The Law of Documents of Air Carriage

Nicolai Nielsen March 2012

Contents
I II Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Formal Requirements for issuance of an airway bill . . . . . . . a) The Warsaw and Montreal formal requirements . . . . . . b) Signature . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Delivery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d) Originals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . e) Carrier and freight forwarder . . . . . . . . . . . . . . . . . f) Consequences of issuing an air waybill . . . . . . . . . . . Air waybill and bill of lading compared . . . . . . . . . . . . . . . a) Overview: bill of lading . . . . . . . . . . . . . . . . . . . . b) Documents of title . . . . . . . . . . . . . . . . . . . . . . . c) A blessing and a curse . . . . . . . . . . . . . . . . . . . . Decient Air Waybills and limitations of liability under Warsaw . a) Is Warsaw relevant after the Montreal Convention comes into eect . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Why decient air waybills are heavily litigated . . . . . . . c) Referencing Stopping places . . . . . . . . . . . . . . . . . 1. The view of the second circuit . . . . . . . . . . . 2. The view of the 9th circuit . . . . . . . . . . . . . 3. The view of the Southern District of New York . . (aa) Article 8(c) Warsaw Convention does not exclude local stops . . . . . . . . . . . . . (bb) The parties did not agree to Memphis as a stopping place . . . . . . . . . . . . . . . (cc) The parties' contract allowed the carrier to use whatever stopping places appropriate . . . . . . . . . . . . . . . . . . . . . d) number of packages etc. . . . . . . . . . . . . . . . . . . . e) Other requirements of Article 8 Warsaw Convention . . . 1 1 1 2 3 3 3 4 5 5 6 7 8 8 8 9 9 10 11 11 12

III

IV

12 13 13

Contents V Obligations of the parties in regards to air waybills . . . . . . . . a) Take back original Airway Bill in case of non-carriage . . b) Does consignee need to notify issuer of AWB or is notice to any subsequent carrier sucient . . . . . . . . . . . . . VI Multimodal Transport and Trucking . . . . . . . . . . . . . . . . a) Trucking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. German view . . . . . . . . . . . . . . . . . . . . . 2. US view . . . . . . . . . . . . . . . . . . . . . . . . b) Multimodal Transport . . . . . . . . . . . . . . . . . . . . . 1. Extending the coverage of the AWB . . . . . . . . 2. Warsaw Convention and multimodal transport . 3. Montreal Convention and multimodal transport . VII Electronic shipping documents . . . . . . . . . . . . . . . . . . . a) Problems with paper documents . . . . . . . . . . . . . . . b) Current attempts . . . . . . . . . . . . . . . . . . . . . . . . 1. The SEADOCS system . . . . . . . . . . . . . . . . 2. The CMI Rules for Electronic Bills of Lading . . . 3. The Bolero System . . . . . . . . . . . . . . . . . . 4. The GlobalTrade System . . . . . . . . . . . . . . . 5. The TradeCard System . . . . . . . . . . . . . . . c) Which types of documents can be made paperless . . . . d) Problems when introducing paperless shipping documents VIII Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

ii 14 14 14 15 15 17 17 18 19 19 21 21 21 22 22 23 23 24 24 25 25 27

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Contents

iii

List of Abbreviations
AWB CMR Air Waybill Convention on the Contract for the International Carriage of Goods by Road CTO Combined Transport Operator EDI Electronic data interchange IATA International Air Transport Association M99 Convention for the Unication of Certain Rules for International Carriage by Air - Montreal, 28 May 1999 Montreal Protocol No. 4 to amend the Convention for MP4 the Unication of Certain Rules Relating to International Carriage by Air, Signed at Warsaw on 12 October 1929 as amended by the Protocol done at the Hague on 28 September 1955 signed at Montreal on 25 September 1975 MTO Multimodal Transportation Operator Pretty Good Privacy; a data encryption and decrypPGP tion computer program that provides cryptographic privacy and authentication for data communication UCP Uniform Customs and Practices Warsaw Convention Convention for the Unication of Certain Rules Relating to International Carriage by Air, Signed at Warsaw on 12 October 1929 - Warsaw Convention 1929

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I Introduction

I Introduction
In view of globalization and the emergence of global supply chains, the role of the air freight industry has become increasingly important to the global economy. Not only is air cargo a growth leader, preceding and announcing increases in GDP1 air cargo trac is estimated to triple over the next 20 years.2 Taking into consideration the importance of air freight it seems pertinent to shed some light on the legal document accompanying each cargo shipped by plane. The Air Waybill (AWB) or air consignment note is a cargo receipt issued by an international airline. The AWB evidences the contract of carriage, however, compared to maritime bills of lading, some major dierences exist. The following analysis attempts to illustrate various aspects of air waybills, from the formal requirements for their issuance, to their role in litigation. We will compare AWBs to their maritime counterparts, the bill of lading, see how AWBs fare as multimodal transport documents, and venture into the eld of electronic shipping documents. The hope is to achieve a better understanding of the current legal status including an idea how their role might change in the future.

II Formal Requirements for issuance of an airway bill

a) The Warsaw and Montreal formal requirements
In its Article 8 the Warsaw Convention lists 17 pieces of information that the "air consignment note shall contain". Ten of these are considered so important that the carrier loses the limitation of liability if one is missing.3
1

2 3

John D. Kasarda and David L. Sullivan, `Air Cargo, Liberalization, and Economic Development', Annals of Air and Space Law, XXXI [2006] URL: http://www.aerotropolis.com/ files/2005_07_AASL.pdf -- visited on 03/12/2012, pp. II A. Tom Crabtree et al., World Air Cargo Forecast 2010-2011, 2010 URL: http://www.boeing. com/commercial/cargo/wacf.pdf -- visited on 03/03/2012, p. 2. Article 9 Warsaw Convention provides that the following requirements of Article 8 need to be listed in the AWB if the carrier wants to avail himself of the limitation of liability. (a) the place and date of its execution; (b) the place of departure and of destination; (c) the agreed stopping places, provided that the carrier may reserve the right to alter the stopping places in case of necessity, and that if he exercises that right the alteration shall not have the eect of depriving the carriage of its international character; (d) the name and address of the consignor; (e) the name and address of the rst carrier; (f) the name and address of the consignee, if the case so requires; (g) the nature of the goods; (h) the number of the

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II Formal Requirements for issuance of an airway bill

