International Company and Commercial Law Review

By Florence James,2014-05-23 15:07
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International Company and Commercial Law Review

International Company and Commercial Law Review


Multimodal transport documents in international sale of goods

Melis Ozdel

? 2013 Sweet & Maxwell and its Contributors

    Subject: Sale of goods. Other Related Subject: International law. Shipping. Transport

    Keywords: Carriage by sea; Carriers' liabilities; Contracts of carriage; International sales; Multimodal transport documents; Third parties

Legislation: Carriage of Goods by Sea Act 1992

    *238 The legal functions of transport documents have particular significance to all the main players in international trade, namely buyers, sellers and bankers. The reason behind this is the nature of overseas sales, which is reflected in Incoterms 20101 : the designated place of delivery is, in most cases, some distance from the agreed destination.2 In such a situation, the seller is deemed to have discharged his obligation to deliver the goods prior to their actual delivery by the carrier at destination. This peculiar nature of overseas sales creates various risks to be faced by the parties, as well as giving rise to a conflict of interests between them.3

    So far as buyers are concerned, the main risk would appear to be loss of, or, damage to cargo during transit, which, in most cases, rests with them.4 When sellers, who are normally the party arranging the issue of transport documents,5 hand over goods to carriers, buyers with commercial awareness would accept making a payment in exchange for a more sophisticated document than a mere receipt. Aware that the risk during transit lies with them, buyers would require a transport document which confers the power to sue the carrier on contract. For these parties, being able to sue on contract would be desirable especially in the absence of facts necessary to establish a claim in tort or bailment.6 Another risk for buyers lurks behind the fact that they usually part with their money before obtaining actual possession of the goods. As this is the case, buyers would wish to be provided with a transport document enabling them to claim delivery of goods from the carrier. Finally, for purposes of selling the goods on during transit, buyers would also need the transport document to facilitate the transfer to third parties of the right to claim delivery and to sue the carrier on contract.

    From the sellers' perspective, their aim would be not just to secure payment after they hand over the goods to the carrier, but also to pass the risk in the goods to buyers at the moment of delivery. There are three main reasons why achieving their desired purposes depends on the legal functions of transport documents. First, risk of transit remains with sellers if a transport document fails to confer the power to sue the carrier on contract.7 Secondly, wary buyers would accept making a payment against presentation of a transport document as described in the

    paragraph above. Thirdly, against those buyers who defaulted on payment for the goods, it would be in the best interest of sellers to retain such a transport document to control the goods until a payment is made. The latter point is also true of those banks financing the sale of goods under letters of credit. Against the risk of non-payment by the applicant buyer, the only effective means of security for banks would be a pledge of goods. This could only be achieved by retaining a transport document capable of giving constructive possession of the goods in transit.8

    For all these main actors who have an interest in the goods which they have bought, sold or secured, it is thus indispensable to know what type of transport documents could best serve their own interests and minimise the potential risks involved in international trade. In the past, one of the main obstacles to the smooth running of trade was the buyer's inability to claim delivery from the carrier where a contract of carriage for goods was entered into between the seller and the carrier. This shortcoming was due to the doctrine of privity, which hindered buyers, as third parties, in their attempts to obtain possession of the goods. A solution for buyers was proposed in Lickbarrow v Mason, 9 where the court recognised the customary use of transferable port-to-port (shipped on board) bills of lading and described these documents as “documents of title” at common law. In so doing, the court established that the transfer of such documents to

    third parties, such as buyers and banks, was to be taken as a transfer of the right to obtain actual possession of the goods covered by that document.10

