unification of law - uniform law (rechtsvereinheitlichung)
TRANSCRIPT
Class
Unification of Law - Uniform Law
(Rechtsvereinheitlichung)
Summer term 2020
Time schedule of the class15.04.2020 Basics of unification of law: notion, purposes, history
22.04.2020 Institutions of unification of law. Sources of uniform
law. Methods of unification of law
29.04.2020 Research and solving cases in the field of uniform law
06.05.2020 Uniform sales law (CISG)
13.05.2020 CISG II. Uniform law in other parts of the law of
obligations
20.05.2020 Uniform credit security law
27.05.2020 Uniform transport law I (road, railroad, air)
03.06.2020 Uniform transport law II (maritime transport)
10.06.2020 Uniform information technology (IT) law
17.06.2020 Approximation of laws in Europe, in particular the EU
24.06.2020 Unification of the law of civil procedure
01.07.2020 Unification of insolvency law
08.07.2020 Case law analysis: practical example
UL 07
Part 1 (of 6)
Uniform transport law I
Notion and economic relevance
of transport
• Notion of transport: transfer (lat.) of a person or object from one
place to another
• transport of goods
• transport of persons (passengers). Distinguish from persons
organizing or carrying out the transport.
• Economic relevance of transport sector:
• necessary component of economic interaction: production –
sale – consumption – financing (cross-over relevance)
• in particular necessary component of national and
international trade
Production
Sale
TransportConsumption
Financing
Major elements of the economy (national and international)
Notion and structures of transport(ation) law
Law regulating
• transport of goods – transport of passengers
• public (regulatory) law – private law
• general transport law – transport law for specific means
of transport:
• Road
• Railway
• Air
• shipping (in particular maritime)
Source: Wikipedia – „Transport law“
Production:
Contractual relationsetc. relating to
production
e.g. Unidroitprojects
Sales:
Sales contracts + regulation
CISG
Transport:
Transport contracts + regulation
Financing:
Financing contracts etc. + regulation
e.g. credit security(Cape Town
Convention etc.)
Uniform transport law in the context of uniform business law
(contracts, property etc.)
Basic structures of transport contracts
• Regulatory content of private transport law = law of
transport contracts (and related issues):
• conclusion and validity of contract of transportation (carriage)
• content/performance/remedies (different parties)
• termination of contract
• Policy considerations in private transport law: balance of
interests between sender (shipper) and carrier and consignee
(CMR terminology)
UL 07
Part 2 (of 6)
Sources of information
• Textbooks, e.g. Bokareva, Uniformity of transport law through international regimes
(2019), Blonigen/Knight/Wilson, Handbook of International Trade and Transportation (2018)
• Journals
• Specialised e.g.: Journal for International Trade and Transport Law, Journal of International
Trade, Logistics and Law, Journal of Shipping and Trade, Transportation Law Journal,
European Transport Law, Transportrecht (Zeitschrift), Recht der Transportwirtschaft
(Zeitschrift).
• General, e.g. Uniform Law Review.
• Jurisprudence, e.g. journals above.
• Internet/databases, e.g. Beck online, LexisNexis, Westlaw.
• Research and educational institutions, e.g. University of Mannheim, University of Rotterdam
• Organizations representing the transport industry, e.g. IATA
• Academic and Practitioners‘ associations, e.g.
• IBA Maritime and Transport Law Committee
• ABA International Transportation Committee
• Deutsche Gesellschaft für Transportrecht, https://transportrecht.org/
• Trade and Transport Law Association
Many publications
including textbooks
on specific areas of
transport law, e.g.
road transport,
maritime transport
etc.