Since plaintis seek to pierce the limitation of liability, the presence of these elements in AWB has been heavily litigated.4 The Montreal Convention changed this regimen in two regards: 1. The list of seventeen requirements was reduced to three;5 2. The existence and the particulars of the documentation are separated from the liability provisions.6

b) Signature
The Warsaw Convention required that the "signature of the carrier may be stamped; that of the consignor may be printed or stamped",7 M99 followed this provision.8 The UCP provides in this regard that "a document may be signed by handwriting, by facsimile signature, by perforated signature, by stamp, by symbol, or by any other mechanical or electronic method of authentication."9 Whereas the UCP 500 allowed that the air waybill be "signed or otherwise authenticated"10 , the UCP 600 now require a signature, emphasizing that the signature need to indicate whether the signatory signed as carrier or agent. The provision that AWB may be otherwise authenticated under the UCP 500 let the ICC banking commission to conclude, that banks could accept AWB that were not signed.11 With the changed wording, this seems no longer to be true.
packages, the method of packing and the particular marks or numbers upon them; (i) the weight, the quantity and the volume or dimensions of the goods;(q) a statement that the carriage is subject to the rules relating to liability established by this Convention. This topic will be discussed in greater detail on page 8 Article 5 M99 provides in regards to the Contents of air waybill or cargo receipt:" The air waybill or the cargo receipt shall include: (a) an indication of the places of departure and destination; (b) if the places of departure and destination are within the territory of a single State Party, one or more agreed stopping places being within the territory of another State, an indication of at least one such stopping place; and (c) an indication of the weight of the consignment. Article 9 M99:"Non-compliance with the provisions of Articles 4 to 8 shall not aect the existence or the validity of the contract of carriage, which shall, nonetheless, be subject to the rules of this Convention including those relating to limitation of liability." see Article 6 (4) Article 7 (3) M99: "The signature of the carrier and that of the consignor may be printed or stamped." Article 20 B UCP 500, also Article 3 UCP 600 Article 27 A i. Ron Katz, ICC Banking Commission collected opinions 1995-2001 on UCP 500, UCP 400, URC 522 [and] & URDG 458: Queries and responses, Reprint. edition. (Paris: ICC Internat. Chamber of Commerce, 2006), ISBN 9284212979, p. R463.

4 5

7 8 9 10 11

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II Formal Requirements for issuance of an airway bill

c) Delivery
The Warsaw Convention12 require that the air waybill be handed over with the goods and a copy of the waybill accompany the goods. Montreal Protocol No. 4 amended this requirement insofar as the air waybill may be issued after the carriage has begun.13 Since the wording of MP4 ARticle 5 paragraph 1 and M99 Article 4 paragraph 1 are identical14 it can be assumed that a carrier which is subject to M99 equally may commence cargo shipments prior to the waybill's completion. The poorly phrased obligation that the air waybill "shall be delivered" leaves open for interpretation who should deliver to whom. The mystery is mitigated by M99 Article 7 which requires the consignor to make out the document in three originals, one original "for the carrier", the second original "for the consignee" and the third one for the consignor.

d) Originals
As the court in Integrated Measurement Sys. v. Intern. Com. Bank 15 held, specifying that transport documents must be written or typed or printed in any particular ink or that handwritten notations be accompanied by correction stamps is not necessary.16

e) Carrier and freight forwarder

An airway bill is a carrier type document, whereas the House airway bill is a document issued by a freight forwarder. In an airway bill, the issuer promises to perform the carriage of goods. It is not necessary, that the issuer owns the means of transportation (e.g. ship, plane, truck), however, the issuer is obligated to perform the carriage either itself or by employing persons for whom the principal is vicariously liable.

12 13

14 15 16

and The Hague Protocol L. Dean Warren, `Aviation Liability Regimes in the New Millennium: Beyond the Wild Blue Yonder Air Carrier Liability For International Air Cargo Shipments In The 21st Century', Transportation Law Journal, [2001], No. 28, p. 244. "In respect to the carriage of cargo an air waybill shall be delivered." Integrated Measurement Sys. v. Intern. Com. Bank, 757 F. Supp. 938 Dist. Court, ND Illinois (1991) Id. at 944

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II Formal Requirements for issuance of an airway bill

The distinction to the obligation of a freight forwarder is that a freight forwarder does not promise to perform the carriage, rather, as Title 49 Part B of the U.S. Code denes: a freight forwarder is dened as a company or individual that provides transportation of cargo belonging to others, and in the course of its business: (A) assembles and consolidates, or provides for assembling and consolidating, shipments and performs or provides for break-bulk and distribution operations of the shipments; (B) assumes responsibility for the transportation from the place of receipt to the place of destination; and (C) uses for any part of the transportation a carrier It follows that the freight forwarder assumes responsibility for the transportation and assembles the loads but often does not conduct the actual transportation. The distinction is highly relevant, since banks will not accept airway bills of lading issued by freight forwarders when acting as freight forwarders. The caveat implies that a freight forwarder can elect to act as a carrier; when acting as a carrier any shipping document issued will be accepted by banks under a letter of credit.17 This results from the language of Articles 19 - 24 UCP 600 which consistently calls for carrier issued documents.18

f) Consequences of issuing an air waybill

The main consequence for the carrier is the limitation of liability according to Article 22 of the Warsaw regime and Article 22 of the Montreal Convention .

17

18

Article 30 UCP 500 provided in this regard:"Unless otherwise authorized in the Credit, banks will only accept a transport document issued by a freight forwarder if it appears on its face to indicate: i. the name of the freight forwarder as a carrier or multimodal transport operator and to have been signed or otherwise authenticated by the freight forwarder as carrier or multimodal transport operator, or ii. the name of the carrier or multimodal transport operator and to have been signed or otherwise authenticated by the freight forwarder as a named agent for or on behalf of the carrier or multimodal transport operator." Article 14 l UCP 600 is supposed to clarify this fact as well; however the wording is slightly ambiguous. See also in this regard Nielsen, p. 94

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III Air waybill and bill of lading compared

Failure to issue an airway bill will make the carrier liable without limitation.19 Even when the consignee does not accept the goods and has them returned to the consignor a carrier needs to issue a new AWB if it wants to avail himself of the limitation of liability.20

III Air waybill and bill of lading compared

To properly understand the air waybill, the comparison with a bill of lading is most enlightening.

a) Overview: bill of lading

The bill of lading is "a document acknowledging the receipt of goods by a carrier or by the shipper's agent and the contract for the transportation of those goods; a document that indicates the receipt of goods for shipment and that is issued by a person engaged in the business of transporting or forwarding goods. UCC 1-201(6). - A negotiable bill of lading is a document of title."21 Typically, the three functions of the bill of lading are summarized as follows:22 1. A contract of areightment 2. Evidence of areightment 3. Evidence of title. Since the air waybill also fullls functions 1 and 2, we will focus on the dierence between the two shipping documents, i.e. the nature of a document of title.
19 20 21 22

See Nippon Fire & MARINE Ins. v. Skyway Freight Systems, Inc., 45 F. Supp. 2d 288 Dist. Court, SD New York (1999) See Fujitsu Ltd. v. Federal Express Corp., 76 F. Supp. 2d 474, 475 Dist. Court, SD New York (1999) Bryan A. Garner and Henry Campbell Black, Black's law dictionary, 9th edition. (St. Paul and MN: West, 2009), ISBN 978--0--314--19949--2, p. 188. Susan Beecher, `Can the Electronic Bill of Lading Go Paperless', The International Lawyer, 40 [2006], p. 628.

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III Air waybill and bill of lading compared

b) Documents of title
As Black's law dictionary point out, a negotiable bill of lading is a document of title. A nonnegotiable bill is one stating that the goods are consigned to a specied person but not to the person's order.23 Negotiability is hence at the heart of a document of title. Bills of lading can be negotiated in two ways: 1. a bearer bill ("consign to bearer") can be negotiated by mere delivery24 2. an order bill (consign to the order of XYZ Co.") can be negotiated by indorsement. The carrier is obligated to deliver the goods to the bearer of a bearer bill of lading or to the lawful holder of an order bill. On the other side, the consignee or assign can normally not receive the goods unless he delivers the bill of lading.25

23 24 25

See UCC 7-104 See UCC 7-501(1), (2)(a) The exception to this rule is that carriers will deliver the cargo if the consignee delivers a letter of indemnity issued by the consignee's bank.