    *239 In practical terms, what this means for the holders of a transferable port-to-port (shipped on board) bill of lading is twofold. First, it confers upon the holder, be that a consignee, indorsee or a bearer, the right to possession of the goods against its presentation to the carrier.11 Secondly, it enables the holder to dispose of the goods by the endorsement and/or delivery of the bill of lading without the need of assignment.12 In view of these effects, the phrase “document of title” strictly in the common law sense clearly denotes transferability13 : by the transfer of a transport document which is a “document of title” at common law, the transferee is deemed to have acquired constructive possession of the goods to which the document relates.14 As a natural consequence of transferability, such a transport document must be presented to obtain delivery of the goods, but this duty does not in itself render the document a “document of title” at common law.15

As the explanations above suggest, the label “document of title” in the common law context does

    not give the bill of lading holder the power to sue the carrier on the bill of lading terms.16 While the Bill of Lading Act 1855 (“BLA 1855”) was in force,17 the right of suit under the bill of lading was vested only in the holders who acquired the property in the goods.18 No doubt, the results of this rule proved unsatisfactory: the BLA 1855 left a contractual gap between the carrier and those holders who did not or could not obtain ownership of the goods, such as banks acting as pledgees and the ultimate bill of lading holders down a long chain of buyers.19 After some “ingenious”,20 but insufficient, attempts to accommodate this defect, especially by way of implying a contract of carriage between the parties,21 the archaic link between passage of property and acquisition of rights of suit under the bill of lading was eventually broken by the Carriage of Goods by Sea Act 1992 (“COGSA 1992”).

    Admittedly, COGSA 1992 does more than just settle the position of cargo receivers holding a traditional bill of lading; the operation of the Act extends to some other particular shipping documents which are not documents of title at common law. By the Act, rights to claim delivery of the goods and to sue the carrier on contract are vested in the receivers named in sea waybills, straight bills of lading and those to whom the carrier has attorned pursuant to a ship's delivery order.22 This has solved the acute problem caused by the doctrine of privity where the receivers were not able to avail themselves of the contract terms contained in the document and concluded between the shipper and carrier.23 The Act has established a contractual relationship between the carrier and receivers on the same contract terms as that contained in the document as if the latter were original parties to it.24

    Most importantly, COGSA 1992 has introduced a further extension embracing transferable “received for shipment” bills of lading through categorisation of such transport documents as bills of lading for the purposes of the Act.25 A wider definition of bills of lading evidently stands in marked contrast to the anachronistic position at common law, where such documents are not considered as bills of lading and documents of title.26 That apart, the redefinition of bills of lading within the framework of the Act raises the crucial question of whether COGSA 1992 could help clarify the legal status of transport documents covering at least two different modes of carriage of goods.27

    With the rise of containerisation, one of the commonest forms of transport documents has been that which shows an inland point for the receipt and/or delivery of cargo. While a transport document covering such carriage may carry the characteristics of a “receipt for shipment” bill of lading within the meaning of COGSA 1992,28 this may not always be the case. The reason for this is that, in terms of their form, there is a wide spectrum of transport documents covering more than one mode of transport (multimodal transport documents); they range from those issued by freight forwarders acting as mere agents to those which do not relate to goods carried partly by sea or which are not transferable.29

    *240 Given the seemingly limited scope of the statutory solution under COGSA 1992, it is tempting to ask whether judicial recognition of these documents as a “document of title” may

    give any comfort to parties seeking to hold a transport document representing the goods. This inquiry is complicated by the use of the concept “document of title”, which lacks a uniform meaning applicable to different contexts.30 Apart from its use in a common law sense,31 a reading of s.1(4) Factors Act 1889, which is incorporated into the Sale of Goods Act by s.61 Sale of Goods Act 1979 (“SOGA 1979”), and the Carriage of Goods by Sea Act 1971 (“COGSA 1971”) clearly suggests that there is no uniformity between the assigned meanings of the expression.

    The broadest definition of the concept “document of title” is given under s.1(4) Factors Act 1889, whereby “any bill of lading” is considered to be a document of title for the purposes of the Act.

