News Maritime Law & Law of International Trade The Pandora's Box of Unimodal Transport Regimes in a Multi-Modal World: Reasons why Malaysia needs a Multi-Modal Transport Framework by Dr Irwin U.J. Ooi 
| The Pandora's Box of Unimodal Transport Regimes in a Multi-Modal World: Reasons why Malaysia needs a Multi-Modal Transport Framework by Dr Irwin U.J. Ooi |
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| Thursday, 17 November 2005 05:00pm | |
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THE PANDORA’S BOX OF UNIMODAL TRANSPORT REGIMES IN A MULTIMODAL WORLD: By INTRODUCTION The nation is currently enjoying a steady growth in the movement of goods through its ports. For instance, in the first nine months of 2005, container throughput at both Northport and Westport reached 4.11 millions TEUs, a 4.2 percent increase for the same period last year.[1] More interestingly though is another statistical fact, 53 percent or 2.17 million TEUs, consisted of transhipment cargo, an impressive 5.4 percent improvement on 2004’s figures.[2] These numbers do not lie and it is clear that the nation is now on the brink of becoming the region’s transhipment hub of choice as its ports now predominantly handle cargo that does not originate from Malaysia or destined for Malaysia. The use of containers has spurred the growth of multimodal transport[3] and any nation that has ambitions of developing itself into a transhipment centre, cannot rely on the traditional business model of unimodal transportation. In order for the nation to take full advantage of economic opportunity that is ripe for exploitation, serious thought must now be directed towards the task of putting in place a comprehensive multimodal legal framework for Malaysia. Its purpose would be to provide the comfort of legal certainty for business so that an accurate assessment could be made of the cost of operating a multimodal transport business.[4] After all, it is only about a year ago that a fellow of the Maritime Institute of Malaysia pointed out that the “intense concentration in cargo traffic …has spawned a complex web of hub and feeder shipping networks within the region and with the rest of the world”.[5] This paper is an examination of the underlying legal reasons why the nation needs to adopt a multimodal transport framework for cargo liability. A FRAGMENTED APPROACH Is Malaysia a signatory to any international convention on multimodal transport law? The answer to that question would have to be negative. The United Nations Convention on International Multimodal Transport of Goods[6] has been around since 1980, but no study has been made as to the feasibility of adopting that particular legal framework for the commercial transportation of goods in Malaysia. This rather laissez faire attitude towards the regulation of transport, especially of the maritime sector,[7] is also evident in the current practice of continued reliance on an outdated Hague Rules regime.[8] There is also further evidence of this laidback attitude with the regulation of merchant shipping, where the relevant legislation dates back to pre-Independence.[9] The Department of Transport plans to introduce a new Merchant Shipping Bill, but it has not yet been tabled in Parliament.[10] As there is no single comprehensive regime governing multimodal transport in Malaysia, the option that the nation has resorted to, is a piecemeal approach. There are separate legal regimes for each mode of transport, i.e. more appropriately described as a cobbling together of various unimodal regimes. This has produced a rather fragmented approach to liability and compensation, as the rules for each mode of transport has its own peculiarities. Compounding this problem is also the multiple documents that are issued, i.e. one for each mode of transport. With more disparate documentation and the application of different regimes, the chances of legal inconsistency and contradiction are multiplied. A good example of this fragmented approach is the different method of regulation adopted for the carriage of goods by sea and air, as opposed to the carriage of good by road and rail. Goods that are carried by sea and air are governed by international regimes. The Carriage of Goods by Sea Act 1950[11] uses a statutory “clause paramount” technique[12] to compulsorily incorporate into a bill of lading or similar document of title a clause stipulating that the Hague Rules[13] apply to goods carried from any port in Malaysia to any other port whether in or outside Malaysia.[14] Similarly, the Carriage by Air Act 1974[15] applies the Warsaw Convention[16] to carriage of goods by air.[17] By contrast, carriage of goods by road is regulated through national licensing laws. The Commercial Vehicles Licensing Board Act 1987[18] empowers the licensing authority[19] to impose conditions when issuing licences.