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III Air waybill and bill of lading compared

c) A blessing and a curse

The holder of a bill of lading can at all times demand release or delivery of the goods. Regarding bills of lading M99 provides in its Article 12: ... the consignor has the right to dispose of the cargo by withdrawing it at the airport of departure or destination, or by stopping it in the course of the journey on any landing, or by calling for it to be delivered at the place of destination or in the course of the journey to a person other than the consignee originally designated, or by requiring it to be returned to the airport of departure. Financial institutions generally prefer documents of title as collateral. Documents of title enable the creditor to control the goods, dispose of them upon default, and use the proceeds of the sale to repay the loan.26 A waybill does not possess these characteristics, on the other hand, the consignee of a waybill will receive the cargo faster and is unlikely to incur demurrage fees since presentation of the shipping documents is not a prerequisite for receipt of the goods. A further benet of documents of title is the protection of holders in due course. Typically to enjoy this type of benet the transferee must take the instrument for value, in good faith and without notice of defenses that might be available to the obligor. Dempsey27 points out that according to Article 15 M99 the parties are allowed to agree to make the air waybill negotiable unless prohibited by domestic law. Obviously, the parties can emulate certain statutory constructs through contractual stipulations. However, these attempts can only be incomplete as contracts have to comply with general requirements of the law.28 The reason that air waybills are not documents of title is that the goods are in transit for short periods of time. In maritime shipping consignees will sell the goods that are still ocean-bound; this is not necessary for air transportation.
26 27

28

Marek Dubovec, `The problems and possibilities for using electronic bills of lading as collateral', Arizona Journal of International & Comparative Law, 23 [2006], No. 2, p. 459. Paul Stephen Dempsey and Michael Milde, International air carrier liability: The Montreal Convention of 1999, (Montreal: McGill University Centre for Research in Air & Space Law, 2005), ISBN 0--7717--0636--7, p. 117. The German law on trade terms, now incorporated in the Civil Code as part of the law of obligation, e.g. renders most limitations of liability void.

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IV Decient Air Waybills and limitations of liability under Warsaw

IV Decient Air Waybills and limitations of liability under Warsaw

a) Is Warsaw relevant after the Montreal Convention comes into eect
The United States has ratied the Warsaw Convention, the Hague Protocol, MP4 and the Montreal Convention. In order to determine which of these to apply in US litigation, Dempsey suggests to determine the Protocol of Convention the nations of origin and destination have ratied and apply the treaty regime common to both.2930 In case both Warsaw and Montreal were signed, Montreal prevails. In case the parties did not sign either of the conventions, international private law will designate the applicable substantive law.

b) Why decient air waybills are heavily litigated

Claiming a deciency in the air waybill is a method of avoiding the limitations of the Warsaw regime. This attempt however is fruitless under Montreal since the requirements for issuance have been considerably lowered.31 Failure to meet the requirements for issuance of AWB under the Warsaw regime does not render Warsaw inapplicable, rather, the carrier no longer enjoys the limitation of liability.32 Courts have been reluctant to accept limitations of liability and hence interpret the requirement strictly, concluding that "the omission of any required item from the air waybill . . .will result in the loss of limited liability regardless of the commercial signicance of the omission."33 34
29 30

31 32 33 34

Dempsey and Milde (as in n. 27), p. 81. Patricia Matczak, Rechtsgrundlagen und Haftung in internationalen Supply Chains, URL: 2009 http://bibliothek.fh-burgenland.at/fileadmin/Download/bibliothek/ diplomarbeiten/AC07728778.pdf -- visited on November 5, 2011, p. 45. Paul Stephen Dempsey, `International Air Cargo & Baggage Liability and the Tower of Babel', George Washington International Law Review, [2004], No. 36, p. 278. Ibid. Id. at 429 In previous decisions the courts had accepted omissions as long as "the particulars missing from the rst waybill the method of packing and the numerical markings were technical and insubstantial omissions that did not prejudice the shipper and were of little commercial signicance". see Exim Industries v. Pan American World Airways, Inc., 754 F. 2d 106, 108 Court of Appeals, 2nd Circuit (1985)

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IV Decient Air Waybills and limitations of liability under Warsaw

The plainti may bring suit in one of four places within the territories of States which have ratied the Convention: the carrier's domicile, which is the State under whose laws it was incorporated; the carrier's principal place of business; where the contract was made, that is, where the air waybill or ticket was issued; or the place of destination, which is the ultimate destination as stated in the air waybill or ticket

c) Referencing Stopping places

Article 8 (c) of the Warsaw Convention requires that the airway bill list the agreed stopping places, provided that the carrier may reserve the right to alter the stopping places in case of necessity, and that if he exercises that right the alteration shall not have the eect of depriving the carriage of its international character; The rst question this Article raises is in how far the carrier may reference information to be found outside the waybill. 1. The view of the second circuit In Brink the second circuit posed the question as follows: ... we must determine whether an air waybill that incorporates essential particulars by reference to documents outside the waybill and to statements within the waybill satises Articles 8 and 9.35 On the back of the waybill the carrier had included a statement that the agreed stopping places were those shown in the carrier's timetables. The court concluded that this was sucient "to notify the shipper of the agreed stopping places".36
35 36

Brink's Ltd. v. South African Airways, 93 F. 3d 1022, 1033 Court of Appeals, 2nd Circuit (1996) Id. at 1035

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IV Decient Air Waybills and limitations of liability under Warsaw

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The same year the second court elaborated on this position.37 In the case at bar the carrier had similarly to38 referenced its timetable on the back of the air waybill; however, on the front the carrier had noted an incorrect ight number. Due to this inaccuracy the shipper could not ascertain the stopping places. The court hence found that the carrier could not avail himself of the limitation of liability.39 In Intercargo Ins. Co. v. China Airlines, Ltd.40 the second circuit built onBrink andTai, conrmed that if carrier "chooses . . . to incorporate the agreed stopping places by reference to its timetables . . . then [the carrier] bears the risk that the incorporation will fail." In this case the incorporation failed because it failed to list all stopping places. The air waybill designated Los Angeles and Hong Kong as the places of departure and destination, however failed to disclose that the cargo was carried from Taipei to Hong Kong on a ight not noted on the air waybill.4142 The court43 further emphasizes that the purpose of the Article 8 (c) requirement is not to notify the shipper of the international character of the carriage. 2. The view of the 9th circuit In Insurance Co. of North America v. Federal Express44 the carrier disclaimed any agreement as to specic stopping places for the shipment. In its air waybill it stipulated You agree that this shipment may be carried via intermediate stopping places that we deem appropriate.45 Furthermore, "FedEx Service Guide", which was incorporated by reference into the air waybill reserves the carrier's right to route its shipments as it sees t.
37 38 39 40 41 42 43 44 45

Tai Ping Insurance Co., Ltd. v. Northwest Airlines, Inc., 94 F. 3d 29 Court of Appeals, 2nd Circuit (1996) Brink, 93 F. 3d 1022. Tai, 94 F. 3d at 34 Intercargo Ins. Co. v. China Airlines, Ltd., 208 F. 3d 64 Court of Appeals, 2nd Circuit (2000) Id. at 69 Dempsey and Milde (as in n. 27), p. 103. Id Insurance Co. of North America v. Federal Express, 189 F. 3d 914 Court of Appeals, 9th Circuit (1999) Id. at 917