    This brings about two important legal consequences. First, by reason of the statutory incorporation of the Act into SOGA 1979, the transferees of “any bill of lading” can acquire a better title to goods in some limited circumstances envisaged under arts 24-25 SOGA 1979.32 Secondly, the Act envisages that a valid pledge in the goods can be created by the pledge of a

    document of title, which, under the definition of the Act, is not confined to transferable shipped bills of lading.33

    A comparatively narrower meaning is ascribed to the expression “document of title” under COGSA 1971. It is striking that the Act does not state what constitutes a document of title but merely speaks of “bills of lading or similar document of title” when drawing the boundaries of the mandatory application of the Hague-Visby rules to contracts of carriage between cargo interests and carriers.34 The issue of which transport documents could fall within the domain of this phrase was, to some extent, clarified by the decision in The Rafaela S. 35 The decision made it clear that, just as with transferable bills of lading, straight bills would also qualify, and though in a different context, it thereby introduced a wider definition of document of title.

    Having remarked upon both the statutory and judicial acceptance of a broader concept of document of title, the question remains: could they somehow help widen the ambit at common law? For many years, English courts have been set against any attempt to introduce such extensions based on linguistic grounds. Their approach could best be rationalised by the speech of the Earl of Selborne L.C. in Sewell v Burdick 36 where he stated, inter alia, that:

    In such a conflict, not of decisions but of judicial phraseology, if not doctrines, it becomes important to remember that it is often dangerous to infer, even from very strong words, when used diverso intuitu, conclusions on other subjects which if they had been present to the minds of the speakers, might perhaps have led to their being more guarded or qualified.”

    Falling back on the expression “document of title” in a strictly common law context, which conveys the meaning of transferability, a question arises as to whether there is any way of achieving recognition of multimodal transport documents within this framework. For this inquiry, the main guidance is the decision in Lickbarrow v Mason, 37 which brings the natural inference that transport documents, other than transferable bills of lading, can be judicially recognised as a document of title upon proof of mercantile custom to that effect.38 This inference carries with it the question of whether the use of multimodal transport documents in trade is widespread and consistent enough to form a mercantile custom and to justify their acceptance as a document of title. Inasmuch as the legal status of these transport documents has not yet been completely mapped and judicially scrutinised, the question remains contentious.39

    Enough has been written to illustrate the problems involved and the importance of solving them, especially for the actors in international trade. The remainder of this article will evaluate whether multimodal transport documents can: (1) function as a contract of carriage between carriers and cargo receivers; (2) confer on the receivers the right to claim delivery of the goods; and (3) serve as a mechanism to transfer these rights to third parties. For this purpose, the initial focus will be placed on COGSA 1992 to determine which particular multimodal transport documents come within the purview of the Act. For completeness, the next step will be to analyse whether these documents may in the future be judicially recognised as documents of title at common law on account of the custom of merchants, thereby enabling parties to have control over the goods as described under (2) and (3) above. Moving from the examination of the nature of multimodal

    transport documents, the article will then present a discussion on the documentary aspect of international sale contracts, in specific terms examining the types of multimodal transport documents that buyers and banks should require the seller to tender for payment.

*241 Applicability of COGSA 1992 to multimodal transport documents

Why COGSA 1992?

    It will be recalled that COGSA 1992 facilitates the transfer of contractual rights and liabilities under the transport documents listed therein to the respective cargo receivers as if they were original parties to the contract of carriage contained in these documents. The Act appears to be primarily designed for contracts of carriage of goods by sea; hence the name of the Act. Nonetheless, it presents an attractive solution to the vexed issue of title to sue in multimodal transport, which is much more perplexing than that in cases of carriage by sea. The reason for this is that applying COGSA 1992 to multimodal transport documents eases the problems of cargo receivers seeking redress for loss of or damage to cargo.