UL 07
Part 3 (of 6)
International organizations and NGOs
dealing with transport law
• International organizations
• General: e.g. OECD International Transport Forum, Unidroit, UNCITRAL,
UNECE, World Bank, European Commission/Directorate of Transport, …
• Road: no specialised Int. Org. with general tasks in this field, but see IRU
• Rail: OTIF, OSJD (SGMS)
• Air: ICAO
• Maritime transport: IMO, …
• NGOs
• e.g. IATA, IRU, UIC, CORTE, CIT …
UL 07
Part 4 (of 6)
Legal sources
Sources of uniform transport law -
overview
• International treaties
- Road: CMR 1956
- Railway: COTIF – CIV/CIM 1999
- Air: Montreal Convention 1999
- Maritime: Hague Visby Rules 1924/1968, Hamburg Rules 1978, Rotterdam
Rules 2008
• Supranational law
• EU: Regulations on passenger rights in railway and air transport
• OHADA: Acte uniforme relatif aux contrats de transport de marchandises
par route 2003
• Soft law/model laws: CIS Model Act on transport activities (2007)
• General contract terms: e.g. Incoterms 2010 (some terms are for
transport in general, e.g. Ex works and Free carrier
Sources of uniform transport law -
general
• International treaties: none (only for specific
means of transport)
• Supranational law: none (only for specific means of
transport)
• Soft law/model laws: CIS Model Act on transport activities
(2007)
• General contract terms: e.g. Incoterms 2010 (some
terms are for transport in general, e.g. Ex works and Free
carrier
Sources of uniform (international)
transport law - Road
• Treaties:
• Carriage of goods on the road: CMR
1956. Plus supplementary texts, e.g. e-CMR (2008) as
Protocol to the CMR.
• Supranational law: OHADA Acte uniforme relatif
aux contrats de transport de marchandises par route
2003
• Soft law/model laws: CIS Model Law on Transport
by Cars (2017)
• General contract terms
Sources of uniform (international)
transport law - Railway
• Treaties:
COTIF – CIV/CIM 1999• Supranational law:
• EU Regulation 1371/2007 on railway passenger‘s rights and
obligations
• Soft law/model laws: CIS Model Railway Statute (1999)
• General contract terms: e.g. CIT terms and conditions
Sources of uniform (international)
transport law - Air
• Treaties
Montreal Convention 1999
• Supranational law
• EU Regulation on air passenger rights and
obligations
• Soft law/model laws
• General contract terms: IATA terms
Sources of uniform (international)
transport law – Maritime
See next lecture
Structure of transport
conventions
Examples:
CMR (road)
CIV/CIM (railways)
Montreal Convention (air)
Rotterdam Rules (maritime)
CMR 1956Convention relative au Contrat de transport international des marchandises par route
Convention on the Contract for the International Carriage of Goods by Road
Preamble
Chapter I - Scope of Application
Chapter II - Persons for whom the Carrier is Responsible
Chapter III - Conclusion and Performance of the Contract of
Carriage
Chapter IV - Liability of the Carrier
Chapter V - Claims and Actions
Chapter VI - Provisions Relating to Carriage Performed by
Successive Carriers
Chapter VII - Nullity of Stipulation to the Convention
Chapter VIII - Final Provisions
Main contents of CMR
• Provisions on conclusion of contract
• Determination of main rights and duties of carrier, sender
and consignee
• Use of consignment note: no document of title to property,
but functions of proof, liability and relating to „disposal“ of
goods
• Strict liability of carrier, but relief from liability possible
under art.17
• Limitation of liability according to weight and SDR, art.23:
max. 8,33 SDR per kilogram (cf. 2 SDR per kilogram with
max. 666,67 SDR per piece under Hague Visby rules)
• Basically not dispositive to contracting parties, art.41
• Applicable also to multimodal transport, art.2
Montreal Convention in comparison with CIV/CIM
• Montreal Convention 1999 (57
articles)
• Chapter 1 - General Provisions
• Chapter II - Documentation and Duties
of the Parties Relating to the Carriage
of Passengers, Baggage and Cargo
• Chapter III - Liability of the Carrier and
Extent of Compensation for Damage
(17 - 37)
• Chapter IV - Combined Carriage
• Chapter V - Carriage by Air Performed
by a Person other than the Contracting
Carrier
• Chapter VI - Other Provisions
• Chapter VII - Final Clauses
•CIM 1999/2006 (52
articles)
•Title I: General
Provisions (1-5)
•Title II: Conclusion and
Performance of the
Contract of Carriage (6-
22)
•Title III: Liability (23-41)
• Title IV: Assertion of
Rights (42-48)
•Title V: Relations
between Carriers (49-52)
UL 07
Part 5 (of 6)
Specific issues
CMR will be taken as a starting point, then some comparisons will
be made with other uniform law.