[20] These conditions include the types of goods that could be carried, documentation, as well as the maximum and minimum charges for carriage. As the licensing framework is largely regulatory in nature, the rules for cargo liability, between a road hauler and a consignor or consignee, is governed largely by the principles of freedom of contract. In practice, this means contracting on the basis of a road haulage association’s standard terms, or the road hauler’s standard form carriage contract.[21] Most of the road haulers in Malaysia are able to rely on the principles of freedom of contract because they are private carriers. Although there is legislative provision to impose common carrier liability,[22] this is rarely, if ever, used in practice. Similarly, when goods are carried by rail in Malaysia, the carriage is not governed by any international convention. Instead, the nation has adopted for regulation via national legislation, e.g. the Railways Act 1991.[23] Just like the framework for carriage of goods by road, the regime here is largely regulatory.[24] Hence once again, the rules for cargo liability between a rail carrier and a consignor, is governed largely by the principles of freedom of contract. In Malaysia, this means contracting on the basis of Keretapi Tanah Melayu Bhd[25] standard terms and conditions.[26] This is supplemented with a statutory lien for freight owed,[27] and a corresponding a power of sale.[28] KTMB is able to take advantage of the principle of freedom of contract because it performs its obligations as a private carrier.[29] Problems relating to the fragmented approach of adopting different unimodal regimes are exacerbated by the fact that other States around the world also have different regimes. For example, a shipment from Malaysia that arrives at a port in Europe, may be subjected to the C.M.R.[30] if carried inland by road, or C.O.T.I.F. Convention[31] if carried by rail from that port. Malaysia is not a signatory to either of those two conventions. A further illustration of the impact of the fragmented approach is where goods destined for Malaysia are loaded at a port that does not apply the Hague Rules, for example, the port of Felixstowe. England applies the amended version of the Rules, the Hague-Visby Rules.[32] By contrast, if goods were loaded at Zhanjian, China, and then sent to Wesport, Klang, the applicable carriage of goods by sea regime would be a hybrid of the Hague-Visby Rules and the Hamburg Rules.[33] Hence, it is also clear that there is a lack of uniformity even within maritime community on the legal regime for carriage of goods by sea.[34] UNCERTAINTIES DURING CHANGE OF MODE OF TRANSPORT The lack of coherence between the different rules for each mode of transport is a nightmare for any carrier and its customers because of the legal uncertainty that exists, each time goods are transferred from one mode to another. For example, when a container is transferred from one carrier to another, an interchange receipt is drawn up between the two carriers. The purpose of this receipt is to document the apparent state of the container. This is usually done by means of a printed drawing on which the location of dents, holes and other damage is indicated, complemented by written comments on the state of the container.[35] More often than not, because containers are sealed,[36] the evidential value of this receipt is limited to indicating external damage on the container. It enables such damage to be attributed to a carrier of a particular mode. The carrier receiving custody of the container would be able to use the receipt to show that the damage to the container occurred while it was in the custody of the previous carrier. If a carrier were to be sued by a claimant for damaged cargo, the interchange receipt would be useful in proving that the damage to the container did not occur during its period of responsibility in the transit. However, the receipt has its limitations. What it does not do is indicate which carrier is responsible for damage to cargo that stored within each individual container. It is evident from the language used in such receipts that it is not proof of internal damage.[37] Operating as merely an indication of the occurrence of external damage to the container, it is thus probably useful only to companies that lease containers, as it enables them to identify the carrier responsible for the damage. The driving force behind the use of these receipts is the reliance on multiple unimodal regimes for cargo liability. The receipt is an indicator of which carrier is responsible for the damage and thus a potential defendant in a cargo claims suit. If there were only one multimodal regime that covered the transport of goods from door-to-door, there would be no need for such a receipt. Any cargo claimant would just have to sue the multimodal transport operator. There would be no need to sue a particular carrier under the relevant unimodal regime. From the point of view of a cargo claimant, litigation would be less complicated because from an evidential point of view, as there would not be a need to attribute responsibility to a carrier of a particular mode of transport. THE STRETCHING UNIMODAL REGIMES There is a global demand for a door-to-door multimodal transport service and some unimodal carriers have diversified by acquiring companies to augment their current operations, for example, a sea carrier purchasing a road haulage company to perform the delivery of containers from the port, to a specific inland destination. Taking a slightly different route, companies such as Malaysian International Shipping Corporation Bhd have taken the giant leap of incorporating a subsidiary called MISC Integrated Logistics Sdn Bhd to provide a total logistics solution for its clients.