The Limited Scope of the Cargo Liability Regime Covering Carriage of Goods by the Sea: the Multimodal Problem

Increasing numbers of cargo claims arising under multimodal bills of lading involve damage or loss occurring inland, while the goods are in the custody of inland carriers or their contractors. The current cargo liability regime covering sea transport, however, is antiquated and unable to cope with these types of claims. As a result, the parties participating in multimodal shipments have been subject to a vast array of laws governing their rights and liabilities, including the application of state law, leading to uncertainty and higher litigation costs. This Article examines the multimodal problem, beginning with a brief overview of the cargo liability regimes governing air, land, and sea transport and a discussion of the unique problems caused by the limited scope of the Hague Rules/COGSA regime. The recent United States Supreme Court decision in Norfolk Southern Railway v. James N. Kirby, Pty Ltd. and its impact on multimodal carriage is also examined in some detail. Finally, the Article provides a summary of recent national and international attempts to solve the multimodal problem. The author concludes that until a true multimodal convention is developed, covering all aspects of “door-to-door” multimodal carriage, the industry can expect ad hoc decisions of the courts to shape the rules for multimodal transport.