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IV Decient Air Waybills and limitations of liability under Warsaw

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When the cargo disappeared in Memphis the court found that Memphis was not an agreed upon stopping place since the air waybill made it "perfectly clear" that there were no agreed stopping places. Federal Express explicitly reserved the right to route the shipment as it saw t. Accordingly, Federal Express was under no obligation to disclose the intermediate stop in Memphis.46 3. The view of the Southern District of New York In Sotheby's v. Federal Exp. Corp.47 Federal Express had issued an air waybill which provided that valuable paintings were to be own on FedEx Flight 005 from London, England to Newark, New Jersey. Once the cargo arrived in Newark, Federal Express rerouted it to Memphis since it did not have sucient sta in Newark over the weekend. While in Memphis, one of the paintings was damaged by a forklift before it was returned to its destination in Newark. The situation here is similar to the Insurance case as the shipper did not know that the cargo would be taken to Memphis. The court however carefully rejected the carrier's three arguments" 1. Article 8(c) Warsaw Convention does not exclude local stops 2. The parties did not agree to Memphis as a stopping place 3. The parties' contract allowed the carrier to use whatever stopping places appropriate. (aa) Article 8(c) Warsaw Convention does not exclude local stops The court rejected the argument that Article 8 (c) was only intended to notify the shipper of the international character of the carriage referencing in its decisionTai, Intercargo as well as Tai2.48 A carrier hence does not comply with Article 8(c) by simply listing one of several international stops.

46 47 48

Id. at 919 Sotheby's v. Federal Exp. Corp., 97 F. Supp. 2d 491 Dist. Court, SD New York (2000) Id. at 497

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IV Decient Air Waybills and limitations of liability under Warsaw

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(bb) The parties did not agree to Memphis as a stopping place The court interprets the word "agree" in the context of Article 8 (c) to mean "notify". Referencing Intercargo Article 8 (c) was held to be a "notice provision". The court concluded that it did not make sense that the parties actually have to agree on stopping places.49 The court further elaborates that "a carrier could unilaterally decide to send cargo anywhere in the world but because the shipper had not "agreed" that these places were stopping places, the carrier would not be required to list them on the air waybill."50 Also, the Warsaw Convention allows the carrier to reserve the right to alter the stopping places in case of necessity. This provision would be superuous if the carrier needed not notify the shipper of all stopping places.51 (cc) The parties contract allowed the carrier to use whatever stopping places appropriate The court refused to allow the incorporation by reference of the carrier's Service Guide since the waybill only listed "applicable taris, rules, conditions of carriage, regulations and timetables".52 Next, the court found that "Memphis" was not an "intermediate" stop on the planned route between London and Newark and supported this view by the argument that allowing the carrier to thus reduce its liability would violate Article 23 of the Warsaw Convention: Any provision tending to relieve the carrier of liability or to x a lower limit than that which is laid down in this convention shall be null and void, but the nullity of any such provision shall not involve the nullity of the whole contract, which shall remain subject to the provisions of this convention.53
49

50 51

52 53

This is a rather weak argument and seems to be fallacious. Equally the court could have held that the parties need to agree on the stopping places and once they agreed a notication is superuous. The unsubstantiated claim that Article 8 (c) is a notice provision is not an argument but leads to a vicious circle where the premise is used to prove the conclusion. Id. at 498 Again this argument is not very convincing since the permission to deviate from the stopping places listed in the air waybill might simply be a conrmation of an understanding imminent in the preceding language. An indication of such a mercantile practice would be Article 20 d UCP 600:"Clauses in a bill of lading stating that the carrier reserves the right to transship will be disregarded." Id. at 500 Again a rather disappointing argument. The court's interpretation of Article 23 fails to

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IV Decient Air Waybills and limitations of liability under Warsaw

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Finally the court considered the mention of a specic ight number in an air waybill as a contrary instructions which would not allow the carrier to use other stopping places.54

d) number of packages etc.

Article 8 requires that the air waybill contain: (h) the number of the packages, the method of packing and the particular marks or numbers upon them; (i) the weight, the quantity and the volume or dimensions of the goods; If the air waybill omits this information and this information is commercially signicant, then the carrier will lose the limitation of liability.55 In Exim Industries v. Pan American World Airways, Inc.56 conrmed this view and found that if a freight rate is based on weight, "gures showing the volume and dimension of each carton and the quantity of blouses contained therein would be of no practical signicance with respect to either the identity of the shipment or the rate to be charged."57 The carrier who failed to include these details could nevertheless avail himself of the limitation of liability under Warsaw.

e) Other requirements of Article 8 Warsaw Convention

If an air carrier omits any other essential particular from its air waybill, Article 9 deprives the air carrier of limited liability protection regardless of commercial signicance. Third, if an air waybill includes an essential particular, but deviates in language or some other respect, the question of whether or not Article 9 deprives
take into account that in other areas, the courts accept not only limitations of liability but exclusions of liability, as e.g. in the case of emotional suerings where the plainti would have no recourse at all, see, e.g., El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 US 155 Supreme Court (1999) This view seems to exceed the parties expressed intention. An air carrier notifying the shipper of the ight number is certainly under the impression that he might use a later or alternate ight if the originally intended ight is rescheduled, overbooked or available for other reasons. Brink, 93 F. 3d at 1034 Exim Industries v. Pan American World Airways, Inc., 754 F. 2d 106 Court of Appeals, 2nd Circuit (1985) Id. at 108

54

55 56 57

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V Obligations of the parties in regards to air waybills

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the air carrier of limited liability may be determined with the assistance of traditional methods of interpretation.

V Obligations of the parties in regards to air waybills

a) Take back original Airway Bill in case of non-carriage
In Philip A. Feinberg, Inc. v. Varig58 the New York Supreme court found that a carrier has to request the shipper to return a previously issued AWB when the carrier does not perform the carriage of goods. In the Feinberg fact pattern, the consignor had used the AWB to obtain payment under a letter of credit, even though the goods were returned to the consignor due to its failure to obtain an export license. The Court found the carrier liable since it failed to obtain the originals of the airway bill. The obligation to take back an AWB does not only extend to the three originals. As the Florida District Court of Appeals nds in Cooper's Finer Foods, Inc. v. Pan Am. World Airways, Inc.59 , this obligation comprises also to request the return of all copies.60 In both cases however, the courts are aware of that the carrier knew of the documentary conditions of a letter of credit and that the carriers hence were alerted to an increased risk of fraud. It remains to be seen, whether the requirement to take back originals and copies of airway bills will equally apply, when the carrier is unaware of a letter of credit and could not have known of its existence.

b) Does consignee need to notify issuer of AWB or is notice to any subsequent carrier sucient
In Maschinenfabrik Kern, AG v. Northwest Airlines61 the carrier tried to defend itself from liability by claiming, the consignee had only notied the last in a
58 59 60 61

Philip A. Feinberg, Inc. v. Varig, 80 Misc. 2d 305 NY: Supreme Court (1974) Cooper's Finer Foods, Inc. v. Pan Am. World Airways, Inc., 178 So. 2d 62 Fla: Dist. Court of Appeals, 3rd Dist. (1965) Id. at 63 mentions copy No. 9 of originally 9 copies issued. Maschinenfabrik Kern, AG v. Northwest Airlines, 562 F. Supp. 232 Dist. Court, ND Illinois (1983)

