Transport Law in the Globalization Era(*)
Università di Sassari
1 . — Transport has been the field of a long process of world-wide uniform law and uniform commercial terms spread all over the world. We could say that Transport Law is going to be the first in history, and, may be, the main field to test a globalized law. There is a large corpus of uniform law (which influenced also domestic legislation), but there is a lack of uniformity in their interpretation, which constitutes a problem in international trade.
On the other hand, as it will be shown, the overlap of international conventions has driven towards a progressive disuniformity in sectors once characterized by a strong degree of uniformity. The effort of codification of the law of the sea dates from the second part of 20th century: to have an organic legislation, we had to wait till the UNCLOS III, the United Nations Convention on the Law of the Sea, signed in Montego Bay on the 10th December 1982, which regulated together, inter alia, the freedom of navigation, the coastal State claims, as well as environmental matters.
2 — At very beginning, we had maritime law. Still in the XIX century, shipping has been regulated on the base of national laws and customs. After all, the law of sea has been mainly founded on customary law up to the end of century XX.
Carriage by rail was chronologically the first field to test the approach of an uniform law of transport: first International Convention concerning the Carriage of Goods by Rail dated from the year 1890.
Carriage by air and by
road received their first juridical regulation under uniform law only in
subsequent times. The first was regulated by the Warsaw Convention of 1929
(which was only the beginning of a complex history of uniform legislation),
while the public law of the air was the field of the Paris Convention of 1919,
although its applicability was circumscribed to a certain number of States (it
was never ratified by
The attempt to adopt an uniform-law convention to regulate multimodal carriage has not been successful till now, though the field is covered by some agreements at regional level, including one under the umbrella of Andean Community. Nevertheless, still waiting the entry into force of an uniform-law convention, model rules of 1992 for multimodal transport developed by a joint UNCTAD/ICC Committee have to be mentioned as an effort of standardization through clauses to be incorporated into private contracts.
3 — Maritime and air carriage have been for a long time the field of the top-level uniformity world-wide. Since many centuries, maritime law has been characterized by an high decree of uniformity, as it is happened for air law since the twentieth century.
The core of maritime law may be still summarized in a sentence by a famous Italian jurist, Pasquale Stanislao Mancini, in his inaugural lesson at University of Turin, as quoted in a recent speech by Dr. Patrick J. S. Griggs, President of the Comité Maritime International (CMI), that sounds still relevant: «The sea with its winds, its storms and its dangers never changes and this demands a necessary uniformity of juridical regime». The consequence is that «those involved in the world of maritime trade need to know that wherever they trade the applicable law will, by and large, be the same».
4 — As an example of ancient-law basically still in force for shipping, I have to mention, at least the most famous and well known regulation of general average, whose basic principle of distribution of risk among every people participating the maritime venture is still in force in many legislations and which arrived till now back from a body of laws adopted, according to tradition, in the Greek island of Rhodes between the Second and the Third century B.C., and accepted by Roman law.
At present, some-one may not be afraid to be considered an heretical, and may express some doubts about the present real justification to maintain such a regulation, according to which cargo-owner must contribute to expenses and damages afforded in the aim to grant the salvation of the expedition in danger to be lost, even though that danger was caused by a fault of the servants and agents of the carrier.
That may sound deeply unfair if we consider that (according to the Hague Rules and Hague-Visby Rules, still in force in many Countries all over the World) the carrier might be able to exonerate himself of damages caused to the cargo by that fault (in the navigation, or in the management of the ship) which provoked the danger for the expedition.
The majority of maritime law writers has been considering general average as a rule of equity. Such a regime of distribution of the risk had (in deed) some (strong) logical reasons in traditional sailing era, but we could doubt about the persistency of any justification in an era of technological navigation, where the ship is not anymore at the mercy of winds and waves, and where safety was improved by the introduction of new navigational aids, like radar, GPS, AIS, that have brought to a dramatic abatement of unforeseen events, and where security problems in most Seas are not worse than those related to other modalities of transportation. It has been observed that «General average was a useful concept before the advent of marine insurance. It has grown far beyond its original parameters and has become more and more oriented in favour of shipowners and the average adjusting profession».
5 — Tradition may not be the only reason to justify a specific legislative institute, though in such a sensitive-to-tradition field like maritime law. As a matter of fact, other legislative institutes, once typical of maritime law and world-wide diffused, which found their origin in consideration of the (once) typical (strong) risk of navigation («risicum maris et gentium») are not still in force anymore in most legal systems. A good example of such point may be found in bottomry, the ancient fenus nauticum, or pecunia traiecticia, which had its roots in customs of Mediterranean trade before Roman era, in force of which a ship-owner might borrow money to carry on the expedition from a lender who accepted the ship as a security for the repayment, with the stipulation that if the ship should be lost in the course of the voyage by any of the perils enumerated in the contract, the lender also shall loose his money. It seems significant to me that bottomry has been considered at the origins of maritime insurance. The use of bottomry bonds declined greatly in the 19th century, both for their relatively low priority among other liens and for the development of modern contracts of maritime insurance.