[38] Even rail carriers have jumped on the bandwagon, for instance, KTMB also has a wholly owned subsidiary, Multimodal Freight Sdn Bhd that operates a fleet of 225 prime movers and 1,300 trailers.[39] The temptation for any parent company that operates an ocean shipping business is to only issue one document for the carriage and then extend its application to land transport when the goods are carried by its subsidiary to an inland destination. The document that is issued to the consignor would therefore be a pure ocean document such as a shipped bill of lading. Through the magic of contractual drafting, a clause would then be used to stretch this document to cover the land carriage as well. This augmentation of the sea transport document is performed via a method known as a clause paramount. For example, a shipped bill of lading incorporating the Hague Rules, a pure ocean document, could in theory be stretched to cover haulage of a container by road.[40] The clause paramount method of applying a purely maritime regime to another mode of transport is fraught with danger. For example, some legal concepts such as an error in navigation exclusion, is purely applicable to carriage of goods by sea and cannot be extended to carriage of goods by road. In the U.S. case of Vistar S.A. v Sea Land Express,[41] an error of navigation clause could not relieve a sea carrier from liability for damage to goods caused by a road accident because that exception was purely applicable to damage caused by errors of navigation of a seagoing vessel. If the exclusion clause was vague as it was in this case, the court was not under a duty to extend it in favour of the carrier. Another example of a pure maritime exclusion is “perils, dangers and accidents of the sea and other navigable waters”. Clearly there is no equivalent to carriage of goods by road as “perils of the land” is not a concept that is known to law. It is impossible to think of an equivalent of damage caused by the action of waves on land. Damage by a tsunami to cargo on board a truck travelling along a coastal road would not be a peril of the land and the closest exclusion would be an act of God. Sea carriers should take heed that “maritime law as such cannot apply ex proprio vigore to other transport modes … [because] as a matter of law statutory provisions which are conventionally incorporated and which are typical of a certain mode of transport, cannot be made to apply by analogy to another transport mode.”[42] RELIANCE ON HIMALAYA CLAUSES When unimodal transport regimes are stretched beyond the scope of its intended application, the other side of that same problematic coin is an over-reliance on Himalaya clauses. As unimodal carriers are unable to provide a comprehensive door-to-door service, it is inevitable that independent contractors are engaged to perform this task. For example, a sea carrier may hire stevedores to unload goods from the ship and then also hire a road hauler to transport the goods to an inland destination. A sea-carrier usually enjoys the protection of exclusions in unimodal maritime cargo liability regimes such as the Hague Rules or Hague-Visby Rules. A Himalaya clause[43] is a contractual device that is used to extend the protection of these maritime exclusions to the other carriers or service providers in a multimodal logistics chain.[44] The Himalaya clause is an attempt to circumvent the rule on privity of contract. When this clause first came before the House of Lords in Scruttons Ltd. v Midland Silicones,[45] the Law Lords very firmly applied one of the pillars of English contract law. A third party that is not a signatory to the contract of carriage, could not take advantage of the exclusion clauses in that contract, although such clauses were clearly included for the benefit of that third party. In the context of multimodal transport, this is a disaster for any land carrier engaged by a sea-carrier to carry goods by road or rail to various inland destinations. Once the goods leave the possession of the sea-carrier and is transported by road or rail, carriers of that mode of transport would not be able to take advantage of exclusions clauses found in the contract of carriage between the sea carrier and the consignee. From a carrier’s point of view, the good news about Scruttons is that the House of Lords left a door ajar for the application of Himalaya clauses. Lord Reid stated that such a clause could be effective if it was expressly drafted to provide protection to third parties that render its services to the contracting carrier.