Chapter 3: Multimodal Transport

3.5 As noted in Chapter 1, the early course of the development of combined transport documentation took the form of adaptation of through transport documents. Where carriage by sea was likely to be involved as a major stage of the transit the tendency was to adapt forms of through bill of lading commonly in use. Given the dominant position of sea carriage in many through transits consideration will be given mainly to shipping documents although some points may be relevant to through documents used where carriage by sea is not a major element. This is especially the case in respect of through documents issued by carriers by air. Consideration of through bills will be used to illustrate some of the problems for which combined transport bills provide a solution and to identify some conflicting approaches taken by the courts in respect of the application of the Hague Rules in particular which can also be related to the difficulty of applying mandatory rules in respect of combined transport bills. 3 Through bills of lading developed in pure sea transport to cover service beyond that provided by the principal carrier, especially where a feeder was required to link into an ocean carrier's main service, or to extend carriage beyond his normal port of discharge. They could quite easily be adapted to cover supplemental non-sea service. All types of through bill are considered here whether confined purely to sea transport or extending to other modes.

3.6 The fact of through carriage (whether by sea or other modes) may be known to or agreed with the customer and is commonly reflected by indications made on the document. This contrasts with where an option to tranship is granted in a standard bill of lading and exercised by the carrier in accordance with whatever discretion is granted by the option. The former anticipates a movement which is outside the carrier's normal operation, whereas the latter anticipates carriage within it but grants a liberty to get the goods to the anticipated destination by unexpected means. 4 Modern bills of lading provide a joint form with boxes on the face of the bill to indicate periods of pre-carriage or on-carriage. 5 This commonly ties in with the existence of a Substitution of Vessel clause which commonly deals both with the possibility of optional transhipment and with prearranged transhipment as with clause 6 of Conlinebill reproduced above. 6 The distinction between a through and transhipment bill therefore is a difference between contemplated and non contemplated transhipment commonly reflected on the face of the document. Unlike a combined or multimodal transport document a through bill form will indicate the contemplated points of transhipment. It may, however, be necessary to make further distinctions reflecting the extent of the liability accepted by the issuing carrier and the nature of the delivery obligations.

3.7 A through bill may involve the contracting carrier undertaking a through liability as with a modern combined or multimodal transport bill. 7 In such a case the expectation will be that the ultimate destination and the point of delivery will be the same. Further, if a bill or other document in negotiable form is issued, the expectation might be that delivery will be taken on its presentation. Where the same type of transport was involved early forms of through contracts would frequently engage the responsibility of the carrier for the whole carriage. 8 It is not completely unknown, however, even in modern combined container carriage, for a through liability to be taken on a “through bill” form, though often on terms of liability commonly adopted in combined transport bills. 9 Furthermore, in North Atlantic trades it has been common to provide that the carrier agrees to procure carriers authorised by competent authority to engage in transportation and also to guarantee fulfilment of their obligations. 10 This reflects the desire to market a combined transport service which nevertheless satisfies any regulatory requirement involving separate tariffs. 11 In recent years these regulatory requirements have undergone a process of relaxation. 12 Nevertheless, the need to accommodate them for some years has been reflected in this kind of through bill of lading. An example has been a bill of lading used by Sea-Land which was the subject of litigation in Toshiba International Corp v. M/V Sea-Land Express. 13 In this case the package limitation clause 14 in the bill was held to protect Sea-Land when the goods passed out of its custody into the hands of a rail carrier. Such bills of lading make reference to such other carriers as “participating carriers”. In Transatlantic Marine Claims Agency Inc v. M/V OOCL Inspiration 15 it was held that a carrier could not be both a participating carrier and a carrier within the definition of carrier clause in the bill of lading. This clause provided that: “‘Carrier’ shall include the party on whose behalf this Bill of Lading has been signed, the Vessel, her owner(s), operator(s), demise, time, slot and space charterers or any person or entity to the extent bound by this Bill of Lading”. A participating carrier was defined as: “any other water, land or air carrier whose services are procured by the carrier…” Both OOCL which was named in an identity of carrier clause, and Sea-Land whose ship was employed under a space charter were within the definition of carrier. Consequently Sea-Land could not also be a participating carrier. This meant that both OOCL and Sea-Land's liability for damage which occurred at sea was governed by OOCL's tariff and not that of Sea-Land...