CMI - SINGAPORE

1 Introduction

The purpose of this Agenda Paper is to provide a framework for the discussion of "Issues of Transport Law". For the background of that agenda item, see CMI Yearbook 1999, pages 117-120.

The Agenda Paper is based on and should be read together with (i) the paper entitled "Door to Door Transport", (ii) the draft Outline Instrument, and (iii) the paper entitled "Electronic Commerce Implications of the Draft Outline Instrument". It is intended to identify a number of questions which are regarded as being of particular importance and as such deserving particular consideration at the Conference by the membership of the CMI.

The paper is divided into three sections, i.e. Scope of Application, Liability and Transport Documents, all with subsections. To a considerable degree the sections are interrelated and some of the subsections are equally important in several contexts. It is also appreciated that there may be diverging views as to which issues are most important and that the selection of issues made herein can be discussed. In view of the limited time available during the Conference for consideration of "Issues of Transport Law", a selection must be made and the Agenda Paper has selected issues that are important, although there may be others that are equally important. On that basis, it is hoped that the structure which has been chosen will be conducive to fruitful deliberations.

2 Scope of Application

2.1 Type of instrument

The first, and no doubt also the last question to be addressed is what kind of instrument should be the result.

Should it be a

- convention (which is binding on Contracting States unless the convention allows them to derogate in their national law from certain of its provisions)

- model law (an example for the national legislator)?

— To what extent the subjects of the convention/model law should be mandatory for the private parties involved in the performance of a contract of carriage, or are unsuitable for a mandatory regime, thus permitting the private parties to exclude its provisions by contract.

2.2 Period of responsibility

The main questions to be addressed are whether the period of responsibility should be

— limited to the "tackle to tackle" period as in the Hague-Visby Rules;

— limited to the period during which the carrier is in charge of the goods at the port of loading, during the carriage and at the port of discharge, as in the Hamburg Rules; if so

- how should the "port" be defined for the purposes of pick up and delivery services, cfr Warsaw Convention 1955 Article 15.3

— extended to cover inland carriage preceding or subsequent to maritime carriage from the place and point of time where and when the goods are handed over by the shipper to the maritime carrier until the place and point of time where and when the goods are delivered to the consignee; if so,

- the nature and the limits of liability that should be applied to the inland part of the carriage, and

- how to define the borderlines between the different modes, which question is related to the gap filling issue.

2.3 Through transport

In relation to through transport a question is whether

— through transport should be permitted; if so whether

- the Instrument should have a set of relatively detailed provisions on the duties of the carrier as agent (or freight forwarder) as in 3.3 of the Outline Instrument; or

- there should be a more generally worded due diligence obligation.

3 Liability

3.1 Introduction

It is suggested that consideration of liability should be given against the backdrop of the work of the CMI International Sub-Committee on the Uniformity of the Law of the Carriage of Goods by Sea, see CMI Yearbook 1999, pages 105 - 116. It is noted, for the sake of order, that many of the issues raised in the paper entitled "Door to Door Transport" are of course directly relevant for the consideration of liability.

3.2 Basis of liability

It is suggested that consideration should first be given to the question as to whether liability should

— be based on fault such as in the Hague-Visby Rules and the Hamburg Rules; or

— be more stringent such as in the Convention on the Contract for the International Carriage of Goods by Road 1956 (CMR) or in the United Nations’ Convention on Contracts for the International Sale of Goods 1980 (CISG), see 5.1 of the Outline Instrument.

3.3 General or detailed provisions

Once a decision on the basis of liability has been taken, consideration might be given to the question as to whether

— the relevant provisions should be of a general nature, such as in the Hamburg Rules and the CISG; or

— they should be more detailed as in the Hague-Visby Rules or the CMR.

3.4 Exemptions

Subsequent to that, consideration could be given as to whether

— there should be any exemptions from the general rules on liability, such as for error in the navigation or management of the vessel, cfr. Article IV.2 a of the Hague-Visby Rules.

3.5 Burden of proof

The issue of the burden of proof may have to be considered.

