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Proposed Convention on the International Combined Transport of Goods: Implications for International Civil Aviation

Published online by Cambridge University Press:  09 March 2016

Gerald F. Fitzgerald
Gerald F. Fitzgerald*
Affiliation:
International Civil Aviation Organization, Institute of Air and Space Law, McGill University
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Extract

A significant increase in intermodal container transport led, during the period 1970–72, to intensive discussions in several international bodies concerning the proposed Convention on the International Combined Transport of Goods, known as the TCM Convention. Basically, the drafters of the convention aimed to establish a standard Combined Transport Contract (CT Document) and to provide for a new legal person called the Combined Transport operator (CTO). As the proposed convention could affect existing legal regimes that govern various modes of transporting cargo, it is not surprising that aviation interests, inter alia, carried out a searching and somewhat inconclusive examination of the implications of the proposed TCM Convention for international civil aviation.

Type
Articles
Information
Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 11 , 1974 , pp. 166 - 192
Copyright
Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1974

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References

1 The reports of the four sessions of the Joint IMCO/ECE Meeting are as follows: (i) TRANS/365 November 27, 1970 — Report of the Joint IMCO/ ECE Meeting to study the draft Convention on the Combined Transport Contract (TCM Convention) (Geneva; November 16–20, 1970); (2) CTC/ 26 TRANS/367 February 15, 1971 — Report of the Second Session of the Joint IMGO/ECE Meeting to study the draft Convention on the International Combined Transport of Goods (TCM Convention) (London, January 25–29, 1971); (3) TRANS/370 CTC/III/i July 29, 1971—Report of the Third Session of the Joint IMCO/ECE Meeting to study the draft Convention on the Combined Transport Contract (TCM Convention) (Geneva, June 28 to July 2, 1971); (4) CTC IV/18 Rev. 1, TRANS/374, January 24, 1972 — Report of the Fourth Session of the Joint IMCO/ECE Meeting to study the draft Convention on the Combined Transport Contract (TCM Convention) (London, November 15–19, 1971 ).

The Joint IMCO/ECE Meeting had 25 members, including Canada. Canadian interest in the combined transport question is evidenced by the fact that government entities represented in the Canadian delegation were: Canadian Transport Commission, Department of External Affairs, Department of Trade, Industry, and Commerce, Department of National Revenue, Customs, and Excise, and Ministry of Transport.

The Joint IMCO/ECE Meeting attracted a wide spectrum of transportation interests since carriers and insurers would be affected by the introduction of a uniform combined transport contract. Thus, at various times, 15 international organizations were present at the sessions of the meeting. Interests represented included air carriers, surface carriers of all kinds (road, rail, maritime, inland navigation), forwarding agents, and insurers.

Few articles have been written on the draft TCM Convention. One such is Loewe, R., “Le projet OMCI/CEE d’une Convention sur le transport international de marchandises (Convention TCM),” Europäisches Transportrecht, 1972, at 622 et seq.Google Scholar Dr. Loewe of Austria was Chairman of the Joint IMCO/ ECE Committee.

2 ICAO LC/SC TCM — Report 25/2/72 Subcommittee on the Proposed Convention on the International Combined Transport of Goods: Implications for International Civil Aviation (Montreal, February 14–25, 1972).

3 ICAO Doc. 9007 LC/166 9/6/72 Summary of the Work of the Legal Committee during its 19th Session (Montreal, May 22 —June 2, 1972) (hereinafter called “ICAO Doc. 9007 LC/166”).

4 E/CONF.59/39/Rev. 1 December 1, 1972 United Nations/IMCO Conference on International Container Traffic. Report of the Third Main Committee.

5 UNIDROIT had previously worked on the development of a convention on the legal aspects of combined transport, especially containerized transport. In 1969 and 1970 UNIDROIT held two Round Table meetings on the subject. See UNIDROIT Documents UDP 1969 —Et. XLII, Doc. 34 (First Session — Report) and UDP 1970 — Etudes: XLII Transport combiné — Doc. 41 (Second Session — Report). For a history of the earlier work carried out by UNIDROIT on the subject, see UNIDROIT Yearbook 1966, at 81–83 and UNIDROIT Yearbook 1967–68, at 49.

6 The International Maritime Committee (IMC) had itself drawn up a draft convention. A drafting committee which met in Gothenburg in July 1969, after the first session of the UNIDROIT Round Table, drew up a unified text that took into account both the IMC’s draft convention and that prepared by UNIDROIT. (See UNIDROIT Yearbook 1969, at 31.)

7 The full text of the draft TCM Convention is found, inter alia, in ICAO Doc. 9007 LC/166 op. cit. supra, note 3, at 45–55 and CTC IV/1 TRANS/374) supra, note 1, Annex II. Some of the key articles of the draft Convention, however, are reproduced in the Annex to the present article. Some of the descriptive material that follows is based on certain passages in ICAO LC/SC TCM Working Drafts 2 and 3 and CTC IV/18 TRANS/374.

