

liabi

lity

of th

e m

ultim

odal

tran

spor

t op

erat

or fo

r los

s of

or d

amag

e to

the

good

s sha

llal

sode

term

ine

whe

ther

the

cons

igne

em

ayre

fuse

con

tribu

tion

in g

ener

al a

vera

ge

and

the

liabi

lity

ofth

e m

ultim

odal

tra

nspo

rt op

erat

orto

inde

mni

fy th

eco

nsig

nee

in re

spec

tof

any

suc

hco

ntri-

butio

n m

ade

or a

nysa

lvag

e pa

id.

Art

icle

26-

Gen

eral

aver

age

Not

hing

in th

isC

onve

ntio

n sh

all

prev

ent t

he a

pplic

a-tio

n of

pro

visi

onsi

nth

e co

ntra

ct o

f ca

rria

ge o

r nat

iona

l la

w re

gard

ing

the

calc

ulat

ion

ofth

e am

ount

of d

amag

esan

d co

ntrib

utio

nspa

yabl

e in

the

even

t of

gen

eral

ave

rage

.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 522

Part Two. Studies and reports on specific subjects 523C

HA

PT

ER

16

– O

TH

ER

CO

NV

EN

TIO

NS

INST

RU

ME

NT

HA

GU

E-V

ISB

YH

AM

BU

RG

MU

LTIM

OD

AL

CM

RC

OT

IF-C

IM 1

999

CM

NI

WA

RSA

WM

ON

TR

EA

LA

rtic

le 1

6-O

ther

Con

vent

ions

16

.1 T

his i

nstr

umen

tdo

es n

ot m

odify

the

righ

ts o

rob

ligat

ions

of

the

carr

ier,

or th

e pe

rfor

min

g pa

rty

prov

ided

for

inin

tern

atio

nal

conv

entio

ns o

r na

tiona

lla

w g

over

ning

the

limita

tion

of li

abili

ty

rela

ting

to th

eop

erat

ion

of [s

eago

ing]

ship

s.16

.2N

o lia

bilit

y ar

ises

unde

r th

e pr

ovis

ions

of

this

inst

rum

ent f

or a

nylo

ssor

dam

age

toor

dela

yin

del

iver

y of

lu

ggag

e fo

r w

hich

the

carr

ier

is r

espo

nsib

le

unde

r an

y co

nven

tion

orna

tiona

l law

rela

ting

toth

e ca

rria

ge o

fpa

ssen

gers

and

thei

rlu

ggag

e by

sea

. 16

.3N

o lia

bilit

y ar

ises

unde

r th

e pr

ovis

ions

of

this

inst

rum

ent f

orda

mag

e ca

used

by a

nu

clea

r in

cide

nt if

the

oper

ator

ofa

nuc

lear

inst

alla

tion

is li

able

for

such

dam

age:

(a) u

nder

eith

er th

e Pa

ris

Con

vent

ion

of29

Ju

ly 1

960,

on

Thi

rdPa

rty

Lia

bilit

yin

the

Fiel

dof

Nuc

lear

Ene

rgy

as a

men

ded

by th

eA

dditi

onal

Pro

toco

lof

28 J

anua

ry 1

964,

or

the

Vie

nna

Con

vent

ion

of 2

1 M

ay 1

963,

on

Civ

il L

iabi

lity

for

Nuc

lear

Dam

age,

or

(b) b

y vi

rtue

of n

atio

nal

law

gov

erni

ngth

e

Art

icle

8

The

prov

isio

nsof

this

conv

entio

n sh

alln

otaf

fect

the

right

s and

ob

ligat

ions

of th

e ca

rrie

r un

der a

nyst

atut

e fo

rthe

time

bein

g in

forc

ere

latin

g to

the

limita

tion

ofth

e lia

bilit

y of

ow

ners

of s

eago

ing

vess

els.

Art

icle

25-

Oth

erco

nven

tions

1. T

his C

onve

ntio

n do

esno

t mod

ifyth

e rig

hts o

rdu

ties o

f the

car

rier,

the

actu

al c

arrie

r and

thei

rse

rvan

ts a

nd a

gent

s, pr

ovid

ed fo

r in

inte

r-na

tiona

l con

vent

ions

or

natio

nal l

aw re

latin

gto

the

limita

tion

of li

abili

tyof

ow

ners

of s

eago

ing

ship

s.2.

The

prov

isio

ns o

f A

rticl

es 2

1 an

d 22

of t

his

Con

vent

ion

do n

otpr

even

t the

app

licat

ion

ofth

e m

anda

tory

prov

isio

nsof

any

oth

er m

ultil

ater

alco

nven

tion

alre

ady

info

rce

at th

e da

teof

this

Con

vent

ion

rela

ting

tom

atte

rs d

ealt

with

in th

esa

id A

rticl

es, p

rovi

ded

that

the

disp

ute

aris

es

excl

usiv

ely

betw

een

parti

es h

avin

g th

eir

prin

cipa

l pla

ce o

fbu

sine

ss in

Sta

tes

mem

bers

of s

uch

othe

rco

nven

tion.

How

ever

,thi

spa

ragr

aph

does

not

aff

ect

the

appl

icat

ion

ofpa

ragr

aph

4 of

Arti

cle

22

of th

is C

onve

ntio

n.

3. N

o lia

bilit

y sh

all a

rise

unde

rthe

pro

visi

ons

ofth

is C

onve

ntio

n fo

rda

mag

e ca

used

by

a nu

clea

r inc

iden

t ift

heop

erat

or o

f a n

ucle

arin

stal

latio

n is

liab

le fo

rsu

ch d

amag

e:(a

) Und

er e

ither

the

Paris

C

onve

ntio

nof

29

July

1960

on

Third

Par

tyLi

abili

ty in

the

Fiel

d of

N

ucle

ar E

nerg

y as

Art

icle

4-R

egul

atio

n an

d co

ntro

l of m

ultim

odal

tr

ansp

ort

1. T

his C

onve

ntio

n sh

all

nota

ffec

t, or

be

inco

m-

patib

le w

ith, t

heap

plic

a-tio

n of

any

inte

rnat

iona

l co

nven

tion

or n

atio

nal

law

rela

ting

to th

e re

gula

tion

and

cont

rol o

f tra

nspo

rt op

erat

ions

. 2.

Thi

s Con

vent

ion

shal

lno

t aff

ect t

he ri

ght o

fea

ch S

tate

to re

gula

te a

nd

cont

rol a

t the

natio

nal

leve

l mul

timod

altra

ns-

port

oper

atio

nsan

d m

ultim

odal

tran

spor

t op

erat

ors,

incl

udin

g th

e rig

ht to

take

mea

sure

sre

latin

g to

cons

ulta

tions

,es

peci

ally

bef

ore

the

intro

duct

ion

ofne

w te

ch-

nolo

gies

and

ser

vice

s, be

twee

n m

ultim

odal

trans

port

oper

ator

s,sh

ippe

rs, s

hipp

ers'

orga

nisa

tions

and

ap

prop

riate

nat

iona

lau

thor

ities

on

term

s and

cond

ition

s of s

ervi

ce;

licen

sing

of m

ultim

odal

trans

port

oper

ator

s;pa

rtici

patio

n in

tran

spor

t; an

d al

l oth

er s

teps

in th

ena

tiona

l eco

nom

ic a

nd

com

mer

cial

inte

rest

.3.

The

mul

timod

altra

nspo

rt op

erat

or s

hall

com

ply

with

the

appl

i-ca

ble

law

of t

he c

ount

ryin

whi

ch h

e op

erat

es a

nd

with

the

prov

isio

ns o

f th

is C

onve

ntio

n.

Art

icle

30-

Oth

erC

onve

ntio

ns1.

Thi

s Con

vent

ion

does

not m

odify

the

right

s or

Art

icle

55-

Rel

atio

nshi

p w

ith o

ther

War

saw

Con

vent

ion

Inst

rum

ents

This

Con

vent

ion

shal

lpr

evai

l ove

r any

rule

sw

hich

app

lyto

inte

r-na

tiona

l car

riage

by

air:

1. b

etw

een

Stat

es

Parti

es to

this

Con

vent

ion

by v

irtue

of

thos

e St

ates

com

mon

lybe

ing

Party

to(a

) The

Con

vent

ion

for

the

Uni

ficat

ion

of

Cer

tain

Rul

es R

elat

ing

to In

tern

atio

nal

Car

riag

e by

Air S

igne

dat

War

saw

on

12 O

ctob

er19

29

(her

eina

fter c

alle

d th

eW

arsa

w C

onve

ntio

n);

(b) t

hePr

otoc

ol to

Am

end

the

Con

vent

ion

for t

he U

nific

atio

n of

Cer

tain

Rul

es R

elat

ing

to In

tern

atio

nal

Car

riag

e by

AirS

igne

dat

War

saw

on12

Oct

ober

1929

, Don

eat

The

Hag

ue o

n28

Sep

tem

ber 1

955

(her

eina

fter c

alle

d Th

e H

ague

Pro

toco

l);

(c) t

heC

onve

ntio

n,

Supp

lem

enta

ry to

the

War

saw

Con

vent

ion,

for

the

Uni

ficat

ion

of

Cer

tain

Rul

es R

elat

ing

to In

tern

atio

nal

Car

riag

e by

Air

Perf

orm

ed b

y a

Pers

onO

ther

than

the

Con

trac

ting

Car

rier

, si

gned

at G

uada

laja

ra

on 1

8Se

ptem

ber1

961

(her

eina

fter c

alle

d th

eG

uada

laja

ra

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 523

524 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

liabi

lity

for

such

dam

age,

pro

vide

d th

atsu

ch la

w is

inal

l re

spec

ts a

sfav

oura

ble

tope

rson

s who

may

suf

fer

dam

age

asei

ther

the

Pari

s or

Vie

nna

Con

vent

ions

.

amen

ded

by th

e A

dditi

onal

Pro

toco

l of

28 Ja

nuar

y 19

64 o

rthe

Vi

enna

Con

vent

ion

of21

May

1963

on

Civ

ilLi

abili

ty fo

r Nuc

lear

Dam

age,

or

(b) B

y vi

rtue

ofna

tiona

lla

w g

over

ning

the

liabi

lity

fors

uch

dam

age,

pro

-vi

ded

that

such

law

is in

all r

espe

ctsa

s fav

oura

ble

to p

erso

nsw

ho m

ay su

ffer

dam

age

asei

ther

the

Paris

or V

ienn

a C

onve

ntio

ns.

4. N

o lia

bilit

y sh

all a

rise

unde

rthe

pro

visi

ons

ofth

is C

onve

ntio

n fo

rany

loss

of o

r dam

age

to o

rde

lay

in d

eliv

ery

oflu

ggag

e fo

r whi

ch th

eca

rrie

r isr

espo

nsib

leun

der a

nyin

tern

atio

nal

conv

entio

n or

nat

iona

l la

wre

latin

g to

the

carr

iage

of p

asse

nger

sand

th

eir l

ugga

ge b

y se

a.

5.N

othi

ng c

onta

ined

in

this

Con

vent

ion

prev

ents

a C

ontra

ctin

g St

ate

from

appl

ying

any

oth

erin

tern

atio

nal c

onve

ntio

nw

hich

is a

lread

y in

forc

eat

the

date

of th

isC

onve

ntio

n an

d w

hich

appl

ies

man

dato

rily

toco

ntra

cts o

f car

riage

of

good

s prim

arily

by

a m

ode

oftra

nspo

rt ot

her

than

tran

spor

t by

sea.

Thi

spr

ovis

ion

also

app

lies

toan

y su

bseq

uent

revi

sion

or a

men

dmen

t of

suc

h in

tern

atio

nal c

onve

ntio

n.A

rtic

le 3

1-D

enun

ciat

ion

of o

ther

con

vent

ions

1. U

pon

beco

min

g a

Con

tract

ing

Stat

e to

this

Con

vent

ion,

any

Stat

e pa

rty to

the

Inte

rnat

iona

lC

onve

ntio

n fo

r the

dutie

s pro

vide

d fo

r in

the

Bru

ssel

s In

tern

atio

nal

Con

vent

ion

for t

heun

ifica

tion

ofce

rtain

ru

les r

elat

ing

to th

e lim

itatio

n of

the

liabi

lity

of o

wne

rs o

f sea

-goi

ngve

ssel

s of

25A

ugus

t19

24; i

n th

e B

russ

els

Inte

rnat

iona

l Con

vent

ion

rela

ting

to th

elim

itatio

nof

the

liabi

lity

of o

wne

rsof

sea

goin

g sh

ips o

f10

Oct

ober

1957

; in

the

Lond

on C

onve

ntio

non

limita

tion

of li

abili

ty fo

rm

ariti

me

clai

mso

f 19

Nov

embe

r 197

6; a

nd

in th

e G

enev

a C

onve

ntio

n re

latin

gto

the

limita

tion

of th

elia

bilit

y of

ow

ners

of

inla

nd n

avig

atio

nve

ssel

s(C

LN) o

f 1 M

arch

197

3,

incl

udin

g am

endm

ents

toth

ese

Con

vent

ions

, or

natio

nal l

aw re

latin

gto

the

limita

tion

of li

abili

tyof

ow

ners

of s

ea-g

oing

ship

s an

din

land

navi

gatio

n ve

ssel

s. 2.

The

prov

isio

nsof

ar

ticle

s 26

and

27

of th

isC

onve

ntio

n do

not

prev

ent t

he a

pplic

atio

n of

the

man

dato

rypr

ovis

ions

of a

ny o

ther

inte

rnat

iona

lco

nven

tion

rela

ting

tom

atte

rs d

ealt

with

in th

esa

id a

rticl

es, p

rovi

ded

that

the

disp

ute

aris

es

excl

usiv

ely

betw

een

parti

es h

avin

g th

eir p

rin-

cipa

l pla

ceof

bus

ines

s in

Stat

es p

artie

s to

such

othe

r con

vent

ion.

How

ever

, thi

spar

agra

ph

does

not

aff

ect t

he a

ppli-

catio

n of

par

agra

ph 3

of

artic

le 2

7 of

this

Con

vent

ion.

Con

vent

ion)

;(d

) the

Prot

ocol

to

Amen

d th

e C

onve

ntio

n fo

r the

Uni

ficat

ion

ofC

erta

in R

ules

Rel

atin

g to

Inte

rnat

iona

l C

arri

age

byAi

rSig

ned

at W

arsa

won

12 O

ctob

er19

29 a

sAm

ende

d by

the

Prot

ocol

Don

e at

The

H

ague

on

28 S

epte

mbe

r19

55 S

igne

d at

G

uate

mal

a C

ity o

n8

Mar

ch 1

971

(her

eina

fter c

alle

d th

eG

uate

mal

a C

ityPr

otoc

ol);

(e) A

dditi

onal

Prot

ocol

N

os. 1

to 3

and

Mon

treal

Pro

toco

l No.

4 to

am

end

the

War

saw

Con

vent

ion

asam

ende

d by

the

Hag

ue P

roto

col

or th

e W

arsa

wC

onve

ntio

n as

amen

ded

by b

oth

The

Hag

uePr

otoc

ol a

nd th

e G

uate

mal

a C

ityPr

otoc

ol S

igne

dat

M

ontre

al o

n25

Sep

tem

ber 1

975

(her

eina

fter c

alle

d th

eM

ontre

al P

roto

cols

); or

2.w

ithin

the

terr

itory

ofan

y si

ngle

Sta

te P

arty

toth

is C

onve

ntio

n by

virtu

e of

that

Sta

te b

eing

Party

to o

ne o

r mor

e of

the

inst

rum

ents

refe

rred

to in

sub-

para

grap

hs (a

)to

(e) a

bove

.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 524

Part Two. Studies and reports on specific subjects 525IN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

Uni

ficat

ion

of C

erta

in

Rul

es re

latin

gto

Bill

s of

Ladi

ng si

gned

at B

russ

els

on 2

5A

ugus

t192

4 (1

924

Con

vent

ion)

mus

tnot

ifyth

e G

over

nmen

t of

Bel

gium

as t

he d

epos

itary

ofth

e 19

24 C

onve

ntio

n of

its d

enun

ciat

ion

of th

e sa

id C

onve

ntio

n w

ith a

de

clar

atio

n th

at th

ede

nunc

iatio

n is

to ta

keef

fect

as

from

the

date

whe

n th

isC

onve

ntio

nen

ters

into

forc

e in

resp

ect

of th

at S

tate

. 2.

Upo

nth

e en

try in

tofo

rce

of th

is C

onve

ntio

n un

der p

arag

raph

1 o

f ar

ticle

30,

the

depo

sita

ryof

this

Con

vent

ion

mus

tno

tify

the

Gov

ernm

ent o

f B

elgi

um a

s the

dep

osita

ryof

the

1924

Con

vent

ion

ofth

eda

te o

f suc

h en

tryin

tofo

rce,

and

oft

he n

ames

of

the

Con

tract

ing

Stat

es in

resp

ect o

f whi

ch th

e C

onve

ntio

n ha

s en

tere

d in

to fo

rce.

3.

The

prov

isio

ns o

f pa

ragr

aphs

1 an

d 2

of th

isA

rticl

e ap

ply

corr

espo

nd-

ingl

yin

resp

ect o

f Sta

tes

parti

es to

the

Prot

ocol

sign

ed o

n 23

Feb

ruar

y19

68 to

am

end

the

Inte

rnat

iona

l Con

vent

ion

fort

he U

nific

atio

n of

Cer

tain

Rul

es re

latin

g to

Bill

s ofL

adin

gsi

gned

at

Bru

ssel

s on

25A

ugus

t19

24.

4. N

otw

ithst

andi

ng

Arti

cle

2 of

this

Con

vent

ion,

for t

hepu

rpos

es o

f par

agra

ph 1

of

this

Arti

cle,

a

Con

tract

ing

Stat

e m

ay,i

fit

deem

s it d

esira

ble,

def

er

3. N

o lia

bilit

y sh

all a

rise

unde

rthe

pro

visi

ons

ofth

is C

onve

ntio

n fo

rda

mag

e ca

used

bynu

clea

r inc

iden

t ift

heop

erat

or o

f a n

ucle

arin

stal

latio

n is

liab

le fo

rsu

ch d

amag

e:(a

) Und

er e

ither

the

Paris

C

onve

ntio

nof

29

July

1960

on

Third

Par

tyLi

abili

ty in

the

Fiel

d of

N

ucle

ar E

nerg

y as

amen

ded

by th

e A

dditi

onal

Pro

toco

l of

28 Ja

nuar

y 19

64 o

rthe

Vi

enna

Con

vent

ion

of21

May

1963

on

Civ

ilLi

abili

ty fo

r Nuc

lear

Dam

age,

or a

men

dmen

tsth

eret

o; o

r(b

) By

virtu

e of

natio

nal

law

gov

erni

ngth

e lia

bilit

y fo

r suc

hda

mag

e,pr

ovid

ed th

at su

ch la

wis

in a

llre

spec

ts a

sfa

vour

able

to p

erso

nsw

ho m

ay su

ffer

dam

age

as e

ither

the

Paris

or

Vien

na C

onve

ntio

ns.

4.C

arria

ge o

f goo

ds su

ch

as c

arria

ge o

f goo

dsin

ac

cord

ance

with

the

Gen

eva

Con

vent

ion

of19

May

1956

on

the

Con

tract

for t

heIn

tern

atio

nal C

arria

ge o

fG

oods

by

Roa

d in

artic

le 2

, or t

he B

erne

C

onve

ntio

n of

7 Fe

brua

ry19

70 c

once

rnin

g th

eC

arria

ge o

f Goo

dsby

Rai

l, ar

ticle

2,sh

all n

ot

for S

tate

s Pa

rties

toC

onve

ntio

ns g

over

ning

such

car

riage

be

con-

side

red

asin

tern

atio

nal

mul

timod

al tr

ansp

ort

with

inth

e m

eani

ng o

far

ticle

1, p

arag

raph

1, o

f

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 525

526 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

the

denu

ncia

tion

of th

e 19

24 C

onve

ntio

n an

d of

the

1924

Con

vent

ion

asm

odifi

ed b

y th

e 19

68

Prot

ocol

fora

max

imum

pe

riod

of fi

ve y

ears

from

the

entry

into

forc

e of

this

Con

vent

ion.

It w

ill th

en

notif

y th

e G

over

nmen

t of

Bel

gium

of i

ts in

tent

ion.

D

urin

g th

is tr

ansi

tory

perio

d, it

mus

t app

ly to

the

Con

tract

ing

Stat

es th

is

Con

vent

ion

toth

e ex

clus

ion

of a

ny o

ther

on

e.

this

Con

vent

ion,

in s

ofa

ras

suc

h St

ates

are

bou

nd

to a

pply

the

prov

isio

nsof

su

chC

onve

ntio

ns to

such

carr

iage

of g

oods

.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 526

Part Two. Studies and reports on specific subjects 527C

HA

PT

ER

17

– L

IMIT

S O

FC

ON

TR

AC

TU

AL

FRE

ED

OM

INST

RU

ME

NT

HA

GU

E-V

ISB

YH

AM

BU

RG

MU

LTIM

OD

AL

CM

RC

OT

IF-C

IM 1

999

CM

NI

WA

RSA

WM

ON

TR

EA

LA

rtic

le 1

7-Li

mits

of

cont

ract

ual f

reed

om17

.1(a

) Unl

ess

othe

rwis

e sp

ecifi

edin

this

inst

rum

ent,

any

cont

ract

ual s

tipul

atio

n th

at d

erog

ates

from

the

prov

isio

nsof

this

inst

rum

ent a

re n

ull

and

void

, if a

nd to

the

exte

nt it

is in

tend

ed o

rha

s as

its e

ffec

t,di

rect

ly o

r in

dire

ctly

,to

exc

lude

, [or

] lim

it [,

or in

crea

se]t

he

liabi

lity

for

brea

ch o

f an

y ob

ligat

ion

ofth

e ca

rrie

r, a

perf

orm

ing

part

y, th

e sh

ippe

r,th

eco

ntro

lling

par

ty,o

rth

e co

nsig

nee

unde

rth

e pr

ovis

ions

of th

isin

stru

men

t. (b

) [N

otw

ithst

andi

ngpa

ragr

aph

(a),

the

carr

ier

or a

per

form

-in

g pa

rty

may

incr

ease

its r

espo

nsib

ilitie

san

dits

obl

igat

ions

unde

rth

is in

stru

men

t.](c

) Any

stip

ulat

ion

assi

gnin

g a

bene

fit o

fin

sura

nce

ofth

e go

ods

in fa

vour

oft

he c

arri

eris

nul

land

voi

d.

17.2

Not

with

stan

ding

the

prov

isio

nsof

chap

ters

5an

d 6

ofth

isin

stru

men

t, bo

th th

eca

rrie

r an

d an

y pe

rfor

min

g pa

rty

may

by th

e te

rms

ofth

eco

ntra

ct o

fcar

riag

e ex

clud

e or

limit

thei

rlia

bilit

y fo

r lo

ss o

rda

mag

e to

the

good

sif

(a)t

he g

oods

are

live

an

imal

s, or

Art

icle

3(8

)A

ny c

laus

e, c

oven

-an

t, or

agr

eem

ent i

n a

cont

ract

of c

arria

ge

relie

ving

the

carr

ier

orth

e sh

ip fr

omlia

bilit

y fo

r los

s or

dam

age

to, o

r in

conn

ectio

n w

ith,

good

s aris

ing

from

ne

glig

ence

, fau

lt,or

failu

re in

the

dutie

san

d ob

ligat

ions

pro

-vi

ded

in th

is a

rticl

e or

less

enin

g su

chlia

bilit

y ot

herw

ise

than

as p

rovi

ded

in

this

con

vent

ion,

shal

lbe

nul

l and

voi

d an

dof

no

effe

ct. A

ben

efit

of in

sura

nce

in

favo

urof

the

carr

ier

or si

mila

r cla

use

shal

lbe

dee

med

to b

e a

clau

se re

lievi

ng th

e ca

rrie

r fro

m li

abili

ty.

Art

icle

5

A ca

rrie

r sha

llbe

atlib

erty

tosu

rren

der i

nw

hole

or i

n pa

rt al

lor

any

of h

is ri

ghts

and

imm

uniti

es o

rto

incr

ease

any

of h

is

resp

onsi

bilit

ies a

nd

oblig

atio

ns u

nder

this

conv

entio

n, p

rovi

ded

such

surr

ende

r or

incr

ease

sha

ll be

embo

died

in th

ebi

llof

ladi

ng is

sued

toth

e sh

ippe

r.Th

e pr

o-vi

sion

s of

this

con

-ve

ntio

n sh

all n

ot b

eap

plic

able

to c

harte

rpa

rties

, but

if b

ills

ofla

ding

are

issu

ed in

the

case

of a

ship

unde

r a c

harte

rpar

ty

Art

icle

23-

Con

trac

tual

stip

ulat

ions

1. A

nyst

ipul

atio

nin

a co

ntra

ct o

f car

riage

by

sea,

in a

bill

of

ladi

ng, o

r in

any

othe

r doc

umen

tev

iden

cing

the

cont

ract

of c

arria

ge

by se

a is

nul

land

vo

id to

the

exte

nt th

atit

dero

gate

s, d

irect

lyor

indi

rect

ly, f

rom

the

prov

isio

ns o

f thi

sC

onve

ntio

n. T

he

nulli

tyof

such

a

stip

ulat

ion

does

not

affe

ct th

e va

lidity

of

the

othe

r pro

visi

ons

ofth

e co

ntra

ct o

rdo

cum

ent o

fwhi

chit

form

s a

part.

A cl

ause

assi

gnin

g be

nefit

of

insu

ranc

e of

the

good

sin

favo

ur o

fth

e ca

rrie

r, or

any

sim

ilar c

laus

e, is

nul

lan

d vo

id.

2. N

otw

ithst

andi

ngth

e pr

ovis

ions

ofpa

ragr

aph

1 of

this

artic

le, a

car

rier m

ayin

crea

se h

is re

spon

si-

bilit

ies a

nd o

blig

a-tio

ns u

nder

this

Con

vent

ion.

3.

Whe

re a

bill

of

ladi

ng o

r any

oth

erdo

cum

ent e

vide

ncin

gth

e co

ntra

ct o

f ca

rria

ge b

yse

a is

issu

ed, i

t mus

t con

-ta

in a

stat

emen

t tha

t th

e ca

rria

ge is

subj

ect

to th

e pr

ovis

ions

ofth

is C

onve

ntio

n w

hich

nul

lify

any

Art

icle

3-M

anda

tory

ap

plic

atio

n1.

Whe

n a

mul

ti-m

odal

tran

spor

t con

-tra

ct h

as b

een

con-

clud

ed w

hich

acco

rd-

ing

toar

ticle

2 sh

all

be g

over

ned

byth

isC

onve

ntio

n, th

e pr

ovis

ions

of t

his

Con

vent

ion

shal

l be

man

dato

rily

appl

icab

le to

such

cont

ract

.2.

Not

hing

in th

isC

onve

ntio

n sh

all

affe

ct th

e rig

ht o

fthe

cons

igno

r to

choo

sebe

twee

n m

ultim

odal

trans

port

and

segm

ente

d tra

nspo

rt.

Art

icle

28-

Con

trac

tual

stip

ulat

ions

1. A

nyst

ipul

atio

nin

a m

ultim

odal

trans

-po

rt co

ntra

ct o

rm

ultim

odal

tran

spor

t do

cum

ent s

hall

benu

ll an

d vo

id to

the

exte

nt th

at it

der

o-ga

tes,

dire

ctly

or

indi

rect

ly, f

rom

the

prov

isio

ns o

f thi

sC

onve

ntio

n. T

he

nulli

tyof

such

a

stip

ulat

ion

shal

l not

affe

ct th

e va

lidity

of

othe

r pro

visi

onso

f th

e co

ntra

ct o

r do

cum

ent o

fwhi

chit

form

s a

part.

A cl

ause

assi

gnin

g be

nefit

of

insu

ranc

e of

the

good

sin

favo

ur o

fth

e m

ultim

odal

tran

s-po

rt op

erat

or o

rany

sim

ilar c

laus

esh

all

Art

icle

40

Car

riers

shal

lbe

free

to a

gree

amon

gth

emse

lves

on

pro-

visi

ons

othe

rtha

nth

ose

laid

dow

n in

ar

ticle

s 37

and

38.

A

rtic

le 4

1 1.

Sub

ject

to th

epr

o-vi

sion

sof

arti

cle

40,

any

stip

ulat

ion

whi

ch

wou

ld d

irect

lyor

in

dire

ctly

der

ogat

efr

om th

e pr

ovis

ions

of th

is C

onve

ntio

n sh

all b

e nu

ll an

d vo

id. T

he n

ullit

yof

su

ch a

stip

ulat

ion

shal

l not

invo

lve

the

nulli

ty o

f the

oth

er

prov

isio

ns o

f the

cont

ract

.2.

In p

artic

ular

, abe

nefit

ofi

nsur

ance

in fa

vour

of th

eca

rrie

r ora

ny o

ther

sim

ilar c

laus

e, o

r any

clau

se sh

iftin

g th

e bu

rden

ofp

roof

shal

l be

nul

l and

voi

d.

Art

icle

5-M

anda

tory

la

wU

nles

s pro

vide

d ot

herw

ise

in th

ese

Uni

form

Rul

es,a

nyst

ipul

atio

n w

hich

, di

rect

ly o

rind

irect

ly,

wou

ld d

erog

ate

from

th

ese

Uni

form

Rul

essh

all b

e nu

ll an

d vo

id. T

he n

ullit

yof

su

ch a

stip

ulat

ion

shal

l not

invo

lve

the

nulli

ty o

f the

oth

er

prov

isio

ns o

f the

cont

ract

of c

arria

ge.

Nev

erth

eles

s, a

carr

ier m

ay a

ssum

ea

liabi

lity

grea

ter a

ndob

ligat

ions

mor

e bu

rden

som

e th

anth

ose

prov

ided

for i

nth

ese

Uni

form

Rul

es.

Art

icle

25-

Nul

lity

ofco

ntra

ctua

l st

ipul

atio

ns1.

Sub

ject

to th

epr

o-vi

sion

sof

arti

cle

20,

para

grap

h 4,

any

cont

ract

ual s

tipul

a-tio

n in

tend

ed to

excl

ude,

lim

it or

incr

ease

the

liabi

lity,

with

in th

e m

eani

ngof

this

Con

vent

ion,

of

the

carr

ier,

the

actu

al c

arrie

r ort

heir

serv

ants

or a

gent

s, sh

iftth

e bu

rden

of

proo

f or r

educ

eth

epe

riods

for c

laim

s or

limita

tions

refe

rred

toin

arti

cles

23

and

24sh

all b

e nu

ll an

d vo

id. A

nyst

ipul

atio

n as

sign

ing

abe

nefit

of

insu

ranc

e of

the

good

sin

favo

ur o

fth

e ca

rrie

r isa

lso

null

and

void

. 2.

Not

with

stan

ding

the

prov

isio

nsof

para

grap

h 1

of th

epr

esen

t arti

cle

and

with

out p

reju

dice

toar

ticle

21,

con

tract

ual

stip

ulat

ions

shal

lbe

auth

oriz

ed s

peci

fyin

g th

at th

e ca

rrie

r ort

he

actu

alca

rrie

r is n

ot

resp

onsi

ble

for l

osse

s ar

isin

g fr

om:

(a) A

nac

t or o

mis

-si

on b

y th

em

aste

r of

the

vess

el, t

he p

ilot

or a

ny o

ther

per

son

in th

e se

rvic

e of

the

vess

el,p

ushe

r or t

ugdu

ring

navi

gatio

n or

in

the

form

atio

n or

di

ssol

utio

n of

a

Art

icle

23

1. A

ny p

rovi

sion

tend

ing

to re

lieve

the

carr

ier o

f lia

bilit

y or

to fi

x a

low

er li

mit

than

that

whi

ch is

laid

dow

n in

this

Con

vent

ion

shal

l be

null

and

void

, but

the

nulli

ty o

f any

such

prov

isio

n do

es n

ot

invo

lve

the

nulli

tyof

th

e w

hole

con

tract

, w

hich

shal

l rem

ain

subj

ect t

o th

epr

ovis

ions

of t

his

Con

vent

ion.

2. P

arag

raph

1 o

f thi

sar

ticle

shal

l not

app

lyto

pro

visi

ons

gove

rn-

ing

loss

ord

amag

e re

sulti

ng fr

om th

ein

here

nt d

efec

t,qu

ality

or v

ice

ofth

e ca

rgo

carr

ied.

A

rtic

le 3

2 A

ny c

laus

eco

ntai

ned

in th

e co

ntra

ct a

nd a

ll sp

ecia

l agr

eem

ents

ente

red

into

bef

ore

the

dam

age

occu

rred

by

whi

ch th

e pa

rties

purp

ort t

o in

frin

ge

the

rule

s la

iddo

wn

by th

isC

onve

ntio

n,w

heth

er b

yde

cidi

ngth

ela

w to

be

appl

ied,

or

by

alte

ring

the

rule

s as t

oju

risdi

c-tio

n, sh

all b

e nu

ll an

d vo

id. N

ever

thel

ess

fort

he c

arria

ge o

f go

ods a

rbitr

atio

n cl

ause

s ar

e al

low

ed,

subj

ect t

o th

isC

onve

ntio

n, if

the

arbi

tratio

n is

to ta

kepl

ace

with

in o

ne o

f

Art

icle

26-

Inva

lidity

of

Con

trac

tual

Pr

ovis

ions

Any

pro

visi

on

tend

ing

to re

lieve

the

carr

ier o

f lia

bilit

y or

to fi

x a

low

er li

mit

than

that

whi

ch is

laid

dow

n in

this

Con

vent

ion

shal

l be

null

and

void

, but

the

nulli

ty o

f any

such

prov

isio

n do

es n

ot

invo

lve

the

nulli

tyof

th

e w

hole

con

tract

, w

hich

shal

l rem

ain

subj

ect t

o th

epr

ovis

ions

of t

his

Con

vent

ion.

Art

icle

27-

Fre

edom

to C

ontr

act

Not

hing

con

tain

ed in

this

Con

vent

ion

shal

l pr

even

t the

car

rier

from

refu

sing

toen

ter

into

any

cont

ract

of

carr

iage

, fro

m

wai

ving

any

def

ence

sav

aila

ble

unde

r the

Con

vent

ion,

or f

rom

layi

ng d

own

cond

i-tio

ns w

hich

do

not

conf

lict w

ith th

e pr

ovis

ions

of t

his

Con

vent

ion.

1 The

cha

pter

num

ber,

if

any,

to

be d

eter

min

ed i

n th

e co

urse

of

disc

ussi

ons

on t

he d

raft

ins

trum

ent.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 527

528 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

(b)t

he c

hara

cter

or

cond

ition

of t

he g

oods

or th

e ci

rcum

stan

ces

and

term

s and

con

di-

tions

und

erw

hich

the

carr

iage

is to

be

perf

orm

ed a

re s

uch

asre

ason

ably

to ju

stify

asp

ecia

l agr

eem

ent,

prov

ided

that

ord

inar

yco

mm

erci

al s

hipm

ents

mad

ein

the

ordi

nary

cour

se o

ftra

de a

re n

otco

ncer

ned

and

none

gotia

ble

tran

spor

tdo

cum

ent o

rne

go-

tiabl

e el

ectr

onic

reco

rdis

or

is to

be is

sued

for

the

carr

iage

oft

he

good

s.

they

shal

l com

ply

with

the

term

sof

this

conv

entio

n. N

othi

ngin

thes

e ru

les

shal

lbe

held

to p

reve

nt th

e in

serti

on in

a b

illof

la

ding

of a

ny la

wfu

lpr

ovis

ion

rega

rdin

g ge

nera

l ave

rage

.A

rtic

le 6

N

otw

ithst

andi

ng th

epr

ovis

ions

of t

hepr

eced

ing

artic

les,

a ca

rrie

r, m

aste

r or

agen

t oft

he c

arrie

ran

d a

ship

per s

hall

inre

gard

toan

y pa

rticu

-la

r goo

ds b

e at

libe

rtyto

ent

er in

to a

nyag

reem

ent i

n an

yte

rms a

s to

the

resp

onsi

bilit

y an

d lia

bilit

y of

the

carr

ier

for s

uch

good

s, an

das

to th

e rig

hts

and

imm

uniti

es o

fthe

carr

ieri

n re

spec

t of

such

goo

ds, o

r his

oblig

atio

n as

tose

awor

thin

ess,

so fa

ras

this

stip

ulat

ion

isno

t con

trary

topu

blic

po

licy,

or th

e ca

reor

dilig

ence

ofh

isse

rvan

ts o

r age

ntsi

n re

gard

toth

e lo

adin

g,ha

ndlin

g, st

owag

e,ca

rria

ge, c

usto

dy,

care

and

dis

char

ge o

fth

e go

ods c

arrie

d by

sea,

pro

vide

d th

at in

this

cas

eno

bill

of

ladi

ngha

s bee

n or

shal

l be

issu

edan

d th

at th

e te

rms a

gree

dsh

all b

eem

bodi

ed in

a

rece

ipt w

hich

sha

llbe

a n

on-n

egot

iabl

edo

cum

ent a

ndsh

all

be m

arke

d as

suc

h.

Any

agr

eem

ent s

o

stip

ulat

ion

dero

gatin

g th

eref

rom

to th

ede

trim

ent o

fthe

ship

per o

rthe

cons

igne

e.4.

Whe

re th

e cl

aim

-an

t in

resp

ect o

f the

good

s has

incu

rred

loss

as a

resu

lt of

a st

ipul

atio

n w

hich

isnu

llan

d vo

id b

yvi

rtue

of th

e pr

esen

t ar

ticle

, or a

s a

resu

lt of

the

omis

sion

of t

he

stat

emen

t ref

erre

d to

in p

arag

raph

3of

this

artic

le, t

he c

arrie

rm

ust p

ay c

ompe

nsa-

tion

to th

e ex

tent

re

quire

d in

ord

er to

give

the

clai

man

t co

mpe

nsat

ion

inac

cord

ance

with

the

prov

isio

ns o

f thi

sC

onve

ntio

n fo

r any

loss

of o

r dam

age

toth

e go

ods a

sw

ell a

sfo

r del

ay in

del

iver

y.

The

carr

ierm

ust,

in

addi

tion

pay

com

-pe

nsat

ion

for c

osts

incu

rred

by

the

clai

man

t for

the

purp

ose

of e

xerc

isin

ghi

s rig

ht, p

rovi

ded

that

cos

ts in

curr

ed in

the

actio

n w

here

the

fore

goin

g pr

ovis

ion

is in

voke

d ar

e to

be

dete

rmin

ed in

ac

cord

ance

with

the

law

oft

he S

tate

w

here

pro

ceed

ings

are

inst

itute

d.

be n

ull a

nd v

oid.

2.

Not

with

stan

ding

the

prov

isio

nsof

para

grap

h 1

of th

isar

ticle

, the

mul

ti-m

odal

tran

spor

t op

erat

or m

ay, w

ith

the

agre

emen

t of t

heco

nsig

nor,

incr

ease

his r

espo

nsib

ilitie

san

d ob

ligat

ions

und

er

this

Con

vent

ion.

3.

The

mul

timod

altra

nspo

rt do

cum

ent

shal

l con

tain

a st

ate-

men

t tha

t the

inte

r-na

tiona

l mul

timod

altra

nspo

rt is

subj

ect t

oth

epr

ovis

ions

of t

his

Con

vent

ion

whi

chnu

llify

any

stip

ula-

tion

dero

gatin

g th

ere-

from

to th

e de

trim

ent

ofth

e co

nsig

nor o

rth

e co

nsig

nee.

4.W

here

the

clai

m-

ant i

n re

spec

t of t

hego

ods h

as in

curr

edlo

ssas

a re

sult

ofa

stip

ulat

ion

whi

ch is

null

and

void

by

virtu

eof

the

pres

ent

artic

le, o

r as

a re

sult

ofth

e om

issi

on o

f the

st

atem

ent r

efer

red

toin

par

agra

ph 3

of th

isar

ticle

, the

mul

ti-m

odal

tran

spor

t op

erat

or m

ust p

ayco

mpe

nsat

ion

to th

e ex

tent

requ

ired

in

orde

r to

give

the

clai

man

t com

pens

a-tio

n in

acco

rdan

cew

ith th

e pr

ovis

ions

of

this

Con

vent

ion

for

any

loss

of o

rdam

age

to th

e go

ods a

sw

ell

as fo

r del

ayin

deliv

ery.

The

mul

ti-m

odal

tran

spor

t

push

ed o

rtow

ed

conv

oy, p

rovi

ded

that

the

carr

ierc

ompl

ied

with

the

oblig

atio

nsse

t out

for t

he c

rew

in

artic

le 3

, par

agra

ph 3

, un

less

the

act o

rom

issi

on re

sults

from

an

inte

ntio

n to

cau

seda

mag

e or

from

reck

less

con

duct

with

the

know

ledg

e th

atsu

ch d

amag

ew

ould

prob

ably

resu

lt;

(b) F

ire o

r an

expl

o-si

on o

n bo

ard

the

vess

el, w

here

it is

not

po

ssib

le to

pro

ve th

at

the

fire

or e

xplo

sion

re

sulte

dfr

om a

faul

tof

the

carr

ier o

rthe

actu

al c

arrie

r ort

heir

serv

ants

or a

gent

s or

a de

fect

of t

he v

esse

l; (c

) The

def

ects

ex

istin

gpr

ior t

o th

evo

yage

of h

is v

esse

l or

of a

rent

ed o

rch

arte

red

vess

el if

he

can

prov

e th

at s

uch

defe

cts c

ould

not

have

bee

n de

tect

ed

prio

r to

the

star

tof

the

voya

ge d

espi

te

due

dilig

ence

.

the

juris

dict

ions

refe

rred

to in

the

first

pa

ragr

aph

ofar

ticle

28.

A

rtic

le 3

3 Ex

cept

as p

rovi

ded

inpa

ragr

aph

3 of

artic

le 5

, not

hing

inth

is C

onve

ntio

n sh

all

prev

ent t

he c

arrie

rei

ther

from

refu

sing

to e

nter

into

any

cont

ract

of c

arria

ge

or fr

om m

akin

gre

gula

tions

whi

ch d

ono

t con

flict

with

the

prov

isio

ns o

f thi

sC

onve

ntio

n.A

rtic

le 3

4 Th

e pr

ovis

ions

ofar

ticle

s 3

to 8

incl

u-si

ve re

latin

g to

doc

u-m

ents

of c

arria

ge

shal

l not

app

ly in

the

case

of c

arria

ge p

er-

form

ed in

extra

or-

dina

ry c

ircum

stan

ces

outs

ide

the

norm

alsc

ope

of a

n ai

rca

rrie

r’s b

usin

ess.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 528

Part Two. Studies and reports on specific subjects 529IN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

ente

red

into

shal

lha

ve fu

ll le

gal e

ffec

t. Pr

ovid

ed th

at th

isar

ticle

shal

l not

app

lyto

ord

inar

y co

mm

er-

cial

shi

pmen

ts m

ade

in th

e or

dina

ry c

ours

eof

trad

e, b

uton

ly to

othe

r shi

pmen

ts

whe

re th

e ch

arac

ter

or c

ondi

tion

ofth

e pr

oper

tyto

be

carr

ied

or th

eci

rcum

stan

ces,

term

s and

con

ditio

nsun

der w

hich

the

carr

iage

is to

be

per-

form

ed a

re s

uch

asre

ason

ably

toju

stify

a sp

ecia

lagr

eem

ent.

Art

icle

7

Not

hing

her

ein

cont

aine

d sh

all

prev

ent a

car

riero

ra

ship

per f

rom

ent

erin

gin

to a

nyag

reem

ent,

stip

ulat

ion,

con

ditio

n,

rese

rvat

ion

orex

empt

ion

as to

the

resp

onsi

bilit

y an

d lia

bilit

y of

the

carr

ier

orth

e sh

ip fo

rthe

loss

or d

amag

e to

, or

in c

onne

ctio

n w

ith,

the

cust

ody

and

care

and

hand

ling

ofgo

ods p

rior t

o th

elo

adin

g on

, and

su

bseq

uent

to th

edi

scha

rge

from

the

ship

on

whi

chth

ego

ods a

re c

arrie

d by

sea.

oper

ator

mus

t,in

ad

ditio

n, p

ay c

om-

pens

atio

n fo

r cos

tsin

curr

ed b

yth

e cl

aim

ant f

or th

epu

rpos

e of

exe

rcis

ing

his r

ight

, pro

vide

d th

at c

osts

incu

rred

inth

e ac

tion

whe

re th

e fo

rego

ing

prov

isio

nis

invo

ked

are

to b

ede

term

ined

in a

ccor

d-an

ce w

ith th

e la

w o

f th

e St

ate

whe

repr

o-ce

edin

gs a

rein

stitu

ted.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 529

530 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVC

HA

PT

ER

–

JUR

ISD

ICT

ION

AN

D A

RB

ITR

AT

ION

INST

RU

ME

NT

HA

GU

E-V

ISB

YH

AM

BU

RG

MU

LTIM

OD

AL

CM

RC

OT

IF-C

IM 1

999

CM

NI

WA

RSA

WM

ON

TR

EA

L

NO

PRO

VIS

ION

SA

RE

IN

CLU

DE

DYE

T

Art

icle

21-

Juri

sdic

tion

1. In

judi

cial

pro

ceed

-in

gs re

latin

g to

car

riage

of

goo

ds u

nder

this

Con

vent

ion

the

plai

ntiff

, at h

is o

ptio

n,

may

inst

itute

an

actio

nin

a c

ourt

whi

ch,

acco

rdin

g to

the

law

of

the

Stat

ew

here

the

cour

t iss

ituat

ed, i

sco

mpe

tent

and

with

inth

e ju

risdi

ctio

n of

whi

ch is

situ

ated

one

of

the

follo

win

g pl

aces

: (a

) The

prin

cipa

l pla

ce

of b

usin

ess o

r, in

the

abse

nce

ther

eof,

the

habi

tual

resi

denc

e of

the

defe

ndan

t; or

(b) T

he p

lace

whe

re th

e co

ntra

ct w

asm

ade

pro-

vide

d th

at th

e de

fend

ant

has

ther

e a

plac

eof

busi

ness

, bra

nch

orag

ency

thro

ugh

whi

ch

the

cont

ract

was

mad

e;

or (c) T

he p

orto

floa

ding

or

the

port

of d

isch

arge

; or (d

) Any

addi

tiona

lpla

cede

sign

ated

fort

hat

purp

ose

in th

e co

ntra

ct

of c

arria

ge b

y se

a.

2.(a

) Not

with

stan

ding

the

prec

edin

g pr

ovis

ions

of t

his

artic

le, a

n ac

tion

may

be in

stitu

ted

in th

eco

urts

of a

ny p

ort o

rpl

ace

in a

Con

tract

ing

Stat

e at

whi

ch th

e ca

rryi

ng v

esse

l ora

nyot

her v

esse

l oft

he s

ame

owne

rshi

p m

ay h

ave

been

arr

este

d in

acco

rdan

ce w

ithap

plic

able

rule

s of

the

Art

icle

26-

Juri

sdic

tion

1. In

judi

cial

pro

ceed

-in

gs re

latin

g to

inte

r-na

tiona

l mul

timod

altra

nspo

rt un

der t

his

Con

vent

ion,

the

plai

ntiff

, at h

is o

ptio

n,

may

inst

itute

an

actio

nin

a c

ourt

whi

ch,

acco

rdin

g to

the

law

of

the

Stat

ew

here

the

cour

t iss

ituat

ed, i

sco

mpe

tent

and

with

inth

e ju

risdi

ctio

n of

whi

ch is

situ

ated

one

of

the

follo

win

gpl

aces

: (a

) The

prin

cipa

l pla

ce

of b

usin

ess o

r, in

the

abse

nce

ther

eof,

the

habi

tual

resi

denc

e of

the

defe

ndan

t; or

(b) T

he p

lace

whe

re th

e m

ultim

odal

tran

spor

t co

ntra

ct w

asm

ade,

prov

ided

that

the

defe

ndan

t has

ther

e a

plac

e of

bus

ines

s, br

anch

or a

genc

yth

roug

h w

hich

the

cont

ract

was

mad

e; o

r(c

) The

pla

ce o

f tak

ing

the

good

s in

char

gefo

r in

tern

atio

nal m

ulti-

mod

al tr

ansp

ort o

r the

plac

e of

del

iver

y; o

r (d

) Any

oth

erpl

ace

desi

gnat

ed fo

r tha

t pur

-po

se in

the

mul

timod

altra

nspo

rt co

ntra

ct a

ndev

iden

ced

in th

e m

ulti-

mod

al tr

ansp

ort

docu

men

t.2.

No

judi

cial

pro

ceed

-in

gs re

latin

g to

inte

r-na

tiona

l mul

timod

altra

nspo

rt un

der t

his

Con

vent

ion

may

be

inst

itute

d in

a p

lace

not

spec

ified

in p

ara-

Art

icle

31

1. In

lega

l pro

ceed

-in

gs a

risin

g ou

t of

carr

iage

und

er th

isC

onve

ntio

n, th

e pl

aint

iff m

ay b

ring

an

actio

n in

any

cou

rt or

tribu

nal o

f a c

ontra

c-tin

g co

untr

y de

sig-

nate

d by

agre

emen

tbe

twee

n th

e pa

rties

an

d, in

add

ition

, in

the

cour

ts o

rtrib

unal

s of

a co

untry

with

in w

hose

te

rrito

ry:

(a) T

he d

efen

dant

isor

dina

rily

resi

dent

, or

has h

is p

rinci

pal p

lace

of b

usin

ess,

or th

e br

anch

or a

genc

yth

roug

h w

hich

the

cont

ract

of c

arria

ge

was

mad

e, o

r(b

) The

pla

ce w

here

th

e go

ods

wer

e ta

ken

over

by

the

carr

iero

rth

e pl

ace

desi

gnat

edfo

r del

iver

y is

situ

ated

. 2.

Whe

re in

resp

ect o

fa

clai

mre

ferr

ed to

inpa

ragr

aph

1 of

this

artic

le a

n ac

tion

is

pend

ing

befo

rea

cour

t or

trib

unal

com

pete

nt

unde

r tha

t par

agra

ph,

orw

here

in re

spec

t of

such

a c

laim

aju

dgem

ent h

as b

een

ente

red

bysu

ch a

co

urt o

r trib

unal

no

new

act

ion

shal

lbe

star

ted

betw

een

the

sam

e pa

rties

on

the

sam

e gr

ound

s unl

ess

the

judg

emen

t of t

heco

urt o

r trib

unal

befo

re w

hich

the

first

ac

tion

was

bro

ught

is

Art

icle

46-

For

um1.

Act

ions

bas

ed o

n th

ese

Uni

form

Rul

esm

ay b

e br

ough

t bef

ore

the

cour

tsor

trib

unal

sof

Mem

ber S

tate

s de

sign

ated

by

agre

e-m

ent b

etw

een

the

parti

es o

r bef

ore

the

cour

ts o

rtrib

unal

s of

a St

ate

on w

hose

terr

itory

a) th

e de

fend

ant h

ashi

sdo

mic

ile o

r hab

itual

resi

denc

e, h

ispr

inci

pal

plac

e of

bus

ines

s ort

hebr

anch

or a

genc

y w

hich

conc

lude

d th

eco

ntra

ctof

car

riage

, or

b) th

epl

ace

whe

re th

ego

ods

wer

e ta

ken

over

by

the

carr

iero

r the

plac

e de

sign

ated

for

deliv

ery

issi

tuat

ed.

Oth

er c

ourts

or

tribu

nals

may

not

be

seiz

ed.

2. W

here

an

actio

nba

sed

on th

ese

Uni

form

R

ules

is p

endi

ngbe

fore

a co

urto

r trib

unal

com

-pe

tent

pur

suan

t to

§ 1,

or

whe

re in

such

litig

atio

n a

judg

men

t ha

s bee

nde

liver

ed b

ysu

ch a

cou

rtor

trib

unal

,no

new

act

ion

may

be

brou

ght b

etw

een

the

sam

e pa

rties

on

the

sam

e gr

ound

s unl

ess

the

judg

men

t of t

he

cour

t or t

ribun

al b

efor

e w

hich

the

first

act

ion

was

bro

ught

isno

ten

forc

eabl

e in

the

Stat

e in

whi

ch th

e ne

wac

tion

is b

roug

ht.

Art

icle

28

1. A

nac

tion

for

dam

ages

mus

tbe

brou

ght,

at th

e op

tion

of th

epl

aint

iff, i

n th

e te

rrito

ry o

f one

oft

he

Hig

h C

ontra

ctin

g Pa

rties

, eith

erbe

fore

the

Cou

rtha

ving

juris

dict

ion

whe

re

the

carr

ier i

sor

dina

rily

resi

dent

, or

has

his p

rinci

pal

plac

e of

bus

ines

s, or

has a

nes

tabl

ishm

ent

byw

hich

the

cont

ract

ha

sbe

en m

ade

orbe

fore

the

Cou

rt ha

ving

juris

dict

ion

at

the

plac

e of

des

tina-

tion.

2.

Que

stio

ns o

fpr

oced

ure

shal

lbe

gove

rned

by

the

law

ofth

e C

ourt

seis

ed o

fth

e ca

se.

Art

icle

33-

Juri

sdic

tion

1. A

nac

tion

for

dam

ages

mus

tbe

brou

ght,

at th

e op

tion

of th

epl

aint

iff, i

n th

e te

rrito

ry o

f one

oft

he

Stat

es P

artie

s, ei

ther

befo

re th

e co

urt o

fthe

do

mic

ileof

the

carr

ier

orof

its p

rinci

pal p

lace

of

bus

ines

s, w

here

it

hasa

pla

ce o

f bus

ines

sth

roug

h w

hich

the

cont

ract

has

bee

n m

ade

orbe

fore

the

cour

t at

the

plac

e of

des

tinat

ion.

2. In

resp

ect o

f dam

age

resu

lting

from

the

deat

h or

inju

ryof

a

pass

enge

r, an

act

ion

may

be

brou

ght b

efor

e on

eof

the

cour

tsm

en-

tione

d in

par

agra

ph 1

of

this

arti

cle,

or i

n th

e te

rrito

ry o

f a S

tate

Party

in w

hich

at t

hetim

e of

the

acci

dent

the

pass

enge

r has

his

orh

er

prin

cipa

l and

pe

rman

ent r

esid

ence

and

to o

r fro

m w

hich

the

carr

iero

pera

tes

serv

ices

fort

he c

arria

geof

pas

seng

ersb

y ai

r,ei

ther

on

its o

wn

airc

raft,

or o

nan

othe

rca

rrie

r's a

ircra

ftpu

rsua

nt to

a co

mm

er-

cial

agr

eem

ent,

and

in

whi

ch th

at c

arrie

rco

nduc

ts it

s bus

ines

sof

carr

iage

of p

asse

nger

sby

air

from

pre

mis

es

leas

ed o

r ow

ned

byth

eca

rrie

r its

elf o

r by

anot

her c

arrie

rwith

w

hich

it h

as a

com

mer

-ci

al a

gree

men

t. 3.

For

the

purp

oses

of

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 530

Part Two. Studies and reports on specific subjects 531IN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

law

of t

hat S

tate

and

of

inte

rnat

iona

l law

.H

owev

er, i

n su

ch a

ca

se, a

t the

pet

ition

of

the

defe

ndan

t, th

e cl

aim

ant m

ust r

emov

eth

e ac

tion,

at h

is c

hoic

e,to

one

oft

heju

risdi

c-tio

ns re

ferr

ed to

in

para

grap

h 1

of th

isar

ticle

for t

he d

eter

-m

inat

ion

of th

e cl

aim

,bu

t bef

ore

such

rem

oval

the

defe

ndan

tmus

tfu

rnis

h se

curit

ysu

ffi-

cien

tto

ensu

re p

aym

ent

of a

ny ju

dgem

ent t

hat

may

subs

eque

ntly

beaw

arde

d to

the

clai

man

tin

the

actio

n.(b

)All

ques

tions

rela

t-in

g to

the

suff

icie

ncy

orot

herw

ise

ofth

e se

cu-

rity

shal

l be

dete

rmin

edby

the

cour

tof t

hepo

rtor

pla

ce o

f the

arr

est.

3.N

o ju

dici

al p

roce

ed-

ings

rela

ting

to c

arria

ge

of g

oods

und

er th

isC

onve

ntio

n m

ay b

ein

stitu

ted

in a

pla

ce n

otsp

ecifi

ed in

par

agra

ph 1

or

2 o

fthi

s ar

ticle

. The

pr

ovis

ions

of t

hisp

ara-

grap

h do

not

con

stitu

tean

obs

tacl

e to

the

juris

dict

ion

ofth

eC

ontra

ctin

g St

ates

for

prov

isio

nal o

r pro

tec-

tive

mea

sure

s. 4.

(a) W

here

an

actio

nha

s bee

n in

stitu

ted

in a

co

urt c

ompe

tent

und

erpa

ragr

aph

1 or

2 o

fthi

sar

ticle

orw

here

judg

e-m

ent h

as b

een

deliv

ered

by

such

aco

urt,

none

wac

tion

may

be

star

ted

betw

een

the

sam

epa

rties

on

the

sam

e

grap

h 1

ofth

isar

ticle

. Th

e pr

ovis

ions

of th

isar

ticle

do

not c

onst

itute

an o

bsta

cle

to th

e ju

risdi

ctio

n of

the

Con

tract

ing

Stat

es fo

rpr

ovis

iona

l or

prot

ectiv

e m

easu

res.

3. N

otw

ithst

andi

ng th

epr

eced

ing

prov

isio

nsof

this

arti

cle,

an

agre

e-m

ent m

ade

byth

epa

rties

afte

r a c

laim

has

aris

en, w

hich

des

ig-

nate

s the

plac

ew

here

the

plai

ntiff

may

inst

i-tu

te a

n ac

tion,

sha

llbe

effe

ctiv

e.

4.(a

) Whe

re a

n ac

tion

has b

een

inst

itute

d in

acco

rdan

ce w

ithth

e pr

ovis

ions

of t

his

artic

le o

rwhe

re ju

dge-

men

t in

such

an

actio

nha

s bee

nde

liver

ed, n

one

w a

ctio

n sh

allb

ein

stitu

ted

betw

een

the

sam

e pa

rties

on

the

sam

e gr

ound

s unl

ess

the

judg

emen

t in

the

first

act

ion

is n

ot

enfo

rcea

ble

in th

e co

untry

in w

hich

the

new

pro

ceed

ings

are

inst

itute

d;

(b) F

or th

e pu

rpos

esof

this

artic

le n

eith

er th

e in

stitu

tion

of m

easu

res

to o

btai

n en

forc

emen

t of

a ju

dgem

ent n

orth

ere

mov

al o

f an

actio

n to

a di

ffere

nt c

ourt

with

inth

e sa

me

coun

try sh

all

be c

onsi

dere

d as

the

star

ting

of a

new

actio

n.

Art

icle

27-

Arb

itrat

ion

1.Su

bjec

t to

the

prov

i-si

ons

of th

is a

rticl

e,pa

rties

may

pro

vide

by

not e

nfor

ceab

le in

the

coun

try in

whi

ch th

efr

esh

proc

eedi

ngs

are

brou

ght.