3.6 Performing carrier’s liability

It is envisaged that a performing sub-carrier will be directly liable to cargo interests for loss of or damage to the goods, possibly also including delay (cfr. 3.7 below), occurring during the period when the goods in question are in the performing carrier’s custody. On that basis, consideration might be given to

— whether the definition of performing carrier (cfr 1.4 of the Outline Instrument) should be narrowed to include only a person who is engaged to carry (cfr CMNI1 Article 1.3), possibly supplemented by a Himalaya provision to protect other subcontractors than performing carriers

— to what extent the liability of the performing carrier should be affected by

- the fact that a declared value has been inserted in the transport document, cfr. 5.7.1 of the Outline Instrument

- the fact that a specific time of delivery has been agreed with the contracting carrier, cfr. 5.4.1 of the Outline Instrument, or

- the contents of the transport document, cfr. 7.2.3 (b) and 7.3.3 of the Outline Instrument

Another issue in relation to the performing carrier is whether

— there should be a presumption, such as in 7.4.2 of the Outline Instrument, that the registered owner of a performing vessel is the performing carrier; and

— whether there should also be a presumption that the registered owner of the vessel named in the transport document shall be the contracting carrier if the transport document is ambiguous in that respect, cfr. 7.4.2 of the Outline Instrument.

Finally, it is noted that the liability issues raised in the paper entitled "Door to Door Transport" are of course also directly relevant for the performing carrier’s liability when it is not a sea carrier.

3.7 Delay

It should be considered whether

— there is a need for special provisions for liability for delay and, if so, if there is a need for special provisions regarding the limitation of such liability, cfr. 5.4 of the Outline Instrument.

3.8 Loss of right to limit liability

It is assumed that a new Instrument will provide for a right for the carrier to limit its liability. It is further assumed that it would be premature to discuss actual limits of liability at this stage. However, consideration might be given to the question as to whether

— "breakable behaviour" by a servant or agent, including a performing sub-carrier, of the carrier, i.e. acts or omissions which are such that the acting or omitting person loses its right to limit its liability, should result also in the loss of the contracting carrier’s right to limit its liability.

3.9 Shipper’s responsibilities and its liability therefor

With reference to section 6 of the Outline Instrument and particularly 6.5 and 6.6 consideration might be given as to whether the basis of shippers’ liability should be fault liability or a more stringent liability.

Consideration might also be given as to whether a distinction should be made between liability for damage caused by dangerous cargo on the one hand and liability caused by other cargo on the other hand.

Further, questions of limitation of shippers’ liability and time bar may also merit consideration.

4 Transport documents

4.1 Transfer of rights and obligations

The Outline Instrument covers more substance and is more detailed with respect to transport documents, their contents and related rights and obligations than the existing international carriage of goods conventions. It is suggested the following topics should be discussed

— transfer of rights, see 11 of the Outline Instrument, including transfer of control, as dealt with in 10.1 (b) of the Outline Instrument

— right of control, cfr. 10 of the Outline Instrument

— the function of the bill of lading as a document of title, cfr. 10.2 (b), 11.1 to 11.5 of the Outline Instrument

— rights and obligations of the carrier and consignee as regards delivery cfr. 9.4 of the Outline Instrument.

4.2 Cargo information in transport documents

It should be considered whether the Outline Instrument is satisfactory with respect to

— the detail of the information required, see 7.2.1 and 7.2.3 of the Outline Instrument

— carriers’ duty to check and right to qualify information in the transport document, see 7.2.2 and 7.3.5(b) of the Outline Instrument

— liability for incorrect information, see 6.5, 7.2.3, 7.3.3, 7.3.6 and 7.4 of the Outline Instrument.

5 Electronic Commerce

It is clearly an objective that the Instrument should be operable also in relation to a documentation system which is entirely or partly paperless. In this context consideration should be given as to

— what principles should be followed in order to make the Instrument capable of being applied to electronically concluded contracts of carriage or transport documents and to otherwise permit the use of electronic means of communication.