    In specific terms, the principal problem arises especially where the carriage of goods is not wholly governed by one of the conventions on international carriage40 and where the related transport document is also not subject to COGSA 1992. In such cases, the receivers, who are left to sue the carrier either in tort or in bailment, experience two main complexities peculiar to multimodal transportation. First, in view of the difficulty of localising the damage to or loss of cargo,41 they would need to engage in detective work to ascertain which one of the actual carriers is liable. Secondly, given this difficulty, they would also be faced with the rather onerous task of proving either ownership of or possessory title to the goods at the time of loss or damage.42

    Leaving these two main courses of action to one side, there remains the last, yet hopeless, resort for the cargo receivers: the antiquated doctrine of implied contract established in Brandt v Liverpool, 43 whereby a contract of carriage is implied between the carrier and the cargo receiver provided the latter furnishes consideration, such as payment of freight.44 As was made clear above, the doctrine operates within very narrow confines.45 In cases of multimodal transport, the decision seems likely to have an even narrower application, in that the Brandt v Liverpool contract can only be implied to create a contractual relationship between the receiver and the last carrier involved in the performance of the multimodal carriage.46 The doctrine does not, therefore, serve to bring the cargo receiver into an implied contractual relationship with the first and intermediate actual carriers.

    In comparison, COGSA 1992 provides a quite straightforward solution for the cargo receivers, at least where the transport document is issued by a carrier who assumes responsibility for the whole multi-stage carriage covered therein.47 In such cases, they would have a right to sue the contractual carrier under the terms of the transport document as if they were the original parties. When seeking remedies, these parties would thus be relieved of the burden of ascertaining the actual carrier causing the loss or damage and of suing them in tort or in bailment. Contractual carriers who have undertaken to act as a carrier for the entire voyage and who have subcontracted the performance of at least one of the stages involved in the transport operation

    would have recourse against the subcontractors for liabilities incurred towards the cargo receivers.48 Overall, there seem to be fewer complications for cargo receivers when COGSA 1992 is in operation.

    What is not so straightforward is determining the extent to which COGSA 1992 is applicable to multimodal transport documents, for they come in many different guises. However, they all have one key feature in common, making them distinctive instruments: they show inland points as the place of receipt and/or delivery of goods, and they cover more than one mode of transportation. Where only these features make a multimodal transport document distinct from transferable shipped bills of lading, there is a compelling suggestion that such a document be treated as a “received for shipment bill of lading” under COGSA 1992.49

    If this suggestion is taken on board, many different types of multimodal transport documents, such as the Combined Transport Bill of Lading (Combiconbill 1995), the FIATA Multimodal Transport Bill of Lading, and the Multimodal Transport Bill of Lading (Multidoc 95), would come within the sphere of COGSA 1992. This would also bring more certainty to multi-purpose bills of lading which can operate as a port-to-port or a combined *242 transport bill of lading, depending on whether any inland movement prior or subsequent to sea carriage is indicated therein.50 Irrespective of any indication of an inland movement in these transport documents, COGSA 1992 would in any case be applicable to them.

    What type of multimodal transport document comes within the scope of COGSA 1992? When stating that the transport documents should come within COGSA 1992, caution must be exercised in not calling all multimodal transport documents “bills of lading”. For the purposes of deciding which type of document should be brought within the purview of the Act, the main focus needs to be on the content of the document as opposed to its heading.51 That said, a multimodal transport document, however named, is not a bill of lading52 if it is issued by a freight forwarder who assumes liability for the entire carriage as agent only.53 Such a document is naturally taken as a contract of agency, not as a contract of carriage, and hence it lacks one of the key attributes of bills of lading.54 This is also aligned with the international banking practice with regards to letters of credit: banks accept only those transport documents issued by or on behalf of a party acting as a carrier.55 For this discussion, it is necessary to make one further point: the explanations made so far do not throw light on the legal status of a transport document where a party takes on the role of carriage only for part of an entire multimodal carriage and as an agent for the remainder of the voyage, such as a bill of lading in Conlinebill 2000 form.56 Given that such documents, which are known as “through bills of lading”,57 are commonplace in trade58 and they contain a contract of carriage, there seems to be no reason for excluding them from the scope of “bills of lading” under COGSA 1992.59

