N. 5
– 2006 – Contributi
Transport Law in
the Globalization Era(*)
Università di Sassari
1
. —
Transport has been the field of a long process of world-wide uniform law and uniform
commercial terms spread all over the world[1].
We could say that Transport Law is going to be the first in history, and, may
be, the main field to test a globalized law[2].
There is a large corpus of uniform law (which influenced also domestic legislation[3]),
but there is a lack of uniformity in their interpretation[4],
which constitutes a problem in international trade[5].
On the other hand, as
it will be shown, the overlap of international conventions has driven towards a
progressive disuniformity in sectors once characterized by a strong degree of
uniformity. The effort of codification of the law of the sea dates from the
second part of 20th century[6]:
to have an organic legislation, we had to wait till the UNCLOS III, the United
Nations Convention on the Law of the Sea, signed in Montego Bay on the 10th
December 1982[7],
which regulated together, inter alia, the freedom of navigation, the coastal
State claims, as well as environmental matters[8].
2
— At
very beginning, we had maritime law. Still in the XIX century, shipping has
been regulated on the base of national laws and customs. After all, the law of
sea has been mainly founded on customary law up to the end of century XX[9].
Carriage by rail was
chronologically the first field to test the approach of an uniform law of
transport: first International Convention concerning the Carriage of Goods by
Rail dated from the year 1890[10].
Carriage by air and by
road received their first juridical regulation under uniform law only in
subsequent times. The first was regulated by the Warsaw Convention of 1929[11]
(which was only the beginning of a complex history of uniform legislation),
while the public law of the air was the field of the Paris Convention of 1919[12],
although its applicability was circumscribed to a certain number of States (it
was never ratified by
The attempt to adopt an
uniform-law convention to regulate multimodal carriage[15]
has not been successful till now[16],
though the field is covered by some agreements at regional level[17],
including one under the umbrella of Andean Community[18].
Nevertheless, still waiting the entry into force of an uniform-law convention,
model rules of 1992 for multimodal transport developed by a joint UNCTAD/ICC[19]
Committee have to be mentioned as an effort of standardization through clauses
to be incorporated into private contracts[20].
3
—
Maritime and air carriage have been for a long time the field of the top-level
uniformity world-wide[21].
Since many centuries, maritime law has been characterized by an high decree of
uniformity[22],
as it is happened for air law since the twentieth century[23].
The core of maritime
law may be still summarized in a sentence by a famous Italian jurist, Pasquale
Stanislao Mancini, in his inaugural lesson at University of Turin[24],
as quoted in a recent speech by Dr. Patrick J. S. Griggs, President of the
Comité Maritime International (CMI)[25],
that sounds still relevant: «The
sea with its winds, its storms and its dangers never changes and this demands a
necessary uniformity of juridical regime»[26]. The consequence is that «those involved in the world of maritime
trade need to know that wherever they trade the applicable law will, by and
large, be the same»[27].
4
— As
an example of ancient-law basically still in force for shipping, I have to
mention, at least the most famous and well known regulation of general average,
whose basic principle of distribution of risk among every people participating
the maritime venture is still in force in many legislations and which arrived
till now back from a body of laws adopted, according to tradition, in the Greek
island of Rhodes between the Second and the Third century B.C., and accepted by
Roman law[28].
At present, some-one
may not be afraid to be considered an heretical, and may express some doubts
about the present real justification to maintain such a regulation, according
to which cargo-owner must contribute to expenses and damages afforded in the
aim to grant the salvation of the expedition in danger to be lost, even though
that danger was caused by a fault of the servants and agents of the carrier[29].
That may sound deeply
unfair if we consider that (according to the Hague Rules and Hague-Visby Rules,
still in force in many Countries all over the World) the carrier might be able
to exonerate himself of damages caused to the cargo by that fault (in the
navigation, or in the management of the ship) which provoked the danger for the
expedition[30].
The majority of
maritime law writers has been considering general average as a rule of equity.
Such a regime of distribution of the risk had (in deed) some (strong) logical
reasons in traditional sailing era, but we could doubt about the persistency of
any justification in an era of technological navigation, where the ship is not
anymore at the mercy of winds and waves, and where safety was improved by the
introduction of new navigational aids, like radar[31],
GPS[32],
AIS[33],
that have brought to a dramatic abatement of unforeseen events, and where
security problems in most Seas are not worse than those related to other
modalities of transportation. It has been observed that «General average was a useful concept before the advent of marine
insurance. It has grown far beyond its original parameters and has become more
and more oriented in favour of shipowners and the average adjusting
profession»[34].