CMR 1956Convention relative au Contrat de transport international des marchandises par route
Convention on the Contract for the International Carriage of Goods by Road
Preamble
Chapter I - Scope of Application
Chapter II - Persons for whom the Carrier is Responsible
Chapter III - Conclusion and Performance of the Contract of Carriage
Chapter IV - Liability of the Carrier
Chapter V - Claims and Actions
Chapter VI - Provisions Relating to Carriage Performed by Successive
Carriers
Chapter VII - Nullity of Stipulation to the Convention
Chapter VIII - Final Provisions
No explicit provisions on uniform interpretation and gap-filling.
Subsidiary application of national law often necessary, e.g. conclusion of
contract, issues of liability etc.
Provisions on scope of application
CMR 1956 (55 contracting states)
Chapter I - Scope of Application
Article 1:
1. This Convention shall apply to
every contract for the carriage of
goods by road in vehicles for
reward, when the place of taking
over of the goods and the place
designated for delivery, as
specified in the contract, are
situated in two different countries,
of which at least one is a
contracting country, irrespective of
the place of residence and the
nationality of the parties.
CISG 1980 (93 contracting states)
Part I
Chapter 1: SPHERE OF APPLICATION
Article 1
(1) This Convention applies to contracts of
sale of goods between parties whose
places of business are in different States:
(a) when the States are Contracting
States; or
(b) when the rules of private inter-
national law lead to the application of the
law of a Contracting State.
Article 2
This Convention does not apply to sales:
(a) of goods bought for personal, family or
household use, …
Comparison of some provisions of
transport conventions (1)
Applicability:
CMR: either place of taking over of goods or of delivery are in a
contracting state
Montreal Convention: place of departure and of destination
are in contracting states (+ some extensions)
CIM: place of taking over of goods and of delivery are in
contracting states or either place of taking over or delivery are in
c.s. and choice of law (CIM)
Hague Visby Rules: either bill of lading issued in c.s., or departure
from port in c.s. or choice of law (either HVR or c.s. law)
EU Rail Passenger Rights Regulation 2007
CHAPTER I: GENERAL PROVISIONS
Art.2 This Regulation shall apply to all rail journeys and services throughout the
Community provided by one or more railway undertakings licensed in accordance with
Council Directive 95/18/EC of 19 June 1995 …
Domestic travel is included, but travel must take place in EU
Every passenger, not only consumers are protected
Uniform Rules concerning the Contract of International Carriage of
Passengers by Rail (CIV) of 1999Title I: General Provisions
Art.1 Scope
§ 1 These Uniform Rules shall apply to every contract of carriage of passengers by
rail for reward or free of charge, when the place of departure and the place of
destination are situated in two different Member States, irrespective of the domicile
or the place of business and the nationality of the parties to the contract of carriage.
Domestic travel is excluded.
Every passenger is protected.
Opting-out possibilities?
CMR 1956 (55 contracting states)
Chapter I - Scope of Application
Article 1:
1. This Convention shall apply to
every contract for the carriage
of goods by road in vehicles
for reward, when the place of
taking over of the goods and
the place designated for
delivery, as specified in the
contract, are situated in two
different countries, of which at
least one
CISG 1980 (93 contracting states)
Part I
Chapter 1: SPHERE OF APPLICATION
Article 1
(1) This Convention applies to contracts of
sale of goods between parties whose
places of business are in different States:
(a) when the States are Contracting
States; or
(b) when the rules of private inter-
national law lead to the application of the
law of a Contracting State.
Article 2
This Convention does not apply to sales:
(a) of goods bought for personal, family or
household use, …
Possibility to opt-out or modify?
CMR 1956
Chapter VII Nullity of stipulations contrary to
the convention
Art.41 [A]ny stipulation which would directly or
indirectly derogate from the provisions of this
Convention shall be null and void. The nullity of
such a stipulation shall not involve the nullity of
the other provisions of the contract.
CISG 1980
Part I
Chapter 1: SPHERE OF
APPLICATION
Article 6
The parties may exclude the
application of this Convention or,
subject to article 12, derogate from
or vary the effect of any of its
provisions.
CIV 1999
Art.5 Unless provided otherwise in these
Uniform Rules, any stipulation which, directly
or indirectly, would derogate from these
Uniform Rules shall be null and void. The
nullity of such a stipulation shall not involve the
nullity of the other provisions of the contract of
carriage. Nevertheless, a carrier may assume a
liability greater and obligations more
burdensome than those provided for inthese
Uniform Rules.