3. W

hen

a ju

dgem

ent

ente

red

by a

cou

rt or

tribu

nal o

f a c

ontra

ct-

ing

coun

try in

any

such

act

ion

as is

refe

rred

to in

par

a-gr

aph

1 of

this

artic

le

has b

ecom

een

forc

e-ab

le in

that

cou

ntry

,it

shal

l als

o be

com

een

forc

eabl

ein

eac

h of

the

othe

r con

tract

ing

Stat

es, a

s so

on a

s th

efo

rmal

ities

requ

ired

inth

e co

untry

con

cern

ed

have

bee

n co

mpl

ied

with

. The

se fo

rmal

i-tie

s sha

ll no

t per

mit

the

mer

its o

fthe

cas

eto

be

re-o

pene

d.4.

The

pro

visi

ons

ofpa

ragr

aph

3 of

this

artic

le sh

alla

pply

toju

dgem

ents

afte

rtria

l,ju

dgem

ents

by

defa

ult

and

settl

emen

tsco

nfirm

ed b

yan

ord

erof

the

cour

t, bu

t sha

llno

t app

lyto

inte

rimju

dgem

ents

ort

oaw

ards

of d

amag

es, i

nad

ditio

n to

cos

tsag

ains

t a p

lain

tiffw

ho

who

lly o

r par

tly fa

ilsin

his

act

ion.

5.

Sec

urity

for c

osts

shal

l not

be

requ

ired

in p

roce

edin

gsar

isin

gou

t of c

arria

ge u

nder

th

is C

onve

ntio

n fr

om

natio

nals

of c

ontra

ct-

ing

coun

tries

resi

dent

or

hav

ing

thei

r pla

ceof

bus

ines

sin

one

ofth

ose

coun

tries

.

para

grap

h 2,

(a

) “co

mm

erci

al

agre

emen

t” m

eans

anag

reem

ent,

othe

rtha

nan

age

ncy

agre

emen

t,m

ade

betw

een

carr

iers

and

rela

ting

to th

e pr

ovis

ion

of th

eir j

oint

se

rvic

es fo

r car

riage

of

pass

enge

rs b

y ai

r;(b

) “pr

inci

pala

ndpe

rman

ent r

esid

ence

”m

eans

the

one

fixed

an

d pe

rman

ent a

bode

of

the

pass

enge

r at t

he

time

of th

e ac

cide

nt.

The

natio

nalit

yof

the

pass

enge

r sha

ll no

tbe

the

dete

rmin

ing

fact

orin

this

rega

rd.

4. Q

uest

ions

of p

roce

-du

re sh

allb

e go

vern

ed

byth

e la

w o

fthe

cou

rt se

ised

oft

he c

ase.

Art

icle

34-

Arb

itrat

ion

1. S

ubje

ct to

the

prov

isio

ns o

f thi

sar

ticle

, the

par

ties t

oth

e co

ntra

ct o

f car

riage

fo

r car

go m

ay s

tipul

ate

that

any

dis

pute

re

latin

g to

the

liabi

lity

of th

eca

rrie

r und

er th

isC

onve

ntio

n sh

all b

ese

ttled

by

arbi

tratio

n.

Such

agr

eem

ent s

hall

be in

writ

ing.

2.

The

arb

itrat

ion

pro-

ceed

ings

sha

ll, a

t the

op

tion

of th

e cl

aim

ant,

take

pla

cew

ithin

one

of

the

juris

dict

ions

refe

rred

to in

arti

cle

33.

3.Th

e ar

bitra

tor o

rar

bitra

tion

tribu

nal

shal

l app

lyth

epr

ovis

ions

of t

his

Con

vent

ion.

4. T

he p

rovi

sion

s of

para

grap

hs2

and

3 of

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 531

532 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

grou

nds

unle

ssth

e ju

dgem

ent o

fthe

cou

rt be

fore

whi

ch th

efir

st

actio

n in

stitu

ted

isno

t en

forc

eabl

e in

the

coun

try in

whi

ch th

ene

w p

roce

edin

gs a

rein

stitu

ted.

(b

) For

the

purp

ose

ofth

isar

ticle

the

inst

itu-

tion

of m

easu

res

with

avi

ew to

obt

aini

ngen

forc

emen

t of a

ju

dgem

ent i

s not

tobe

cons

ider

ed a

sthe

st

artin

g of

ane

w a

ctio

n;(c

)For

the

purp

ose

of

this

arti

cle,

the

rem

oval

of

an

actio

n to

a di

ffer

ent c

ourt

with

inth

e sa

me

coun

try, o

rto

a co

urt i

n an

othe

rco

untry

, in

acco

rdan

ce

with

par

agra

ph 2

(a) o

fth

isar

ticle

, is n

ot to

beco

nsid

ered

ast

he

star

ting

of a

new

act

ion.

5. N

otw

ithst

andi

ngth

epr

ovis

ions

of t

he p

re-

cedi

ng p

arag

raph

s,an

agre

emen

t mad

eby

the

parti

es, a

fter a

clai

mun

dert

he c

ontra

ct o

fca

rria

ge b

yse

a ha

s ar

isen

, whi

ch d

esig

-na

tes t

hepl

ace

whe

reth

e cl

aim

antm

ay in

sti-

tute

an

actio

n, is

effe

ctiv

e.

Art

icle

22-

Arb

itrat

ion

1.Su

bjec

t to

the

prov

i-si

ons

of th

is a

rticl

e,pa

rties

may

pro

vide

by

agre

emen

t evi

denc

ed in

writ

ing

that

any

dis

pute

that

may

aris

e re

latin

g to

car

riage

of g

oods

unde

r thi

sCon

vent

ion

shal

l be

refe

rred

toar

bitra

tion.

2.

Whe

re a

cha

rter-

agre

emen

t evi

denc

ed in

writ

ing

that

any

dis

pute

that

may

aris

e re

latin

g to

inte

rnat

iona

l mul

ti-m

odal

tran

spor

t und

erth

is C

onve

ntio

n sh

all

bere

ferr

ed to

arb

itra-

tion.

2.

The

arb

itrat

ion

pro-

ceed

ings

sha

ll, a

t the

op

tion

of th

e cl

aim

ant,

be in

stitu

ted

at o

ne o

fth

e fo

llow

ing

plac

es:

(a)A

pla

ce in

a St

ate

with

in w

hose

terr

itory

is si

tuat

ed:

(i) T

he p

rinci

pal p

lace

of

bus

ines

s of

the

defe

ndan

t or,

in th

e ab

senc

e th

ereo

f, th

e ha

bitu

al re

side

nce

ofth

e de

fend

ant;

or(ii

) The

pla

ce w

here

th

e m

ultim

odal

tra

nspo

rt co

ntra

ct w

asm

ade,

pro

vide

d th

at th

ede

fend

ant h

as th

ere

apl

ace

of b

usin

ess,

bran

ch o

r age

ncy

thro

ugh

whi

ch th

eco

ntra

ct w

as m

ade;

or

(iii)

The

plac

e of

taki

ngth

ego

ods i

n ch

arge

for

inte

rnat

iona

l mul

ti-m

odal

tran

spor

t or t

hepl

ace

of d

eliv

ery;

or

(b) A

ny o

ther

plac

ede

sign

ated

fort

hat

purp

ose

in th

e ar

bitra

tion

clau

se o

rag

reem

ent.

3.Th

e ar

bitra

tor o

rar

bitra

tion

tribu

nal

shal

l app

lyth

epr

ovis

ions

of t

his

Con

vent

ion.

4. T

he p

rovi

sion

s of

para

grap

hs2

and

3 of

th

is a

rticl

e sh

all b

ede

emed

to b

e pa

rtof

ever

y ar

bitra

tion

clau

se

this

arti

cle

shal

l be

deem

ed to

be

part

ofev

ery

arbi

tratio

ncl

ause

or a

gree

men

t, an

d an

yte

rm o

f suc

h cl

ause

or

agre

emen

t whi

ch is

inco

nsis

tent

ther

ewith

shal

l be

null

and

void

.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 532

Part Two. Studies and reports on specific subjects 533IN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

party

con

tain

s a p

rovi

-si

on th

at d

ispu

tes a

ris-

ing

ther

eund

er s

hall

bere

ferr

ed to

arb

itrat

ion

and

a bi

ll of

ladi

ngis

sued

pur

suan

t to

the

char

terp

arty

doe

s not

cont

ain

a sp

ecia

lann

o-ta

tion

prov

idin

g th

atsu

ch p

rovi

sion

shal

l be

bind

ing

upon

the

hold

er

ofth

e bi

ll of

ladi

ng, t

heca

rrie

r may

not

invo

kesu

ch p

rovi

sion

asag

ains

t a h

olde

r hav

ing

acqu

ired

the

bill

ofla

ding

in g

ood

faith

. 3.

The

arbi

tratio

npr

ocee

ding

s sha

ll, a

t the

optio

nof

the

clai

man

t,be

inst

itute

d at

one

of

the

follo

win

g pl

aces

: (a

)A p

lace

ina

Stat

ew

ithin

who

se te

rrito

ryis

situ

ated

: (i)

The

prin

cipa

l pla

ce

of b

usin

ess

ofth

ede

fend

ant o

r, in

the

abse

nce

ther

eof,

the

habi

tual

resi

denc

e of

the

defe

ndan

t; or

(ii) T

he p

lace

whe

re th

eco

ntra

ct w

asm

ade,

pro-

vide

d th

at th

e de

fend

ant

has

ther

e a

plac

eof

busi

ness

, bra

nch

orag

ency

thro

ugh

whi

ch

the

cont

ract

was

mad

e;

or (iii)

The

port

of lo

adin

g or

the

port

of d

isch

arge

; or (b

) Any

pla

ce d

esig

-na

ted

for t

hat p

urpo

sein

the

arbi

tratio

n cl

ause

or a

gree

men

t. 4.

The

arbi

trato

r or

arbi

tratio

n tri

buna

l sha

llap

ply

the

rule

s of t

his

Con

vent

ion.

or a

gree

men

t and

any

term

of s

uch

clau

se o

rag

reem

ent w

hich

isin

cons

iste

nt th

erew

ithsh

all b

e nu

ll an

d vo

id.

5. N

othi

ng in

this

artic

le sh

alla

ffect

the

valid

ity o

f an

agre

e-m

ent o

n ar

bitra

tion

mad

e by

the

parti

esaf

ter t

he c

laim

rela

ting

to th

e in

tern

atio

nal

mul

timod

al tr

ansp

ort

has a

risen

.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 533

534 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIVIN

STR

UM

EN

TH

AG

UE

-VIS

BY

HA

MB

UR

GM

ULT

IMO

DA

LC

MR

CO

TIF

-CIM

199

9C

MN

IW

AR

SAW

MO

NT

RE

AL

5.Th

e pr

ovis

ions

of

para

grap

hs3

and

4 of

th

isar

ticle

are

dee

med

to b

e pa

rt of

eve

ryar

bitra

tion

clau

se o

rag

reem

ent,

and

any

term

of s

uch

clau

se o

rag

reem

ent w

hich

isin

cons

iste

nt th

erew

ithis

nul

l and

voi

d.

6.N

othi

ng in

this

artic

le a

ffec

ts th

e va

li-di

ty o

f an

agre

emen

t re

latin

g to

arbi

tratio

nm

ade

byth

e pa

rties

afte

r the

cla

im u

nder

the

cont

ract

of c

arria

ge

by s

ea h

asar

isen

.

*UNCITRAL-2003-p435-534rev.qxd 28/6/06 7:21 pm Page 534

Part Two. Studies and reports on specific subjects 535

INTRODUCTION

1. In the context of the preparation of a draft internationalinstrument on the international carriage of goods [by sea],an important issue to be discussed by the Working Groupis the sphere of application of the draft instrument. Thatdiscussion commenced at the ninth session of the WorkingGroup (A/CN.9/510, paras. 26-34), continued at its tenthsession (A/CN.9/525, paras. 25-28), and is expected to becarried further at its eleventh session. In preparation for thecontinuation of that discussion, the secretariat, in August2002, circulated to interested non-governmental organiza-tions a short questionnaire intended to gather informationregarding the practice of containerized transport and theutilization of door-to-door contracts by carriers. With aview to identifying precisely the needs and wishes of theinternational shipping community with respect to con-tainerized door-to-door movements, that questionnaire was

addressed primarily to representatives of the industryinvolved in both the sea and the land leg aspects of door-to-door transport. The questionnaire was also circulated toStates and to interested intergovernmental organizations forinformation. It is reproduced as an annex to this note.

2. Responses to the questionnaire received from non-gov-ernmental organizations are reproduced in section I below.

3. One intergovernmental organization submitted com-ments to the secretariat in connection with the question-naire. These comments are reproduced in section II below.

4. Additional statements and contributions were submit-ted to the secretariat by States, intergovernmental andnon–governmental organizations in connection with thepreparation of the draft instrument. These statements andcontributions are reproduced in section III below.

G. Working paper submitted to the Working Group on Transport Law at its eleventh session: Preparation of a draft instrument on the

carriage of goods [by sea]

(A/CN.9/WG.III/WP.28) [Original: English]

Compilation of replies to a questionnaire on door-to-door transport and additional commentsby States and international organizations on the scope of the draft instrument

NOTE BY THE SECRETARIAT

CONTENTS

Page

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 535

I. Replies to the questionnaire from non-governmental organizations. . . . . . . . . . . . . . . 536

A. International Federation of Freight Forwarders (FIATA). . . . . . . . . . . . . . . . . . . . 536

B. Institute of Chartered Shipbrokers (ICS). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 537

C. International Chamber of Shipping (ICS) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 538

II. Comments from an intergovernmental organization in connection with the questionnaire . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 539

A. Andean Community (Bolivia, Ecuador, Colombia, Venezuela). . . . . . . . . . . . . . . 539

B. Andean Community (Peru). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 546

III. Additional statements and contributions in connection with the preparationof the draft instrument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 548

A. From States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 548

Malaysia. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 548

B. From intergovernmental organizations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 548

Organisation for Economic Co-operation and Development (OECD). . . . . . . . . . 548

C. From non-governmental organizations invited by the secretariat . . . . . . . . . . . . . 550

1. Association of American Railroads (AAR). . . . . . . . . . . . . . . . . . . . . . . . . . . 550

2. International Chamber of Commerce (ICC) . . . . . . . . . . . . . . . . . . . . . . . . . . 551

3. International Group of Protection & Indemnity Clubs. . . . . . . . . . . . . . . . . . 552

4. International Road Transport Union (IRU) . . . . . . . . . . . . . . . . . . . . . . . . . . . 555

Annex Questionnaire . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 556

*UNCITRAL-2003-p535-583rev.qxd 28/6/06 7:23 pm Page 535

536 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIV

5. The responses, comments, statements and contributionsreferred to in paragraphs 2 to 4 above are reproduced inthe form in which they were received by the secretariat.

I. REPLIES TO THE QUESTIONNAIRE FROM NON-GOVERNMENTAL ORGANIZATIONS

A. International Federation of Freight Forwarders(FIATA)

[Original: English]

1. Do you feel it would be helpful to have a single lia-bility scheme applicable to door-to-door shipments whichinvolve an overseas leg?

Whilst a single liability from door-to-door may be desir-able at first glance, it does not appear feasible or realistic.

2. If so why?

Single liability from door-to-door would conflict with exist-ing international and national unimodal law such as CIMand CMR in the land transport sector. CMR application ismandatory if place of loading and/or place of dischargeare in a contracting State. Moreover CMR and CIMinclude provisions for land-sea transport which would fur-ther aggravate the situation in view of the question, whichregime will apply for a transport operation that includesboth sea and land transportation.

The shippers’ and transport industry developed theUNCTAD/ICC Rules some ten years ago. They deal withthe central liability of the transport and include a networkliability system which prevails if loss or damage can beattributed to a particular stage of transport. The system ofthe Rules meets the reality of commercial practice if morethan one mode of transport is involved. An unrestrictednetwork liability system has proven successful and shouldbe retained.

Any single liability regime from door-to-door would leadto disharmony of international transport law, rather thanunification. An international maritime liability regimeshould therefore only cover port-to-port ocean transportand permit an intact network liability system that takesinternational and national transport law into account.

3. Should the same law be applicable to the entire trans-port of the goods, both on land and sea?

The characteristics of ocean carriage on one hand, and thedifferent kinds of land transport on the other are too dif-ferent from each other to be covered by the same law.

4. Should all of the participants in door-to-door carriageof the cargo, including stevedores, terminal operators,truckers, railroad, warehouses and other be subject to thesame liability regime as the ocean carrier?

No, for the same reason as explained under 3.

5. Should the participants in door-to-door carriage, suchas stevedores, terminal operators, truckers, railroads, ware-

house and others be subject to direct claims by cargo inter-ests or their underwriters under a single multimodal regimefor damage caused by the particular participant?

Whilst we do not advocate a single multimodal regime, weare of the view that claims should exclusively be madeagainst the contracting party having entered into the con-tract of carriage or other contracts with the shipper (seealso remarks under 9).

6. In the event that existing conventions apply to landtransport, such as the Convention on the InternationalCarriage of Goods by Road (CMR), should those conven-tions continue to control the land carrier when the land car-rier is involved in the carriage of goods over sea and land,or could the land carrier under certain circumstances besubject to the same liability regime as the ocean carriers?

Involvement of a land carrier in sea transport is only per-ceivable if the land carrier who acts as carrier has con-cluded the contract of carriage with the shipper for acarriage including a sea portion (Art.2 CMR). In thiscapacity, the land carrier is, in principle, subjected to theregime applicable on the transport portion where loss ordamage occurred. For land operators subjected to CIM(railway companies in border crossing transport), the CIMliability will, in a similar way, apply to the sea transportportion.

9. Do you perceive any advantages to the industry ifcargo interests or their underwriters are given the oppor-tunity to make a claim directly against the subcontractorof the carrier who issues the bill of lading for damage orloss that occurred whilst the subcontractor’s custody?

There may be cases where a shipper deals with an impe-cunious carrier who subcontracts other parties for the per-formance of the contract of carriage. However, in view ofthe principle of freedom of contract in this respect, anyshipper has a responsibility to his own organization toensure that his contracting party is financially viable. It isnot the purpose of a Convention to protect a shipper whois not prepared to protect himself.

10. Please take this opportunity to indicate if you haveany further comments or observations to the instrument ascurrently drafted by UNCITRAL.

The UNCITRAL instrument should take the form of aninternational convention, where, however, only the coreprovisions referring to sea transport, including carriers lia-bility for loss or damage relating to sea transport on aport-to-port basis, should be mandatory. More importantly,any interference with other international conventions ornational law must be avoided. If the UNCITRAL Instrumentshould take the form of an international Convention thatsupersedes such law, the number of potential ContractingStates may be diminished. It will inevitably be as unsuc-cessful as the 1980 Multimodal Convention.

As regards the proposal by Canada reflected in UNCITRALdocument A/CN.9/WGIII/WP23, we are of the view thatoption 1 and 3 would contribute to disruption of interna-tional transport law, as each State would be able to ratify

*UNCITRAL-2003-p535-583rev.qxd 28/6/06 7:23 pm Page 536

Part Two. Studies and reports on specific subjects 537

a different scope of regime. The proviso under option 2that it would be difficult to establish which law applies isin our view without merit, because this question is solvedby the facts of the case. CMR will apply for internationalroad carriage, CIM for international rail carriage, or, asthe case may be, the applicable national law will apply.

Additional comments from FIATA[Original: English]

In consequence of recent discussions at our WorldCongress and the possibility that our position concerningcertain aspects of these questions may not be as clear aswe had hoped we would like to stress the following.

With reference to question 5 we wish to ensure that it isunderstood that while we acknowledge the MTO as liableunder the terms of the contract of carriage issued by them,we DO support the right of cargo interests and their under-writers to initiate direct claims on any participants in thedoor-to-door move, should they wish to do so.

With reference to question 9 we also wish to add that theobvious benefit of such a process is that which currentlyexists, that being the reduction in needlessly drawing par-ties into a litigation where there is no doubt as to the partyresponsible, i.e. in whose care and custody the cargo wasin at the time of the damage and consequent savings in litigation costs, and likely hastening of the entire process.

B. Institute of Chartered Shipbrokers (ICS)[Original: English]

The Institute of Chartered Shipbrokers thanks UNCITRALfor the opportunity to comment on its questionnaire relat-ing to the Preliminary Draft Instrument on the Carriage ofGoods by Sea and has pleasure in responding as follows:

1. Yes, it would be helpful to have a single liabilityscheme applicable to door-to-door shipments which involvean overland leg.

2. The object of drafting a new instrument covering lia-bility in respect of carriage of goods by sea must be to re-establish the international uniformity that has been lostduring the last seventy years since the Hague Rules weredefined. The original rules were drafted to cover all shippedunder bills of lading. In effect all traffic not covered by aprivate charter party contract and in particular all ‘liner car-goes’. It is a matter of fact that today a large majority ofliner cargo moving in the mainstream world trade isshipped on combined transport bill of lading contracts. Itwould therefore seem inconsistent, in the context of uni-formity, to exclude the through or multi-modal transportaspects of the movement from the instrument.

3. There is no reason why the same law should be appli-cable to the entire transport of the goods when it is possi-ble to determine at what point in the combined transportany loss, damage or delay took place. This works perfectlywell under most combined transport regimes at present.However, when it is not possible to determine where in thecombined transport the loss took place, then maritime lia-bility scheme should apply.

4. No, this complicates matters far too much. The under-lying concept of door-to-door carriage is that a carrier con-tracts with the cargo owner to take responsibility for thewhole of the door-to-door movement. What liabilityregimes apply between that carrier and its subcontractorsare quite irrelevant to the cargo owner.

Many of those subcontractors, railroads, terminals andtruckers for example are national operators who contractonly to provide a domestic service. They are not concernedthat the movement, from say port to factory, is part of aninternational through movement. Other subcontractors suchas port terminals may have all or part of their trading con-ditions imposed by national statute.

It seems unreasonable as well as impractical that such sub-contractors should be required to operate under two dif-ferent liability regimes when providing the same service.

5. Certainly not. The cargo owner contracts with the car-rier identified in the evidence of the bill of lading. Thecombined transport industry has created numerous meth-ods of working that utilize both subcontract and joint oper-ational working to secure maximum efficiencies. In almostall cases the subcontractor has no knowledge of the cargoowner, or need to know. Any demand for direct access forcargo claims seems to be a request for ‘double indemnity’.In fact it might be considered that permitting the contractchain to be short circuited in this way is against the publicinterest, in so far as it might encourage ‘unreliable’ throughtransport operators if there is an alternative route for com-pensation in the event of that carrier’s failure.

6. This is in part answered in 3 and 4 above. It is notnecessary for this instrument to have any impact on CMRor other conventions. However there is another issue iden-tified by the question which refers to ‘the land carrier’.Many, if not most, international through transport carrierstoday are genuine multi-modal operators. They will beinvolved in sea, land and air services issuing combinedtransport bills of lading, CMR consignment notes or airwaybills. It should be possible to draft a satisfactory word-ing to ensure that this instrument covers door-to-door trans-port where the sea leg is the main international movementbut excludes an international movement where for exam-ple a ferry crossing is incidental to a door-to-door road orrail transport.

7. None, but it is important that the ‘sea’ regime appliesto door-to-door transport as set out in 2 and 3 above. Theadoption of this instrument should result in there being noneed for a separate ‘multi-modal liability convention’.

8. In practical operational terms there are few difficul-ties. The Hague and Hague-Visby rules have been verywell tested in most jurisdictions and there is a substantialbody of interpreting law. The piecemeal adoption ofHamburg rules is responsible for much of the current lackof uniformity and also leads to jurisdiction shopping. (e.g.when a Hague or Hague/Visby country is exporting toHamburg country). Any new instrument must meet the rea-sonable requirements of the major international liner car-riers, some twenty of whom probably account for morethan three quarters of all bill of lading general cargo move-

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ments. This includes the issues relating to Hague Rules‘exceptions’ and particularly ‘fault in navigation’.

The only other practical difficulty concerns the ‘number ofpackages’ issue and the per package limitation whenapplied to container traffic. Carriers have no way of know-ing or checking the number of packages contained in FCLshipper loaded containers. It is therefore illogical that theper package limitation should apply to the container con-tents. A possible solution is that the ‘package’ limitationshould not apply to FCL container movements and onlythe limitation based on weight should apply. Alternatively‘the container’ is recognized as the package with a specific(higher) limitation applicable to ‘container packages’

9. No! Again see 5 above. There will be a separate con-tract between the carrier and subcontractor which mayoperate under a very different liability regime, and whichis different for perfectly valid reasons of that business. Itmay well also interfere with the proper application of‘Himalaya’ clauses.

10. Clauses 4.2 and 4.3

The comments above support the inclusion of Clauses 4.2.1and 4.2.2 in order to incorporate door-to-door transport.

The commentary relating to clause 4.3 highlights the mis-understandings that do arise in respect of these ‘mixed con-tracts’. It is suggested that there is a case for incorporatingin the definitions of the draft instrument the two terms thatare widely used commercially throughout the internationalindustry to distinguish carriage under Clause 4.2 (CombinedTransport) and that under 4.3 (Through Transport). Theirincorporation would lead to some rigour in their use.

Suggested definitions, which will need legal drafting, might be:

“Combined Transport Contract” is a contract of carriageunder which a carrier, against payment of freight, under-takes to carry goods from an inland place of receipt byland and by sea to an inland place of delivery.

“Through Transport Contract” is a contract of carriageunder which a carrier, against payment of freight, under-takes to carry goods by sea and/or land between two namedplaces but in addition expressly agrees that, in respect ofa specified part or parts of the transport of the goods, itwill be acting as an agent arrange carriage by another car-rier or carriers.

Clause 5.4The inclusion of the duty to “keep” the ship seaworthy“during” the voyage introduces unnecessary uncertaintiesinto the new instrument, which are already covered by theduty to care for the cargo.

Clause 6.1.2The retention of exception for fault in ‘navigation’ is sup-ported. ‘Management’ could be removed. The reasons are:

The purely pragmatic view that without retention there willbe a much harder route to securing adoption of the draft

instrument. (e.g. the fate of the ‘UNCTAD Multi-ModalConvention’).

Problems with the ‘half world of exemption under com-pulsory pilotage’.

Change in the spread of risk impacting upon insurance.

The need for new case law to distinguish ‘fault in naviga-tion’ from ‘perils of the sea’—did the former cause thelatter or v.v.

Clause 6.4Liability for delay should only apply when time for per-formance is expressly agreed.

Clause 8.4 It is strongly believed that owners with vessels on timecharter should benefit from the same defence as thosewhose vessels are on bareboat charter. In both cases themerchant is contracting with a demise charterer. Whyshould the registered owner of a vessel be responsible forthe cargo owners’ contract with the demise operator whenhe has no way of knowing what measure of liability hemay be accepting? This clause merely encourages cargoowners to take insufficient care when entering into con-tracts of carriage with speculative demise charter operators.

Inclusion of door-to-door transport.

While preparing this response a further questionnaire hasbeen received from UNCTAD which it seems is preparingto revisit the matter of the UNCTAD Multi-modalConvention. Their questionnaire raises many of the sameissues that are discussed in the context of this draft instru-ment. It is considered most important that there is asingle convention covering port-to-port and pier-to-piertransport.

The Institute trusts these comments prove useful to the on-going discussions on this issue and looks forward to pro-viding UNCITRAL with further input as may be required.

C. International Chamber of Shipping (ICS)

[Original: English]

1. Do you feel that it would be helpful to have a singleliability scheme applicable to door-to-door shipmentswhich involve an overseas leg?

Yes, a legal regime applicable to door-to-door transportwould be helpful. We support the development of a “mar-itime plus” convention based on the draft instrument pre-pared by CMI for UNCITRAL (“the proposed instrument”).

2. If so, why?

A large part of the containerized transport of goods is con-ducted on a door-to-door basis. There would be little addedvalue in developing another regime for tackle-to-tackle orport-to-port shipments. It would be remiss to ignore door-to-door transport. Provided that carriage by sea is contem-plated at some stage, the provisions of the proposedinstrument should apply to the full scope of the carriage.

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Part Two. Studies and reports on specific subjects 539

3. Should the same law be applicable to the entire trans-port of the goods, both on land and sea?

No. A network liability system should apply. To the extentthat damage can be localised, mode specific regimes shouldapply.

4. Should all the participants in the door-to-door carriageof cargo, including stevedores, terminal operators, truck-ers, railroads, warehouses and others, be subject to thesame liability regime as the ocean carrier?

No. Truckers, railroads, etc. should be subject to mode spe-cific rules and not the same liability regime as the carrier.

5. Should the participants in door-to-door carriage, suchas the stevedores, terminal operators, truckers, railroads,warehouses and others be subject to direct claims by cargointerests or their underwriters under a single multimodalregime for damage caused by the particular participant?

Not by virtue of the proposed instrument. There should beno performing carrier liability under the proposed instru-ment. This would seem to be essential to avoid conflictsof law. In this connection, we note that the 1980Multimodal Convention did not contain any provisions onperforming carrier liability.

6. In the event that existing conventions apply to landtransport, such as the Convention on the InternationalCarriage of Goods by Road (CMR), should those conven-tions continue to control the liability of the land carrierwhen the land carrier is involved in the carriage of goodsover sea and land, or could the land carrier under certaincircumstances be subject to the same liability regime as theocean carrier?

To the extent that existing conventions such as CMR,COTIF and Montreal apply to multimodal transport, theyshould be excluded from the proposed instrument.

7. What advantages, if any, do you see in applying a uniform liability regime to both land and sea transport inmultimodal carriage?

A uniform liability regime would create a certain amountof predictability but litigation would still be necessary toestablish liability in individual cases. In practice a uniformsystem would give rise to considerable extra costs. Theclaimant would first have to settle the claim with the MTOin accordance with the uniform rules. The MTO would thenhave to pursue a recourse claim against the subcontractoraccording to another set of rules applicable to the specificmode of transport. Thus two different sets of liability ruleswould be involved whenever claims were settled.

8. What problems are commonly experienced today, ifany, as a result of the existing system of liability regimesfor door-to-door carriage of goods?

Although we are not aware of any significant problems, itwould be of great assistance to the industry as a whole tohave an international convention applicable to door-to-doorcarriage.

9. Do you perceive any advantages to the industry ifcargo interests or their underwriters are given the oppor-tunity to make a claim directly against the subcontractorof the carrier who issues the bill of lading for damage orloss that occurred whilst in the subcontractor’s custody?

On the contrary, we perceive considerable disadvantages.Cargo interests have the right to proceed against their con-tractual counterpart. To allow claims to be made againste.g. the CMR subcontractor will promote litigation and giverise to conflicts of laws problems. Far better to channelclaims to the contracting carrier, who would then haverecourse rights against subcontractors.

10. Please take this opportunity to indicate if you haveany further comments or observations in respect of theinstrument as currently drafted by UNCITRAL.

ICS supports the instrument and in particular we welcomethe proposed provisions concerning the period of respon-sibility, delivery and contractual freedom.

ICS strongly supports application of the proposed instru-ment to door-to-door maritime transport. The proposedinstrument provides the commercial parties with flexibilityin determining the scope of the contract, including theperiod of responsibility. Where tackle-to-tackle transport isagreed (as will often be the case in bulk trades), the respon-sibility of the carrier will not extend beyond tackle and theinstrument will apply. However, where door-to-door trans-port (or any transport beyond tackle-to-tackle is agreed, anetwork liability system will apply. In cases where it is notpossible to establish when the damage occurred (concealeddamage), the instrument will apply.

It is of great importance that sensible provisions regardingdelivery of cargo are included in the proposed instrument.This will be of great value to the industry.

The proposed instrument provides an opportunity to mod-ernize the outdated approach of firm and inflexible regu-lation of contracts of carriage. In principle, ICS supportsthe development of provisions which would allow greaterfreedom to the contractual parties in recognition of thecommercial realities, while at the same time safeguardingthe interests of third parties.

II. COMMENTS FROM AN INTERGOVERNMENTAL ORGANIZATION

IN CONNECTION WITH THE QUESTIONNAIRE

A. Andean Community (Bolivia, Ecuador, Colombia, Venezuela)

[Original: Spanish]

Consolidated Replies to the UNCITRAL QuestionnaireAndean Committee of Water Transport Authorities

(CAATA) General Secretariat of the Andean Community

1. Do you feel that it would be helpful to have a singleliability scheme applicable to door-to-door shipmentswhich involve an overseas leg?

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Bolivia

Yes, it would be appropriate, provided that a fair balancecan be found that takes into account the different types ofrisk to which multimodal transport is subject.

Colombia

No. The single liability scheme should not differentiatebetween modes of transport.

Ecuador

Yes, it would be helpful to have a single scheme, but theAndean Community already has such a scheme through itsmultimodal legislation.

Venezuela

From analysis of the document “Transport Law” and thediscussions which have been conducted within UNCITRAL,a clear possibility has emerged of transport law governingdoor-to-door operations which include other modes of trans-port, such as land or rail transport. However, there are well-founded opinions that the draft should not be endorsed insuch terms: it is argued that the proposal has not been stud-ied by land transport organizations, or that previous attemptshave been made, without success, to reach agreement, orthat door-to-door operations are currently governed by theUNCTAD/ICC (United Nations Conference on Trade andDevelopment/International Chamber of Commerce) Rulesfor Multimodal Transport Documents.

As is well known, Venezuela is not a party to any of theinternational conventions on private maritime law currentlyin force in all the States with which Venezuela maintainsmaritime trade relations; accordingly, it is not a party tothe Hague Rules or the Hamburg Rules.

This is not an obstacle to considering a liability schemefor the goods carrier which covers different modes of trans-port so as to avoid a proliferation of different legal regimesrelating to liability.

2. If so, why?

Bolivia

Because this would give users a sufficient and clear ideaof their rights and obligations when they order a transportservice.

Colombia

No reply.

Ecuador

Because a single entity would be liable for the whole voyageand for all the modes of transport used during the voyage.

Venezuela

Because efforts are being made to harmonize contract

regimes covering liability for the carriage of goods by sea and how they relate to auxiliary operations whichhave not in the past been subject to international con-ventions.

The draft law states that its provisions are applicable to theplace of receipt or delivery of the goods when it is in aContracting State, irrespective of whether or not it is a port,so that door-to-door shipments are covered by the draftlaw. This will result in a general framework covering var-ious modes of transport, thereby ensuring legal security,and is consistent with the proposal to apply the regime tointernational transport.

3. Should the same law be applicable to the entire trans-port of the goods, both on land and sea?

Bolivia

This would be a good option, but would be very difficultto put into practice because the risks affecting maritimetransport are more serious than those affecting land trans-port. There are more control mechanisms for land trans-port, whereas with regard to maritime transport there aremany issues to be considered, including risks that cannotbe anticipated.

Colombia

No. Each mode of transport should have its own liabilityregime.

Ecuador

Different regimes should be applicable to land transportand maritime transport, because each mode of transport hasits own law.

Venezuela

The aim of this draft instrument on transport law is to finda way to replace the regime which comprises the Hague,Hague-Visby and Hamburg Rules with a regime that coversmultimodal transport by land or by rail and the tranship-ment of goods so as to achieve uniformity of conventionsand the regulations they lay down.

In the Andean Community, specifically in the AndeanCommittee of Water Transport Authorities (CAATA),Resolution CAATA No. XIX.EX-91 was adopted. This res-olution establishes the Strategic Plan 2001-2005 for WaterTransport in the Subregion, whose general objectivesinclude the promotion, adaptation and harmonization ofmaritime law in the Andean context so as to facilitate thewell-regulated development of water transport.

One of the objectives which the same resolution establishesis the revision and application of international conventionsand practices regarding water transport, ports and otherrelated services.

This confirms the need to conclude a single instrumentwhich standardizes the law relating to the transport ofgoods by water.

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Part Two. Studies and reports on specific subjects 541

4. Should all of the participants in the door-to-door car-riage of the cargo, including stevedores, terminal operators,truckers, railroad, warehouses and others, be subject to thesame liability regime as the ocean carrier?

Bolivia

No. The liabilities and risks for each operator are very dif-ferent, as are the mechanisms for avoiding those risks;therefore, they cannot be treated on the same basis. Forexample, a warehouse and a shipping company have tocover completely different eventualities.

Colombia

No—only if the contract of carriage is covered by the mul-timodal system.

Ecuador

They should not be subject to the same liability regime asthe ocean carrier.

Venezuela

Yes, in the interests of the legal uniformity of multimodaltransport and with due regard to amplifying the rules inthe draft in order to cover the liability not only of the car-rier or of the performing parties but also of other personswhich no longer qualify as performing carriers. This is indi-cated in the draft instrument: in cases where an action isbrought against any person other than the carrier, thatperson is entitled to the benefit of the defences and limi-tations of liability available to the carrier under the instru-ment, provided that the person proves that it acted withinthe scope of its contract, employment or agency.

5. Should the participants in door-to-door carriage, suchas the stevedores, terminal operators, truckers, railroads,warehouses and others be subject to direct claims by cargointerests or their underwriters under a single multimodalregime for damage caused by the particular participant?

Bolivia

Yes, if the source of the damage is identified, it would bea good idea for users to be able to submit their claimsdirectly. However, this is not the spirit on which multi-modal service is based.

Colombia

Yes.

Ecuador

Yes, the participants in door-to-door carriage should besubject to a single multimodal transport regime.

Venezuela

Pursuant to the draft instrument, the period of responsibil-ity of the carrier covers the time and location of receipt ofthe goods, which must correspond to the time agreed in

the contract of carriage or, in the absence of such a pro-vision, the time [and location] when and where the carrieror the performing party actually takes custody of the goods.

The carrier is also obliged during the period of its respon-sibility to preserve and care for the goods properly andcarefully. Accordingly, it must maintain the condition ofthe goods when loading, stowing, carrying and discharg-ing them. This may mean that the different participants indoor-to-door carriage bear responsibility in the same wayas the carrier bears responsibility under the scheme pre-sented in the draft instrument during the period when thegoods are in their charge.

It follows that it would be possible to adopt a single regimewhich establishes parameters for direct claims to be madeby cargo interests and their underwriters in view of theresponsibility of the above.

6. In the event that existing conventions apply to landtransport, such as the Convention on the Contract for theInternational Carriage of Goods by Road (CMR), shouldthose conventions continue to control the liability of theland carrier when the land carrier is involved in the car-riage of goods over sea and land, or could the land carrierunder certain circumstances be subject to the same liabil-ity regime as the ocean carrier?

Bolivia

The land carrier should be handled separately, as is cur-rently the case. As stated above, the risks are not the same;therefore, the liability cannot be the same either. Even theinsurance procedures are different.

Colombia

No. Each mode of transport should have its own liabilityregime. However, if a single door-to-door liability regimeexisted, it would be applicable to all modes of transportinvolved in the movement of a particular cargo; that is,from receipt of the cargo up to its delivery to the agreedlocation, which would be covered by the multimodalsystem.

Ecuador

Transport by road has its own liability legislation andcannot be subject to the liability regime for water trans-port.

Venezuela

It is necessary to distinguish between the single liabilityscheme applicable to door-to-door operations and the con-ventions which govern land transport.

The single liability scheme may be displaced only wherean international convention has been adopted as law to reg-ulate land transport and is applicable only to the land legof a contract of carriage by sea if the losses or damageoccur solely during the transport of the goods over land.This means that if the damage occurs during more thanone leg of the carriage, or if it cannot be determined where

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it occurred, the single liability regime will prevail duringthe whole door-to-door transit period.

7. What advantages, if any, do you see in applying a uni-form liability regime to both land and sea transport in mul-timodal carriage?

Bolivia

If it were possible, the advantage would be that the userwould have a simpler procedure and clearer responsibilityfor making a claim.

Colombia

The multimodal transport regime establishes that the mul-timodal transport operator assumes full liability from thetime of receipt of the goods until the time of delivery tothe consignee; therefore, in the event of any damage to orloss of the cargo, the only person required to answer to theconsignee must be the multimodal transport operator whichsigned the relevant contract. Consequently, the advantageis considerable because only one operator is answerable tothe consignee for any damage to or loss of the cargo.

Ecuador

The multimodal transport regime provides that the multi-modal transport operator assumes full liability for the car-riage and creates a single liability regime. This facilitatesinternational carriage because any claim by the owner ofthe cargo is made to the multimodal transport operator, andthe operator for its part has to submit the damage claim inrespect of the mode of transport where the damageoccurred and pursuant to its domestic law.

Venezuela

The advantage is that although there are some conventionswhich are applicable to land transport, such as the CMRConvention, many contracts of carriage by sea include aland leg. It would therefore be more practical to apply thesingle liability scheme to all the legs of door-to-door car-riage, using a uniform and harmonized regime which wouldcover the different modes of transport.

8. What problems are commonly experienced today, ifany, as a result of the existing system of liability regimesfor door-to-door carriage of goods?

Bolivia

The problem is that the user has to understand many pro-cedures in order to make a claim and the operator has manyoptions for finding a way to avoid liability.

Colombia

The impossibility of identifying at what time and in whichmode of transport the damage or loss could have occurred.

Ecuador

The fact that the owner of the cargo has to make the

damage claim in respect of the mode of transport in whichthe damage occurred and under the liability regime appli-cable to that mode of transport.

Venezuela

The single liability scheme could become the basis for anew single global regime for the regulation of maritimetransport in terms which would meet the requirements oftrade and modern technology. This suggests that any newregime must cover all legs of carriage.

The single liability scheme must therefore be adapted tothe realities of modern trade, cover the whole period inwhich the carrier has the goods in its custody, irrespectiveof whether they are in port or on land, and establish rulesapplicable to modes of transport complementary to thosefor the carriage of goods by sea.

9. Do you perceive any advantages to the industry ifcargo interests or their underwriters are given the oppor-tunity to make a claim directly against the subcontractorof the carrier who issues the bill of lading for damage orloss that occurred whilst in the subcontractor’s custody?

Bolivia

This would be an advantage more for the operator than forthe user because damage, whether or not it results fromnegligence, is caused by operators subcontracted to coverpart of the carriage. That is to say, most damage is causedduring handling of the cargo rather than during the car-riage itself. However, it is important to bear in mind thatthe reliability and quality of service which an operatoroffers is dependent on the quality of the agents and sub-contractors it chooses to provide the service.

Colombia

We see no advantage because generally neither the ship-per nor the consignee has influence or is a party to thesubcontract, and they would therefore be prevented by lawfrom taking any action against the subcontractor.

Ecuador

No, because the multimodal transport operator assumes fullresponsibility and it is easier for the owner of the cargo todirect its claim against the multimodal transport operatorthan against any person in any mode of transport in thechain.

Venezuela

The advantage is that costs can be reduced and multipleclaims avoided.

10. Please take this opportunity to indicate if you haveany further comments or observations in respect to theinstrument as currently drafted by UNCITRAL.

Bolivia

No reply.

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Part Two. Studies and reports on specific subjects 543

Colombia

The UNCITRAL document should govern only door-to-door carriage by sea, bearing in mind that the liabilityregimes which it seeks to amalgamate and update are theHague, Hague-Visby and Hamburg Rules.

It is important that there should be a single liability regimefor carriage by sea.

UNCTAD is completing studies on unification of the rulesfor multimodal transport.

It should be specified precisely that the draft instrumentis limited to “door-to-door” carriage, otherwise it wouldbe necessary to regulate multimodal transport activityunder the same instrument, if it were accepted that multimodal transport is equivalent to door-to-door trans-port. That would be a very lengthy and expensive taskwith far-reaching consequences, and to date there hasbeen no success in achieving uniform rules, except in theAndean Community, which has community rules in thissphere.

Article 5.3 in the Spanish version, which reads “… el trans-portista puede negarse a descargar, o puede descargar,destruir o …” (“… the carrier may decline to unload, ormay unload, destroy, or …”), should be amended to read“… el transportista puede negarse a cargar, o puededescargar, destruir o …” (“… the carrier may decline toload, or may unload, destroy, or …”).

With regard to article 6.3, “Liability of performing par-ties”, relevant notes should be added to make it clear thatthere is joint and several liability between the carrier, theperforming parties and their agents.

If we manage to progress as far as article 15, “Generalaverage”, this provision should be deleted from the draftfor the same reasons as have been indicated for article 6.1.2(a). Moreover, since this is an agreement which does notfall into the category of public treaty, it would not belegally acceptable to implicitly elevate the instrument tosuch a category.

It should also be noted that the limitation period for insti-tuting judicial proceedings against the ocean carrier shouldfollow the lines of the Hamburg Rules—that is, a maxi-mum period of two years for instituting any judicial pro-ceedings.

Ecuador

The UNCITRAL document should govern door-to-doorcarriage by sea, because the liability regime which is sup-posed to be applied—the Hague, Hague-Visby andHamburg Rules—establishes liability only for carriage bysea, and also because the other modes of transport are gov-erned by their own legal procedures.

The aim must be to establish a single liability regime bring-ing together all the existing ones, because any other situ-ation creates legal uncertainty in international trade, as iscurrently the case.

To that end, the following recommendations have been formulated:

1. Scope of application.—The role of the carrier in thecase of door-to-door carriage should be to assume fullresponsibility for the contract of carriage, since this is theonly way the person responsible can be fully identified andaccessible.

2. Liable subject.—The carrier should be severally liablewith its agent, when the agent is involved in one of thelegs of carriage. Commercial agents would be excludedfrom this liability.

3. Liability regime.—Insofar as nautical fault should beremoved as one of the grounds for the liability of the car-rier, the provision in the draft which allows nautical faultto be invoked as grounds for exception from liabilityshould be deleted.

3.1 With regard to nautical fault and the work of thepilot, it is also recommended that cases of intervention bythe pilot should not be admissible as an exception, sincethis would represent a form of nautical fault as an excep-tion. Similarly, exoneration from liability should not bepermitted either for the carrier or for the pilot.

3.2 In the event of fire, it should be clear that the car-rier should assume liability, but the burden of proof shouldbe transferred to the existence of causes outside its con-trol.

3.3 The envisaged option of partial liability of the car-rier—under which the carrier in principle bears total lia-bility—should be maintained.

4. Limits of liability of the carrier.—With regard to thelimitations of liability of the carrier, the draft sets out aproper framework, and the only point which should beanalysed is whether the level of the limits is adequate. Inthis regard, it is proposed that the criteria established inthe Hague-Visby Rules be maintained, but that the carrierbe given the opportunity to opt for the legislation of thecountry of origin of the carriage if the level of the limit isgreater.

5. Jurisdiction.—The draft contains no rules pertaining tojurisdiction. Rules should therefore be introduced to estab-lish the competence of the courts and tribunals in the placeof destination of the cargo.

6. Arbitration.—There appears to be an assumption thatthe arbitrators or arbitration bodies in the place of desti-nation of the cargo should have jurisdiction, but that theparties should continue to have contractual freedom toallow a submission to arbitration, provided that such agree-ment is reached after the events which caused the dispute.

7. Electronic communication.—Provision clearly needs tobe made for the fact that contracts of carriage by sea mayalso be concluded electronically, so that there is uniformregulation of contracts of carriage, whether the contractsare concluded in writing or by digital means. Similarly, itwas suggested that the word “images” in the draft be

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replaced with the phrase “means or records” to make itconsistent with the correct international nomenclature.

7.1 It was also suggested that the characteristics of theelectronic signature be registered with the competentbodies so as to ensure the legal security of documentsissued electronically. In this respect, it should also be notedthat the electronic signature of the electronic record shouldmeet the requirements of confidentiality, integrity, authen-ticity and non-repudiation of the data message.

Conclusions

(a) UNCITRAL and the International MaritimeCommittee have drafted a document on door-to-door car-riage which explores how to replace port-to-port carriageand which determines liability for such carriage on thebasis of both the Hague-Visby Rules and the HamburgRules, extends door-to-door transport to cover multimodaltransport and brings together in a single instrument therules for carriage of goods by sea, trans-shipments, whereapplicable, whether by land or by rail, including auxiliaryoperations in the transport chain during both loading andunloading, and electronic data transmission.

This draft is concerned with simplifying documentation andunifying the whole legal regime with regard to liability forthe carriage of goods, which would obviously benefit exter-nal trade and result in a significant cost reduction.However, it should be borne in mind that such an exten-sive and comprehensive document will give rise to greatdebate before it is adopted, and also after adoption in orderto secure ratification or accession, because it addressesmany issues. This underscores the difficulty of achievingunification in all these areas by means of an internationalagreement.

(b) With regard to establishing more balanced andequitable spreading of risks and responsibilities betweenthe carrier and the shipper, the new rules for the interna-tional carriage of goods should refer exclusively to revis-ing the Hague-Visby Rules and the Hamburg Rules.

The United Nations Convention on International MultimodalTransport of Goods should then be revised to bring it intoline with the current situation in maritime transport.

(c) International multimodal transport should be con-sidered as such and should continue to be governed by thelegislation of the Andean Community, which has provideda complementary legal framework.

Venezuela

For the purposes of this work, account should be taken ofthe instruments which are currently in force in Venezuelaand which apply to water transport: Decision No. 331,amended by Decision No. 393 of the Board of theCartagena Agreement (Andean Community) on multimodaltransport, which is applicable to international multimodaltransport when the place of receipt or delivery of the goodsis in a member State of the Andean Community. ThisDecision is based on the liability system set out in theHamburg Rules, which is itself based on a presumption of

fault. However, when it has been determined that thedamage occurred during the sea leg or on an inland water-way, a set of grounds for exoneration similar to those inthe Hague Rules is applicable, but exoneration on thegrounds of nautical fault or fire is excluded.

The draft establishes a liability regime which combines theregimes of the Hague Rules and the Hamburg Rules. Infact, article 5 of the draft imposes a series of obligationson the carrier, mainly related to the loading and carriageof the goods and delivery of them to their place of desti-nation. They also relate to the care which must be takenwith the cargo during the different legs of carriage and,lastly, the action taken by the carrier (“due diligence”) toprovide a ship that is seaworthy.

It is noted that the obligations take an assertive form, asin the Hague Rules. The wording is similar, although per-haps a little clearer. We note that it has still not beendecided whether the requirement to provide a seaworthyship should apply only before and at the beginning of thevoyage or whether the obligation continues to apply duringthe voyage.

We share the view that the obligation to provide a sea-worthy ship should be maintained, as established in theHague Rules; that is to say, it is an obligation that shouldbe fulfilled before and at the beginning of the voyage.Despite the existence of the International SafetyManagement (ISM) Code and the safe shipping require-ments, the obligation could be very difficult to enforce ifit is imposed during the whole voyage by sea.

On the other hand, article 6 of the draft establishes a liability regime based on the presumption of fault of thecarrier in the event of damage to, loss of or delay in deliv-ery of the goods: the carrier is held liable unless it demon-strates that neither its own negligence nor that of theperforming party caused the loss or damage (art. 6.1.1,option I (a)).

This part of the draft is based on article 5.1 of the HamburgRules, although the two rules are not identical.

However, the draft also sets out (art. 6.1.2) a series of cir-cumstances which, if proved by the carrier, would estab-lish the presumption of absence of fault on the carrier’spart and would discharge the carrier from liability. This setof 11 grounds for exoneration contains some minor depar-tures from the set contained in the Hague Rules and wehave no hesitation in agreeing with it.

It should be pointed out that the regime of the Hague Rulesestablishes the circumstances in question as grounds forexonerating the carrier from liability, whereas in the draftinstrument they are seen as creating a presumption ofabsence of fault on the carrier’s part, as a direct exonera-tion.

We believe it would be appropriate to study in depth thelegal implications of this change, especially as our newMaritime Trade Act (art. 206) is based on the Hague Rules,establishing that the circumstances it sets out are groundsfor exoneration. The analysis should take into account the

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Part Two. Studies and reports on specific subjects 545

fact that the draft establishes a number of obligations whichthe carrier must fulfil and a presumption of fault in theevent of damage, loss or delay; and therefore the creationof a new opposite presumption in cases where the cir-cumstances referred to in article 6.1.2 are proved seemstoo complex and difficult to apply in our legal system.

We would like to point out that in Venezuela, with regardto obligations of result, as covered by article 6.1.1, the car-rier would be exonerated by providing proof of non-attrib-utable extraneous cause, which is equivalent to providingproof of fulfilment of contractual obligations (art. 5 of thedraft) and proof that the damage, loss or delay was due toone of the grounds for exoneration established by article6.1.2 of the draft.

For these reasons, we believe that grounds for exonerationshould not be regarded as presumptions in the carrier’sfavour, but as genuine cases of exoneration from liability.

The draft also contains an article in brackets (art. 6.1.2)which would establish direct exoneration (not as a pre-sumption of absence of fault) on the grounds of nauticalfault (default of the master, crew or pilot in the navigationor in the management of the ship) and the fire exception.

As indicated in the explanatory text, the proposal in brack-ets is a cause of major division between those in favour ofone or other position.

In 1996 Venezuela, as a member of the AndeanCommunity, opted to remove nautical fault and the fireexception as grounds for exoneration; this is set out inDecision No. 393, which takes precedence in the interna-tional sphere in cases relating to multimodal transport.

However, during consultations in the VenezuelanAssociation of Maritime Law, the Association expressedits support for including the nautical fault exception andthe fire exception among the grounds for exonerating thecarrier. In the light of this, we should consider in greaterdetail whether it would be appropriate to conclude anagreement which includes those exceptions; if such anagreement is adopted, Decision No. 393 should be amendedto bring it into line with the agreement’s provisions.

Article 6.1.4 of the draft is in brackets. It refers to casesin which damage, loss or delay is caused in part by thefault of the carrier and in part by an event for which thecarrier should not be held liable, and is based on theassumption that the carrier would be liable only to theextent that its fault had contributed to the damage, loss ordelay in delivery.

In our opinion, this provision should not be acceptedbecause, in cases where the carrier fails to fulfil its obligation to carry and deliver the goods, it should be liablefor all the damage caused. This is the system under ourlaw.

It should be pointed out that this draft provision is basedon article 5.7 of the Hamburg Rules, and that the inclu-sion of such a provision in those Rules is understandablebecause the liability regime which it establishes is so strict.

However, that is not the case with the draft instrument,which sets out a regime that is more flexible and favourableto the carrier’s position.

Electronic commerce

At the Assembly of the International Maritime Committeein Singapore, it was agreed that the InternationalSubcommittee should work on drafting rules which wouldinclude principles and provisions to facilitate electroniccommerce. The May preliminary draft was revised by theWorking Group on Electronic Commerce and the draftinstrument incorporates the provisions recommended by theGroup.

The draft instrument should apply to all contracts of car-riage, including those which are concluded electronically.To achieve this goal, the draft is medium-neutral and tech-nology-neutral. This means that it should be adaptable toall types of system, not only those based on a registry, suchas the Bill of Lading for Europe (BOLERO). It shouldapply to systems operating in a closed environment (suchas an intranet), as well as to those operating in an openenvironment (such as the Internet). Care should also betaken to ensure that the draft instrument is not limited tothe technology currently in use, bearing in mind that tech-nology evolves rapidly and that what seems impossibletoday is probably already being planned by computersystem (software) programmers.

One of the aims of the draft instrument is to remove the“paper obstacle” to electronic transactions by adopting therelevant principles of the UNCITRAL Model Law onElectronic Commerce of 1996.

One way of achieving this aim is simply to define the word“document” in such a way as to include informationrecorded or archived in any medium. This would coverinformation kept in electronic form as if it were in writingon paper. Some people think that this is the best solution,but since there still exists a widespread feeling that “doc-ument” means paper, different terms have been used tofacilitate the conclusion of contracts by electronic meansor the conclusion of contracts evidenced by messages com-municated electronically. The expression “electronicrecord” has been chosen as a relatively neutral one.“Contract particulars”1 is regarded as an appropriateexpression which can easily be applied to the special con-ditions set out in a transport document or an electronicrecord.

Chapter 2 contains general rules relating to consent. Thismeans, firstly, consent to issue and use an electronic recordand, secondly, when a transport document is issued, con-sent communicated or expressed electronically to exchangeinformation and notices such as those covered by articles6.9.1 and 6.9.2. There is also an article covering cases inwhich the parties wish to opt by a particular means toreplace an electronic record with a paper document or vice

1The term “contract particulars” has been translated as “condicionesdel contrato”, although it can also be translated as “clausulado del con-trato”, “cláusulas específicas del contrato” or “cláusulas especiales delcontrato”.

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versa. This is permitted only if there is mutual consent andunder strict conditions. This problem is mentioned in theCMI Rules for Electronic Bills of Lading. Lastly, chapter 2contains rules of procedure which must be agreed andincluded in the contract particulars that appear in a nego-tiable electronic record. On this point there is no generallyestablished custom, uniformity or predominant system.Such rules are therefore necessary in order to ensure thatthere are no misunderstandings concerning either the trans-fer of electronic records or the action necessary in orderto obtain delivery as the holder of an electronic record.

The draft instrument adopts the proposal that negotiabilitycan be achieved and effected electronically. The conceptof exclusive control of the electronic record should be con-sistent with the concept of negotiability. It is certainly justas consistent as the physical possession of a piece of paper.This provision would therefore put electronic records on an equal footing with transport documents, and has been introduced solely for that reason; it would also putnegotiable transport documents on an equal footing withelectronic records. It was appreciated that different inter-pretations of negotiability in different jurisdictions mightmake it impossible to determine whether an electronicrecord could currently be seen in all jurisdictions as capa-ble of covering what should be understood as effectivenegotiability. However, in view of the rapid national andinternational advance of electronic commerce and of lawson electronic commerce which seek to introduce paritybetween electronic media and paper, it was considered thatthe rules were acceptable.

One of the arguments and ideas considered was that nego-tiable documents were no longer necessary, whether onpaper or in the form of an electronic record, and that inany case the central focus should be on the transfer ofrights (the right to obtain delivery or the right of control)in a contract of carriage without documentation. Withregard to the first point, this view is based on the fact thatthe financing of air transport in any form is hampered bythe use of air waybills. The popularity of sea waybills2 wasalso mentioned. Nevertheless, there are certainly manymarkets where negotiable documents are used. The draftinstrument must ensure that nothing prevents the use ofelectronic records to evidence such contracts of carriage inthe future. The instrument also clearly establishes that thetransfer of rights in contracts of carriage may be done elec-tronically.

These rules are consistent with the UNCITRAL ModelLaws on Electronic Commerce (1996) and ElectronicSignatures (2001), which, to some extent, provided thebasis for the Venezuelan Act on Data Messages and DigitalSignatures. Only if the validity of documents transmittedelectronically is recognized will it be possible to overcomethe legal obstacles to implementing electronic commercein countries where records are traditionally kept in writing,such as Venezuela. Venezuela therefore approves the ruleson electronic commerce contained in the draft instrument.

B. Andean Community (Peru)

[Original: English]

We acknowledge receipt of the questionnaire prepared bythe International Trade Law Commission of the UnitedNations? UNCITRAL—regarding the draft instrument thatwould govern the international carriage of goods.

Moreover, as the Peruvian General Direction of AquaticTransportation we will point out our views on the matteron each of the questions.

1. Do you feel that it will be helpful to have a single lia-bility scheme applicable to door-to-door shipments whichinvolve an overseas leg?