5
—
Tradition may not be the only reason to justify a specific legislative
institute, though in such a sensitive-to-tradition field like maritime law. As
a matter of fact, other legislative institutes, once typical of maritime law
and world-wide diffused, which found their origin in consideration of the
(once) typical (strong) risk of navigation («risicum maris et gentium»)
are not still in force anymore in most legal systems[35].
A good example of such point may be found in bottomry, the ancient fenus nauticum, or pecunia traiecticia, which had its roots in customs of
Mediterranean trade before Roman era, in force of which a ship-owner might
borrow money to carry on the expedition from a lender who accepted the ship as
a security for the repayment, with the stipulation that if the ship should be
lost in the course of the voyage by any of the perils enumerated in the
contract, the lender also shall loose his money[36].
It seems significant to me that bottomry has been considered at the origins of
maritime insurance[37].
The use of bottomry bonds declined greatly in the 19th century, both for their
relatively low priority among other liens and for the development of modern
contracts of maritime insurance[38].
We may even expect, in
future, to see narrowing the still today wide range of monetary limitations
granted to carriers, shipwoners and operators. A certain tendency in that
direction started, as we are going to see, with the dereliction of monetary
limitations related to carrier liability for death and bodily injury of
passengers[39].
6
— What
we have to point out now is that General Average Rules are a sort of anomaly,
because they are a rare, if not unique, heritage of old Mediterranean legislation
of navigation in modern Maritime law.
The other (and even
more significant) peculiarity of general average rules is that they are
world-wide still in force as standard contractual terms, being incorporated in
almost every maritime contract by way of standardized contractual forms, and
they are a sort of customary rules, though in many national legislations, like
Italian code of navigation[40],
there is a correspondent legislative discipline of general average[41].
As a matter of fact,
maritime world has been characterized since many centuries by standardized
contracts and customary rules. According to the most accredited point of view,
even the well-known «Consolato
7
— The
only body involved in promoting uniformity in maritime private law has been for
about seven decades the already-mentioned C.M.I. - Comité Maritime
International, a non-governmental international organisation, established in
1897[44],
joined by national associations of maritime law of most important maritime
countries[45].
Because of its origins and composition, C.M.I. has traditionally taken care of
reason of maritime transport industry. It was only after the accident of Torrey Canyon of 1967 that the
Inter-Governmental Maritime Consultative Organization (established in 1948, as
a specialized agency of United Nations, and renamed in 1982 the International
Maritime Organisation – IMO) created its Legal Committee, which was
charged to develop a new legal regime of liability and compensation for
pollution caused by tankers. As a matter of fact, in the aim of that goal, IMCO
Legal Committee cooperated with C.M.I., leading to the Diplomatic Conferences
which approved C.L.C.[46]
and the Intervention Convention[47].
The role of the I.M.O.
has been considered controversial, because it has been charged by environmental
lobbies to be too close to reasons of maritime transportation industry.
According to a picturesque comment referred to environmental activities, it
would play the same role of a fox in guarding the chickens[48].
The influence of
Maritime Countries is not so strong in other specialized agencies of United
Nations, involved as well in the unification of maritime law, such as the
United Nations Conference on Trade and Development (UNCTAD), established by
United Nation assembly in 1964, and the United Nations Commission on
International Trade Law (UNCITRAL), established in 1966. Different structures
and origins of such organizations are the reasons why sometimes their goals
seems to be not strictly coincident.
8
—
There is quite a lot of other inter-governmental and non-governmental
organizations potentially involved with the process to uniform law in the field
of carriage, transport and navigation.
We have to mention at
least ICAO, the International Organization of Civil Aviation, which succeeded
to activities in standardization of law previously performed by the Comité international technique
d'experts juridiques aériens, previously operating in the same
field, on the basis of the first International Conference of private air law[49].
ICAO was established on the base of Chicago Convention of 7 December 1944[50],
which superseded the Paris Convention of 1919. Under its auspices, was, inter alia, adopted the Montreal
Convention of 1999[51],
destined to supersede the Warsaw Convention of 1929[52]
and its Protocols[53],
as well as the supplementary Convention of Guadalajara[54].