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VI Multimodal Transport and Trucking

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chain of carriers, but not the issuer of the bill of lading and hence had missed the 7 day notication period under Article 26(2) of the Warsaw convention. The court relied on two arguments: Firstly, Article 1(3) of the Warsaw Convention provides that transportation to be performed by several successive carriers shall be deemed to be one undivided transportation, if the parties regard it as a single operation. Secondly, Article 30(3) of the Warsaw Convention provides that successive carriers shall be jointly and severally liable for damage sustained to goods during transportation. Since the carriers have exclusive control over the cargo and the injured party would be hard-pressed to identify the precise carrier which caused the damage, "the injured party may sue all of the carriers involved with a single transportation of goods." 62 Both articles read together imply that notice to "the carrier" as required by Article 26, may be achieved by notifying any carrier in the chain of carriage. This result however should only be applicable in case of "unitary" transportation. Unitary transportation according to63 exists when there are no long break in the cargo's journey, beyond the time required to o-load the machines from one carrier and onto the next. Also, the court in Motorola, Inc. v. MSAS Cargo Intern., Inc.64 interprets that no separate contracts exist. This requirement seems surprising since a single contract between shipper freight forwarder or several carriers is a rare exception.

VI Multimodal Transport and Trucking

a) Trucking
IATA resolution 507b labeled "Use of Surface Transportation" permits a carrier to "route a consignment via surface means over the rst and/or last sector(s) of the route as shown on the face of the Air Waybill. "65 A consignor, airway bill in hand, hence will see his consignment disappear on the back of a truck instead of the belly of a plane in case the carrier lacks available cargo space or the size, weight or nature of the consignment is such

62 63 64 65

Id. at 236 Id. Motorola, Inc. v. MSAS Cargo Intern., Inc., 42 F. Supp. 2d 952 Dist. Court, ND California (1998) Article 1 a) and b)

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VI Multimodal Transport and Trucking

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that it cannot be accommodated on the type of aircraft operated by such carrier 66 Contrary to IATA "recommended practices" IATA resolutions are binding on IATA members.67 Being binding on members does not mean they become part of the contract between the carrier and the consignor. To be binding on the consignor, the IATA resolutions need to be incorporated by reference into the contract of carriage. IATA resolution 507 b should not be mistaken for Article 6.3.2 of the IATA recommended "Conditions of Carriage for Cargo" which provide: Carrier may without notice substitute alternative carriers or other means of carriage. since Article 1.5 of the IATA Conditions for Cargo provide: Carriage which is equivalent to the term "transportation" means carriage of cargo by air, whether gratuitously or for reward. Typically, IATA resolution 507 b is incorporated into the contracts of air carriage by IATA Resolution 600 b Air Waybill Conditions of Contract which stipulates in its Article 9: Where permitted by applicable laws, taris and government regulations, Carrier may use alternative carriers, aircraft or modes of transport without notice but with due regard to the interests of the shipper. Despite the widespread use of trucking, in letter of credit transactions trucking might be harmful to the interests of the shipper who is a beneciary. Some authors advocate that banks reject air waybills which evidence that the carriage between the airport of departure and the airport of destination was performed by truck.68

66 67

68

IATA resolution 507 b permits carriers outside the ECAA any or no reason if they want to engage in trucking, carriers operating in the ECAA need very broadly phrased reasons. Jan Brinkmann, Der Luftfrachtersatzverkehr: Die Haftung beim Trucking nach dem Montrealer bereinkommen, (Berlin and Mnster: Lit, 2009), ISBN 978--3--643--10094--8, p. 94. Jens Nielsen, Richtlinien fr Dokumentenakkreditive: [mit ERA 600 und allen fr die Praxis wichtigen Richtlinien], 3rd edition. (Mnchen: Beck, 2008), ISBN 9783406581069, p. 126.

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VI Multimodal Transport and Trucking 1. German view

17

Under German law the carrier might not be able to avail himself of the limitation of liability provided for under the Warsaw Convention. If it is clear that the damage occurred during trucking then the Warsaw Convention does not apply.69 In case the trucking was international (e.g. from Amsterdam to Hamburg), the CMR would apply, otherwise national law will dictate the outcome.70 Article 18 (3) of the Warsaw Convention provides in this regard: The period of the carriage by air does not extend to any carriage by land, by sea or by river performed outside an aerodrome. If, however, such a carriage takes place in the performance of a contract for carriage by air, for the purpose of loading, delivery or transshipment, any damage is presumed, subject to proof to the contrary, to have been the result of an event which took place during the carriage by air. The rst sentence clearly supports the position of the German law. The second sentence however seems to contradict the rst. I believe that the resolution of the contradiction lies in the following. Trucking is dierent from "loading, delivery or transshipment", since these activities support the air carriage, whereas trucking is a substitute for air carriage. This interpretation would result in the application of Article 18 (3) sentence 1 of the Warsaw Convention to trucking, whereas sentence 2 deals with a dierent fact pattern. The legal qualication under the Montreal Convention does not change this view.71 2. US view US law seems to indicate that in the case of trucking the Warsaw Convention is still applicable. In BRI Coverage Corp. v. Air Canada 72 the court applied the Warsaw Convention "as a matter of contract because the air waybill incorporates the Warsaw Convention by reference".73 The tendency of US courts
69 70 71 72 73

Brinkmann (as in n. 67), p. 115. Ibid., p. 116. Ibid. BRI Coverage Corp. v. Air Canada, 725 F. Supp. 133 Dist. Court, ED New York (1989) Id. at 135

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VI Multimodal Transport and Trucking

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to apply the Warsaw Convention to trucking can also be seen in Commercial Union Ins. v. Alitalia Airlines74 . In regards to the applicability of the Montreal Convention of 1999, Dempsey opines that a substituted motor carrier movement falls under the convention.75 175

b) Multimodal Transport
Multimodal transport is the shipping of cargo using at least two dierent modes of transport.76 . The party obliged to perform the multimodal carriage is referred to as the combined transport operator ("CTO") or Multimodal Transportation Operator("MTO"). Conceptually in multimodal transport operations two liability regimes are imaginable: 1. a multimodal systems approach 2. a network systems approach77 Under the multimodal systems approach, the combined transport operator is liable as follows: If the loss, damage or delay is obvious and can be attributed, then the carrier for that segment is liable in accordance with the applicable treaty. If the loss loss, damage or delay either is concealed or cannot be attributed to a particular segment, the CTO is liable for a xed amount per weight of the cargo.78 Under the network systems approach, the MTO is liable as follows:

74 75 76 77

78

Commercial Union Ins. v. Alitalia Airlines, 347 F. 3d 448 Court of Appeals, 2nd Circuit (2003) Dempsey and Milde (as in n. 27). See e.g. Article 19 a UCP 600 for this denition Stephen G. Wood, `Multimodal Transportation: An American Perspective on Carrier Liability and Bill of Lading Issues', The American Journal of Comparative Law, 1998 [1998], No. 46, p. 34. The ICC Uniform Rules for a combined transport document (ICC publication no 298) uses the term CTO, and limited the liability to 30 French Francs per kilogram of gross weight of the cargo. ibid., p. 405