We may even expect, in future, to see narrowing the still today wide range of monetary limitations granted to carriers, shipwoners and operators. A certain tendency in that direction started, as we are going to see, with the dereliction of monetary limitations related to carrier liability for death and bodily injury of passengers.
6 — What we have to point out now is that General Average Rules are a sort of anomaly, because they are a rare, if not unique, heritage of old Mediterranean legislation of navigation in modern Maritime law.
The other (and even more significant) peculiarity of general average rules is that they are world-wide still in force as standard contractual terms, being incorporated in almost every maritime contract by way of standardized contractual forms, and they are a sort of customary rules, though in many national legislations, like Italian code of navigation, there is a correspondent legislative discipline of general average.
As a matter of fact,
maritime world has been characterized since many centuries by standardized
contracts and customary rules. According to the most accredited point of view,
even the well-known «Consolato
7 — The only body involved in promoting uniformity in maritime private law has been for about seven decades the already-mentioned C.M.I. - Comité Maritime International, a non-governmental international organisation, established in 1897, joined by national associations of maritime law of most important maritime countries. Because of its origins and composition, C.M.I. has traditionally taken care of reason of maritime transport industry. It was only after the accident of Torrey Canyon of 1967 that the Inter-Governmental Maritime Consultative Organization (established in 1948, as a specialized agency of United Nations, and renamed in 1982 the International Maritime Organisation – IMO) created its Legal Committee, which was charged to develop a new legal regime of liability and compensation for pollution caused by tankers. As a matter of fact, in the aim of that goal, IMCO Legal Committee cooperated with C.M.I., leading to the Diplomatic Conferences which approved C.L.C. and the Intervention Convention.
The role of the I.M.O. has been considered controversial, because it has been charged by environmental lobbies to be too close to reasons of maritime transportation industry. According to a picturesque comment referred to environmental activities, it would play the same role of a fox in guarding the chickens.
The influence of Maritime Countries is not so strong in other specialized agencies of United Nations, involved as well in the unification of maritime law, such as the United Nations Conference on Trade and Development (UNCTAD), established by United Nation assembly in 1964, and the United Nations Commission on International Trade Law (UNCITRAL), established in 1966. Different structures and origins of such organizations are the reasons why sometimes their goals seems to be not strictly coincident.
8 — There is quite a lot of other inter-governmental and non-governmental organizations potentially involved with the process to uniform law in the field of carriage, transport and navigation.
We have to mention at least ICAO, the International Organization of Civil Aviation, which succeeded to activities in standardization of law previously performed by the Comité international technique d'experts juridiques aériens, previously operating in the same field, on the basis of the first International Conference of private air law. ICAO was established on the base of Chicago Convention of 7 December 1944, which superseded the Paris Convention of 1919. Under its auspices, was, inter alia, adopted the Montreal Convention of 1999, destined to supersede the Warsaw Convention of 1929 and its Protocols, as well as the supplementary Convention of Guadalajara.
Quite an important role has been played in aviation by the organization of airlines, the I.A.T.A., International Air Transportation Association, which negotiated the Montreal Agreement of 1966 with the Civil Aeronautical Board of United States, to increase the level of liability-limits for damages to passengers and to introduce a basic strict-liability for liability of carrier towards passengers in air carriage which could involve United Stated, in the aim to maintain United States in the Warsaw System.
Its standardized conditions of carriage are virtually of general application world-wide, as they are adopted by the largest majority of leading airlines.
Besides, under auspices of I.A.T.A. a couple of Intercarrier Agreements was adopted, for the unilateral renunciation of liability limits in case of death and bodily injury of passengers, before the entry in force of Montreal Convention of 1999.
We have also to mention the Intergovernmental Organisation for International Carriage by Rail (OTIF), established on 1 May 1985 as a consequence of the Convention concerning International Carriage by Rail of 9 May 1980 (COTIF), which superseded Central Office for International Carriage by Rail which was set up in 1893, on the base of the already mentioned first International Convention concerning the Carriage of Goods by Rail of 1890.
Last but not least, we have to mention the International Organization of Labour, whose activity deals may be quite relevant for shipping, dealing with matters such as recruitment and placement, minimum age, hours of work, safety, health and welfare, labour inspection and social security.
9 — Finally, we have to consider the very relevant role of Organization of Regional Integration, such as European Community, stressed in some of the most recent conventions of uniform law, with the provision of their ratification, though such a ratification was not considered to be computed in the aim of the entry in force conditions.
Since the Treaty of Rome of 1957 (the foundation Treaty of the European Community), E.C. transport policy has been focused on removing obstacles at the borders between Member States in the aim to facilitate the free movement of persons and goods. Subsequent to the advent of the single market among Member States, the common transport policy moved towards abolition of frontiers and other liberalisation measures, including liberalisation of cabotage, both in maritime and in air carriage.
As a part of its politics of liberalization in transport, European Community introduced in the legal systems of each Member-State a regulation anticipating the effects of the Montreal Convention of 1999 for the liability of European air carriers towards passengers (and then, it has extended for every European air carriers the core of the 1999 Montreal Convention liability regime for passengers, also to carriages non falling in the aim of that Convention).