Quite an important role
has been played in aviation by the organization of airlines, the I.A.T.A.,
International Air Transportation Association[55],
which negotiated the Montreal Agreement of 1966 with the Civil Aeronautical
Board of United States, to increase the level of liability-limits for damages
to passengers and to introduce a basic strict-liability for liability of
carrier towards passengers in air carriage which could involve United Stated,
in the aim to maintain United States in the Warsaw System[56].
Its standardized
conditions of carriage are virtually of general application world-wide, as they
are adopted by the largest majority of leading airlines.
Besides, under auspices
of I.A.T.A. a couple of Intercarrier Agreements was adopted, for the unilateral
renunciation of liability limits in case of death and bodily injury of
passengers, before the entry in force of Montreal Convention of 1999[57].
We have also to mention
the Intergovernmental Organisation for International Carriage by Rail (OTIF),
established on 1 May 1985 as a consequence of the Convention concerning
International Carriage by Rail of 9 May 1980 (COTIF), which superseded Central
Office for International Carriage by Rail which was set up in 1893, on the base
of the already mentioned first International Convention concerning the Carriage
of Goods by Rail of 1890.
Last but not least, we
have to mention the International Organization of Labour, whose activity deals
may be quite relevant for shipping, dealing with matters such as recruitment
and placement, minimum age, hours of work, safety, health and welfare, labour
inspection and social security[58].
9
—
Finally, we have to consider the very relevant role of Organization of Regional
Integration, such as European Community, stressed in some of the most recent
conventions of uniform law, with the provision of their ratification, though
such a ratification was not considered to be computed in the aim of the entry
in force conditions.
Since the Treaty of
Rome of 1957 (the foundation Treaty of the European Community), E.C. transport
policy has been focused on removing obstacles at the borders between Member
States in the aim to facilitate the free movement of persons and goods.
Subsequent to the advent of the single market among Member States, the common
transport policy moved towards abolition of frontiers and other liberalisation
measures[59],
including liberalisation of cabotage, both in maritime[60]
and in air carriage[61].
As a part of its
politics of liberalization in transport, European Community introduced in the
legal systems of each Member-State a regulation anticipating the effects of the
Montreal Convention of 1999 for the liability of European air carriers towards
passengers (and then, it has extended for every European air carriers the core
of the 1999 Montreal Convention liability regime for passengers, also to
carriages non falling in the aim of that Convention[62]).
European Community is
also working to introduce a similar regime for maritime carriage of passengers.
In the past, it has introduced a regime for compensation for denial of boarding
in air passenger transportation[63],
partially enlarged to cover also delay and cancellation of the flight[64],
and it has generally promoted a wider consumer protection approach in air
transport[65].
Its role in implementing and improving maritime environmental legislation has
been fundamental: we have to mention, at least, the role played by E.U. Commission
in political suasion to introduce a third tier of compensation for oil
pollution carried in a bulk, finally adopted under I.M.O. umbrella by the
London Protocol of 16 May 2003 on the Establishment of a Supplementary Fund for
Compensation for Oil Pollution Damage, additional to the C.L.C. and Fund Conventions[66].
A similar role seems to
be played here by the Andean Community. At this subject, we can mention, at
least, the decisions of the Commission of the Cartagena Agreement on the
Integration of Air Transport in the Andean Subregion[67]
and on the Multimodal Transportation[68].
10
— To
understand the development of maritime private law, we have also to consider a
basic difference between the main categories of maritime contracts related to
the employment of ships. We have charter-parties, where at least till a decade
ago, it was possible to observe a substantial balance of economic power between
ship-owners and charterers, and on the other hand, we have other contract of carriage
of cargo and passengers (basically, carriage performed by liners). Within those
types of contracts the negotiating position of passengers and cargo owners has
always been at least feeble in front of strong economic power of carriers.
11
—
Fragmentation of fleets of oil-carrier, due to the outsourcing of activity of
oil transportation, once performed by oil industry, which had its own fleet,
called ship-owners (very often one-ship owners) to play a different and feebler
role in front of oil industry[69].
We have to anticipate that some among real reasons of that outsourcing have to
be found both in the goal of a shortage of costs and in an attempt to escape
liability allocated on ownerships carrying oil by domestic (U.S. O.P.A. of 1989[70])
and uniform legislation (C.L.C. system[71]),
with increasing levels of liability, under the pressure of public opinion
become aware of environmental problems under the emotion of catastrophic oil
escapes[72].