Considering that door-to-door shipments are increasing fastand this will probably be the predominant form of trans-portation in the near future, we consider it will be desir-able and helpful to have a single liability scheme. However,we believe that the project involves issues covered by sev-eral conventions which have not been yet approved bymany countries. Thus, a consensus is almost a utopia.

2. If so, why?

As previously stated, we consider that the draft instrumentproposed is too ambitious and too many conventions arebeing put in one instrument alone. This will mean that itwill be almost impossible that countries will approve it.

As a matter of fact the draft covers issues regarding theresponsibility of ship owners for goods carried on vessels,which are actually regulated principally by Hague, Hague-Visby and Hamburg Rules. Just on this issue there is noconsensus in our country and/or within the Andean Pact.

Likewise, the draft covers new issues which were notincluded in the above mentioned rules, as for example elec-tronic bills of ladings and general average.

Moreover, a liability regimes for a door-to-door trans-portation involves the inclusion of a regime for land trans-portation which is usually regulated by local law.

We will suggest to follow Professor William Tetley´s TwoTrack approach (http://tetley.law.mcgill.ca/unctad): a) Afast track involving a new port-to-port convention whichcould be a mixture between the Hague-Visby and Hamburgrules and trying to maintain the balance between shippersand carriers. This will cover the sea leg being governed byinternational law; and, b) A slow track, which will involvethe most controversial issues and be optional to the statescovering the land transportation and that is usually gov-erned by local law.

3. Should the same law be applicable to the entire trans-port of the goods, both on land and sea?

Yes. A unique international law governing the entiretransport of the goods is highly desirable, as this willbring certainty of law, promote commerce, judgementscould be enriched by several jurisprudence, lower legalcosts, etc.

2This term has been left in the original English because it is difficultto define the terms “air waybill” and “sea waybill”. They could, however,be translated respectively as “non-negotiable air and maritime transportdocuments”.

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Part Two. Studies and reports on specific subjects 547

However, as mentioned in the previous paragraphs, the draftis too ambitious and some issues like land transport ofgoods is usually governed by local law. Thus, convincingcountries not to apply their local laws will probably makethe convention unreachable. However, the possibility thatclaimants and/or defendants be able to choose the jurisdic-tion and applicable law shall remain open.

4. Should all of the participants in the door-to-door car-riage of the cargo, including stevedores, terminal operators,truckers, railroad, warehouses and others, be subject to thesame liability regime as the ocean carrier?

Not necessarily. There are certain risks which are inherentto sea transportation which are not applicable to land trans-portation and vice versa. Accordingly, liability should notbe measured using the same ruler.

However, liability issues like calculation of indemnityamounts could be applicable to all of them and a consen-sus on these points could bring more commerce due to thecertainty of law. At least on some aspects—lower legalcosts, and knowledge of problems of similar or identicalnature solved in other countries. This will allow that usersto be more confident in using the system.

5. Should the participants in door-to-door carriage suchas the stevedores, terminal operators, truckers, railroads,warehouses and others be subject to direct claims by cargointerests or their underwriters under a single multi-modalregime for damage caused by the particular participant?

Yes. However, this shall remain as an option of theclaimant and not be compulsory. The claimant shall havethe option to choose whether to make its claim directly tothe carrier and the latter claim against the subcontractor insubrogation-, to the subcontractor if the damage/loss isclearly under the period that goods were under the sub-contractor’s liability or to both of them.

6. In the event that existing conventions apply to landtransport, such as the Convention on the InternationalCarriage of Goods by Road (CMR), should those conven-tions continue to control the liability of the land carrierwhen the land carrier is involved in the carriage of goodsover sea and land, or could the land carrier under certaincircumstances be subject to the same liability regime as theocean carrier?

It is desirable for the land carrier to be subject to the sameliability regime as the ocean carrier, although some of theirrisks may not be shared. However, as stated having all inone convention is unlikely to be approved by the majorityof countries the conventions for the moment should remainindependent. The two track approach suggested could helpachieve this.

7. What advantages, if any, do you see in applying a uni-form liability regime to both land and sea transport inmulti-modal carriage?

The main and obvious advantage would be that the regimewill be simpler to understand by its many users. This willprovide better understanding and developments of law,lower legal costs. As consequence this will bring confi-dence on the system and development of commerce in gen-eral.

8. What problems are commonly experienced today, ifany, as a result of the existing system of liability regimesfor door-to-door carriage of goods?

In countries as ours mainly confusion and awareness bycargo interests of the applicable laws, liability regimes,which make it difficult for the users to collect or sue thecarriers. However, this is not the only problem; local judgesare not specialized in maritime and/or transportation mat-ters and do not follow in approved international conven-tions. This brings even more confusion not only to cargointerest but also to carriers, making trading and commercemore expensive due to the uncertainty.

9. Do you perceive any advantages to the industry ifcargo interests or their underwriters are given the oppor-tunity to make a claim directly against the subcontractorof the carrier who issues the bill of lading for damageor loss that occurred whilst in the subcontractor’s custody?

Yes. This could probably reduce costs, making commercemore effective. If subcontractors could be sued for dam-ages or loss that occurred whilst in their custody, first theywill have the opportunity to find alternative dispute reso-lution methods to settle the claims, which could be con-venient for all the parties without them having to be suedonce the carrier’s liability is established by a court of com-petent jurisdiction or an arbitration tribunal. This will evi-dently reduce legal costs.

Likewise, cargo interest or underwriter in some cases couldconsider more convenient to sue locally, rather than havingto sue an overseas company. As the chain of claims willbe smaller, higher indemnities which could benefit all atthe end of the day could be obtained due to lower costsand fewer trials and negotiations.

However, as stated before, this shall remain as an optionof the claimant.

10. Please take this opportunity to indicate if you haveany further comments or observations in respect to theinstrument as currently drafted by UNCITRAL.

We agree that this will be a good and desirable document.However, we believe that it will be unrealistic to considerreaching a success as many countries would not be able to ratify it. Taking out some difficult issues will allowachieving the success of the convention whilst more conversations are necessary to reach the desirable one.Therefore, we believe that a two-track approach shall befollowed.

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III. ADDITIONAL STATEMENTS AND CONTRIBUTIONS IN CONNECTION WITH THEPREPARATION OF THE DRAFT INSTRUMENT

A. From States

Malaysia

[Original: English]

Please note that the comments are not conclusive as Malaysiahas yet to receive some of the other relevant documents.

i) Port-to-port transport operations (international car-riage of goods by sea) cannot be equated and expanded todoor-to-door transport operations. They are different andhave to be dealt with separately taking into account thedifferent status and land transport regimes and legislationof various countries, particularly the non-members. Duecognizance must be given to the possible dangers ofextending maritime transport rules to land transport, moreso to those of the developing countries.

ii) In view of the rather limited numbers of countriesbeing members, the intention of the international instru-ment being prepared to be possibly considered as an inter-national treaty is rather premature and unreasonable andperhaps at best it could be proposed as an internationalconvention by the United Nations.

B. From intergovernmental organizations

Organisation for Economic Co-operation and Development (OECD)

[Original: English]

Background

The Workshop on Cargo Liability was organized by theMaritime Transport Committee to assist in the moderniza-tion of current regimes and to bring some additional clar-ity on steps that may be taken in order to bring about anew regime that may be more widely acceptable to bothgovernments and industry. It was hoped that this effortfrom the OECD would not result in further proliferation ofregimes, but rather that it would encourage a convergenceof views to further harmonize international practices.

The approach taken in preparation for the Workshop wasto commission a consultant to analyse a range of existingregimes, and identify those issues where there is still con-siderable disagreement amongst the various parties affectedby these regimes. The consultant’s document, which formedthe basis of the discussion at the Workshop, is available onthe Maritime Transport Committee’s web site at:http://www.oecd.org/dsti/sti/transpor/sea/index.htm

The Workshop

The MTC’s Workshop was held on 25-26 January 2001,and brought together approximately 120 participants fromgovernments and industry from OECD countries. A numberof international intergovernmental agencies with an inter-est in cargo liability issues were also represented.

The Workshop was chaired by Mr Alfred Popp, SeniorGeneral Counsel in the Canadian Department of Justice.Mr Popp is currently also the Chairman of the LegalCommittee of the IMO.

Participants at the Workshop, while obviously represent-ing their governments and organizations, were invited toparticipate and speak in a personal capacity. This wasbecause the Workshop was simply an avenue for exchang-ing views on the issues identified by the consultant, inorder to establish whether there might be some commonground or convergence that may offer an avenue to afuture diplomatic conference to resolve some of these hith-erto divisive issues.

The individual views of participants have not been recorded,and all statements were made on a non-attributable basis.Similarly, the outputs from the Workshop do not necessar-ily reflect the views of either the MTC’s member govern-ments, nor of the industry representatives present.

However, the points covered in this report on the Workshopare offered to interested parties, be they governments,industry, or international organizations that may in thefuture consider hosting or participating in diplomatic con-ferences to review cargo liability, as representing the endresult of deliberations between these parties.

While these outcomes are not binding on any party, theymay nevertheless offer some guidance as to the policy out-come that may be necessary to maximize the formulationof a more comprehensive, and generally acceptable formof cargo liability regime. If nothing else, they may offerguidance on alternative texts that may in the end representacceptable compromise solutions.

Matters where the Workshop found general agreement:

Issue A: Loss due to delay

It was noted that this had traditionally been a divisive issue.However, there was agreement that delays should be cov-ered by a new regime where timing of delivery is subjectto special contractual conditions. In addition, thought mightbe given to including provisions for delays at large.

Issue B: Application to different transport documents

Any new regime should cover not only traditional bills oflading, but also other non-negotiable contracts of carriage,but excluding charter parties.

Issue C: Application to electronic or other transactions

A new regime should be fully compatible with modernelectronic commerce, including the Internet.

Issue D: Recognition of performing and contracting carriers

On balance there was support for including the notion ofthe performing carrier in a new regime, while at the sametime not giving up the principle of making claims upon thecontracting carrier, nor allowing the contracting carrier to

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Part Two. Studies and reports on specific subjects 549

avoid liability by virtue of having subcontracted the car-riage to another carrier.

However, there were concerns that the definition of per-forming carrier contained in the CMI draft may be too broad,and the Hamburg Rules definition may provide a better basis.

Issue E: Application to live animals and deck cargoes

Live animals

The strong majority of speakers were against inclusion oflive animals in a new regime because of the specializednature of the cargo. However, it was recognized that therewas need for further consultations with both carriers andshippers of live animals.

Deck cargo

Deck cargo should be covered without special provision inthe case of containerized cargo, thus following today’s busi-ness practices. Non-containerized cargo should be coveredsubject to the clarification of the carriers’ and shippers’duties and rights along the lines of the Hamburg Rules.

Issue F: Application of regime to both inbound and outbound cargoes

There was very strong support for the proposal that goodsbound for a contracting state should be covered even if theport of origin is in a non-contracting state.

Issue K: Documentation

Participants noted that this is a technical issue for consid-eration by experts, and that the only relevant policy issueis that information regarding vessel and cargo contained insuch documentation must be totally reliable. Some com-ments made under Item I may be also relevant here.

Issue L: Period of notice to notify loss or damage

This was recognized as a technical issue which could onlybe resolved through discussion with practitioners to ensurethat any limitations reflect modern business practice.

However, within the general view there was considerablesupport for tight limitations, although some felt that theHague-Visby 3-day limit in cases where damage was notapparent should be extended.

Issue M: Timebar limits on initiation of legal proceedings

Again, there was considerable support for a tight limita-tion period as in Hague-Visby, but with appropriate pro-visions for recourse action and consideration of provisionscovering suspension and interruption of those limitations.

Issue N: Explicit provisions for arbitration or otherforms of dispute settlement

A new regime should make provision for parties to agreeto settle disputes by arbitration or other forms of disputeresolution.

Issue O: Forums in which proceedings can be brought

There was very strong support for a specific list of forums,or rules for selecting a forum, to be available to theclaimant, along the lines of those provided for in theHamburg Rules, although these could be relatively tightlydefined in order to minimize forum shopping.

However, any list should be carefully scrutinized to ensureit was appropriate to multimodal journeys if the new con-vention extends coverage to them.

Matters where the Workshop found convergence but not general agreement::

Issues G and H: Extent of coverage of regime, includingmultimodal legs

The most general consensus was that the new regimeshould take as its first priority the improvement of theregime governing the maritime leg of the journey.

However, it was also generally recognized that undermodern business practice multimodal journeys are becom-ing more important. Therefore, how the new maritimeregime could be made to fit in with other modes of trans-port should be further studied.

Any such extensions should fully recognize and addresspossible conflicts that may arise with other internationalconventions or national laws.

The possibility of addressing this issue by providing a“default” liability regime where there is uncertainty as towhich regime should apply, ought not to be ignored.

Issue I: Allocation of responsibilities between carriersand shippers

There was substantial agreement that the criteria proposedby the consultant formed a useful basis on which to judgethe allocation of responsibilities. These critieria were:

a) It must be conducive to the public policy aims ofmember governments (e.g. on trade facilitation, maritimesafety, etc).

b) It should have the prospect of early acceptanceand uniform implementation worldwide and especially bythe world’s main trading and shipowning nations.

c) It should be as clear and as certain in its inter-pretation as possible.

d) It should provide for an efficient and economicaldistribution of insured risk.

e) It should make for convergence with the cargo lia-bility regimes in force for other transport modes.

There was also substantial agreement that there should bea balanced allocation of responsibilities which recognizesthe rights and obligation of both carriers and shippers.

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The thrust of the discussion indicated that with this bal-ance the removal of nautical fault and other exemptionscould receive support, although some notes of strong cau-tion were sounded about the possible effects of its removal.

There was clear recognition that a balanced allocation ofrights and obligations of both carriers and shippers wasimportant also in the light of maritime safety and sustain-ability, especially with respect to the prevention of accidents.

There was also substantial evidence to suggest that a morestringent allocation of responsibility along the lines of theHamburg provisions may in the end receive support, per-haps with a listing of specific defences.

In all cases there should be counterbalancing obligations onshippers to ensure there was an adequate duty of disclosure:

a) On special features of the goods that are relevantto their handling and carriage—in particular any danger-ous qualities and any special precautions appropriate; and

b) As required by the shipment’s documentation inaccordance with legal and administrative requirements, andas necessary for delivery of the cargo to consignee in accor-dance with the contract of carriage.

Shippers should be liable for any damage or expensecaused to the carrier or others:

— By their failure to meet these obligations, or

— By the goods themselves, if due to the shippers’ faultor neglect.

Some careful attention should also be given to the burdenof proof.

Issue J: Monetary limits

The matter of monetary limits is one that can only beresolved by a diplomatic conference.

Before considering new monetary limits it would be advis-able for the sponsoring agency, as part of preparatory workfor a diplomatic conference, to commission an independ-ent study on the changes in the value of money since thelimits were fixed in the Hague-Visby Rules.

During the course of discussion, a suggestion that “pack-age” limits should be removed received little support, butit was recognized that this could be reconsidered if a newregime was extended to cover multimodal legs.

There was also strong support for the proposition that thereshould be a provision included in a new regime for thereview of limits by “a tacit amendment procedure”, per-haps by drawing from existing provisions in other relatedconventions.

Additional matter

During the course of the Workshop, the issue that freedomof contract should be a feature of any new convention

received strong support from industry representatives.However, those government representatives that spoketended to reflect the view that the unification of interna-tional transport law could be effective in providing a min-imum or basic standard only if the provisions contained inthese conventions were mandatory. Freedom of contractmight however be restricted only in cases where generalconditions were used.

C. From non-governmental organizations invited by the secretariat

1. Association of American Railroads (AAR)

[Original: English]

Comments on behalf of the association of AmericanRailroads3 relating to the preliminary draft instrument

on the carriage of goods by sea

On 16 September 2002, the Working Group on TransportLaw established by the United Nations Commission onInternational Trade Law (UNCITRAL) will meet to reviewthe Preliminary Draft Instrument on the Carriage of Goodsby Sea (Draft Instrument). The proposed Draft Instrumentwould serve to make substantial changes with respect tolaws involving the carriage of goods by sea: and presentlycontemplates, in part, that its application extend to theinland portion of transportation subject to a contract forcarriage by sea.

The U.S. and Canadian railroad members of the AAR haveserious concerns over the application of the DraftInstrument to rail transportation. There is already an exist-ing and well-established system in the U.S. and Canadawhich governs the liability of rail carriers for loss anddamage to goods transported and the rights and obligationsof both the rail carrier and the shipper. This system waspromulgated by legislation and developed through litiga-tion and regulatory agency action interpreting and apply-ing the legislation.

Fundamental to the system in the U.S. and Canada as itrelates to rail transportation in connection with a move-ment by sea is the right of each ocean carrier to enter intoan agreement with the rail carrier that allows the ocean car-rier to choose the level of protection it needs and desiresfor its cargo. (Also central to that system is that rail car-riers compete with each other over the terms and condi-tions offered to each ocean carrier.) In that regard, the railcarrier has privity of contract only with the ocean carrierwhen transporting containers having a prior or subsequentmovement by sea.

Original legislation setting forth the rail carriers’ obliga-tions with respect to loss and damage of cargo codifiedcommon law rules that a rail carrier was a “common car-rier” and, as such, was liable for the full actual loss causedby it as a result of loss, damage or delay in the trans-

3The Association of American Railroads (AAR) is an association ofrailroads which includes among its members ail of the large freight rail-roads in Canada, the United Stares and Mexico as well as passenger rail-roads that operate the U.S. intercity passenger trains and that providecommuter rail service.

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Part Two. Studies and reports on specific subjects 551

portation of property.4 Under the system applicable in theU.S. and Canada, as common carriers, railroads wererequired to transport commodities tendered to them uponreasonable demand. In addition, based upon the legislationin the U.S. and Canada, common law as well as state lawremedies and causes of action such as negligence, fraud,negligent misrepresentation, bailment, and deceptive tradepractices, have been consistently held to be preempted byfederal case law.

Subsequent legislation in the U.S. and Canada provided therailroads with the opportunity to enter into contractualarrangements with shippers which could alter the rail car-riers’ otherwise statutory common carrier obligations.Parties to a transportation contract could negotiate termsrelating to liability which, for example, could provide forshorter terms for filing claims and for lesser liability thanwould otherwise be required by statute. To the extent thata rail carrier contracts to move cargo under a transportationcontract, the liability of the rail carrier (which may, as analternative, be full “common carrier” liability) is establishedby the contract between the railroad and the ocean carrier.

As a result, the U.S. and Canadian railroads’ practice todayis to have transportation contracts with ocean carriers called“circulars” that vary by carrier, but generally establish lia-bility limitations, set forth affirmative defences, and includeprovisions addressing unlocated loss and damage filing pro-cedures, and the offering of alternative full “common car-rier” liability terms. Other terms are set forth which mayinclude those affecting liability, privity of contract, prohib-ited commodities and equipment, and shipper requirements.Also customarily included in railroad circulars governingtransportation of containers having a prior or subsequentmovement by sea are terms incorporating limitations on lia-bility set forth in the transportation contract or bill of ladingbetween the ocean carrier and the shipper. Intermodal ship-pers (i.e. ocean carriers) currently have the ability to acceptthe provisions of these “circulars” or to enter into an agree-ment that has its own distinct rules and rate quotations toaddress their individual needs.

A critical feature of the contractual relationship, whetherin the context of a circular or an individual contract, is thata claim for loss or damage can be brought against the rail-roads only by ocean carriers because the railroads do nothave privity of contract with any other party in the trans-portation chain, including the shipper. This contractualrelationship also provides for venue and jurisdiction termswhich restrict suits for damage against the rail carrier inforeign jurisdictions. The end result is that the U.S. andCanada already have in place a uniform and well under-stood system of handling rail freight loss and damageclaims which meet the needs of the parties involved.5

The Draft Instrument would, however, significantly andadversely alter the current system affecting the U.S. andCanadian rail carriers’ liability for loss and damage forgoods having a prior or subsequent movement by sea.Specifically, Section 4.2.1 would extend the scope of thetreaty to the inland portion of a sea movement and Section6.3.2, which includes a railroad as a “performing party”,would subject railroads to the liability terms standardizedby the Draft Instrument. As a result, the U.S. and Canadianrail carriers would be required to accede to more onerousliability terms with no identifiable offsetting benefits.

Terms of the Draft Instrument would adversely modify thecurrent system applicable to U.S. and Canadian railroads.These adverse changes would, in part, limit the rail carri-ers’ ability and right to negotiate or offer individual con-tract terms including, for example, those relating to liabilitylimitations on a per-package or per-container basis as analternative to full common carrier liability (Section 6.7.1),weaken or eliminate requirements for privity of contractwith the ocean carrier (Section 1.5), open land carriers tolitigation in foreign jurisdictions (Article 17), restrict theparticipants’ ability to govern their liability as a “perform-ing party” (Section 6.3.1), and modify responsibility forblocking and bracing (Section 6.3.1(b)(ix)).

Accordingly, the U.S. and Canadian railroad members ofthe AAR strongly oppose the scope of the Draft Instrumentas presently written. Consistent with the concern raised bythe United Nations Economic Commission for Europe andthe United Nations Conference on Trade and Developmentin their comments on the Draft Instrument (UNCITRALdocument A/CN.9/WG.III/WP.21/Add.1), expansion of thescope of the Draft Instrument beyond port-to-port trans-portation should not be undertaken without a thoroughreview and the resolution of all the issues involved withsuch an expansion of scope.

It is the position of the U.S. and Canadian railroad mem-bers of the AAR that an Instrument relating to liability forgoods transported by sea should take into account theissues of concern to the U.S. and Canadian railroads andbe drafted to clearly and distinctly avoid adversely affect-ing: (1) the current contractual arrangements betweenocean carriers and rail carriers with respect to the inlandportion of a movement of goods also transported by sea,and (2) the rights and responsibilities of the parties to suchcontractual arrangements. The Draft Instrument’s scopeshould therefore not be extended to apply to the land por-tion of any cargo transportation to the extent it adverselyaffects the current liability system applicable to U.S. andCanadian railroads.

2. International Chamber of Commerce (ICC)

[Original: English]

Comments submitted by the Commission on Transport and Logistics of the International Chamber

of Commerce on the United Nations Commission on International Trade Law (UNCITRAL) draft instru-

ment on transport law

The International Chamber of Commerce (ICC) believesthat trade by sea would be facilitated by a uniform, inter-

4Common carrier liability provisions in the U.S. (the “CarmackAmendment”) are found at 49 U.S.C. § 11706 and in Canada in theRailway Traffic Liability Regulations.

5It should be noted that with respect to U.S. rail transportation, theU.S. Supreme Court has recognized that a primary purpose of the CarmackAmendment (i.e. the statute providing the underpinning upon which thesystem of liability for loss and damage to transported goods is based) wasto relieve shippers of the burden of searching for the responsible carrierfrom among those in the transportation chain. (Reider v. Thomson. 339U.S. 113 (1950).)

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national ocean cargo liability regime, updated to take intoaccount modern developments in transportation and logis-tics. ICC notes that a Working Group of the United NationsCommission on International Trade Law (UNCITRAL) isnow considering a draft instrument on transport law, whichincludes provisions that comprehensively address issuesrelating to ocean cargo liability. ICC commends this effort,and looks forward to contributing to this initiative, whichis driven by a desire for greater uniformity of ocean cargoliability regimes.

ICC’s Commission on Transport and Logistics representsall segments of the international transport industry, includ-ing shippers, vessel operators, freight forwarders, carriersand insurers in over 130 countries. ICC aims to promotean open international trade and investment system and themarket economy worldwide. ICC also facilitates trade byproviding arbitration services and by developing voluntaryrules such as the ICC Incoterms, the ICC UCP 500 and,together with UNCTAD, the UNCTAD/ICC Rules forMultimodal Transport Documents.

A variety of regimes currently govern liability for cargoloss or damage that occurs during international ocean car-riage. The most prominent among those regimes are the“Hague Rules” of 1924 and the “Hague-Visby” rules,which were adopted in 1968. Other cargo liability regimesinclude the Hamburg rules and the Scandinavian MaritimeCodes. In general, however, none of these regimes takesfull account of modern developments in international tradesuch as containerization, multimodal transport, just-in-timedelivery and e-commerce.

ICC believes efforts by UNCITRAL to develop principlesfor a new international cargo liability regime are desirableand commendable. Because the issue of cargo liabilityregimes for maritime transport is by its very nature an inter-national issue, any new standard in the area should entailsubstantive consultations with all relevant industry repre-sentatives.

In developing a new, uniform international ocean transportation cargo liability regime, ICC’s TransportCommission supports a regime that would:

Contribute to the harmonization of liability regimes fordoor-to-door and maritime transport;

Update and clarify the burdens of proof for all partiesand defences of a carrier or intermediary against whoma claim is made;

Permit parties entering into customized ocean trans-portation contracts to agree to depart from the require-ments of the international ocean transportation cargoliability regime;

Allow for adjustment of the Hague-Visby liability limitsover time;

Establish procedures and provide clarity of rights andobligations regarding cargo liability to minimize theburden on international trade resulting from excessivelitigation; and

Adopt modern and appropriate provisions governingother matters of importance for liability in the interna-

tional transportation of goods, including forum selec-tion, qualifying clauses by carriers, shipper obligationsand others.

3. International Group of Protection & Indemnity Clubs

[Original: English]

Submission of the International Group of P&I Clubs

1. The International Group of P&I Clubs (IG) is com-prised of thirteen P&I Clubs that between them insure some90 per cent of the world’s ocean-going tonnage. The Clubsare non-profit making mutual organizations. That is themember shipowners insure one another on an indemnitybasis against a variety of third party liabilities relating tothe use and operation of ships, including liability for lossof and damage to cargo.

2. Scope of application

(a) UNCITRAL was established with the generalmandate of furthering the harmonization and unification ofinternational trade law. Its initiative in seeking to developa new convention that will govern the international car-riage of goods involving carriage by sea is broadly wel-comed by the maritime industry having regard to theproliferation of international conventions and domestic leg-islation in force in different jurisdictions, governing thismode of carriage. Lack of uniformity inevitably detractsfrom commercial and legal certainty, which is important toall parties engaged in the international carriage of goods.

(b) UNCITRAL is intending to devote a part of theeleventh session of Working Group III to a discussion onthe scope of the Draft Instrument that is presently underconsideration by the Working Group.

(c) Traditionally sea carriers contracted tackle-to-tackle, their responsibility under relevant maritime con-ventions being limited to the sea carriage, although theywere free to assume responsibility for ancillary movementsof the goods prior to loading and post discharge, normallywithin the confines of the loading and discharge ports.Current commercial and insurance practice as well as exist-ing maritime conventions is generally structured to providefor this traditional type of carriage. However, although themajority of bulk and break bulk cargoes are still moved inthis way and continue to predominate in tonnage terms,containerized cargo which now accounts for a very highpercentage of cargo movements, is frequently carried on adoor-to-door/multi-modal basis, that is carried by morethan one mode of transport but under a single contract.

(d) The Rules of IG Clubs provide that liability willbe excluded, should the carrier contract for sea carriage onterms less favourable than the Hague/Hague Visby Rules.However Clubs will also provide cover in respect of lia-bilities incurred under a door-to-door contract involving asea leg, under which the shipowner assumes responsibilityfor the whole of the carriage, including that performed bysome mode of transport other than the entered vessel e.g.road or rail. Such cover is however subject to the contract

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Part Two. Studies and reports on specific subjects 553

first being approved by the Club, which will normally onlyoccur if the member contracts on terms no less favourablethan any legislation compulsorily applicable to such othermode of transport, e.g. CMR. A shipowner is required topreserve his rights of recourse against other partiesinvolved in the performance of legs, other than the sea leg.

(e) If door-to-door carriage were excluded any newconvention would in the IG’s view be of little assistance tothe industry, merely resulting in a further convention ofrestricted application in an area of international law which isoverburdened with competing legislation, creating furtherdisharmony. In such circumstances it seems to the IG that itwould be unlikely to attract widespread support from States.

(f) If the Instrument extends to door-to-door transportthe question arises whether it should operate on a uniformor network basis, particularly in relation to its liabilityregime. (The IG is in agreement with the great majority ofdelegates that the liability regime should be fault based, asis provided for in the draft Instrument). In the former theInstrument’s provisions on liability would operate through-out the carriage, that is during both the sea and inland leg(s)of the carriage irrespective of the mode of transportemployed. In the latter the instrument would be displacedby any international convention compulsorily applicable tothe inland leg(s), generally a uni-modal convention.

(g) Chapter 4.2.1 of the draft Instrument provides forthe operation of what is described as a limited networksystem, that is restricted to the operation of mandatory pro-visions of any compulsorily applicable international con-vention, relating to the carrier’s liability, limitation ofliability and time limits. The IG as it has previously indi-cated agrees with this approach for the following reasons:

(1) As stated above containerised cargo now accountsfor a very high percentage of cargo movements.Currently the great majority of carriers offering adoor-to-door service (multi-modal operators(MTO)), whether shipowners, NVOCCs or freightforwarders, operate under contracts of carriage pro-viding for a network system. In this regard it shouldbe noted that the UNCTAD/ICC Rules forMultimodal Transport Documents which came intoeffect on the 1 January 1992 and which apply anetwork system, have gained wide acceptancewithin the industry and are in common use in rela-tion to door-to-door carriage contracts. A recentStudy carried out on behalf of the EC in relationto multi-modal transport indicated that 95 per centof EU shippers surveyed, reported a loss rate ofless than 0.1 per cent of cargo movements, of whichless than 1 per cent led to litigation. The IG esti-mates that of those matters that do lead to litiga-tion, 80-90 per cent settle prior to a hearing. Whilstaccepting that the percentage loss rate might bemarginally higher in certain other parts of theworld, in the IG’s opinion these statistics supportthe view that the network system has proved bothpractical and effective and is widely understood.

(2) Adopting a network rather than a uniform systemwould preserve the integrity of existing uni-modal

conventions and by doing so reduce possible areasof conflict. This would in turn enhance the like-lihood of the Instrument gaining widespread sup-port.

(3) The costs of resolving a claim brought by cargointerests under a contract subject to a uniform lia-bility system are likely to be greater than ifbrought under a contract subject to a networksystem. In the former case an MTO would haveto settle with cargo interests on the basis of theuniform regime and then seek to recover from asubcontractor who performed the inland leg, undera different uni-modal regime. In the latter case oneregime would be applicable to both the claim andrecourse action reducing the possible areas of dis-pute and thus costs.

(4) Existing uni-modal regimes have been shaped tomeet the particular risks associated with the car-riage of goods by particular modes of transport.Multi-modal transport involves carriage by dif-ferent modes of transport. So far as it is both prac-tical and achievable in the context of a singlecontract governing the whole movement, it wouldseem sensible to have each mode of transportgoverned to the limited extent imposed by uni-modal conventions familiar to cargo interests andcarriers.

3. Allocation of risk

The primary purpose of international carriage conventionsis not only to promote international uniformity but also toensure an acceptable and fair balance of rights and liabil-ities and thus allocation of risk between the parties to thecarriage contract. The IG believe that it is most importantthat the Working Group should not lose sight of this prin-ciple in the course of its initial deliberations on the draftInstrument. The Working Group is and has been consider-ing the provisions of the Instrument on an article-by-arti-cle basis, in particular those articles relating to the carrier’srights, liabilities and responsibilities that have quite cor-rectly been described as the heart of the Instrument. TheIG believes that in considering these articles individuallyrather than as a whole, the Working Group is in danger ofoverlooking the principle and accordingly of preserving anequitable allocation of risk between carrier and cargo inter-ests. It is worth noting that at its ninth session the WorkingGroup agreed that it would commence its work on theInstrument ‘by a broad exchange of views regarding thegeneral policy reflected in the draft Instrument rather thanfocussing initially on an article by article analysis of thedraft Instrument’.

Having said this we would make the following comments.

Carriage of goods contracts are essentially a matter of pri-vate law rather than public law and are not ‘consumer’ con-tracts in the accepted sense of that term. In the modern era,in virtually all cases the carriage contract is made betweencommercial parties of similar bargaining strength, althoughas has been pointed out large volume shippers today exer-cise considerable bargaining power.

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It is perhaps worth noting that if the carrier is exposed togreater liability under the instrument when compared to theHague/Hague-Visby Rules by reason of the elimination ofdefences and the imposition of greater obligations andresponsibilities, his indemnity cover will prove moreexpensive. Such increase in cost would be passed on tocargo interests by way of higher freight rates. The IG there-fore believes it unlikely that by imposing a more onerousliability system, there would be an overall saving on thetotal costs of the carriage. It is more likely that the shiftin allocation of risk between the parties and their respec-tive insurers would merely be accompanied by a redistri-bution between them of the costs of the carriage.

4. Obligations of the carrier

(a) Extension of carrier’s obligation to exercise duediligence

A majority of delegates to date has supported the exten-sion of the carrier’s obligation to exercise due diligence inrelation to the vessel’s seaworthiness, to the whole of thevoyage and the elimination of the ‘nautical fault’ defence.As the IG has previously pointed out the adoption of theone and the elimination of the other would in the IG’s viewsubstantially affect the allocation of risk between carrierand cargo interests or more correctly their insurers, byimposing a greater risk on the carrier and thus an increasedshare of the overall costs of the carriage of goods.

Furthermore the attempt to impose a due diligence obliga-tion throughout the voyage ignores the practical problemsinvolved. It is extremely difficult for a shipowner to deter-mine whether his ship is seaworthy when it is in the middleof the ocean. If it is decided that it is not seaworthy theshipowner will be faced with the dilemma of whether toimmediately divert the ship to a port of refuge or repairport, which may be a considerable distance away therebydelaying the voyage, even though in some cases the vesselmay be only a day from her destination. It is submittedthat the requirement under Art. 3 Rule 2 to “properly andcarefully load, handle, stow, carry, keep, care for and dis-charge the goods…” provides sufficient continuing respon-sibility.

(b) Elimination of nautical fault defence

It has been suggested by a number of delegates that thenautical fault defence is out of step with modern thoughtand international carriage conventions relating to othermodes of transport and does not reflect the technologicaladvances and administrative developments that have takenplace in relation to ships and their equipment. We believethat it is misleading to compare sea transport with otherforms of transport. Cargo quantities and values (and there-fore frequently claims) are much greater, transit times arelonger and the carriage is subject to many more factors overwhich the carrier has no control. Furthermore even thoughsophisticated navigational aids are now in place on mostships, the master and other senior officers are faced with agreatly increased workload, partly resulting from increasedlegislation and inspections. Further, a master is often calledupon to make immediate and difficult decisions with lim-ited information quite possibly in the face of competing

interests, which if loss or damage occur are likely to beclosely scrutinised with the benefit of hindsight.

It is perhaps worth noting that in an analysis of majorclaims (that is claims exceeding US$ 100,000) arisingbetween 1987 and 1997 conducted by one of the largestClubs in the International Group, it was found that cargoclaims represented 40 per cent of all major claims and DeckOfficer Error, which in the main relates to error in the nav-igation or management of the ship, was the principal causeof 25 per cent of all major claims.

5. Maintaining a balance of rights and liabilities if nau-tical fault defence is eliminated and due diligence isextended throughout the voyage

If nevertheless it is decided that the due diligence obliga-tion should be extended and that the nautical fault defenceshould be eliminated, the IG believes in order to maintaina degree of balance between carrier and cargo interests theprovisions of Article 6 should reflect the following:

(a) 6.1.2 Nautical fault defence and fire

(i) The onus of proving loss or damage due tonegligent navigation or management of thevessel should lie with cargo interests.

(ii) The nautical fault defence should be retainedin relation to pilot error. The carrier in volun-tary as well as compulsory pilotage areas mustengage a pilot in whose selection he has nochoice. Furthermore it would be a bold masterwho would override the navigational decisionsof a pilot, when the pilot is on board preciselybecause of his local knowledge of the area.Pilot error was found to be the principal causeof 5 per cent of all major claims in the analy-sis of major claims referred to above.

(iii) Fire should be retained as a defence unlesscaused by the actual fault or privity of thecarrier. This is particularly relevant in thecontext of cargoes that are susceptible tospontaneous combustion.

(b) 6.1.4 Apportionment of liability

If loss or damage is caused in part by an event for whichthe carrier is liable and in part by an event for which he isnot, the burden of proof should be shared between carrierand cargo as proposed in the second alternative appearingunder Chapter 6.1.4. This proposal is equitable and reflectsthe concept of achieving a balance between the parties.

(c) 6.4 Delay

If a carrier is to be made liable for delay such liabilityshould be restricted to contracts where a time for deliveryhas been expressly agreed between the parties. It is a purelycommercial matter similar to the general requirement inother forms of commercial contract of expressly makingtime of the essence if imposing liability for delay. TheInternational Group has pointed out above that sea carriageis subject to many more factors beyond the carrier’s con-trol than carriage by air, road, rail and inland waterways,all of which could have a bearing on passage time.

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(d) 6.7 Limits of liability

The IG believe that the Hague-Visby limits represent a fairmeasure of compensation particularly when measuredagainst the comparative decline in freight rates since theirintroduction. It agrees with the suggestion that a limitationreview procedure should be incorporated in the draftInstrument. It is worth noting that the NIT League and theWorld Shipping Council which represent between them avery substantial sector of the industry support the Hague-Visby limits subject to incorporating a review procedure.

(e) 6.8 Loss of right to limit liability

The carrier’s loss of the right to limit should be restrictedto instances of the carrier’s personal act or omission donewith intent or done recklessly and with knowledge thatsuch loss would probably result. as provided for in the draftInstrument and should not be expanded to include the actor omission of his servants or agents. This is the test nor-mally found in international transport conventions.

Conclusion

In conclusion the International Group submits that it is pre-mature to consider changes to the individual articles in thedraft Instrument before establishing a framework for anequitable balance of rights and liabilities between carrierand cargo interests.

4. International Road Transport Union (IRU)

[Original: English, French]

Drawing up of a new convention on the carriage of goods by sea and extending this convention to

door-to-door transport operations

1. The International Road Transport Union (IRU) con-siders that the status of contractual liability of sea carriersis catastrophic.

The only clear provisions in this field are established byEUROTUNNEL and by shipping lines recorded on theCOTIF list and operated by the railways, since those ship-ping lines are subject to the binding liability regime foreseenby the COTIF Convention. As for other sea carriers, theircontractual liability is subject to a multitude of legal systems.

The Hague Rules or Hague-Visby Rules are not bindingas long as no bill of lading has been issued. In principle,no such bill of lading is ever issued for intra-Europeantransport operations.

Furthermore, the uniform application of these Rules is afiction!

They are a vivid proof of failure in the process to harmo-nize transport law and commercial law. Indeed, if onlylooking at European countries and those of the Maghreband of the Near East, one has to observe that:

• the Hague Rules are accepted by Algeria, Germany,Ireland, Israel, Monaco, Portugal, Romania, Turkey andYugoslavia,

• the Visby Rules are accepted by Denmark, Finland,Greece, Italy, the Netherlands, Sweden and the UK (byaccepting the Visby Rules, these countries have denouncedthe Hague Rules),

• the Hague-Visby Rules are accepted by Belgium,Croatia, Egypt, France, Lebanon, Poland, Spain and Syria,

• the Hamburg Rules are accepted by Egypt, Lebanon,Morocco, Romania and Turkey,

• Estonia, Latvia, Lithuania, Russia and the Ukraine havenot subscribed to any of the above-mentioned legal instru-ments.

It follows therefrom that:

• sea transport operations between Algeria, Germany,Ireland, Israel, Monaco, Portugal, Romania, Turkey andYugoslavia on the one hand, and Denmark, Finland, Greece,Italy, the Netherlands, Sweden and the UK on the other,are not subject to any joint international legal instrument,but rather governed by the sometimes little-known and dis-similar liability rules and limitations set by the national leg-islation of each country mentioned and, within this legalframework, by the rules set by shipping companies,

• sea transport operations between Estonia, Latvia,Lithuania, Russia and the Ukraine on the one hand, and allother countries on the other, are not subject to any jointinternational legal instrument, but rather governed by thelittle-known and dissimilar liability rules and limitations setby the national legislation of each country mentioned and,within this legal framework, by the rules set by shippingcompanies,

• sea transport operations between Egypt, Lebanon,Romania, Turkey and Morocco are exclusively subject tothe Hamburg Rules, which is positive since these Rules arebetter suited to the needs of shippers,

• sea transport operations between Algeria, Germany,Ireland, Israel, Monaco, Portugal, Romania, Turkey andYugoslavia are exclusively subject to the Hague Rules(however, in its Commercial Code, Germany has alteredthe liability limits foreseen by the Hague Rules by replac-ing them with those of the Visby Rules).

Furthermore, the Hague Rules and Hague-Visby Rules donot apply:

• to the transport of containers and road vehicles on deck(a frequent occurrence). Therefore, sea carriers accept noliability for the goods loaded into such containers or ontosuch trucks.

• to the transport of containers and road vehicles stowedin the ship’s hold, but for which a Sea Waybill was issuedinstead of a Bill of Lading. Indeed, bills of lading are neverissued for transport operations between European countries,even at the shipper’s request.

In such cases, sea carriers may deviate from or alter theHague Rules or the Hague-Visby Rules, which they are

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indeed prone to do. They thus subject their own liabilityto haphazard rules, rejecting the full application of theHague Rules or Hague-Visby Rules, and selecting thelatter’s provisions which suit their own purposes whilerejecting others. In practice, a container or truck, whetherloaded or unloaded, is considered as a single package andthe compensation payable by the sea carrier does notexceed SDR 666.67 per container or truck, goods included.

2. Given the above, the IRU is of the opinion that oneshould avoid multiplying international conventions on thecontract of carriage by sea. The legal chaos caused by theimplementation of the Hague Rules, the Hague-VisbyRules and the Hamburg Rules cannot be solved by yetanother legal instrument, whose planned provisions maylead, if not to summary dismissal, at least to intense andnever-ending discussions between the 27 countries havingalready acceded to the Hamburg Rules, the 24 countrieshaving accepted the Hague-Visby Rules and the 44 coun-tries still adhering to the old Hague Rules.

This opinion seems all the more commanding in the casein point since it concerns the work carried out by a merethirty countries represented within UNCITRAL.

3. In our opinion, UNCITRAL would do better to use itsprestige to have the various States accede to the HamburgRules, for which UNCITRAL claims authorship and mustalso ensure follow-up. The road transport industry is par-ticularly interested in these Rules whose provisions – con-trary to the Hague Rules and Hague-Visby Rules – applyto any transport document issued by sea carriers and serveto avoid the many exception clauses inserted into the var-ious sea waybills issued by sea transport operators basedon the Hague Rules and Hague-Visby Rules.

4. As for extending the future convention on the contractof carriage by sea to operations preceding or following the

sea transport operation, it should be noted that such a legalinstrument would merely be a multimodal convention indisguise.

There is no reason to think that such a new legal instru-ment would have a greater chance of being accepted thanthe 1980 Convention on Multimodal Transport. The majordifferences between legal cultures and mentalities alreadyobserved at the time, added to the irreconcilable interestsof the various continents, are no cause for optimism.

Furthermore, it would be foolish to extend to non-sea trans-port a new liability regime foreseen for sea transport whichhas yet failed to prove its worth for the very mode forwhich it appears to have been specifically designed, andwhose chances of eliminating the chaos prevailing in seatransport already appear very thin, judging from the dis-cussions held during previous sessions of UNCITRAL.

5. The IRU takes this opportunity to inform UNCITRALthat, when trucks carrying goods or containers are trans-ported by sea, the CMR Convention (Convention on theContract for the International Carriage of Goods by Road),by virtue of its article 2, also applies to the sea leg shouldany loss, damage or delay in delivery occur during the seacarriage, unless a bill of lading was issued. Given that sucha bill of lading is virtually never drawn up for goods andcontainers loaded onto trucks, road transport operationsincluding a sea leg remain subject to the CMR Convention,whose provisions foresee a liability limit of SDR 8.33 perkilo of gross weight short. In the event of a delay result-ing from the sea transport operation, the road carrier shallpay compensation for such damage not exceeding the car-riage charges.

The IRU is committed to extending the liability limits setby the CMR Convention to all multimodal transport oper-ations performed by road carriers.

ANNEX

Questionnaire

1. Do you feel that it would be helpful to have a single liabil-ity scheme applicable to door-to-door shipments which involvean overseas leg?

2. If so, why?

3. Should the same law be applicable to the entire transport ofthe goods, both on land and sea?

4. Should all of the participants in the door-to-door carriage ofthe cargo, including stevedores, terminal operators, truckers, rail-road, warehouses and others, be subject to the same liabilityregime as the ocean carrier?

5. Should the participants in door-to-door carriage, such as thestevedores, terminal operators, truckers, railroads, warehouse andothers be subject to direct claims by cargo interests or their under-writers under a single multi-modal regime for damage caused bythe particular participant?

6. In the event that existing conventions apply to land transport,such as the Convention on the International Carriage of Goods

by Road (CMR), should those conventions continue to control theliability of the land carrier when the land carrier is involved inthe carriage of goods over sea and land, or could the land car-rier under certain circumstances be subject to the same liabilityregime as the ocean carrier?

7. What advantages, if any, do you see in applying a uniform lia-bility regime to both land and sea transport in multi-modal carriage?

8. What problems are commonly experienced today, if any, asa result of the existing system of liability regimes for door-to-door carriage of goods?

9. Do you perceive any advantages to the industry if cargo inter-ests or their underwriters are given the opportunity to make aclaim directly against the subcontractor of the carrier who issuesthe bill of lading for damage or loss that occurred whilst in thesubcontractor’s custody?

10. Please take this opportunity to indicate if you have any fur-ther comments or observations in respect to the instrument as cur-rently drafted by UNCITRAL.

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Part Two. Studies and reports on specific subjects 557

H. Working paper submitted to the Working Group on Transport Law at its eleventh session: Preparation of a draft instrument on the carriage of goods

[by sea]: General remarks on the sphere of application of the draft instrument

(A/CN.9/WG.III/WP.29) [Original: English]

NOTE BY THE SECRETARIAT

CONTENTS

Paragraphs

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-9

I. Current industry position and desirability of a door-to-door regime . . . . . . . . . . . 10-42

A. Current relevant trade practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-16

B. The trade realities: Weight and value of trade using door-to-door contracts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-19

C. Current maritime contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20-23

D. Extent of current door-to-door practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24-26

E. Industry desire for a single door-to-door contract . . . . . . . . . . . . . . . . . . . . . . 27-34

F. Industry desire for more than a liability regime. . . . . . . . . . . . . . . . . . . . . . . . 35-36

G. Positions of different industry players. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37-40

H. Current accommodation of door-to-door contracts . . . . . . . . . . . . . . . . . . . . . . 41

I. Problems in respect of door-to-door contracts that are not addressed by contractual or legal regimes . . . . . . . . . . . . . . . . . . . . . . . . . 42

II. Current regimes and feasibility of door-to-door coverage and, in particular, of the network approach. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43-110

A. The scope and period of application of each of the transport conventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48-61

1. The Draft Instrument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48-53

2. CMR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54-55

3. COTIF-CIM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56-58

4. CMNI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

5. Warsaw Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

6. Montreal Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

B. Possible application of competing conventions in respect of claimsof the shipper or consignee against the door-to-door carrier. . . . . . . . . . . . . . 62-71

1. CMR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62-64

2. COTIF-CIM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65-68

3. CMNI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69-70

4. Warsaw and Montreal Conventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

C. Possible application of competing conventions on issues outside of carrier’s liability, limitation of liability, and time for suit . . . . . . . . . . . . . 72-105

1. Obligations and liability of the shipper for damage caused by the goods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-78

2. Obligations of the shipper to furnish information . . . . . . . . . . . . . . . . . . . 79-84

3. Transport documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85-89

4. Freight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90-92

5. Right of control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93-99

6. Delivery of the goods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100-104

7. Transfer of rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

D. Possible application of competing conventions in respect of recourse actions of the door-to-door carrier against a performing carrier . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106-107

E. Possible application of competing conventions in respect of claims of the shipper or consignee against the performing carrier. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108-110

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558 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIV

INTRODUCTION

1. In 2001, at its thirty-fourth session, the Commissiondecided that the scope of the work in relation to TransportLaw should include issues of liability. It also decided thatthe considerations in the Working Group should initiallycover port-to-port transport operations; however, the WorkingGroup would be free to study the desirability and feasibilityof dealing also with door-to-door transport operations, or cer-tain aspects of those operations and, depending on the resultsof those studies, recommend to the Commission an appro-priate extension of the Working Group’s mandate.1

2. At its ninth session, the Working Group on TransportLaw devoted much attention to the issue of whether theperiod of responsibility of the carrier pursuant to the DraftInstrument (Preliminary Draft Instrument on the Carriage ofGoods by Sea, A/CN.9/WG.III/WP.21) should be restrictedto port-to-port transport operations or whether, if the con-tract of carriage also included land carriage before and/orafter the sea carriage, the Draft Instrument should cover theentirety of the contract (i.e. the door-to-door concept). Uponconclusion of the exchange of views, the Working Groupconsidered that it would be useful for it to continue its dis-cussions of the Draft Instrument under the provisional work-ing assumption that it would cover door-to-door transportoperations (A/CN.9/510, paragraphs 26-32).

3. At its thirty-fifth session, in 2002, the Commission,after discussion, approved the working assumption that the

Draft Instrument should cover door-to-door transport oper-ations, subject to further consideration of the scope ofapplication of the Draft Instrument after the WorkingGroup had considered the substantive provisions of theDraft Instrument and come to a more complete under-standing of their functioning in a door-to-door context.2

4. At its tenth session, the Working Group deferred itsconsideration of the article in the Draft Instrument on theperiod of responsibility to the next session due to theabsence of sufficient time (A/CN.9/525, paragraphs 27 and123). However, it was agreed that the secretariat wouldprepare a background paper discussing the advantages anddisadvantages of the port-to-port versus the door-to-doorapproach, particularly in light of current and future indus-try needs and practice.

5. This background paper accordingly addresses thedesirability and feasibility of dealing with door-to-doortransport operations in the Draft Instrument.

6. In this paper, reference is made at various points tothe following international instruments:

(a) the International Convention for the Unification ofCertain Rules of Law Relating to Bills of Lading, andProtocol of Signature, Brussels 1924 (the Hague Rules);

(b) the International Convention for the Unification ofCertain Rules of Law Relating to Bills of Lading, Brussels1924 as amended by the 1968 and 1979 Protocols (theHague-Visby Rules);

Paragraphs

III. Advantages and disadvantages of general door-to-door coverage and of the Draft Instrument’s network system . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111-118

IV. Differences between non-maritime and maritime approaches to the carriage of goods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119-124

V. Proposed solutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125-185

A. Convention or Model Rules? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126-129

B. Fast-track and slow-track approaches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130-131

C. Options that preserve the network principle . . . . . . . . . . . . . . . . . . . . . . . . . . . 132-153

1. “Unimodal Plus” approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133-137

2. The Canadian proposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138-149

a) Option 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139-140b) Option 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141-143c) Option 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144-149

3. The Swedish proposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150-153

D. The Italian proposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154-158

E. Options based on the treatment of performing parties . . . . . . . . . . . . . . . . . . . 159-185

1. Option 1 – Basic principles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166

2. Option 1 – Commentary on the basic principles . . . . . . . . . . . . . . . . . . . . 167-176

3. Option 2 – Basic principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177

4. Option 2 – Commentary on the basic principle. . . . . . . . . . . . . . . . . . . . . 178-180

5. Option 3 – Basic principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181

6. Option 3 – Commentary on the basic principle. . . . . . . . . . . . . . . . . . . . . 182-185

1Official Records of the General Assembly, Fifty-sixth Session,Supplement No. 17 (A/56/17), para. 345. 2Ibid., Fifty-seventh Session, Supplement No. 17 (A/57/17), para. 224.

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Part Two. Studies and reports on specific subjects 559

(c) the United Nations Convention on the Carriage ofGoods by Sea, 1978 (the Hamburg Rules);

(d) the United Nations Convention on InternationalMultimodal Transport of Goods, Geneva, 24 May 1980 (theMultimodal Convention);

(e) the Convention on the Contract for theInternational Carriage of Goods by Road, 1956 as amendedby the 1978 Protocol (the CMR);

(f) the Budapest Convention on the Contract for theCarriage of Goods by Inland Waterways, 2000 (the CMNI);

(g) the Uniform Rules Concerning the Contract forInternational Carriage of Goods by Rail, Appendix B tothe Convention Concerning International Carriage by Rail,as amended by the Protocol of Modification of 1999 (theCOTIF-CIM 1999);

(h) the Convention for the Unification of CertainRules Relating to International Carriage by Air, signed atWarsaw on 12 October 1929, as amended by the Protocolsigned at The Hague on 28 September 1955 and by theProtocol No. 4 signed at Montreal on 25 September 1975(the Warsaw Convention); and

(i) the Convention for the Unification of CertainRules for International Carriage by Air, 1999 (the MontrealConvention).

7. The Draft Instrument is intended to govern “contractsof carriage”, in which, under article 3.1, the place of receiptand the place of delivery are in different States, and whichsatisfy certain additional conditions. Article 1.5 defines a“contract of carriage” as “a contract under which a carrier,against the payment of freight, undertakes to carry goodswholly or partly by sea from one place to another.” Article1.1 also defines the “carrier” by reference to the contractof carriage, and article 1.19 defines the “shipper” in sim-ilar fashion.

8. Thus, the Draft Instrument follows a contractualapproach. It applies to a certain type of contract with spe-cific economic and operational characteristics. This type ofcontract involves the carriage of goods wholly or partly bysea, which in current practice frequently calls for door-to-door carriage. This means that the goods may be carriednot only by seagoing ships, but also by other modes oftransport preceding and/or subsequent to the sea carriage.The Draft Instrument’s proposed application to door-to-door contracts of carriage has been described as a “mar-itime plus” approach, since the common factor for theapplication of the Draft Instrument is a sea leg.

9. Whether or not a door-to-door approach is ultimatelyretained, it may be noted that neither the contractualapproach nor the Draft Instrument’s proposed door-to-doorscope of application (in which ancillary modes of carriageare to some extent covered by an otherwise unimodal con-vention) is unique. Most of the existing international trans-port conventions follow the contractual approach, to agreater or lesser degree, and several of them also apply toancillary modes of carriage. For example, the Warsaw andMontreal Conventions address ancillary pick-up and deliv-ery services, and the CMR addresses the case in which aroad vehicle is carried on a ship or a rail car. More directly

to the point, the COTIF-CIM calls for the application ofthe rail rules in cases in which road or inland waterwaycarriage supplements rail carriage, and the CMNI addressescases in which sea carriage and inland waterway carriageare combined. The scope of application of these other inter-national transport conventions is considered in greaterdetail in section II below, following an examination of thecurrent industry position, and the desirability of a door-to-door regime for contracts of carriage set forth in section I.Section III of the following discussion notes some of theadvantages and disadvantages of a door-to-door approach,and of the network system in particular. In section IV ofthe paper, some of the differences between non-maritimeand maritime approaches to the carriage of goods are exam-ined, and, finally, section V sets out general and more spe-cific solution that may be considered by the WorkingGroup.

I. CURRENT INDUSTRY POSITION AND DESIRABILITY OF A DOOR-TO-DOOR REGIME

10. In order for the Working Group to decide whetherit is desirable to extend the scope of the Draft Instrumentto cover door-to-door transport operations, it is necessaryto provide some background on the way in which theindustry currently operates. The following section sets outnine specific issues that are particularly relevant in thisregard: (1) the current relevant trade practices in the mar-itime transport of goods; (2) the trade realities of maritimetransport, particularly the proportions in weight and valueof the trade that are in the form of door-to-door contracts;(3) how the industry is dealing with maritime contractstoday; (4) to what extent the current trade practice is door-to-door; (5) to what extent industry is requesting a singlecontract for door-to-door carriage of goods; (6) the extentto which industry is requesting more than a liabilityregime, for example, whether industry is asking for theinclusion of certain provisions in contracts and documents;(7) the positions of different industry players on the issuesof extending the scope of the Draft Instrument to door-to-door coverage; (8) how current practice in the maritimeshipping industry is accommodating door-to-door con-tracts, to the extent that they exist; and (9) any problemsthat arise in industry with respect to door-to-door contractsthat are not currently addressed by contractual or legalregimes.

11. The following section of this paper discusses thesematters and provides background information to them inas complete a fashion as possible. However, it must benoted that the statistical information available in order toaddress these issues was very limited. The informationobtained in order to provide the background for these issueswas generalised, but based on very broad experienceregarding current industry practice.

A. Current relevant trade practices

12. Current trade practices differ as between the so-called“bulk” trades and the general cargo trades. The bulk tradesare further divided in the “wet” and “dry” bulk trades.Carriage of goods in the general cargo trades—apart from

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560 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIV

the carriage of forest products, steel, vehicles on special-ized car/vehicle-carrying ships, and project cargo3—isalmost completely containerized, at least with respect tocarriage between ports that are equipped to handle suchcontainers. The wet bulk trades relate predominantly to thecarriage of oil and its derivatives, and of chemicals.

13. In addition to the above distinctions, there is therefrigerated, or so-called “reefer” trade, which is furtherdivided into the reefer ship trade, where the entire holdsof the vessel are temperature-controlled, and the reefer con-tainer trade, where temperature control is limited to indi-vidual containers. For the purposes of this paper, thewhole-ship trade is categorized as dry bulk, while the reefercontainer trade is treated as containerized transport.

14. In general, the bulk trades are conducted on the basisof charter parties, under which ships are engaged eitheron a time or on a voyage basis. Bills of lading are thenoften issued for the carriage of the various cargoes car-ried under the charter party. The nature of the cargoes car-ried usually dictates the period of the ship’s responsibilityfor the cargo. As such, almost without exception, theperiod of the ship’s responsibility for the cargo from load-ing to discharge is often referred to as “tackle-to-tackle”in the dry bulk trades and as “ship’s manifold to ship’smanifold” in the wet bulk trades.

15. The general cargo trades—primarily, the containertrades—are predominantly conducted on the basis of billsof lading or comparable documents, which may or may notbe transferable or negotiable.

16. Because goods in containers can be transferred fromone means of conveyance to another without beingunloaded from the container, the practice in the containertrades is for the goods to be received for carriage and deliv-ered after carriage at a location that is physically removedfrom the ship’s side. This location may be the shipper’sfactory or the consignee’s warehouse, or an inland depotor a terminal within the port area. Generally speaking, itis therefore primarily in the container trades that the pos-sibility of door-to-door transport exists.

B. The trade realities: weight and value of tradeusing door-to-door contracts

17. Container liner operators have been unable to pro-vide precise information concerning the proportions inweight and value of trade involving door-to-door contracts.From their perspective, the value of the commodities withinthe containers is not a key financial parameter. Indeed, theliner operator usually has no means of knowing the valueof the goods, nor is it necessary that such information bedeclared to the carrier. From the perspective of cargo inter-ests, information such as the value of the goods is oftencommercially sensitive. The weight of a container, on the

other hand, is a very important factor in the loading andstowage of a container ship, but it is not information thatneeds to be recorded or collated for other purposes.

