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Tetley, The CMI Final Draft Instrument - Participation versus Decision-Making - What We Need is a Two-Track Approach (April 8, 2002)

In 1998, the Comité Maritime International (the CMI) gave up its attempt to draft amendments to the Hague/Visby Rules, after 20 years of meetings, questionnaires, reports, colloques, conventions, etc. and embarked on a study of issues of transport law.

On December 10, 2001, the CMI adopted its Final Draft Instrument on Issues of Transport Law, ("the Instrument") after 3 1/2 years of more meetings, questionnaires, etc. and delivered the Instrument on schedule to UNCITRAL. The Instrument can be seen at Preliminary Draft Instrument on the Carriage of Goods by Sea .

The President of the CMI has called for "constructive criticism" of the Instrument and UNCTAD has produced a detailed 28 page, 137 paragraph analysis in diplomatic, but critical language. See the UNCTAD analysis at Draft instrument on transport law - Comments submitted by the UNCTAD Secretariat .

UNECE (the United Nations Economic Commission for Europe), whose member governments are all the European and Central Asian states, Canada, Israel and Japan has also written a diplomatic, but severe critique on the Instrument, which critique may be seen at UNECE Comments to the UNCITRAL Draft Instrument on Transport Law .

What are some of the criticisms of the Instrument? First of all the project is "extremely ambitious" (as described by the President of the CMI) and deals with a host of component parts - carriage of goods by sea, multimodal liability, transport documents, freight, liens, delivery, right of control, negotiability, rights of suit - each of which in itself would be an international triumph, if satisfactorily drafted and then adopted as a convention.

The broad project also means that the definitions at the beginning of the Instrument must be so flexible as to encompass the meaning of the term expected in each of the component parts. The Instrument also presumes to cover the exigencies of E Commerce, as it is known now and as it will be known in the future.

The wording, numbering and phraseology are new and do not follow either the Hague/Visby Rules or the Hamburg Rules, so that all jurisprudence and traditions of the past are lost. The drafting, however, is closely similar to the proposed US MLA Draft Senate COGSA, 1999.

The Instrument contains numerous exceptions, whereby the door-to-door provisions, the general provisions, the contractual provisions and "contracts of affreightment, volume contracts or similar agreements" and even the whole convention may not be applicable or may be overridden, or may be opted-out of. Freight forwarders, agents and even carriers may be excluded as well. The long complicated notes in the draft, it has been noted, are at times confusing rather than being revelatory or reassuring.

Most importantly, the Instrument does not take many hard decisions on policy, but has left at least seventeen alternatives in square brackets. And these are not insignificant choices, e.g. 6.1.2 (i) (fire), or 6.1.2 (ii) perils or 8.4.2 (failure to identify the carrier). Jurisdiction and arbitration provisions are in limbo too. Any one of these could prevent adoption of the Instrument as a convention.

In effect, the drafting, the multiple opting-outs, the multiple over-rides, the multiple alternatives, the failure to take decisions and the long, complicated notes cause the Instrument to seem similar to a summation of the discussions and meetings of the various national associations and pressure groups who attended the sub-committee meetings over the past 3 ½ years. Everybody had a say at the drafting table and they will be disappointed, if their pet amendment is dropped.

The drafters of the Instrument may have confused participation with decision-making. As Pierre Elliott Trudeau said: "If you do not want to arouse hopes you will be unable to satisfy, you must always distinguish decision-making from participation."

I have been a critic for 20 years of the CMI's modus operandi of drafting by consulting anyone and everyone, by endless questionnaires and then invitations to those same persons to sit around the drafting table. Rather the legislative body must know what it wants, must prepare a draft without alternatives and then must consult. Thereafter it produces a final draft for formal consultation and adoption. My views on the subject of legislative drafting may be seen at Uniformity of International Private Maritime Law.

Because the Instrument is so unfinished, a two track proposal seems advisable. Under the Fast Track, a new port-to-port convention would be quickly drawn up and in fact UNECE has suuggested that this be carried out by itself, UNCITRAL and UNCTAD. The new convention would be somewhere between the Hague-Visby and the Hamburg Rules.

The Slow Track would consist of the CMI continuing the long process of trying to improve the Instrument.

The Fast-Track will provide a text 1) which should be satisfactory to the Hague/Visby nations; 2) will also be close to the Hamburg Rules and so Hamburg nations need not amend their Rules, while 3) the United States should be satisfied, because the two fundamental desires of American shippers, carriers and lawyers, etc. are a kilo limitation and avoiding the jurisdiction and arbitration effects of the US Supreme court Sky Reefer decision. These desires would be covered in the "Fast-Track" document.

The Fast-Track proposal, incidentally, was made by Barry Oland for Canada at the CMI meeting in New York in May, 1999, and the Fast-Track was also proposed by Lloyd Watkins of the Intl. Group of P & I Clubs at a steering committee meeting of the CMI in London in June 1999. The CMLA Executive Committee also unanimously agreed to the Two-Track approach.

The President of the CMI has asked for constructive criticism. Now is the time to speak up. For my part, I would like to hear your views in confidence or for public consumption.