1 Budapest Convention on the Contract for Carriage of Goods in Inland Navigation 2000.





		1 Introduction The purpose of this Agenda Paper is to provide a framework for the discussion of "Issues of Transport Law". For the background of that agenda item, see CMI Yearbook 1999, pages 117-120. The Agenda Paper is based on and should be read together with (i) the paper entitled "Door to Door Transport", (ii) the draft Outline Instrument, and (iii) the paper entitled "Electronic Commerce Implications of the Draft Outline Instrument". It is intended to identify a number of questions which are regarded as being of particular importance and as such deserving particular consideration at the Conference by the membership of the CMI. The paper is divided into three sections, i.e. Scope of Application, Liability and Transport Documents, all with subsections. To a considerable degree the sections are interrelated and some of the subsections are equally important in several contexts. It is also appreciated that there may be diverging views as to which issues are most important and that the selection of issues made herein can be discussed. In view of the limited time available during the Conference for consideration of "Issues of Transport Law", a selection must be made and the Agenda Paper has selected issues that are important, although there may be others that are equally important. On that basis, it is hoped that the structure which has been chosen will be conducive to fruitful deliberations. 2 Scope of Application 2.1 Type of instrument The first, and no doubt also the last question to be addressed is what kind of instrument should be the result. Should it be a - convention (which is binding on Contracting States unless the convention allows them to derogate in their national law from certain of its provisions) - model law (an example for the national legislator)? — To what extent the subjects of the convention/model law should be mandatory for the private parties involved in the performance of a contract of carriage, or are unsuitable for a mandatory regime, thus permitting the private parties to exclude its provisions by contract. 2.2 Period of responsibility The main questions to be addressed are whether the period of responsibility should be — limited to the "tackle to tackle" period as in the Hague-Visby Rules; or — limited to the period during which the carrier is in charge of the goods at the port of loading, during the carriage and at the port of discharge, as in the Hamburg Rules; if so - how should the "port" be defined for the purposes of pick up and delivery services, cfr Warsaw Convention 1955 Article 15.3 — extended to cover inland carriage preceding or subsequent to maritime carriage from the place and point of time where and when the goods are handed over by the shipper to the maritime carrier until the place and point of time where and when the goods are delivered to the consignee; if so, - the nature and the limits of liability that should be applied to the inland part of the carriage, and - how to define the borderlines between the different modes, which question is related to the gap filling issue. 2.3 Through transport In relation to through transport a question is whether — through transport should be permitted; if so whether - the Instrument should have a set of relatively detailed provisions on the duties of the carrier as agent (or freight forwarder) as in 3.3 of the Outline Instrument; or - there should be a more generally worded due diligence obligation. 3 Liability 3.1 Introduction It is suggested that consideration of liability should be given against the backdrop of the work of the CMI International Sub-Committee on the Uniformity of the Law of the Carriage of Goods by Sea, see CMI Yearbook 1999, pages 105 - 116. It is noted, for the sake of order, that many of the issues raised in the paper entitled "Door to Door Transport" are of course directly relevant for the consideration of liability. 3.2 Basis of liability It is suggested that consideration should first be given to the question as to whether liability should — be based on fault such as in the Hague-Visby Rules and the Hamburg Rules; or — be more stringent such as in the Convention on the Contract for the International Carriage of Goods by Road 1956 (CMR) or in the United Nations’ Convention on Contracts for the International Sale of Goods 1980 (CISG), see 5.1 of the Outline Instrument. 3.3 General or detailed provisions Once a decision on the basis of liability has been taken, consideration might be given to the question as to whether — the relevant provisions should be of a general nature, such as in the Hamburg Rules and the CISG; or — they should be more detailed as in the Hague-Visby Rules or the CMR. 3.4 Exemptions Subsequent to that, consideration could be given as to whether — there should be any exemptions from the general rules on liability, such as for error in the navigation or management of the vessel, cfr. Article IV.2 a of the Hague-Visby Rules. 