With the increased use of multi-modal surface transport there has of recent years been a corresponding increase in the problems associated with the new techniques. Shipments to and from the continent of Europe may nowadays be carried by road, rail, sea, inland waterway and container or by any possible combination thereof. The problem is further complicated by the fact that owing to the English Channel every shipment must be carried for some portion of its transit by sea. Moreover the land haul may be by differing means of transport on each side of the Channel, or a combination of two or more means.

From a legal viewpoint the fact that there are no uniform conditions for the carriage of goods for such traffic can create problems. These are of two main categories. Firstly, it is necessary to establish under what conditions of contract or convention the goods are being carried, and secondly, which intermediaries in the transaction can be held liable thereunder. This partly results from the fact that when the Convention for the International Carriage of Goods by Road (C.M.R.) was agreed upon at Geneva in 1956, it was only intended to cover the international carriage of goods through Europe by road vehicle and it was not drafted to cover container shipments1.

As a result, it is possible for a shipment of goods to travel under C.M.R., C.I.M. (Convention for the International Carriage of Goods by Rail), or contractual trading conditions, or a combination thereof. The situation is further complicated by the fact that freight forwarders and carriers may switch from one method to another depending upon the exigencies of the moment. In addition, it may be far from clear whether an operator is in fact a carrier subject to C.M.R., or a mere forwarder who does not come within the provisions of the Convention. It is therefore instructive to consider certain cases which have recently come before the Courts on the subject.

In the case of Marston Excelsior Ltd. v. Arbuckle, Smith & Co. Ltd.2 a firm of English forwarders, the defendants, undertook to forward a 65-ton cold box from Tilbury to Austria at the request of the plaintiff manufacturers. The forwarder proposed to forward the shipment by sea to Rotterdam, thence by barge to Bamberg on the River Main, then by road on a low loader to Regensburg, and finally by barge down the Danube to the point of delivery. The shipment reached Bamberg without mishap, but there it was delayed because the local road haulier who was to move the shipment to Regensburg had failed to complete the necessary arrangements for the “abnormal indivisible load” with the respective authorities. The resultant cost to the plaintiff shipper was considerable and he therefore claimed the excess from the forwarder. The shipment which had originally been taken by road from the factory in Wolverhampton to Tilbury docks was the subject of four changes of transport en route to Vienna. Being so large it was not practical to ship it for the whole transit on one road vehicle and therefore C.M.R. did not apply, as although there were two road segments of the transit, one in England and one in Germany, the shipment had not crossed an international frontier on a road vehicle in the process. Each segment of the transit was therefore subject to different conditions of carriage with no one carrier responsible for the whole transit. The position was that the forwarder had arranged the various stages of transit from Tilbury to Vienna but had not issued any document which could be considered to have the status of a bill of lading or consignment note in respect of the whole transit. The forwarder employed a German firm called Rhenania who issued a through bill of lading to cover the shipment of the goods from Rotterdam to Vienna, with a German road haulier performing the intermediate road transit from Bamberg to Regensburg.