[46] In The Eurymedon,[47] the Privy Council finally recognised the validity of such a clause. The sea carrier was held to be an agent of the stevedoring company and had contracted on behalf of the stevedores with the cargo interest, thus enabling the stevedores to enjoy the benefit of exclusion clauses found in a bill of lading. It is submitted that The Eurymedon could be confined to its own peculiar facts. First, the sea carrier in this case was in fact a subsidiary company of the stevedores. In practice, it is usually the other way around, with the stevedores usually being the subsidiary of a carrier company, more often than not, incorporated or acquired to augment the main service of carriage of goods. Second, it is unclear when the offer to handle the cargo by the stevedores was made to the consignee. Third, it was not possible to identify whether consideration was in fact given in return for the stevedores handling the cargo.[48] Despite the legal gymnastics that the Privy Council had to perform to give effect to what was a badly needed practical solution, The Eurymedon was in fact upheld a few years later. In The New York Star,[49] the Privy Council once again took a giant leap of faith in favour of commercial reality, where the relationship between the carrier and stevedore was no where as close as it was to the parent company and subsidiary relationship seen in the latter case. This in effect put to rest a line of cases decided in the Commonwealth that had refused to follow The Eurymedon on grounds of technicality.[50] It appears that as long as unimodal regimes for cargo liability continue to be used to solve what is in practical reality multimodal transportation of goods, there would be continued use of the Himalaya clause. Carriers should not however place undue-reliance on that clause because as recently as 2003, the House of Lords has indicated its willingness not to apply The Eurymedon and The New York Star on the basis of legal technicalities. A majority of the House of Lords in The Starsin,[51] held that a Himalaya clause was ineffective. Led by Lord Bingham, the reasoning in The Eurymedon and The New York Star was acknowledged as “a deft and commercially inspired response to technical English rules of contract, particularly to those governing privity and consideration”, but was then savagely criticised for its “undoubted artificiality”.[52] Lord Hobhouse even hints that judicial policy might be at work here when he says that applying The Eurymedon, “will put English Law at odds with those legal systems which are not based upon privity of contract”.[53] Lord Millet preferred the more traditional method of utilising the contra preferentem rule. His Lordship was strongly of the view that the Himalaya clause “does not make grammatical sense as it stands, and it is obvious that words have been omitted. The court must, therefore, supply the omission by implying at least the minimum necessary for the clause to make grammatical sense. … [I]t is inappropriate to adopt such a liberal approach in the case of an exemption clause. … [A]n exemption clause must be strictly construed and not given a wider application that can fairly be derived from the words used”.[54] If The Starsin is an indication of the current judicial hostility towards Himalaya clauses, carriers have to take greater care in drafting such clauses. The clause at the centre of the controversy in The Starsin is widely used in practice as it was drafted from a precedent inspired by The Eurymedon. It is submitted that judicial attempts to rein in the use of Himalaya clauses is commendable. When applied in the context of multimodal transport, the effect of a Himalaya clause could be to extend protection found in a maritime regime to non-maritime carriers. In the context of a pure marine framework like the Hague Rules, it raises conceptual difficulties. Since the Privy Council decision in Maxine Footwear Co. v Canadian Government Merchant Marine,[55] a sea-carrier must satisfy Article III(1) by providing a seaworthy vessel as a precondition for its reliance on the exclusions found in Article IV(2)(a)-(q). When a Himalaya clause extends the benefit of these exemptions to a road hauler carrying the goods from the port of discharge to an inland destination, linguistic gymnastics would have to be performed to make sense of the clause. One would have to read into the contract of carriage an obligation to provide a roadworthy prime mover and trailer. It is in this context that it is easy to appreciate the difficulty that Lord Millet faced in The Starsin as his Lordship found himself unable to read non-existent words into what was in effect an exclusion clause, a clause which the law required to construe strictly against the party relying on it. In this illustration, that would be the road hauler. Judicial reluctance to extend a maritime regime to