Freight Forwarding and Multi Modal Transport Contracts

David Glass

• Publisher: Informa Law from Routledge
• Year: 2013
• ISBN:
  9781317995814
• Edition: 2
• Topic: Derecho
• Subtopic: Derecho marítimo

Freight Forwarding and Multimodal Transport Contracts, 2nd Edition, is a comprehensive guide to the law in relation to contract forms and terms created by operators, trade associations or international bodies such as the UN and used as a basis for trading conditions by freight forwarders, logistics suppliers, combined or multimodal transport operators and container operators.

This second edition examines the latest editions of contract forms and terms, both where their object is the supply or procurement of multimodal carriage, as well as where they are directed to the use of combined transport equipment (ie containers, swap bodies). Of particular prominence will be a detailed examination of the latest versions of conditions used by the principal UK forwarding, logistics, intermodal and container operators such as the British International Freight Association (BIFA) conditions 2005A and the current Freightliner Conditions as well as updates on many of the conditions in use and legal developments relevant to them, eg Road Haulage Association Conditions 2009, Maersk Conditions of Carriage, TT Club Conditions.

CHAPTER 1

INTRODUCTION AND OVERVIEW

1A INTRODUCTION

1.1 In very general terms combined or multimodal transport means the linking of two or more transport modes under a contractual arrangement which either envisages or permits such a link.¹ Whereas it is possible to focus on the law of an individual mode and to treat links with another mode as incidental, this book puts such links at the forefront of the discussion. In the past the linking of modes in order to provide a through service for customers not wishing to create the link themselves might commonly require the services of an agent such as a shipping or forwarding agent. Alternatively, modal carriers or their agents might sometimes be prepared to take on such a role. Less usually, and commonly linked to the needs of a specific trade, a dedicated service might link modes often on the basis of a joint operation between operators of different modes. Since the Second World War, transport services were transformed by the development of unit load devices to ease the handling of goods and facilitate transfer between modes, most notably the development of the maritime container.² This development, in particular, enabled the link between sea and land modes of carriage to be made with ease and facilitated the ability of various kinds of operators to market through transport services. Forwarders and sea carriers were naturally at the forefront of this development. Furthermore, the more recent interest in expanding into the provision of wider-based logistics services has particularly involved both of these types of participants and has in turn been facilitated by developments associated with the container revolution.

1.2 Taking this development as its primary theme, forms of contract which provide the basis for modern through transport services and terms adopted in them lie at the core of this book. Since forwarding contracts are often a crucial part of the context of these services and because the use of unit load devices has been crucial to their development it seems natural to expand into those areas in order to fill in the wider context. Further, since terms adopted in some forms are derived from attempts by international bodies to provide solutions to certain difficulties associated with them, the terms adopted in these efforts are also examined.

1.3 In later chapters detailed consideration will be given first to conditions used in respect of forwarding and logistics services taking account of both the terms and forms of document in use. The trading conditions adopted by the British International Freight Association (BIFA) are completely reviewed in Chapter 2 but within that review the legal difficulties produced by the involvement of forwarders in more integrated services and the movement towards logistics services are considered. Further, forwarders issuing carriage documentation or making use of documentation issued by a performing carrier have long needed to make reference to their trading conditions either on the carriage document itself or by other means.³ The increasing provision of added value services may also require reference to general trading conditions beyond those focused on the provision of carriage.⁴ The main issues arising from the need to incorporate standard trading conditions and the need to link with carriage documents is considered also in Chapter 2.⁵

1.4 The primary forms of contract dedicated specifically to the provision of the main forms of combined or multimodal services are considered in detail in Chapter 3. The order of treatment in that chapter will follow the historical development of carriage documentation specifically devoted to integrated services especially arising from the container revolution in the context of liner shipping. Since each development demonstrates commercial and legal possibilities which can still be employed today it is necessary to see them all as having potential relevance. Each development will be placed in its specific context at the appropriate point in Chapter 3 but an overview is given below, as part of this introductory chapter, so that the development can be seen as a whole.

1.5 Finally, contracts or specific contractual terms focused on the use of containers or other unit load devices are examined in detail in Chapter 4. This also provides the opportunity to draw in terms used in other forms of combined transport.

1.6 In general, the discussion will revolve around forms and conditions which are issued either by British operators or are likely to be relevant to traders operating from the UK. Reference may, however, be made to terms and conditions used in other parts of the world by way of contrast, illustration or as part of overall context. Similarly, whilst the discussion will be largely from the perspective of English law, the nature of the subject inevitably requires reference to legal materials drawn from other jurisdictions. The remainder of this chapter is devoted to matters of definition and practice and placing the overall development into its commercial and legal context.

1B TERMINOLOGY AND PRACTICE

1B.1 DEFINITIONS

1.7 It is common to see references to combined, multimodal or intermodal transport. These are sometimes said to be interchangeable terms referring to the carriage of goods involving more than one mode of transport.⁶ From the paragraphs above one can also see a reference to the term “through transport” which can also be applied in this context. The confusion in terminology derives in part from the need to cover different ideas as well as variations in commercial or geographical usage. The historical course of international legislative efforts has been a further factor. For example, it was common in the past to make reference to combined transport but the more modern reference is to multimodal transport which reflects the influence of the United Nations Convention on International Multimodal Transport of Goods 1980 (MMTC).⁷ The older term, however, is still in use, especially in current documentation which has not yet been adapted to the newer usage. It has also been used in respect of certain types of combined transport, particularly in the context of European road/rail transport⁸ and is commonly used to reflect the idea of use of a unit load system to link modes. A similar range of use applies to the word intermodal.⁹ The discussion may be helped by keeping in mind the distinctions made in the following paragraphs.

1.8 First, the physical combinations that may be possible and produced by loading techniques must be distinguished from the contracts that may be made to utilise them. Reference to an intermodal or combined transport technique may be referring simply to the fact that a container may be carried on a road vehicle and a ship. Within this general distinction further sub-distinctions can be made. A distinction exists between a unit load device which is carried by modes of transport but is not a mode of transport in its own right (e.g. a container) and one that is, but might still be carried by another means. A further sub-distinction arises where one carrier is able to link modes because of ownership of the means of utilising them and where several carriers must be used.

1.9 Secondly, a basic distinction can be drawn relevant to the legal significance attached to contracts made in this context; that is, between contracts which simply link operators of different modes to the customer and those which provide for a through liability notwithstanding that different modes or different carriers may be used to perform the contract. Under the influence of the MMTC the term multimodal transport tends to be used today to express the idea of a carriage of goods from one place to another by at least two modes of transport under a single contract.¹⁰ As we have seen, the term combined transport is also used to express this idea. It is at its clearest where mode to mode transport is the method envisaged.¹¹ This is distinguished from liability which is divided between the different carriers, thus producing a segmented rather than a continuous liability attached to a single operator.

1.10 The term “through transport” is often used in this context where different modes of transport are connected in this way, but again one must have regard to usage where this term is used merely to reflect the fact that different carriers have been used in a movement, regardless of the contractual basis with the customer.¹²

1B.2 UNIT LOAD DEVICES

1.11 Through services linking modes and the use of unit load handling of goods are not a modern phenomenon.¹³ The focus of modern times, however, has been on the tremendous increase in combined transport services prompted by the container revolution. The use of containers as a means of interconnection between transport modes does not necessarily require combined transport services but naturally facilitates them. A major stimulus to this revolution was standardisation of containers which provided the basis for the development of specialist ships, port handling equipment, lorries and rail wagons.¹⁴

1.12 The Interna...