18. Having noted the above, a particularly reliable sourceof information may be found in the data collected by theMaritime Administration of the Department ofTransportation of the United States of America, and pub-lished as the “U.S. Foreign Waterborne TransportationStatistics”4. These data show that the container liner indus-try carried 68% of the value of all U.S. foreign waterbornecargo in 2001, namely, a value of US$490 billion out ofa total of US$720 billion. Further, it has been estimatedthat at least 75 to 80% of the containers in U.S. trade werecarried on a door-to-door basis. From a global perspective,world port container throughput reached 225.3 millionmoves in 2000,5 principally between Asia, Europe andNorth America, however there were significant flowswithin all regions. World seaborne trade is expected todouble from 1997 to 2006 to around 1 billion tons,6 andmost of this containerized cargo will involve multiplemodes of transport in a door-to-door carriage.

19. The overall tonnage of dry bulk cargo (which israrely carried on a door-to-door basis) is estimated to beroughly twice the tonnage of containerized cargo (which isregularly carried on a door-to-door basis). The total valueof the cargo carried in containers is nevertheless signifi-cantly higher than that of the dry bulk cargo. One expla-nation for this result is the high proportion of relativelyvaluable consumer goods carried in containers. The freight-to-weight ratio of containerized cargo is thought to beabout 15 times that of dry bulk cargo.

C. Current maritime contracts

20. The contracts in use today in the carriage of goodsby sea depend upon the particular trade in issue. Whilecontracts on a tackle-to-tackle or manifold-to-manifoldbasis dominate the bulk trades, bills of lading on a tackle-to-tackle basis have virtually disappeared from the generalcargo trades (save for those non-containerised commodi-ties to which reference has already been made). Thisreflects the reality that, in the container trades, the hand-over between cargo and carrier takes place away from theship’s side. The container trades are therefore conductedon the basis of either port-to-port or door-to-door bills oflading, or some combination of the two. In fact, receipt ordelivery of cargo on a port-to-port basis takes place at acontainer terminal situated within the port area, oftenreferred to as a “container yard” (CY). Strictly speaking,such traffic should be described as “terminal-to-terminal”and, indeed, some carriers expressly accept responsibilityto and from these points.

21. Alternatively, receipt and delivery of cargo may takeplace at some inland point, which may be near to, or faraway from, the port. This inland point may be referred toas a “container freight station” (CFS). They are also often

4Published electronically at http://www.marad.dot.gov/marad_statistics5Containerization International Yearbooks.6UNCTAD Review of Maritime Transport, 1997, 13.

3Project cargo may be described as goods and materials in non-stan-dard packages moved by non-standard methods to or from non-standarddestinations. Due to the project nature of the cargo, it is often highlytime-sensitive, and significant losses can result in terms of the overallproject if materials arrive late, incomplete or damaged at their ultimatedestination.

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Part Two. Studies and reports on specific subjects 561

referred to as “depots,” or more particularly as “inland con-tainer depots” (ICDs). Many container freight stations andinland container depots have facilities for customs clear-ance, and they are usually operated by the carriers or theirsubcontractors, rather than by the cargo interests.

22. Depot-to-depot traffic is not the same as door-to-doortraffic. The “doors” referred to in the door-to-door descrip-tion belong not to the carrier but to the cargo interests. Inan export shipment, for example, cargo may be handed overto the carrier at the point of manufacture—the shipper’s“door”—and, for import cargo, the carrier may deliver it ata warehouse or even some point of distribution—the con-signee’s “door.” Within this matrix, various combinationsare also possible, such as port-to-door and door-to-port, allof which are included in the general door-to-door categoryin the discussion below in paragraphs 24 to 26.

23. It is important to note this distinction between depot-to-depot transport and door-to-door transport. Since depot-to-depot carriage refers to carriers rather than to cargointerests, a depot-to-depot scope of application in the newinstrument would not provide consignors of goods with theability to contract for the movement of their containersfrom door-to-door under a single contract.

D. Extent of current door-to-door practice

24. The extent of the current maritime trade practice thatis door-to-door is, of course, relevant primarily with respectto the container trades. The figures discussed below willinclude both pure door-to-door traffic and the door-to-portand port-to-door variants discussed above in paragraph 22.It is, however, very difficult to generalize, as conditions varyfrom one trade lane to another. In addition, figures may varyfrom carrier to carrier. Some carriers, having extended theiroperations into forwarding and logistics services, issue ahigher proportion of door-to-door bills. Other carriers arecontent to concentrate upon port-to-port services, leaving itto the cargo interests and their freight forwarders and logis-tics providers to handle the inland transport.

25. Of the 60 million containers carried worldwide in theyear 2000, container liner operators carried 50% of themon a multimodal basis. Some countries report a higher per-centage: for example, in the United States of America, 75to 80% of container carriage is on a multimodal basis. Asbetween the individual container liner operators, these fig-ures vary. Thus, one major liner operator estimated theworldwide figure to be 25%, while the figure in other geo-graphical areas, such as in the United States trades, wasestimated to be 40 to 50%. In the Asian trades, the dom-inant mode for the liner operator is port-to-port; the sameapplies to the Australasian, the Indian subcontinent, theAfrican, and the Latin American trades. Europe is moremixed. In the UK, the trade is 50% door-to-door, particu-larly on the import side, whereas, in Germany, Austria, andSwitzerland, the door-to-door proportion for container lineroperators drops to around 25%.

26. Freight forwarders may reduce the estimated door-to-door proportion in the container trades when the ques-tion is considered solely from the perspective of thecontainer liner operators, but they in fact raise the propor-

tion significantly when the question is considered from theperspective of the ultimate customer. When a freight for-warder acts as a non-vessel operating carrier (NVOC) itwill almost always contract on a door-to-door basis.Accordingly, the proportion of door-to-door shipments issignificantly higher from the cargo interests’ perspectivethan it is from the perspective of the container liner oper-ators. In many cases, the container liner operator will carrythe cargo on behalf of an NVOC on a port-to-port basis,but the NVOC will have contracted with the cargo owneron a door-to-door basis.

E. Industry desire for a single door-to-door contract

27. The question of the desire of industry for a singledoor-to-door contract for the entire carriage depends lessupon the intellectual tidiness of a single contract than uponthe interplay of market forces. Whether the inland carriageis handled by the ocean carrier or by its customer willdepend largely upon two things: the service that the cus-tomer requires and the price that is charged. For example,a major shipper that wants empty containers available forloading on a round-the-clock basis will not contract witha carrier whose focus is on port-to-port operations, nor willa merchant contract for carrier haulage if it believes thatit can arrange inland transport more cheaply by using itsown contractors. For this reason, major shippers willrequire carriers submitting tenders for door-to-door trafficto break down the cost estimates sector by sector.

28. As a result, the container trades have been conductedfor a decade or more on the basis of so-called “combinedtransport” bills of lading, which can be used for both port-to-port and door-to-door traffic. The COMBICONBILLform,7 a combined transport bill of lading adopted by theBaltic and International Maritime Council (BIMCO) orig-inally in 1971, and updated in 1995, offers a useful illus-tration of the type of form used by many container lineroperators.

29. Under the COMBICONBILL form, the carrieraccepts responsibility in accordance with clauses 9, 10, and 11. Clause 9 provides:

“(1) The Carrier shall be liable for loss of or damage tothe goods occurring between the time when he receivesthe goods into his charge and the time of delivery.

“(2) The Carrier shall be responsible for the acts andomissions of any person of whose services he makesuse for the performance of the contract of carriage evi-denced by this Bill of Lading.

“(3) The Carrier shall, however, be relieved of liabil-ity for any loss or damage if such loss or damage aroseor resulted from:

(a) The wrongful act or neglect of the Merchant.

(b) Compliance with the Instructions of the personentitled to give them.

7Published electronically at http://www.bimco.dk/BIMCO%20Documents/bl.asp.

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(c) The lack of, or defective conditions of packingin the case of goods which, by their nature, are liableto wastage or to be damaged when not packed or whennot properly packed.

(d) Handling, loading, stowage or unloading of thegoods by or on behalf of the Merchant.

(e) Inherent vice of the goods.

(f) Insufficiency or inadequacy of marks or num-bers on the goods, covering, or unit loads.

(g) Strikes or lock-outs or stoppages or restraints oflabour from whatever cause whether partial or general.

(h) Any cause or event which the Carrier could notavoid and the consequence whereof he could not pre-vent by the exercise of reasonable diligence.”

30. Clause 10(3) limits compensation to two SpecialDrawing Rights, or SDRs, per kilo of gross weight of thegoods lost or damaged (except in the U.S. trade, wherethe limitation amount is $500 per package pursuant toclause 24).

31. Clause 11 then introduces the classic “network” prin-ciple in respect of any loss or damage identified as havingoccurred during a specific stage of the transport, givingprecedence to any mandatory convention or national lawthat would have applied to the contract had a separate con-tract been made between carrier and cargo interests for thatspecific leg of the journey. In the case of carriage of goodsby sea, the Hague-Visby Rules apply when no mandatoryinternational convention or national law is applicable underclause 11(1). The clause is worded as follows:

“(1) Notwithstanding anything provided for in Clauses9 and 10 of this Bill of Lading, if it can be proved wherethe loss or damage occurred, the Carrier and theMerchant shall, as to the liability of the Carrier, be enti-tled to require such liability to be determined by theprovisions contained in any international convention ornational law, which provisions:

(a) cannot be departed from by private contract, tothe detriment of the claimant, and

(b) would have applied if the Merchant had madea separate and direct contract with the Carrier in respectof the particular stage of transport where the loss ordamage occurred and received as evidence thereof anyparticular document which must be issued if such inter-national convention or national law shall apply.

“(2) Insofar as there is no mandatory law applying tocarriage by sea by virtue of the provisions of subclause11(1), the liability of the Carrier in respect of any car-riage by sea shall be determined by the InternationalBrussels Convention 1924 as amended by the Protocolsigned at Brussels on February 23rd 1968—TheHague/Visby Rules. …”

32. Since the introduction of the United NationsConference on Trade and Development/InternationalChamber of Commerce Rules for Multimodal TransportDocuments (UNCTAD/ICC Rules) in 1992, BIMCO hasdeveloped a new form of Multimodal Bill of Lading, under

the trade name MULTIDOC 95.8 Under this form, as underthe COMBICONBILL, the multimodal transport operator(MTO) is responsible for the goods from the time it takescharge of the goods until the time of their delivery but theextent of the liability is expressed differently. Clause 10(b)of MULTIDOC 95 provides:

“Subject to the defenses set forth in Clauses 11 and 12,the MTO shall be liable for loss of or damage to theGoods as well as for delay in Delivery, if the occur-rence which caused the loss, damage or delay inDelivery took place while the Goods were in his chargeas defined in subclause 10(a), unless the MTO provesthat no fault or neglect of his own, his servants or agentsor any other person referred to in subclause 10(c) hascaused or contributed to the loss damage or delay inDelivery. …”

Clause 11 then applies the Hague-Visby Rules in relationto loss or damage arising during carriage by water. Clause12 provides for the Hague-Visby limits of liability to applyexcept when the Carriage of Goods by Sea Act of theUnited States of America applies.

33. There is an increasing tendency for a freight for-warder or logistics provider to issue a door-to-door bill oflading in its own name, thus acting as an NVOC. NVOCsoften contract on the International Federation of FreightForwarders Associations (FIATA) multimodal bill oflading form. This form also incorporates the UNCTAD/ICC Rules of 1992 and the “network” principle. TheNVOC may then take a port-to-port (or a door-to-door) billof lading from the container liner operator, under which itor an affiliate will be both the shipper and the consignee.

34. In sum, the transport industry has responded to thestrong demand for door-to-door carriage with a variety ofcontract forms, and these forms are regularly used.Although it is impossible to quantify precisely how oftena shipper requests a single contract door-to-door, it isknown to be at least a majority of the time.

F. Industry desire for more than a liability regime

35. There is an increasing tendency worldwide, for cargointerests to seek from their carriers more than just a lia-bility regime. Cargo interests particularly want practicaland commercial provisions, covering the frequency of serv-ice, the ports to be served directly (i.e. without transship-ment), the availability of empty containers, penalties forlate deliveries, and guarantees of rates. In some countries,such as the United States of America, these arrangementsare now predominantly embodied in what are called “serv-ice contracts”. An additional advantage of service contractsis that the rates agreed in them remain confidential to theparties. The use of service contracts appears to be increas-ing: for example, approximately 80 to 85% of containertraffic in the United States is now thought to move underthese arrangements.

8Published electronically at http://www.bimco.dk/BIMCO%20Documents/bl.asp.

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Part Two. Studies and reports on specific subjects 563

36. In other parts of the world, agreements between ship-pers and carriers vary in form and are generally less formal.These contracts tend to be called “ocean transportation con-tracts.” Overall, the trend toward ocean transportation con-tracts is increasing worldwide, and their the focus is oncommercial content, such as provisions on the frequencyof service, price, timeliness, and the like.

G. Positions of different industry players9

37. The increasing trend toward ocean transportationcontracts is evidence that both cargo interests and carri-ers see benefits in their use, particularly in stabilising therelationships between the parties. But on other issues, theparties are divided. Some major multinational shippershave been putting carriers under pressure to change theirstandard bill of lading terms. The demands tend to focuson:

(a) the amount of the package limitation (currently666.67 SDRs per package or 2 SDRs per kilo in general,and US$500 per package or unit in the U.S. trades); and

(b) the Hague Rules defenses, particularly that oferror in the navigation or management of the ship.

38. The cargo interests are asking for increased limits ofliability, up to the full value of the goods, and that the car-rier accept liability for any loss or damage arising from itsfault or that of its subcontractors. In general, the carriersare resisting these demands. When these demands havebeen met, the carriers have had to buy additional liabilityinsurance, the cost of which they then seek to pass on tothe shippers. Shippers may be willing to meet this cost,because the administrative convenience and potential sav-ings could outweigh it.

39. On the carrier side, a few principal issues have beenidentified as problematic under the contracts of carriagepresently in use. These include the following:

(a) There is no obligation upon the cargo interestsunder the present contracts, or under the general law, totake delivery of the cargo when the carrier tenders deliv-ery at the contractual destination. In view of the speedinherent in container operations, delay by cargo interestsin taking delivery of cargo usually leads to additional costand inconvenience. Carriers therefore see a need for pro-visions along the lines of those in articles 10.1 and 10.3of the Draft Instrument.

(b) The carriers’ rights with respect to the goods arenow regulated, if at all, by the provisions of the bills oflading and by applicable national law. Carriers feel that itwould be beneficial to have an agreed international regimegoverning the circumstances in which the carrier could

exercise rights over the goods (including the right to sellthem when necessary). The Draft Instrument addressesthese issues in articles 9.5 and 10.4.

(c) Existing conventions provide little guidance on thecargo interests’ obligations to the carriers, including lia-bility for damages caused by the cargo. Provisions address-ing these issues on a uniform and predictable basis wouldbe very valuable.

(d) The carriers’ rights with respect to qualifying thedescription of the goods vary from jurisdiction to jurisdic-tion, and are unclear in many jurisdictions. For example,when can a carrier qualify a bill of lading description withthe statement “shipper’s load and count”? The answer isoften unclear, and clear guidance would avoid many prob-lems.

(e) Jurisdiction is now governed in part by the termsof the bill of lading and by the law of the court seized ofthe case. This can give rise to conflict. The addition to theDraft Instrument of provisions regarding jurisdiction wouldbe welcomed.

40. In addition to these more general concerns, other spe-cific issues are important to carriers in particular markets.For example, in the U.S. trade, the right to limit liabilityis of particular importance to carriers. It is thus importantto carriers in the U.S. trade that the Draft Instrument con-tains a provision carefully defining when the package lim-itation may be broken.

H. Current accommodation of door-to-door contracts

41. In view of the multiplicity of conflicting regimes,both between different modes of transport and, in the caseof carriage by sea, within the same mode, it is not sur-prising that the transport industry has developed its ownpragmatic solutions (some of which have been describedabove in paragraphs 27 to 34). Views differ as to how wellthese pragmatic solutions are working. While internationaltrade continues to function despite the lack of uniformity,there are also well-recognized defects in the system thatcould be corrected with a uniform regime (see above, para-graphs 37 to 40, and below, paragraph 42).

I. Problems in respect of door-to-door contracts that are not addressed by contractual or

legal regimes

42. Some of the major problems in current use of door-to-door contracts were outlined above with respect to sec-tion G, but this is not an exhaustive list. Both carriers andcargo interests agree, for example, that the legal regimeshould facilitate future developments in electronic com-merce, which may also include the question of which partyis in control of the goods during carriage in cases whereno (paper) document is issued. There is also agreement thatcurrent contractual and legal regimes are inadequate toresolve a number of other issues that arise in conjunctionwith the bill of lading or other transport document, includ-ing issues relating to the legal effect of the document, therights that arise under the document, and how these rightsmay be transferred.

9See also A/CN.9/WG.III/WP.28 for a compilation of responses fromindustry representatives to the questionnaire circulated by the secretariatand additional comments regarding the scope of the Draft Instrument,as well as Annexes I and II to the Report of the Working Group III(Transport Law) on the work of its tenth session (Vienna, 16-20September 2002) (A/CN.9/525). Also, see the recent report by theUNCTAD secretariat, “Multimodal Transport: The Feasibility of anInternational Legal Instrument”, UNCTAD/SDTETLB/2003/1, a sum-mary of which is available for the information of the Working Groupas A/CN.9/WG.III/WP.30.

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II. CURRENT REGIMES AND FEASIBILITY OF DOOR-TO-DOOR COVERAGE AND, IN

PARTICULAR, OF THE NETWORK APPROACH10

43. The principal difficulty in achieving door-to-doorcoverage with a new international convention is the priorexistence of potentially conflicting national laws and inter-national conventions that already govern various segmentsof the door-to-door carriage. It is likely that some of thesepotential conflicts would be resolved by the very creationof a new regime: presumably a State’s decision to ratifyany new convention would include the decision to super-sede the Hague, Hague-Visby, or Hamburg Rules, as thecase may be.11 Other existing regimes, however, are moreproblematic, and any consideration of the feasibility ofdealing with door-to-door transport operations must con-sider possible conflicts between the Draft Instrument andother existing regimes.

44. The one non-maritime transport convention in forcewith world-wide application is the Warsaw Convention(which was amended by the 1955 Hague Protocol and bythe 1975 Montreal Protocol No. 4), governing carriage byair. In addition, reference may be had to the MontrealConvention 1999, which also governs carriage by air,although that Convention is not yet in force. However, itshould be noted that the combination of sea transport andair transport is not a common form of door-to-door transport.

45. There are a number of regional conventions relatingto road, rail, and inland waterway transportation.Predominantly in Europe, the CMR regulates carriage byroad, the COTIF-CIM regulates carriage by rail, and theCMNI regulates carriage by inland waterway. Two regionalmultimodal regimes exist in South America (for theAndean Community12 and Mercosur13), and it appears thatthere will soon be an ASEAN Framework Agreement onMultimodal Transport for its ten members in Asia. In addi-tion, a number of States have national laws that addressone or more modes of transport.

46. The following discussion will address potential con-flicts between the Draft Instrument and five other conven-tions. The Warsaw and Montreal Conventions are includedas non-maritime transport conventions with worldwide appli-cation. The predominantly European transport conventionsare included because they are long-established and affect alarge number of countries, including a number of non-European countries that have ratified, for example, the CMR.

47. The analysis of the possible conflicts begins with adescription of the scope and period of application of eachinstrument under consideration. The possible conflict ofconventions will then be considered, first, in respect ofclaims of the shipper or consignee against the contractingcarrier (the “door-to-door carrier”); next, with respect tothe recourse action of the door-to-door carrier against thecarrier to whom the door-to-door carrier has entrusted theperformance of one or more legs of the carriage (the “per-forming carrier”); and, finally, regarding claims of the ship-per or consignee against the performing carrier.

A. The scope and period of application of each of the transport conventions

1. The Draft Instrument

48. Pursuant to articles 3.1 and 4.1.1, the provisions ofthe Draft Instrument apply from the time when the carrierhas received the goods until the time when the goods aredelivered to the consignee if the parties have entered intoa “contract of carriage” (which is limited to a contract per-formed wholly or partly by sea) in which the place ofreceipt and the place of delivery are in different States andone of them is in a Contracting State. They also apply ifthe contract of carriage provides that the provisions of theDraft Instrument (or the law of any State giving effect tothem) are to govern the contract.14

10A comparative table has been prepared by Professor Berlingieri ofthe Italian delegation (A/CN.9/WG.III/WP.27). The table compares pro-visions of the Draft Instrument with other maritime texts such as theHague-Visby Rules, the Hamburg Rules, and the Multimodal Convention,as well as other conventions in the fields of road, rail and air transportsuch as the CMR, CMNI, COTIF-CIM 1999, the Warsaw Convention,and the Montreal Convention.

11In light of this likelihood, the relevant provisions of the Hague,Hague-Visby and Hamburg Rules, as well as those of the MultimodalConvention, will be outlined in footnotes to the text that follows.

12Decision 331, Multimodal Transportation.13International Multimodal Transport Agreement between Mercosur

States Parties, Decision No. 15/94, Signed in Ouro Preto, 17 December1994.

14Pursuant to articles 10 and 1(e), the Hague Rules apply from thetime when the goods are loaded on to the time they are discharged fromthe ship, or for tackle-to-tackle carriage, provided that a bill of lading isissued in any of the Contracting States. Matters outside of liability issuesare dealt with only to a limited extent.

Pursuant to articles 10 and 1(e), the Hague-Visby Rules apply fromthe time when the goods are loaded on to the time they are dischargedfrom the ship, or for tackle-to-tackle carriage, provided that a bill of ladingis issued relating to “the carriage of goods between ports in two differ-ent States if: (a) such bill of lading is issued in a Contracting State, or(b) the carriage is from a port in a Contracting State, or the contract con-tained in or evidenced by the bill of lading provides that the rules of thisConvention” are to govern the contract. With regard to liability issues,the Hague-Visby Rules deal with matters other than liability issues onlyto a limited extent.

Pursuant to articles 2, 4 and 1, the Hamburg Rules cover the periodduring which the carrier is in charge of the goods at the port of loading,during the carriage, and at the port of discharge, or for port-to-port car-riage, provided that the parties have entered into a contract for carriageby sea (limited to the sea portion of carriage even where the contractinvolves another means of carriage) between two different States in whichthe port of loading or discharge is in a Contracting State, or where thebill of lading or other document evidencing the contract of carriage isissued in a Contracting State. The Hamburg Rules also apply if the billof lading or other document evidencing the contract of carriage by seaprovides that the provisions of the convention are to govern the contract.Note that the Hamburg Rules include a conflict of conventions provisionat article 25.5: "Nothing contained in this Convention prevents aContracting State from applying any other international convention whichis already in force at the date of this Convention and which applies manda-torily to contracts of carriage of goods primarily by a mode of transportother than transport by sea. This provision also applies to any subsequentrevision or amendment of such international convention.” Matters otherthan liability issues receive somewhat more attention than they do in theHague-Visby Rules.

Pursuant to articles 2, 4 and 1, the Multimodal Convention covers theperiod from the time the multimodal transport operator takes charge ofthe goods to the time of their delivery, and applies to all contracts ofmultimodal transport, i.e. where the carriage is conducted by at least twodifferent modes of transport under a single multimodal contract, providedthat the carriage is international and the place for taking charge of the

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Part Two. Studies and reports on specific subjects 565

49. Pursuant to articles 6.3.1 and 6.3.3, the provisions ofthe Draft Instrument apply (at least in so far as the respon-sibilities and liabilities imposed on the carrier and its rightsand immunities are concerned) to all “performing parties”(as defined in article 1.17) and, therefore, to all subcarri-ers in respect of any action brought against them by theshipper or consignee (although this broad coverage mustbe considered in conjunction with article 4.2.1, which isdiscussed in the next paragraph). The Draft Instrument’sprovisions do not apply to the recourse action of the con-tracting carrier against the subcarrier (unless the contractbetween those two parties is also a “contract of carriage”that includes the carriage of goods by sea).

50. If loss, damage, or delay occur solely before thegoods are loaded on or after they are discharged from thevessel, then article 4.2.1 specifies that the mandatory pro-visions of other applicable conventions prevail over thoseof the Draft Instrument, but only to the extent that theyregulate the carrier’s liability, limitation of liability, andrights of suit.15

51. Article 4.2.1 thus provides a minimal network systemin order to deal with the fact that the great majority of con-tracts of carriage by sea include land carriage aspects, andthat provision must be made for this relationship. The DraftInstrument is only displaced where a convention that con-stitutes mandatory law for inland carriage is applicable tothe inland leg of a contract for carriage by sea, and it isclear that the loss or damage in question occurred solelyin the course of the inland carriage.

52. The essence of such a network system is that the pro-visions mandatorily applicable to inland transport applydirectly to the contractual relationship between the carrieron the one hand and the shipper or consignee on the other.If the inland transport has been subcontracted by the car-rier, the mandatory provisions also apply to the relationbetween carrier and subcarrier. But in respect of the firstrelationship, the provisions of the Draft Instrument maysupplement the provisions mandatorily applicable to theinland transport; whereas as between carrier and subcarrierthe inland provisions alone are relevant (supplemented asnecessary by any applicable national law).

53. It should also be noted that the proposed limited net-work system in the Draft Instrument only applies to pro-visions directly relating to the liability of the carrier,including limitation and time for suit. Provisions in otherconventions that may indirectly affect liability, such asjurisdiction provisions, should not be affected. Also many

other legal provisions mandatorily applicable to inlandtransport are not intended to be replaced by the DraftInstrument because they are directed specifically to inlandtransport rather than to a contract involving carriage by sea.For example, the requirements of the CMR relating to theconsignment note may apply between carrier and subcar-rier, but their application to the main contract of carriageregulated by the Draft Instrument would be inconsistentwith the document (or electronic record) required by theDraft Instrument for the whole journey.

2. CMR

54. Article 1 of the CMR provides that the Conventionapplies to every contract for the carriage of goods by roadin vehicles for reward when the place of taking over of thegoods and the place of delivery are situated in two differ-ent countries of which at least one is a contracting country.

55. Article 2(1) then provides that where the vehicle con-taining the goods is carried over part of the journey by sea,rail, inland waterways, or air and the goods are notunloaded from the vehicle, the Convention applies exceptin case it is proved that any loss, damage, or delay thatoccurs during the carriage by other means of transport wasnot caused by an act or omission of the carrier by road.

3. COTIF-CIM

56. Article 1.1 of COTIF-CIM 1980 provides that theUniform Rules apply to all consignments of goods for car-riage under a through consignment note made out for aroute over the territories of at least two States and exclu-sively over lines and services included in the list providedfor in articles 3 and 10 of COTIF-CIM. Article 2.2 ofCOTIF-CIM 1980 provides that the COTIF-CIM may alsobe applied to international through traffic using, in addi-tion to services on railway lines, land and sea services andinland waterways. Special rules in respect of liability relat-ing to rail-sea traffic are set out in article 48 of COTIF-CIM.

57. Article 1.1 of COTIF-CIM 1999 (not yet in force)provides that the Uniform Rules apply to every contract ofcarriage of goods by rail when the place of taking over ofthe goods and the place designated for delivery are situ-ated in two different Member States. Article 1.4 then pro-vides that when international carriage, being the subject ofa single contract of carriage, includes carriage by sea ortransfrontier carriage by inland waterway as a supplementto carriage by rail, the Uniform Rules apply if the carriageby sea or by inland waterway is performed on servicesincluded in the list of services provided for in Article 24.1of the Convention. Such listing is not required for the appli-cation of COTIF-CIM 1999 to national road or inlandwaterway carriage that supplements international rail car-riage and is included in the contract of carriage.

58. The issuance of a consignment note is no longer acondition for the application of the Uniform Rules underCOTIF-CIM 1999. Article 6.2 explicitly provides that theabsence, irregularity, or loss of the consignment note doesnot affect the existence or validity of the contract.

goods or for delivery of the goods is in a Contracting State. The defini-tion of multimodal transport in article 1.1 expressly excludes pick-up anddelivery services performed under a unimodal transport contract. Further,article 30.4 provides that carriage to which article 2 of the CMR applies(i.e. road vehicle carriage on a ship or a train) or to which article 2 ofthe Berne Convention of 17 February 1970 concerning the carriage ofgoods by rail applies (i.e. the 'listed' road or shipping services comple-mentary to railway services) will not be regarded as multimodal carriageunder the Multimodal Convention. The Multimodal Convention deals onlyto a limited extent with provisions other than those regarding the carrier'sliability.

15See A/CN.9/WG.III/WP.21, paras. 49 to 55. See also the proposalby Italy at A/CN.9/WG.III/WP.25.

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566 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIV

4. CMNI

59. Article 1 of the CMNI defines the contract of car-riage as the contract whereby the carrier undertakes to carrygoods by inland waterways. Article 2(2) then provides thatwhen carriage by sea and inland waterway is performed bythe same vessel, without transhipment, the CMNIConvention applies except when a “marine bill of lading”has been issued or the distance travelled by sea is greaterthan that travelled by inland waterway.

5. Warsaw Convention

60. Article 1.1 provides that the Convention applies toall international carriage of persons, baggage, or cargo per-formed by aircraft for reward, and to gratuitous carriageperformed by an air transport undertaking. Article 1.2 thenprovides that international carriage means any carriage inwhich the place of departure and the place of destination,“whether or not there be a break in the carriage or a tran-shipment,” are situated within the territories of two HighContracting Parties. Contrary to the CMR, carriage by dif-ferent modes of transport is expressly regulated by theWarsaw Convention, which provides in article 31.1:

“In the case of combined carriage performed partly byair and partly by another mode of carriage, the provi-sions of this Convention shall, subject to paragraph 4of article 18, apply only to the carriage by air, providedthat carriage by air falls within the terms of article 1.”

6. Montreal Convention

61. The Montreal Convention does not change substan-tially the Warsaw Convention system: article 1.1 and 1.2are identical, and article 31.1 of the Warsaw Conventionbecame article 38.1 of the Montreal Convention. New,however, is the legal fiction that sanctions the existingpractice, at least in Europe, where much of the carriage ofgoods by air (intended by the agreement between the par-ties to be carried by air) is actually performed by road.Article 18.4 provides that such carriage, made without theconsent of the consignor, is deemed to be within the periodof carriage by air.

B. Possible application of competing conventions in respect of claims of the shipper or consignee

against the door-to-door carrier

1. CMR

62. It might be argued that a door-to-door contract ofcarriage pursuant to the Draft Instrument would not be subject to the CMR because it is not a “contract for thecarriage of goods by road” and because the place of takingover of the goods and the place of delivery are not relatedto a specific contract of carriage by road, but rather to thedoor-to-door contract. The taking over occurs at the placewhere and the time when the carrier (or a performing car-rier) takes over the goods. Delivery occurs at the time whenand the place where the carrier (or a performing carrier)delivers the goods to the consignee. If there are two roadlegs, one before and one after the sea leg, then the takingover and delivery are not related to the same road leg. If

there is only one road leg, for example before the sea leg,then delivery is wholly unrelated to a carriage by road.However, it has also been argued quite strongly that theroad leg of a door-to-door contract of carriage would besubject to the CMR (see below, paragraphs 115 and 116).

63. It may also be argued that the reference in article1(1) of the CMR to the place of taking over and the placeof delivery should not be read as a reference to the placesthat the contract specifies for the taking over and deliveryby the carrier in its capacity as an international road car-rier. If the road carriage is followed by sea carriage, thenthere is no delivery at the end of the road carriage, for thegoods remain in the carrier’s custody until delivery to theconsignee at the final destination. In a door-to-door con-tract from Munich to Montreal via Rotterdam, for exam-ple, Rotterdam cannot be qualified as the place of deliveryunder that main contract of carriage. It will be the placeof delivery only under the subcontract between the door-to-door carrier and the performing carrier that performedthe road carriage. The subcontract would thus be subjectto the CMR, but the main door-to-door contract would not.Again, however, strong arguments to the contrary have alsobeen made (see below, paragraphs 115 and 116).

64. If the contrary view were to prevail, it would be nec-essary to determine whether a provision such as that in arti-cle 4.2.1 of the Draft Instrument would avoid the conflict.It is thought that this would probably not be the case,because:

(a) in respect of loss, damage, or delay occurringpartly during the road leg and partly at sea, while theburden of proof would in any event be on the claimant,the CMR would not prevail over the Draft Instrument;

(b) in respect of loss, damage, or delay to goods car-ried by sea on a road vehicle, there are conflicting provi-sions in the CMR and in the Draft Instrument: pursuant toarticle 2(1) of the CMR, its provisions apply except if theloss, damage, or delay occurs during the carriage by theother means of transport and is not caused by an act oromission of the road carrier, while under article 4.2.1 ofthe Draft Instrument its provisions would apply; and

(c) the CMR includes mandatory provisions otherthan those on the carrier’s liability, limitation of liability,and time for suit in respect of which article 4.2.1 of theDraft Instrument operates (see below, paragraphs 74, 80,86, 96 and 101).

2. COTIF-CIM

65. COTIF-CIM in its 1980 version, which is now inforce, applies only to contracts of carriage entered into byrailways covered by a through consignment note (article1). Since a consignment note is not issued under the maindoor-to-door contract of carriage, the provisions of COTIF-CIM 1980 would therefore not be applicable to the door-to-door contract of carriage covered by the DraftInstrument and consequently no conflict is conceivable.

66. The 1999 version of COTIF-CIM instead provides(article 6.2), similarly to the CMR (article 4), that theabsence, irregularity, or loss of the consignment note does

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Part Two. Studies and reports on specific subjects 567

not affect the existence or validity of the contract, whichremains subject to COTIF-CIM. It is therefore necessaryto determine whether COTIF-CIM, in its 1999 version,would apply to the main door-to-door contract of carriagecovered by the Draft Instrument if one of the legs of thatcarriage is performed by rail between places situated in twodifferent COTIF-CIM States. The relevant provision ofCOTIF-CIM 1999 is article 1.4, which provides:

“When international carriage being the subject of asingle contract of carriage includes carriage by sea ortransfrontier carriage by inland waterway as a supple-ment to carriage by rail, these Uniform Rules shall applyif the carriage by sea or inland waterway is performedon services included in the list of services provided forin Article 24.1 of the Convention.”

67. The first condition is, therefore, that the carriage bysea must be a “supplement” to the carriage by rail. It isthought that this condition materialises where the contractis made between the consignor and a railway and that,therefore, COTIF-CIM does not apply where the contract-ing carrier is not a railway. A potential conflict betweenthe Draft Instrument and COTIF-CIM would thus be con-ceivable only if the door-to-door “carrier,” as defined inarticle 1.1 of the Draft Instrument, is a railway.

68. Even in such a rather unlikely case, the carriage bysea would need to be included in the list of services pro-vided for in article 24.1 of COTIF-CIM in order for thereto be competing coverage over the main door-to-door con-tract between the Draft Instrument and the COTIF-CIM.

3. CMNI

69. Carriage by different modes of transport, and morespecifically by inland waterway and by sea, is regulatedpursuant to the CMNI only when it is performed by thesame vessel, without transhipment. Article 2(2) providesthat in such a case the CMNI applies except where a“marine bill of lading” has been issued or the distance trav-elled by sea is greater than that travelled by inland water-way. Therefore, because normally both these conditionswill apply in the case of a door-to-door carriage under theDraft Instrument, the CMNI would generally not apply tothat main contract of carriage.

70. The case of a contract of carriage by sea and byinland waterway with transhipment of the goods from theseagoing vessel to the inland waterway vessel or vice versais not specifically addressed. It is thought that such a con-tract is not covered by the definition of “contract of car-riage” in article 1(1) of the CMNI, where reference is madeto a contract whereby a carrier undertakes to carry goodsby inland waterways. If this view is correct, the CMNIwould again apply only to the subcontractual relationbetween the door-to-door carrier and the carrier that per-formed the carriage by inland waterway.

4. Warsaw and Montreal Conventions

71. The “combined carriage” mentioned in article 31.1of the Warsaw Convention and article 38.1 of the MontrealConvention must be a carriage performed by two different

modes of transport under one single contract. Insofar as theair carriage is concerned, however, the only requirement isthat it fall within the terms of article 1, meaning that theplace of departure and the place of destination are situatedwithin the territories of two High Contracting Parties (orStates Parties, in the case of the Montreal Convention).Because these places are the places of departure and ofdestination of the carriage by air, the Warsaw Conventionwould apply to the air leg of a main door-to-door contractmade by a sea carrier (assuming, of course, that the air car-riage is performed between two High Contracting Parties).The position would be the same under the new 1999Montreal Convention.

C. Possible application of competing conventions on issues outside of carrier’s liability, limitation

of liability and time for suit

72. Under article 4.2.1 of the Draft Instrument, the net-work system is limited to the subjects of the carrier’s lia-bility, limitation of liability, and time for suit. In all otherareas covered by the Draft Instrument, its provisions applyirrespective of any different provisions that may exist inother applicable conventions. A non-exhaustive review ofsuch provisions in other transport conventions follows. Thisreview will cover the provisions relating to: (1) the obli-gations and liability of the shipper for damage caused bythe goods; (2) the obligations of the shipper to furnishinformation; (3) transport documents; (4) freight; (5) theright of control; (6) delivery of the goods; and (7) the trans-fer of rights. Such a review would, of course, become mate-rial if another transport convention were held to apply toa door-to-door contract of carriage covered by the DraftInstrument.

1. Obligations and liability of the shipper for damage caused by the goods

73. Article 7.1 of the Draft Instrument requires the ship-per to deliver the goods ready for carriage and in such con-dition that they will withstand the intended carriage. Article7.6 provides that the shipper is liable to the carrier for anyloss, damage, or injury caused by the goods and for a breachof its obligations under article 7.1 unless the shipper provesthat the loss or damage was caused by events or throughcircumstances that a diligent shipper could not avoid or theconsequences of which it was unable to prevent.

74. The CMR has two distinct provisions, one in respectof the defective packaging of the goods in general (article10) and one in respect of dangerous goods the nature ofwhich the shipper has failed to indicate together with theprecautions to be taken (article 22). The shipper is liableif the defect or the dangerous nature of the goods is notknown to the carrier.

75. COTIF-CIM article 14 provides that the consignor isliable to the carrier for any loss, damage, and costs due tothe absence of, or defects in, packing, unless the defect isapparent and the carrier has not made any reservation.

76. The CMNI, following the CMR, also provides fortwo separate obligations of the shipper. The first relates toall goods and is to the effect that, if the nature of the goods

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so requires, the shipper must properly pack and mark thegoods (article 6.3). The second one is to the effect that ifdangerous or polluting goods are to be carried, the shippermust inform the carrier of the danger or of the risk of pol-lution inherent in the goods and of the precautions to betaken. The CMNI then provides at article 8.1 that the ship-per is strictly liable to the carrier for its failure to provideinformation in respect of dangerous goods. Nothing is saidin respect of the breach of the general obligation to prop-erly pack and mark the goods, but it is thought that sucha breach would entail a similar liability.

77. The Warsaw and Montreal Conventions have no spe-cific provision in respect of damage caused by the improperpacking or marking of the goods.

78. In sum, the obligations and liability of the shipper inrespect of the condition of the goods under the DraftInstrument differ from those under the other transport con-ventions, and there seems to be no problem of competingapplication. However, it is possible that the contrary con-clusion may be reached if, for example, the analysis of theapplication of the CMR set out in paragraphs 62 and 63above is found to be inaccurate (see paragraphs 115 and116 below).

2. Obligations of the shipper to furnish information

79. Article 7.3 of the Draft Instrument requires the ship-per to provide the carrier with the information, instructions,and documents reasonably necessary for (a) the handlingand carriage of the goods; (b) compliance with rules andregulations in connection with the intended carriage; and(c) compilation of the contract particulars and issuance ofthe transport documents. Article 7.5 provides that the ship-per is liable for any loss or damage caused by its failureto comply with the above obligations.

80. Under CMR article 7.1, the sender is responsible forall expenses, loss, or damage sustained by the carrier byreason of the inaccuracy of the particulars furnished by himin compliance with article 6. Under article 11, the sendermust attach to the consignment note the documents neces-sary for customs or other formalities, and is liable to thecarrier for any loss or damage caused by its failure tocomply with this obligation.

81. The COTIF-CIM provisions are similar to those ofCMR. Article 8.1 provides that the consignor shall beresponsible for all costs, loss, or damage sustained by thecarrier by reason of the entries made by the consignor inthe consignment note being incomplete or incorrect or byreason of the consignor’s omitting the entries prescribedby the Regulations concerning the International Carriageof Goods by Rail.

82. CMNI article 6.2 requires the shipper to furnish thecarrier with particulars concerning the goods and instruc-tions concerning the customs or administrative regulationsapplicable to the goods, as well as with information relat-ing to the dangerous character of the goods. Article 8 thenprovides that the shipper is strictly liable for all damagesand costs incurred by the carrier as a consequence of theshipper’s failure to comply with its obligations.

83. Article 10(1) of the Warsaw and MontrealConventions provides that the consignor is responsible forthe correctness of the particulars and statements relating tothe cargo inserted by it in the air waybill but, as for thecorresponding provision of the CMR, this does not implyan obligation to provide such particulars or statements.Article 10(2) then provides that the consignor must indem-nify the carrier against all damages suffered by it or byany other person to whom the carrier is liable by reasonof the irregularity, incorrectness, or incompleteness of theinformation supplied.

84. Although the difference between the provisions of theDraft Instrument and those of the other transport conven-tions may not be very significant, nevertheless the provi-sions are not identical. The Working Group may wish todiscuss whether absolute uniformity should be realised inrespect of the obligations of the shipper. In this regard, asolution similar to that envisaged in article 4.2.1 for thecarrier’s liability, limitation of liability, and time for suitcould be considered by the Working Group.

3. Transport documents

85. Whereas the transport documents and electronicrecords regulated by the Draft Instrument cover the wholedoor-to-door transport, the transport documents regulatedby the unimodal transport conventions under considerationeach cover, as a general rule, only the segment of carriageby means of that particular mode of transport. The conse-quence appears to be that a conflict cannot arise, becauseeach unimodal convention will continue to govern the doc-ument issued by the subcarrier that subcontracts to performa specific non-maritime leg of the transport.

86. Under the CMR, the problem would not arise if, aspreviously stated (see above, paragraphs 62 and 63), theCMR applies only to subcontracts entered into by road car-riers. But even if this was not the case, and the CMR washeld to apply to the main door-to-door transport contract,the problem of conflicting documents should still not arise.It is true that if the shipper were to request a consignmentnote under CMR article 4, it could conflict with the con-tract for the main door-to-door carriage, and that if a con-signment note were issued under the overall contract forthe door-to-door carriage, it could defeat the purpose ofthat main contract. In practice, however, the shipper in adoor-to-door contract involving a maritime leg is unlikelyto make such a request. The consignment note could coveronly the leg of the road carriage that precedes or followsthe sea carriage. At the end of a road leg that precedes thesea carriage, the shipper has neither the right to take, northe interest in taking, delivery of the goods, thus the ship-per would not request a consignment note for this partic-ular road leg. At the commencement of a road legsubsequent to the sea carriage, the shipper could not obtainthe issuance of a consignment note, since the shipper doesnot have the goods in its possession, as would be requiredfor such an issuance. Of course, the CMR provisions,including those on consignment notes, would continue theirfull application in respect of the subcontract between thedoor-to-door carrier and the road carrier. However, it hasalso been suggested that while the above analysis willlargely hold true, it may be possible to envisage a case

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where, for example, a door-to-door contract from Munichto Montreal via Rotterdam could involve a road carrier whowill issue a consignment note.

87. Under COTIF-CIM, the position is similar to thatunder CMR. The door-to-door carrier would issue a trans-port document covering the entire door-to-door carriage,rather than a consignment note for the rail leg, as pre-scribed by article 6 of COTIF-CIM. Again, there are prac-tical purposes for this. If the railway leg precedes the sealeg, the door-to-door carrier does not undertake to deliverthe goods to the consignor at the end of the rail leg, butrather to carry them to the final destination. If the rail-way leg follows the sea carriage, the carrier will not takeover the goods from the consignor at the start of the railleg. Thus, there would be no legal or practical basis forthe door-to-door carrier to issue a separate consignmentnote for the rail leg of the carriage. Again, however, theconsignment note would instead be drawn up for the rail-way subcarriage between the door-to-door carrier and therailway.

88. Pursuant to the CMNI, a distinction must be madebetween (1) the carriage of goods on a seagoing vesselwith subsequent transhipment on another vessel perform-ing the carriage by inland waterways and (2) the carriageof goods by sea and on inland waterways without tran-shipment. In the case of transhipment, the CMNI provi-sions on transport documents will apply to the subcontractbetween the door-to-door carrier and the inland carrier,while the provisions of the Draft Instrument will apply inrespect of the transport document or electronic record tobe issued by the door-to-door carrier in respect of the over-all carriage. In the case where there is not transhipment,only the provisions of the Draft Instrument will apply. Itis thought that the reference in article 2(1)(a) of CMNI to“marine bill of lading” must be interpreted as coveringany transport document issued in connection with the car-riage of goods by sea.

89. For the reasons stated in respect of CMR, andbecause the provisions of the Warsaw and MontrealConventions governing the issuance of a transport docu-ment are not mandatory, by agreeing to enter into a door-to-door contract the shipper impliedly waives the right toobtain a separate document for a single leg of the carriage.16

4. Freight

90. Neither the CMR nor the Warsaw and MontrealConventions contain a provision on freight.

91. In COTIF-CIM, article 10.1 provides that, unless oth-erwise agreed, the costs (the carriage charge, incidentalcosts, customs duties and other costs incurred) must be paidby the consignor. Article 10.2 then provides that if the costsare payable by the consignee and the consignee has nottaken possession of the consignment note nor asserted the

right to take delivery, the consignor remains liable to paythe freight. The provisions of the Draft Instrument do notseem to conflict with those of COTIF-CIM.

92. Article 6.1 of CMNI provides only that the shippershall be required to pay the amounts due under the con-tract. Therefore no conflict is conceivable.

5. Right of control

93. In the Draft Instrument, the subject of the right ofcontrol of the goods is dealt with in some detail in Chapter11. The “right of control” is defined as the right under thecontract of carriage to give instructions to the carrier inrespect of the goods during the period of its responsibil-ity. Some of the possible instructions are specified in arti-cle 11.1. The rules on identification of the controllingparty and on the transfer of the right of control are thenset out in article 11.2 according to whether a negotiabletransport document or a negotiable electronic record hasbeen issued. There follow in article 11.3 provisions regu-lating the obligation of the carrier to execute the instruc-tions of the controlling party and its limits. Article 11.4deals with the effect of the delivery of the goods in theplace indicated by the controlling party and article 11.5deals with the right of the carrier to obtain instructionsfrom the controlling party. Finally, article 11.6 specifieswhich of the preceding provisions may be varied by agree-ment, thereby impliedly indicating those that instead aremandatory.

94. Because some of the unimodal transport conventionshave provisions on the right of the shipper or other con-trolling party to give instructions to the carrier, the issueof whether there could be competing application betweenthe Draft Instrument and those conventions in this regardmust be examined.

95. In order that the person entitled to exercise the rightof control may invoke the provisions of any of the uni-modal transport conventions instead of those of the DraftInstrument, it would be necessary that such person provethat at the time of the exercise of the right of control, theconditions for the application of a transport conventionexist. This would require proof that the goods are in thecustody of a road carrier, a rail carrier, an air carrier, oran inland navigation carrier.

96. The exercise of the right of control under CMR,called a “right of disposal,” is subject, pursuant to article12(5)(a), to the production by the sender or the consigneeof the first copy of the consignment note. As discussedabove in paragraph 86, with respect to the overall door-to-door transport, neither the sender nor the consignee wouldlikely be in possession of the consignment note. Thus theprovisions of the CMR would not likely apply to the maindoor-to-door carriage, and they would probably only applyto the subcontract between the door-to-door carrier and theroad carrier.

97. Under COTIF-CIM, the exercise of the “right of dis-posal” is subject, pursuant to article 19.1, to the produc-tion of the duplicate of the consignment note. Again, thesame analysis applies as with respect to the CMR.

16Article 4 of both conventions, in fact, after having stated in para-graph 1 that an air waybill shall be delivered, provides in paragraph 2that any other means which would preserve a record of the carriage tobe performed may be substituted for delivery of an air waybill, but theWarsaw Convention makes this subject to the consent of the consignor.

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98. Article 14 of CMNI grants the shipper the right ofdisposal of the goods and its right ceases when, followingthe arrival of the goods at the destination, the consigneehas requested delivery. Under article 15, the exercise ofthe right of disposal of the goods is conditional on the ship-per’s or consignee’s (a) submitting all originals of the billof lading, if a bill of lading had been issued, or the othertransport document that may have been issued; (b) reim-bursing to the carrier all costs and damages; and (c) payingthe agreed freight in case of discharge of the goods priorto arrival at the agreed place of delivery. Again, for thereasons noted above under the section on transport docu-ments (see paragraph 88) with respect to the CMNI, noconflict with the Draft Instrument is conceivable if the car-rier by inland waterway is a subcontractor.

99. Article 12(1) of the Warsaw and MontrealConventions grants a very wide right of disposal of thecargo to the consignor, subject to its obligation to reim-burse any expense incurred by the carrier. If the air car-rier is a subcontractor, however, then the door-to-doorcarrier will be the Warsaw and Montreal Conventions’“consignor.” Because the original shipper will not be the“consignor,” no conflict with the Draft Instrument and theoverall door-to-door contract of carriage can arise, and theprovisions of the Warsaw and Montreal Conventions willapply to the subcontract between the door-to-door carrierand the air carrier.

6. Delivery of the goods

100. The Draft Instrument contains express provisions ondelivery. Article 10.1 provides that if after arrival of thegoods at destination the consignee exercises any of its rightsunder the contract of carriage, then it is obliged to acceptdelivery. If it leaves the goods in the custody of the car-rier, the carrier will act as the agent of the consignee. Article10.2 provides that, on request of the carrier or of the per-forming party that delivers the goods, the consignee shallconfirm delivery in the manner that is customary at theplace of destination. Article 10.3.1 regulates delivery if nonegotiable transport document or electronic record has beenissued and provides that the controlling party shall advisethe carrier of the name of the consignee prior to or uponthe arrival of the goods at the place of destination and thatthe carrier shall deliver the goods upon the consignee’s pro-duction of proper identification. Article 10.3.2(a) regulatesdelivery when a negotiable transport document or electronicrecord has been issued. It provides that delivery is effectedagainst surrender of one original of the transport documentor, if a negotiable electronic record has been issued, uponthe holder thereof demonstrating that it is actually theholder. Article 10.3.2(b)-(e) regulates the situation in whichthe holder does not claim delivery and the consequences ofthe carrier’s delivering the goods upon the instructions ofthe controlling party or of the shipper and of the carrier’sdelivering the goods without the surrender of the negotiabletransport document or without the demonstration that theholder of the negotiable electronic document is actually theholder. Article 10.4.1 then sets out the rights of the carrierin case the goods after arrival at destination are not takenover by the consignee or the carrier is not allowed to deliverthem to the consignee. Finally, complementary provisionsare set out in articles 10.4.2 and 10.4.3.

101. Pursuant to CMR article 13(1), the consignee is enti-tled to obtain delivery of the goods against surrender ofthe first copy of the consignment note. For the same rea-sons stated above in respect of the right of disposal (seeabove, paragraph 96), this provision cannot apply to theoverall door-to-door transport. There are, however, two sit-uations in which delivery may take place without produc-tion of the first copy of the consignment note. Article 15(1)provides that when circumstances prevent delivery of thegoods after their arrival at destination, the carrier must askthe sender for instructions. This seems to imply that thesender may give instructions without being in possessionof the first copy of the consignment note. It further pro-vides that if the consignee refuses the goods, then thesender is entitled to dispose of them without being obligedto produce the first copy of the consignment note.However, the CMR provisions would not compete with theDraft Instrument for application to the overall door-to-doorcontract of carriage because the sender for the road legeither preceding or following the carriage by sea, is thedoor-to-door carrier who subcontracts the performance ofthe carriage by road, and not the consignee. As such, theDraft Instrument would apply to the overall door-to-doorcarriage and the CMR would apply to the subcontract forthe road leg. Again, however, the opposite conclusion maybe reached if the analysis of the CMR set out in paragraphs62 and 63 is found to be inaccurate (see paragraphs 115and 116 below).

102. Under article 17 of COTIF-CIM, it would appear thatthe consignee named in the consignment note is entitled toobtain delivery without the surrender of the duplicate ofthe consignment note. This, however, does not seem to giverise to any potential conflict with the Draft Instrument, forin respect of the railway leg preceding the carriage by sea,the consignor will be the door-to-door carrier or its agentand the person named as consignee in the note will beeither the door-to-door carrier itself or its agent at the placewhere the railway leg terminates. The position will be sim-ilar in respect of the railway leg subsequent to the sea leg.Thus the COTIF-CIM will apply to the subcontract for therailway leg, while the Draft Instrument will apply to theoverall door-to-door contract.

103. Pursuant to CMNI article 13(2), if bills of ladinghave been issued, the goods must be delivered in exchangefor one original bill of lading. Therefore, whenever the car-rier by inland waterway is a subcarrier, the bills of ladingthat it issued will be in the possession of the door-to-doorcarrier, which will be the shipper. The situation would besimilar if a non-negotiable transport document were issued,because under article 11(5)(b) it must indicate the name ofthe consignee, which will be the door-to-door carrier or itsagent. No conflict between the provisions of CMNI andthose of the Draft Instrument should therefore arise, andthe Draft Instrument will apply to the overall door-to-doorcontract of carriage.

104. Although this is not expressly stated in article 13 ofthe Warsaw and Montreal Conventions, the right of theconsignee to obtain delivery of the cargo is conditional onthe production of the air waybill. This is impliedly pro-vided by article 6 of the Warsaw Convention and article 7of the Montreal Convention, pursuant to which one of the

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three original parts of the air waybill must be marked “forthe consignee.” If the air carrier is a subcarrier, the threeoriginals of the air waybill will be handed over to the door-to-door carrier and, therefore, the provisions of the Warsawand Montreal Conventions would not apply in respect ofthe shipper, who would not be a party to the contract ofcarriage by air. Again, only the rules on delivery in theDraft Instrument will apply to the overall door-to-door car-riage.

7. Transfer of rights

105. A conflict between the provisions of the DraftInstrument in Chapter 12 and those of the other transportconventions does not appear to be possible. The rules setout in the Draft Instrument for the case in which a nego-tiable transport document or a negotiable electronic recordis issued relate to a contract and to parties different fromthose in respect of which the relevant rules of the otherunimodal transport conventions are applicable. No rule iscontained in the Draft Instrument for the case in which nonegotiable transport document or electronic record isissued. Article 12.3 instead provides that the transfer ofrights in such a case shall be effected in accordance withthe national law applicable to the contract of carriage andthat law obviously includes the rules of any convention thathas been given the force of law.

D. Possible application of competing conventions in respect of recourse actions of the door-to-door

carrier against a performing carrier

106. A conflict in this regard could arise only if the con-tract of carriage between the door-to-door carrier and theperforming carrier by a mode other than sea were governedby the Draft Instrument. It is thought, however, that thisis not the case, for articles 6.3.1 and 6.3.3 govern the lia-bility of performing parties vis-à-vis only the shipper andthe consignee.

107. In any event, it would not be advisable to make thecontract between the door-to-door carrier and the perform-ing carrier subject to the provisions of the Draft Instrument.A clear conflict of conventions would arise given the appli-cation of the unimodal transport conventions to each of thesubcontracted transport legs. In addition, the performingcarrier could be wholly unaware of the fact that it is agree-ing to provide transport services within the ambit of a door-to-door contract, which is subject to a specific set ofuniform rules.

E. Possible application of competing conventions in respect of claims of the shipper or consignee

against the performing carrier

108. There is no privity of contract between the shipperor the consignee and the performing carrier. As such, thereis no basis for a claim by the shipper or the consigneeagainst the performing carrier under the existing unimodaltransport conventions unless the relevant convention soprovides, or if an action may be pursued in tort or delict.

109. This is probably the case for COTIF-CIM 1980 (arti-cle 51) and COTIF-CIM 1999 (article 41) but not for the

CMR and CMNI because, similarly to the Hague-VisbyRules (article 4 bis) and the Hamburg Rules (article 7),they provide for the application of their provisions only tothe servants and agents of the carrier, but not to inde-pendent contractors (CMR article 28; CMNI articles 17.3and 22).

110. As regards the Warsaw and Montreal Conventions,it is thought that article 24.2 and article 29, respectively,pursuant to which any action, whether in contract or in tortor otherwise, can be brought only subject to the provisionsof the convention, applies only to actions against the aircarrier. This view is confirmed by the fact that actionsbrought against the servants or agents of the air carrier areregulated by article 25 and article 30, respectively.

III. ADVANTAGES AND DISADVANTAGES OF GENERAL DOOR-TO-DOOR COVERAGE

AND OF THE DRAFT INSTRUMENT’S NETWORK SYSTEM

111. The overall advantage of any door-to-door coverageis, of course, that it would provide consignors of goods ininternational trade with the ability to contract for the move-ment of their containers from door-to-door smoothly, seam-lessly and at a predictable cost, regardless of the mode oftransport used. Despite the increase in multimodal trans-portation worldwide, consignors prefer to deal with onlyone party under one contract, rather than engaging in aseries of contracts with various carriers. It has been notedabove that the container trade to which the door-to-doorsystem is most relevant represents an impressive propor-tion of both the value and the quantity of maritime trade,and that in the absence of unified rules governing door-to-door contracts, industry has filled the vacuum with rulesof its own. Still, a unified and predictable system of ruleswould greatly reduce the uncertainty and expense involvedin litigating which contract terms or convention terms applyto a given case.

112. In addition to the general advantages of any door-to-door system outlined above, it has been suggested thatsome of the existing unimodal transport conventions con-tain gaps that are filled by the Draft Instrument. For exam-ple, the CMR does not apply if the road carrier fails tocollect the goods, and the convention fails to define “takeover”. The Draft Instrument appears to fill these gaps.Further, the CMR does not provide for an extension of thetime for suit, except to say, at article 32.3 that it shouldbe governed by the lex fori. The Draft Instrument doesallow for such an extension (article 14.3). However, it hasbeen suggested that it is unclear whether the CMR provi-sion is considered to be mandatory, and thus there wouldbe competing provisions applicable to this aspect of theoverall contract of carriage.

113. In a similar vein, it has been suggested that the issueof title to sue is not apparently within the scope of article4.2.1 of the Draft Instrument, and both the Draft Instrumentand the CMR make provision for title to sue. While it maybe that the provisions of the Draft Instrument would pre-vail, it does not appear in some quarters to be clear enough.

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114. It has been suggested that one disadvantage of thenetwork system set out in article 4.2.1 of the DraftInstrument is that it is still necessary to establish when, andof course, during which mode of transport, the lossoccurred, and whether any of the laws in force govern thesituation mandatorily. However, it should be noted that oneof the benefits of a single door-to-door instrument is that itprovides a solution for progressive damage during transport,and it is not necessary to detect the cause of damage onceit has been established that the damage was caused duringcustody. However, it is possible that this clarity is attenu-ated somewhat in the situation where there is a combina-tion of modes of transport as, for example, if a trailer beingtowed on a ferry were damaged by hitting a bulkhead.