non-maritime carriers appears to be confined to the United Kingdom. It evident from the Supreme Court’s decision in Norfolk Southern Railway Co. v James N. Kirby, Pty Ltd.,[56] that the highest court in the United States was prepared to go to great lengths in order to facilitate the application of a Himalaya clause. In Kirby, a rail carrier sought to use a Himalaya clause when a train carrying USD 1.5 million worth of goods was derailed while heading to Huntsville after picking up the goods from an ocean carrier at Savannah. The leading judgment of the Supreme Court is that of Justice O’connor who famously declared that Kirby was “a maritime case about a train wreck”,[57] perhaps alluding to the logical difficulty of applying the protection of a maritime regime to a rail carrier. This comment has been described as “a rebuke in disguise: a rebuke for decades of tormenting a pure maritime issue with the strict orthodoxy of ‘land-based’ common law”.[58] However, the Supreme Court was unanimous in its decision to allow the rail carrier to claim the protection of exclusions via the Himalaya clause. The core ruling dismisses the necessity of privity of contract between shippers and carriers because of the customs and practices of worldwide transport, where the number and identity of intermediaries handling the cargo is unknown.[59] In the context of transportation law, the Supreme Court held that a third party could enjoy the benefit of a contract of carriage if it was clearly intended to apply to that third party. On the facts of the case, it was clear from the broad Himalaya clause that the rail carrier was to enjoy the benefit of the exclusion clauses.[60] The decision in Kirby is indeed surprising because a little over 10 years ago in Caterpillar Overseas S.A. v Marine Transportation Inc.,[61] the Fourth Circuit held that a Himalaya clause could not protect an inland trucker hired by the sea carrier.[62] The court was unequivocal in its view that the “[t]ransportation of cargo down a group of public highways for a stretch of miles … is not a normal maritime operation”.[63] The problem with Kirby, noted one distinguished writer, is that the rationale for approving the “Himalaya clause in England now differs from the rationale in the United States”.[64] It is clear that this “divergence demonstrates a need for an international solution to this major trade problem”.[65] With the passing of the recent Contracts (Rights of Third Parties) Act 1999, the position in the England may not be very much different from the rule expounded in Kirby, as the principle of ius quaesitum tertio was made a part of English Law through the will of Pariliament. Under section 1, if a third party is identified or identifiable, he may enforce a term of the contract if that term purports to confer a benefit upon him. Although the 1999 Act is of general application, it was not long before it was found to be relevant in a maritime context, for example, in respect of letters of indemnities,[66] charterparties,[67] and towage contracts.[68] RELIANCE ON CIRCULAR INDEMNITIES A circular indemnity is a rather complicated legal device employed by a carrier to discourage a cargo claimant from suing servants of the carrier such as stevedores, road haulers or rail carriers. Due to its circular nature, a straightforward explanation will not suffice, but one writer has nice summed up the legal device in the following words: “In the main contract of carriage between the carrier and cargo interest, the latter positively undertakes not to bring any action as against the carrier’s servants, agents and independent contractors, or not to bring an action on terms more favourable than those available against the carrier. If they do, they will obviously be in breach of contract. The contract provides that the carrier will be indemnified against all consequences of this breach”.[69] From that succinct explanation, it is apparent that there are a few steps that have to occur to complete the circle. First, a clause is inserted into the contract of carriage between the carrier and the cargo interest. Under the terms of this clause, the cargo interest promises not to sue any servant, agent or independent contractor of the carrier. In some cases, the cargo interest promises that even if such a third party is sued, it would not be on terms more favourable than a claim that could be brought against the carrier. Second, if the cargo is damaged in transit by a third party to the contract of carriage, payment of damages is made, by the servant, agent or independent contractor of the carrier to the cargo interest under a lawsuit in tort. This lawsuit by the cargo interest has to be in tort as there is no privity of contract between the cargo interest and that third party to the contract of carriage. Third, the servant, agent or independent sub-contractor would claim an indemnity from the carrier under the terms of the sub-contract for the damages that are paid to the cargo interest under the lawsuit in tort. Fourth, the circle is complete when the carrier acts on the promise that was first included in the contract of carriage. The cargo interest would be liable to the carrier for a breach of the promise not to sue and has to indemnify the carrier for the financial consequences of the failure to keep that promise. The circular indemnity has received judicial approval in The Elbe Maru.