8 The expression “concealed damages,” as used in the Report of the Nineteenth Session of the ICAO Legal Committee (see ICAO Doc. 9007 LC/166, supra, note 3), refers to damage occurring under such circumstances that the mode of transport on which it occurred could not be ascertained (this type of damage being particularly common in the case of container traffic). On the other hand, the expression “nonconcealed damage” was used in the report to refer to damage occurring in circumstances where the mode of transport could be ascertained.

9 The proposal was not considered owing to a shortage of time, but was included in the draft TCM Convention, adopted at the Fourth Session of the Joint IMCO/ECE Meeting, in the form of Articles 9A, 9A bis, 10A, and 11 A.

10 See the description of the Warsaw Convention regime below.

11 For the text of the Warsaw Convention, see Schedule One to The Carriage by Air Act, RSC 1970, c. C-14; 137 LNTS 11, No. 3145. On June 1, 1973, 100 states were parties to the Warsaw Convention.

12 For the text of the Hague Protocol, see Schedule Three to The Carriage by Air Act, RSC 1970, c. C-14; 478 UNTS 371, No. 6943; ICAO Doc. 7632. On June 1, 1973, 76 states were parties to the Hague Protocol.

13 The Warsaw/Hague system is supplemented by the Convention, Supplementary to the Warsaw Convention, for the Unification of Certain Rules Relating to International Carriage by Air Performed by a Person Other than the Contracting Carrier, signed at Guadalajara on September 18, 1961. See ICAO 8181 and 500 UNTS 31, No. 7305. On June 1, 1973, 41 states were parties to the Guadalajara Convention. Although Canada is a party to the Warsaw Convention and the Hague Protocol, it had not, by June 1, 1973, become a party to the Guadalajara Convention.

14 Warsaw Convention, Articles 17 and 20.

15 Ibid., Article 19.

16 Ibid., Article 9.

17 Ibid., Article 25.

18 Ibid., Article 20(1).

19 Ibid., Article 21.

20 Hague Protocol, Article VI (amended Warsaw Article 8).

21 Ibid., Article VII (amended Warsaw Article 9).

22 Ibid., Artide XIII (amended Warsaw Article 25).

23 Ibid., Article IX (amended Warsaw Article 15(3)).

24 Warsaw Convention, Article 18.

25 Ibid., Article 28.

26 Ibid., Article 29.

27 For a more detailed presentation of this material, see ICAO Doc. 9007 LC/166 op. cit. supra, note 3, at 20–43.

28 For the IATA Cargo Sales Agency Agreement, see IATA Res. 821.

29 For the definition of the expression “concealed damage,” see supra, note 8.

30 ICAO LC/SC TCM Report, 25/2/72, para. 18.1.

31 Ibid., para 18.2.

32 The Warsaw Convention period is two years (Article 29); the TCM Convention period is nine months (Article 15(1)).

33 ICAO LC/SC TCM Report 25/2/72, para. 18.3.

34 Idem.

35 ICAO Doc. 9007 LC/166, op. cit. supra, note 3, at paras. 19–19.2.

36 For information on the wide disparity between the value of air cargo and other forms of cargo, see Doc. 9007 LC/166, op. cit. supra note 3, at 93–102.

37 ICAO LC/SC TCM WD/1, at 95 (para. 15). In Article 1 of the Guadalajara Convention, the expression “contracting carrier” means “a person who as a principal makes an agreement for carriage governed by the Warsaw Convention with a passenger or consignor or with a person acting on behalf of the passenger or consignor.”

38 Ibid., 100 (para. 7.3); see also TRANS/370 CTC/III/1 July 29, 1971, op. cit. supra, note 1, at 78 (para. 106).

39 ICAO LC/SC TCM WD/2, at 6 (para. 18). See also CTC IV/18/Rev. 1, TRANS/374/Rev. 1 January 24, 1972, op. cit. supra, note 1, at 23–24 (para. 102–105). The differing points of view as to whether or not there was a conflict between the draft TCM Convention and other Conventions are reflected in a paper presented by the Swedish delegation (CTC/2) to the Second Session of the Joint IMCO/ECE Meeting (there was no conflict) and one presented by the Netherlands delegation (CTC IV/7) to the Fourth Session (there could be a conflict).

40 For the definition of the expression “contracting carrier,” see supra, note 37.

41 For the remainder of the proposal, see ICAO Doc. 9007 LC/166, op. cit. supra, note 3, at 117–18.

42 ICAO Doc. 9007 LC/166, op. cit. supra, note 3, at 119–21.

43 ICAO C-Min. 76/4.

44 E/CONF.59/39/Rev.1 December 1, 1972. United Nations/IMCO Conference on International Container Traffic. Report of the Third Main Committee.

45 E/CN.14/TRANS.58.

46 E/AC.6/L.460/Add.4.

47 CM/RES.278.

48 E/CN.11/TRANS/194.

49 ST/ECA/160 of May 8, 1972.

50 United Nations/IMCO Conference Res. No. 7: International Combined Transport.

51 E/RES/1734 (LIV) January 23, 1973. Recommendations of the United Nations/IMCO Conference on International Container Traffic.

52 ICAO C-Min. 78/13.

53 ICAO C-WP/5739 6/3/73.