Unification of Law - Uniform Law (Rechtsvereinheitlichung)

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


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


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


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 III - Conclusion and Performance of the Contract of Carriage



Chapter VI - Provisions Relating to Carriage Performed by Successive

Carriers



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)


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)


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


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


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 IV - Liability of the Carrier (Art.17-29)


Chapter VI - Provisions Relating to Carriage Performed by Successive

Carriers



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.


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?


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


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)


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.


Art.17 et seq.

CMR: damages


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.

Unification of Law - Uniform Law (Rechtsvereinheitlichung)

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