[70] However, a search of the LEXIS database reveals that the English judiciary has not had a second bite of the cherry. Since 1978, circular indemnities have only been mentioned in passing once, recently in The Starsin.[71] This data could be interpreted in a number of ways. Circular indemnities work perfectly in practice and there has not been a need to litigate on the matter since The Elbe Maru. It is submitted that the more likely explanation is that this device is not very popular in practice due to several shortcomings. First, if such clauses are used at all, it is usually found in tandem with Himalaya clauses, “which remain the first line of defence”.[72] Second, the circular indemnity clause could not be used by, the carrier to prevent the cargo interest from suing its servants, agents or independent contractor. This has been the position since The Chevalier Rose [73] where a stay of the proceedings sought by the carrier was refused on the ground that the cargo interest had a good claim against the third party. As an academic once pointed out, the circular indemnity is only useful after the carrier has paid out an indemnity to the third party for the losses suffered in a lawsuit in tort brought by the cargo interest, i.e. “the carrier must pay the contractually agreed indemnity to the subcontractor before having recovered it himself from the cargo interest”.[74] He also adds that it “leaves the carrier exposed to the considerable risk of being confronted with cargo interests which are unwilling or unable to indemnify him, with whom he has possibly no previous relations, and whom he may be obliged to sue in a foreign jurisdiction”.[75] THE CARRIAGE OF CONTAINERS ON DECK The definition of “goods” under the Hague Rules does not include live animals and deck cargo.[76] The Hague Rules generally apply to “goods, wares, merchandise, and articles of every kind whatsoever”.[77] Containers are an important component of the multimodal transportation system and in practice, frequently carried on deck. Container vessels do have space below deck, in the cargo hold for stowage of containers, but the majority of containers will be stacked and secured on deck. When containers are kept in the yard prior to loading on board a ship, the master of the vessel usually has no idea where the container is going to end up on the ship. Whether a container ends up below deck in the cargo hold, or secured on deck, depends on the software system that maintains the trim, stability and ballasting of a vessel as the containers are picked up from the yard and loaded on board the ship. This uncertainty as to where the containers could eventually end up on a ship during the loading process can cause legal difficulties in unimodal maritime regimes such as the Hague Rules and Hague-Visby Rules. In order to claim the protection of the exclusion clauses in Art.IV(2)(a)-(q) of the Hague Rules, the regime must be applied to containers that are carried on deck. In order to do this, the containers must in fact be carried on deck and the bill of lading that is issued must have a clause in it stating that the container is in fact so carried.[78] This is bad news for the liner shipping industry because liner bills of lading do not contain any notation as to whether containers would be carried on the deck. One writer has explained that this is due to the system of numerical coordinates used in the Stowage Plan relating to length, width and height, i.e. a bay-row-tier system, and it is these numbers that are indicated in the bill of lading.[79] This legal position reflected in Article I has contributed to considerable legal difficulties for operations on board a container vessel because even a liberty to stow on deck clause is not sufficient does not satisfy the requirements of Article I.[80] Should the clause go even further and state that the carrier enjoy such liberty if the shipper does not raise any objection, that would still not satisfy the requirements of Article I.[81] There is also authority to show that the existence of such a clause would not be able to displace an oral promise made by the carrier to the shipper to carry the goods under deck.[82] The drafting of Article I, is also very clear that the words stating that goods are in fact carried on deck, must be found in the bill of lading itself. Such words would be ineffective if found in any other document.[83] If the carrier is in breach of the contract of carriage by carrying goods on deck, that breach cannot subsequently be remedied by stowing the goods below deck at a later stage.