The scope of application of the uncitral draft instrument on the carriage of goods [wholly or partly] [by sea]

Abstract

This thesis focuses on the sphere of application of the Draft Instrument, which is worth exploring not only because it contains innovative provisions but also because it has generated debates on the eventual shape of the liability regime in terms of which operations and contracts the Draft Instrument will cover, as well as to which entities it will apply.

In particular, as the application of the Draft Instrument turns on the conclusion of a contract for sea or “wet” multimodal transport, this thesis first considers the adopted contractual approach to defining the scope of application of the Draft Instrument alongside the proposed documentary and trade approaches, as well as the combination of all three approaches.

Then, it does not only examine the Draft Instrument’s provisions on the types of transport operation covered and excluded, the scope of the excluded contracts, the range of the covered documents and goods and the persons that bear a carrier’s liability under the Draft Instrument, but it also provides for redrafts of the controversial provisions.

In the end, as the contractual approach followed by the Draft Instrument does not adequately define the scope of the covered and excluded transport operations/contracts, it proposes that it should be replaced by the combination of a contractual and a flexible documentary approach.

In addition, it concludes that the intended “wet” multimodal/door-to-door scope of application of the Draft Instrument neither promotes the uniformity and predictability of international transport laws nor accommodates the needs of the transport industry, whilst at the same time it causes conflicts with the already existing unimodal transport regimes.  Therefore, it proposes that the scope of application of the Draft Instrument should be restricted to sea carriage, whilst a separate convention on multimodal transport by any possible combination, or even, a convention that will cover all unimodal and multimodal transport operations should be also enacted.

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