115. Other criticisms have been made of the uncertainparameters of precisely where coverage by the DraftInstrument would end, and where coverage by other uni-modal conventions would begin. As noted above, it hasbeen argued that since the CMR covers only a contract ofcarriage of goods by road and not by sea, the CMR wouldnot apply to the overall contract for door-to-door transportenvisaged by the Draft Instrument, even during the roadleg. However, despite the discussion above in paragraphs62 and 63, it has strongly been suggested that in order forthe CMR to govern a given contract of carriage, it is irrel-evant whether a land leg follows or precedes a sea leg.Similarly, it has been suggested that the importance or dis-tance of the land leg in comparison with the other legs ofthe carriage is irrelevant in determining whether the CMRwill govern the contract of carriage. Further, it has beensuggested that the scope of the CMR is not limited to con-tracts for the carriage of goods exclusively by road, or evenpredominantly by road, since pursuant to article 1.1, theCMR shall apply to every “contract for the carriage ofgoods by road (emphasis added)”, and not to every con-tract of carriage of goods by road.

116. In addition, it has been suggested that the argumentthat the CMR will not conflict with the Draft Instrumentbased upon the place of taking over of the goods is notentirely clear either. It has been argued that this is too lit-eral an interpretation of “taking over”, and that the contextof the CMR is such that a carrier may become liable eventhough it does not take over the goods in a physical sense.Moreover, it is suggested that article 1.1 of the CMR is aunilateral conflicts rule, and that what is important aboutthe “taking over” is that it marks the beginning of contractperformance that must begin in one country and end inanother.

117. Another potential problem with the network systemis said to be that the liability limit varies according to theapplicable regime. These limits vary markedly from themaritime to the non-maritime context: the CMR limit is8.33 SDRs per kilogram, the COTIF-CIM limit is 17 SDRsper kilogram, as are the Montreal and WarsawConventions, while the Hague-Visby limit is only 2 SDRsper kilogram or 666.67 SDRs per package, and theHamburg limit is 2.5 SDRs per kilogram or 835 SDRs perpackage. While the rate for the Draft Instrument has notyet been established, and it is likely that the maritime limitwill be increased, it remains uncertain how far up fromthe traditional 2 SDRs the liability limit will rise.17 One

further aspect that the Working Group may wish to notein this regard is that the liability limit would have to beincreased from the established minimum levels in order toallow the regime to be incorporated into unimodal sub-contracts, if desired. One obstacle to this, however, maybe that the CMR in article 41 states that a carrier’s lia-bility can be neither increased nor decreased. Ultimately,however, some would argue that uniform limits for allstages of carriage in a multimodal regime are inappropri-ate, and should be left to national and regional policy deci-sion-makers.

118. One other issue that has been raised with respect tothe door-to-door approach in general is concern that theregime should operate in harmony with the regimes gov-erning other international contracts, such as contracts ofsale. While it is seen as positive that the mandatory aspectsof the Draft Instrument are tackle-to-tackle, since thismatches the passing of risk under a FOB contract, a noteof caution is raised with respect to the extension of cov-erage to door-to-door. It is suggested than any door-to-doorextension should be matched by changes to the contract ofsale regime.

IV. DIFFERENCES BETWEEN NON-MARITIMEAND MARITIME APPROACHES TO THE

CARRIAGE OF GOODS

119. One general criticism that has been levelled at thedoor-to-door approach has been that it could be seen torepresent the application of a maritime regime to othermodes of carriage.

120. An important difference between non-maritime andmaritime approaches to the carriage of goods is withrespect to certain aspects of proof and presumptions regard-ing responsibility. “Special risks” are triggers that presumefault on the part of the consignor, and which are a dis-tinctive and important feature of the CMR and the COTIF-CIM. The Draft Instrument, however, may be read asestablishing a regime that presumes negligence on the partof the carrier.

121. In addition, some aspects of the Draft Instrument areobviously not intended to cover ancillary carriage of goodsby other modes. For example, the carrier’s defence forperils of the sea in article 6.1.3(xi) is clearly inappropriatein the context of other means of carriage. Nor does themaritime carrier’s defence of fire in article 6.1.2(b) of theDraft Instrument translate easily to non-maritime modes.

122. Similarly, the carrier’s responsibility for the state ofthe vehicle being used varies dramatically depending onthe mode of carriage. The Draft Instrument requires duediligence to make the ship seaworthy (article 5.4), and the

17However, it should be noted that the limitation on liability for low-weight, high-value packages may be higher when calculated on a perpackage basis rather than on a per kilogram basis. For example, if lap-top computers are individually packaged in containers, a liability limitbased on 8.33 SDRs per kilogram would certainly be lower than onebased on 666.67 SDRs per package.

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carrier is excused with respect to latent defects in the shipnot discoverable by due diligence (article 6.1.3(viii)), butthe underlying duty is still barely one level higher than thatof reasonable care. In contrast, the CMR level of duty withrespect to the vehicle is one of the utmost diligence, whilethe Montreal Convention holds the air carrier to a strictduty with fewer defences than the maritime carrier (article18.1 and 18.2).

123. Other, more general issues may arise with respect todifferences in the “drafting culture” of non-maritimeregimes. For example, the Draft Instrument is quitedetailed, more along the lines of the Hague and Hague-Visby Rules than the less specific and more recentHamburg Rules. The trend with respect to non-maritimeregimes appears to be toward less, rather than greaterdetail, as, for example, with the Montreal Convention andthe new COTIF-CIM. In addition, the Draft Instrument cur-rently contains the familiar, and much-litigated, HagueRules due diligence obligation of seaworthiness (article5.4(a)), as well as the exceptions (article 6.1.3), althoughthey are cast in the Draft Instrument as presumptions ofabsence of fault rather than as exonerations. This is in con-trast with harmonization efforts in carriage of goods con-ventions since 1950, which have largely sought to avoidwords or phrases drawn from national law in order to avoidtempting national courts to interpret them in a known andnational way and thus thwart the harmonization efforts.

124. The above discussion would seem to indicate that anoverall disadvantage of a door-to-door approach, includingthe network system set out in the Draft Instrument, is thatit could entail the application of a maritime instrument incertain circumstances to other modes of carriage. However,a review of the criticisms may indicate to the WorkingGroup that most, if not all, of these problems may be atten-uated through careful drafting.

V. PROPOSED SOLUTIONS

125. The paragraphs below outline a variety of options forconsideration by the Working Group. Some of the proposedsolutions represent more general suggestions regarding theapproach that might be taken by the Working Group, whileothers present very specific drafting solutions. Althoughthey are considered below under separate headings, the var-ious options outlined are not intended to be mutually exclu-sive, nor it is suggested that they are necessarilyincompatible with each other. The Working Group maywish to consider these options separately, or in combina-tion with each other.

A. Convention or Model Rules?

126. It would be possible to introduce a new internationalmaritime regime by means of a convention, a restatementor by way of a set of model contractual rules. The bestmeans of ensuring the application of a unified system wouldcome by way of an international convention. However, theconvention approach has resulted in limited success inrecent years, as witnessed by the results garnered by theMultimodal Convention and the Hamburg Rules.

127. Further, it has been suggested that the more detailedthe draft and the greater the number of States attemptingto reach agreement, the lower is the likelihood of con-cluding the successful negotiation of an international con-vention. In addition, conventions may be seen as lessflexible, and difficult to change and adapt to new andchanging circumstances. Some would argue that reachingagreement on an international instrument might be moreeasily achieved at a regional, rather than a universal level.While this might be the case, regional development ofregimes in this area will only serve to contribute to thecurrent uncertainty, and will most certainly fail to meet thegoal of a unified and predictable system for the worldwidecarriage of goods by sea.

128. The UNCTAD/ICC Rules came into effect in Januaryof 1992, and it has been suggested that they are becomingincreasingly popular. These Rules combine a uniformsystem with a network system. Their liability provisions areuniform and rather similar in effect to those of the Hague-Visby Rules. In respect of limitation of liability, theUNCTAD/ICC Rules provide for a network system: thelimits of the otherwise mandatory applicable convention ornational law apply. It would be possible to adopt a newmaritime convention that would cover port-to-port carriageof goods, and pair it with model contractual rules that wouldcover any modes of transport ancillary to the maritime car-riage. Clearly, the adoption of model rules rather than aconvention would be faster than the adoption and entry intoforce of a convention. Presumably, this would also hold truewhen comparing the adoption of a combined conven-tion/model rules with the adoption of a single conventionfor door-to-door carriage. However, one clear disadvantageof adopting contractual rules rather than a convention is, ofcourse, that rules do not carry the status of mandatory law,and thus would be less likely to achieve a unified approach.In addition, such contractual rules could come into conflictwith the mandatory provisions of certain conventions.

129. Study in the area of multimodal regimes is continu-ing. The United Nations Economic Commission for Europe(UNECE) has been studying the possibility of reconcilingand harmonizing the liability regimes for multimodal trans-port, and UNCTAD is continuing to study the feasibilityof a full multimodal regime.18 The tidiest resolution to thecurrent disharmony would seem to be reaching agreementon a widely-acceptable multimodal convention, however,attempts at the creation of such a system have not beensuccessful to date. As such, one other possibility could beto await the outcome of these studies, and to allow theinternational carriage of goods by sea to be governed inthe interim by the existing maritime conventions along withthe UNCTAD/ICC Rules for the ancillary transport, andthe other contractual regimes established by industry.However, this approach would provide little in the way ofharmonization and clarity, and there is no indication thatwork will actually begin on a new multimodal convention.This option does not seem attractive, since it merelyreflects the current state of affairs in the industry, whichis exerting growing pressure for immediate improvementsto the legal regime in this area.

18See the UNCTAD Report, “Multimodal Transport: The Feasibilityof an International Legal Instrument,” supra, note 9.

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B. Fast-track and slow-track approaches

130. Another possible approach was suggested by one ofthe respondents to questionnaire circulated by the secretariatin 2002.19 The option suggested was to approach the issueof reform of the legal regime governing the carriage of goodsin two stages. The first stage would be a fast-track approach,under which a new port-to-port convention would be nego-tiated which would cover the sea leg of carriage only. Asecond slow-track approach would be used to deal with themore controversial issues, such matters concerning the landleg of the carriage. It was further suggested that this secondslow track could be made optional for contracting States.

131. The advantage to this option is clearly the greaterspeed with which a fast-track instrument limited to port-to-port carriage might be concluded. However, there is noguarantee that the adoption of such an instrument wouldbe significantly faster. Further, postponing the thornyissues in this fashion might be insufficient to provide a res-olution to matters that have become quite pressing forindustry, nor would it provide the harmonization sought.

C. Options that preserve the network principle

132. While the network solution set out in article 4.2.1 ofthe Draft Instrument could present a viable means forwardfor a door-to-door convention, variations on the approachset out in the Draft Instrument, as well as other optionsmay be possible. The following sections set out severalpossible options that involve the network approach.

1. A “unimodal plus” approach

133. This proposed approach attempts to serve as a long-term solution to the multimodal problem, and would workin concert with the network system set out in article 4.2.1of the Draft Instrument. In order to alleviate any uncertaintywith respect to perceived conflicts between the scope of theDraft Instrument and the unimodal transport conventions,adjustments could be made to the scope of application pro-visions of each of the unimodal conventions in order to clar-ify that they apply to a certain type of contract, which isdefined by reference to one or more modes of transport.

134. In effect, the “maritime plus” approach, wherein theDraft Instrument’s proposed application would cover thedoor-to-door carriage of goods transported wholly or partlyby sea (see above, paragraph 8), could be replicated inrespect of other modes of transport. In effect, each uni-modal convention would be expanded to include any othertype of carriage that precedes or is subsequent to the spe-cific mode of carriage that is the subject of that particularunimodal transport convention. Because the scope of appli-cation of various unimodal conventions would overlap, the“unimodal plus” approach requires that each unimodal con-vention contains a similar conflict of convention provision.

135. Such an extension of scope of the unimodal con-ventions would mean that a multimodal carriage could becovered by one of possibly several conventions, and thatparties would be required to choose which convention

would apply to the entire carriage. In practice, the marketwould regulate the choice. If the consignor requested aquotation for multimodal transport from a European railcarrier, it would likely receive a quotation offered underthe conditions to which such rail carrier was accustomed,i.e. the COTIF-CIM. Similarly, a European road carrierwould be likely to provide a quotation under the condi-tions of the CMR. For enhanced clarity, each unimodalconvention would also have to include a conflict of con-vention provision.

136. One advantage of this overall scheme is that a singlecontract and a single set of conditions would apply to theentire carriage. Further, it would be possible for forwardersto offer alternative sets of rules for intermodal carriage, ata different prices, thus allowing the market to govern theconditions over time.

137. The disadvantage of an overall “unimodal plus”system is that it would require the amendment of each ofthe existing unimodal transport conventions. Moreover, suchchanges would have to be made in concert, and would haveto include a similar conflict of convention provision. Thiswould inevitably take time and would slow down theprogress in respect of the work on the Draft Instrument. Asa consequence, even if the Working Group were to pursuesuch a “unimodal plus” system, a provision along the linesof draft article 4.2.1 would have to be retained in the interim.In a later stage (e.g. by additional protocol), draft article4.2.1 could be replaced with a new conflict of conventionprovision that would take into account the application ofother conventions to the sea leg of an international carriage.

2. The Canadian proposal

138. In preparation for the tenth session of the WorkingGroup in September 2002, a proposal was submitted by theGovernment of Canada (A/CN.9/WG.III.WP.23) concern-ing the scope and structure of the Draft Instrument. In lightof the discussion held at the ninth session of the WorkingGroup regarding the scope of application of the DraftInstrument on a door-to-door or on a port-to-port basis,three options were presented as alternatives.

(a) Option 1

139. The first option would be to continue to work on theexisting Draft Instrument, including draft article 4.2.1, butto add a reservation that would enable contracting Statesto decide whether or not to implement this article and therelevant rules governing the carriage of goods precedingor subsequent to the carriage by sea.

140. One of the advantages of this option would be thatit would advance the objective of restoring uniformity oflaw in the marine mode, and that it would establish uni-formity in other ancillary modes of carriage. At the sametime, contracting States that do not share the goal of uni-form rules for door-to-door transit could still be part of thenew marine regime, with the possibility of revoking thereservation in the future to apply the Draft Instrument ona door-to-door basis. An additional advantage of this optionis that since the reservation would be declared at the timeof ratification, there would be no confusion as to which19See A/CN.9/WG.III/WP.28, page 27.

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contracting States apply all provisions of the instrumentand which States reserved on the application of the instru-ment to inland carriage under draft article 4.2.1.

(b) Option 2

141. The second option presented was to continue to workon the existing Draft Instrument, including draft article4.2.1, but to insert the phrase “or national law” after thephrase “international convention” in draft paragraph 4.2.1.

142. Again, the advantage of this option is that it wouldallow for the establishment of uniformity during maritimetransport, while leaving the rules for the ancillary modesof carriage to national law for those contracting States thatso prefer. One disadvantage of this option is that since therewould be no record of any declaration, it could be moredifficult to establish what law applies in a particular con-tracting State.

143. It was also suggested that in both Option 1 and 2,draft article 4.2.1. could also be subject to further elabo-ration regarding liability for non-localized damages.

(c) Option 3

144. The third option in this proposal would be to revisethe existing Draft Instrument in a manner that would estab-lish four separate chapters. Chapter 1 would deal with def-initions and all provisions common to Chapters 2, 3 and4. Chapter 2 would contain provisions governing the car-riage of goods by sea on a port to-port basis.

145. Chapter 3 would contain provisions governing the car-riage of goods by sea and by other modes before or aftercarriage by sea, i.e. on a door-to-door basis. There couldbe two basic models for establishing the door-to-door cov-erage. The first possible model would be a uniform system,which would establish a single regime that would applyequally to all modes of transport involved in the door-to-door carriage. The second possible model would be a net-work system, which would be the same as the uniformsystem, but it would contain provisions that would displacethe uniform system where an international convention wasapplicable to the inland leg of a contract for carriage ofgoods by sea, and it was clear that the loss or damageoccurred solely in the course of that inland carriage.

146. Chapter 4 would contain the final clauses and reser-vations, including a provision for express reservations forChapter 2, for those contracting States that wish to imple-ment the new instrument for multimodal carriage of goodson a door-to-door basis; or for Chapter 3, for those con-tracting States that wish to implement the new instrumentonly for the carriage of goods by sea on a port-to-port basis.

147. This third option would, again, have the advantageof harmonizing international law for carriage of goods byaccommodating both the port-to-port and door-to-doorapproaches in Chapter 2 and Chapter 3, respectively. A fur-ther advantage of this option is that it would be clear whichcontracting States adhere to the marine regime in Chapter 2and which contracting States adhere to the multimodalregime in Chapter 3.

148. An additional advantage of this option is that it wouldimprove the prospects of long-term uniformity since con-tracting States adhering only to Chapter 2 could joinChapter 3 by simply revoking their reservation on the latter.This could be an important improvement over the systempresented in Option 1: it would add a further layer of uni-formity in the event that a contracting State revoked itsreservation, since the provisions in Chapter 3 would auto-matically apply. Moreover, the automatic application of theChapter 3 provisions would avoid confusion if the con-tracting State revoking its reservation had adopted otherregional conventions on the carriage of goods.

149. A further potential advantage of this third option isthat if it were decided to adopt a network system (asopposed to a uniform system) in Chapter 3, the marineregime in that Chapter could be identical to Chapter 2, thusachieving the widest possible uniformity of law in themarine mode. In addition, adopting a network system inChapter 3 would enable the simplification of the thirdoption as follows: Chapter 1 could contain the definitionsand all of the provisions common to Chapters 2, 3 and 4;Chapter 2 could contain the provisions governing the car-riage of goods by sea, i.e. on a port-to-port basis; Chapter3 could contain the provisions governing the carriage ofgoods by other ancillary modes before or after the sea car-riage, i.e. door-to-door transport; and Chapter 4 could con-tain the final clauses and reservations, including a provisionfor express reservation for Chapter 3 for those contractingStates that wish to implement the new instrument only forthe port-to-port carriage of goods by sea.

3. The Swedish Proposal

150. Should the Working Group decide that the DraftInstrument should cover door-to-door transport, theSwedish proposal (A/CN.9/WG.III/WP.26) aims to betteradapt the text of the Draft Instrument to existing interna-tional conventions, as well as to existing national manda-tory liabili-ty regimes, particularly with respect to road andrail carriage. According to the Government of Sweden, theexisting text in the Draft Instrument would, if adopted,create a conflict with the CMR and COTIF-CIM. It is notedthat in many European countries, the liability regime in theDraft Instrument would also conflict with national manda-tory liability regimes that are adapted to the existingregimes set out in the CMR and COTIF-CIM.

151. In order to solve these problems, the Government ofSweden proposed that the text in draft article 3.1 bechanged to clarify that the Draft Instrument will only beapplicable where the transport agreement is truly a contractfor carriage by sea and not a contract for carriage by roador rail, where the truck or the wagon is transported by ferryduring the sea leg. It is suggested that as the text stands,both the Draft Instrument and the CMR or COTIF-CIMregimes, respectively, would be applicable in the latter sit-uation. According to the Government of Sweden, thiswould create a conflict between the conventions.

152. In draft article 4.2.1, an inclusion of an exception fornational liability regimes is proposed. The reason for thisis to avoid conflicts between the Draft Instrument andnational mandatory liability regimes. In many CMR and

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COTIF-CIM countries, the national liability regimes forthese modes of transport are adapted to the correspondinginternational conventions. If the existing rule in draft arti-cle 4.2.1 is adopted, it could require these countries to enacta third liability regime for the carriage of goods by roadand rail. This third liability regime would differ from theexisting liability regimes that (unlike the Draft Instrument)are built on strict liability.

153. The Government of Sweden also suggested that itwas important to adapt the liability regime of the DraftInstrument to the existing regimes for carriage of goods byroad and rail in order to create a true multimodal conven-tion. Therefore, the Government of Sweden proposedchanges to the provisions in the Draft Instrument on thecalculation of compensation, as well as the inclusion of aprovision on non-located damages. In order to protect theshipper of the goods, it was proposed that the carrier willonly be entitled to make use of the highest limitation levelin the national or international mandatory liability regimethat governs the transport. It is suggested that the reasonfor having a rather low limitation level in sea carriage isnot relevant in this case, and that non-located damages usu-ally involves rather small amounts of goods and are nor-mally detected at the place of delivery.

D. The Italian proposal

154. After the tenth session of the Working Group inSeptember 2002, a proposal was submitted by theGovernment of Italy (A/CN.9/WG.III/WP.25). Italy sug-gested that the ideal solution would be to have a uniformset of rules applicable throughout the carriage, rather thana network system, even if limited in scope, because, itwas suggested, the network system creates uncertainty.The Draft Instrument, however, should apply only to thecontract between the shipper and the carrier while therecourse action, if any, of the carrier against the per-forming carrier should remain subject to the specific rulesapplicable to the particular transport mode, be it carriageby sea, by road or railway. The Draft Instrument shouldnot apply to claims of the shipper against the performingcarrier, for this would again give rise to uncertainty, albeitin a different context: in this case, the uncertainty wouldaffect the performing carrier, who may not even knowwhat rules apply to the contract between the carrier andthe shipper, since the performing carrier is not a party tothat contract.

155. The application of the Draft Instrument to the claimsof the shipper against the performing carrier could, more-over, entail a conflict between the Draft Instrument and thetransport convention applicable to the transport performedby the performing carrier.

156. Under this proposal, it is suggested that it would benecessary to restrict the definition of “performing party” topersons other than performing carriers and to add a defi-nition of “performing carrier”. This change could beachieved by adding to the present definition at paragraph1.17 of the Draft Instrument, after the words “Performingparty means a person other than the carrier” the words “andthe performing carrier(s)” and by adding the following newdefinition:

“‘Performing carrier’ means a person that at the requestof the carrier performs in whole or in part the carriageof the goods either by sea or by [another mode] [rail orroad].”

157. In order, however, to avoid possible actions in tortof the shipper against the performing carrier, it could beprovided that the action of the shipper against the per-forming carrier is subject to the rules that would apply ifthe action against the performing carrier were brought bythe carrier. If this principle is accepted, the Working Groupmay wish to consider what legal technique could be usedin order to achieve that result: for example, a legal subro-gation of the shipper into the rights of the carrier againstthe performing carrier.

158. In line with paragraphs 62 to 71 above, the Italianproposal examines the provisions of other transport con-ventions (CMR, COTIF-CIM and CMNI) with a view todetermining whether a conflict with the Draft Instrumentwould arise, and a negative conclusion is reached.

E. Options based on the treatment of performing parties

159. It has been suggested that the basic principle under-lying this set of options is that the Draft Instrument shouldbe a convention that would apply door-to-door as betweenthe parties to the contract of carriage, i.e. that the "carrier"(as defined in article 1.1 of the Draft Instrument) is liableto the other party to the contract of carriage on the DraftInstrument's uniform terms (not on a "network" basis) fromthe receipt of the goods (under draft article 4.1.2) to thedelivery of the goods (under draft article 4.1.3) (the "door-to-door period").

160. While achieving full door-to-door coverage might notbe feasible at the current time, it is suggested under thisset of options that at least as between the immediate par-ties to the contract of carriage the Draft Instrument shouldapply uniformly and on a door-to-door basis. This is par-ticularly the case if the new Convention is intended toencourage the door-to-door application of a unified regime,to the maximum extent possible. The advantage of makingthe contracting carrier liable on the same terms from receiptto delivery is that it offers predictability to the contractingparties: the cargo interests know that, as a minimum, theywill have a cause of action on the Draft Instrument's termsagainst the party that undertook to perform the carriage,and the contracting carrier knows in advance the terms onwhich it will be liable to the cargo interests.

161. It has been suggested that the intention of the net-work system of liability was not to implement it withrespect to the contracting carrier, but rather to provide rulesin the event of a conflict between the new Convention andpre-existing unimodal conventions, such as those on roadand rail carriage (CMR and COTIF-CIM). Potential con-flict is of particular concern with respect to performing par-ties' liability (to the extent that the relevant performingparties may be, for example, European road or rail carri-ers). This issue is discussed in paragraphs 166 to 176 and181 to 185 below. Another potential conflict of concern isthe arrangement between the contracting door-to-door car-

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rier and a unimodal carrier. However, this concern wouldseem to be outside of the scope of the Draft Instrument,since the arrangement would not qualify as a "contract ofcarriage" in the absence of a sea leg.

162. There should be no conflict between the DraftInstrument and either CMR or COTIF-CIM with respect tothe liability of the contracting door-to-door carrier.Although it is argued that segments of a door-to-doormovement might fall within the scope of CMR or COTIF-CIM (or both), as a whole, the door-to-door contract ofcarriage (which by definition in article 1.5 the DraftInstrument includes carriage by sea) would not generallybe subject to either CMR or COTIF-CIM.

163. Furthermore, the application of the network princi-ple might not be limited to potentially conflicting unimodaltransport conventions. Some contracting States may wishto preserve their own domestic law with respect to domes-tic land carriage. In such cases, the network principle couldoperate to further complicate the issue of which law isapplicable to the various segments of the door-to-doormovement.

164. In addition, while the higher weight-based liabilitylimits of other regimes for the carriage of goods generallyprovide for a greater recovery than traditional maritimeregimes, there is no guarantee that domestic laws woulddo the same. In fact, some national laws might permit aland carrier to avoid all liability by contract. Thus, if andto the extent that draft article 4.2.1 would preserve suchnational laws, such a network principle could permit thecontracting carrier to avoid all liability for the land seg-ment of the carriage, and leave the cargo owner with norecovery.

165. It has been suggested that the following options mayprovide a way to preserve the possibility of higher recov-ery for a cargo claimant (when the loss or damage occurredduring the period of application of some other law with ahigher limitation amount) that does not involve includingin the Draft Instrument Convention a mandatory networksystem applicable to the parties to the contract of carriage.

1. Option 1—Basic Principles

166. The basic principles of this Option 1 are as follows:

(a) A “performing party” (broadly defined, as sug-gested in A/CN.9/WG.III/WP.21, paragraph 14 followingdraft article 1.17 of the Draft Instrument defining “per-forming party”) is subject to the responsibilities and lia-bilities imposed on the carrier under the Draft Instrument,and entitled to the carrier's rights and immunities providedby the Draft Instrument:

(i) during the period in which it has custody of thegoods; and

(ii) at any other time to the extent that it is partic-ipating in the performance of any of the activ-ities contemplated by the contract of carriage;

unless, at the time of its ratification of the Draft Instrument,the Contracting State in which the relevant event occursopted out of coverage for the relevant performing party.

(b) A Contracting State may not opt out of coveragewith respect to:

(i) ocean carriers;

(ii) performing parties to the extent that they havecustody of the goods during the port-to-portperiod of an ocean carriage; or

(iii) performing parties to the extent that they par-ticipate in the performance of any of the activ-ities contemplated by the contract of carriageduring the port-to-port period of an ocean car-riage.

(c) With respect to:

the period (if any) after the receipt of the goods (underdraft article 4.1.2) but before the goods arrive at the portof loading (the “door-to-port period”); and

the period (if any) after the goods have been removed fromthe port of discharge but before delivery of the goods(under draft article 4.1.3) (the “port-to-door period”),

a Contracting State, with respect to the performance of acontract of carriage within its territory, may opt out of cov-erage for:

(i) all performing parties; or

(ii) specified types of performing parties (e.g. allrail carriers; all motor carriers; all performingparties that do not physically perform any ofthe carrier's responsibilities under a contract ofcarriage for the carriage, handling, custody, orstorage of the goods); or

(iii) specified types of performing parties underspecified circumstances (e.g. motor carriers tothe extent that they are governed by CMR;motor carriers to the extent that they are gov-erned by a specified national law applicable tomotor carriers).

(d) The Draft Instrument pre-empts all other causes ofaction (whether founded in contract, in tort, or otherwise)against (i) the carrier, and (ii) all performing parties that aresubject to the Draft Instrument (i.e. all performing partieswith respect to which the relevant contracting State has notopted out of coverage). To the extent that a performing partyis not subject to the Draft Instrument, its potential liabilityis governed by whatever law would have applied in theabsence of the Draft Instrument. The Draft Instrument doesnot pre-empt whatever law would otherwise apply.

2. Option 1—Commentary on the basic principles

167. Under principle 1(a) in paragraph 166 above, all per-forming parties are presumptively subject to the newConvention. This is consistent with the fundamental pointthat the application of the Convention should be as closeto "door-to-door" as it is possible to achieve. To the extentthat this coverage is too broad, however, principle 1(a) per-mits a Contracting State to opt out of coverage for inlandperforming parties that it does not wish to subject to thenew Convention. Thus the new Convention would be door-to-door except in those specific cases in which there is astrong governmental interest in restricting its application.

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168. Principles 1(b) and 1(c) clarify a Contracting State'sability to opt out of coverage. Under principle 1(b), aContracting State may not opt out of coverage for the coremaritime parties that operate in the port-to-port segment.To allow a reduction in the scope of coverage below port-to-port for the core maritime parties would represent a stepbackwards from the current regime.

169. As a practical matter, principle 1(b) ensures that atleast ocean carriers and those that operate in the port area,such as stevedores and terminal operators, would be fullysubject to the new Convention.

170. Under principle 1(c), a Contracting State may opt outof coverage for some or all of the performing parties withinits territory. The form of opting out would depend on therationale for the Contracting State's decision to opt out. Forexample, if a Contracting State concluded that a cargoclaimant would have no direct cause of action against aperforming party under existing law and that it would beunwise to recognize a new cause of action under theConvention when none had existed in the past, then theState could opt out under principle 1(c)(i). In that State,then, no performing parties would be liable under theConvention.

171. Alternatively, if a Contracting State concluded that itdid not wish to subject a particular industry (such as rail-roads) to the Convention, then it could opt out under prin-ciple 1(c)(ii). In that State, the industry would continue tooperate as it had in the past, and the Convention wouldhave no impact on it.

172. If a Contracting State preferred the narrow definitionof "performing party" contained in article 1.17 of the cur-rent Draft Instrument, then it could also opt out under prin-ciple 1(c)(ii), excluding the application of the Conventionwith respect to "all performing parties that do not physi-cally perform any of the carrier's responsibilities under acontract of carriage for the carriage, handling, custody, orstorage of the goods."

173. Finally, contracting States that wish to preserve theapplication of unimodal transport regimes like the CMRand COTIF-CIM, and other States that wish to preserve theapplication of their domestic laws, could opt out underprinciple 1(c)(iii).

174. Principle 1(d) clarifies the effect of opting out. Underprinciple 1(d), a class of performing parties would be eitherwithin the Convention or outside of the Convention.Performing parties that are within the Convention wouldbe part of the overall compromise that must be made underthe regime. They would be subject to liability under theConvention but would be fully protected by its exclusionsand limitations, including the automatic “Himalaya”20 pro-tection.

175. Performing parties outside of the Convention wouldnot participate in the compromise, and the Conventionwould not affect them. They would not be subject to lia-bility under the Convention and they would not be pro-tected by it. Their liability would remain as it is undercurrent law. To the extent that current law (or domesticlaw other than the Convention) permits a performing partyto claim protection under a Himalaya clause, theConvention would not deny that protection, but nor wouldit grant automatic protection (as article 6.3.3 of the currentDraft Instrument does).

176. The disadvantage of this option is one that could beraised with respect to any regime with less than completedoor-to-door coverage: if certain performing parties areoutside of the coverage of the convention, then they canbe sued under whatever law would otherwise be applica-ble (unless the Convention bans suits against performingparties altogether, as discussed in Option 2). The resultcould be a confusing overlay of inconsistent liabilityregimes and a multiplicity of suits.

3. Option 2—Basic principle

177. The basic principle of Option 2 is that all suits bycargo interests for cargo damage are subject to the termsof the Draft Instrument and can only be brought againstthe Contracting Carrier. There is no opting out provisionin Option 2.

4. Option 2—Commentary on the basic principle

178. This option would make suit under the terms of theDraft Instrument the exclusive remedy of a cargo inter-est against the contracting carrier. Moreover, it wouldprohibit suits by the cargo interest against the perform-ing party (whether under the Draft Instrument, by con-tract, by tort, or otherwise). It would then be up to thecontracting carrier to collect from the performing party,an action that may or may not be within the scope of theInstrument.

179. There are several advantages to the approach inOption 2. First, shippers are commercial parties who canselect the contracting carrier that meets their cargo damagerequirements, and consignees can also provide for the samein sales agreements. Second, it is the contracting carrierthat offers the service, hires subcontractors and is in thebest position to handle claims. Third, there is typically noknowledge of or reliance upon specific performing partiesby the shippers. In addition, this approach makes clear inadvance what liability regime will apply as well as whowill handle a claim and be responsible for resolving suitsso all parties can plan accordingly. Further, the approachin Option 2 may avoid complicated litigation and multipledefendants. Finally, this option provides predictability sothat parties can negotiate transport terms knowing whichrules will apply to dispute resolution.

180. The disadvantage of the approach in Option 2 is thatit would eliminate suits (whether under the Draft

20“Automatic ‘Himalaya’ protection” refers to the type of protectionprovided by article 6.3.3 of the Draft Instrument, whereby a performingparty receives the protection customarily provided by an effectiveHimalaya clause without the necessity of including a Himalaya clause inthe bill of lading. A Himalaya clause in a bill of lading extends to spec-ified third parties the benefit of the exemptions, limitations, defences andimmunities of the carrier under the bill of lading.

*UNCITRAL-2003-p535-583rev.qxd 28/6/06 7:23 pm Page 578

Part Two. Studies and reports on specific subjects 579

Instrument, in tort, or otherwise) against the performingparty that actually caused the damage. If the contractingcarrier is insolvent or amenable to suit only in a juris-diction that is inconvenient to the cargo interest, thatinterest may be left with no real remedy. Moreover, itwould limit the cargo interest's recovery to the DraftInstrument's liability limits, even if another legal regimethat would otherwise be applicable would allow a higherrecovery.

5. Option 3—Basic principle

181. Like Option 1, Option 3 would allow a State to optout of the new convention with respect to certain per-forming parties. The basic principle of Option 3 is that suitsunder the Draft Instrument will be the exclusive remedyavailable to a cargo interest against the carrier for cargodamage during door-to-door transport. In addition, no suitcould be brought against a performing party for suchdamage unless at the time of the ratification a State indi-cates that it is preserving whatever causes of action wouldotherwise apply. (A State could opt out for certain per-forming parties, as described under Option 1, see above,paragraphs 166 to 176.)

6. Option 3—Commentary on the basic principle

182. Option 3 combines aspects of Options 1 and 2. Itreverses the default presumption of Option 1, and expandsit to include the presumption (which in Option 2 is an out-right prohibition) that no suits are allowed by cargo inter-ests against the performing party.

183. The purpose of Option 3 is to make claims againstthe contracting carrier under the Draft Instrument the gen-eral rule. Similarly, the presumption would be that all suitsby the cargo interest against performing parties would beprohibited. A country could opt out of the prohibition topermit suits against all or some performing parties in accor-dance with domestic law or multilateral agreements.

184. The advantage of the approach in Option 3 is that itwould encourage a maximally uniform system, whileallowing flexibility for countries with other law applicableto the land portions of the journey.

185. However, the disadvantage of Option 3 is that acountry that as a matter of policy does not favour elimi-nation of such causes of action might not want a pre-sumption in favour of this built into the Convention.

1. In view of the continuous growth of multimodal transporta-tion and against a background of an increasingly complex andfragmented legal framework at the international level,1 theUNCTAD secretariat conducted a study on the feasibility ofestablishing a new international instrument on multimodal trans-

port. In order to ascertain the views of all interested parties, bothpublic and private, a questionnaire was prepared by the UNCTADsecretariat and circulated widely. The questionnaire was sent toall Governments and intergovernmental and non-governmentalorganizations, including all relevant industry associations, as wellas to some experts on the subject (TDN 932(2) SITE).

2. The secretariat received a total of 109 replies to the ques-tionnaire, 60 from the Governments of both developed and devel-

I. Working paper submitted to the Working Group on Transport Law at its eleventh session:Preparation of a draft instrument on the carriage of goods [by sea]. Information document

provided by the United Nations Conference on Trade and Development (UNCTAD)

(A/CN.9/WG.III/WP.30 [Original: English]

NOTE BY THE SECRETARIAT

In preparation for the eleventh session of Working Group III (Transport Law), during which theWorking Group is expected to proceed with its reading of the draft instrument contained in doc-ument A/CN.9/WG.III/WP.21, the secretariat of the United Nations Conference on Trade andDevelopment (UNCTAD), on 16 January 2003, submitted the text of a document entitled“Multimodal transport: the feasibility of an international instrument—Overview and discussion ofresponses to the UNCTAD questionnaire on Multimodal Transport Regulation and issues arisingfor further consideration”. That document is reproduced as an annex to this note in the form inwhich it was received by the secretariat. It summarizes the text of a report published by theUNCTAD secretariat in English only under the title “Multimodal transport: the feasibility of aninternational instrument” (UNCTAD/SDTE/TLB/2003/1).

ANNEX

Multimodal Transport:The feasibility of an international legal instrument

Overview and discussion of responses to the UNCTAD questionnaire on Multimodal Transport Regulation and issues arising for further consideration

1See UNCTAD Report Implementation of Multimodal Transport Rulesand accompanying comparative table, UNCTAD/SDTE/TLB/2 and Add.1,available on the UNCTAD website.

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580 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIV

oping countries and 49 from industry representatives and others.Replies received from industry representatives reflect the viewsof virtually all interested parties. They include the views of oper-ators of transport services (maritime, road and rail), freight for-warders, providers of logistics services and terminal operators,liability insurers, cargo insurers as well as shippers and users oftransport services.

3. A report, which sets out in some detail the views and opin-ions expressed in the responses to the questionnaire, has sincebeen completed by the UNCTAD secretariat (MultimodalTransport: The Feasibility of an International Legal Instrument,UNCTAD/SDTE/TLB/2003/1) and is available on the UNCTADwebsite.2

4. As the views and opinions expressed in the context of thequestionnaire may be of assistance to the UNCITRAL WorkingGroup on Transport Law, in its deliberations on the scope ofapplication of the proposed Draft Instrument, this document isbeing submitted for consideration. Due to restrictions of space,this document only reproduces parts C.IV and C.V of theUNCTAD Report (“Overview and discussion of responses” and“Issues arising for further consideration”), together with a tablepresenting a breakdown of responses received.3 For a moredetailed reflection of currently held views and opinions, the fullUNCTAD Report may be consulted.

OVERVIEW AND DISCUSSION OF RESPONSES TO THE UNCTAD QUESTIONNAIRE ON

MULTIMODAL TRANSPORT REGULATION

5. In this part, the main results of the questionnaire, detailed inpart C.III of UNCTAD Report Multimodal Transport: TheFeasibility of an International Legal Instrument (UNCTAD/SDTE/TLB/2003/1), are summarized and discussed.

1. Assessment of status quo and desirability of international instrument

6. A large majority of respondents (83%), both amongGovernments and non-governmental and industry representatives,consider the present legal framework unsatisfactory, with a clearmajority (76%) considering the present system not to be cost-effective. The vast majority of respondents across the board (92%)consider an international instrument to govern liability arisingfrom multimodal transport to be desirable and virtually all (98%)indicated they would support any concerted efforts made in thisdirection.

7. In practice, it is clear that the level of support would dependon the content and features of any possible new instrument.However, the general assessment of the status quo suggests thatthere is both a demand for a more detailed debate and willing-ness to further engage in an exchange of views.

2. Suitability of different approaches

8. As regards the most suitable approach, which might beadopted, views are, to a certain extent, divided. However, around

two thirds of respondents from both Governments and non-gov-ernmental quarters (65%) appear to prefer a new internationalinstrument to govern multimodal transport or a revision of the1980 MT Convention. In further discussions considering thisapproach, the views expressed on why the 1980 MT Conventiondid not attract sufficient ratifications to enter into force should beof some interest. Several central issues have emerged from theresponses, in particular that the 1980 MT Convention, at least atthe time, may not have appeared attractive enough to shippersinterests while at the same time containing elements which car-rier interests found not acceptable. A number of respondentsexpressed their support for a new legally binding instrument basedon rules which are currently used in commercial contracts, namelythe UNCTAD/ICC Rules.

9. A minority of respondents (13%), representative mainly ofparts of the maritime transport industry, appeared to favour theextension of an international sea-carriage regime to all contractsfor multimodal transport involving a sea-leg and some respon-dents expressly stated their support for the proposed DraftInstrument on Transport Law, which adopts this approach.4

Another minority of respondents (13%), representative mainly ofparts of the road transport industry, considered the extension ofan international road-carriage regime to all contracts for multi-modal transport involving a road-leg to be the most appropriateapproach.

10. Overall, the responses indicate that—with the importantexception of the maritime transport industry—there appears to beonly limited support for the approach adopted in the DraftInstrument on Transport Law. Accordingly, there is significantscope for the exploration of other options in consultation with allinterested parties in transport.

3. Important features and key elements of any possibleinternational instrument

11. The following picture emerges from the responses:

3.1 Delay

12. The vast majority of respondents (90%) think any instru-ment governing multimodal transport should address the issue ofdelayed delivery, albeit some believe that liability for delayshould only arise in certain circumstances and should be limitedat a level equivalent to the freight or a multiple thereof.

3.2 ‘Uniform, ‘network’ or ‘modified’ liability system

13. As regards the type of liability system, which may be mostappropriate, views are, as may be expected, divided, with justunder half of all respondents (48%) expressing support for a uni-form liability system and, among the remainder of respondents,broadly equal numbers expressing support for a network liabilitysystem (28%) or for a modified liability system (24%).

14. Among those favouring a network or a modified liabilitysystem, a majority (59%) believes only the limitation provisionsshould vary depending on the unimodal stage where loss, damageor delay occurs. This view appears to be particularly prevalentamong respondents representing Governments. Others, particu-

2http://www.unctad.org. The UNCTAD Report Multimodal Transport:The Feasibility of an International Legal Instrument (UNCTAD/SDTE/TLB/2003/1) is also available on the UNCITRAL website (www.unci-tral.org).

3The text of parts C.IV and C.V has remained unchanged, but responserates have been included, as appropriate. The table reproduces the indi-vidual questions contained in the questionnaire in abbreviated form.Percentage values have been rounded to the nearest full unit.

4UNCITRAL document A/CN.9/WG.III/WP.21. Under the DraftInstrument, as currently proposed, the substantively maritime liabilityregime would be applicable to a wide range of claims arising from con-tracts for multimodal transportation involving a sea leg, in particular (a)in cases where loss cannot be localized; (b) in cases where loss was attrib-utable to a land or air leg of transport but no international unimodal con-vention applied. See Articles 1.5 and 4.2.1 Draft Instrument. See alsoUNCTAD commentary, footnote 5, below.

*UNCITRAL-2003-p535-583rev.qxd 28/6/06 7:23 pm Page 580

Part Two. Studies and reports on specific subjects 581B

reak

dow

n of

res

pons

es t

o U

NC

TA

D q

uest

ionn

aire

on

Mul

tim

odal

Tra

nspo

rt R

egul

atio

n

Yes

No

1.(a

)D

o yo

u th

ink

that

the

exi

stin

g le

gal

fram

ewor

k is

sat

isfa

ctor

y?

17%

83

%(b

)D

o yo

u th

ink

that

it

is c

ost-

effe

ctiv

e?24

%

76%

2.W

hat

in y

our

view

, ar

e th

e re

ason

s w

hy t

he 1

980

MT

Con

vent

ion

did

not

attr

act

suff

icie

nt r

atif

icat

ions

to

ente

r in

to f

orce

?N

/A

Yes

No

3.D

o yo

u th

ink

that

an

inte

rnat

iona

l in

stru

men

t go

vern

ing

liab

ilit

y ar

isin

g fr

om m

ulti

mod

al t

rans

port

atio

n w

ould

be

desi

rabl

e?92

%8%

4.

If s

o, w

hich

of

the

foll

owin

g ap

proa

ches

do

you

cons

ider

the

mos

t ap

prop

riat

e?(a

)N

ew i

nter

nati

onal

ins

trum

ent

to g

over

n m

ulti

mod

al t

rans

port

;(a

)39

%(b

)R

evis

ion

of t

he 1

980

MT

Con

vent

ion;

(b)

26%

(c)

Ext

ensi

on o

f a

sea-

carr

iage

lia

bili

ty r

egim

e to

all

MT

con

trac

ts i

nvol

ving

a s

ea l

eg;

(c)

13%

(d)

Ext

ensi

on o

f a

road

-car

riag

e li

abil

ity

regi

me

to a

ll M

T c

ontr

acts

inv

olvi

ng a

roa

d le

g;(d

)13

%(e

)O

ther

.(e

)9%

Yes

No

5.

If c

once

rted

eff

orts

wer

e m

ade

tow

ards

the

dev

elop

men

t of

a n

ew i

nter

nati

onal

ins

trum

ent,

wou

ld y

ou s

uppo

rt t

hese

eff

orts

?98

%2%

Yes

No

6.

Sho

uld

any

poss

ible

ins

trum

ent

gove

rnin

g m

ulti

mod

al t

rans

port

atio

n co

ver

liab

ilit

y fo

r de

lay?

90%

10%

7.

Whi

ch o

f th

e fo

llow

ing

liab

ilit

y sy

stem

s w

ould

you

thi

nk i

s m

ost

appr

opri

ate

in a

ny i

nstr

umen

t go

vern

ing

MT

:(a

)U

nifo

rm s

yste

m(a

)48

%(b

)N

etw

ork

syst

em(b

)28

%(c

)M

odif

ied

syst

em(c

)24

%

8.

If y

ou h

ave

expr

esse

d a

pref

eren

ce f

or 7

(b)

or (

c),

whi

ch t

ypes

of

prov

isio

ns s

houl

d va

ry:

(a)

Onl

y th

e pr

ovis

ions

on

lim

itat

ion

of l

iabi

lity

;(a

)59

%(b

)O

ther

typ

es o

f pr

ovis

ions

. (b

)41

%

9.

Sho

uld

liab

ilit

y fo

r lo

ss,

dam

age

or d

elay

und

er a

ny i

nter

nati

onal

ins

trum

ent

be:

(a)

(i)

Fau

lt-b

ased

: li

abil

ity

only

in

case

of

faul

t(i

)53

%(i

i)S

tric

t: l

iabi

lity

irr

espe

ctiv

e of

fau

lt.

(ii)

47%

Yes

No

(b)

In a

ny e

vent

, li

abil

ity

shou

ld b

e su

bjec

t to

cer

tain

exc

epti

ons.

85%

15%

10.P

leas

e ex

pres

s an

y vi

ews

you

may

hav

e on

the

que

stio

n of

mon

etar

y li

mit

atio

n of

car

rier

’s/M

TO

’s l

iabi

lity

.N

/A

11.S

houl

d an

y in

tern

atio

nal

inst

rum

ent

gove

rnin

g M

T b

e in

the

for

m o

f:(a

)A

con

vent

ion

whi

ch a

ppli

es o

n a

man

dato

ry b

asis

and

pro

vide

s m

anda

tory

rul

es o

n li

abil

ity;

(a)

58%

(b)

A c

onve

ntio

n w

hich

app

lies

on

a no

n-m

anda

tory

bas

is,

but

prov

ides

man

dato

ry r

ules

on

liab

ilit

y;(b

)35

%(c

) O

ther

. (c

)7%

12.U

nder

exi

stin

g la

ws

and

regu

lati

ons

on M

T t

he c

ontr

acti

ng c

arri

er/M

TO

is

resp

onsi

ble

thro

ugho

ut t

he e

ntir

e tr

ansp

ort.

Sho

uld

any

inte

rnat

iona

l in

stru

men

t go

vern

ing

mul

tim

odal

tra

nspo

rt:

(a)

Ado

pt t

he s

ame

appr

oach

;(a

) 76

%(b

) A

llow

the

con

trac

ting

car

rier

/MT

O t

o co

ntra

ct o

ut o

f ce

rtai

n pa

rts

of t

he t

rans

port

or

out

of c

erta

in f

unct

ions

rel

ated

to

the

perf

orm

ance

of

(b)

24%

the

cont

ract

by

incl

udin

g a

clau

se t

o th

is e

ffec

t in

the

tra

nspo

rt d

ocum

ent

(or

elec

tron

ic e

quiv

alen

t).

13.W

hich

int

erna

tion

al c

onve

ntio

n(s)

gov

erni

ng l

iabi

lity

in

the

fiel

d of

car

riag

e of

goo

ds b

y se

a, l

and

and

air

have

bee

n ra

tifi

ed o

r ac

cede

d to

N

/Aby

you

r co

untr

y?

*UNCITRAL-2003-p535-583rev.qxd 28/6/06 7:23 pm Page 581

582 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIV

larly among non-governmental respondents, believe that matterslike basis of liability or exceptions to liability and time for suitshould vary.

15. Early agreement on the most appropriate type of liabilitysystem, including the extent to which liability rules should beuniform, would clearly be central to the prospect of success ofany discussions on a new international instrument.

3.3 Limitation of liability

16. Closely linked to the question of the appropriate type ofliability system is the issue of limitation of liability on which,again, views are at this stage divided.

17. Overall, a majority of respondents provided comments sup-portive of or accepting the need for limitation of liability.However, the responses reflect a broad variety of views on theissue. A considerable number, both among governmental andindustry respondents, question the whole idea of limitation of lia-bility whereas others, particularly those representing the maritimeand freight-forwarding industry, emphasize the desirability of lim-itation of liability in line with unimodal conventions, in particu-lar due to the continued relevance of unimodal conventions in thecontext of recourse actions by multimodal carriers against uni-modal subcontracting carriers.

18. In relation to the various possible monetary levels of lim-itation mentioned, it is noticeable that those concerned with orrepresenting the interests of sea carriers tend to advocate lowerlimitation amounts than most other respondents.

19. Limitation of liability is clearly a central issue, as views onlimitation appear to both affect and be influenced by views on thenature and type of liability system. Although in negotiations forany international convention the issue of limitation of liability tra-ditionally arises at a relatively late stage in the proceedings—onceagreement on substantive rules has been achieved—it may be thatsome earlier principled discussions on possible levels of limitationwould benefit constructive debate on other central issues.

3.4 Basis of liability

20. Both among Governments and among other respondents,broadly equal numbers expressed support for (a) a fault-based lia-bility system (53%) and (b) a strict liability system (47%).However, a clear majority across the board (85%) considered thatcertain exceptions to liability should apply in any event.

3.5 Mandatory or non-mandatory?

21. Overall, a majority of all respondents (58%) consideredthat any international instrument should be in the form of a con-vention, which applies on a mandatory basis and provides manda-tory liability rules.

22. However, a sizeable minority (35%) considered that a non-mandatory convention, which could be contracted into or out ofbut provided mandatory liability rules overriding any conflictingcontractual terms, would be appropriate. This suggests that it maybe worthwhile to explore in more detail the advantages and dis-advantages of possible non-mandatory options for an internationalinstrument.

3.6 Contracting carrier’s responsibility throughout the multimodal transaction

23. A clear majority of respondents from all quarters (76%)considered that any international instrument governing multi-modal transportation should adopt the same approach as existing

statutory and contractual multimodal liability regimes by provid-ing for continuing responsibility of the contracting carrier/MTOthroughout the entire transport.

24. In particular, the responses indicate that the use of stan-dard clauses in a transport document (or electronic equivalent) tolimit the scope of contract and thus the contracting carrier’sresponsibility and liability is generally not considered to beacceptable.

25. In this respect, the responses may be of particular rele-vance to any further consideration of provisions in the DraftInstrument on Transport Law under the auspices of UNCITRAL.As has been pointed out by UNCTAD in its commentary,5

Articles 5.2.2 and 4.3 of the Draft Instrument, as proposed, wouldarguably allow a contracting carrier to disclaim liability arisingout of (a) certain functions (e.g. stowage, loading, discharge) and(b) certain parts (stages) of the contract performed by anotherparty. In its current form, the Draft Instrument does not precludethe use of standard terms to this effect in the transport document(or electronic equivalent) and thus does not safeguard against abu-sive practice. As a result, a shipper might engage a carrier totransport its goods from door-to-door against the payment offreight and find that the carrier, under terms of contract issued instandard form by the carrier, was not responsible throughout allstages of the transport and/or for all aspects of the transportation.This situation would not conform to the legitimate expectationsof transport users, who in many cases arrange with one party forthe transportation of goods from door-to-door so as to ensure thatone party will be responsible throughout all stages of the trans-action. Responses to the UNCTAD questionnaire suggest strongopposition across the board to any change in approach along thelines currently proposed in the Draft Instrument.

Issues arising for further consideration

26. The main aim of the UNCTAD questionnaire was to takea step towards establishing the feasibility of a new internationalmultimodal liability regime, in particular, the desirability in prin-ciple of international regulation, the acceptability of potentialsolutions and approaches and the willingness of all interested par-ties, both public and private, to pursue this matter further.

27. The large number of responses to the questionnaire and thedetail, in many cases, of the comments provided by public andprivate parties across a broad spectrum suggests that there is ageneral willingness to engage in an exchange of views on futureregulation of liability for multimodal transport. This is encour-aging, given the continuous growth of multimodal transportationagainst a background of an increasingly fragmented and complexlegal framework at the international level. Both users andproviders of transport services as well as Governments and otherinterested parties clearly recognize that the existing legal frame-work is not satisfactory and that, in principle, an internationalinstrument would be desirable. However, views on how the aimof achieving uniform international regulation may be accom-plished are divided, partly as a result of conflicting interests,partly due to the perceived difficulty in agreeing a workable com-promise, which would provide clear benefits as compared withthe existing legal framework.

28. The apparently broad divide in opinion on closely linkedkey issues, such as type of liability system (uniform, network or

5Available as part of the background documentation for the UNCITRAL Working Group on Transport Law in all UN languages(UNCITRAL document A/CN.9/WG.III/WP.21/Add.1). The UNCTADcommentary, with the text of the Draft Instrument integrated for ease ofreference, is also available on the www.unctad.org website(UNCTAD/SDTE/TLB/4).

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Part Two. Studies and reports on specific subjects 583

modified), basis of liability (strict or fault-based) and, importantly,limitation of liability may be seen as an obstacle to the develop-ment of a successful international instrument. However, it mayequally be seen as a reflection of the fact that—despite the expan-sion of multimodal transportation and a proliferation of nationalmultimodal liability regimes—there has, in recent times, been littlefocused debate, involving all interested parties at the global level.

29. The need for increased dialogue on controversial mattersas well as on potential ways forward is illustrated by the fact thatsome possible options, which have tentatively been suggested bya number of respondents have yet to be explored in any interna-tional forum.

30. For instance, several respondents indicated support for thedevelopment of a binding international liability regime based oncommercially accepted contractual solutions, i.e. the UNCTAD/ICC Rules. The UNCTAD/ICC Rules share significant charac-teristics with the 1980 MT Convention in that both operate a mod-ified liability system, which (entirely or to an extent) retains thenetwork-approach in relation to limitation of liability. However,while the 1980 MT Convention has not generated much supportwithin the transport industry, the UNCTAD/ICC Rules haveclearly been quite successful and have been adopted by FIATAin their FBL 92 and by BIMCO in Multidoc 95. As proposals fora legally binding international instrument building on theUNCTAD/ICC Rules as a basis for negotiations have not yet beenconsidered in any international forum, their further explorationmay be worthwhile.

31. An altogether different approach to liability regulation forinternational multimodal transport lies in proposals for the devel-

opment of a non-mandatory regime, which provides uniform andhigh levels of liability. Proponents of this approach argue thatsuch a non-mandatory regime would, as a matter of commercialdecision-making, appear an attractive proposition to both shipperswho are interested in a simple and cost-effective regime and tocarriers who wish to offer such a regime as part of their service.A non-mandatory solution of this kind has not yet been consid-ered in any international forum6 and may also be worth investi-gating.

32. Although it would be presumptuous to try to foreshadowthe substance and development of any further detailed discussionsinvolving all interested parties, it appears that there is significantinterest in further constructive debate. In order to facilitate andsupport this process, it would seem that the convening of an infor-mal international forum under the auspices of UNCTAD, togetherwith other interested UN organizations, such as UNCITRAL andUNECE, would be both appropriate and timely. The forum wouldenable frank discussion of controversial key issues highlighted inthis report and serve as a platform at which priorities and poten-tially attractive ways forward may be explored more fully by allinterested public and private parties. While, clearly, there is atpresent much controversy regarding the best approach that mightbe pursued in relation to several key issues, certain areas of con-sensus have also emerged. These, it is hoped, will serve as a basisfor constructive and fruitful discussion of possible regulation ofmultimodal transportation.

6For a European study discussing this approach, see IntermodalTransportation and Carrier Liability, Luxembourg, Office for OfficialPublications of the European Communities, 1999.

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I. INTRODUCTION: PREVIOUS DELIBERATIONSOF THE WORKING GROUP

1. At its thirty-third session, in 2000, the Commission helda preliminary exchange of views on proposals for futurework in the field of electronic commerce. Three topics weresuggested as indicating possible areas where work by theCommission would be desirable and feasible. The first dealtwith electronic contracting, considered from the perspectiveof the United Nations Convention on Contracts for theInternational Sale of Goods (the “United Nations SalesConvention”);1 the second was online dispute settlement;and the third topic was dematerialization of documents oftitle, in particular in the transport industry.

2. The Commission welcomed the proposal to study furtherthe desirability and feasibility of undertaking future work inrespect of those topics. The Commission generally agreedthat, upon completing the preparation of the Model Law onElectronic Signatures, the Working Group would be expectedto examine, at its thirty-eighth session, some or all of theabove-mentioned topics, as well as any additional topic, witha view to making more specific proposals for future work by

the Commission at its thirty-fourth session (Vienna, 25 June-13 July 2001). It was agreed that work to be carried out bythe Working Group could involve consideration of severaltopics in parallel as well as preliminary discussion of the con-tents of possible uniform rules on certain aspects of theabove-mentioned topics.2 The Working Group consideredthose proposals at its thirty-eighth session, in 2001, on thebasis of a set of notes dealing with a possible convention toremove obstacles to electronic commerce in existing inter-national conventions (A/CN.9/WG.IV/WP.89), dematerial-ization of documents of title (A/CN.9/WG.IV/WP.90) andelectronic contracting (A/CN.9/WG.IV/WP.91).

3. The Working Group held an extensive discussion onissues related to electronic contracting (A/CN.9/484, paras.94-127). The Working Group concluded its deliberations onfuture work by recommending to the Commission that worktowards the preparation of an international instrument deal-ing with certain issues in electronic contracting be startedon a priority basis. At the same time, it was agreed to rec-ommend to the Commission that the secretariat should beentrusted with the preparation of the necessary studies con-

585

V. ELECTRONIC COMMERCE

A. Report of the Working Group IV (Electronic Commerce) on the work of its fortieth session (Vienna, 14-18 October 2002)

(A/CN.9/527) [Original: English]

CONTENTSParagraphs

I. Introduction: previous deliberations of the Working Group. . . . . . . . . . . . . . . . . . . 1-13

II. Organization of the session . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-20

III. Summary of deliberations and decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21-23

IV. Legal barriers to the development of electronic commerce in international instruments relating to international trade . . . . . . . . . . . . . . . . . . . . . . 24-71

A. International trade and development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31-48

B. Transport and communications instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49-68

1. Customs matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49-50

2. Road traffic. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51-62

3. Transport by rail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

4. Water transport. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64-66

5. Multimodal transport . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67-68

C. Commercial arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69-71

V. Electronic contracting: provisions for a draft convention. . . . . . . . . . . . . . . . . . . . . 72-126

1United Nations, Treaty Series, vol. 1489, No. 25567, p. 3.

