VI. One or several transport agreements?
When a transport is dependent upon the use of different means of transport, the result may be that the cargo owner is party to several separate contracts – one with A for the road leg, one with B for the sea leg etc. In principle, he may have all the contracts with the same person, i.e. separate contracts subject to different liability regimes. As stated by the Court:
“Which Act or Code is to apply must depend on which means of transport the parties have agreed upon. If they have entered into a contract of carriage by sea, the Maritime Code is applicable, and if they have entered into a road carriage contract, the Road Transport Act (1) In conformity with CMR, I prefer Road Carriage Act. is applicable” (section 43).
Whether there is one or separate documents is not decisive, but one document will imply that there is one contract. In our case, there were additional factors indicating one contract:
“I take as a starting point that Nexans ordered one (2) The word “one” is emphasized by the Court. carriage by a short e-mail to KN on 10 November 2014, providing information about the goods and place of delivery. Under the framework agreement between the parties, which is a natural reference in this regard, KN had a right to use sub-carriers and any “reasonable” means of transport, method and route. It was therefore KN or its sub-carrier Pentagon – not Nexans – that decided that parts of the carriage were to be performed by ship, although this decision was undoubtedly an obvious one to make” (section 49).
However, the framework agreement might indicate that KN’s liability depended upon the Maritime Code for the sea leg:
“In my opinion, this liability rule cannot in any case be decisive. As mentioned, the Road Transport Act and the Maritime Code contain invariable rules on liability, and liability is thus determined by the Act or Code I am about to choose” (section 51). (3) The translation is here, in my opinion, unfortunate: «in any case» is too definite, “nevertheless” is better; “invariable” should have been “mandatory”, and “the Act or Code I am about to choose” should have been “the choice of law I am now discussing”.