European Community is also working to introduce a similar regime for maritime carriage of passengers. In the past, it has introduced a regime for compensation for denial of boarding in air passenger transportation, partially enlarged to cover also delay and cancellation of the flight, and it has generally promoted a wider consumer protection approach in air transport. Its role in implementing and improving maritime environmental legislation has been fundamental: we have to mention, at least, the role played by E.U. Commission in political suasion to introduce a third tier of compensation for oil pollution carried in a bulk, finally adopted under I.M.O. umbrella by the London Protocol of 16 May 2003 on the Establishment of a Supplementary Fund for Compensation for Oil Pollution Damage, additional to the C.L.C. and Fund Conventions.
A similar role seems to be played here by the Andean Community. At this subject, we can mention, at least, the decisions of the Commission of the Cartagena Agreement on the Integration of Air Transport in the Andean Subregion and on the Multimodal Transportation.
10 — To understand the development of maritime private law, we have also to consider a basic difference between the main categories of maritime contracts related to the employment of ships. We have charter-parties, where at least till a decade ago, it was possible to observe a substantial balance of economic power between ship-owners and charterers, and on the other hand, we have other contract of carriage of cargo and passengers (basically, carriage performed by liners). Within those types of contracts the negotiating position of passengers and cargo owners has always been at least feeble in front of strong economic power of carriers.
11 — Fragmentation of fleets of oil-carrier, due to the outsourcing of activity of oil transportation, once performed by oil industry, which had its own fleet, called ship-owners (very often one-ship owners) to play a different and feebler role in front of oil industry. We have to anticipate that some among real reasons of that outsourcing have to be found both in the goal of a shortage of costs and in an attempt to escape liability allocated on ownerships carrying oil by domestic (U.S. O.P.A. of 1989) and uniform legislation (C.L.C. system), with increasing levels of liability, under the pressure of public opinion become aware of environmental problems under the emotion of catastrophic oil escapes.
So we are able to recognize a paradox of maritime environmental legislation, that is the other side of the problem of the sustainability of navigation and carriage activities, in the perspective of sustainable development. Fragmentation of fleets because of increasing levels of liability (implementation of the «polluter pays» principle) might have the (unwanted) consequence of growing of sub-standard ships, with an increased risk for environment, as well as for safety and security in general. A one-ship owner, who sails under a flag of convenience may be not able to perform the same safety and security standards once performed by shipping branches of big oil companies, although sailing as well under flag of convenience.
We have incidentally to consider another step of the present involution of the discipline of the shipping, not circumscribed just to environmental aspects or to oil-carrier fleets. If it is true that UNCLOS III requires a genuine link as condition for the registration of a ship in a determined State, it is also true that then it submits the specification of the content of such a genuine link to the national legislation of that State of registration.
The attempt performed by the international community to determine requisites for registration of ships by uniform rules had no result, since the 1974 Geneva Convention on the conditions of registration of ships has never gone in force, as it was nor sufficiently ratified, probably because of the resistances of the lobbies of the maritime industry.
12 — The other side of the freedom of navigation traditionally recognized to each ship of every flag of the World was that the State of the flag had to be responsible of the safety of navigation. This is not possible for most States granting flags of convenience (whenever they would want), at least because they have no experience and no organization to perform the opportune controls.
The corollary is that Port States are going to be called to assume even more responsibilities in the field of safety and security of navigation, also in the environmental perspective, increasing Port-State-Control (P.S.C.) procedures to make up for deficiencies in control by Flag States.
What's even surprising, is that States and international Organization entrusted with air transport seem to be unaware of the previous negative experience on the safety and security of the maritime navigation because of the diffusion of the flags of convenience. As a part of politics of deregulation and liberalization of air transport, the principle of the national substantial ownership of airplanes and air companies as condition for the attribution of the nationality and, consequently, for the admission to the line air services seems to be left behind in the last five-year periods. This way started a new course in comparison to the system delineated by the Convention of Chicago of 1944 and subsequent bilateral agreements of air navigation.
It does not seem just casual that problems very similar to those shown for shipping, referred to the use of flag of convenience, are going to be highlighted also in the field of air navigation, with the necessity to introduce controls of the airport State, that are able to make up for the deficiencies in controls operated by States of registration.
13 — In XVIII Century, English maritime carriers, when English mercantile fleet was almost a monopolist in maritime traffics on North Atlantic Ocean, were able to escape most liabilities by imposing in their contracts the so called «negligence clause» (exonerating the carrier «even for its own negligence»), so departing from the principle of strict liability falling on common carrier by English law, not far-away from the rule of liability falling on nautae in Roman law, at least according to the traditional (not uncontroversial) interpretation of the «actio de recepto».
Maritime carriers used to bind themselves the less they could, that often meant almost nothing. First attempt to react to such a situation was made by US legislator by the famous Harter Act of 1893, according to that carriers could escape liability only in specific circumstances related to the so-called «perils of the sea» (excepted perils), only if he had exercised due diligence to make the vessel seaworthy. When adopted, it was quite a good compromise between cargo interests and maritime transportation industry.