2Official Records of the General Assembly, Fifty-fifth Session,Supplement No. 17 (A/55/17), paras. 384-388.

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cerning three other topics considered by the Working Group,namely: (a) a comprehensive survey of possible legal barri-ers to the development of electronic commerce in interna-tional instruments; (b) a further study of the issues relatedto transfer of rights, in particular, rights in tangible goods,by electronic means and mechanisms for publicizing andkeeping a record of acts of transfer or the creation of secu-rity interests in such goods; and (c) a study discussing theUNCITRAL Model Law on International CommercialArbitration,3 as well as the UNCITRAL Arbitration Rules,4

to assess their appropriateness for meeting the specific needsof online arbitration (A/CN.9/484, para. 134).

4. At the thirty-fourth session of the Commission, in 2001,there was wide support for the recommendations made bythe Working Group, which were found to constitute a soundbasis for future work by the Commission. The views varied,however, as regards the relative priority to be assigned tothe topics. One line of thought was that a project aimed atremoving obstacles to electronic commerce in existinginstruments should have priority over the other topics, inparticular over the preparation of a new international instru-ment dealing with electronic contracting. It was said thatreferences to “writing”, “signature”, “document” and othersimilar provisions in existing uniform law conventions andtrade agreements already created legal obstacles and gener-ated uncertainty in international transactions conducted byelectronic means. Efforts to remove those obstacles shouldnot be delayed or neglected by attaching higher priority toissues of electronic contracting.

5. The prevailing view, however, was in favour of theorder of priority that had been recommended by theWorking Group. It was pointed out, in that connection, thatthe preparation of an international instrument dealing withissues of electronic contracting and the consideration ofappropriate ways for removing obstacles to electronic com-merce in existing uniform law conventions and trade agree-ments were not mutually exclusive. The Commission wasreminded of the common understanding reached at itsthirty-third session that work to be carried out by theWorking Group could involve consideration of severaltopics in parallel as well as preliminary discussion of thecontents of possible uniform rules on certain aspects of theabove-mentioned topics.5

6. There were also differing views regarding the scope offuture work on electronic contracting, as well as the appro-priate moment to begin such work. Pursuant to one view,the work should be limited to contracts for the sale of tan-gible goods. The opposite view, which prevailed in thecourse of the Commission’s deliberations, was that theWorking Group on Electronic Commerce should be given abroad mandate to deal with issues of electronic contracting,without narrowing the scope of the work from the outset. Itwas understood, however, that consumer transactions andcontracts granting limited use of intellectual property rightswould not be dealt with by the Working Group. TheCommission took note of the preliminary working assump-

tion made by the Working Group that the form of the instru-ment to be prepared could be that of a stand-alone conven-tion dealing broadly with the issues of contract formation inelectronic commerce (A/CN.9/484, para. 124), without cre-ating any negative interference with the well-establishedregime of the United Nations Sales Convention (A/CN.9/484, para. 95), and without unduly interfering with the lawof contract formation in general. Broad support was givento the idea expressed in the context of the thirty-eighth ses-sion of the Working Group that, to the extent possible, thetreatment of Internet-based sales transactions should notdiffer from the treatment given to sales transactions con-ducted by more traditional means (A/CN.9/484, para. 102).

7. As regards the timing of the work to be undertaken bythe Working Group, there was support for commencingconsideration of future work without delay during the thirdquarter of 2001. However, strong views were expressedthat it would be preferable for the Working Group to waituntil the first quarter of 2002, so as to afford States suffi-cient time to hold internal consultations. The Commissionaccepted that suggestion and decided that the first meetingof the Working Group on issues of electronic contractingshould take place in the first quarter of 2002.6

8. At its thirty-ninth session, the Working Group consid-ered a note by the secretariat discussing selected issues onelectronic contracting. That note also contained, as itsannex I, an initial draft tentatively entitled “PreliminaryDraft Convention on [International] Contracts Concludedor Evidenced by Data Messages” (A/CN.9/WG.IV/WP.95).The Working Group further considered a note by the sec-retariat transmitting comments that had been formulated byan ad hoc expert group established by the InternationalChamber of Commerce to examine the issues raised in doc-ument A/CN.9/WG.IV/WP.95 and the draft provisions setout in its annex I (A/CN.9/WG.IV/WP.96).

9. The Working Group began its deliberation by consid-ering the form and scope of the preliminary draft conven-tion (see A/CN.9/509, paras. 18-40). The Working Groupagreed to postpone a discussion on exclusions from thedraft convention until it had had an opportunity to considerthe provisions related to location of the parties and con-tract formation. In particular, the Working Group decidedto proceed with its deliberations by first taking up articles7 and 14, both of which dealt with issues related to thelocation of the parties (A/CN.9/509, paras. 41-65). After ithad completed its initial review of those provisions, theWorking Group proceeded to consider the provisions deal-ing with contract formation in articles 8-13 (A/CN.9/509,paras. 66-121). The Working Group concluded its deliber-ations on the draft convention with a discussion on draftarticle 15 (A/CN.9/509, paras. 122-125). The WorkingGroup agreed that it should consider articles 2-4, dealingwith the sphere of application of the draft convention andarticles 5 (definitions) and 6 (interpretation) at its fortiethsession. The Working Group requested the secretariat toprepare a revised version of the preliminary draft conven-tion, based on those deliberations and decisions for con-sideration by the Working Group at its fortieth session.

3Ibid., Fortieth Session, Supplement No. 17 (A/40/17), annex I.4Ibid., Thirty-first Session, Supplement No. 17 (A/31/17, Chap. V, sect. C.5Ibid., Fifty-sixth Session, Supplement No. 17 (A/56/17), para. 293. 6Ibid., para. 295.

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Part Two. Studies and reports on specific subjects 587

10. At that session, the Working Group was alsoinformed of the progress that had been made by the sec-retariat in connection with the survey of possible legalobstacles to electronic commerce in existing trade-relatedinstruments. The Working Group was informed that thesecretariat had begun the work by identifying and review-ing trade-relevant instruments from among the largenumber of multilateral treaties that were deposited withthe Secretary-General. The secretariat had identified 33treaties as being potentially relevant for the survey andanalysed possible issues that might arise from the use ofelectronic means of communications under those treaties.The preliminary conclusions reached by the secretariat inrelation to those treaties were set out in a note by the sec-retariat (A/CN.9/WG.IV/WP.94) that was submitted to theWorking Group at its thirty-ninth session, in March 2002.

11. The Working Group took note of the progress thathad been made by the secretariat in connection with thesurvey, but did not have sufficient time to consider the pre-liminary conclusions of the survey. The Working Grouprequested the secretariat to seek the views of member andobserver States on the survey and the preliminary conclu-sions indicated therein and to prepare a report compilingsuch comments for consideration by the Working Group ata later stage. The Working Group took note of a statementstressing the importance that the survey being conductedby the secretariat should reflect trade-related instrumentsemanating from the various geographical regions repre-sented on the Commission. For that purpose, the WorkingGroup requested the secretariat to seek the views of otherinternational organizations, including organizations of theUnited Nations system and other intergovernmental organ-izations, as to whether there were international trade instru-ments in respect of which those organizations or theirmember States acted as depositaries that those organiza-tions would wish to be included in the survey being con-ducted by the secretariat.

12. The Commission considered the Working Group’sreport at its thirty-fifth session, in 2002. The Commissionnoted with appreciation that the Working Group hadstarted its consideration of a possible international instru-ment dealing with selected issues on electronic contract-ing. The Commission reaffirmed its belief that aninternational instrument dealing with certain issues of elec-tronic contracting might be a useful contribution to facil-itate the use of modern means of communication incross-border commercial transactions. The Commissioncommended the Working Group for the progress made inthat regard. However, it also took note of the varyingviews that were expressed within the Working Group con-cerning the form and scope of the instrument, its under-lying principles and some of its main features. TheCommission noted, in particular, the proposal that theWorking Group’s considerations should not be limited toelectronic contracts, but should apply to commercial con-tracts in general, irrespective of the means used in theirnegotiation. The Commission was of the view that memberand observer States participating in the Working Group’sdeliberations should have ample time for consultations onthose important issues. For that purpose, the Commissionconsidered that it might be preferable for the WorkingGroup to postpone its discussions on a possible interna-

tional instrument dealing with selected issues on electroniccontracting until its forty-first session (New York, 5-9May 2003).7

13. As regards the Working Group’s consideration ofpossible legal obstacles to electronic commerce that mayresult from trade-related international instruments, theCommission reiterated its support for the efforts of theWorking Group and the secretariat in that respect. TheCommission requested the Working Group to devote mostof its time at its fortieth session, in October 2002, to a sub-stantive discussion of various issues that had been raisedin the secretariat’s initial survey (A/CN.9/WG.IV/WP.94).8

II. ORGANIZATION OF THE SESSION

14. The Working Group on Electronic Commerce, whichwas composed of all States members of the Commission,held its fortieth session in Vienna from 14 to 18 October2002. The session was attended by representatives of thefollowing States members of the Working Group:Argentina, Austria, Brazil, Cameroon, Canada, China,Colombia, France, Germany, Hungary, India, Iran (IslamicRepublic of), Italy, Japan, Lithuania, Mexico, RussianFederation, Singapore, Spain, Sudan, Thailand and UnitedStates of America.

15. The session was attended by observers from the fol-lowing States: Algeria, Australia, Bahrain, Belgium,Denmark, Indonesia, Ireland, Lebanon, Norway, Peru,Philippines, Poland, Qatar, Republic of Korea, Senegal,Slovakia, Switzerland, Syrian Arab Republic, Tunisia,Turkey, Ukraine, Venezuela and Yemen.

16. The session was also attended by observers from thefollowing international organizations: (a) organizations ofthe United Nations system: United Nations Conference onTrade and Development (UNCTAD), United NationsIndustrial Development Organization and WorldIntellectual Property Organization (WIPO); (b) intergov-ernmental organizations: Asian Clearing Union andCommonwealth secretariat, European Commission; (c)non-governmental organizations invited by theCommission: Centre for International Legal Studies,International Chamber of Commerce, Moot AlumniAssociation and Nordic Industrial Fund.

17. The Working Group elected the following officers:

Chairman: Jeffrey Chan Wah Teck (Singapore)

Rapporteur: Ligia González (Mexico)

18. The Working Group had before it the following doc-uments: (a) provisional agenda (A/CN.9/WG.IV/WP.97);(b) the note by the secretariat referred to in paragraph 10above (A/CN.9/WG.IV/WP.94); (c) a note by the secre-tariat transmitting comments on the survey that were

7Ibid., Fifty-seventh Session, Supplement No. 17 (A/57/17), para. 206(for the dates of the future sessions of the Working Group, see paras. 296(d) and 297 (d)).

8Ibid., para. 207.

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588 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIV

received from member and observer States, from inter-governmental organizations and international non-govern-mental organizations (A/CN.9/WG.IV/WP.98 and Add.1-4)in response to a circular communication issued by the sec-retariat pursuant to the Working Group’s request (see para.11 above); and (d) the notes by the secretariat referred toin paragraph 8 above (A/CN.9/WG.IV/WP.95 andA/CN.9/WG.IV/WP.96).

19. The following background documents were alsomade available to the Working Group: (a) report of theWorking Group on Electronic Commerce on the work ofits thirty-ninth session (A/CN.9/509); (b) note by the sec-retariat on legal barriers to the development of electroniccommerce in international instruments relating to interna-tional trade (A/CN.9/WG.IV/WP.89); and (c) proposal byFrance on legal aspects of electronic commerce(A/CN.9/WG.IV/WP.93).

20. The Working Group adopted the following agenda:

1. Election of officers.

2. Adoption of the agenda.

3. Legal barriers to the development of electroniccommerce in international instruments relating tointernational trade.

4. Electronic contracting: provisions for a draft convention.

5. Other business.

6. Adoption of the report.

III. SUMMARY OF DELIBERATIONS AND DECISIONS

21. The Working Group reviewed the survey of possiblelegal barriers to electronic commerce contained in docu-ment A/CN.9/WG.IV/WP.94. The Working Group gener-ally agreed with the analysis and endorsed therecommendations that had been made by the secretariat(see A/CN.9/WG.IV/WP.94, paras. 24-71). The WorkingGroup agreed to recommend that the secretariat take up thesuggestions for expanding the scope of the survey so as toreview possible obstacles to electronic commerce in addi-tional instruments that had been proposed for inclusion inthe survey by other organizations and explore with thoseorganizations the modalities for carrying out the necessarystudies, taking into account the possible constraints put onthe secretariat by its current workload. The Working Groupinvited member States to assist the secretariat in that taskby identifying appropriate experts or sources of informa-tion in respect of the various specific fields of expertisecovered by the relevant international instruments.

22. The Working Group reviewed the preliminary draftconvention contained in annex I of the note by the secre-tariat (A/CN.9/WG.IV/WP.95). The decisions and deliber-ations of the Working Group with respect to the draftconvention are reflected in section V below (see paras. 72-126). The secretariat was requested to prepare a revisedversion of the preliminary draft convention, based on thosedeliberations and decisions for consideration by the

Working Group at its forty-first session, scheduled to takeplace in New York from 5 to 9 May 2003.

23. The Working Group began its deliberation by a gen-eral discussion on the scope of the preliminary draft con-vention (see paras. 72-81 below). The Working Groupproceeded to consider articles 2-4, dealing with the sphereof application of the draft convention and articles 5 (defi-nitions) and 6 (interpretation) (see paras. 82-126). TheWorking Group requested the secretariat to prepare arevised text of the preliminary draft convention for con-sideration by the Working Group at its forty-first session.

IV. LEGAL BARRIERS TO THE DEVELOPMENT OF ELECTRONIC COMMERCE IN

INTERNATIONAL INSTRUMENTS RELATING TO INTERNATIONAL TRADE

24. The Working Group was reminded that the topicunder consideration originated from a proposal, which hadbeen considered by the Working Group at its thirty-eighthsession, in 2001, for the formulation of an interpretativeagreement, in simplified form, for the purpose of specify-ing and supplementing the definition of the terms “writ-ing”, “signature” and “document” in all existing and futureinternational instruments, irrespective of their legal status.At that time, however, the Working Group had felt that,prior to recommending a specific course of action to theCommission, it should consider the nature and context ofsuch possible barriers to electronic commerce, whichshould be identified in a comprehensive and detailed surveyof international trade-related instruments to be carried outby the secretariat (A/CN.9/484, para. 86).

25. The Working Group was informed that, as a start-ing point, the secretariat had limited its survey of possi-ble barriers to electronic commerce in existingtrade-related conventions to international conventions andagreements that were deposited with the Secretary-General. The Working Group was advised that the secre-tariat had sought the views of some 60 intergovernmentaland international non-governmental organizations, pur-suant to a request by the Working Group, at its thirty-ninth session, in 2002, as to whether they wishedadditional instruments to be included in the secretariat’ssurvey. The replies that had been received by the secre-tariat, as well as the views of Governments on the topicin general, were reflected in a note by the secretariat(A/CN.9/WG.IV/WP.98 and Add.1-4).

General comments

26. There was strong support for the idea that theWorking Group’s review of existing trade-related instru-ments should not be limited to identifying possible obsta-cles to electronic commerce and formulating proposals forremoving them. Equally important, it was said, would bea consideration of action that might be needed to facilitateelectronic transactions in the areas covered by those instru-ments. While there were no objections to that proposal, itwas pointed out that the consideration of measures to facil-itate electronic commerce should focus on rules of private

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Part Two. Studies and reports on specific subjects 589

law that applied to commercial transactions and not on gen-eral measures to facilitate trade among States, as it wasgenerally felt that issues of trade policy were not withinthe mandate of the Working Group.

27. A concern was raised with respect to possible dupli-cation of effort, given the work on electronic commerceissues being conducted in other international bodies, suchas the World Trade Organization (WTO), the Asia PacificEconomic Cooperation and the Organisation for EconomicCooperation and Development. The Working Group wasinformed that a number of international bodies had under-taken work on electronic commerce issues at the requestof their members and that such issues ranged from privatelaw issues to taxation, privacy matters and consumer pro-tection issues. In most cases, such work did not overlapwith the work of the Commission. In the instances wherethere might exist aspects of common interest, coordinationof efforts and consistency of approach might be ensuredby contemplating the provision by the Working Group ofexpert advice and assistance on specific questions uponrequest by the concerned organizations. Such advice andassistance might take the form, for instance, of respondingto queries from other international bodies, holding jointmeetings or preparing comments on draft instruments ofother bodies at their request. The secretariat was requested,within the constraints of resources, to prepare reports onthe activities of other international bodies in the area ofelectronic commerce.

28. The Working Group held an extensive discussion onthe relationship between its work concerning removal ofbarriers to electronic commerce in existing internationalconventions and the preparation of a draft convention onelectronic contracting. The Working Group was mindful ofthe Commission’s recommendation that the WorkingGroup’s consideration of possible barriers to the develop-ment of electronic commerce in existing internationalinstruments should be carried out simultaneously with othertopics on the Working Group’s work programme, includ-ing, in particular, a possible draft convention on electroniccontracting and issues related to the transferability of rightsin an electronic environment.

29. It was observed that the preliminary conclusions ofthe survey contained in the note by the secretariat(A/CN.9/WG.IV/WP.94) showed that all legal instrumentssurveyed fell into the following few categories with respectto their potential for raising barriers to electronic commerce:

(a) A large group of instruments appeared to raise noissues and require no action;

(b) A second group of surveyed instruments appearedto raise issues that could not be solved by the simple prin-ciple of electronic equivalent, because, for example, theyimplied notions of “location”, “dispatch and receipt of anoffer” or similar notions that required a more complexadaptation to the electronic environment. Such issues, itwas noted, were among those covered by the draft con-vention on electronic contracting (see A/CN.9/WG.IV/WP.95, annex I) or should fall within the scope of otherprojects under consideration by the Working Group, suchas transfer of rights in tangible goods or other rights byelectronic means, or online dispute settlement systems;

(c) A third group of surveyed instruments appearedto raise issues of a trade policy nature that would be out-side the area of work of UNCITRAL;

(d) A last group of instruments included two instru-ments relating to international transport by sea and by roadthat, in all likelihood, might require some specific adapta-tion provisions.

30. The Working Group agreed to consider the surveythat had been prepared by the secretariat with a view toascertaining whether the issues had been correctly identi-fied by the secretariat, whether there were additional mat-ters to be considered and what action, if any, should berecommended in respect of each instrument. The WorkingGroup also agreed that the question of the form of anyinstrument to be prepared to address those issues shouldbe left for an appropriate time, after consultations had beenconducted on the questions of public international lawraised by the topic under consideration. Lastly, theWorking Group agreed that it should attempt to identifythe common elements between removing legal barriers toelectronic commerce in existing instruments and a possi-ble international convention on electronic contracting.

A. International trade and development

Convention on Transit Trade of Land-locked States (New York, 8 July 1965)9

31. The Working Group noted that the provisions of theConvention were of a trade policy nature. They wereaddressed to States and did not establish rules directlyapplicable to private law transactions. Furthermore, theextent to which electronic communications might be sub-stituted for paper-based documents for the purposes of theConvention was largely dependent upon the capabilityand readiness of public authorities in the contracting par-ties to the Convention to process such documents in elec-tronic form.

32. In the light of the above, the Working Group agreedthat no action should be recommended in respect of theConvention.

Convention on the Limitation Period in the International Sale of Goods (New York, 14 June 1974)

and Protocol thereto (Vienna, 11 April 1980)10

33. The Working Group noted that the provisions in theConvention that could give rise to uncertainties in con-nection with electronic commerce could be grouped intofour main categories. The first category contained thoseprovisions which contemplated notices or declarations thatmight be exchanged by the parties, with an implicit subsetof that category being the timing of the notice. The secondcategory of provisions consisted of those which expresslycontemplated written notices or communications andincluded definitions of “writing”, while the third categorycomprised those provisions which referred to the time and

9United Nations, Treaty Series, vol. 597, No. 8641, p. 3.10Ibid., vol. 1511, No. 26119, p. 1.

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590 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIV

place of the formation of the contract and included suchimportant issues as the time and scope of the contract.Finally, the fourth category contained those provisionswhich referred to an existing undertaking or agreementbetween the parties.

34. The Working Group noted that the analysis of theConvention and its Protocol had served as a model forthe analysis of other conventions in the secretariat’ssurvey and that analyses of similar concepts in later por-tions of the survey referred back to the earlier analysisof the Convention. The Working Group was mindful, inparticular, of the close relationship between theConvention and the United Nations Sales Convention andthat discussion of the legal barriers to electronic com-merce in one instrument would necessarily have implica-tions for the other.

35. It was noted that there were two main issues evidentin the Convention: the question of the validity of commu-nications in the contractual context and the question of thetime and place of dispatch and receipt of such communi-cation. In that regard, it was suggested that those issueswere germane to the types of issues being proposed forconsideration under the draft new instrument on electroniccontracting, so that the substantive solution developed inconnection with that new instrument should, at least con-ceptually, be the same for addressing issues raised underthe Convention.

36. As regards the appropriate source of substantive rulesto address those issues, support was expressed for the sug-gestion that reliance ought to be placed on the solutionsoffered in the UNCITRAL Model Law on ElectronicCommerce. Another view, however, was that developingrules to deal with the issues raised under the Conventionmight require going beyond a simple transposition of thecriteria of functional equivalence contained in the ModelLaw. Issues related to the manner in which notifications ordeclarations were deemed to be made, it was said, wereexamples of matters not directly covered by the provisionsof the Model Law.

37. The Working Group took note of the view that theModel Law might not always offer the means for resolv-ing legal barriers to electronic commerce in internationaltrade, since the Model Law was intended to deal withobstacles in national law. The Working Group was opento the idea that removal of legal barriers to electronic com-merce in existing international instruments might requireconsideration of matters not covered in the Model Law oreven a forward-looking development of principles laiddown in the Model Law. Nevertheless, the Working Groupwas mindful of the fact that the Model Law had becomea widely adopted model for domestic laws on electroniccommerce throughout the world. It was noted that the bodyof national jurisprudence arising from the enactment ofdomestic provisions based upon the Model Law was devel-oping a certain uniform approach to issues of electroniccommerce.

38. Having considered those general views, the WorkingGroup noted that there was a general agreement as to thetypes of issues that arose under the Convention that

required consideration by the Working Group (see para. 29above). The Working Group took the view that it waspreferable to hold a discussion on the appropriate solutionfor those issues in the context of its consideration of thedraft convention on electronic contracting, to the extent thatthe issues were common. It was noted, in that connection,that the Working Group, at its thirty-ninth session, hadagreed that an instrument on electronic contracting shouldbe expanded beyond issues related to the formation of con-tracts so as to cover more broadly the uses of electronicmeans of communications in the context of commercialtransactions (A/CN.9/509, para. 36).

United Nations Convention on Contracts for theInternational Sale of Goods (Vienna, 11 April 1980)

39. The Working Group was of the view that the issuesthat had been identified in connection with the Conventionon the Limitation Period in the International Sale of Goodswere also present in the context of the United Nations SalesConvention. In addition to those general issues, the UnitedNations Sales Conventions gave rise to two particular setsof issues, namely, whether certain intangible goods couldbe regarded as being covered by the Convention and whatacts constituted performance of a sales contract in respectof those goods.

40. Before turning to those specific issues, the WorkingGroup reverted to its initial discussion of issues related tothe use of electronic communications for the purpose ofexchanging notices an declarations relating to the sales con-tract, an issue that arose under the United Nations SalesConvention in the same manner as it arose under theConvention on the Limitation Period in the InternationalSale of Goods. The Working Group considered in partic-ular the question as to whether notices or declarations soexchanged should always have legal effect, even if theaddressee did not expect to receive communications inelectronic form or had not expressly agreed to receive com-munications in electronic form.

41. The discussion within the Working Group wasfocused on two alternative approaches to the use of elec-tronic means of notification and declaration with respect tospecific contracts, one requiring a positive agreement ofthe addressee to the use of electronic communications (the“opt-in” approach) and the other assuming such an agree-ment, unless otherwise stated by the addressee (the “opt-out” approach). Support was expressed for the “opt-in”approach, which was said to provide a solid basis that priorconsent existed for electronic communication for notifica-tion and declarations.

42. However, it was suggested that an “opt-in” approachwould create legal barriers to electronic commerce ratherthan remove them. It was noted that the more remote aparty to a contract might be, the more difficult it might befor it to receive prior notices and declaration expeditiouslyconcerning the form in which further dealing had to beconducted. It was suggested, in that connection, that the“opt-out” approach would provide greater legal certainty,since there would be less risk that a declaration or notifi-cation within the framework of an existing contract wouldbe challenged by a party solely on the basis that there was

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no evidence of that party’s agreement to the use of elec-tronic messages. It was also suggested that the UnitedNations Sales Convention, by recognizing the importanceof trade usages in interpreting the parties’ will, highlightedthe importance of having regard to the prior dealings andthe course of conduct between the parties when determin-ing whether they had acquiesced in the use of electroniccommunications.

43. The Working Group noted that there were two dis-tinct issues being discussed, which might need to be sep-arated in future considerations. The first issue was adiscussion of the medium for effecting a declaration underthe Convention and other international instruments, whilethe second was an examination of an appropriate rule fordeciding when the notification had reached the person thatit was intended to reach. Both issues, it was eventuallyagreed, deserved further consideration by the WorkingGroup in the context of its deliberations in the draft con-vention on electronic contracting, which was regarded asan appropriate opportunity to formulate policy choices inthat regard.

44. As regards the two sets of specific issues raised bythe Convention, the Working Group was of the view thoseissues were not related to the means of communicationsused by the parties to conclude a sales contract, but to thevery scope of application of the Convention. It was pointedout that the United Nations Sales Convention was com-monly understood as not covering a variety of transactionscurrently made online other than sales of movable tangi-ble goods in the traditional sense. The Working Group wasof the view that the development of uniform rules on trans-actions involving such intangible goods, however desirableit might be, might entail a revision of the scope of appli-cation of the Convention or at least a constructive inter-pretation of its scope of application. That result, it was felt,could not be achieved by means of the draft convention onelectronic contracting and would probably require specificconsideration in the context of the Convention.Nevertheless, as the issues were logically associated withthe discussions on the proposed scope of application of thedraft convention on electronic contracting, the WorkingGroup agreed to take note of the issue and revert, at anappropriate stage, to the question of whether an expansionof the scope of application of the United Nations SalesConvention should be recommended.

United Nations Convention on International Bills of Exchange and International Promissory Notes

(New York, 9 December 1988)11

45. In view of the particular nature of the issues raisedby electronic substitutes for negotiable instruments, it wasfelt that a comprehensive new legal framework might berequired in order to allow for the international use of datamessages in lieu of paper-based negotiable instruments.The Working Group was of the view that developing sucha comprehensive legal framework might go beyond thescope of its efforts to remove obstacles to electronic com-merce in existing instruments related to international trade.Furthermore, the Working Group noted that financial mar-

kets and other business circles had not yet reached the levelof development on the practical use of electronic alterna-tives to paper-based negotiable instruments that could jus-tify the formulation of uniform rules.

46. The Working Group agreed that the specific require-ments for such a comprehensive legal framework deservedfurther analysis, but that it might best be undertaken in thecourse of the Working Group’s consideration of legalissues related to the transfer of rights, in particular, rightsin tangible goods, by electronic means, at an appropriatestage.

United Nations Convention on the Liability of Operators of Transport Terminals in International Trade

(Vienna, 17 April 1991)12

47. The Working Group considered that the types ofissues of electronic contracting raised under the Conventionmight best be addressed in the context of its deliberationson the development of an international instrument dealingwith some issues of electronic contracting.

United Nations Convention on Independent Guarantees and Stand-by Letters of Credit

(New York, 11 December 1995)13

48. The Working Group was of the view that theConvention, being flexible as to the form of the guaranteeundertaking and expressly providing for undertakings beingin form other than paper, did not create obstacles to theuse of electronic means of communications as an alterna-tive to the issuance and exchange of paper-based docu-ments and that therefore no particular action with regardto the Convention was needed.

B. Transport and communications instruments

1. Customs matters

International Convention to Facilitate the Importation ofCommercial Samples and Advertising Material (Geneva,7 November 1952);14 Customs Convention on Containers(Geneva, 18 May 1956);15 Customs Convention onContainers, 1972 (Geneva, 1 December 1972);16 CustomsConvention on the International Transport of Goods underCover of TIR Carnets (Geneva, 15 January 1959);17

Customs Convention on the International Transport ofGoods under Cover of TIR Carnets (Geneva, 14 November1975);18 European Convention on Customs Treatment ofPallets used in International Transport (Geneva,9 December 1960);19 International Convention on theHarmonization of Frontier Controls of Goods (Geneva,

11General Assembly resolution 43/165, annex.

12A/CONF.152/13.13A/50/640 and Corr.1, annex.14United Nations, Treaty Series, vol. 221, No. 3010, p. 255.15Ibid., vol. 338, No. 4834, p. 103.16Ibid., vol. 988, No. 14449, p. 43.17Ibid., vol. 348, No. 4996, p. 13, and vol. 481, p. 598.18Ibid., vol. 1079, No. 16510, p. 89.19Ibid., vol. 429, No. 6200, p. 211.

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592 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIV

21 October 1982);20 Convention on Customs Treatment ofPool Containers used in International Transport (Geneva,21 January 1994)21

49. The Working Group was generally of the view that,with the possible exception of the Customs Convention onthe International Transport of Goods under Cover of TIRCarnets (Geneva, 14 November 1975), the aboveConventions were of a trade policy nature, being addressedto States and without establishing rules directly relevantfor private law transactions. Furthermore, the WorkingGroup noted that the extent to which electronic communi-cations might be substituted for paper-based documents forthe purposes of those Conventions was largely dependentupon the capability and readiness of public authorities inthe contracting parties to those Conventions to process suchdocuments in electronic form.

50. The Working Group was therefore of the view thatfurther study on issues related to electronic commerceunder those Conventions should be more appropriately car-ried out by other international organizations, such as WTO,the Customs Cooperation Council (also known as theWorld Customs Organization), the Economic Commissionfor Europe (ECE) and other regional organizations. Anystudy by the Working Group of issues related to customsconventions should only be considered if any of thoseorganizations invited the views of the Working Group onspecific issues falling within its area of expertise, such aslegal issues concerning the interplay between specific cus-toms conventions and various contract documents thatmight be concluded electronically (for example, electronicletters of credit or seaway bills).

2. Road traffic

Convention on Road Traffic (Geneva, 19 September 1949)22

51. The Working Group noted that the purpose of theConvention was to harmonize the rules governing road traf-fic among contracting States, ensure their compliance inorder to facilitate international road traffic and increaseroad safety. The provisions of the Convention were felt todeal essentially with road safety and traffic control issuesand did not establish rules directly relevant for private lawtransactions. The Working Group was of the view that noaction was required in respect of the Convention.

Convention on Road Traffic (Vienna, 8 November 1968)23

52. The Working Group noted that the purpose of theConvention was to facilitate international road traffic andto increase road safety through the adoption of uniformtraffic rules. The Working Group was of the view that theConvention did not contain any provisions that might bedirectly relevant to electronic commerce.

General Agreement on Economic Regulations forInternational Road Transport and (a) Additional

Protocol; and (b) Protocol of Signature (Geneva, 17 March 1954)24

53. The Working Group noted that the purpose of theGeneral Agreement was to favour the development of theinternational carriage of passengers and goods by road byestablishing a common regime for international road trans-port. The Working Group was of the view that the GeneralAgreement did not contain any provisions that might bedirectly relevant to electronic commerce.

Convention on the Contract for the InternationalCarriage of Goods by Road (Geneva, 19 May 1956)

and Protocol thereto (Geneva, 5 July 1978)25

54. The Working Group was of the view that a numberof provisions in the Convention were of special relevancefor the use of electronic communications, in particularthose concerning the instrument of the contract of carriage(consignment note). The Working Group concurred withthe secretariat’s assessment of the possible legal difficul-ties involved with electronic substitutes for the consign-ment note, in particular as regards the interplay betweenthe consignment note and disposal of the goods.

55. The Working Group noted, however, that the ECEWorking Party on Road Transport was currently consider-ing proposals for amending the Convention so as toexpressly allow for the use of data messages in connectionwith international road carriage. The Working Group wel-comed those efforts and affirmed its readiness to assist theECE Working Party on Road Transport in any manner thatthe Working Party might deem appropriate, for instance byoffering comments or suggestions in connection with anyinstrument that the Working Party might wish to bring tothe attention of the Working Group.

Convention on the Taxation of Road Vehicles Engaged in International Goods Transport

(Geneva, 14 December 1956)26

56. The Working Group noted that the purpose of theConvention was to exempt from taxes and charges vehiclesthat are registered in the territory of one of the contractingparties and are temporarily imported in the course of interna-tional goods transport into the territory of another contractingparty, under certain stipulated conditions. The Working Groupwas of the view that the Convention did not contain any pro-visions that might be directly relevant to electronic commerce.

Convention on the Taxation of Road Vehicles Engaged in International Passenger Transport

(Geneva, 14 December 1956)27

57. The Working Group noted that the purpose of theConvention was to facilitate the taxation of road vehicles

20Ibid., vol. 1409, No. 23538, p. 3.21ECE/TRANS/106.22United Nations, Treaty Series, vol. 125, No. 1671, p. 3.23Ibid., vol. 1042, No. 15705, p. 17.

24E/ECE/186 (E/ECE/TRANS/460).25United Nations, Treaty Series, vol. 399, No. 5742, p. 189.26Ibid., vol. 436, No. 6292, p. 115.27Ibid., vol. 436, No. 6293, p. 131.

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Part Two. Studies and reports on specific subjects 593

transporting persons and their baggage between countriesfor remuneration or other considerations. The WorkingGroup was of the view that the Convention did not con-tain any provisions that might be directly relevant to elec-tronic commerce.

European Agreement concerning the InternationalCarriage of Dangerous Goods by Road (Geneva,30 September 1957) and (a) Protocol amending

article 14, paragraph 3; and (b) Protocol amending article 1 (a), article 14, paragraph 1, and

article 14, paragraph 328

58. The Working Group noted that the purpose of theAgreement was to increase the safety of international trans-port of dangerous goods by road, with the use of prohibi-tive or regulatory measures. The Working Group was ofthe view that the Agreement Convention did not containany provisions that might be directly relevant to electroniccommerce.

Agreement on the International Carriage of PerishableFoodstuffs and on the Special Equipment to be used

for such Carriage (Geneva, 1 September 1970)29

59. The Working Group noted that, despite their signifi-cance for international trade, the substantive provisions of theConvention were essentially of a health and sanitary nature.They were addressed to States and did not establish rulesdirectly relevant for private law transactions. Furthermore,the extent to which electronic communications might be sub-stituted for paper-based documents for the purposes of theConvention was largely dependent upon the capability andreadiness of public authorities in the contracting parties tothe Convention to process such documents in electronic form.The Working Group was therefore of the view that no actionwas required in respect of the Convention.

European Agreement concerning the Work of Crews of Vehicles Engaged in International Road Transport

(Geneva, 1 July 1970)30

60. The Working Group noted that the provisions of theAgreement dealt essentially with social matters and issuesrelated to work safety and did not establish rules directlyrelevant for private law transactions. The Working Groupwas therefore of the view that no action was required inrespect of the Agreement.

European Agreement supplementing the Convention on Road Traffic opened for Signature at Vienna on

8 November 1968 (Geneva, 1 May 1971)31

61. The Working Group noted that the purpose of theAgreement was to harmonize rules governing road trafficin Europe, ensure their compliance in order to facilitateinternational road traffic and increase road safety. TheWorking Group was of the view that the Agreement did

not contain any provisions that might be directly relevantto electronic commerce.

Convention on the Contract for the InternationalCarriage of Passengers and Luggage by Road (Geneva, 1 March 1973) and Protocol thereto32

62. The Working Group noted that the particular natureof the issues raised by electronic substitutes for transferableinstruments might require a comprehensive new legal frame-work in order to allow for the international use of data mes-sages in lieu of the paper-based transport documentsenvisaged by the Convention. Developing rules to achievethat result, however, was felt to go beyond the scope of theWorking Group’s efforts to remove obstacles to electroniccommerce in existing international trade-related instruments.That circumstance, and the limited geographic scope of theConvention led the Working Group to take the view that noaction should be recommended in respect of the Convention.

3. Transport by rail

International Convention to Facilitate the Crossing of Frontiers for Goods Carried by Rail

(Geneva, 10 January 1952)33

63. The Working Group noted that the purpose of theConvention was to ensure an effective and efficient exam-ination at designated stations for goods carried by railcrossing frontiers. The Working Group was of the viewthat the Convention did not contain any provisions thatmight be directly relevant to electronic commerce.

4. Water transport

Convention relating to the Limitation of the Liability of Owners of Inland Navigation Vessels and Protocol

thereto (Geneva, 1 March 1973)34

64. The Working Group noted that the purpose of theConvention was to enable owners and crew members ofinland navigation vessels to limit their liability, either con-tractually or extra-contractually, by constituting a limita-tion fund in accordance with the provisions of theConvention. The Working Group was of the view that theConvention did not contain any provisions that might bedirectly relevant to electronic commerce.

United Nations Convention on the Carriage of Goods by Sea (Hamburg, 31 March 1978)35

65. The Working Group noted that electronic substitutesfor bills of lading and, to a lesser extent, electronic sub-stitutes of other transport documents gave rise to a numberof particular issues that might require specific solutions.Thus, those issues were felt to go beyond the scope of theWorking Group’s efforts to remove obstacles to electroniccommerce in existing international trade-related instru-

28Ibid., vol. 619, No. 8940, p. 77.29Ibid., vol. 1028, No. 15121, p. 121.30Ibid., vol. 993, No. 14533, p. 143.31Ibid., vol. 1137, No. 17847, p. 369.

32Ibid., vol. 1774, No. 30887, p. 109.33Ibid., vol. 163, No. 2139, p. 27, and vol. 328, p. 319.34ECE/TRANS/3.35United Nations, Treaty Series, vol. 1695, No. 29215, p. 3.

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594 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIV

ments. The Working Group noted that electronic substi-tutes for maritime transport documents were one of the var-ious issues at present under consideration by WorkingGroup III (Transport Law). The Working Group was of theview that the work of Working Group III should be allowedto proceed without interference, but affirmed its readinessto offer its comments on that work at an appropriate stage.

International Convention on Maritime Liens and Mortgages (Geneva, 6 May 1993)36

66. The Working Group noted the particular nature ofthe issues raised by electronic registry systems in theConvention. The Working Group was of the view that ananalysis of the specific requirements for the functioning ofelectronic registration systems under the Convention mightbest be undertaken in the course of the Working Group’sconsideration of legal issues related to the transfer of rights,in particular, rights in tangible goods, by electronic means,in cooperation with the United Nations Conference onTrade and Development and the International MaritimeOrganization, if those organizations wished that such jointwork be undertaken.

5. Multimodal transport

United Nations Convention on International MultimodalTransport of Goods (Geneva, 24 May 1980)37

67. The Working Group noted that the consideration ofthe particular issues involved in electronic substitutes formultimodal transport documents could go beyond the scopeof the Working Group’s efforts to remove obstacles to elec-tronic commerce in existing international trade-relatedinstruments. The Working Group was of the view that thesecretariat should be requested to consult with UNCTADand to inform the Working Group, at an appropriate stage,on any joint work that might be undertaken in connectionwith those matters.

European Agreement on Important InternationalCombined Transport Lines and Related Installations and Protocol thereto (Geneva, 1 February 1991)38

68. The Working Group noted that the purpose of theConvention was to facilitate the operation of combinedtransport services and infrastructures necessary for theirefficient operation in Europe. The Working Group was ofthe view that none of the provisions in the Conventionwould be directly relevant to electronic commerce.

C. Commercial arbitration

Convention on the Recognition and Enforcement ofForeign Arbitral Awards (New York, 10 June 1958)39

69. The Working Group noted that the potentially prob-lematic provisions in the Convention fell into the follow-

ing three categories: (a) provisions requiring a written formof the arbitration agreement; (b) provisions requiring thesubmission of “original” documents; and (c) provisions thatcontemplated notices or declarations that might beexchanged by the parties.

70. The Working Group took note of the work beingundertaken by Working Group II (Arbitration) in connec-tion with the written form of the arbitration agreementunder article II of the Convention and related issues.

European Convention on International CommercialArbitration (Geneva, 21 April 1961)40

71. The Working Group took note of the fact that ECEwas currently considering a revision of the Convention andagreed that issues relating to coordination of work withECE should best be left for the Working Group II(Arbitration).

V. ELECTRONIC CONTRACTING: PROVISIONSFOR A DRAFT CONVENTION

General comments

72. The Working Group noted that, at its thirty-ninth ses-sion, held in New York from 11 to 15 March 2002, it hadbegan its deliberation on the preliminary draft conventionby holding a general exchange of views on the form andscope of the instrument (see A/CN.9/509, paras. 18-40). Atthat time, the Working Group had agreed to postpone dis-cussion on exclusions from the draft convention until it hadhad an opportunity to consider the provisions related tolocation of the parties and contract formation. In particu-lar, the Working Group had then proceeded with its delib-erations by firstly taking up articles 7 and 14, both of whichdealt with issues related to the location of the parties(A/CN.9/509, paras. 41-65). After it had completed its ini-tial review of those provisions, the Working Group pro-ceeded to consider the provisions dealing with contractformation in articles 8-13 (A/CN.9/509, paras. 66-121).The Working Group concluded its deliberations on the draftconvention at that session with a discussion of draft arti-cle 15 (A/CN.9/509, paras. 122-125). The Working Grouphad agreed, at that time, that it should consider articles 2-4, dealing with the sphere of application of the draft con-vention and articles 5 (definitions) and 6 (interpretation),at its fortieth session.

73. At the current session, the Working Group decidedto resume its deliberations on the preliminary draft con-vention by holding a general discussion on the scope ofthe Convention and proceeding to consider those matterswhich had not been the subject of an initial debate at itsprevious session.

74. The Working Group noted that when it had first con-sidered the possibility of further work on electronic com-merce after the adoption of the Model Law on Electronic

36A/CONF.162/7.37TD/MT/CONF/16.38United Nations, Treaty Series, vol. 1746, No. 30382, p. 3.39Ibid., vol. 330, No. 4739, p. 3. 40Ibid., vol. 484, No. 7041, p. 349.

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Part Two. Studies and reports on specific subjects 595

Signatures, it had contemplated, among other issues, a topicbroadly referred to as “electronic contracting”. Althoughthe Working Group had not, on that occasion, spent muchtime on defining the issues to be touched upon, it had thenbeen generally felt that one of those issues was formationof contracts in an electronic environment.

75. Consistent with that initial understanding, the draftpreliminary convention submitted to the Working Groupincluded essentially three types of provisions: those deal-ing with the sphere of application of the instrument, whichfollowed other UNCITRAL conventions closely, those con-cerning the formation of contracts and a limited number ofprovisions dealing with specific rights and obligations ofthe parties in the context of contract formation by elec-tronic means.

76. The Working Group was reminded, in that connec-tion, of the concerns that had been expressed at its thirty-ninth session concerning the risk of establishing a dualityof regimes for contract formation: a uniform regime forelectronic contracts under the new instrument and a dif-ferent, not harmonized regime, for contract formation byany other means, except for the very few types of contractthat were already currently covered by uniform law, suchas sales contracts falling under the United Nations SalesConvention.

77. It was pointed out that the question of the scope ofthe preliminary draft convention involved two different ele-ments, namely, which transactions should be covered andhow they should be covered. In that connection, the viewwas expressed that it might be useful for the WorkingGroup to consider extending the scope of the preliminarydraft convention to issues beyond contract formation, so asto include also the use of electronic messages in connec-tion with the performance or termination of contracts.Moreover, the Working Group was invited to considerdealing not only with electronic contracts or contract-related communications, but also addressing other transac-tions conducted electronically, subject to specificexclusions that the Working Group might deem appropri-ate. With regard to the second element under considera-tion, namely, the question of how to cover thosetransactions, it was suggested that the Working Groupshould focus only on the issues raised by the use of elec-tronic communications in the context of those transactions,leaving aspects of substantive law to other regimes suchas the United Nations Sales Convention.

78. While no fundamental objections were raised to theproposal of extending the scope of the draft instrumentbeyond contracts, the Working Group heard expressionsof concern that broadening the scope of the preliminarydraft convention beyond a contractual context at such anearly stage might be premature, as the Working Grouphad not yet reached a sufficient level of consensus on thesubstantive matters to be dealt with in the new instru-ment. That particular proposal, it was generally felt,should be reserved for consideration at a later stage ofthe process.

79. There was, however, general agreement that limitingthe scope of the new instrument only to formation of con-

tracts by electronic means was an excessively narrowapproach and that, as agreed at the Working Group’s thirty-ninth session, the new instrument should at least deal withcertain issues of contract performance (A/CN.9/509, paras.35 and 36).

80. The Working Group proceeded to consider the ques-tion of whether and to what extent the new instrumentshould address substantive issues of contract law orwhether it should limit itself to the technicalities of con-tract formation and performance in an electronic envi-ronment. The Working Group was reminded of its earlierdiscussions concerning article 8 of the preliminary draftconvention, which provided minimal substantive rules onthe moment of contract formation inspired by the UnitedNations Sales Convention (A/CN.9/509, paras. 66-73).That discussion, it was said, was illustrative of the diffi-culties faced by the Working Group, as the views hadthen been divided between those opposing any substan-tive rules on formation to avoid a duality of regimes andthose favouring at least a minimal set of rules, so as torender the provisions of the new instrument self-con-tained.

81. The Working Group held an extensive exchange ofviews on the matter. The prevailing view within theWorking Group was that the new instrument should notattempt to develop uniform rules for substantive contrac-tual issues that were not specifically related to electroniccommerce or to the use of electronic communications inthe context of commercial transactions. The WorkingGroup took note, however, of the widely shared view thata strict separation between mechanical and substantiveissues in the context of electronic commerce was notalways feasible or desirable. The purpose of the WorkingGroup’s efforts, it was said, was to develop a new instru-ment that offered practical solutions to issues related to theuse of electronic means of communication for commercialcontracting. Where substantive rules were needed beyondthe mere reaffirmation of the principle of functional equiv-alence in order to ensure the effectiveness of electroniccommunications for transactional purposes, the WorkingGroup should not hesitate to formulate substantive rules.Location of parties, validity of data messages, receipt anddispatch of data messages, among other issues, were men-tioned as examples of the interplay between mechanicaland substantive rules. The Working Group agreed thatthose considerations should be borne in mind as it pro-ceeded with its work.

Article 2. Exclusions

82. The text of the draft article, as considered by theWorking Group, read as follows:

“This Convention does not apply to the following con-tracts:

“(a) Contracts concluded for personal, family orhousehold purposes;

“(b) Contracts granting limited use of intellectualproperty rights;

“(c) [Other exclusions, such as real estate transac-tions, to be added by the Working Group.]”

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Subparagraph (a)

83. The Working Group noted that subparagraph (a) wasbased on the approach generally taken toward the exclu-sion of consumers in UNCITRAL instruments. It wasnoted, in particular, that the language of the exclusion wasdrawn from article 2, subparagraph (a), of the UnitedNations Sales Convention, since it was language that hadbeen tested in practice and had proved to be workable.

84. The Working Group held an extensive discussion onthe desirability of excluding consumer transactions fromthe scope of application of the draft preliminary conven-tion. Among the arguments put forward for such an exclu-sion, for which there was strong support, was the concernthat issues of consumer protection varied greatly betweenlegal systems, which was a reason why consumer transac-tions had thus far been systematically excluded from thefield of application of UNCITRAL instruments. Moreover,UNCITRAL had consistently kept its focus on business orcommercial transactions, leaving other organizations todeal with consumer issues, to the extent that such issueslent themselves to international harmonization. It was notedthat, while divergences in consumer law with respect tocontracts have caused problems for businesses around theworld and businesses could well benefit from a harmo-nization, such a task would be unlikely to succeed. Thecountervailing view, for which there were also expressionsof strong support, was that nothing in the text of the draftpreliminary convention affected the protection of con-sumers, a matter that would continue to be governed bydomestic law, often having the nature of public policy. Anoutright exclusion of consumer transactions from the newinstrument, however, was felt to be neither desirable nornecessary, as there was no reason to deprive consumersfrom the benefits of legal certainty and facilitation of con-tract formation that might be provided by the new instru-ment. In any event, it was said, it would be premature tomake a final decision on such exclusion before theWorking Group had considered more fully the substantiveprovisions of the draft preliminary convention.

85. Having considered the various views that had beenexpressed, the Working Group reaffirmed its understand-ing that the new instrument should not deal with consumerprotection issues. The Working Group also agreed that, inkeeping with the established practice of UNCITRAL in thatrespect, the preliminary draft convention should excludeconsumer transactions from its scope of application, butthat the Working Group might reconsider the need for suchan exclusion once it had advanced its consideration of thesubstantive provisions of the preliminary draft convention.

86. Subject to that general understanding, the WorkingGroup proceeded to consider the formulation used for theexclusion. It was pointed out that the draft subparagraphdid not reproduce the entire provision on the exclusion ofconsumers in the United Nations Sales Convention.According to its article 2, subparagraph (a), the latter didnot apply to sales of goods bought for personal, family orhousehold use, “unless the seller, at any time before or atthe conclusion of the contract, neither knew nor ought tohave known that the goods were bought for any such use”.That provision was regarded as important to ensure legal

certainty, otherwise the applicability of the United NationsSales Convention would depend entirely on the seller’sability to ascertain the purpose for which the buyer hadbought the goods. Thus, the consumer purpose of a salescontract could not be held against the seller, for the pur-pose of excluding the applicability of the Convention, ifthe seller did not know or could not have been expectedto know (for instance, having regard to the number ornature of items bought) that the goods were being boughtfor personal, family or household use. It followed fromthose provisions that the drafters of the United NationsSales Convention assumed that there might be situationswhere a sales contract would fall under the Convention,despite the fact of it having being entered into by a con-sumer. The legal certainty gained with the provisionappeared to have outweighed the risk of covering transac-tions intended to have been excluded. It was observed,moreover, that, as indicated in the commentary on the draftConvention on Contracts for the International Sale ofGoods, which had been prepared at the time by the secre-tariat (A/CONF.97/5), article 2, subparagraph (a), of theUnited Nations Sales Convention was based on the assump-tion that consumer transactions were international transac-tions only in “relatively few cases”.41

87. It was said, however, that if a new instrument onelectronic contracting should exclude consumer transac-tions, the formulation of article 2, subparagraph (a), of theUnited Nations Sales Convention might be problematic, asthe ease of access afforded by open communication sys-tems not available at the time of the preparation of theConvention, such as the Internet, greatly increased the like-lihood of consumers purchasing goods from sellers estab-lished abroad.

88. The Working Group recognized that the greater like-lihood of consumers becoming parties to international con-tracts was a matter that required careful attention in theformulation of an exclusion of consumer transactions fromthe draft preliminary convention. However, questions wereraised as to whether the choice made in subparagraph (a)of draft article 2 was correct, since the simple deletion ofthe additional elements that were contained in the corre-sponding provision of the United Nations Sales Conventionmade the applicability of the new instrument solely depend-ent upon the purpose of a transaction, a circumstance thatmight not be easily ascertained by the seller at the momentof the negotiation of the contract. It was therefore sug-gested that the additional language found in the UnitedNations Sales Convention should be restored in draft arti-cle 2 (a) in square brackets, in order for it to be consid-ered in the future.

89. An alternative approach, which the secretariat wasalso requested to take into account when preparing arevised draft of the provision, was to define the scope ofthe transactions covered by the preliminary draft conven-tion in a manner that made it clear that the instrumentapplied to commercial transactions and not to contracts

41Official Records of the United Nations Conference on Contracts forthe International Sale of Goods: documents of the Conference and sum-mary records of the plenary meetings and of the meetings of the MainCommittee (United Nations publication, Sales No. E.81.IV.3), p. 16.

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Part Two. Studies and reports on specific subjects 597

entered into by consumers and that nothing in the newinstruments affected any rules of law intended for the pro-tection of consumers, as had been done in footnote ** toarticle 1 of the UNCITRAL Model Law on ElectronicCommerce.

Subparagraph (b)

90. The Working Group was reminded that the subpara-graph originated in a preliminary discussion of issues ofelectronic commerce that had taken place at the thirty-eighth session of the Working Group with respect to thescope of application of the United Nations SalesConvention. At that time, the Working Group had notedthat licensing of intellectual property rights was generallyoutside the scope of the Convention, which had been con-ceived for the sale of tangible goods. It had been noted,however, that with the passage of time and the evolutionof technology, it had on occasion become difficult to estab-lish a clear delineation between licensing and sales con-tracts, as was the case in transactions involving some ofthe so-called “virtual goods” (A/CN.9/484, paras. 116 and117). In the interest of ensuring the greatest possible con-sistency between the new instrument and the UnitedNations Sales Convention, the draft preliminary conven-tion, it was noted, excluded transactions involving the lim-ited grant of intellectual property rights.

91. The Working Group heard expressions of general sup-port for not dealing with licensing arrangements in the newinstrument. It was suggested that industry sectors immedi-ately concerned with transactions involving intellectualproperty rights had developed their own contracting prac-tices and that all efforts should be made to avoid interfer-ence therewith. Failure to do so at the current preliminarystage of the examination of the draft preliminary conven-tion might undermine the development of the new instru-ment. In effect, it was noted that many other internationaland commercial bodies had attempted in a general way todefine the intersections between intellectual property rights,contractual rights and traditional sales law and that suchattempts had been controversial and unsuccessful.

92. There was sympathy within the Working Group forthose arguments. However, it was felt that it would be wiseto pursue the examination of the remainder of the draft pre-liminary convention first and to return to the exclusions indraft article 2 at a later time. In that regard, it was sug-gested that if including the subject of subparagraph (b) inthe scope of the instrument proved to create difficulties toprogress on the draft instrument, appropriate exclusionscould be made at a later stage. Support was expressed forthat position, in particular given the lack of certaintyregarding whether the draft instrument would cover sub-stantive aspects of contract law.

93. Having considered those views, the Working Groupdecided that it might be useful to revert to the question ofexcluding intellectual property rights from the draft instru-ments at a later stage, possibly at its forty-first session. TheWorking Group agreed that it would be useful at that junc-ture to reserve sufficient time for an exchange of viewswith the various organizations having an interest in thismatter, such as WPO, the International Organization for

Standardization and relevant non-governmental organiza-tions, such as citizens’ interest organizations. It also notedthat, in deciding upon the exceptions to the convention, itmight be necessary to distinguish between various types ofintellectual property and that a broad exchange of viewswith different interests in the area would be of assistancein that regard.

Subparagraph (c)

94. With respect to its consideration of additional exclu-sions to be proposed to the draft convention under sub-paragraph (c), the Working Group agreed that suggestedexclusions should not take the form of a recital of exclu-sions from domestic laws on electronic commerce, but thatthey should represent considered views on subject areasbest left outside of the scope of such an international com-mercial instrument.

95. Various suggestions were made regarding possibleexceptions to the scope of the draft convention, includingcontracts creating rights in real estate, those involvingcourts or public authorities and those on suretyship, familylaw or the law of succession. Those transactions were saidto be appropriate cases for exclusions as they were notordinarily the subject of international trade. Additional sug-gestions were made to exclude certain existing financialservices markets with well-established rules, including pay-ment systems, negotiable instruments, derivatives, swaps,repurchase agreements (repos), foreign exchange, securitiesand bond markets, while possibly including general pro-curement activities of banks and loan activities, in ordernot to interfere with established practices of electronic con-tracting in those industries.

96. Caution was expressed concerning the exclusion ofmatters that could in the future develop international com-mercial dimensions. It was suggested that one method ofaccommodating concerns regarding specific exceptionswould be to allow for States to make reservations withrespect to certain subject areas. However, it was also sug-gested that such an approach was unsatisfactory in that itwould detract from the general effort of harmonization.

97. Another suggested approach was to achieve a limita-tion of the scope of application of the convention by a pos-itive determination of the matters it covered as beingessentially international commercial transactions, whichcould be made in article 1 of the draft instrument. Inresponse to that proposal it was observed, however, that ref-erence to the “commercial” nature of a transaction might notbe feasible in an international uniform instrument, the under-standing of that term varied greatly among legal systems.

98. The Working Group decided that the matter ofexclusions should be reconsidered at a later stage, fol-lowing examination of the substantive parts of the draftpreliminary convention. The secretariat was requested totake the above suggestions, views and concerns into con-sideration when preparing a future draft of the provision,possibly including appropriate variants. In order to clarifythe exceptional nature of subparagraph (c), it was sug-gested that the phrase “to be added” should be changedto “could be added”.

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Article 3. Matters not governed by this Convention

99. The text of the draft article, as considered by theWorking Group, read as follows:

“This Convention governs only the formation of con-tracts concluded or evidenced by data messages. In par-ticular, except as otherwise expressly provided in thisConvention, it is not concerned with:

“(a) The validity of the contract or of any of its pro-visions or of any usage;

“(b) The rights and obligations of the parties aris-ing out of the contract or of any of its provisions or ofany usage;

“(c) The effect which the contract may have on theownership of rights created or transferred by the con-tract.”

100. The Working Group noted that the draft article hadbeen included so as to make it clear that the preliminarydraft convention was not concerned with substantiveissues arising out of the contract, which, for all other pur-poses, remained subject to its governing law. However,having regard to its previous deliberations on the scopeof the preliminary draft convention (see paras. 77-81), theWorking Group was of the view that at least the chapeauof the draft article would need to be substantially refor-mulated. A revised version of the draft article, it was sug-gested, should make it clear that the new instrument dealtonly with the possible formal or substantial problems cre-ated by the use of electronic means of communication inconnection with the various aspects of contracting includ-ing formation, notices and termination of contracts (orcommercial transactions in general, if the Working Groupeventually preferred to use such a criterion to define thescope of application of the instrument). The draft articleshould further make it clear that the new instrument wasaimed at facilitating electronic contracting and was notintended to introduce new formal or substantial legalrequirements concerning contracts or commercial trans-actions in general, nor to modify any such existingrequirements.

101. There was general agreement within the WorkingGroup that the draft article needed to be reformulated soas to reflect the Working Group’s decision that the newinstrument should not be limited only to the use of elec-tronic communications for the purpose of contract forma-tion. Reservations were expressed, however, concerning theuse of the word “transactions”, since that term was not uni-formly understood and might be given an excessively broadinterpretation, covering even actions taken in connectionwith situations not involving any economic value or com-mercial interest. The Working Group took note of thosereservations but accepted the suggestion that, at such anearly stage of its deliberations, it was not desirable toexclude particular options for formulations that might beused in defining the scope of application of the new instru-ment.