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VI Multimodal Transport and Trucking

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If the loss, damage or delay is obvious and cannot be attributed, then the carrier the carrier is liable according to a xed amount per weight of the cargo.79 If the loss, damage or delay occurred during an identiable segment of transportation where another international treaty, convention, or law xes a greater liability, the CTO is liable according to the higher . Among shipping documents, documents of title play a special role. The question may arise whether a document issued under a multimodal transport can qualify as a document of title.80 As interesting as this question is, it has little bearing on air carriage, since the air waybill would only be converted into a document of title once it promises a carriage by sea. Relevant however is the question under which circumstances the MTO would be able to avail himself of the limitation of liability of the Warsaw or M99 regime. 1. Extending the coverage of the AWB Article 31 (1) Warsaw Convention limits the applicability regarding multimodal transportation as follows: In the case of combined carriage performed partly by air and partly by any other mode of carriage, the provisions of this Convention apply only to the carriage by air, provided that the carriage by air falls within the terms of Article 1. 2. Warsaw Convention and multimodal transport Nevertheless, where an air carrier issues an AWB and for purposes of loading, delivery, or transshipment uses surface carriage, the Warsaw convention is still applicable.8182
79

80 81 82

The United Nations' Convention on International Multimodal Transport of Goods an example of the multimodal systems approach. The Convention xes the liability at 920 units of account per package or other shipping unit or 2.75 units of account per kilogram, whichever is higher. ibid., id. Nielsen, p. 109 Dempsey and Milde (as in n. 27), p. 169. This view is supported by Article 18 (3) of the Warsaw Convention: "If, however, such transportation [by land, sea, or river] takes place in the performance of a contract for

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VI Multimodal Transport and Trucking

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Furthermore, in multimodal transportation the parties can agree to apply the Warsaw Convention to through movements.83 In BRI Coverage Corp. v. Air Canada 84 the carrier had stored the cargo in a warehouse and trucked it to the airport. The court applied the Warsaw Convention, claiming the air waybill had incorporated the Convention by reference. This view however is not unanimous. In Read-Rite Corp. v. Burlington Air Express, Ltd.85 the court refused to apply the Warsaw Convention when the carrier had deceitfully used trucks and ships to move the cargo; the cargo was destroyed outside the airport while on truck.86 In general US and even Australian courts seem to be confused as to the applicability of the Warsaw convention when the cargo is not in the air.87 171 In particular the relationship of Article 18 sentence 1 and 2 Warsaw Convention is unclear which leads to divergent decisions. The divergence turns around the question, whether an air carrier will be subject to the Warsaw Convention when trucking cargo from or to the airport. The text of Article 18 (2) Warsaw Convention indicates that this is the case, however, US courts have read Article 18 (1) in isolation with the consequence that they will only apply the Warsaw Convention for cargo damaged when on the plane.

83

84 85 86

87

transportation by air, for the purpose of loading, delivery or transshipment, any damage is presumed, subject to proof to the contrary, to have been the result of an event which took place during the transportation by air." Article 31 (2) thus:"Nothing in this Convention shall prevent the parties in the case of combined carriage from inserting in the document of air carriage conditions relating to other modes of carriage, provided that the provisions of this Convention are observed as regards the carriage by air." BRI Coverage Corp. v. Air Canada, 725 F. Supp. 133 Dist. Court, ED New York (1989) Read-Rite Corp. v. Burlington Air Express, Ltd., 186 F. 3d 1190 Court of Appeals, 9th Circuit (1999) The court based its decision not to apply Warsaw on Article 18:" (1) The carrier shall be liable for damage sustained in the event of the destruction or loss of, or damage to, any checked baggage or any goods, if the occurrence which caused the damage so sustained took place during the transportation by air. (2) The transportation by air within the meaning of the preceding paragraph shall comprise the period during which the baggage or goods are in charge of the carrier, whether in an airport or on board an aircraft, or, in the case of a landing outside an airport, in any place whatsoever." Dempsey and Milde (as in n. 27).

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VII Electronic shipping documents 3. Montreal Convention and multimodal transport

21

M99 modies the Warsaw regime in regards to the liability of the air carrier in multimodal transportation.88 The89 case would have been decided dierently under M99, since the "carrier, without the consent of the consignor, substitutes carriage by another mode of transport for the whole or part of a carriage intended by the agreement between the parties to be carriage by air".90 As Dempsey91 171 reports the general view in regards to the reach of M99 seems to be that the carrier remains liable as long as the goods are in his control. This extends in particular to situations where the cargo is in the customs warehouse or o the airport.

VII Electronic shipping documents

Shipping documents have been available for centuries. One of the hotly discussed topics is how to replace paper documents with electronic means.

a) Problems with paper documents

The most obvious problem with paper document is their physical embodiment which requires all parties involved to physically transport it instead of sending
88

89 90 91

Article 18 M99 provides:"1. The carrier is liable for damage sustained in the event of the destruction or loss of or damage to, cargo upon condition only that the event which caused the damage so sustained took place during the carriage by air. 2. However, the carrier is not liable if and to the extent it proves that the destruction, or loss of, or damage to, the cargo resulted from one or more of the following: (a) inherent defect, quality or vice of that cargo; (b) defective packing of that cargo performed by a person other than the carrier or its servants or agents; (c) an act of war or an armed conict; (d) an act of public authority carried out in connection with the entry, exit or transit of the cargo. 3. The carriage by air within the meaning of paragraph 1 of this Article comprises the period during which the cargo is in the charge of the carrier. 4. The period of the carriage by air does not extend to any carriage by land, by sea or by inland waterway performed outside an airport. If, however, such carriage takes place in the performance of a contract for carriage by air, for the purpose of loading, delivery or transhipment, any damage is presumed, subject to proof to the contrary, to have been the result of an event which took place during the carriage by air. If a carrier, without the consent of the consignor, substitutes carriage by another mode of transport for the whole or part of a carriage intended by the agreement between the parties to be carriage by air, such carriage by another mode of transport is deemed to be within the period of carriage by air. Id. Article 18 (4) 2nd sentence M99 Dempsey and Milde (as in n. 27).

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VII Electronic shipping documents

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it through cyberspace.92 This physis of the document delays its issuance and processing. The document typically is not ready when the ship sails but on average three days later,93 , add another four days for pouching the documents overseas, plus one day for the surrender of the documents from the customs broker to the carrier. Adding banks to the mix in a letter of credit transaction further complicates matters. In the past years shipping has become faster, however, processing of paper documents has not kept pace. Carriers and freight forwarders who attempt to lower costs begin to charge demurrage charges earlier, leading to hundreds of dollars per day per container in case a bill of lading is delayed. The discontent with paper documents prompted the drafters of M99 to allow for electronic shipping documents. Article 4 2) M99 thusly: Any other means which preserves a record of the carriage to be performed may be substituted for the delivery of an air waybill.

b) Current attempts
So far four attempts have been made to electronify shipping documents. 1. The SEADOCS system The Seadocs system was a project of INTERTANKO (International Association of Independent Tanker Owners) and Chase Manhattan Bank.94 Chase Manhattan -through one of its subsidiaries- acted as a central registry into which the shipper deposited the paper bill of lading who in turn received a code similar in nature to a PIN code. Through Chase Manhattan all endorsements were recorded and the nal endorsee having received the appropriate PIN code could receive the properly endorsed bill of lading from the bank. SEADOCS was not truly an EDI system since communication was handled by telex. Its failure95 was however not due to technical performance or legal problems, but rather acceptance in the marketplace. Traders were concerned
92 93 94 95