[84] The only good news for the carrier is that even if there has been a breach of the contract of carriage by stowage of goods on deck, the carrier is able to take advantage of the limitation of liability[85] and limitation of time[86] provisions in the regime. Even good news has its limits. There is a gap between the actual loading of the containers on board the deck of the ship and thereafter, the issuing of the bill of lading. If a container is dropped during the loading process, damaging its contents before a bill of lading could be issued,[87] and before it could be properly described as stowed on deck, the requirements of Article I would not be satisfied. Cargo only acquires the characteristics of deck cargo when it is put on deck. If there was a clause in the contract of carriage stipulating that the carrier has the right to enjoy certain exclusions when cargo is carried on deck, the carrier would not be able to take advantage of such a clause when the cargo never in fact reached the deck at all, but in fact dropped during the loading process.[88] Deck cargo such as a container is given different treatment under the Hague Rules because the carriage of cargo on deck is a deviation from the common law duty of the carrier to carry goods below deck in the cargo hold. The carriage of cargo on deck is deemed to be a riskier method of carrying goods by sea. Cargo that is stored below deck in the cargo hold is not exposed to the elements.[89] Although a container is designed to withstand the ordinary action of wind and waves while it is being stored on deck during the transit, it is submitted that such deck carriage is still riskier than if the container were stored in the cargo hold below. Containers that are stacked up high on the deck could fall overboard if the equipment used to lash it to the deck and to one another were to malfunction. [90] There is no such risk with a container stored below deck. Deck cargo is also subjected to temperature variation and if the container is a standard steel container, as opposed to a specially constructed container with thermal insulation, the cargo within would be vulnerable to temperature fluctuations.[91] FREIGHT FORWARDERS AND HOUSE BILLS A consignor that intends to send goods to another country is usually faced with the prospect of using more than one mode of transport, i.e. the use of three different modes of transport is not uncommon for a shipment. For example, a shipment from Ipoh, Malaysia, to Norwich, England, could involve the use of three different modes of transport. First, there would be rail carriage from Ipoh to Klang. Second, goods are transferred to a vessel and there is sea carriage from Klang to Felixstowe. The final leg of the transit would be road haulage from Felixstowe to Norwich. A consignor would be faced with the daunting task of sourcing three different carriers just to get the container to its intended destination. This is where freight forwarders provide a useful service in the logistics chain. A freight forwarder would arrange for the goods, to be collected from the doorstep of the consignor and ensures that it is delivered to the doorstep of the consignee. The task of obtaining the right carrier for each mode of transport would be left to the freight forwarder. From the point of view of the consignor, a daunting practical challenge is simplified as dealings are now confined to the freight forwarder. Documentation is also simplified, as the freight forwarder would usually issue a house bill of lading. The consignor need not worry about obtaining a rail consignment note from the rail carrier, a shipped bill of lading from the sea carrier, or a road consignment note from the road hauler. The freight forwarder would contract with each of those unimodal carriers and obtain the relevant documents to facilitate the transport of the goods. The only cargo document that would be in the possession of the consignor would be the house bill. The freight forwarder is therefore not a carrier,[92] but an auxiliary person, a professional intermediary between cargo interests and the carrier, who arranges and organises the carriage of goods from departure to destination, but who does not undertake to carry himself and who does not accept liability as a carrier.[93] The house bill is often mistakenly labelled as a multimodal transport document. It does not have the status of, a transport document, as a freight forwarder is not a multimodal transport operator. When the house bill is in the hands of either the consignor or the consignee, it only provides recourse against the freight forwarder. It is merely evidence that the freight forwarder has taken possession of the goods at the beginning of the transit process. A house bill is a contract between the freight forwarder and the consignor, or named consignee. It does not empower the consignee or consignor to sue the carrier directly for a breach of its terms because of the lack of privity of contract.[94] The house bill is also of little value in the context of raising finance because banks are able to reject it.