3.5 Burden of proof The issue of the burden of proof may have to be considered. 3.6 Performing carrier’s liability It is envisaged that a performing sub-carrier will be directly liable to cargo interests for loss of or damage to the goods, possibly also including delay (cfr. 3.7 below), occurring during the period when the goods in question are in the performing carrier’s custody. On that basis, consideration might be given to — whether the definition of performing carrier (cfr 1.4 of the Outline Instrument) should be narrowed to include only a person who is engaged to carry (cfr CMNI1 Article 1.3), possibly supplemented by a Himalaya provision to protect other subcontractors than performing carriers — to what extent the liability of the performing carrier should be affected by - the fact that a declared value has been inserted in the transport document, cfr. 5.7.1 of the Outline Instrument - the fact that a specific time of delivery has been agreed with the contracting carrier, cfr. 5.4.1 of the Outline Instrument, or - the contents of the transport document, cfr. 7.2.3 (b) and 7.3.3 of the Outline Instrument Another issue in relation to the performing carrier is whether — there should be a presumption, such as in 7.4.2 of the Outline Instrument, that the registered owner of a performing vessel is the performing carrier; and — whether there should also be a presumption that the registered owner of the vessel named in the transport document shall be the contracting carrier if the transport document is ambiguous in that respect, cfr. 7.4.2 of the Outline Instrument. Finally, it is noted that the liability issues raised in the paper entitled "Door to Door Transport" are of course also directly relevant for the performing carrier’s liability when it is not a sea carrier. 3.7 Delay It should be considered whether — there is a need for special provisions for liability for delay and, if so, if there is a need for special provisions regarding the limitation of such liability, cfr. 5.4 of the Outline Instrument. 3.8 Loss of right to limit liability It is assumed that a new Instrument will provide for a right for the carrier to limit its liability. It is further assumed that it would be premature to discuss actual limits of liability at this stage. However, consideration might be given to the question as to whether — "breakable behaviour" by a servant or agent, including a performing sub-carrier, of the carrier, i.e. acts or omissions which are such that the acting or omitting person loses its right to limit its liability, should result also in the loss of the contracting carrier’s right to limit its liability. 3.9 Shipper’s responsibilities and its liability therefor With reference to section 6 of the Outline Instrument and particularly 6.5 and 6.6 consideration might be given as to whether the basis of shippers’ liability should be fault liability or a more stringent liability. Consideration might also be given as to whether a distinction should be made between liability for damage caused by dangerous cargo on the one hand and liability caused by other cargo on the other hand. Further, questions of limitation of shippers’ liability and time bar may also merit consideration. 4 Transport documents 4.1 Transfer of rights and obligations The Outline Instrument covers more substance and is more detailed with respect to transport documents, their contents and related rights and obligations than the existing international carriage of goods conventions. It is suggested the following topics should be discussed — transfer of rights, see 11 of the Outline Instrument, including transfer of control, as dealt with in 10.1 (b) of the Outline Instrument — right of control, cfr. 10 of the Outline Instrument — the function of the bill of lading as a document of title, cfr. 10.2 (b), 11.1 to 11.5 of the Outline Instrument — rights and obligations of the carrier and consignee as regards delivery cfr. 9.4 of the Outline Instrument. 4.2 Cargo information in transport documents It should be considered whether the Outline Instrument is satisfactory with respect to — the detail of the information required, see 7.2.1 and 7.2.3 of the Outline Instrument — carriers’ duty to check and right to qualify information in the transport document, see 7.2.2 and 7.3.5(b) of the Outline Instrument — liability for incorrect information, see 6.5, 7.2.3, 7.3.3, 7.3.6 and 7.4 of the Outline Instrument. 5 Electronic Commerce It is clearly an objective that the Instrument should be operable also in relation to a documentation system which is entirely or partly paperless. In this context consideration should be given as to — what principles should be followed in order to make the Instrument capable of being applied to electronically concluded contracts of carriage or transport documents and to otherwise permit the use of electronic means of communication. 1 Budapest Convention on the Contract for Carriage of Goods in Inland Navigation 2000.