102. The Working Group proceeded to consider the natureof limitations to the substantive field of application of thepreliminary draft convention. There was general agreement

that, in the interest of avoiding a duality of legal regimes,depending on whether a contract was negotiated throughelectronic means or otherwise, provisions on substantivematters that went beyond setting the criteria for the func-tional equivalence for electronic communications should belimited to those which dealt with situations particularly rel-evant for electronic commerce or the use of electronicmeans of communication. In that connection, it was sug-gested that the phrase “except as otherwise expressly pro-vided in this Convention” in the chapeau of the draft articlewas misleading and should not appear in a revised draft,as the preliminary draft convention was in any event notintended to deal with the types of matters referred to inthe draft article.

103. At that juncture, however, the attention of theWorking Group was drawn to the possible relationshipbetween issues of validity and issues related to the rightsand obligations of the parties and other provisions of thepreliminary draft convention. One such example was thepositive affirmation that use of data messages in the con-text of contract formation should not by itself constitutegrounds for the invalidity of the contract under draft arti-cle 12, paragraph 2. Another example was the questionof whether the new instrument should provide possiblelegal consequences for the failure by a party to make con-tract terms available under draft article 15, an issue thatstill remained to be considered by the Working Group.The Working Group agreed that the relationship betweenthe matters excluded under article 3 and the substantiveprovisions found elsewhere in the draft preliminary con-vention should be carefully considered by the WorkingGroup at a future session, once a consensus had emergedon the nature of substantive provisions to be included inthe text.

104. The Working Group was reminded of the importanceof ensuring consistency between draft articles 1 and 3,which both set the parameters of the field of applicationof the preliminary draft convention. In that connection, theWorking Group reiterated its understanding that the pre-liminary draft convention should avoid using the phrasesuch as “contracts concluded or evidenced by data mes-sages” (draft article 1) or “formation of contracts concludedor evidenced by data messages” (draft article 3). Moreover,the Working Group agreed that it could consider at a futuresession a simplified version of draft article 3 that wouldonly refer to matters excluded from the scope of the pre-liminary draft convention.

Article 4. Party autonomy

105. The text of the draft article, as considered by theWorking Group, read as follows:

“The parties may exclude the application of thisConvention or derogate from or vary the effect of anyof its provisions.”

106. There was strong support within the Working Groupfor a provision reaffirming the principle of party auton-omy. Not only had that principle been traditionally recog-nized in various UNCITRAL texts, but it was also a

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Part Two. Studies and reports on specific subjects 599

fundamental principle of commercial law in most legal sys-tems. It was also suggested, in that connection, that rec-ognizing the principle of party autonomy might possiblyreduce the need for exclusions under draft article 2 on thegrounds that certain business sectors had already estab-lished satisfactory practices for dealing with electronic con-tracting.

107. Without prejudice to the general validity of the rulereflected in the draft article in the context of the prelimi-nary draft convention, the Working Group proceeded toconsider whether there might be situations where partyautonomy could be limited or even excluded in favour ofmandatory rules.

108. As regards the general principle of non-discrimina-tion under draft article 10, paragraph 2, it was noted thatparties should not be forced to accept contractual offersor acceptances of offers by electronic means if they didnot want to. It was therefore appropriate to allow the par-ties to exclude that possibility by means of a prior agree-ment. The same reasoning might also apply to theacceptance of electronic signatures under draft article 13,paragraph 3. In connection with the latter provision, how-ever, the view was also expressed that party autonomyshould not be allowed to go as far as relaxing statutoryrequirements on signature in favour of methods of authen-tication that provided a lesser degree of reliability thanelectronic signatures, which was the minimum standardrecognized by the preliminary draft convention. Generally,it was said, party autonomy did not mean that the newinstrument should empower the parties to set aside statu-tory requirements on form or authentication of contractsand transactions.

109. The Working Group took note of views to the effectthat, depending on the provisions to be included in chap-ters II and III of the preliminary draft convention, theWorking Group might need at a later stage to considerwhether or not it should formulate exceptions to the prin-ciple of party autonomy. Possible provisions in respect ofwhich the scope for party autonomy might be limitedincluded, for example, provisions requiring the parties tooffer means for correcting input errors (draft article 12) orto make available records of the contract terms (draft arti-cle 15). In the example of draft article 12, it was said, aduty to offer means for correcting input errors was predi-cated on the assumption that electronic transactions offereda greater potential for those errors than in paper-based trans-actions. If the Working Group eventually followed thatassumption, the new instrument might include substantiverules to protect those more easily in error. The nature ofsuch a provision, however, if adopted, might also vary froma compulsory rule or to a simple recommendation withoutsanctions.

110. Having considered the various views that wereexpressed on the matter and reaffirming its general supportfor the principle of party autonomy, the Working Groupdecided that the provision should be retained and that theissue of possible exclusions or limitations to the draft arti-cle should be considered at a later stage, in the light of theWorking Group’s decision on the substantive provisions ofthe draft preliminary convention.

Article 5. Definitions

111. The text of the draft article, as considered by theWorking Group, read as follows:

“For the purposes of this Convention:

“(a) ‘Data message’ means information generated,sent, received or stored by electronic, optical or similarmeans including, but not limited to, electronic data inter-change (EDI), electronic mail, telegram, telex or tele-copy;

“(b) ‘Electronic data interchange (EDI)’ means theelectronic transfer from computer to computer of infor-mation using an agreed standard to structure the infor-mation;

“(c) ‘Originator’ of a data message means a personby whom, or on whose behalf, the data message pur-ports to have been sent or generated prior to storage, ifany, but it does not include a person acting as an inter-mediary with respect to that data message;

“(d) ‘Addressee’ of a data message means a personwho is intended by the originator to receive the datamessage, but does not include a person acting as anintermediary with respect to that data message;

“(e) ‘Automated computer system’ means a com-puter program or an electronic or other automatedmeans used to initiate an action or respond to data mes-sages or performances in whole or in part, withoutreview or intervention by a natural person at each timean action is initiated or a response is generated by thesystem.

“(f) ‘Information system’ means a system for gen-erating, sending, receiving, storing or otherwise pro-cessing data messages;

“(g) ‘Offeror’ means a natural person or legal entitythat offers goods or services;

“(h) ‘Offeree’ means a natural person or legal entitythat receives or retrieves an offer of goods or services;

Variant A

“[(i) ‘Signature’ includes any method used for iden-tifying the originator of a message and indicating thatthe information contained in the message is attributableto the originator;]

Variant B

“[(i) ‘Electronic signature’ means data in electronicform in, affixed to, or logically associated with, a datamessage, which may be used to identify the person hold-ing the signature creation data in relation to the datamessage and indicate that person’s approval of the infor-mation contained in the data message;]

Variant A

“[(j) ‘Place of business’ means any place of opera-tions where a person carries out a non-transitory activ-ity with human means and goods or services;]

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600 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIV

Variant B

“[(j) ‘Place of business’ means the place where aparty pursues an economic activity through a stableestablishment for an indefinite period;]

“(k) ‘Person’ and ‘party’ include natural personsand legal entities;

“[(l) Other definitions that the Working Group maywish to add.]”

General comments

112. The Working Group noted that the number and natureof the definitions depended to a large extent on decisionsthat the Working Group would need to take in the futureconcerning substantive provisions of the preliminary draftconvention. There was therefore general agreement with theproposal that the list of definitions could be retained in itscurrent form. Nevertheless, the Working Group decided thatit would be useful to advance its deliberations to review thedefinition of terms in the draft article 5, bearing in mindthat a final decision should await the outcome of the dis-cussions on the remainder of the draft convention.

“Automated computer system” and “Information system”

113. Questions were asked on the difference between an“automated computer system” in subparagraph (e) and an“information system” in subparagraph (f). The distinctionwas said to be unclear, in particular in some of the lan-guage versions of the preliminary draft convention. Inresponse, it was explained that the notion of “automatedcomputer system”, which was also used in draft article 12,referred essentially to a system for automatic negotiationand conclusion of contracts without involvement of aperson, at least on one of the ends of the negotiation chain.An “information system”, in turn, was a term already usedin the UNCITRAL Model Law on Electronic Commerceand referred to a system used for generating, sending,receiving and storing data messages, a notion that was par-ticularly important in connection with the transmission andreception of data messages. An automated computer systemmight be part of an information system, but that need notnecessarily be the case. It was noted, however, that thoseterms might need to be better aligned in a future draft.

114. Clarification was also sought of the terms “reviewand intervention” in draft subparagraph (e). It was notedthat, while the language could be clarified in a future draft,the definition was intended to exclude the situation wherethe computer system was not completely automated, in thatit would not complete its task without the intervention ofa natural person in the system in order to intercept a mes-sage or to review and approve its content.

“Offeror” and “offeree”; “originator” and “addressee”

115. Questions were raised as to the need for definitions of“offeror” and “offeree”. In particular, it was suggested thatboth terms might be subsumed in the broader definitions of“originator” and “addressee”. In response, it was observedthat the terms “offeror” and “offeree” were used in draft arti-cles 8 and 9 in a context in which they might not easily be

replaced with the words “originator” or “addressee”. It wassuggested that although those terms might not be needed ifdraft articles 8 and 9 were not kept in the final text, it mightbe preferable, for the time being, to retain them.

“Signature” and “electronic signature”

116. The Working Group considered questions regardingthe difference between “signature” and “electronic signature”in draft paragraph 5 (i), variants A and B. It was pointedout, in response, that variant A was intended to provide ageneral definition of signatures, while variant B, drawn fromarticle 2 (a) of the UNCITRAL Model Law on ElectronicSignatures, was intended to include a more specific require-ment for the recognition of electronic signatures.

117. Reservations were expressed concerning the use of adefinition of “signature”, which was not contained in eitherof the UNCITRAL Model Laws, in particular as it mightbe more appropriate to leave such a definition for domes-tic law. Furthermore, the relationship between the defini-tions was said to be unclear, as they were not strictlyspeaking mutually exclusive, as long as “electronic signa-tures” could be regarded as a subset of “signatures”.

118. Concern was also expressed regarding the relation-ship between the definitions of “electronic signature”, “datamessage” in subparagraph (a), which included also infor-mation in the form of telegrams, telexes or telecopies, eachof which resulted in a paper document. An electronic sig-nature, it was said, could not possibly be attached to paperdocuments. In response, it was noted that the central ele-ment in the definition of data messages was the notion of“information”, rather than the form in which the messagewas received. However, it was agreed that the interplaybetween the two definitions might need to be looked atmore closely, so as to avoid the erroneous impression thatthe draft contemplated an electronic signature, which wasdefined as “data in electronic form”, appearing in the paperprintout of a telegram, telex or telecopy.

119. Despite those observations, and in accordance withits general approach to the draft article, there was supportfor the retention of both variants A and B.

“Place of business”

120. It was noted that the proposed definition of “placeof business” in variant A reflected the essential elementsof the notions of “place of business”, as understood ininternational commercial practice, and “establishment”, asused in article 2, subparagraph (f), of the UNCITRALModel Law on Cross-Border Insolvency. The proposed def-inition appeared within square brackets in view of the factthat, although having repeatedly used the concept of “placeof business” in its various instruments, thus far theCommission had not defined such concept.

121. In response to a query concerning the meaning of thewords “indefinite period” in variant B, it was explained thatthe language was meant to exclude only the temporary pro-vision of goods or services out of a specific location, with-out requiring, however, that the company providing thosegoods or services be established indefinitely at that place.

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Part Two. Studies and reports on specific subjects 601

122. The view was expressed that the desirability of a def-inition of place of business should be carefully consideredby the Working Group at a later stage in view of the factthat such a definition was not made in the United NationsSales Convention, which left the matter to domestic law.The Working Group was reminded of the risk of estab-lishing a duality regime for contracts negotiated throughelectronic means and other contracts.

Article 6. Interpretation

123. The text of the draft article, as considered by theWorking Group, read as follows:

“1. In the interpretation of this Convention, regardis to be had to its international character and to the needto promote uniformity in its application and the obser-vance of good faith in international trade.

“2. Questions concerning matters governed by thisConvention which are not expressly settled in it are tobe settled in conformity with the general principles onwhich it is based or, in the absence of such principles,in conformity with the law applicable by virtue of therules of private international law.”

124. The Working Group noted that the principlesreflected in the draft article had appeared in most of theUNCITRAL texts, and that its formulation mirrored article

7 of the United Nations Sales Convention. The provisionwas meant to facilitate uniform interpretation of the pro-visions in uniform instruments on commercial law. It wasfurther emphasized that there had been a practice in pri-vate law treaties to provide self-contained rules of inter-pretation, without which the reader would be referred togeneral rules of public international law on the interpreta-tion of treaties that might not be entirely suitable for theinterpretation of private law provisions.

125. The view was expressed that similar formulations inother instruments had been incorrectly understood as allow-ing immediate referral to the applicable law pursuant to therules on conflict of laws of the forum State for the inter-pretation of a Convention without regard to the conflict oflaws rules contained in the Convention itself. The WorkingGroup took note of that concern.

126. The Working Group agreed that the questions aris-ing from article 6 stemmed mainly from the closingphrase in draft article 6, paragraph 2, “by virtue of therules of private international law”. While some were ofthe view that the phrase should be deleted, it was notedthat deletion could cause problems in interpretation later,given the common use of similar language in otherinstruments. The Working Group decided that the phraseshould be placed in square brackets in a future draft ofarticle 6.

B. Working paper submitted to the Working Group on Electronic Commerce at its fortieth session: Legal barriers to the development of electronic commerce in international instruments relating to international trade:

Compilation of comments by Governments and international organizations

(A/CN.9/WG.IV/WP.98 and Add.1-4) [Original: English]

A/CN.9/WG.IV/WP.98

CONTENTS

Page

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602

II. Compilation of comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602

A. .States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602

1. Austria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602

2. Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602

3. Oman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 604

B. Intergovernmental organizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 604

1. International Civil Aviation Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 604

2. International Maritime Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 605

3. United Nations Educational, Scientific and Cultural Organization . . . . . . . . . . . . 605

4. World Intellectual Property Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 605

5. World Customs Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 605

6. Council of Europe. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 606

7. Latin American Integration Association . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 606

C. International non-governmental organizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 607

1. International Federation of Freight Forwarders Associations. . . . . . . . . . . . . . . . . 607

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602 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIV

I. INTRODUCTION

1. The Working Group on Electronic Commerce consid-ered proposals for removing obstacles to electronic com-merce in existing international conventions at itsthirty-eighth session, in March 2001, on the basis of a noteby the secretariat (A/CN.9/WG.IV/ WP.89). The WorkingGroup agreed to recommend to the Commission the prepa-ration of an appropriate international instrument or instru-ments to remove those legal barriers to the use of electroniccommerce that might result from international trade lawinstruments. The Working Group also agreed to recom-mend to the Commission that the secretariat should carryout a comprehensive survey of possible legal barriers tothe development of electronic commerce in internationalinstruments. The Commission endorsed that recommenda-tion, along with other recommendations for future work, atits thirty-fourth session, in 2001.1

2. The secretariat began the survey by identifying andreviewing trade-relevant instruments from among thelarge number of multilateral treaties that were depositedwith the Secretary-General. The secretariat identified 33treaties as being potentially relevant for the survey andanalysed possible issues that might arise from the use ofelectronic means of communications under those treaties.The preliminary conclusions reached by the secretariat in relation to those treaties are set out in a note by thesecretariat (A/CN.9/WG.IV/WP.94) that was submitted tothe Working Group at its thirty-ninth session, in March2002.

3. At that session, the Working Group took note of theprogress that had been made by the secretariat in connec-tion with the survey but did not have sufficient time toconsider the secretariat’s preliminary conclusions. TheWorking Group requested the secretariat to seek the viewsof member and observer States on the survey and the pre-liminary conclusions indicated therein and to prepare areport compiling such comments for consideration by theWorking Group at a later stage. The Working Group fur-ther requested the secretariat to seek the views of otherinternational organizations, including organizations of theUnited Nations system and other intergovernmental organ-izations, as to whether there were international trade instru-ments in respect of which those organizations or theirmember States acted as depositaries that those organiza-tions would wish to be included in the survey being con-ducted by the secretariat.

4. By note verbale of 11 April 2002 and letters of 22and 29 April 2002, the Secretary-General forwarded thesurvey, which appears in the annex to documentA/CN.9/WG.IV/ WP.94, to States and to 13 intergovern-mental and 12 international non-governmental organiza-tions that are invited to attend the meetings of theCommission and its working groups as observers. The sec-retariat requested States and those organizations to reviewthe survey and submit their comments thereon for con-sideration by the Working Group. The present documentreproduces the first comments received by the secretariat.

Comments received by the secretariat after the issuance ofthe present document will be published as addenda theretoin the order in which they are received. Furthermore, witha view to ensuring the broadest possible basis of consul-tations, the secretariat continues to seek the views of otherintergovernmental and international non-governmentalorganizations beyond the group of organizations initiallyaddressed by the secretariat.

II. COMPILATION OF COMMENTS

A. States

1. Austria[Original: English]

[19 June 2002]

1. Austria shares the view that the issues related to elec-tronic contracting identified in the instruments analysed, asfar as they do not go beyond the scope of the WorkingGroup’s efforts, can best be addressed in the context of itsdeliberations on the development of an international instru-ment dealing with electronic contracting and of its consid-eration of legal issues related to the transfer of rights.

2. As a result, there seems to be no need for an“omnibus convention”, which would address these issuesspecifically for adapting the instruments to an electronicenvironment.

2. Italy [Original: English]

[1 July 2002]

1. The Italian delegation wishes first of all to express itsappreciation to the secretariat for having issued documentA/CN.9/WG.IV/WP.94, with such a high-quality survey ofinternational legal instruments annexed to it. In making thecomments that follow, the Italian delegation will also referto the preceding document (A/CN.9/WG.IV/WP.89) withan enclosed advisory opinion prepared by ProfessorGeneviève Burdeau at the request of the secretariat.

2. The underlying concern is that existing internationallegal instruments making reference to “writing”, “signa-ture” and “document” may not allow for their electronicequivalents and that this may constitute a barrier to thedevelopment of electronic commerce and a disadvantage inrelation to traditional commerce practice.

3. The secretariat approached the issue, very appropri-ately, in two ways. With its document A/CN.9/WG.IV/WP.94, it conducted a survey of international legal instru-ments deposited with the Secretary-General, with the aimof identifying possible legal barriers to the development ofelectronic commerce. With its preceding documentA/CN.9/WG.IV/WP.89, it distributed an advisory opinionby Ms. Burdeau suggesting that, at the initiative of UNCITRAL, an interpretative agreement be concluded, insimplified form, for the purpose of specifying and supple-menting the definition of the terms “writing”, “signature”and “document” in all existing and future internationalinstruments, irrespective of their legal status, and that this

1Official Records of the General Assembly, Fifty-Sixth Session,Supplement No. 17 and corrigendum (A/56/17 and Corr.3), paras. 291-293.

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Part Two. Studies and reports on specific subjects 603

agreement be reinforced by a General Assembly resolutionas well as recommendations by the Organisation forEconomic Cooperation and Development and the WorldTrade Organization (WTO) General Council, among others.The French delegation, by its note annexed to documentA/CN.9/WG.IV/WP.93, basically endorsed this suggestion,recommending, however, that, instead of an agreement thatwould interpret, modify or amend existing treaties, a newagreement be concluded, providing for electronic equiva-lents.

4. In the opinion of the Italian delegation, the survey con-tained in document A/CN.9/WG.IV/WP.94 is of funda-mental importance to place in its proper context thesuggestion for an omnibus agreement along the lines indi-cated in the advisory opinion by Professor Burdeau or inthe note by the French delegation. When we look at theabove survey, we see that all legal instruments surveyedfall into the following few categories with respect to theirpotential for raising barriers to electronic commerce.

5. A large group of instruments, according to the secre-tariat, raise no issue and require no action. This applies toinstruments identified in document A/CN.9/ WG.IV/WP.94as: I,15; II,A,9; II,A,13; II,A,14; II,B,1; II,B,19; II,B,8;II,B,12; II,B,13; II,B,14; II,B,22; II,B,21; II,B,23; II,C,2;II,D,1; II,E,2.

6. A second group of surveyed instruments, according tothe secretariat, raises issues that cannot be solved by thesimple principle of electronic equivalent, because, forexample, they imply notions of “location”, “dispatch andreceipt of an offer” or similar notions that require a morecomplex adaptation to the electronic environment. Suchissues, indeed, are among those covered by the draft con-vention on electronic contracting (document A/CN.9/WG.IV/WP.95) or should be covered by other conventionsthat are being considered by the UNCITRAL WorkingGroup on Electronic Commerce, such as the convention ontransfer of rights (on tangible or intangible goods) by elec-tronic means, or the convention on online dispute settle-ment systems. This is the case of the instruments identifiedin document A/CN.9/WG.IV/WP.94 as: I,7; I,10; I,12; I,13;II,B,26; II,D,3; II,D,4; II,E,1; III,1; III,2.

7. A third group of surveyed instruments, according tothe secretariat, raises issues of a trade policy nature. Therelevant instruments are addressed to States and are notapplicable to private law transactions. For these issues,rather that an UNCITRAL-sponsored omnibus agreementof the type envisaged in document A/CN.9/WG.IV/WP.89,the appropriate action, if any, should come, according tothe secretariat, from other international organizations,mainly WTO. This is the case of the instruments identi-fied in document A/CN.9/WG.IV/WP.94 as: I,3; II,A,5;II,A,15; II,A,17; II,A,18.

8. Finally, the secretariat identifies two instruments relat-ing to international transport (II,A,16 and II,B,11) that, inall likelihood, would require some special adaptation pro-visions.

9. What is striking in this connection is the absence,among the international legal instruments surveyed, of an

instrument for which the proposed omnibus agreementwould reach its intended general purpose. All the surveyedlegal instruments, in one way or another, seem to requireeither no action or a very specific action that could not beconfined to the mere establishment of the principle of theelectronic equivalent, whenever the terms “writing”, “sig-nature” and “document” are used. This should by no meanslead to the conclusion that an omnibus agreement of thetype envisaged in document A/CN.9/WG.IV/WP.89 wouldbe useless; simply, the conclusion appears to be that theneed for such an agreement is rather residual and that, inaddition, caution should be exercised for those cases wherethe mere application of the principle of electronic equiva-lent would either not reach the intended purposes or beinconsistent with other provisions of the instrument, which,for example, clearly refer only to a physical document (onemight think of an instrument providing for the keeping ofa document in a safe, which would be applicable only toa physical document, or a printed copy of an electronicdocument).

10. Given the above, the Italian delegation suggests firstof all that the UNCITRAL Working Group on ElectronicCommerce completes its work not only in connection withthe convention on electronic contracting but also in theother areas identified, such as the electronic transfer ofrights in tangible goods, electronic transfer of intangiblerights and online dispute settlement systems. Upon com-pletion of this work, the Italian delegation maintains thatthe bulk of the problems intended to be solved with theomnibus protocol envisaged in document A/CN.9/WG.IV/WP.89 will have already been solved in a more appropri-ate way.

11. Having said that, the Italian delegation feels thatestablishing in an international agreement the principle that“the use of the terms ‘writing’, ‘signature’ and ‘document’in international legal instruments should extend to theirelectronic equivalent” is something that should be done.However, any such agreement in this respect should bequalified with the condition that the electronic equivalentprinciple should apply only whenever feasible and when-ever not inconsistent with other provisions of the legalinstrument in question. It should, in other words, consti-tute a kind of agreement in principle, aimed at engender-ing a practice and an opinio juris that could result in theemergence of a new customary rule allowing for electronicequivalents in the context of international trade (see para.10 of the note by the French delegation, documentA/CN.9/WG.IV/WP.93).

12. Along these lines, whether or not this agreement iscalled “interpretative” or otherwise does not make muchdifference. The Italian delegation agrees, however, thatUNCITRAL is the proper forum for drawing up such anagreement and suggests that it be simply included, by wayof an additional article to the existing text discussed at thethirty-ninth session of the Working Group, in the draft con-vention on electronic contracting presently under consid-eration. It may constitute a provision that would slightlyexceed the scope of the draft convention, but this riskwould be outweighed by many other practical advantages,including that of a simpler approach and a probably easierapproval process.

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3. Oman[Original: Arabic]

[11 April 2002]

1. As a next phase, emphasis should be placed on the needto examine the texts of treaties deposited with regional enti-ties, such as the League of Arab States, the GulfCooperation Council, WTO, the World Intellectual PropertyOrganization (WIPO) and other international entities.

2. The United Nations Commission on InternationalTrade Law, through its Working Group, should considerthe possible inclusion of certain trade operations into theUNCITRAL Model Law on Electronic Commerce, suchas contracts for the international sale of goods, transportof passengers, carriage of goods, insurance operations,bank guarantees and standby letters of credit and otherrelevant items. The Model Law should not be limited tothe transport of goods but should rather cover all that theWorking Group may deem appropriate for inclusion inthe Model Law, such as maritime liens and mortgagesand recognition of the documentary form of arbitrationagreements. Such operations should be introduced into thetext of the Model Law rather than being incorporated intoseveral international treaties. As a result, any State canbe able to enact legislation for electronic commerce,making use of the commercial operations contained in theModel Law.

3. The existing disagreement on electronic sales in thecontext of the international sale of goods should beresolved and thus the word “goods” should cover intangi-ble things, such as patent rights, trademarks, know-howand purchase through digital loading etc; sufficient iden-tification of movable material goods, tangible or intangi-ble; and solving the problematic swing in the extent towhich goods are considered tangible or intangible, such asdownloading musical or film digital files from the pur-chase site directly.

B. Intergovernmental organizations

1. International Civil Aviation Organization [Original: English]

[3 June 2002]

1. The International Civil Aviation Organization (ICAO)considers the survey that is being conducted by UNCITRAL very useful and wishes to submit for consid-eration for inclusion in the survey a number of legal instru-ments in the field of international air transport. Thefollowing instruments would appear to lend themselves forconsideration in this respect:

(a) Convention for the Unification of Certain RulesRelating to International Carriage by Air, signed at Warsawon 12 October 1929 (Second International Air LawConference, Warsaw, 1929). This instrument requires, interalia, the delivery of a passenger ticket (article 3), mentionsthe requirement of a luggage ticket to be made out in dupli-cate (article 4) and addresses in articles 5 to 16 the nature,content and function of the air consignment note. Further,article 26, paragraph 3, mentions that a complaint must bemade “in writing”. (These examples, as well as the ones

to follow below, are given for illustrative purposes and arenot necessarily exhaustive);

(b) Protocol to Amend the Convention for theUnification of Certain Rules Relating to InternationalCarriage by Air Signed at Warsaw on 12 October 1929,signed at The Hague on 28 September 1955 (Doc 7632).This instrument also contains a number of provisionsdealing with the required contents of air transport docu-ments (see for example articles III, IV and V to IX) andarticle XI, substituting article 22 of the WarsawConvention, contains a reference to the air carrier havingprovided “in writing” an offer for the settlement of aclaim;

(c) Convention Supplementary to the WarsawConvention, for the Unification of Certain Rules Relatingto International Carriage by Air Performed by a PersonOther than the Contracting Carrier, signed at Guadalajaraon 18 September 1961 (Doc 8181). In light of article IVof this instrument, it may be useful to include theConvention in the survey;

(d) Additional Protocol No. 2 to Amend theConvention for the Unification of Certain Rules Relatingto International Carriage by Air signed at Warsaw on 12October 1929 as Amended by the Protocol done at TheHague on 28 September 1955, signed at Montreal on 25September 1975 (Doc 9146). Article II of this instrument,amending article 22 of the Hague Protocol, contains a ref-erence to an offer to be made to the plaintiff “in writing”;

(e) Montreal Protocol No. 4 to Amend the Conventionfor the Unification of Certain Rules Relating toInternational Carriage by Air signed at Warsaw on 12October 1929 as Amended by the Protocol done at TheHague on 28 September 1955, signed at Montreal on 25September 1975 (Doc 9148). With respect to the carriageof cargo, this instrument provides, inter alia, for the sub-stitution of the delivery of the air waybill, with the con-sent of the consignor, by “any other means” which wouldpreserve a record of the carriage to be performed. If suchother means are used, and if requested by the consignor,the carrier shall deliver to the consignor a “receipt” for thecargo permitting identification of the consignment andaccess to the information contained in the record preservedby such other means (see article III, amending article 5 ofthe Warsaw/Hague provisions). Article 6, as amended bythe Protocol, contains a number of references to the “sign-ing” of the air waybill, and article 12 contains a referenceto the “production” of the part of the air waybill or thereceipt for the cargo.

(f) Convention for the Unification of Certain Rulesfor International Carriage by Air, done at Montreal on 28May 1999 (Doc 9740). Article 3 of this instrumentdescribes the format and contents of the various air trans-port documents and contains references to a “written state-ment”, a “baggage identification tag” and a “writtennotice”. This instrument essentially incorporates in articles4 to 16 the respective provisions of Montreal Protocol No.4, with some minor modifications. Article 31, paragraph 3,contains a reference to the requirement of a complaint tobe made “in writing” and further requires in article 34,paragraph 1, that an arbitration agreement be made “inwriting”.

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Part Two. Studies and reports on specific subjects 605

2. International Maritime Organization[Original: English]

[14 May 2002]

1. The International Maritime Organization (IMO)believes that one IMO instrument may be relevant toUNCITRAL’s survey.

2. The Convention on Facilitation of InternationalMaritime Traffic, 1965 (FAL) is intended, as expressed inthe preamble to the Convention, “to facilitate maritime traf-fic by simplifying and reducing to a minimum the formal-ities, documentary requirements and procedures on thearrival, stay and departure of ships engaged in internationalvoyages.” The FAL Convention now has 91 State-parties.Part C of section C of the annex to this Convention con-tains recommended practices and standards concerning“electronic data-processing techniques”.

3. United Nations Educational, Scientific and Cultural Organization

[Original: English][30 May 2002]

The instruments for which the United NationsEducational, Scientific and Cultural Organization (UNESCO)acts as depositary cover the fields of education, science, cul-ture and communication, and none of them appear to comewithin the scope of international trade instruments, as men-tioned in the letter from the UNCITRAL secretariat.

4. World Intellectual Property Organization [Original: English]

[28 May 2002]

1. The World Intellectual Property Organization (WIPO)has a longstanding tradition of collaboration with UNICTRAL. The work conducted by UNCITRAL is heldin the highest regard by WIPO, and some of the instru-ments that have resulted from that work are deemed to bepart of the most significant achievements by an organiza-tion of the United Nations system in the commercial anddigital arenas. With regard to the mandate of WIPO, par-ticular reference is made in this regard to the accomplish-ments of UNCITRAL in the area of commercial arbitrationand electronic commerce.

2. In our age, technological developments, including infor-mation technology and the Internet, arguably are the primarydriving factors behind the evolution of the intellectual prop-erty system. At the same time, the intellectual propertysystem is the principal legal framework relied upon by thecreators of these new technologies as a means of reapingrewards for their investments. In light of this close and insep-arable relationship between modem technologies and intel-lectual property, one of the critical tasks of the WIPOmember States and the secretariat is to monitor, on an ongo-ing basis, the treaties administered by WIPO to determinewhether their provisions remain in line with technologicaldevelopments, including the Internet, and to propose amend-ments to these instruments should the need arise.

3. Specifically with regard to any requirements in theWIPO-administered treaties with respect to “writing”, “sig-

natures” and “documents”, significant work already hasbeen and continues to be undertaken by WIPO with a viewto facilitating, at the international level, the electronic filingof patent and trademark applications. Particular referencecan be made in this regard to certain provisions of thePatent Law Treaty (PLT), the Trademark Law Treaty(TLT) and the Patent Cooperation Treaty (PCT) (withregard to the latter, the Standard for the Electronic Filingand Processing of International Applications).

4. Considering, therefore, that the work contemplated inthe letter from UNCITRAL, to a large degree, is alreadyunder way at WIPO in respect of the treaties that theOrganization administers, it is felt that it would not beopportune to repeat this process within a different institu-tion, especially because a proper appreciation of the rele-vant provisions of the WIPO treaties, as well as the changesthat might be required to them, requires a thorough under-standing of the practices of national intellectual propertyoffices and their interaction with the international patentand trademark system. Furthermore, the WIPO secretariatwould be concerned that duplication of efforts in differentinstitutions might lead to confusion and inconsistent results.

5. Notwithstanding the above, the WIPO secretariat isfully prepared to assist UNCITRAL in its work in a mannerthat is both helpful and avoids these potential difficulties.To that end, the WIPO secretariat proposes to organize, ata mutually convenient place and time, a briefing sessionfor the benefit of the UNCITRAL secretariat so that it mayfamiliarize itself with the work of WIPO aimed at updat-ing its treaties with a view to their application in the dig-ital environment.

5. World Customs Organization [Original: English]

[10 June 2002]

1. The World Customs Organization (WCO) is thankfulfor the invitation to contribute to the UNCITRAL com-prehensive survey concerning possible legal barriers to thedevelopment of electronic commerce in internationalinstruments.

2. WCO adopted in 2001 the Baku Declaration on e-com-merce, which requested customs services to apply a com-prehensive e-commerce strategy by:

(a) Simplifying customs processes and requirementswhile achieving higher levels of compliance and securitywhich, in turn, will reduce burdens on trade and achievelower compliance costs;

(b) Developing seamless international trade transac-tions and associated standardized processes and data flowsthat can be used successfully across the WCO membershipand that build on the WCO Customs Data Model and therevised Kyoto Convention;

(c) Ensuring that the use of e-commerce enables cus-toms administrations to identify and manage risk at a muchearlier stage and improve the targeting of resources to thehighest risk areas;

(d) Placing greater reliance on the use of commercialdata to fulfil customs requirements;

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606 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIV

(e) Ensuring secure, accessible requirements and theavailability of reliable IT systems that are user-friendly andare capable of recycling information;

(f) Exploiting the potential to improve the exchangeof information and intelligence between member adminis-trations and, in particular, to build on the UniqueConsignment Reference (UCR) number concept for end-to-end international trade transaction audit trails;

(g) Developing closer relations with other governmentagencies involved in international trade in order to facili-tate the seamless transfer of international trade data (singlewindow concept) and to exchange risk intelligence at bothnational and international levels;

(h) Ensuring that all relevant international trade rulesare updated so that the electronic functional equivalents of“documents” and “signatures” are legally valid;

(i) Ensuring that all levels of staff are provided withthe necessary training to build up the skills required tooperate in a fully automated electronic environment.

3. It can be noted from this development that WCO verymuch welcomes this opportunity to provide UNCITRALwith details about some of its instruments, which it wouldlike to request to have included in the UNCITRALsurvey:

(a) International Convention on the simplification andharmonization of customs procedures as amended (revisedKyoto Convention); signed on 26 June 1999, not yetentered into force (10 of the required 40 signatories);

(b) Convention on temporary admission (IstanbulConvention); signed on 26 June 1990, entered into forceon 27 November 1993; 38 Contracting Parties;

(c) Customs Convention on the ATA carnet for thetemporary admission of goods; entered into force on 30July 1963, 62 Contracting Parties;

(d) Recommendation of the Customs CooperationCouncil (CCC, now WCO) concerning customs require-ments regarding commercial invoices, signed on 16 May1979;

(e) Recommendation of the Customs CooperationCouncil concerning the transmission and authentication ofcustoms information which is processed by computer,signed on 16 June 1981.

4. The secretariat of WCO is very interested in ongoingcooperation with UNCITRAL and looks forward to receiv-ing a copy of the final results in due course.

6. Council of Europe [Original: English]

[24 June 2002]

1. The Council of Europe has considered the undertak-ing of UNCITRAL to identify and remove the possiblelegal barriers to electronic commerce resulting from inter-national trade law instruments and the survey that the sec-retariat of UNCITRAL is now carrying out to identify suchrelevant international trade law instruments with greatattention and interest.

2. The secretariat of the Council of Europe would liketo inform the UNCITRAL secretariat that the Council of Europe Convention on information and LegalCooperation concerning “Information Society Services”(ETS 180) enables to enlarge the application of theEuropean Union Directive EC/98/34 (as modified byDirective EC/98/48) to those member States of theCouncil of Europe that are not members of the EuropeanUnion. This Convention, open to signature in Moscow inOctober 200I, aims at setting up a legal information andcooperation system in the area of new communicationservices following the example of Directive 98/48/EC,which will enable participating States to be aware of andprovides comments on draft legislation on “InformationSociety Services”. These new services, called“Information Society Services” are in fact activities ofan interactive nature provided online, normally for aremuneration. This Council of Europe Convention,together with the Directive, should be reflected in theUNCITRAL survey, as an important tool to develop andfacilitate international trade beyond the European Unionarea and between the latter and those member States ofthe Council of Europe that are not members of theEuropean Union.

3. Moreover, the Council of Europe would like to drawthe attention of UNCITRAL to the work of the Councilof Europe in the field of personal data protection, whichis carried out on the basis of the Convention for theProtection of Individuals with regard to AutomaticProcessing of Personal Data of 1981 (ETS 108). Thiswork has resulted in a number of recommendations andreports that may have implications for electronic com-merce. In particular, the “Model contract to ensure equiv-alent data protection in the context of transborder dataflows” (available on the Internet site of the Council ofEurope at http://www.coe.int), which was jointly preparedwith the European Commission and the InternationalChamber of Commerce in 1992 and is currently beingupdated, lays down contractual clauses aiming at personaldata protection in contracts involving transborder dataflows to countries that do not ensure adequate protectionof personal data.

7. Latin American Integration Association [Original: Spanish]

[17 May 2002]

The General Secretariat of the Latin AmericanIntegration Association (ALADI) has undertaken studieson the current situation and perspectives of electroniccommerce in the 12 member States of the Association,which, among other things, contain chapters analysing thelegal and regulatory framework for electronic commercein the region. The studies on electronic commerce can befound (in Spanish and Portuguese) on the ALADI website (www.aladi.org) under the links “Portal comercioelectrónico (electronic commerce portal)—Estudios einformes (studies and reports)—Organismos interna-cionales (international organizations)—ALADI”. Theabove-mentioned page, in particular the link “Normativa(rules)”, also contains information on laws and regula-tions relating to electronic commerce in the memberStates of ALADI.

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Part Two. Studies and reports on specific subjects 607

C. International non-governmental organizations

1. International Federation of Freight Forwarders Associations

[Original: English][24 April 2002]

The International Federation of Freight ForwardersAssociations (FIATA) suggests that the following interna-tional conventions be added:

(a) Air transport: Convention for the Unification ofCertain Rules Relating to International Carriage by Air,signed at Warsaw on 12 October 1929 (WarsawConvention), amended by Montreal Protocol No. 4, andthe Convention for the Unification of Certain Rules forInternational Carriage by Air (Montreal Convention1999);

(b) Rail transport: Convention concerning interna-tional carriage by rail (COTIF).

II. COMPILATION OF COMMENTS

A. States

1. Lithuania[Original: English]

[22 July 2002]

1. The Government of Lithuania expresses its apprecia-tion to the work carried out by the UNCITRAL secretariatin conducting the survey of possible legal barriers to thedevelopment of electronic commerce in internationalinstruments.

2. In the view of the Government of Lithuania themethodology used by the UNCITRAL secretariat in theconduct of the survey is appropriate to the project desig-nated by the Working Group. However, the Governmentbelieves that it would be meaningful to include in thesurvey references to the reservations that were made byStates to appropriate international instruments if the reser-vations could create obstacles to electronic commerce (forexample, nine States declared, in accordance with articles12 and 96 of the United Nations Convention on Contractsfor the International Sale of Goods, that any provision ofarticle 11, article 29 or Part II of the Convention that allowsa contract of sale or its modification or termination by

agreement or any offer, acceptance or other indication ofintention to be made in any form other than in writingwould not apply where any party had its place of businessin its territory).

3. Another item suggested for future work would be con-ducting a survey that might encompass an analysis of theUNCITRAL model laws and preliminary conclusions as tothe types of provisions that might create obstacles to elec-tronic commerce.

2. Niger[Original: French]

[11 July 2002]

1. Niger welcomes the work of UNCITRAL to developuniform rules on electronic signatures and its efforts toensure that notions of “writing”, “signature” and “docu-ment” in international trade instruments are understood ina manner that accommodates their electronic equivalents.However, Niger considers it desirable for UNCITRAL totake appropriate measures to take care of the concerns ofless developed countries in connection with the followingconventions, as follows:

(a) The Convention on Transit Trade of Land-lockedStates (New York, 8 July 1965) served as a basis to pro-

A/CN.9/WG.IV/WP.98/Add.1

ADDENDUM

CONTENTS

Page

II. Compilation of comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .607

A. States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .607

1. Lithuania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .607

2. Niger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .607

B. Intergovernmental organizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .608

1. European Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .608

C. International non-governmental organizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .608

1. International Chamber of Commerce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .608

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mote international transport between land-locked Statesand coastal States, in particular in Africa. Thus, consid-eration of problems related to electronic commerce shouldtake into account the interests of those States by associ-ating, in one way or another, the experts of the Statesconcerned;

(b) The Customs Convention on the InternationalTransport of Goods under Cover of TIR Carnets (Geneva,14 November 1975) covers the deciding and multiple func-tion of the TIR carnet (controls, means of evidence etc.)for the facilitation of traffic, in particular in WesternAfrica. Thus, the analysis should be continued andexpanded to include African countries.

2. Similar comments could be made in connection withother conventions, in particular the Convention on theContract for the International Carriage of Goods by Road(Geneva, 19 May 1956) and Protocol thereto (Geneva,5 July 1978), in view of the role of the consignment notein international trade by road in our region.

B. Intergovernmental organizations

1. European Commission [Original: English]

[16 July 2002]

The Information Society Directorate-General of theEuropean Commission understands that the scope of thesurvey focuses on international trade instruments that mightcontain legal barriers to electronic commerce. Having con-sulted with other Directorate-Generals in the EuropeanCommission, the European Commission is able to informUNCITRAL that, since the Commission is not a deposi-tory for international instruments, it has no additionaltreaties to add to the inventory. Furthermore, it wouldappear that legislation of the European Union does not fallwithin the scope of the UNCITRAL survey.

C. International non-governmental organizations

1. International Chamber of Commerce[Original: English]

[18 July 2002]

1. The International Chamber of Commerce (ICC) appre-ciates the opportunity to provide substantive input toUNCITRAL on the proposed project on barriers to elec-tronic commerce in existing international trade-relatedinstruments. ICC members are interested in providing sub-stantive business experiences which hopefully will beuseful to UNCITRAL.

2. ICC plans to provide more in-depth comments regard-ing the proposed projects, including ongoing work on con-tract formation, prior to the UNCITRAL meetings inOctober. The following are general comments of ICC onthe “omnibus convention” project:

(a) ICC supports this work to the extent that the revi-sion of writing requirements in international conventionswould remove barriers to trade. However, ICC thinks itwould be very important to define the work clearly, sincebusiness has come to rely on the wording of many inter-national conventions;

(b) ICC believes that it would be premature forUNCITRAL to try to determine the form of the work prod-uct at this juncture (i.e. interpretation, convention, guide-lines or model laws) and instead urges UNCITRAL topursue the necessary groundwork on the issues which inturn will provide guidance in determining the appropriateform the work product should take in the future. In gen-eral, the ICC perspective is that the work product shouldsupplement rather than re-open existing legislation or con-ventions;

(c) ICC thinks that UNCITRAL should only beginthe drafting process after comprehensive research and anin-depth expert analysis on the issues have been carriedout.

A/CN.9/WG.IV/WP./Add.2

Compilation of comments by Governments and international organizations

ADDENDUM

CONTENTS

Page

II. Compilation of comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .609

States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .609Belgium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .609

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Part Two. Studies and reports on specific subjects 609

II. COMPILATION OF COMMENTS

A. States

Belgium[Original: French]

1. The comments of the Belgian delegation are essen-tially limited to the international conventions with regardto which the survey proposes that issues arising fromtheir application in the context of electronic commercebe addressed during the deliberations of the WorkingGroup on Electronic Commerce on the development ofan international instrument dealing with certain issuesrelating to electronic contracting. The conventions con-cerned are the following: the Convention on theLimitation Period in the International Sale of Goods(New York, 14 June 1974) and the Protocol amending it(Vienna, 11 April 1980), the United Nations Conventionon Contracts for the International Sale of Goods (Vienna,11 April 1980), the United Nations Convention on theLiability of Operators of Transport Terminals inInternational Trade (Vienna, 17 April 1991), theConvention on the Contract for the International Carriageof Passengers and Luggage by Road (Geneva, 1 March1973) and the Protocol to it, the United NationsConvention on the Carriage of Goods by Sea (Hamburg,31 March 1978) and the United Nations Convention onInternational Multimodal Transport of Goods (Geneva,24 May 1980).

2. The Belgian delegation wonders whether its under-standing is correct that the proposal referred to abovepresupposes that a future international convention onelectronic contracting would, of itself, enable the diffi-culties arising from the application of the aforemen-tioned conventions in the context of electroniccommerce to be resolved without those conventionsbeing amended. Such an approach would differ from thatproposed in document A/CN.9/WG.IV/WP.89, namely,the drafting of an interpretative agreement in a simpli-fied form. Given the rules of treaty law, particularlythose relating to the application of successive treaties,it is not clear how the mere juxtaposition of a new con-vention would enable the problems raised by previousconventions to be resolved.

3. As to whether, in substance, the provisions of the draftconvention on electronic contracting, as considered by theWorking Group on Electronic Commerce at its thirty-ninthsession (see A/CN.9/WG.IV/WP.95), would enable the dif-ficulties identified in the survey to be resolved, three pointsshould perhaps be underlined.

4. Firstly, difficulties arising from the provisions for theexchange by parties of notifications, declarations or com-munications might be encountered only if the draft, in par-ticular article 10, permitted the use of electronic data notjust at the stage of contract formation proper but also inthe performance of the contract.

5. Secondly, and more specifically, the difficulties aris-ing from the United Nations Convention on Contracts forthe International Sale of Goods, particularly the issue ofthe applicability of the Convention to sales of “virtualgoods”, seem to be of a different nature. They are notrelated as such to the use of electronic data in the contextof a contract, but arise merely from the definition of thescope of the Convention, which is limited to sales of“goods”, a term that has generally been interpreted as des-ignating tangible movable goods and that might thereforeexclude virtual goods. If that were the case, thisConvention could be made applicable to sales of virtualgoods, where appropriate, only through a modification ofits scope and not simply through application of the draftconvention’s rules on electronic contracting.

6. Thirdly, as regards the difficulties linked to certain formrequirements, particularly those relating to the existence ofa writing or a document, resolution of those difficulties bymeans of the draft convention would presuppose, whateverthe circumstances, a clear specification of the distinctionestablished in article 6, paragraph 2, between, on the onehand, matters settled in the convention and, on the other,matters governed by but not settled in it, which, in theabsence of application of general principles, must be set-tled by the law applicable by virtue of the rules of privateinternational law. If, in this context, article 13 of the draft,relating to form requirements, were to be interpreted asleaving the issue of form requirements to the applicable law,this draft might prove to be of no help in relation to thedifficulties mentioned. This would be all the more incom-prehensible given that article 10 affirms the principle of thevalidity of a contract concluded electronically, unless it isto be understood that article 13, contrary to article 10,covers only the issue of proof of the contract and not itsvalidity, which would hardly seem desirable.

7. Overall, the Belgian delegation can support the conclu-sions on the other conventions considered in the survey,which suggest that some of the conventions should be con-sidered in other forums. However, it would be necessary toensure that any solutions that might emerge were consistent.This is particularly true with regard to the Convention onthe Contract for the International Carriage of Goods by Roadof 19 May 1956, the object of which is very similar to thatof the Convention on the Contract for the InternationalCarriage of Passengers and Luggage by Road of 1 March1973, and with regard to the Convention on the Recognitionand Enforcement of Foreign Arbitral Awards of 10 June1958 and the European Convention on InternationalCommercial Arbitration of 21 April 1961, which raise someof the same issues as those covered by the draft conventionon electronic contracting. Moreover, it can be seen that thedifficulties raised by electronic substitutes for bills of ladingand other transport documents in the context of the UnitedNations Convention on the Carriage of Goods by Sea of 31March 1978 might also be covered by the future work ofthe Working Group on Electronic Commerce on legal issuesrelated to the transfer of rights, particularly rights in tangi-ble goods, by electronic means.

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610 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIV

II. COMPILATION OF COMMENTS

A. States

1. United States of America[Original: English]

[7 August 2002]

1. The United States of America welcomes the opportu-nity to comment on document A/CN.9/WG.IV/WP.94, andsupports the conclusion of the Commission at its thirty-fifth session that the next meeting of the Working Groupshould concentrate on that paper and the issues raisedtherein.

2. An examination of existing conventions will enable theWorking Group to determine the extent to which additionallanguage, interpretations or both may be necessary to facil-itate their application to transactions involving electroniccommerce. A distinction may need to be made betweengeneral issues applicable to a wide range of transactionalsettings, issues dependent on specialized commercial prac-tices, and issues that need to await further development ofelectronic commerce practices before rules are formulated.

3. The United States agrees with those who counsel thatthe form of any legal texts emanating from work onA/CN.9/WG.IV/WP.94 does not have to be resolved at thisstage, and notes that it has been suggested that the WorkingGroup’s review, in itself, could have significant value asguidance for transacting parties or other organizations. Onepossibility already discussed in the secretariat’s materialsis a type of “omnibus protocol”. Such a protocol could pro-vide either new provisions or agreed interpretations ofexisting international texts, applicable between States par-ties to the protocol inter se, and possibly only as to eachinstrument specified by a State party.

4. The United States also concurs with the views at thethirty-fifth session that the current draft text on formationof contracts (A/CN.9/WG.IV/WP.95, annex I), which wasdiscussed by the Working Group at its last session, nowneeds a more detailed review of crossover issues in salesand contract law. The United States believes that this canproceed concurrently through the preparation of studies,meetings of expert groups and other means. It has been

suggested that a future treaty on contract formation mightend up being folded into a protocol based onA/CN.9/WG.IV/WP.94.

5. As to work at the next Working Group session basedon the working paper, the long list of conventions mightappear daunting. The United States would suggest that theWorking Group’s first effort might be limited to commer-cial law treaties formulated by UNCITRAL, which are con-veniently set out in the first group of conventions in theworking paper. That would permit a manageable group ofconventions and issues, clearly within the jurisdiction ofthe Commission, which can then be expanded to otherinternational instruments as work proceeds.

6. Four of the texts prepared by UNCITRAL that arementioned in A/CN.9/WG.IV/WP.94 are the Conventionon the Limitation Period in the International Sale of Goods(New York, 1974); the United Nations Convention onContracts for the International Sale of Goods (Vienna,1980); the United Nations Convention on IndependentGuarantees and Stand-by Letters of Credit (New York,1995); and the United Nations Convention on InternationalBills of Exchange and International Promissory Notes(New York, 1988). In the context of those four, the UnitedStates believes that the need to differentiate between spe-cialized practices will become clear. For example, the def-inition of terms such as “writing” in the UNCITRALModel Law on Electronic Commerce might work for theSales and Limitations Conventions, but possibly not at thisstage for negotiable instruments or guarantees, since recentindications are that standard practices for electronic nego-tiables and other instruments are still in formative stageswithin the banking and import-export communities, andtheir applications in commerce are still limited.

7. The Working Group might also consider joint effortswith Working Group III (Transport Law), which couldinclude the United Nations Convention on the Liability ofOperators of Transport Terminals in International Trade(1991), since each may be working on transferability ofrights in tangibles through electronic commerce. Joint workmight also be considered on transfer of rights in intangi-ble assets, such as payment rights, which will be relevantto other Working Groups, such as Working Group VI(Security Interests).

A/CN.9/WG.IV/WP98.Add.3

ADDENDUM

CONTENTSPage

II. Compilation of comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .610

A. States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .610

1. United States of America . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .610

B. Intergovernmental organizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .611

1. International Monetary Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .611

2. Asian Development Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .611

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Part Two. Studies and reports on specific subjects 611

8. Finally, the first group of treaties in the working paperalso includes the Convention on Transit Trade of Land-lockedStates. The secretariat has correctly pointed out that that con-vention, and a number of others in the working paper, essen-tially deals with public law matters. The United Statesbelieves that the Working Group should consider whether toextend its work to some conventions in that category, assum-ing the originating bodies believe that the Commission’sfocus on their products would be feasible and appropriate.

9. After examining the above, the United States wouldsuggest that regional texts might be selectively taken up inthe same manner, assuming an appropriate balance betweengeographic regions as to those instruments. There are, forexample, in the western hemisphere, private and public lawconventions prepared by the Organization of AmericanStates, as well as texts of subregional bodies, such as theCommon Market of the Southern Cone, the AndeanCommunity, the Caribbean Community, the NorthAmerican Free Trade Agreement and others. The UnitedStates anticipates similar recommendations from delega-tions in the other regions.

10. In closing, as a working matter, the United Stateswould suggest that both the issues involved and the typesof treaties might usefully be grouped into “baskets”, so thatcommonality among issues in different conventions couldbe compared, which in turn may contribute to appropriaterules or guidance.

11. Outside the particular conventions, the WorkingGroup may wish to consider whether general electroniccommerce enabling rules should be promoted, by referenceto or setting out provisions of the UNCITRAL Model Lawon Electronic Commerce in a separate chapter of such aprotocol, so that States may agree to apply those rules inwhole or in part. Promoting a common baseline may havesubstantial value, and the already wide application of theseparticular rules may justify this approach.

12. The United States looks forward to participating inthe Working Group’s examination of the issues that elec-tronic commerce presents and the opportunity to enhancethat commerce for all regions.

B. Intergovernmental organizations

1. International Monetary Fund[Original: English]

[19 August 2002]

1. The International Monetary Fund does not act, on aregular or ad hoc basis, as a depositary for internationallegal instruments. For that reason, there are no instrumentsdeposited with the Fund that can be included in the UNCITRAL survey. Similarly, the Fund does not keeptrack of legal instruments deposited with its member coun-tries and is not in a position to advise UNCITRAL of anythat may create legal barriers to the use of electronic com-merce internationally.

2. The Fund is very keen on extending the good work-ing relationship between the United Nations and theFund to the area of electronic commerce. While not sub-mitting any comments on the preliminary conclusions,the Fund would like to stay informed on an ongoingbasis of the progress being made and will gladly pro-vide expert views on issues relevant to the Fund’s activ-ities and mandate.

2. Asian Development Bank[Original: English]

[8 August 2002]

1. The Asian Development Bank thanks the secretariatfor its letter concerning the work of UNCITRAL in the area of electronic commerce and inquiring whetherthe Asian Development Bank might have internationaltrade instruments in respect of which the Bank or itsmember States act as depositaries that it would wish tobe included in the survey being conducted by the secre-tariat.

2. The Asian Development Bank appreciates very muchthe significance of the work that UNCITRAL is undertak-ing in this important area. At this point, however, the Bankdoes not have any such instruments to which the secre-tariat’s letter refers.

A/CN.9/WG.IV/WP.98/Add.4

CONTENTS

Page

Compilation of comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .612

A. States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .612

Switzerland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .612

B. Intergovernmental organizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .612

Organisation for Economic Cooperation and Development . . . . . . . . . . . . . . . . . . . . . . . .612

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612 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIV

II. COMPILATION OF COMMENTS

A. States

Switzerland[Original: English/French]

[3 October 2002]

1. The Swiss delegation shares the view taken by the sec-retariat in its conclusions of document A/CN.9/WG.IV/WP.94. It therefore believes that, rather than creating a newinstrument in form of an omnibus agreement, an “omnibusclause” should be included in the conventions in elabora-tion in the different areas concerned by the proposed agree-ment, such as electronic contracting, transport law, transferof rights and arbitration.

2. The main objective of the proposed omnibus agree-ment, the equal treatment of writing and its electronicequivalents in the context of commercial transactions, isone of the subject matters of the draft convention on cer-tain issues of electronic contracting. Article 13 of the draftprovides that, in the national legislation of the memberStates, the terms “in writing” and “signature” are deemedto allow for electronic equivalents. This rule could, by wayof an “omnibus clause”, be extended to certain internationalinstruments dealing with electronic commerce.

3. However, there are barriers to electronic transactionsthat are not considered by the mentioned draft convention,for example the one addressed by Article 5 of the UNCI-TRAL Model Law on Electronic Commerce of 1996,which lays down the general principle that a communica-tion cannot be denied legal effect on the grounds that it isin the form of a data message. This principle would be ofimportance in the present context, especially for notifica-tions and declarations made under the Convention on theLimitation Period in the International Sale of Goods or theConvention on Contracts for the International Sale ofGoods or for communications made under the Conventionon the Liability of Operators of Transport Terminals inInternational Trade (see p. 6 ff. and 10 f. of documentA/CN.9/WG.IV/WP.94). The Swiss delegation thereforefeels that a provision enacting this principle with regard tonational legislation’s should be added to the draft conven-tion on electronic contracting and supplemented by an“omnibus clause” extending its scope to certain interna-tional conventions and agreements.

4. What the draft convention does cover is the questionat what time and at what place a communication in elec-tronic form is deemed to have been pronounced or received(Art. 11). Here one could also extend the scope of the givenrule to certain international instruments.

5. The Swiss delegation also shares the view of the sec-retariat that the questions arising in connection with elec-tronic substitution of transport papers or (other) negotiableinstruments or in connection with arbitration are of par-ticular nature and require an in-depth analysis for whichthe meetings held by the Working Group or other bodieson the topics transfer of rights through electronic means,transport law and arbitration would be the proper forums.

6. The Swiss delegation endorses the Belgian position(document A/CN.9/WG.IV/WP.98/Add.2) whereas the dif-ficulties arising in connection with “virtual goods” underthe Convention on Contracts for the International Sale ofGoods are not related as such to the use of electronic datain the context of a contract and arise merely from the def-inition of the scope of the convention. The issue shouldtherefore be discussed at the occasion of a possible revi-sion of that convention.

7. As to the nature of a possible omnibus agreement orthe “omnibus clauses” to be incorporated in other instru-ments dealing with issues of electronic commerce, two dif-ferent conceptions have been presented to the WorkingGroup. The study by Professor Burdeau (annex to docu-ment A/CN.9/WG.IV/WP.89) considers an interpretativeagreement to be sufficient to eliminate the barriers for elec-tronic commerce in existing treaties. The French delega-tion (document A/CN.9/WG.IV/WP.93) in contrast doesn’teven seem to see any necessity for an interpretative agree-ment and proposes that the new instrument should be lim-ited to a supplementary agreement, allowing for electronicequivalents without interpreting, modifying or amendingthe existing treaties. In the view of the Swiss delegationthe question whether an amendment or simply a comple-tion of existing treaties is needed cannot be decided apriori. To answer it one would have to look at the involvedtreaties individually and interpret them pursuant to theirown interpretation rules. Such a review can lead to threedifferent results: (1) The treaty allows for electronic equiv-alents; (2) The treaty does not allow for electronic equiv-alents and (3) The treaty does not cover the issue. In thefirst case no action has to be taken; in the second case thetreaty has to be amended and in the third case it is enoughto adopt supplementary provisions in a new instrument.This means that, to be sure that it is effective in relation-ship to all the envisaged instruments (and be consideredthat way by the national courts), the omnibus agreementshould take into account the possibility that it might implyan amendment of some of the instruments and thereforeobserve the form of a revision. This might be of relevancewhere an international instrument lays down special rulesfor its revision and its member States are not identical withthe ones of the omnibus agreement. The Swiss delegationdoes not see the possibility of getting around the necessityof a revision by choosing the form of an authentic inter-pretation. Changing the rules for the interpretation of aninstrument means amending it and therefore has to betreated as a revision.