If we read that list of circumstances at the present, may be we can feel a little disappointed, because it does not contemplate just a narrow range of exceptional situations. That list of excepted perils allowing exoneration of maritime carriers from liability went through the Hague and Hague-Visby rules in uniform law of international maritime carriage under bill of lading, which (in its original or amended text) is still in force in many maritime countries, as well as national legislations inspired by those principle, like the Italian code of navigation. A new Convention, more favourable for cargo-interest, Hamburg Convention of 1978, has not reached till now the same success of ratification that Brussels Convention of 1924 used to have.
So, we have today, as we have seen, a large dis-uniformity of the discipline of the maritime carriage of goods, likewise it has previously happened for the discipline of the air carriage, because of the contemporary different texts of Warsaw Convention were contemporary in force (the original text, the text amended by the 1955 Hague Protocol; the text amended by the 1975 fourth Montreal), eventually integrated, for those Countries that have ratified that, by the 1961 Guadalajara additional Convention. Such situation has driven towards the instance to replace the whole previous discipline with a new convention, that could be an acceptable compromise among States concerned with air carriage: on such bases the 1999 Montreal Convention has been adopted. We might expect that an analogous solution will also be adopted finally for the carriage of goods by sea. In fact, works for the adoption of a new text of uniform law on the carriage of goods (wholly or partly) by sea are in progress under UNCITRAL auspices.
14 — The history of unification of law in the field of maritime carriage of passenger is more recent. After two unsuccessful conventions of Brussels of 1961 and (never entered in force) 1968, a new convention was signed in Athens in 1974, the so called PAL Convention, but in its original text, as well as in its text amended by Protocols of 1976 and 1990 (never entered in force) it was not so successful. The texts of Athens Convention, as amended by Protocol of London of 2002, and strongly influenced by the new already mentioned 1999 Montreal Convention, seems to have a better opportunity to be successful, also because it is supposed to constitute the basis of the future EC regulation on maritime carriage of passengers, in the same manner in which 1999 Montreal Convention was the basis of the EC regulation on air carriage of passengers.
15 — If I had to try to make a synthesis of my speech, I would say that the field of transport strongly requires an uniform legislation, because of the potential plurality of legal systems involved in an operation of carriage and of the difficulty, in absence of an uniform law, to focus a specific legislation to be applied.
law is based on solutions of compromise among several legal systems.
Unfortunately, quite often reducing legal protection in favour of feebler
parts, and taking care mainly of the enterprises' point of view makes such a
compromise. One may find that element in the whole uniform law history and,
therefore, in particular, in the development of transport law. Rights agreed
under domestic laws are denied or, at least, ignored, by uniform law. Quite an
interesting example of that kind of problems may be found in the extension of
damages recoverable under 1999 Montreal Convention. The Montreal Convention
expressly excludes the recoverability of «punitive, exemplary or any
other non-compensatory damages», although in some of the Countries
parties to the Convention (not
We have also to pay attention, at least, to those generalized extensions of uniform law operated by many national legislators (including the Italian one) with reference to air carriage, do not translate themselves in a cut of the rights of passengers, not justified by the exigency to find a way of compromise with other Countries.
It is necessary however to avoid that the uniform legislation or its (not always to be agreed) interpretation might be used in a way to suffocate the rights of feebler parties and, particularly, those of passengers or those of damaged parties, as it regards liability in tort.
In such contest, it seems meaningful to remember, as it regards the interpretation of uniform law instruments, with specific reference to the 1929 Warsaw Convention, the attempts (supported by different American and English Courts) to exclude compensation for damages suffered by the passenger for all the hypotheses (although consequential from the fault of the servants and agents of the carrier) not complying with the notion of «accident» contemplated by the Article 17 of the same Warsaw Convention, or its (sometimes too restrictive) interpretation, on the base of a supposed principle of exclusivity of the cause of action that would derive (according to such opinion) from the subsequent Article 24 of Warsaw Convention.
The same kind of problems will be found by the interpreter in the exegesis of Article 29 of 1999 Montreal Convention. As a matter of fact, it would have been preferable that the uniform law legislator had better clarified such point under the new Convention. On the other hand, we could also make the same consideration for other points, with reference to severe doubts in the interpretation of Warsaw Convention. I have to mention at least the problem of the compensation for pure emotional distress. Although the matter had been considered in the preparatory works, the definitive text of the Convention doesn't have kept an express regulation of them, still maintaining the problem of their compensation.
We have also to
consider hypothesis of incompatibility of international conventions with norms
of constitutional level of members-States. In such direction, we have to
mention the historical decision of the Italian Constitutional Court No. 132 of
1985 that affirmed the illegitimacy of very law limits for the compensation of
the death damage in carriage by air of passengers under Warsaw Convention
(with consequent inapplicability in Italy of those limits). It was the first
step of the evolution that has brought to the world-wide dereliction of the
liability limits for bodily injury suffered by the passengers under
(*) Speech given
at III Congreso Internacional de las Ciencias Politicas y Juridicas
«Derecho Sin Fronteras» organizado por
 Italian Code
of navigation of 1942, elaborated according to the theoretical view of Antonio
Scialoja regulates together maritime and air navigation (after Scialoja, Sistema
specific reference to maritime private law, see (on uniformization and its
techniques): Tetley, Uniformity of International Private Maritime
Law - The Pros, Cons, and Alternatives to International Conventions - How to
Adopt an International Convention, in Tul.
