Resume
Samenvatting Transport law
- Cours
- Transport Law
- Établissement
- Universiteit Antwerpen (UA)
Samenvatting van de slides en de lessen van het vak Transport Law.
[Montrer plus]
Aperçu du contenu
Transport LawMODULE 0: INTRODUCTION
Les 1: 29/9/2021
Introduction into Transport law (3 SP). What is this course all about (Mentimeter)?
This course is a brief introduction to what we will see this year. It summarizes the course in
fast forward with some key words. The scheme of the cargo claims is a summary of this
course.
Your risk is always distributed between different actors. These actors are connected within a
contract chain. Where is the risk
The actors are:
- carrier
- cargo intrest
- subsequent cargo intrest
2 problems, possibilities that you could get (in case of a the summer beach bar, where
somebody buys a beach bar from a dutch company):
1. That the customer gets the right to refuse the goods. If the buyer of the beach bar
has the right to refuse the bar.Which means a loss of one customer of the dutch
company.
2. That the seller has to pay fines.
Other actors involved:
- Insurance company (ship the risk to an insurance company)
- The insurance will only be at risk when you are at risk
- Sellers or buyers risk?
So in this course we will deal with carriage contracts and cargo claims and Insurance.
There will be 4 assignments in total. First module ⇒ assignment ⇒ discussion ⇒ modal
answers. Answers can vary, according to the get a right answer and discuss your answer in
class. 4 points out of 20 for the exam. 1,5 pages/assignment. No references except for
legislation. You can use legislation(300 p) on the exam (you have to print it first).
Where do you put the risk?
Carriage contracts in the supply chain
Typically a relationship between importer (cargo interest) and carrier. Obviously this
relationship is embedded in a much broader ecosystem. Carrier A is called the principal
carrier. If it’s a multimodal carrier he needs to solve the problems caused by the subcarriers
hanging below him.
1
,You can also have a forwarder (= forwarding agent is similar to a travel agency) with a
carrier hanging below him. The forwarder is just a middle person; connecting you to the
carrier. What is the difference between a forwarder and a multimodal carrier? Well, it’s just
about promises you make. Back in the days a carrier just carried the goods and a forwarder
would forward them. But later their tasks became blurred. The main difference is that a
carrier promises to carry a forwarder promises to ship, organise. It’s a contractual, legal
distinction. This often gives problems in court because the difference is very thin.
You can go against a forwarder if you make a personal negligence. For example: being late,
temperature conditions.
How do we know who is the relevant cargo interest, who makes the cargo claim? It’s an
internal matter between seller and buyer. So, Incoterms (who has the risk, responsibility
during the transport) are important here. If the contract says for example that the delivery
takes place at the factory in China and things go wrong during transport, who will be the
cargo interest? The buyer, because the seller can say that he received a clean bill of lading.
The 3 most common Incoterms (you don’t need to study every Incoterm, but the
essentials of the 3 common Incoterms you need to know):
- EXW + destination (Ex Works): You buy it from the factory. The seller has minimal
obligations (minimal packing unless otherwise in contract). All the risks are for the
buyer. Why is this so relevant? First of all the bankruptcy risk of the carrier, if he goes
bankrupt you can’t get any money from him. A sales contract says that if the delivery
is not conform, if the goods are not as expected they would be, than there is an
obligation of conformed delivery and the sanction ⇒ replacement of the goods.
If you buy a lamborghini EXW from Italy by car transport, there are quite a few
hurdles to overcome. First of all: presumed liability (good in good out), second: the
carrier possesses a long list of exoneration grounds (not liable because of force
majeure,...).Third: limited liability.
In case of damage during transport (when EXW) the buyer has the right to revoke the
goods when they are damaged. So the carrier has to take it home again. Later the
buyer will contact the seller and will claim to get new goods or money. The seller will
claim compensation from the carrier (slide 14)
- DDP (Delivered duty paid): Delivered at your doorstep as a buyer.
- FOB (Free on Board): Delivery when goods are on board.
Best way to draft a contract is to make it back to back, if you have an obligation against a
party than the best way is to put the same obligations in your carriage contract.
Overview Cargo claim
1. Preliminary question: who bears the risk under the sales contract?
2. Notification of damage (both relevant under CoS as under CoC)
2
, 3. Identify carrier (forwarding agent or carrier?)
4. Establish damage took place during period of responsibility carrier
5. Rebut excuses invoked by carrier
6. Establish recoverable loss
7. Establish compensation in full is due
MODULE 1: SCOPE OF APPLICATION
Les 2 - 6/10/2021
- loss or damage to the cargo: Governed by conventions = falls under the conventions
(mandatory law)
- loss or damage to the quay: NOT governed by conventions = does NOT fall under
the conventions (no mandatory law because there is no damage to the goods,
although it is damage that results from the transport)
Hiërarchie in contract law:
1. Mandatory law (applicable framework established by applying conflict of law rules)
a. (pre - existing) international law
b. supranational law (EU law)
c. national law (to the extent the international conventions don’t apply)
→ protection of the weaker party
2. Express terms: whatever the contract explicitly says
3. Terms incorporated (general conditions / sector conditions / soft law)
4. Default rules: if it’s not in mandatory law (conventions) and also not in the contract,
look at default law rules
Relevant legal framework
- Uniform law: has a limited scope, is only applicable to specific questions and often
mandatory.
- standard clauses
- sector conditions
- domestic contract law
→ contract law is built by composing these different “bricks” of legislation and terms.
Check whether what the contract says is valid according to the mandatory applicable law.
3
, Decision making process judge
Contracts are only made for when things go wrong. So when drafting one, don’t start from the best
possible outcome but from the worst possible outcome.
Does mandatory law apply? Is the logistics provider a carrier or a forwarding agent? Forwarder’s
general conditions often contain more fargoing limitation clauses than are allowed under transport law.
(e.g. 1 SDR instead of 8,33 SDR or ‘liability shall not exceed 10 000 SDR”)
Decision making process judge:
1. Contract: interpreting the contract: what does the contract actually say? often difficult to say
what the contract actually provided for. (nature of the agreement: difference carrier (promises
to carry) and forwarder (promises to ship))
Judges will often refer to their own national law context in interpreting the contract (e.g.
contract terms need to be interpreted against the one who has written them, this is not in the
convention, it is how contracts are interpreted in that country)
2. Convention: conventions are uniform but every country deals with it in a slightly different way
because of the difference in interpretation. The convention only applies if it says that it applies
(scope)
CMR says that is applicable for carrying goods by vehicle by road. What if the delivery man
damages the goods when bringing them from his vehicle to your front door?
→ not during the mandatory period of responsibility of CMR and the carrier says in its general
terms “we are not liable during pedestrian carriage so at this moment the judge would need to
decide whether the carrier can validly do this.
→ question of interpretation of the convention: does it target the operations of loading and
unloading as well or do the “borders” of the vehicle also mark the “borders” of responsibility?
Here judges can only look at their national framework to interpret this.
Convention on the interpretation of conventions: Vienna Convention on the law of treaties
- You need to interpret in accordance with the ordinary meaning that was given to the treaty in
their context and in the light of its object and purpose
BUT the ordinary meaning of a word can be different in a country compared to another
country (problem)
- As supplementary means of interpretation, you can also look at the preparatory work of the
convention and the circumstances of its conclusion.
In practice:
- The convention always requires a contract of carriage
- Was this a valid contract?
- Is this a contract of carriage or a freight forwarding contract?
→ interpretation of carriage contract often defined in a negative way by judges: a
carriage contract = not a freight forwarding contract.
4
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