So we are able to
recognize a paradox of maritime environmental legislation, that is the other
side of the problem of the sustainability of navigation and carriage activities[73],
in the perspective of sustainable development[74].
Fragmentation of fleets because of increasing levels of liability (implementation
of the «polluter pays»
principle[75])
might have the (unwanted) consequence of growing of sub-standard ships, with an
increased risk for environment, as well as for safety and security in general[76].
A one-ship owner, who sails under a flag of convenience may be not able to
perform the same safety and security standards once performed by shipping
branches of big oil companies, although sailing as well under flag of
convenience[77].
We have incidentally to
consider another step of the present involution of the discipline of the
shipping, not circumscribed just to environmental aspects or to oil-carrier
fleets. If it is true that UNCLOS III requires a genuine link as condition for
the registration of a ship in a
determined State[78],
it is also true that then it submits the specification of the content of such a
genuine link to the national legislation of that State of registration[79].
The attempt performed
by the international community to determine requisites for registration of
ships by uniform rules had no result, since the 1974 Geneva Convention on the
conditions of registration of ships[80]
has never gone in force, as it was nor sufficiently ratified, probably because
of the resistances of the lobbies of the maritime industry.
12
— The
other side of the freedom of navigation traditionally recognized to each ship
of every flag of the World[81]
was that the State of the flag had to be responsible of the safety of
navigation[82].
This is not possible for most States granting flags of convenience (whenever
they would want), at least because they have no experience and no organization
to perform the opportune controls.
The corollary is that
Port States are going to be called to assume even more responsibilities in the
field of safety and security of navigation, also in the environmental
perspective, increasing Port-State-Control (P.S.C.) procedures to make up for
deficiencies in control by Flag States[83].
What's even surprising,
is that States and international Organization entrusted with air transport seem
to be unaware of the previous negative experience on the safety and security of
the maritime navigation because of the diffusion of the flags of convenience.
As a part of politics of deregulation and liberalization of air transport, the
principle of the national substantial ownership of airplanes[84]
and air companies as condition for the attribution of the nationality and,
consequently, for the admission to the line air services seems to be left
behind in the last five-year periods[85].
This way started a new course in comparison to the system delineated by the
Convention of Chicago of 1944 and subsequent bilateral agreements of air
navigation[86].
It does not seem just
casual that problems very similar to those shown for shipping, referred to the
use of flag of convenience, are going to be highlighted also in the field of
air navigation, with the necessity to introduce controls of the airport State,
that are able to make up for the deficiencies in controls operated by States of
registration[87].
13
— In
XVIII Century, English maritime carriers, when English mercantile fleet was
almost a monopolist in maritime traffics on North Atlantic Ocean, were able to
escape most liabilities by imposing in their contracts the so called «negligence clause» (exonerating
the carrier «even for its own
negligence»[88]), so departing from the principle of
strict liability falling on common carrier by English law[89][90],
not far-away from the rule of liability falling on nautae in Roman law, at least according to the traditional (not
uncontroversial) interpretation of the «actio
de recepto»[91].
Maritime carriers used
to bind themselves the less they could, that often meant almost nothing. First
attempt to react to such a situation was made by US legislator by the famous
Harter Act of 1893, according to that carriers could escape liability only in
specific circumstances related to the so-called «perils of the sea» (excepted perils), only if he had
exercised due diligence to make the vessel seaworthy[92].
When adopted, it was quite a good compromise between cargo interests and
maritime transportation industry.
If we read that list of
circumstances at the present, may be we can feel a little disappointed, because
it does not contemplate just a narrow range of exceptional situations. That
list of excepted perils allowing exoneration of maritime carriers from
liability went through the Hague and Hague-Visby rules in uniform law of
international maritime carriage under bill of lading[93],
which (in its original or amended text) is still in force in many maritime
countries, as well as national legislations inspired by those principle, like
the Italian code of navigation. A new Convention, more favourable for
cargo-interest, Hamburg Convention of 1978[94],
has not reached till now the same success of ratification that Brussels
Convention of 1924 used to have.