Mar. L. J., 24/2000, 775. See also Brunetti, Diritto
marittimo privato italiano, I, Torino, 1929, 43 et seqq.; Righetti, Trattato di diritto marittimo, I, Milano, 1987, 249. With reference
to air law, see Mapelli Lopez, De
 See, with reference to air carriage, Guinchard,
L'influence de la convention de Varsovie
sur les règles de droit interne relatives à la
responsabilité du transporteur aérien, in Rev. fr. dr. aér., 1957, 189; Romanelli, Il trasporto aereo di persone - Nozione e disciplina, Padova,
1959, 194; de
Juglart, Traité de Droit aérien, edited by Du
Pontavice, Dutheil de
 On interpretation of uniform law, see, inter alia: Bariatti, L'interpretazione
delle convenzioni internazionali di diritto uniforme, Padova, 1986; du Pontavice, L'interpretation des Conventions internationales portant loi uniforme
dans les rapports internationaux (A propos de
 It has been observed that «The approval of a particular convention or uniform law constitutes only the first, albeit important, stage in the process of unification. Furthermore, the process requires not only the incorporation of the contents of the convention or uniform rules into the domestic law of each of the states concerned, but also their uniform interpretation by national judges and their actual application by those operating in the affected economic sectors» (Bonell, International Uniform Law in Practice - Or Where the Real Trouble Begins, in Am. Journ. of Comp. Law, 38/1990, 865, 866. See also Berlingieri, Interpretazione uniforme delle convenzioni internazionali, in Dir. mar., 2004, 594.
 See, in general, Vázquez Carrizosa, El nuevo derecho del mar – Evolución y proyecciones econonómicas, Bogotá, 1976, 29 et seqq.; Salomon Franco, Pasado y presente del derecho del mar, Santa Fe de Bogotá, 2004, 27 ss.
See, in general, Salomon Franco, Pasado y presente del derecho del mar,
Santa Fe de Bogotá, 2004, 45 ss. According to my
knowledge, Colombia has signed but not yet ratified UNCLOS III. With reference
to maritime claims in Colombian legislation, see Act No. 10 of 4 August 1978
establishing rules concerning the
 With reference to coastal States and environmental matters, see, in general, Zambonino Pulito, La protección jurídico-administrativa del medio marino: tutela ambiental y transporte marítimo, Valencia, 2001, at 131 et seqq.; Beurier, La sécurité maritime et la protection de l’environnement: évolutions et limites, in DMF, 2004, 99, at 110. We have also to mention several regional agreements dealing with environmental matters at sea under the auspices of U.N.E.P. - United Nations Environment Programme within the framework of its Regional Seas Programme (see Déjeant-Pons, Les principes du P.N.U.E. pour la protection des mers régionales, in Droit de l’environnement marin – Développements récents, Actes du colloque organisé les 26 et 27 novembre 1987 à la faculté de droit et de scienses économiques de Brest, Paris, 1988, 63; Akiwumi – Melvasalo, UNEP's regional seas programme: approach, experience and future plans, in Mar. policy, 22/1998, 229). The two most successful in that field are the Barcelona Convention for the Protection of the Mediterranean Sea Against Pollution signed on 16 February 1976 (revised in Barcelona, Spain, on 10 June 1995 as the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean) and the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, signed on 24 March 1983 at Cartagena des Indias, commonly known as the «Cartagena Convention»: see amplius Sheehy, International Marine Environment Law: a Case Study in the Wider Caribbean Region, in Geo. Int'l Envtl. L. Rev., 16/2004, 441.
 The first general approach to the law of the sea may be found in the League of Nations Conference for the Codification of International Law (1930, The Hague), which dealt with the breadth of the territorial sea, the contiguous zone, the high seas, the continental shelf, fishing and the conservation of living resources.
for the Unification of Certain Rules relating to the International Carriage by
Air, signed at
International Convention relating to the regulation of aerial navigation done
 It was
followed by some other conventions of regional application, such as
Ibero-American Convention of Madrid of 1 October 1926 and Pan American
 Convention on the
Contract for the International Carriage of Goods by Road (CMR) (Geneva, 19 May
1956), today amended by the Geneva Protocol of 5 July 1978.
Nations Convention on International Multimodal Transport of Goods, signed at
 See amplius
 ICC is the acronym for International Chamber of commerce. See Jiménez, The International Chamber of Commerce: Supplier of standards and instruments for international trade, in Un. Law Rev., 1996, 284.
 See amplius Kindred – Brooks, Multimodal Transport Rules, The Hague, 1997; Caprioli, Considérations sur les nouvelles régles CNUCED/CCI applicables aux documents du transport multimodal, in D.M.F., 1993, 204.
 Maritime law has been the first and (for many centuries) the main part of the corpus of mercantile law, which is defined the «lex mercatoria» by a little bit anachronistic Latin expression. See remarks by Donahue, The Empirical and Theoretical Underpinnings of the Law Merchant: Medieval and Early Modern Lex mercatoria: An Attempt at the probatio diabolica, in Chi. J. Int'l L., 5/2004, 21. According to the knowledge we have, earlier Sumerian laws related to maritime commerce date back to about 2200 B.C.: see VerSteeg, Early Mesopotamian Commercial Law, in U. Tol. L. Rev., 30/1999, 183.
