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Project
The limitation of liability in international transport law.
Recently the transport sector has seen a strong growth of freight integration. Contrary to classic carriers, integrators leave the mode of transportation open, and can select the most efficient mode of transportation at the time of the performance of the contract. (hereinafter referred to as optional carriage contract) Both for the parties to the contract, as for society this evolution can make transport more efficient. Although the mode of transportation is often not agreed upon in the contract of carriage, still most liability regimes depend upon the mode of transportation. Therefore the hypothesis underlying this research is whether the parties to the contract can predict their liability position at the time of the conclusion of the contract when they leave the mode of transportation open.
In it's first part, this research examines whether an optional carriage contract can be qualified as a contract of carriage and whether parties can predict this qualification at the time of the conclusion of the contract. An optional carriage can only be qualified as a contract of carriage insofar the mode of transportation isnot an essential characteristic of the contract of carriage. Even if the mode of transportation is not an essential characteristic, still this qualification might not be upheld in specific cases, as there is only a thin line between contracts of carriage and other types of contracts (such as freight forwarder contracts and contrats de commissions de transport.) </>Consequently we need to examine whetherthe typical characteristics of the optional carriage contract can influence the qualification of the contract as a contract of carriage or rather as a freight forwarder contract.
In the second part we examine whether, if the qualification as a contract of carriage is upheld, parties can be predict the liability that will be found applicable to the contract. This possibility depends first of all on the width of the scope of application: when a regime applies to a wider variety of means of transportation, also when the carrier has a freedom to choose the means of transportation, all these means might still fall within the scope of the law. Second important question is whether the scope rule refers to the means of transportation used for the performance of the contract (real scope rule), or rather the means of transportation contractually agreed upon (contractual scope rule). If the scope rule refers to the means for the performance of the contract, parties can not have certainty with regards to the applicable regime when the choice given to the carrierdoes not fall entirely within the scope of a single regime. If the scope rule refers to the means of transportation contractually agreed upon, certainty might be possible insofar as the contract is interpreted by the judge only taking into account context prior to the conclusion of the contract. This interpretation question is the third question addressed in the second part.
Taken into account the possible uncertainty weidentified in the first two parts, in the third part we examine whether parties can achieve legal certainty contractual, or if a legal intervention would be required.
In it's first part, this research examines whether an optional carriage contract can be qualified as a contract of carriage and whether parties can predict this qualification at the time of the conclusion of the contract. An optional carriage can only be qualified as a contract of carriage insofar the mode of transportation isnot an essential characteristic of the contract of carriage. Even if the mode of transportation is not an essential characteristic, still this qualification might not be upheld in specific cases, as there is only a thin line between contracts of carriage and other types of contracts (such as freight forwarder contracts and contrats de commissions de transport.) </>Consequently we need to examine whetherthe typical characteristics of the optional carriage contract can influence the qualification of the contract as a contract of carriage or rather as a freight forwarder contract.
In the second part we examine whether, if the qualification as a contract of carriage is upheld, parties can be predict the liability that will be found applicable to the contract. This possibility depends first of all on the width of the scope of application: when a regime applies to a wider variety of means of transportation, also when the carrier has a freedom to choose the means of transportation, all these means might still fall within the scope of the law. Second important question is whether the scope rule refers to the means of transportation used for the performance of the contract (real scope rule), or rather the means of transportation contractually agreed upon (contractual scope rule). If the scope rule refers to the means for the performance of the contract, parties can not have certainty with regards to the applicable regime when the choice given to the carrierdoes not fall entirely within the scope of a single regime. If the scope rule refers to the means of transportation contractually agreed upon, certainty might be possible insofar as the contract is interpreted by the judge only taking into account context prior to the conclusion of the contract. This interpretation question is the third question addressed in the second part.
Taken into account the possible uncertainty weidentified in the first two parts, in the third part we examine whether parties can achieve legal certainty contractual, or if a legal intervention would be required.
Date:1 Oct 2008 → 19 Nov 2013
Keywords:International transport law
Disciplines:Law
Project type:PhD project