So, we have today, as
we have seen, a large dis-uniformity of the discipline of the maritime carriage
of goods, likewise it has previously happened for the discipline of the air
carriage[95],
because of the contemporary different texts of Warsaw Convention were
contemporary in force (the original text, the text amended by the 1955 Hague
Protocol; the text amended by the 1975 fourth Montreal), eventually integrated,
for those Countries that have ratified that, by the 1961 Guadalajara additional
Convention. Such situation has driven towards the instance to replace the whole
previous discipline with a new convention, that could be an acceptable
compromise among States concerned with air carriage: on such bases the 1999
Montreal Convention has been adopted. We might expect that an analogous
solution will also be adopted finally for the carriage of goods by sea[96].
In fact, works for the adoption of a new text of uniform law on the carriage of
goods (wholly or partly) by sea are in progress under UNCITRAL auspices[97].
14
— The
history of unification of law in the field of maritime carriage of passenger is
more recent. After two unsuccessful conventions of Brussels of 1961[98]
and (never entered in force) 1968[99],
a new convention was signed in Athens in 1974, the so called PAL Convention,
but in its original text, as well as in its text amended by Protocols of 1976
and 1990 (never entered in force) it was not so successful. The texts of Athens
Convention, as amended by Protocol of London of 2002[100],
and strongly influenced by the new already mentioned 1999 Montreal Convention[101],
seems to have a better opportunity to be successful, also because it is
supposed to constitute the basis of the future EC regulation on maritime
carriage of passengers[102],
in the same manner in which 1999 Montreal Convention was the basis of the EC
regulation on air carriage of passengers[103].
15
— If I
had to try to make a synthesis of my speech, I would say that the field of
transport strongly requires an uniform legislation, because of the potential
plurality of legal systems involved in an operation of carriage and of the
difficulty, in absence of an uniform law, to focus a specific legislation to be
applied.
Uniform
law is based on solutions of compromise among several legal systems.
Unfortunately, quite often reducing legal protection in favour of feebler
parts, and taking care mainly of the enterprises' point of view makes such a
compromise. One may find that element in the whole uniform law history and,
therefore, in particular, in the development of transport law. Rights agreed
under domestic laws are denied or, at least, ignored, by uniform law. Quite an
interesting example of that kind of problems may be found in the extension of
damages recoverable under 1999 Montreal Convention. The Montreal Convention
expressly excludes the recoverability of «punitive, exemplary or any
other non-compensatory damages», although in some of the Countries
parties to the Convention (not
We
have also to pay attention, at least, to those generalized extensions of
uniform law operated by many national legislators (including the Italian one[104])
with reference to air carriage, do not translate themselves in a cut of the
rights of passengers, not justified by the exigency to find a way of compromise
with other Countries.
It is necessary however
to avoid that the uniform legislation or its (not always to be agreed)
interpretation might be used in a way to suffocate the rights of feebler
parties and, particularly, those of passengers or those of damaged parties, as
it regards liability in tort.
In such contest, it
seems meaningful to remember, as it regards the interpretation of uniform law
instruments, with specific reference to the 1929 Warsaw Convention, the
attempts (supported by different American and English Courts) to exclude
compensation for damages suffered by the passenger for all the hypotheses
(although consequential from the fault of the servants and agents of the
carrier) not complying with the notion of «accident» contemplated
by the Article 17 of the same Warsaw Convention, or its (sometimes too
restrictive) interpretation, on the base of a supposed principle of exclusivity
of the cause of action that would derive (according to such opinion) from the
subsequent Article 24 of Warsaw Convention[105].
The same kind of
problems will be found by the interpreter in the exegesis of Article 29 of 1999
Montreal Convention[106].
As a matter of fact, it would have been preferable that the uniform law
legislator had better clarified such point under the new Convention. On the
other hand, we could also make the same consideration for other points, with
reference to severe doubts in the interpretation of Warsaw Convention. I have
to mention at least the problem of the compensation for pure emotional
distress. Although the matter had been considered in the preparatory works, the
definitive text of the Convention doesn't have kept an express regulation of
them, still maintaining the problem of their compensation[107].
We have also to
consider hypothesis of incompatibility of international conventions with norms
of constitutional level of members-States. In such direction, we have to
mention the historical decision of the Italian Constitutional Court No. 132 of
1985 that affirmed the illegitimacy of very law limits for the compensation of
the death damage in carriage by air of passengers under Warsaw Convention[108]
(with consequent inapplicability in Italy of those limits). It was the first
step of the evolution that has brought to the world-wide dereliction of the
liability limits for bodily injury suffered by the passengers under