 With reference to the Consulate of Sea, see Casaregis, Discursus legales de commercio, disc. 213, 211, t. II, Venice, 1740, at p. 363: «in materiis maritimis tanquam universalis consuetudo habens vim legis, inviolatiter attendenda est apud omnes provincias et nationes».
 On the movement for the uniformization of air law, with specific reference to the contribution given by the Italian jurist Amedeo Giannini, see Romanelli, Contributo della dottrina italiana all’unificazione del diritto della navigazione aerea, in Arch. giur. «Filippo Serafini», 1986, 261.
The reference is to P.S. Mancini, Prelezione al corso di diritto pubbllico
marittimo insegnato nella R. Università di Torino nell'anno 1852-1853,
speech given on 29 November
 Griggs, Obstacles to Uniformity of Maritime Law, The Nicholas J. Healy Lecture, in J. Mar. L. & Com. 34/2003 191 at 192.
 English translation of the sentence quoted by P. J. S. Griggs is by Lilar - van den Bosch, Le Comité Maritime International 1897-1972, Antwerpen, 1972, at 6..
 According Article 4, § 2, lett. a of Hague Rules, «Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from .... Act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship» (not amended by Hague Visby Rules).
 See the
relevance given to that navigation aid by the co called COLREG (Convention on
the international regulation for preventing collisions at sea London, 1972).
See Murphy, The Legal Implications of Marine Radar, in J.M.L.C. 7/1975-76,
 See Epstein, Global Positioning System (GPS): defining the legal issues of its expanding civil use, in J.A.L.C. 61/1995, 243.
 AIS is the acronym for Automatic Identification System. It is mandatory under Regulation 19 of SOLAS Chapter V. SOLAS is the acronym of Safety of Life at Sea Convention (Convention of London of 1st November 1974; Colombia has deposited its instrument of accession on 31 October 1980).
 Words by Tetley, General Average Now and in the future,
http://www.mcgill.ca/files/maritimelaw/genaverage.pdf, at 38. On
the relationship between general average regime and the evolution of insurance,
 It was incorporated in Roman legislation, as it is mentioned in the Digest: D. 15, 1, 38; D. 22, 2, 1.
 See Persico, Le assicurazioni marittime, I, Genova, 1947, 3; Stone, Canada's Admiralty Court in the Twentieth Century, in McGill L.J., 47/2002, 511, at 530.
 Though a
discipline of bottomry («prestito a
cambio marittimo») was contemplated by the Italian code of commerce
of 1882 (Articles 590 to 603) as well as in the previous Italian code of
commerce of 1865 (Articles 426 to 445), that was not reproduced in the Italian
code of navigation of 1942, still in force. The French discipline of bottomry («prêt à la grosse»)
(artiche 317 of French Code de Commerce
of 1807) has not been formally abrogated till a few times ago. Although
English maritime law still maintains a maritime lien for bottomry, evolution in
trade has made that virtually obsolete. On the relationship
between the evolution of insurance and the bottomry, see A.
International Convention for the Unification of Certain Rules Relating to
International Carriage by Air, Signed at
 Text reproduced in the famous work by Pardessus, Collection des lois maritimes, II, Paris, 1834, at p. 49 et seqq.
 See Zeno, Storia del diritto marittimo italiano, Milano 1946, at p. 199. See also Boucher, Consulat de la mer ou Pandectes de droit commercial et maritime, Paris, 1808, sub I.2, 9, at p. 45
 See von Ziegler, The Comité Maritime Internationale (CMI): the voyage from 1897 into the next millenium, in Un. Law Rev., 1997, 728.
 According to its constitution (article 1), the object of the organization is «to contribute by all appropriate means and activities to the unification of maritime law in all its aspects».
 Brussels Convention of 29 November 1969 on Civil Liability for Oil Pollution Damage, successively integrated by the Brussels Convention of 18 December 1971 on the Establishment of an International Fund for Compensation for Oil Pollution Damage, to form the C.L.C. System. Text of Fund Convention today replaced by the London Protocol of 27 November 1992.
International Convention Relating to Intervention on the High Seas in Cases of
Oil Pollution Casualties signed at
 For such a consideration, see the web page of Greenpeace referred to the incident of the Prestige: http://www.greenpeace.org/international/news/prestige-one-year-on.
International Convention for the Unification of Certain Rules Relating to
International Carriage by Air, Signed at
for the Unification of Certain Rules Relating to International Carriage by Air,
 Protocol to
Amend the Convention for the Unification of Certain Rules Relating to International
Carriage by Air, Signed at Warsaw on 12 October 1929, done at The Hague On 28
September 1955; Protocol to Amend the Convention for the Unification 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 Guatemala City, on 8 March 1971 (never entered in force); Protocol No. 1 to
Amend Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on 12
October 1929, Signed at Montreal,
on 25 September 1975; Protocol No. 2 to Amend Convention for the Unification 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; Protocol No. 3 to Amend
Convention for the Unification 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 and at Guatemala City on 8 March 1971,
Signed at Montreal, on 25 September 1975; Protocol No. 4 to Amend Convention
for the Unification 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.