    The considerations above lend weight to the argument that, in terms of deciding what constitutes a bill of lading, it is not a precondition for contractual carriers to have actual possession of the goods throughout the multimodal transportation. In that respect, it is therefore perfectly possible for a contractual carrier to retain possession of the goods for only part of the voyage, or to never take possession at all. This can seem to undermine the rights of the cargo

    receivers to delivery envisaged under COGSA 1992. This is particularly because such contractual carriers are, at least on one leg of the voyage, not the parties in possession, but merely have a right to possession of the goods against the actual carrier.60 If this line of thinking were followed, the same objection would also be relevant to a charterer's bill of lading, whereby the charterer contracts as a carrier.61

    Whatever effect this may have upon the cargo receivers, the mere fact that a contractual carrier is not the performing carrier must not disqualify the transport document from being a “bill of lading” either in a statutory or in a common law sense.62 If a view to the contrary were accepted,

    not only combined transport and through bills of lading,63 but even charterer's bills of lading would fall foul of COGSA 1992. No doubt this would be an unbusinesslike result: where the parties to a sale contract agree that payment is to be made through a letter of credit incorporating UCP 600, banks do accept and pay for those transport documents issued by freight forwarders and other non-vessel owners as a carrier.64

    At this juncture there remains another key question: do these findings mean that a multimodal bill of lading is a “bill of lading” under COGSA 1992, even though it is not issued by a sea carrier; or is COGSA 1992 applicable only to those transport documents issued by sea carriers who have contracted to perform the sea segment, either in whole or in part, of a multimodal transport operation? While this issue has not yet been *243 judicially scrutinised under English law, the judicial opinions in other common law jurisdictions are at variance.

    The first decision to be looked at is The Maheno --a judgment handed down by the New Zealand Supreme Court.65 The case was concerned with a dispute between an FOB buyer and a freight forwarder with regard to the liability of the freight forwarder for the missing cargo on board the vessel The Maheno. The goods were covered by two different transport documents: the one issued by the freight forwarder, called a consignment note,66 contained both land and sea segments, as well as terms of carriage, whereas the other document was a traditional bill of lading, drawn up by a sea carrier who undertook to perform carriage of the goods by sea. On concluding that the freight forwarder was the carrier throughout the land segments of the voyage, the court did not, however, hold this party liable for the loss of cargo which occurred during sea transit--during which his responsibility was that of an agent. The crucial point for present purposes is the court's opinion as to the legal nature of the freight forwarder's transport document: the document was not held to be a bill of lading, even though the freight forwarder contracted as a carrier for the land segments of the multimodal carriage covered by the document.67

    At the other extreme is the following decision of the High Court of Hong Kong in Central Optical Ltd v Jardine Transport Services. 68 There, an unpaid Hong Kong exporter claimed damages against a freight forwarder for the release of cargo to the buyer without production of the freight forwarder's multimodal bill of lading. In its simplest form, the whole issue of the freight forwarder's liability boiled down to one question: was this document a bill of lading? And the court gave a simple and common sense answer: “yes”.69 In reaching this conclusion, the decisive question for the court was whether the freight forwarder had contracted as a carrier; it was not

    whether the multimodal transport document was issued by a sea carrier.70 The result of this was that the exporter was held to have title to sue the freight forwarder under the multimodal transport bill of lading; and that he was entitled to damages for misdelivery of the cargo.

    The ruling in Central Optical v Jardine is a clear illustration of the salutary results flowing from giving a multimodal bill of lading the legal force of a “bill of lading” where it is issued by a freight forwarder as a carrier. It can seem even more satisfactory when scant regard is paid to the practice in multimodal transportation: here, cargo interests do not normally have any means of obtaining the ocean bill of lading issued by the sea carrier to the freight forwarder.71 Even if they were to get the chance of seeing its terms, this would probably be of no value to them, particularly since the ocean bills of lading usually show freight forwarders as the shipper and consignee of the cargo.72 Accordingly, if multimodal transport documents were not to be counted as “bills of lading” just because they are not issued by sea carriers, this would create an unsatisfactory result: cargo interests would have no “key” to actual possession of the goods

    despite the undertaking of the contractual carrier in the transport document.