Beecher (as in n. 22), p. 633. Ibid. Edmund Greiner, EDI and the Traditional Bill of Lading, 1997 URL: http://web.uct.ac. za/depts/shiplaw/theses/greiner1.htm -- visited on November 6, 2011. SEADOCS did not even make it past its trial period

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VII Electronic shipping documents

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that a central registry would contain data which tax authorities could have access to. Banks were uncomfortable that one of their competitors had exclusive control over the registry.96 2. The CMI Rules for Electronic Bills of Lading The next attempt to dematerialize shipping documents occurred in 1990 when the Comit Maritime International adopted the "CMI Rules for Electronic Bills of Lading".97 Since the CMI Rules are not laws parties must incorporate them by reference into their contracts. Whereas SEADOCS provided a technical service, the CMI rules oer a contractual solution which anyone can use as they seem t. The CMI rules are premised on keys, however, the very successful implementation of public key encryption only became better known one year after the CMI rules were passed, when Phil Zimmerman released PGP in 1991.98 Hence, the public was yet uninformed about public key encryption and the opportunities of public signatures through keys. However, the CMI rules similarly have not gained widespread acceptance. Among the points of criticism were the following. The rights of the parties once the documents were transferred was unclear. The issue of default of the holder was not addressed. The CMI rules did not provide for the passing of title to the goods.99 3. The Bolero System In 1998 SWIFT and Through Transport Club created the Bolero system which was designed to achieve "interoperability between various businesses and industries involved in international commerce".100 Even though Bolero asserted ed that its electronic documents were compliant with the Supplement to the Uniform Customs and Practice for Documentary Credits for Electronic Presentation (eUCP) and the SWIFT standards it failed to attract nancial insti-

96 97

Dubovec (as in n. 26), p. 449. Ibid., p. 451. 98 Wikipedia, Pretty Good Privacy (PGP), November 2 , 2011 URL: http://en.wikipedia.org/ wiki/Pretty_Good_Privacy -- visited on November 6, 2011. 99 Dubovec (as in n. 26), p. 451. 100 Ibid., p. 637.

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VII Electronic shipping documents

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tutions.101 The main challenge seems to have been that the legal system did not recognize the electronic equivalents created by Bolero.102 4. The GlobalTrade System CCEWeb Corp., Canada, created the GlobalTrade Secure Payment and Trade Management System in 2001.103 The Global Trade System is based on the understanding that shippers and carriers preferred to issue documents that were not documents of title, since delays in the processing of documents of title cause demurrage. The GlobalTrade system uses a nonnegotiable waybill that employed the CMI rules to create a functional equivalent of a negotiable bill of lading. In particular the shipper renounced to varying the identity of the consignee.104 5. The TradeCard System In 1994 the World Trade Centers Association founded TradeCard which is an Internet-based, electronic commerce system.105 The information provided by the company's website indicates that the TradeCard system matches purchase order with the documents provided by the seller. In case of discrepancy buyer and seller are notied and have the option of negotiating them. "Once documentary compliance has been achieved, TradeCard automatically sends payment instructions to a participating nancial institution, which debits the buyer's account and credits the seller's account."106 From this description it is clear that the system is a simplied version of a letter of credit transaction.107 It remains however unclear, in how far the system issues, processes, negotiates electronic bills of lading.

101 102

Dubovec (as in n. 26), p. 637. Ibid. 103 United Nations, Electronic Commerce and International Transport Services: Report by the UNCTAD secretariat, 2001 URL: http://www.unctad.org/en/docs/c3em12d2.en.pdf -- visited on November 5, 2011, p. 18. 104 Dubovec (as in n. 26), p. 454. 105 Ibid., p. 456. 106 http://www.tradecard.com/about/faq.html visited on November 5, 2011 107 The check for discrepancy mainly seems to concern commercial invoice and purchase order which are easily synchronized. However, additional documentation like testing certicates, certicates of origin require additional expertise not provided by the software.

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VII Electronic shipping documents

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c) Which types of documents can be made paperless

Currently, in particular banks favor documents of title, like a negotiable bill of lading as collateral. The attempts to make these documents paperless however have not been successful since legal systems have been slow to accept them. In international trade the EDI version of documents of title have to be recognized by several legal system, a task, that prompts authors to predict that the paper bill of lading will stay with us for many years to come.108 However, often the decision to issue credit is not based on the type of document the debtor will be able to oer as collateral, but rather the creditworthiness of the debtor.109 This oers the opportunity to issue shipping documents that are not documents of title in electronic form, since their functions --evidence of areightment and evidence of the contract of areightment-can be performed easily by electronic data. The conclusion is that air waybills might be more successfully converted to be processed in cyberspace than their maritime colleagu, the bill of lading.

d) Problems when introducing paperless shipping documents

The above mentioned EDI systems failed in the marketplace. However, from their past failure we can extrapolate the features of a successful EDI based shipping document system. The technical issues of yore of incompatible communication standards has been solved by providing encrypted HTTP based access. Hence, the technical implementation is a non-issue. Market participants fear a central system to which the IRS or competitors might have access. Particularly nancial institutions fear opening up their books to competitors.110 The service provider has to be an entity whose impartiality is beyond doubt. SWIFT would seem a good candidate, however, its data exchange with US spy agencies in the eyes of many will most likely have disqualied in for taking on this role.111 The ICC on the other hand
108 109

Beecher (as in n. 22), p. 646. Georgios I. Zekos, The Use of Electronic Technology in Maritime Transport: the Economic Necessity and the Legal Framework in European Union Law, 1998 URL: http://webjcli. ncl.ac.uk/1998/issue3/zekos3.html -- visited on November 9, 2011. 110 Dubovec (as in n. 26), p. 450. 111 Timon Molloy, Exchange controls -- EU-US tensions over terrorist nance data transfer, August 31, 2011 URL: http://www.moneylaunderingbulletin.com/terroristfinancing/ exchange-controls--eu-us-tensions-over-terrorist-finance-data-transfer--1.htm --

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VII Electronic shipping documents

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is unburdened by too close a cooperation with government agencies, enjoys a reputation as competent and impartial, and has excellent expertise in the area on international trade. Purely contractual language, that parties are free to adopt, does not convince the market participants to change their old habits. Merchants are suciently sophisticated in their dealings so that they do not require drafting assistance. Furthermore, contractual provisions cannot decree how judges and lawmakers are to interpret these clauses 112 and cannot alter well-established statutes.113

visited on November 11, 2011. This was one of the defects of the CMI rules 113 Dubovec (as in n. 26), p. 453.
112

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VIII Conclusion

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VIII Conclusion
Air transport is only one of several modes of transportation. However, all problems and issues extant in transportation law reect themselves in air carriage. EDI remains a challenge, however, air waybills might be part of the solution, particularly since they are not documents of title and consequently issues regarding the acceptability of their electronic versions by various legal system does not plague them. Multimodal transportation remains unpredictable. Even though the reality of MTOs is no news anymore, the legal systems have not caught up with these developments. A solution to the current conundrum however is not in sight. The problems are old, they have been tackled unsuccessfully several times so that all parties know something has to be done, however, urgency is not the word that comes to mind. The problems that tie themselves into a Gordian Knot are that the issues are international in nature and that the law of transportation has been split up in tiny little islands of common understanding since time unknown. To nd common ground among several nations and several liability regimes spanning several modes of transportation is a task worthy of Sisyphus. Sisyphus however was a king who cheated death and conversed with gods; mere mortal lawyers can only report on the chaos without hope of ending it.