B. Intergovernmental organizations

Organisation for Economic Cooperation andDevelopment

[Original: English][11 September 2002]

1. The Organisation for Economic Cooperation andDevelopment (OECD) is happy to confirm that accordingto its analysis the OECD has no instrument falling withinthe scope of UNCITRAL’s survey.

2. OECD points out that it certainly has instruments inthe domain of electronic commerce, but these are clearly

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Part Two. Studies and reports on specific subjects 613

not intended to constitute legal barriers to the use of elec-tronic commerce.

3. The OECD instruments usually take the form of rec-ommendations which are not legally binding, but whichrepresent the political will of member countries.

4. Examples of recommendations relevant to electroniccommerce are those on privacy (1980), cryptography policy (1997), consumer protection (1999) and security of information systems (2002), the texts of which areposted on the OECD web site (see http://www.oecd.org/legal).

C. Report of Working Group IV (Electronic Commerce) on the work of its forty-first session* (New York, 5-9 May 2003)

(A/CN.9/528) [Original: English]

CONTENTS

Paragraphs

I. Introduction: previous deliberations of the Working Group . . . . . . . . . . . . . . . . . . 1-15II. Organization of the session . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-22

III. Summary of deliberations and decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23-25

IV. Electronic contracting: provisions for a draft convention . . . . . . . . . . . . . . . . . . . . 26-151

General comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26-31

Article 1. Scope of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32-48

Article 2. Exclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49-64

Article 3. Matters not governed by this Convention . . . . . . . . . . . . . . . . . . 65-69

Article 4. Party autonomy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70-75

Article 5. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76-77

Article 6. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78-80

Article 7. Location of the parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81-93

Article 8. Use of data messages in contract formation . . . . . . . . . . . . . . . . 94-108

Article 9. Invitations to make offers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109-120

Article 10. Other uses of data messages in international [transactions] [in connection with international contracts] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121-131

Article 11. Time and place of dispatch and receipt of data messages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132-151

I. INTRODUCTION: PREVIOUS DELIBERATIONSOF THE WORKING GROUP

1. At its thirty-third session, in 2000, the United NationsCommission on International Trade Law (UNCITRAL) helda preliminary exchange of views on proposals for futurework in the field of electronic commerce. Three topics weresuggested as indicating possible areas where work by theCommission would be desirable and feasible: electroniccontracting, considered from the perspective of the UnitedNations Sales Convention on Contracts for the InternationalSale of Goods (the “United Nations Sales Convention”);1

online dispute settlement; dematerialization of documentsof title, in particular in the transport industry.

2. The Commission welcomed the proposal to study fur-ther the desirability and feasibility of undertaking futurework on those topics. The Commission generally agreedthat, upon completing the preparation of the Model Lawon Electronic Signatures, the Working Group would beexpected to examine, at its thirty-eighth session, some orall of the above-mentioned topics, as well as any additionaltopic, with a view to making more specific proposals forfuture work by the Commission at its thirty-fourth session,in 2001. It was agreed that work to be carried out by theWorking Group could involve consideration of severaltopics in parallel as well as preliminary discussion of thecontents of possible uniform rules on certain aspects of theabove-mentioned topics.2 The Working Group consideredthose proposals at its thirty-eighth session, in 2001, on the

*The present report could not be submitted earlier owing to the latedates of the session of the Working Group.

1United Nations, Treaty Series, vol. 1489, No. 25567.

2Official Records of the General Assembly, Fifty-fifth Session,Supplement No. 17 (A/55/17), paras. 384-388.

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basis of a set of notes dealing with a possible conventionto remove obstacles to electronic commerce in existinginternational conventions (A/CN.9/WG.IV/WP.89); dema-terialization of documents of title (A/CN.9/WG.IV/WP.90);and electronic contracting (A/CN.9/WG.IV/WP.91).

3. The Working Group held an extensive discussion onissues related to electronic contracting (A/CN.9/484, paras.94-127). The Working Group concluded its deliberations onfuture work by recommending to the Commission that worktowards the preparation of an international instrument deal-ing with certain issues in electronic contracting be startedon a priority basis. At the same time, it was agreed to rec-ommend to the Commission that the secretariat be entrustedwith the preparation of the necessary studies concerningthree other topics considered by the Working Group: (a) acomprehensive survey of possible legal barriers to thedevelopment of electronic commerce in international instru-ments; (b) a further study of the issues related to transferof rights, in particular, rights in tangible goods, by elec-tronic means and mechanisms for publicizing and keepinga record of acts of transfer or the creation of security inter-ests in such goods; and (c) a study discussing the UNCITRAL Model Law on International CommercialArbitration, as well as the UNCITRAL Arbitration Rules,to assess their appropriateness for meeting the specificneeds of online arbitration (A/CN.9/484, para. 134).

4. At the thirty-fourth session of the Commission, in2001, there was wide support for the recommendationsmade by the Working Group, which were found to con-stitute a sound basis for future work by the Commission.Views varied, however, as regards the relative priority tobe assigned to the different topics. One line of thought wasthat a project aimed at removing obstacles to electroniccommerce in existing instruments should have priority overthe other topics, in particular over the preparation of a newinternational instrument dealing with electronic contract-ing. It was said that references to “writing”, “signature”,“document” and other similar provisions in existing uni-form law conventions and trade agreements had alreadycreated legal obstacles and generated uncertainty in inter-national transactions conducted by electronic means.Efforts to remove those obstacles should not be delayed orneglected by attaching higher priority to issues of electroniccontracting.

5. The prevailing view, however, was in favour of theorder of priority that had been recommended by theWorking Group. It was pointed out, in that connection, thatthe preparation of an international instrument dealing withissues of electronic contracting and the consideration ofappropriate ways for removing obstacles to electronic com-merce in existing uniform law conventions and trade agree-ments were not mutually exclusive. The Commission wasreminded of the common understanding reached at itsthirty-third session that work to be carried out by theWorking Group could involve consideration of severaltopics in parallel as well as preliminary discussion of thecontents of possible uniform rules on certain aspects of theabove-mentioned topics.3

6. There were also differing views regarding the scope offuture work on electronic contracting, as well as the appro-priate moment to begin such work. Pursuant to one view,the work should be limited to contracts for the sale of tan-gible goods. The opposite view, which prevailed in thecourse of the Commission’s deliberations, was that theWorking Group on Electronic Commerce should be givena broad mandate to deal with issues of electronic con-tracting, without narrowing the scope of the work from theoutset. It was understood, however, that consumer trans-actions and contracts granting limited use of intellectualproperty rights would not be dealt with by the WorkingGroup. The Commission took note of the preliminaryworking assumption made by the Working Group that theform of the instrument to be prepared could be that of astand-alone convention dealing broadly with the issues ofcontract formation in electronic commerce (A/CN.9/484,para. 124), without creating any negative interference withthe well-established regime of the United Nations SalesConvention (A/CN.9/484, para. 95), and without interfer-ing unduly with the law of contract formation in general.Broad support was given to the idea expressed in the con-text of the thirty-eighth session of the Working Group that,to the extent possible, the treatment of Internet-based salestransactions should not differ from the treatment given tosales transactions conducted by more traditional means(A/CN.9/484, para. 102).

7. As regards the timing of the work to be undertaken bythe Working Group, there was support for commencingconsideration of future work without delay during the thirdquarter of 2001. However, strong views were expressedthat it would be preferable for the Working Group to waituntil the first quarter of 2002, so as to afford States suffi-cient time to hold internal consultations. The Commissionaccepted that suggestion and decided that the first meetingof the Working Group on issues of electronic contractingshould take place in the first quarter of 2002.4

8. At its thirty-ninth session, the Working Group consid-ered a note by the secretariat discussing selected issues onelectronic contracting, which contained in its annex I aninitial draft tentatively entitled “Preliminary draftConvention on [International] Contracts Concluded orEvidenced by Data Messages” (A/CN.9/WG.IV/WP.95).The Working Group further considered a note by the sec-retariat transmitting comments that had been formulated byan ad hoc expert group established by the InternationalChamber of Commerce to examine the issues raised in doc-ument A/CN.9/WG.IV/WP.95 and the draft provisions setout in its annex I (A/CN.9/WG.IV/WP.96).

9. The Working Group began its deliberations by con-sidering the form and scope of the preliminary draft con-vention (see A/CN.9/509, paras. 18-40). The WorkingGroup agreed to postpone discussion on exclusions fromthe draft convention until it had had an opportunity to con-sider the provisions related to location of the parties andcontract formation. In particular, the Working Groupdecided to proceed with its deliberations by first taking uparticles 7 and 14, both of which dealt with issues relatedto the location of the parties (A/CN.9/509, paras. 41-65).

3Ibid., Fifty-sixth Session, Supplement No. 17 (A/56/17), para. 293. 4Ibid., para. 295.

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After it had completed its initial review of those provi-sions, the Working Group proceeded to consider the pro-visions dealing with contract formation in articles 8-13(A/CN.9/509, paras. 66-121). The Working Group con-cluded its deliberations on the draft convention with a dis-cussion of draft article 15 (A/CN.9/509, paras. 122-125).The Working Group agreed that it should consider articles2-4, dealing with the sphere of application of the draft con-vention, and articles 5 (Definitions) and 6 (Interpretation),at its fortieth session. The Working Group requested thesecretariat to prepare a revised version of the preliminarydraft convention, based on those deliberations and deci-sions, for consideration by the Working Group at its for-tieth session.

10. At its fortieth session, the Working Group was alsoinformed of the progress that had been made by the secretariat in connection with the survey of possible legalobstacles to electronic commerce in existing trade-relatedinstruments. The Working Group was informed that the sec-retariat had begun the work by identifying and reviewingtrade-relevant instruments from among the large number ofmultilateral treaties that were deposited with the Secretary-General. The secretariat had identified 33 treaties as beingpotentially relevant for the survey and analysed possibleissues that might arise from the use of electronic means ofcommunications under those treaties. The preliminary con-clusions reached by the secretariat in relation to thosetreaties were set out in a note by the secretariat(A/CN.9/WG.IV/WP.94) that was submitted to the WorkingGroup at its thirty-ninth session, in March 2002.

11. The Working Group took note of the progress thathad been made by the secretariat in connection with thesurvey, but did not have sufficient time to consider the pre-liminary conclusions of the survey. The Working Grouprequested the secretariat to seek the views of member andobserver States on the survey and the preliminary conclu-sions indicated therein and to prepare a report compilingsuch comments for consideration by the Working Group ata later stage. The Working Group took note of a statementstressing the importance that the survey being conductedby the secretariat should reflect trade-related instrumentsemanating from the various geographical regions repre-sented on the Commission. For that purpose, the WorkingGroup requested the secretariat to seek the views of otherinternational organizations, including organizations of theUnited Nations system and other intergovernmental organ-izations, as to whether there were international trade instru-ments in respect of which those organizations or theirmember States acted as depositaries that those organiza-tions would wish to be included in the survey being con-ducted by the secretariat.

12. The Commission considered the Working Group’sreport at its thirty-fifth session, in 2002. The Commissionnoted with appreciation that the Working Group had startedits consideration of a possible international instrument deal-ing with selected issues on electronic contracting. TheCommission reaffirmed its belief that an internationalinstrument dealing with certain issues of electronic con-tracting might be a useful contribution to facilitate the useof modern means of communication in cross-border com-mercial transactions. The Commission commended the

Working Group for the progress made in that regard.However, the Commission also took note of the varyingviews that had been expressed within the Working Groupconcerning the form and scope of the instrument, its under-lying principles and some of its main features. TheCommission noted, in particular, the proposal that theWorking Group’s considerations should not be limited toelectronic contracts, but should apply to commercial con-tracts in general, irrespective of the means used in theirnegotiation. The Commission was of the view that memberand observer States participating in the Working Group’sdeliberations should have ample time for consultations onthose important issues. For that purpose, the Commissionconsidered that it might be preferable for the WorkingGroup to postpone its discussions on a possible interna-tional instrument dealing with selected issues on electroniccontracting until its forty-first session, to be held in NewYork from 5 to 9 May 2003.5

13. As regards the Working Group’s consideration ofpossible legal obstacles to electronic commerce that mightresult from trade-related international instruments, theCommission reiterated its support for the efforts of theWorking Group and the secretariat in that respect. TheCommission requested the Working Group to devote mostof its time at its fortieth session, in October 2002, to a sub-stantive discussion of various issues that had been raisedin the secretariat’s initial survey (A/CN.9/WG.IV/WP.94).6

14. At its fortieth session, held in Vienna from 14 to 18October 2002, the Working Group reviewed the survey ofpossible legal barriers to electronic commerce contained indocument A/CN.9/WG.IV/WP.94. The Working Groupgenerally agreed with the analysis and endorsed the rec-ommendations that had been made by the secretariat (seeA/CN.9/527, paras. 24-71). The Working Group agreed torecommend that the secretariat take up the suggestions forexpanding the scope of the survey so as to review possi-ble obstacles to electronic commerce in additional instru-ments that had been proposed for inclusion in the surveyby other organizations and explore with those organizationsthe modalities for carrying out the necessary studies, takinginto account the possible constraints put on the secretariatby its current workload. The Working Group invitedmember States to assist the secretariat in that task by iden-tifying appropriate experts or sources of information inrespect of the various specific fields of expertise coveredby the relevant international instruments.

15. The Working Group used the remaining time at itsfortieth session to resume its deliberations on the prelimi-nary draft convention, which it began by a general dis-cussion on the scope of the preliminary draft convention(see A/CN.9/527, paras. 72-81). The Working Group pro-ceeded to consider articles 2-4, dealing with the sphere ofapplication of the draft convention and articles 5(Definitions) and 6 (Interpretation) (A/CN.9/527, paras. 82-126). The Working Group requested the secretariat to pre-pare a revised text of the preliminary draft convention forconsideration at its forty-first session.

5Ibid., Fifty-seventh Session, Supplement No. 17 (A/57/17), para. 206.6Ibid., para. 207.

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616 Yearbook of the United Nations Commission on International Trade Law, 2003, vol. XXXIV

II. ORGANIZATION OF THE SESSION

16. The Working Group on Electronic Commerce, whichwas composed of all States members of the Commission,held its forty-first session in New York, from 5 to 9 May2003. The session was attended by representatives of the fol-lowing States members of the Working Group: Austria,Brazil, Burkina Faso, Canada, China, Colombia, Fiji, France,Germany, Honduras, India, Italy, Iran (Islamic Republic of),Japan, Kenya, Lithuania, Mexico, Morocco, Paraguay,Russian Federation, Sierra Leone, Singapore, Spain, Sudan,Sweden, Thailand and the United States of America.

17. The session was attended by observers from the fol-lowing States: Belarus, Belgium, Denmark, DominicanRepublic, Finland, Gabon, Holy See, Ireland, Kuwait,Madagascar, Marshall Islands, Panama, Peru, Philippines,Poland, Qatar, Republic of Korea, Saudi Arabia, Sri Lanka,Switzerland, Syrian Arab Republic, Timor-Leste andTurkey.

18. The session was also attended by observers from thefollowing international organizations:

(a) Organizations of the United Nations system:United Nations Development Programme and WorldIntellectual Property Organization;

(b) Intergovernmental organizations: Asian ClearingUnion, European Commission and World Bank;

(c) Non-governmental organizations invited by theCommission: Association of the Bar of the City of NewYork—Committee on Foreign and Comparative Law,Centre for International Legal Studies, Inter-American BarAssociation, International Association of Ports andHarbors, International Chamber of Commerce andInternational Law Institute.

19. The Working Group elected the following officers:

Chairman: Jeffrey Chan Wah Teck (Singapore)

Rapporteur: Ligia Claudia González Lozano (Mexico)

20. The Working Group had before it the following doc-uments:

(a) Provisional agenda (A/CN.9/WG.IV/WP.99);

(b) Note by the secretariat containing a revised ver-sion of the preliminary draft convention, which reflects thedeliberations and decisions of the Working Group at itsthirty-ninth and fortieth sessions (A/CN.9/WG.IV/WP.100);

(c) Note by the secretariat transmitting commentsthereon by a task force established by the InternationalChamber of Commerce (A/CN.9/WG.IV/WP.101);

(d) Note by the secretariat transmitting further com-ments on the survey referred to in paragraph 10 that hadbeen received from member and observer States and inter-governmental and international non-governmental organi-zations since the Working Group’s fortieth session(A/CN.9/WG.IV/WP.98 and Add.5 and 6).

21. The following background documents were alsomade available to the Working Group:

(a) Reports of the Working Group’s thirty-eighth,thirty-ninth and fortieth sessions (A/CN.9/484, A/CN.9/509and A/CN.9/527, respectively);

(b) Notes by the secretariat on legal barriers to thedevelopment of electronic commerce (A/CN.9/WG.IV/WP.89) and on electronic contracting (A/CN.9/WG.IV/WP.91), which are referred to in paragraph 2;

(c) Legal aspects of electronic commerce: proposal byFrance (A/CN.9/WG.IV/WP.93);

(d) Note by the secretariat containing the initial ver-sion of the preliminary draft convention (A/CN.9/WG.IV/WP.95) and the comments that had been made thereon byan ad hoc expert group established by the InternationalChamber of Commerce (A/CN.9/WG.IV/WP.96);

(e) Note by the secretariat referred to in paragraph 10(A/CN.9/WG.IV/WP.94) and a note by the secretariattransmitting comments on the survey received frommember and observer States and intergovernmental andinternational non-governmental organizations (A/CN.9/WG.IV/WP.98 and Add.1-4) prior to the fortieth session.

22. The Working Group adopted the following agenda:

1. Election of officers.

2. Adoption of the agenda.

3. Electronic contracting: provisions for a draftconvention.

4. Legal barriers to the development of electroniccommerce in international instruments relatingto international trade.

5. Other business.

6. Adoption of the report.

III. SUMMARY OF DELIBERATIONS AND DECISIONS

23. The Working Group resumed its deliberations on thepreliminary draft convention by holding a general discus-sion on the purpose and nature of the preliminary draft con-vention (see paras. 28-31).

24. The Working Group reviewed articles 1-11 of therevised preliminary draft convention contained in annex Ito the note by the secretariat (A/CN.9/WG.IV/WP.100).The decisions and deliberations of the Working Group withrespect to the draft convention are reflected in section IVbelow (see paras. 26-151). The secretariat was requestedto prepare a revised version of the preliminary draft con-vention, based on those deliberations and decisions for con-sideration by the Working Group at its forty-secondsession, tentatively scheduled to take place in Vienna from17 to 21 November 2003.

25. In accordance with a decision taken at its fortieth ses-sion (A/CN.9/527, para. 93), the Working Group also helda preliminary discussion on the question of excluding intel-

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Part Two. Studies and reports on specific subjects 617

lectual property rights from the draft convention (see paras.55-60). The Working Group also exchanged views on therelationship between the draft convention and the WorkingGroup’s efforts to remove possible legal obstacles to elec-tronic commerce in existing international instruments relat-ing to international trade within the context of itspreliminary review of draft article X, which the WorkingGroup agreed to retain in substance for further considera-tion.

IV. ELECTRONIC CONTRACTING: PROVISIONS FOR A DRAFT CONVENTION

General comments

26. The Working Group noted that, at its thirty-ninth ses-sion, held in New York from 11 to 15 March 2002, it hadbegun its deliberation on the preliminary draft conventionby holding a general exchange of views on the form andscope of the instrument (see A/CN.9/509, paras. 18-40). Atthat time, the Working Group had agreed to postpone dis-cussion of exclusions from the draft convention until it hadhad an opportunity to consider the provisions related tolocation of the parties and contract formation. In particu-lar, the Working Group had then proceeded with its delib-erations by firstly taking up articles 7 and 14, both of whichdealt with issues related to the location of the parties(A/CN.9/509, paras. 41-65). After it had completed its ini-tial review of those provisions, the Working Group pro-ceeded to consider the provisions dealing with contractformation in articles 8-13 (A/CN.9/509, paras. 66-121).The Working Group concluded its deliberations on the draftconvention at that session with a discussion on draft arti-cle 15 (A/CN.9/509, paras. 122-125).

27. The Working Group resumed its deliberations on thedraft convention at its fortieth session, held in Vienna from14 to 18 October 2002, and again considered general issuesrelating to the scope of the draft instrument (seeA/CN.9/527, paras. 72-81). The Working Group then pro-ceeded to consider articles 2-4, dealing with the scope ofapplication of the draft convention (A/CN.9/509, paras. 82-104); article 5, containing definitions of terms used in thedraft convention (A/CN.9/509, paras. 111-122); and article6, which set forth rules of interpretation (A/CN.9/509,paras. 123-126). The Working Group concluded its delib-erations with a request to the secretariat to prepare a revisedversion of the preliminary draft convention, based on thosedeliberations and decisions for consideration by theWorking Group at its forty-first session.

Purpose and nature of the instrument

28. At the current session, the Working Group decidedto resume its deliberations on the preliminary draft con-vention by holding a general discussion on the scope ofthe Convention.

29. The Working Group noted that a task force that hadbeen established by the International Chamber ofCommerce had submitted substantive comments on thescope and purpose of the draft convention (A/CN.9/WG.IV/WP.101). It was pointed out that, subsequent to

the fortieth session of the Working Group, consultationswith business entities from various sectors and of varioussizes had been conducted concerning their experience withelectronic contracting and the problems that arose in prac-tice in electronic contracting so as to consider ways inwhich an international instrument could create more cer-tainty. The aim of those consultations had been to assessthe needs of global business in relation to electronic con-tracting.

30. It was stated that the main conclusions from thoseconsultations had been that electronic contracting was notfundamentally different from paper contracting and thatmost issues arising in electronic contracting could be dealtwith by the legal regime applying to paper contracts. It hadalso been found that the problems arising in the context ofelectronic contracting were due in large part to the absenceof experience in electronic contracting and an absence ofknowledge on how best to solve those problems. On thatbasis, it was felt that an international instrument might notbe the best way to resolve those problems, but rather thatlegal certainty in electronic contracting could be providedby giving users a combination of voluntary rules, modelclauses and guidelines, which could be developed in coop-eration between UNCITRAL and international non-govern-mental organizations representing the private sector. Theadvantage of that approach would be its flexibility in thatbusiness could take up components of the standards ormodel clauses that could be amended easily if necessary.

31. The Working Group generally welcomed the workbeing undertaken by the private sector representatives, suchas the International Chamber of Commerce, which wasconsidered to complement usefully the work being under-taken in the Working Group to develop an internationalconvention. The Working Group was of the view that thetwo lines of work were not mutually exclusive, in partic-ular as the draft convention dealt with requirements thatwere typically found in legislation and that, being statutoryin nature, those obstacles could not be overcome by con-tractual provisions or non-binding standards.

Article 1. Scope of application

32. The text of the draft article was as follows:

“1. This Convention applies to [any kind of informa-tion in the form of data messages that is used] [the useof data messages] in the context of [transactions] [con-tracts] between parties whose places of business are dif-ferent States:

“(a) When the States are Contracting States;

“[(b) When the rules of private international law leadto the application of the law of a Contracting State]; or

“(c) When the parties have agreed that it applies.

“2. The fact that the parties have their places of busi-ness in different States is to be disregarded wheneverthis fact does not appear either from the [transaction][contract] or from any dealings between the parties orfrom information disclosed by the parties at any timebefore or at the conclusion of the [transaction] [con-tract].

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“3. Neither the nationality of the parties nor the civilor commercial character of the parties or of the contractis to be taken into consideration in determining theapplication of this Convention.”

General comments

33. The Working Group noted that the draft articlereflected essentially the scope of application of the UnitedNations Sales Convention, as set out in its article 1. TheWorking Group also noted that the draft article reflectedits earlier decision, at its thirty-ninth session, that the draftconvention should be limited to international transactionsso as not to interfere with domestic law (A/CN.9/509, para.31).

34. In that connection, the Working Group heard reser-vations as to the manner in which the scope of applicationof the draft article had been formulated. It was pointed outthat, to the extent that the purpose of the draft instrumentmight be to remove possible obstacles to electronic com-merce that might arise under existing international instru-ments, such as those referred to in draft article Y, its fieldof application should be aligned with the field of applica-tion of those instruments.

35. In response to those observations, it was pointed outthat the purpose of the draft convention was broader thanmerely adapting the rules of existing instruments to elec-tronic commerce, as the draft convention might extend tocontracts not yet covered by any international conventionin force. As such, the draft convention might have anautonomous field of application. The Working Group there-fore agreed that the manner in which the field of applica-tion of the draft convention was defined in the draft articlecould be retained, but that the Working Group should con-sider possible difficulties in the relationship between thedraft article and draft article Y at an appropriate stage.

Paragraph 1

36. Several questions were raised concerning the mean-ing of the expression “transactions” in the draft paragraphand elsewhere in the draft convention and its appropriate-ness to describe the substantive field of application of thedraft convention.

37. The Working Group was reminded that, at its forti-eth session, it had been agreed that it might be useful toconsider extending the scope of the preliminary draft con-vention to issues beyond contract formation, so as toinclude also the use of electronic messages in connectionwith the performance or termination of contracts.Moreover, the Working Group had then been invited toconsider dealing not only with electronic contracts or con-tract-related communications, but also with other transac-tions conducted electronically, subject to specificexclusions that the Working Group might deem appropri-ate (A/CN.9/527, para. 77).

38. While there was general agreement within theWorking Group on extending the scope of application ofthe preliminary draft convention beyond the use of datamessages for contract formation, several objections were

raised to the use of the word “transactions”. It was pointedout that the term was not used in several legal systems andthat it might have an excessively broad meaning for thepurposes of the draft convention. It was felt that the pro-posed definition of “transactions” in draft article 5, sub-paragraph l, was not sufficiently precise to avoid thosedifficulties, in particular as it referred to “governmentalaffairs”, which were said to fall clearly outside the intendedscope of the draft convention.

39. In view of those comments, the Working Grouppaused to consider alternative solutions for describing thefield of application of the draft convention. One possiblealternative to the current wording, which gathered somesupport, was to make reference to the use of data messages“in the context of legal acts or contracts between partieshaving their places of business in different States”.However, that suggestion was objected to on the groundsthat the notion of “legal acts” was unclear in some legalsystems and that it seemed to imply extending the scopeof application of the draft convention to the use of datamessages in situations that were not contractual in nature,a proposition on which there was no consensus within theWorking Group at that time (see also A/CN.9/527, para.78). Another proposal was to link the definition of thescope of application to the types of use of data messagesmentioned in draft article 10. However, that proposal, too,gave rise to objections, as it might result in a circular def-inition of the field of application of the draft convention.

40. It was then pointed out to the Working Group thatthe actual subject matter covered by the draft conventioncould be inferred from its operative provisions, rather thanfrom draft article 1, which was meant only to provide ageneral indication of the substantive field of application ofthe draft convention. It was said, in that connection, thatthe words “in the context of contracts”, as used in the draftarticle, were sufficiently broad as to encompass most if notall of the situations referred to in draft article 10. TheWorking Group was then invited to retain the phrase cur-rently used in paragraph 1 of the draft article, without theword “transactions”, and to revisit the definition of the sub-stantive scope of application once it had had an opportu-nity to consider the operative provisions of the draftconvention, in particular draft article 10, with a view ofascertaining whether there were any additional situationsthat needed to be covered by the draft convention that werenot covered by the phrase “in the context of contracts” inthe draft article. The Working Group concurred with thatsuggestion.

41. The Working Group proceeded to consider which ofthe first two sets of language within square brackets (i.e.“[any kind of information in the form of data messagesthat is used]” or “[the use of data messages]”) should beused to describe the scope of application of the draft con-vention. In favour of the first option, it was said that thereference to “information” was in line with the objectiveof media neutrality and would cover situations where theparties used different media. That was said to be of greatpractical importance, since many contracts were concludedby a mixture of oral conversations, telefaxes, paper con-tracts, electronic mail (e-mail) and web communication(see A/CN.9/509, para. 34). In favour of the second option,

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Part Two. Studies and reports on specific subjects 619

it was pointed out that it was more concise and avoidedrepeating the word “information”, which was already con-tained in the definition of “data message” in draft article5, subparagraph (a). As it was suggested that the choicebetween the two options was more a matter of style thanof substance, the Working Group decided to retain bothoptions for the time being and to revert to the matter at alater stage.

42. With regard to subparagraph (b), which currentlyappeared within square brackets, the Working Group notedthat the rule contained therein was derived from the pro-visions on the sphere of application of the United NationsSales Convention and other UNCITRAL instruments.Although it had been suggested that the phrase should bedeleted, the Working Group, at its thirty-ninth session, haddecided to retain it for further consideration (A/CN.9/509,para. 38). At the current session, the Working Group agreedto remove the square brackets around the provision and toconsider, at a later stage, a proposal for adding a provisionallowing a Contracting State to exclude the application ofthe subparagraph, as had been done by article 95 of theUnited Nations Sales Convention.

43. As regards draft subparagraph (c), the WorkingGroup noted that the possibility for the parties to subjecta contract to the regime of the draft convention in theabsence of other connecting factors was provided, forinstance, in article 1, paragraph 2, of the United NationsConvention on Independent Guarantees and Stand-byLetters of Credit (General Assembly resolution 50/48,annex).

44. The Working Group decided to postpone its deliber-ations on that particular matter until it had considered theoperative provisions of the draft convention.

Paragraph 2

45. It was pointed out that the draft paragraph followeda similar rule contained in article 1, paragraph 2, of theUnited Nations Sales Convention, which applied to inter-national contracts if both parties were located inContracting States of the Convention, but not when sucha situation was not apparent either from the contract orfrom the dealings between the parties. In those cases, theUnited Nations Sales Convention gave way to the appli-cation of domestic law. The incorporation of a similar rulein the draft convention was to be welcomed, it was said,so as not to frustrate the legitimate expectations of partiesthat assumed they were operating under their domesticregime given the absence of a clear indication to the con-trary.

46. Nevertheless, questions were raised regarding theappropriateness of the draft paragraph in the context of thedraft convention, in particular in the light of draft article15, which contemplated an obligation for the parties to dis-close their places of business. If such an obligation wasretained, the parties should normally have available to themsufficient elements to allow them to ascertain whether ornot a contract was international for the purposes of the draftconvention. The draft paragraph, it was said, would onlybecome relevant in the event of failure by a party to comply

with draft article 15. The question was asked whether thenon-applicability of the convention would be the mostappropriate sanction for failure to comply with article 15.

47. In response, it was pointed out that paragraph 2 wasnot meant to provide sanctions for failure to comply withdraft article 15. Furthermore, given that the Working Grouphad yet to decide whether or not draft article 15, whichcurrently appeared within square brackets, should beretained, it was suggested that it would be premature tochange the formulation of paragraph 2 of draft article 1.The Working Group agreed with that suggestion anddecided that it might return to draft paragraph 2 after ithad made a final decision on draft article 15.

Paragraph 3

48. The draft paragraph did not give rise to commentsand was retained by the Working Group with its currentformulation.

Article 2. Exclusions

49. The text of the draft article was as follows:

Variant A

“This Convention does not apply to [transactions relat-ing to] the following contracts:

“(a) Contracts concluded for personal, family orhousehold purposes unless the party offering the goodsor services, at any time before or at the conclusion ofthe contract, neither knew nor ought to have known thatthey were intended for any such use;

“(b) [Contracts granting] limited use of intellectualproperty rights;

“(c) [Other exclusions, such as real estate transac-tions, that could be added by the Working Group.][Other matters identified by a Contracting State undera declaration made in accordance with article X].”

Variant B

“1. This Convention does not apply to [transactionsrelating to] the following [contracts]:

“(a) [Contracts for] [the grant of] limited use ofintellectual property rights;

“(b) [Other exclusions, such as real estate transac-tions, that could be added by the Working Group.][Other matters identified by a Contracting State undera declaration made in accordance with article X].

“2. This Convention does not override any rule of lawintended for the protection of consumers.”

General comments

50. The Working Group noted that the essential differ-ence between variants A and B lay in the manner in whicheach of them excluded consumer protection matters fromthe scope of application of the draft instrument. While vari-ant A contained an exclusion modelled on article 2, sub-

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paragraph (a), of the United Nations Sales Convention,variant B refrained from offering a definition of consumertransactions, leaving consumer protection rules unaffectedby the draft convention.

Consumer transactions

51. It was recalled that the Working Group had agreedthat the draft convention should not be concerned with con-sumer contracts on the grounds that many States alreadyhad strong domestic legislation relating to consumer con-tracts (A/CN.9/527, paras. 83-85) and that UNCITRAL didnot have the mandate to deal with consumer issues.

52. Some support was expressed for variant A with thesuggested modification that all of the words following thephrase “household purposes” should be deleted to preventan uncertain provision based on what was or ought to havebeen known by the party offering the goods or service.Some support was expressed for that approach, providedthat, to ensure the preservation of consumer rights, thewords used in variant B, paragraph 3, namely, “ThisConvention does not override any rule of law intended forthe protection of consumers” were also retained in the text.

53. Some delegations however took the view that itwould be premature to make a final decision on how toexclude consumer transactions at the present stage of thediscussion. In support of the approach to leave the ques-tion of application to consumer transactions open, it wassaid that the draft convention appeared to be a technicalone that was meant to facilitate the application of provi-sions that were derived from other international instrumentsand in domestic law. It was also said that consumersneeded legal certainty in the area of electronic businesstransactions as much as business needed such certainty.Following that approach, it was suggested that preferenceought to be given to variant B on the basis that it appearedto ensure that consumers would gain the benefit of cer-tainty offered by the future convention without it being atthe expense of consumer protection legislation.

54. The Working Group took note of the varying viewsthat were expressed, in particular the reiterated objectionsto leaving any doubts about the exclusion of consumertransactions from the scope of the draft convention. TheWorking Group decided that the matter required furtherconsideration once it had considered the provisions in chap-ter III of the draft convention.

Licensing contracts

55. It was noted that both variants excluded contractsrelating to the limited use of intellectual property rights.That exclusion reflected the initial understanding of theWorking Group that licensing contracts should be distin-guished from other commercial transactions and mightneed to be excluded from the draft convention(A/CN.9/527, paras. 90-93).

56. Pursuant to one view, the exclusion contained in thatparagraph should be retained with a view to preventingpotential conflict with existing intellectual propertyregimes. A note of caution was expressed that the future

convention ought not to conflict with existing internationalinstruments on the protection of intellectual property rights.

57. The countervailing view, which gathered strong sup-port, was that inasmuch as the draft convention did notdeal with substantive aspects of intellectual property rights,it was not necessary to exclude licensing contracts. It wasalso said that, since the draft convention was concernedwith the use of data messages in contract formation andnot with the way in which a contract was to be executedor performed, the exclusion of contracts relating to intel-lectual property rights might deprive those contracts of thebenefit of legal certainty that the draft convention aimedto provide. It was also stated that, in its current broad for-mulation, the exclusion might be understood to encompasscontracts that were not concerned primarily with licensingof intellectual property rights, but that neverthelessincluded such a licence as a part of a broader series ofrights. That was said to be the case in respect of varioustypes of contract routinely used in certain industries, suchas in the telecommunication industry, which might other-wise wish to have their contracts benefit from the provi-sions of the draft convention.

58. Having considered the varying views on the matter,it was agreed that the secretariat should be requested toseek the specific advice of relevant international organiza-tions, such as the World Intellectual Property Organizationand the World Trade Organization, as to whether, in theview of those organizations, including contracts thatinvolved the licensing of intellectual property rights in thescope of the draft convention so as to expressly recognizethe use of data messages in the context of those contractsmight negatively interfere with established rules on the pro-tection of intellectual property rights.

59. In the light of those discussions, the Working Groupagreed to retain both subparagraph (b) of variant A andsubparagraph (a) of variant B of draft article 2 in squarebrackets, pending further consultations with relevantbodies. It was agreed that whether or not such exclusionwas necessary would ultimately depend on the substantivescope of the convention.

60. The Working Group noted that, to the extent that itswork on the draft convention might constitute a basis forremoval of possible obstacles to electronic commerce inexisting international conventions, such as the UnitedNations Sales Convention, consideration might be given toaddressing an issue that had been the cause of some con-troversy in the application of the United Nations SalesConvention, namely, whether that Convention also appliedto transactions involving so-called “virtual goods” or “dig-italized goods”. The Working Group was reminded of thedifferent interpretations that had been given to the term“goods” under the United Nations Sales Convention in var-ious jurisdictions and to the conflicting conclusions thathad been reached on that issue. The Working Group fur-ther noted that work was being undertaken by the WorldTrade Organization as to whether electronic commercetransactions should be classified as transactions involvingtrade in goods or trade in services. The outcome of thatwork by the World Trade Organization could potentiallyhave an impact on the question before the Working Group.

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In order not to pre-empt any agreement that States mightarrive at in another forum and in view of the fact that therewere no concrete proposals at the moment to amend orclarify the notion of “goods” under the United NationsSales Convention, it was agreed that the Working Groupwould give no further consideration to the matter.

Additional exclusions

61. The Working Group noted that the draft article mightcontain additional exclusions, as might be decided by theWorking Group. With a view to facilitating the consider-ation of that issue by the Working Group, annex II of theinitial draft (A/CN.9/WG.IV/WP.95) reproduced, for illus-trative purposes and with no intention of being exhaustive,exclusions typically found in domestic laws on electroniccommerce that had been proposed at the Working Group’sfortieth session (A/CN.9/527, para. 95). The second phrasein square brackets in the subparagraph was an alternativeformulation that would obviate the need for a common listof exclusions (A/CN.9/527, para. 96).

62. It was proposed that other exclusions that should beincluded in the text of subparagraph (c) should be thoselisted in footnote 7 of A/CN.9/WG.IV/WP.100 relating tofinancial transactions, namely, contracts involving “pay-ment systems, negotiable instruments, derivatives, swaps,repurchase agreements (repos), foreign exchange, securitiesand bond markets”. It was said that such transactions werealready subject to well-defined regulatory and non-regula-tory rules and thus should be excluded from the reach ofthe draft convention. However, concern was expressed thatthe exclusion of financial transactions from the draft con-vention would be retrograde to the facilitation and promo-tion of the use of electronic commerce. It was suggestedthat financial transactions was an important area in whichto develop electronic means of communication.

63. It was also suggested that real estate transactions, aswell as contracts involving courts or public authorities,family law and the law of succession should also beexcluded from the scope of the draft convention.

64. The Working Group took note of those suggestionsand agreed that it should revert to the draft article, possi-bly at a future session, once it had had an opportunity toconsider the operative provisions of the draft convention.

Article 3. Matters not governed by this Convention

65. The text of the draft article was as follows:

“This Convention is not concerned with:

“(a) The validity of the [transaction] [contract] orof any of its provisions or of any usage [except as oth-erwise provided in articles […]];

“(b) The rights and obligations of the parties aris-ing out of the [transaction] [contract] or of any of itsprovisions or of any usage;

“(c) The effect which the [transaction] [contract]may have on the ownership of rights created or trans-ferred by the [transaction] [contract].”

66. The Working Group recalled that draft subparagraphs(a) and (c) were derived from article 3 of the UnitedNations Sales Convention. It was noted that those provi-sions had been included so as to make it clear that the con-vention was not concerned with substantive issues arisingout of the contract, which, for all other purposes, remainedsubject to its governing law (see A/CN.9/527, paras. 10-12). Draft subparagraph (c) was based, mutatis mutandis,on article 4, subparagraph (b), of the United Nations SalesConvention.

67. As a matter of drafting, it was suggested that thewords “this Convention is not concerned with” were inac-curate and that the draft article should instead use wordssuch as “This convention does not affect the rules ofnational law relating to”.

68. The Working Group was reminded that the goal of theconvention was to provide standards of functional equiva-lence and enhance legal certainty, in particular for coun-tries that did not have laws governing electronic means ofcommunication. However, there seemed to be some ten-sion between draft subparagraph (a), as currently formu-lated, and draft article 14, which was meant to providecriteria for fulfilling form requirement, even as they per-tained to the validity of contracts. One way to clarify therelationship between the two provisions might be to includethe words “With the exception of processes and proceduresas to data messages under this Convention, this Conventiondoes not affect”, or a similar phrase to that effect, as theopening words of draft article 3.

69. The Working Group took note of those suggestionsand decided to consider them when it resumed its consid-eration of the draft article, which it agreed to postponepending its deliberations on the operative provisions ofchapter III of the draft convention.

Article 4. Party autonomy

70. The text of the draft article was as follows:

“1. The parties may exclude the application of thisConvention or derogate from or vary the effect of anyof its provisions [except for the following: ...].

“[2. Nothing in this Convention requires a person touse or accept [information in electronic form] [data mes-sages], but a person’s consent to do so may be inferredfrom the person’s conduct.]”

71. It was pointed out that draft paragraph 1 was a stan-dard clause in that it appeared in other international instru-ments setting out the limits of the instrument and theprinciple of party autonomy. Paragraph 2 had been addedto draft article 4 to reflect the idea that parties should notbe forced to accept contractual offers or acts of acceptanceby electronic means if they did not want to do so(A/CN.9/527, para. 108).

72. The view was expressed that it was essential that theright of a party to derogate from the application of the con-vention should not be restricted. In that respect, it was sug-gested that the bracketed text, namely, the words “except

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for the following”, should be deleted from the text to makeit clear that a party’s right to exclude the application ofthe Convention or derogate or vary any of its provisionswas totally unrestricted.

73. A contrary view was that the square brackets in para-graph 1 of draft article 4 should be removed and that theWorking Group should consider which provisions of theconvention ought to be mandatory. It was said that, in itscurrent formulation, article 4 was too broadly drafted andmight permit parties to flout form requirements in conflictwith draft article 14. To the extent that draft article 14already contemplated minimum requirements for the recog-nition of functional equivalence, so as to satisfy mandatoryrequirements as to form prescribed by national law, draftarticle 4 should not allow the parties to lessen thoserequirements. It was pointed out that such an approachwould be consistent with texts previously adopted byUNCITRAL, in particular with the Model Law onElectronic Signatures (General Assembly resolution 56/80,annex), which provided, in its article 5, that derogation orvariation of its provisions by agreement might not be per-missible where any such variation or derogation “wouldnot be valid or effective under applicable law”.

74. In response, it was suggested that the limitations toparty autonomy under article 5 of the UNCITRAL ModelLaw on Electronic Signatures did not exclude the abilityof any person to establish the reliability of an electronicsignature by any means other than by those referred to inarticle 6, paragraph 3, of the Model Law, as clearly statedin paragraph 4 (a) of the same article. A similar elementof flexibility, it was said, was contemplated in variant Bof draft article 14. If the proposed changes to draft article4 were meant to preserve the applicability of mandatoryform requirements, it was suggested that a better way ofachieving that result might be by way of appropriate exclu-sions under draft article 2. Limiting party autonomy underdraft article 4 or providing an open-ended exclusion infavour of domestic form requirements under draft article 3were said to be undesirable options, which, if accepted,might defeat the very purpose of draft article 14.

75. Having considered the various views that wereexpressed, the Working Group agreed to defer finalizingdraft article 4 until other operative provisions of the con-vention, in particular its draft article 14, had been fullyconsidered.

Article 5. Definitions

76. The text of the draft article was as follows:

“For the purposes of this Convention:

“(a) ‘Data message’ means information generated,sent, received or stored by electronic, optical or similarmeans, including, but not limited to, electronic datainterchange (EDI), electronic mail, telegram, telex ortelecopy;

“(b) ‘Electronic data interchange (EDI)’ means theelectronic transfer from computer to computer of infor-mation using an agreed standard to structure the infor-mation;

“(c) ‘Originator’ of a data message means a personby whom, or on whose behalf, the data message pur-ports to have been sent or generated prior to storage, ifany, but it does not include a person acting as an inter-mediary with respect to that data message;

“(d) ‘Addressee’ of a data message means a personwho is intended by the originator to receive the datamessage, but does not include a person acting as anintermediary with respect to that data message;

“(e) ‘Information system’ means a system for gen-erating, sending, receiving, storing or otherwise pro-cessing data messages;

“(f) ‘Automated information system’ means a com-puter program or an electronic or other automatedmeans used to initiate an action or respond to data mes-sages or performances in whole or in part, withoutreview or intervention by a natural person each time anaction is initiated or a response is generated by thesystem;

“(g) ‘Offeror’ means a natural person or legal entitythat offers goods or services;

“(h) ‘Offeree’ means a natural person or legal entitythat receives or retrieves an offer of goods or services;

“[(i) ‘Electronic signature’ means data in electronicform in, affixed to, or logically associated with, a datamessage, which may be used to identify the person hold-ing the signature creation data in relation to the datamessage and indicate that person’s approval of the infor-mation contained in the data message;

“[(j) ‘Place of business’ means”

Variant A

“any place of operations where a person carries out anon-transitory activity with human means and goods orservices;]

Variant B

“the place where a party pursues an economic activitythrough a stable establishment for an indefinite period;]

“[(k) ‘Person’ and ‘party’ include natural personsand legal entities;]

“[(l) ‘Transaction’ means an action or set of actionsoccurring between two or more persons relating to theconduct of business, commercial or governmentalaffairs;]

“[(m) Other definitions that the Working Group maywish to add.]”

77. The Working Group noted that the definitions con-tained in draft paragraphs (a)-(d) and (f) were derived fromarticle 2 of the UNCITRAL Model Law on ElectronicCommerce. It was suggested that it would be appropriateto deal with any issues that arose under any of the pro-posed definitions within the context of the operative arti-cles in which the terms defined were used. The WorkingGroup agreed to that suggestion and consideration of thedefinitions was deferred accordingly.

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Article 6. Interpretation

78. The text of the draft article was as follows:

“1. In the interpretation of this Convention, regard isto be had to its international character and to the needto promote uniformity in its application and the obser-vance of good faith in international trade.

“2. Questions concerning matters governed by thisConvention which are not expressly settled in it are tobe settled in conformity with the general principles onwhich it is based or, in the absence of such principles,in conformity with the law applicable [by virtue of therules of private international law].”

79. The Working Group noted that the draft article mir-rored article 7 of the United Nations Sales Convention andsimilar provisions in other UNCITRAL instruments. TheWorking Group further noted that the closing phrase hadbeen placed in square brackets at the request of theWorking Group at its fortieth session. Similar formulationsin other instruments had been incorrectly understood asallowing immediate referral to the applicable law pursuantto the rules on conflict of laws of the forum State for theinterpretation of a convention without regard to the ruleson conflict of laws contained in the convention itself(A/CN.9/527, paras. 125 and 126).

80. The Working Group decided to retain the draft arti-cle, as currently formulated, for consideration at a laterstage, after it had considered the operative provisions con-tained in chapter III of the draft convention.

Article 7. Location of the parties

81. The text of the draft article was as follows:

“1. For the purposes of this Convention, a party ispresumed to have its place of business at the geo-graphical location indicated by it [in accordance witharticle 15] [, unless it is manifest and clear that”

Variant A

“the party does not have a place of business at suchlocation].”

Variant B

“the party does not have a place of business at suchlocation [[and] [or] that such indication is made solelyto trigger or avoid the application of this Convention]].”

“2. If a party has more than one place of business,the place of business for the purposes of this Conventionis that which has the closest relationship to the relevant[transaction] [contract] and its performance, havingregard to the circumstances known to or contemplatedby the parties at any time before or at the conclusionof the [transaction] [contract].

“3. If a natural person does not have a place of busi-ness, reference is to be made to the person’s habitualresidence.

“4. The place of location of the equipment and tech-nology supporting an information system used by a legalentity for the conclusion of a contract or the place fromwhich such information system may be accessed byother persons, in and of themselves, does not constitutea place of business [, unless such legal entity does nothave a place of business [within the meaning of article5, subparagraph (j)]].

“5. The sole fact that a person makes use of a domainname or electronic mail address connected to a specificcountry does not create a presumption that its place ofbusiness is located in such country.”

General comments

82. The Working Group noted that the draft article wasone of the central provisions in the convention and one thatmight be essential, if the scope of application of the con-vention was defined along the lines of draft article 1.

Paragraph 1

83. The Working Group noted that draft paragraph 1built upon a proposal that had been made at the thirty-eighth session of the Working Group to the effect that theparties in electronic transactions should have the duty todisclose their places of business (A/CN.9/484, para. 103).That duty was reflected in draft article 15, paragraph 1 (b),but the draft provision, it was noted, was not intended tocreate a new concept of “place of business” for the onlineworld.

84. There was general agreement in principle within theWorking Group as to the desirability of including a provi-sion that offered elements that allowed the parties to ascer-tain beforehand the location of their counterparts, thusfacilitating a determination, among other factors, of theinternational or domestic character of a contract and theplace of contract formation. However, in the course of theWorking Group’s extensive discussions on the draft para-graph, varying views were voiced concerning other possi-ble objectives that should be pursued by the draft articleand the best ways of expressing them.

85. It was suggested that the cross reference to draft arti-cle 15 should be deleted, as the latter provision wasaddressed primarily, even if not expressly so, at partiesoffering goods or services through an information systemthat was generally accessible to the public. It was alsopointed out, in support of that suggestion, that an indica-tion of a party’s place of business might be surmised fromother dealings between the parties, as implied by draft arti-cle 1, paragraph 2, and not only from a statement madepursuant to draft article 15. Although there were views infavour of retaining the cross reference to draft article 15,and in favour of stating in draft article 7 itself the indica-tions to be given by a party using data messages as to itslocation, the prevailing view within the Working Groupwas in support of deletion of the cross reference to draftarticle 15.

86. The Working Group proceeded to consider the con-ditions under which the presumption established by the

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draft paragraph might be rebutted. The Working Groupnoted that the words “manifest and clear” were meant toraise the standard of proof required to rebut the presump-tion established by the draft paragraph 1, which was gen-erally felt to be desirable. However, the prevailing viewwithin the Working Group was that it might be preferableto delete those words, as they required a subjective judge-ment that would not contribute to the uniform applicationof the future convention.

87. The Working Group proceeded then to consider thechoice between the two variants proposed in the draft para-graph. One view, which received strong support, was that,for the purpose of enhancing legal certainty in the inter-pretation of the draft paragraph, variant A was preferableto variant B. In particular the last phrase within squarebrackets in variant B (“and such indication is made solelyto trigger or avoid the application of this Convention”) wassaid to be of questionable usefulness, as the parties werein any event free, under draft article 1, paragraph 3, toagree to the application of the draft convention or, underdraft article 4, to exclude its application. Moreover, byrequiring proof of a party’s intention, variant B introducedan element of subjectivity, which was said to be of diffi-cult practical application. It was also said that the clausein question did not easily fit with the scope of the draftconvention, since the legal consequences of intentionalmisrepresentations made by the parties were a matter ofcriminal or tort law, which should best be left for the appli-cable law outside the draft convention.

88. The countervailing view, which was also widelyshared, was that, despite the apparent subjectivity impliedby its language, variant B was more conducive to ensur-ing legal certainty than variant A, in view of the high stan-dard required to rebut the presumption of the chapeau ofparagraph 1. Variant A, it was said, rendered the rebuttalof the presumption a simple factual question, whereas vari-ant B only allowed the rebuttal of the presumption whena false or inaccurate indication of place of business hadbeen made by a party for the purpose of triggering oravoiding the application of the convention. Therefore, vari-ant B was said to be more favourable to a consistent appli-cation of the convention to contracts that appeared to meetthe territoriality criteria set forth in draft article 1.

89. In the course of its search for a consensus on thematter, the Working Group considered various alternativeproposals for the formulation of the draft paragraph. Onesuch proposal was to replace the draft paragraph with aprovision to the effect that a party that indicated it waslocated in a contracting State should be deemed to belocated in that contracting State. That proposal was said tobe preferable to the current formulation, as it stated moreclearly the purpose of the draft article, which was to sup-port the application of draft article 1, and attributed legalconsequences to a party’s representations, without theuncertainties that might be raised by a system of pre-sumptions. Another alternative proposal was to reformulatethe draft paragraph to emphasize the conditions underwhich a party might rely upon an indication of a place ofbusiness made by the other party. For that purpose, it wassuggested that the draft paragraph should provide that aparty was presumed to be located at the place indicated by

it unless the other party knew or ought to have known thatsuch indication was false or inaccurate.

90. The difficulty of reaching a consensus on the draftparagraph, it was said, resulted from the fact that draft para-graph 1, and possibly draft paragraphs 2 and 3, did notcontain rules specific to the use of electronic means ofcommunications. In the interest of advancing the delibera-tions of the Working Group, while focusing on issues spe-cific to electronic contracting, it was proposed that onlyparagraphs 4 and 5 of the draft article 7 should be retained,possibly combined with the definition of “place of busi-ness” in draft article 5, subparagraph (j). The prevailingview within the Working Group, however, was that, if ade-quately crafted, the principles underlying paragraphs 1-3 ofdraft article 7 provided useful solutions to address the con-siderable legal uncertainty that was caused at present bythe difficulty of determining where a party to an onlinetransaction was located. While that danger had alwaysexisted, the global reach of electronic commerce had madeit more difficult than ever to determine location. Helpingto avoid a problem made more conspicuous by electroniccommerce was said to be a valuable objective of the draftarticle.

91. Having considered the various comments that hadbeen made, the Working Group generally felt that it shouldconsider further the provisions dealing with the location ofthe parties. The secretariat was requested to prepare arevised version of the draft paragraph that presented alter-native options that reflected the various proposals that hadbeen made.

Paragraphs 2 and 3

92. The Working Group noted that draft paragraphs 2and 3 reflected traditional rules applied to determine aparty’s place of business that were used, for instance, inarticle 10 of the United Nations Sales Convention. TheWorking Group decided to retain those draft paragraphsfor consideration at a later stage.

Paragraphs 4 and 5

93. The Working Group noted that the draft paragraphsproposed rules specifically concerned with issues raised bythe use of electronic means of communication in contractformation. Draft paragraph 4 was intended to reflect anopinion shared by many delegations participating at thethirty-eighth session of the Working Group that, when deal-ing with the location of the parties, the Working Groupshould take care to avoid devising rules that would resultin any given party being considered as having its place ofbusiness in one country when contracting electronically andin another country when contracting by more traditionalmeans (A/CN.9/484, para. 103). Draft paragraph 5 reflectedthe fact that the current system for assignment of domainnames was not originally conceived in geographical termsand that, therefore, the apparent connection between adomain name and a country was often insufficient to con-clude that there was a genuine and permanent link betweenthe domain name user and the country (A/CN.9/509, paras.44-46). The Working Group decided to retain those draftparagraphs for consideration at a later stage.

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Article 8. Use of data messages in contract formation

94. The text of the draft article was as follows:

“1. Unless otherwise agreed by the parties, an offerand the acceptance of an offer may be expressed bymeans of data messages [or other actions communicatedelectronically in a manner that is intended to express theoffer or acceptance of the offer].

“2. When expressed in the form of a data message,an offer and the acceptance of an offer become effec-tive when they are received by [the addressee] [theofferee or the offeror, as appropriate].

“3. Where data messages are used in the formation ofa contract, that contract shall not be denied validity orenforceability on the sole ground that data messageswere used for that purpose.”

95. The Working Group noted that the draft article hadbeen extensively reformulated since the thirty-ninth sessionof the Working Group so as to reflect the wish prevailingwithin the Working Group to limit any substantive provi-sions to those which were strictly required to facilitate theuse of data messages in the formation of international con-tracts (A/CN.9/509, paras. 67-73).

Paragraph 1

96. The Working Group accepted a proposal to delete thephrase “Unless otherwise agreed by the parties” at theopening of the draft paragraph, as there was no need torepeat the principle of party autonomy, which had alreadybeen stated in draft article 4.

97. Differing views were expressed, however, concern-ing the need for and usefulness of the bracketed words “orother actions communicated electronically in a manner thatis intended to express the offer or acceptance of the offer”.Pursuant to one view, those words were useful to clarifythat offer or acceptance could be effected by conduct otherthan the sending of a data message containing a writtentext of offer or acceptance, such as by touching or click-ing on a designated icon or place on a computer screen.Such a clarification, which was contained in legislation onelectronic commerce in some jurisdictions, was importantin the draft text, as it gave express recognition to a grow-ing practice in electronic commerce.

98. The countervailing view, which eventually prevailedonce the Working Group had considered the use of a sim-ilar phrase in draft article 10, paragraph 1 (see para. 126),was that the words in question might add uncertainty, ratherthan enhance clarity in the application of the convention.An earlier version of the text, which had made an illus-trative reference to indication of assent by “touching orclicking on a designated icon or place on a computerscreen” had been rejected by the Working Group at itsthirty-ninth session, as not being consistent with the prin-ciple of technological neutrality and because it carried therisk of being incomplete or becoming dated, as other meansof indicating assent not expressly mentioned therein mightalready be in use or might possibly become widely used

in the future (A/CN.9/509, para. 89). As currently drafted,however, the phrase was vague and did not provide suffi-cient indication of the types of action being contemplated,and for that reason it might be preferable to delete thephrase altogether.

99. In support of the deletion of the words in squarebrackets, it was further stated that domestic legislation thathad included additional illustrations of conduct indicatingacceptance in a context similar to the draft article had doneso for specific reasons, namely, that they used concepts suchas “electronic document” or “electronic record”, and theremight be doubts as to whether they encompassed actionsother than the sending of messages in electronic form con-taining a written text of offer or acceptance. However, thecontext of the draft convention was different in that any ofthe actions purported to be covered by the words in ques-tion would in fact generate a data message in the meaninggiven to that expression in draft article 5, subparagraph (a).Any additional illustration that the Working Group mightdeem necessary could be provided in an explanatory textaccompanying the draft convention. Another possibilitymight be to include appropriate clarification in the defini-tion of “data message”, a proposal, however, that wasreceived with reservations, in view of the undesirability ofaltering an accepted definition that had been already usedin two model laws and in domestic legislation.

100. Having considered those views, the Working Groupdecided to delete the words in square brackets in the draftparagraph and elsewhere in the draft convention.

Paragraph 2

101. The Working Group noted that rules in the draft para-graph reflected the essence of the rules on contract for-mation contained, respectively, in articles 15, paragraph 1,and 18, paragraph 2, of the United Nations SalesConvention. The verb “reach”, which was used in theUnited Nations Sales Convention, had been replaced withthe verb “receive” in the draft article so as to align it withdraft article 11, which was based on article 15 of the UNCITRAL Model Law on Electronic Commerce.

102. The Working Group held an extensive discussion onthe need to retain the draft paragraph in the draft conven-tion, in the course of which it reverted to various aspectsof a debate that had taken place at its thirty-ninth session(A/CN.9/509, paras. 67-73).

103. In favour of the deletion of the draft paragraph, it waspointed out that the provision did not specifically addressthe issues of electronic contracting to which the draft con-vention should confine itself. Strong support was expressedin favour of the view that, even in its current form, whichwas meant to be limited in scope to electronic commercetransactions, the draft paragraph should still be deleted toavoid the creation of a dual regime where different ruleswould govern the time of formation of an electronic com-merce contract within the draft instrument and the time offormation of other types of contract outside the purview ofthe draft instrument. If the purpose of the draft paragraph,it was said, was to facilitate a determination of the time ofcontract formation when data messages were used for that

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