MarIus

2.3 Conventions governing contracts of carriage

Looking first at the prevailing convention system regarding carriage of goods by sea, the Hague Rules 1924, and the Hague Visby Rules 1968 (HVR), these are stricto sensu not applicable to ships or vessels, but instead to bills of lading evidencing an international contract of carriage of goods, see HVR Art. X. The HVR do contain a definition of a “ship”, but the definition is as broad as possible and encompasses “any vessels used for the carriage of goods”, see HVR Art. I(d). Therefore, provided the goods are carried on an international journey on a device which is floating, technological developments in automatization, remote control, or autonomy should not affect the application of the rules. The rules will therefore continue to apply if the bill of lading is issued in a contracting state, if the goods are carried from a port in a contracting state, or if the bill of lading contains a clause paramount, see HVR Art. X. On a contractual level, it follows that if a bill of lading is e.g. a through bill of lading, also covering preor on-carriage or other contractual obligations of the carrier, the clause paramount should still be effective, if at least a part of the carriage may be seen as carried out by a “vessel used for the carriage of goods”, and the contract contains a sea-leg. Always presupposing, of course, that the parties choose to transport their goods under a bill of lading.

The Hamburg Rules 1978 apply to “contracts of carriage by sea”, see Hamburg Rules 1978 Art. 1(6) and 2(1). In this respect the rules seem technology neutral, provided the device used for transport may reasonably be described as a means by which a contract of carriage by sea may be carried out. Thus, the mandatory rules in the Hamburg Rules would still be relevant and supersede the background law as lex specialis, even if the goods are carried by means of a remotely controlled or automated/ autonomous vessel.

Looking at the transport of passengers, the Athens Convention 2002 defines a “ship” as “… only a seagoing vessel, excluding an air-cushion vehicle,” see the Athens Convention Art 1(3). However, provided the basic technology requires the vessel to sail through water, and the vessel can be seen as “seagoing”, the scope of application of the rule ought not to be challenged. The Athens Convention per se should thus be applicable, and a claimant will have to respect its rules, as long as the ship’s flag state, the place of making the contract, or the point of departure or destination of the voyage, is in a contracting state according to the Convention Art. 2.

Whereas fully remote controlled or autonomous long-distance, ocean-going carriage of goods or passengers must be assumed to be some way off, remotely controlled, or autonomous carriage by sea over shorter distances, e.g., by ro-ro vessel, or by smaller vessels operating short sea trade or inland waterways, is already being developed.(1) See e.g., https://www.ntnu.edu/autoferry (accessed 07.07.2022), or https://yle.fi/ uutiset/osasto/news/autonomous_ferry_makes_first_demonstration_voyage_in_ finland/10537448 (accessed 07.07.2022).It is therefore relevant in our context to look at certain multimodal modes of carriage of goods. It is noteworthy that both the CMR Convention 1956 (CMR)(2) Convention on the Contract for the International Carriage of Goods by Road, 1956 with protocol of 1978.Art. 2 and the COTIF CIM Convention 1999 (COTIF CIM),(3)Uniform Rules Concerning the Contract of International Carriage of Goods by Rail (CIM – Appendix B to the OTIF Convention) 1999.Art. 1, §§ 3 and 4, presuppose that in such cases, the CMR respectively the COTIF CIM takes precedence and will include any sea-leg or passage over inland waterways. As with those regulations which are mainly aimed at maritime transport, neither convention is concerned with how the vessel operating a sea-leg or a stretch over inland waterways is propelled or steered. The possibility of invoking both the road/rail regime and the Hague Rules or HVR at the same time has given rise to frequent case law over the years, due to the differing bases for liability, level of compensation due, and not least the different time bars provided for by the systems. These uncertainties persist.(4)Case law is extensive. As examples of Scandinavian cases the following may provide a starting point: U 1982.398 Danish Supreme Court, ND 1984.292 Eidsivating Court of Appeals U 1984.577 Maritime and Commercial Court of Copenhagen, ND 1992.148 Maritime and Commercial Court of Copenhagen, LB-2017-44065 Borgating Court of Appeals and HR-2019-912-A Norwegian Supreme Court.

Summing up on the conventions governing contracts of carriage of goods or passengers in general, one may conclude that as long as the device carrying the goods or passengers may reasonably be understood as a “vessel” or “ship” travelling through water, the application of the conventions should not be affected by a shift to higher levels of remote control or autonomy.