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Bibliography
Beecher, Susan, `Can the Electronic Bill of Lading Go Paperless', The International Lawyer, 40 [2006], p. 647. Brinkmann, Jan, Der Luftfrachtersatzverkehr: Die Haftung beim Trucking nach dem Montrealer bereinkommen, (Berlin and Mnster: Lit, 2009), ISBN 978--3--643--10094--8. Crabtree, Tom et al., World Air Cargo Forecast 2010-2011, 2010 URL: http: //www.boeing.com/commercial/cargo/wacf.pdf -- visited on 03/03/2012. Dempsey, Paul Stephen, `International Air Cargo & Baggage Liability and the Tower of Babel', George Washington International Law Review, [2004], No. 36, pp. 239--315. Dempsey, Paul Stephen and Milde, Michael, International air carrier liability: The Montreal Convention of 1999, (Montreal: McGill University Centre for Research in Air & Space Law, 2005), ISBN 0--7717--0636--7. Dubovec, Marek, `The problems and possibilities for using electronic bills of lading as collateral', Arizona Journal of International & Comparative Law, 23 [2006], No. 2, pp. 437--466. Garner, Bryan A. and Black, Henry Campbell, Black's law dictionary, 9th edition. (St. Paul and MN: West, 2009), ISBN 978--0--314--19949--2. Greiner, Edmund, EDI and the Traditional Bill of Lading, 1997 URL: http:// web.uct.ac.za/depts/shiplaw/theses/greiner1.htm -- visited on November 6, 2011. Kasarda, John D. and Sullivan, David L., `Air Cargo, Liberalization, and Economic Development', Annals of Air and Space Law, XXXI [2006], p. 167 URL: http://www.aerotropolis.com/files/2005_07_AASL.pdf -- visited on 03/12/2012.

Bibliography

29

Katz, Ron, ICC Banking Commission collected opinions 1995-2001 on UCP 500, UCP 400, URC 522 [and] & URDG 458: Queries and responses, Reprint. edition. (Paris: ICC Internat. Chamber of Commerce, 2006), ISBN 9284212979. Matczak, Patricia, Rechtsgrundlagen und Haftung in internationalen Supply Chains, 2009 URL: http://bibliothek.fh-burgenland.at/fileadmin/ Download/bibliothek/diplomarbeiten/AC07728778.pdf -- visited on November 5, 2011. Molloy, Timon, Exchange controls -- EU-US tensions over terURL: rorist nance data transfer, August 31, 2011 http://www.moneylaunderingbulletin.com/terroristfinancing/ exchange-controls--eu-us-tensions-over-terrorist-finance-data-transfer--1. htm -- visited on November 11, 2011. Nielsen, Jens, Richtlinien fr Dokumentenakkreditive: [mit ERA 600 und allen fr die Praxis wichtigen Richtlinien], 3rd edition. (Mnchen: Beck, 2008), ISBN 9783406581069. United Nations, Electronic Commerce and International Transport Services: Report by the UNCTAD secretariat, 2001 URL: http://www.unctad.org/en/ docs/c3em12d2.en.pdf -- visited on November 5, 2011. Warren, L. Dean, `Aviation Liability Regimes in the New Millennium: Beyond the Wild Blue Yonder Air Carrier Liability For International Air Cargo Shipments In The 21st Century', Transportation Law Journal, [2001], No. 28, pp. 239--249. Wikipedia, Pretty Good Privacy (PGP), November 2 , 2011 URL: http:// en.wikipedia.org/wiki/Pretty_Good_Privacy -- visited on November 6, 2011. Wood, Stephen G., `Multimodal Transportation: An American Perspective on Carrier Liability and Bill of Lading Issues', The American Journal of Comparative Law, 1998 [1998], No. 46, pp. 403--420. Zekos, Georgios I., The Use of Electronic Technology in Maritime Transport: the Economic Necessity and the Legal Framework in European Union Law, 1998 URL: http://webjcli.ncl.ac.uk/1998/issue3/zekos3.html -- visited on November 9, 2011.

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Cases

30

Table of Authorities
C BRI Coverage Corp. v. Air Canada, 725 F. Supp. 133 Dist. Court, ED New York (1989) Page

. . . . . . . 15, 17 8, 11

Brink's Ltd. v. South African Airways, 93 F. 3d 1022 Court of Appeals, 2nd Circuit (1996) . . . . . . .

Commercial Union Ins. v. Alitalia Airlines, 347 F. 3d 448 Court of Appeals, 2nd Circuit (2003) . . . . . . . . . 15 Cooper's Finer Foods, Inc. v. Pan Am. World Airways, Inc., 178 So. 2d 62 Fla: Dist. Court of Appeals, 3rd Dist. (1965) . . . . 12

El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 US 155 Supreme Court (1999) . . . . . . . . . . . . . . . . . . . 11 Exim Industries v. Pan American World Airways, Inc., 754 F. 2d 106 Court of Appeals, 2nd Circuit (1985) . . . . . . . Fujitsu Ltd. v. Federal Express Corp., 76 F. Supp. 2d 474 Dist. Court, SD New York (1999) Insurance Co. of North America v. Federal Express, 189 F. 3d 914 Court of Appeals, 9th Circuit (1999) . . . . . . . 7, 11 4, 7

. . . . . . . . . . 9

Integrated Measurement Sys. v. Intern. Com. Bank, 757 F. Supp. 938 Dist. Court, ND Illinois (1991) . . . . . . . . . . . . 3 Intercargo Ins. Co. v. China Airlines, Ltd., 208 F. 3d 64 Court of Appeals, 2nd Circuit (2000) . . . . . . . . . . . 9 Maschinenfabrik Kern, AG v. Northwest Airlines, 562 F. Supp. 232 Dist. Court, ND Illinois (1983) . . . . . . . . . 12, 13 Motorola, Inc. v. MSAS Cargo Intern., Inc., 42 F. Supp. 2d 952 Dist. Court, ND California (1998) . . . . . . . . 13 Nippon Fire & MARINE Ins. v. Skyway Freight Systems, Inc., 45 F. Supp. 2d 288 Dist. Court, SD New York (1999) . . . . . . . . . 4 Philip A. Feinberg, Inc. v. Varig, 80 Misc. 2d 305 NY: Supreme Court (1974) . . . . . . . . . . . . . . 12 Read-Rite Corp. v. Burlington Air Express, Ltd., 186 F. 3d 1190 Court of Appeals, 9th Circuit (1999) . . . . . . 17, 18

Cases Sotheby's v. Federal Exp. Corp., 97 F. Supp. 2d 491 Dist. Court, SD New York (2000)

31

. . . . 9, 10, 11

Tai Ping Insurance Co., Ltd. v. Northwest Airlines, Inc., 94 F. 3d 29 Court of Appeals, 2nd Circuit (1996) . . . . . . . . . . . . 8