 Convention Supplementary to the Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air Performed by a Person other than the Contracting Carrier, Signed in Guadalajara on 18 September 1961 (not ratified by Colombia).
 See Clarke, IATA: the First 50 Years - What's Past Is Prologue, in A.A.S.L., XX/1995, I, 29; See Videla Escalada, Manual de derecho aeronautico, cit., 233 et seqq.
Intercarrier Agreement of 31 October 1995 (IIA and Agreement on Measures to Implement
the IATA Intercarrier Agreement (MIA). See Böckstiegel,
A Historic Turn in International
Air Law: the New IATA Intercarrier Agreement on Passengers Liability Waives
Liability Limits, in Z.L.W., 1996,
18; Hedrick, The New Intercarrier Agreement on Passenger Liability: Is It a Wrong
Step in the Right Direction? in A.A.S.L.,
1996, II, 135; Martin, The 1995 IATA Intercarrier Agreement: Proposed Special Contract
Amendments to the
 On the
present EC transport policy, see European
transport policy for 2010: time to decide, document by Commission of the
European Communities COM(2001) 370 final (
 See Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage).
 See Council Regulation (EEC) No 2408/92 of 23 July 1992 on access for Community air carriers to intra-Community air routes, as a part of the «third package» for liberalisation of air transport.
 1999 Montreal Convention, like Warsaw Convention, applies ex se only to «international carriage», that is a carriage between to Countries both party of that Convention, or even between two point of the same Country, but with a stop in a foreign Country, tough not party to the Convention. The main field of application of such a EC Regulation seems to be that of domestic flights.
 See Council Regulation (EEC) No 295/91 of 4 February 1991 establishing common rules for a denied-boarding compensation system in scheduled air transport, abrogated by the successive Regulation (EC) No 261/2004.
 See Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91. See Rosafio, Il negato imbarco, la cancellazione del volo e il ritardo nel trasporto aereo di persone: il regolamento n. 261/2004/CE, in Giust. civ., 2004, 469.
 See Commission Communication of the 21 June 2000 to the European Parliament and to the Council regarding the protection of air passengers in the European Union [COM(2000) 365 final].
 On the other hand, it has also to be remarked the progressive disappearing of the traditional family-owned or single purpose shipping company. See considerations by Gold, Learning from Disaster: Lessons in Regulatory Enforcement in the Maritime sector, in Review of European Community and International Environmental Law, 8/1999, 16, at 17. See also Buhler, Les affréteurs et la sécurité des transports maritimes, in D.M.F., 1999, 597 and (with reference to the «split up» policy in shipping world finalized to escape liability) García Pita y Lastre, Arrendamientos de buques y derecho maritímo (con especial referencia al «derecho de formularios»), Valencia, 2006, at 73 et seqq.
 33 U.S.C. 2701 et seq. ; see in general Rèmond-Gouilloud, Marées noires: les Etats-Unis à l’assaut (L’Oil Pollution Act 1990), in DMF, 1991, 339 ; Randle, The Oil Pollution Act of 1990: Its Provisions, Intent, and Effects, in Oil Pollution Deskbook – The Envronmental Law Reporter, Washington (D.C.), 1991, 3.
 The already
mentioned system of Brussels Convention of 29 November 1969 on Civil Liability
for Oil Pollution Damage, successively integrated by the Brussels Convention of
18 December 1971 on the Establishment of an International Fund for Compensation
for Oil Pollution Damage (Colombia has deposited
its instruments of accession of both Conventions in their original text, on 26 March
1990; effective date of denunciation: 25 January 2006. Instrument of accession
CLC Protocol of 1976 by
 See Robert, L’Erika: responsabilités pour un désastre écologique, Paris, 2003; Galiano, In the Wake of the PRESTIGE Disaster: Is an Earlier Phase-Out of Single-Hulled Oil Tankers the Answer?, in Mar. Law., 28/2003, 113; Kiss, L'affaire de l'Amoco-Cadiz, responsabilité pour une catastrophe écologique, in Journ dr. internat., 1985, 575.
 UNCLOS III deals with the marine environment primarily in Part XII. According to the introducing Article of that part, Article 192, «States have the obligation to protect and preserve the marine environment».
 The concept was defined in the report of the World Commission on Environment and Development (the so called Brundtland Report) in 1987 as «development that meets the needs of the present without compromising the ability of future generations to meet their own needs».
 The Polluter
Pays Principle was first widely discussed in the United Nations Conference on
Environment and Development held in
 See Clarke, Port state control or sub-standard ships: who is to blame? what is the cure?, in LCMLQ 1994, 202.
 For duties falling on State of registration with reference to environmental protection, see UNCLOS III, art. 217.
Nations Convention on Conditions for Registration of Ships, signed at
 See UNCLOS III, article 87, dealing with «Freedom of the high seas», recognized to every State. The right to navigate is provided by Article 90.
 See Videla Escalada, La nacionalidad de las aeronaves: una vision hacia el futuro, in Aviacion comercial turismo derecho aeronautico y espacial, edited by Folchi, Buenos Aires, n.d., 185.