    The argument of those sceptical about the application of COGSA 1992 to multimodal bills of lading runs as follows: the scope of the Act is not broad enough to embrace a document relating to goods carried partly by sea and those not carried by sea at all.73 In the same spirit, where a multimodal bill of lading is issued in non-transferable form, it cannot thus be considered as a sea waybill within the meaning of the Act, where sea waybills are described as “a receipt for goods as contains or evidences a contract for the carriage of goods by sea …”.74

    Widespread use of multimodal bills of lading in trade75 and their unquestionable recognition in international banking practice76 seem to weigh against such an overly literal reading of COGSA 1992. A purpose-oriented approach dictates that a multimodal bill of lading which covers carriage partly by sea is taken as a “bill of lading” within the meaning of COGSA 1992. Whereas this

    argument can appear more convincing in a situation where the sea leg is the significant component of a multimodal transportation, it may become less convincing where the sea carriage constitutes the minor part of the entire voyage.77 Nonetheless, determining the application of COGSA 1992 on the basis of the magnitude of sea *244 carriage in a multi-stage transport operation presents an unattractive prospect of uncertainty over the legal force of multimodal bills of lading.78

    Thus, the balance comes down heavily in favour of bringing multimodal bills of lading within the definition of “bills of lading” under COGSA 1992, and one further point must be made in support of this. By including “received for shipment” bills of lading within its scope, the Act naturally

    implies that a transport document indicating an inland movement prior or subsequent to sea carriage is to be considered as a “bill of lading”, regardless of the proportion of the sea carriage involved.79 Hence, as long as the multimodal carriage contains a sea leg80 and is covered by a multimodal bill of lading which carries the key attributes of a “received for shipment” bill of lading, COGSA 1992 must be operative.

    Behind the proposition above lies another issue: what is a “received for shipment” bill of lading?

    The immediate answer is that it is a type of bill of lading which does not record that the goods are shipped on board a named vessel, but which instead states that they have been received for shipment.81 Simple as this may seem, different forms of language used under bills of lading make it difficult to decide what constitutes a “received for shipment” bill of lading under COGSA 1992. As an example, the bill of lading in The Marlborough Hill left uncertain the name of the vessel on which the goods would be loaded: it indicated that the goods were received for shipment on board The Marlborough Hill or an alternative.82 Another bill of lading, this time before the court in Ishag v Allied Bank International, contained a statement to the effect that the goods were “received” by the carrier's agent and were intended to be shipped on a named vessel.83

    While it is important to be clear about whether these or other variations can qualify, the Act provides no valuable guidance on this point. The cases on “received for shipment” bills of lading

    do, however, throw some light on what is expected of such bills of lading. By virtue of the decisions in Ishag v Allied Bank International and The Marlborough Hill, it would seem that this type of bill of lading will cover a document which records that the goods have been received by either the carrier or his agent and that they are intended to be carried to the discharge port by a named vessel.84 To say that bills of lading with such qualifications are to be counted as “received

    for shipment” bills of lading within the Act does not mean that they are as satisfactory as shipped bills of lading in international sales.85 In precise terms, such documents would appear less appealing for traders, since the name of the actual vessel used would be crucial to them,86 especially for purposes of purchasing and selling the goods in sea transit.87 Nonetheless, they are acceptable transport documents under letters of credit incorporating UCP 600 in cases where a letter of credit calls for a multimodal transport document, as opposed to a port-to-port bill of lading.88