CMR – conclusion and performance of contract
Chapter III - Conclusion and Performance of the Contract of Carriage
Article 4 The contract of carriage shall be confirmed by the making out of a consignment
note. The absence, irregularity or loss of the consignment note shall not affect the existence or
the validity of the contract of carriage which shall remain subject the provisions of this Convention.
Article 7
1. The sender shall be responsible for all expenses, loss and damage sustained by the carrier
by reason of the inaccuracy or inadequacy of:
(a) The particulars specified in article 6, paragraph 1, (b), (d), (e), (f), (g), (h) and (j);
(b) The particular specified in article 6, paragraph 2; …
Article 9
1. The consignment note shall be prima facie evidence of the making of the contract of carriage,
the conditions of the contract and the receipt of the goods by the carrier.
Article 12
1. The sender has the right to dispose of the goods, in particular by asking the carrier to stop
the goods in transit, to change the place at which delivery is to take place or to deliver the goods
to a consignee other than the consignee indicated in the consignment note.
2. This right shall cease to exist when the second copy of the consignment note is handed to the
consignee or when the consignee exercises his right under article 13, paragraph 1; from that time
onwards the carrier shall obey the orders of the consignee.
CMR – provisions on liability
Chapter IV - Liability of the Carrier
Article 17
1. The carrier shall be liable for the total or partial loss of the goods and for damage thereto
occurring between the time when he takes over the goods and the time of delivery, as well
as for any delay in delivery.
2. The carrier shall, however, be relieved of liability if the loss, damage or delay was caused
by the wrongful act or neglect of the claimant, by the instructions of the claimant given otherwise
than as the result of a wrongful act or neglect on the part of the carrier, by inherent vice of the
goods or through circumstances which the carrier could not avoid and the consequences of
which he was unable to prevent.
Article 23
1. When, under the provisions of this Convention, a carrier is liable for compensation in respect
of total or partial loss of goods, such compensation shall be calculated by reference to the
value of the goods at the place and time at which they were accepted for carriage.
2. The value of the goods shall be fixed according to the commodity exchange price …
3. Compensation shall not, however, exceed 25 francs per kilogram of gross weight short.
"Franc" means the gold franc weighing 10/31 of a gramme and being of millesimal fineness 900.
Now: 8,33 SDR per kilogram (Protocol CMR 1978)
Comparison of some provisions on liability
Limitation of liability by weight:
Road: CMR: max. 8,33 SDR per kilogram
Sea: Hague Visby Rules: max. 2 SDR per kilogram or
666,67 SDR per package
Hamburg Rules: max. 2,5 SDR per kilogram or 875
SDR per package
Rotterdam Rules: max. 3 SDR per kilogram or 875
SDR per package
Air: Montreal Conv: max. 17 SDR per kilogram
Rail: CIM, max. 17 SDR per kg
UL 07
Part 6 (of 6)
Practical example
From UNCITRAL
database CLOUT
German enterprise S (claimant) sells to client B in Toronto goods for the price of €
100.000. B instructs S to deliver the goods directly to the enterprise L in Moscow,
which has in the meantime bought the goods from B.
For this purpose S engages transport firm T to deliver for a fixed price the goods (1000
packages of a gross weight of 10.000 kg) from Lörrach (Germany) to Moscow. T
engages for the transport the Russian enterprise S, which itself engages A with the
transport. The driver of A takes over the goods on 8 September 2014 in Lörrach. With
a letter of 19 September 2014 S complains to T that the goods have been lost. S
states that the goods have not been delivered to L. At his arrival in Moscow the driver
was approached by an unknown person, who identified himself as a representative of
L. Upon the directive of this person the driver moved to an unloading station, which did
not correspond to the delivery address indicated on the consignment note. There the
goods got lost. The goods having a value of 100.000 Euro, S claims damages of this
size from T on the basis of third party damage liquidation.
T objects that the driver moved the goods to an address, which was told him a the
Moscow customs office and had delivered the goods there to an employee of L.
Receipt of the goods was acknowledged on the CMR-consignment note. If any
persons using forged documents had taken over the goods, T holds itself free from
liability on the basis of Art. 17 subsection 2 CMR. T also holds that S has not suffered
any loss as the Canadian buyer B has paid the goods to S. Also, neither B nor L had
suffered any damage, which could be claimed by T as a third party damage
liquidation.
Solution of the case
• CMR binding for Germany under public
international law?
