Lloyd's Maritime and Commercial Law Quarterly
Phantom carriers and UNCITRAL’s proposed transport law Convention
Michael F Sturley *
Working Group III of the United Nations Commission on International Trade Law (UNCITRAL) is currently negotiating a new multilateral Convention to replace the Hague, Hague-Visby and Hamburg Rules. The proposed new Convention would cover a broader range of topics than its predecessors, including detailed regulations of transport documents that common law observers would expect to find in a Bills of Lading Act. As part of the proposed chapter on transport documents, Art 40(3) would create a presumption making shipowners liable as carriers when transport documents fail to identify the true carrier. In this article, one of the active participants in the debate discusses this controversial provision and considers possible improvements and alternatives.
Introduction
In 2002, the United Nations Commission on International Trade Law (UNCITRAL) reconvened its Working Group III on Transport Law to discuss a Preliminary Draft Instrument on the Carriage of Goods by Sea, which was based on a draft prepared (at UNCITRAL’s request) by the Comité Maritime International (CMI).1
The goal is to prepare a new multilateral Convention to replace the Hague, Hague-Visby and Hamburg Rules, thus reunifying the international legal regime governing the subject. But UNCITRAL intends the new Convention to be much broader than its predecessors.2
For example, the proposed new Convention would to some extent govern maritime multimodal contracts on a door-to-door basis (unlike the earlier tackle-to-tackle and port-to-port regimes), thus expanding the geographic reach of the new Convention.
More significantly, the proposed new Convention would govern a much broader range of topics than its predecessors. In particular, Chapter 9 of the current draft of the proposed
* Stanley D and Sandra J Rosenberg Centennial Professor of Law, University of Texas at Austin. Professor Sturley serves as the Senior Adviser on the United States Delegation to Working Group III (Transport Law) of the United Nations Commission on International Trade Law (UNCITRAL), whose work is discussed in this article. However, he writes here solely in his academic capacity and the views he expresses are his own. They do not necessarily represent the views of, and they have not been endorsed or approved by, any of the entities (or any of the individual members) with which (and with whom) he serves.
1. For a discussion of the background to this project, including the preliminary work of the CMI, see, eg, M F Sturley, “The United Nations Commission on International Trade Law’s Transport Law Project: An Interim View of a Work in Progress” (2003) 39 Tex Int’l LJ 65, 68–75; S Beare, “Liability regimes: where we are, how we got there and where we are going” [2002] LMCLQ 306.
2. Many others have recognized UNCITRAL’s greater ambition in this project. See, eg, C Debattista, “The CMI/UNCITRAL Cargo Liability Regime: regulation for the 21st century?” [2002] LMCLQ 304, 304.
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