 In this line of tendency see the judgments of the European Court of Justice on 5th November 2005: Nrs. C-466/98 Commission vs. United Kingdom; C-467/98 Commission vs. Denmark; C-468/98 Commission vs. Sweden; C-469/98 Commission vs. Finland; C-471/98 Commission vs. Belgium; C-472/98 Commission vs. Luxembourg; C-475/98 Commission vs. Austria; C-476/98 Commission vs. Germany.
 As a
consequence of abovementioned decision of European Court of justice on
bilateral agreements on air services, European Union and
 Directive 2004/36/EC of the Parliament and of the Council of 21 April 2004 on the safety of third-country aircraft using Community airports introduced a harmonized approach to the effective enforcement of international safety standards in the Community by harmonizing the rules and procedures for ramp inspections of third-country aircraft landing at airports located in the Member States.
 With reference to the position of the «common carrier» , see Gortom, The Concept of Common Carrier in Anglo-American Law, Göteborg, 1971.
reference to «negligence clause», its origin and compatibility with
civil law systems, see Riccardelli, La colpa nautica, Padova, 1965, 18 ss. It was considered to be null
and void by many U.S. Federal Court decisions on the Second Half of the 19th
Century, because «against public
policy»: Railroad Co v Lockwood
84 U.S. 357 (1873); Phoenix Insurance
Co v Erie and Western Transportation Co 117 U.S. 312 (1886); Liverpool and Great Western Steam Co v
Phenix Insurance Co 129 U.S. 397 (1889); Compania de Navigacion
International Convention for the Unification of Certain Rules Relating to Bills
of Lading for the Carriage of Goods by Sea, Brussels, 25th August 1924;
Protocol to Amend the International Convention for the Unification of Certain
Rules of Law Relating to Bills of Lading, Brussels, February 23, 1968.
Nations Convention on the Carnage of Goods by Sea,
 See, among
others, Bentivoglio, International Air Carriage of Passengers and
Cargo: from Warsaw (1929) to Montreal (1975) and Beyond, in Thesaurus Acroasium, X/1981, 289, at
 See Berlingieri, Uniformité de la loi sur le transport maritime. Perspectives de succès, in Dir. mar., 2001, 949.
 See United Nation,
General Assembly, doc. A/CN.9/594 of 24 April 2006, Report of Working Group III
(Transport Law) on the work of its seventeenth session (
International Convention for the unification of certain rules relating to
Carriage of passengers by sea, signed at
 See Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, signed on 13 December 1974 (so called PAL 1974) as amended by the Protocol adopted at London on 1st November 2002 (so called PAL Prot 2002). Colombia is not part of that Convention.
 See Berlingieri, L’adozione del Protocollo 2002 alla Convenzione di Atene del 1974 sul trasporto per mare di passeggeri e loro bagagli, in Dir. mar., 2002, 1498; Griggs, Le protocole d’Athènes, in D.M.F., 2002, 291, 298.
 As regards
maritime transport, the Commission has already proposed that the Community and
 See, with reference to carrier liability towards passengers, the new (and ambiguous) text of Article 941 of Italian code of navigation, as amended by legislative decrees no. 96 of 2005 and no. 151 of 2006. According its paragraph 1, air carriage of passengers and baggage, including carrier liability for personal injuries of passengers, is regulated by international and EC rules in force in the Republic. A similar (and similarly ambiguous) rule is provided for air carriage of cargo under the new text of Article 951 of Italian code of navigation, as amended by legislative decree no. 151 of 2006.
 See the famous decision of U.S. Supreme Court in the case Tseng v. El Al Israeli Airlines, 525 U.S. 155 (1999). See (in Italian language) the critical commentary by Rosafio, In tema di ammissibilità di azioni risarcitorie, in Dir. trasp., 2000, 205.
See Wilson – Geraghty, The Progeny of Tzeng, in Air & Sp. L., XXV/2000, 62, at 72; Folchi, sub Artículo
 See, in a
critical view, Field, Air Travel, Accidents and Injuries: Why the
New Montreal Convention is Already Outdated, in Dalhousie L.J. 28/2005, 69, at 84; Sarmiento Garcia, Estructura
de la responsabilidad del transportador aéreo en el Convenio de Montreal
 Since 1996,
the Australian Carriers’ Liability Act has provided a A$500,000 liability
limit for Australian domestic carriers and 260,000 Special Drawing Rights
 Council Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in the event of accidents. For a commentary, see Romanelli, Il regime di responsabilità del vettore aereo per infortunio al passeggero, in Studi in memoria di Maria Luisa Corbino, Milano, 1999, 749. See also M. Botana Agra, La ilimitación de la responsabilidad del transportista aéreo comunitario por daños a los pasajeros en caso de accidente: un estudio del Reglamento (CE) 2027/1997, Madrid, 2000.
 Protocol of
2002 to the Athens Convention Relating to the Carriage of Passengers and their
Luggage by Sea, 1974, done at
 Article 423 of
Italian Code of navigation, as interpreted by most Courts: See, e.g., Italian
Court of cassazione, 27 April 1984, No.