• Applicability of CMR, art.1, 2
• Legal basis for claim, art.17
• Legal standing includes sender (= con-
tracting party), even if art.13 (consignee has
certain rights as to the goods) applies as well.
• Contract concluded and valid?
CMR 1956
Preamble
Chapter I - Scope of Application
Chapter II - Persons for whom the Carrier is Responsible
Chapter III - Conclusion and Performance of the Contract of Carriage
Chapter IV - Liability of the Carrier (Art.17-29)
Chapter V - Claims and Actions
Chapter VI - Provisions Relating to Carriage Performed by Successive
Carriers
Chapter VII - Nullity of Stipulation to the Convention
Chapter VIII - Final Provisions
No explicit provisions on uniform interpretation and gap-filling.
Subsidiary application of national law often necessary, e.g. conclusion of
contract, issues of liability etc.
Chapter IV - Liability of the Carrier
Article 171. The carrier shall be liable for the total or partial
loss of the goods and for damage thereto occurring
between the time when he takes over the goods and
the time of delivery, as well as for any delay in delivery.
Basis for the claim
CMR applicable?
Chapter I - Scope of Application
Article 1: 1. This Convention shall apply to every contract for the
carriage of goods by road in vehicles for reward, when the place
of taking over of the goods and the place designated for delivery,
as specified in the contract, are situated in two different countries,
of which at least one is a contracting country, irrespective of the
place of residence and the nationality of the parties.
2. For the purpose of this Convention, "vehicles" means motor
vehicles, articulated vehicles, trailers and semi-trailers as defined
in article 4 of the Convention on Road Traffic dated 19
September 1949.
CMR – contract concluded?
Chapter III - Conclusion [and Performance] of the
Contract of Carriage
Article 4: The contract of carriage shall be confirmed by
the making out of a consignment note. The absence,
irregularity or loss of the consignment note shall not affect
the existence or the validity of the contract of carriage which
shall remain subject the provisions of this Convention.
Article 9: 1. The consignment note shall be prima facie
evidence of the making of the contract of carriage, the
conditions of the contract and the receipt of the goods by
the carrier.
Solution of the case (cont‘d)
• Prerequisites of liability
• Art.17 no fault custodial liability
• Art.3 liability for third persons‘ behavior
• Art.17 subs.2 [and 4: not applicable here]: exclusion of liability
• Damages, art.23 et seq.
• Special problem: third party damages liquidation
(Drittschadensliquidation): German law applicable?
• Art.29, lapse of limitation of liability [damages are then fully
recompensated]
CMR – provisions on liability
Chapter IV - Liability of the Carrier
Article 17:
1. The carrier shall be liable for the total or partial loss of
the goods and for damage thereto occurring between the
time when he takes over the goods and the time of delivery,
as well as for any delay in delivery.
2. The carrier shall, however, be relieved of liability if the
loss, damage or delay was caused by the wrongful act or
neglect of the claimant, by the instructions of the claimant …,
by inherent vice of the goods or through circumstances
which the carrier could not avoid and the consequences
of which he was unable to prevent.
CMR: liability (complementary provisions)
Chapter II - Persons for whom the Carrier is Responsible
Article 3
For the purposes of this Convention the carrier shall be responsible
for the acts of omissions of his agents and servants and of any
other persons of whose services he makes use for the
performance of the carriage, when such agents, servants or other
persons are acting within the scope of their employment, as if such
acts or omissions were his own.
Chapter IV - Liability of the Carrier
Art.17 et seq.
CMR: damages
Chapter IV - Liability of the Carrier
Art.17 ….
Article 23
1. When, under the provisions of this Convention, a carrier is liable for compensation
in respect of total or partial loss of goods, such compensation shall be calculated by
reference to the value of the goods at the place and time at which they were accepted
for carriage. …
Article 29
1. The carrier shall not be entitled to avail himself of the provisions of this chapter
which exclude or limit his liability or which shift the burden of proof if the damage
was caused by his wilful misconduct or by such default on his part as, in
accordance with the law of the court or tribunal seised of the case, is considered as
equivalent to wilful misconduct.
2. The same provision shall apply if the wilful misconduct or default is committed by
the agents or servants of the carrier or by any other persons of whose services he
makes use for the performance of the carriage, when such agents, servants or other
persons are acting within the scope of their employment.