VIII. The crucial question: Road or sea transport rules?
Initially the Court states that the question which
“Act or Code to apply must depend on which means of transport the parties have agreed on. 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 is applicable” (section 43).
Here there is, however, no freedom to choose because of the mandatory legislation, but the stipulations in the framework agreement are not decisive, but instead “suggests a division of the assignment depending on the means of transport” (section 51). However, we are dealing
“with circumstances implying that this is not essential after all. After KN received the order from Nexans, KN issued a bill of lading (1) «Bills of lading» is misleading; the Norwegian text uses «fraktbrev», which corresponds to the CMR art. 4 term: “consignment note”. on 14 November 2014, clearly expressing that the entire carriage is ‘subject to’ the CMR Convention and the Norwegian Road Transport Act. The same was stated on the bill of lading issued by the sub-carrier Pentagon to KN three days earlier. The carriers therefore did not make arrangements for any division or special regulation of the carriage by sea as the frame agreement allowed” (section 52).
However, KN had argued that the consignment note was issued for customs purposes and that it contained errors, was not signed and was not sent to Nexans until after the damage occurred. The Court did not accept this:
“A bill of lading (2) See preceding note. functions as evidence even if it is inadequate, see sections 7 and 13 of the Road Transport Act. And in the overall assessment that I am now to make, (3) Norwegian «den helhetsvurdering som her skal skje»; a better translation – in my view – is: «the overall assessment which here has to be made”. the bills of lading will clearly indicate what KN and Pentagon – that planned, organised and completed the carriage – considered the dominant element of the assignment when the contract was entered into” (section 53).
Regarding the total assessment, the Court mentioned that the carriage by sea was the longest part of the transport in terms of distance:
“But the carriage by road was also significant, and divided into two stages. Against this background, and bearing in mind that the load was to be fastened to the same trailer during the entire journey, the fact that one means of transport was used for a longer distance than the other cannot be given much weight in the overall assessment” (section 54).
The conclusion was that the Road Carriage Act was “applicable as a starting point” (section 55).
My summing up is that the important elements in the Court’s assessment are:
a reasonable discretionary evaluation of distances on land and at sea,
what KN and Pentagon considered as dominant – sea or road carriage – at the time the contract was concluded (section 53), and
“that the load was to be fastened to the same trailer during the entire journey” (section 54).
Element (ii) has to be used with reservations: KN and Pentagon are not totally free to regulate their relationship, with consequences for the cargo owner. One cannot define as sea voyage what in the eyes of the law is road transport, with the consequence that the cargo owner is afforded less protection than under the Road Carriage Act.