Non-negotiable multimodal bills of lading

    So far we have seen that multimodal transport documents which are issued by parties contracting as carriers and which contain a sea segment, together with an adequate form of wording as described above are “received for shipment” bills of lading under COGSA 1992. We have not yet discussed whether this phrase could also cover a non-transferable multimodal transport bill of lading. It is nothing new that transport documents which are not in transferable form do not qualify as a “bill of lading” within the meaning of the Act, and a fortiori they are not “received for shipment” bills of lading. At this point, the question to be asked is: Should we

    stretch the boundaries of the Act further so as to accept these transport documents as sea waybills? Here, the boundaries would appear tighter, for the Act defines sea waybills as “a receipt for goods as contains or evidences a contract for the carriage of goods by sea”. Could this be read as though it refers to documents for carriage of goods partly by sea? Inasmuch as we have previously argued that bills of lading, which are ancient documents for carriage of goods by sea,89 can cover a document used for multimodal transport, then why cannot a sea waybill contain more than one mode of carriage?

    The reasons weighing against such an extensive reading are twofold.90 First, sea waybills are clearly described in the Act with emphasis on carriage by sea, while no elaborate description is given for bills of lading. Secondly, there is also nothing in the Law Commission's report to *245

    support the proposition that non-transferable multimodal bills of lading could fit into the description of sea waybills. However, if this blind literalism were to be adopted, too much emphasis would be laid on the wording of the Act and too little regard would be paid to the position of those consignees named in such transport documents. A commercially sensible solution would be to treat such parties the same as consignees/indorsees of transferable multimodal bills of lading, and to bring all these parties into a contractual relationship with their respective carriers pursuant to COGSA 1992. This solution would also be aligned with the banking practice under letters of credit, whereby no distinction is drawn between transferable and non-transferable multimodal transport documents, and both types are thus regarded as acceptable.91

    Thus far, all these discussions lend support to the suggestion that certain types of multimodal transport documents be classified either as a “bill of lading” or as a “sea waybill” as described under COGSA 1992. However, the suggestion is subject to an important exception: this Act must be applicable to multimodal transport documents only in so far as this does not run counter to any international transport convention which may wholly or partly govern the multimodal transportation of goods covered by such documents. As an example, a potential conflict with respect to the issue of right to sue is likely to arise between the Act and the COTIF (“CIM”) Convention,92 given that art.54 of the Convention clearly states when the consignor and the consignee can sue the carrier on contract.93 Similar inconsistencies might be relevant also in the case of the mandatory application of other international conventions, such as the CMR Convention on Carriage by Road.94 Hence, where such circumstances arise, COGSA 1992 must give way to the relevant international convention.

The fallback position

    Despite the weighty reasons for bringing the identified types of multimodal bills of lading into the scope of COGSA 1992, this issue is yet to be clarified by the courts. That being so, the doubts surrounding the legal nature of these transport documents have led the market to resolve the issue through contractual means: a number of multimodal bill of lading forms, such as the FIATA Bill of Lading and Multidoc 95, contain provisions to take the characteristics of those transport documents recognised under COGSA 1992.

    Of these provisions the most significant is the incorporation clause referring to UNCTAD/ICC Rules for Multimodal Transport Documents (UNCTAD/ICC Rules)95 ; where a transferable multimodal bill of lading is made subject to the UNCTAD/ICC Rules, it has one of the key attributes of a “bill of lading” under COGSA 1992.96 This is due to art.4(3)(a), (b) and (c) of the UNCTAD/ICC Rules, whereby the carrier must ensure delivery of the goods against presentation of the transport document by the cargo receiver, whether he be the consignee, indorsee or bearer. Where a multimodal transport document is issued in non-transferable form, art.4(3)(d) imports the main attributes of “sea waybills” under COGSA 1992 into the transport document97 ; the article

    provides that the carrier must deliver the goods to the consignee named in the document, without the necessity of asking for presentation of the document, provided that the consignee proves his identity. While the UNCTAD/ICC rules confer upon the cargo receiver the right to ask delivery of the goods, they fall some way short of establishing a clear contractual link between

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