[95] Adopting a multimodal regime would give the holder of a multimodal transport document the right to sue a single multimodal transport operator. There would no need to identify the stage of transit where the damage to the goods occurred, as only one operator would be liable for the whole transit. This would also circumvent the difficulty of suing the individual unimodal carriers in tort. CONCLUSION It is clear from the discussion above that it is not a question of ‘whether the nation needs a multimodal regime’, but rather ‘which regime should be adopted to remedy the problems’ and ‘how soon this could be done’. The United Nations Convention on International Multimodal Transport of Goods 1980 has been available for adoption for the last 25 years. It is unlikely to be widely received internationally as it “is considered by many states to be a companion treaty to the Hamburg Rules”.[96] The Hamburg Rules do not have the support of the major maritime nations. In fact, only India has enthusiastically embraced the 1980 Convention via the Multimodal Transportation of Goods Act 1993.[97] The recent UNCITRAL[98] Draft Instrument also provides a multimodal solution for the problems of combined transportation. It would indeed be a miracle if that instrument ever saw the light of day as it also attempts to deal with other subject matter such as electronic transport documents, freight, liens, rights of stoppage and also rights of suit, each in themselves very complicated indeed and demand individual international conventions.[99] Nevertheless, the UNCITRAL’s Working Group III on Transport Law is pressing ahead with a seemingly monumental task. Just a few months ago, it had its 15th session in New York from 18-28 April. The group will be meeting up again on 28 November to 9 December 2005 for its 16th session in Vienna. The sad thing about these developments is that Malaysia is neither a member of the working group, nor has it taken the opportunity to send observers. Closer to home, the quest for a multimodal answer, has been spearheaded by ASEAN.[100] A draft document has been prepared by the ASEAN Working Group on Development on Multimodal Transport and Trade Facilitation. Thailand has been the main driving force behind this project and about four years ago, through its Maritime Promotion Commission, went so far as to draft its own Multimodal Transport Bill in 2001, based on the ASEAN document.[101] There were high hopes that the bill would become law by 2002, but until now that has not become a reality. Even if the nation adopts a multimodal solution for the current problems that are exhibited in the fragmented unimodal regimes, it should not be viewed as a panacea. Every regime has its limitations and there would also be some unresolved issues. For example, it is still uncertain whether a multimodal transport document would be good tender for the purposes of a c.i.f. or f.o.b. contract. Currently, only a shipped bill of lading is valid tender for a c.i.f. contract,[102] and a received shipment bill of lading may be allowed in the place of a shipped bill of lading for f.o.b. contracts, if there is customary practice to that effect at that particular port.[103] REFERENCES
[1] By the end of the year, if container traffic increases at the current projected rate, both Northport and Westport would achieve a throughput of 5.6 million TEUs. [2] New Straits Times report of 11 October 2005, found at the website of Northport, see http://www.northport.com.my/mediacentre_press.asp?cat=press (Downloaded on 25 October 2005) [3] Containers are an important component of multimodal transportation, where carriers of different modes seek to provide a complete and seamless intermodal through service from origin to destination and it is therefore not surprising that of all the technological innovations, the “container revolution” has done more to foster the growth of international trade than any other single intermodal breakthrough. The use of containers permit individual commodities to be loaded by the consignor at the point of origin without interim handling again until the container arrives at its ultimate destination, and is unloaded by the consignee. See Dempsey, ‘The Law of Intermodal Transportation: What It Was, What It Is, What It Should Be’, (2000) 27 Transp. L.J.367 at p 368 – p 370 [4] The largest problem facing companies whose businesses are concerned with the maritime carriage of goods is knowledge, or rather the lack of it. In order for such companies to be in a position to estimate the cost of doing business, as well as to understand the meaning and requirements of contracts that they are considering, companies must be able to predict the legal environment around them. See de la Garza, ‘UNCITRAL’s Proposed Instrument on International Marine Carriage of Goods’, (2004) 32 Transp. L.J.95 at p 98 [5] Nazery Khalid, ‘The Emergence of Multimodalism in the Straits of Malacca Region’, see http://www.mima.gov.my/mima/htmls/papers/online/html (Downloaded on 25 October 2005) Conference paper presented at “The Straits of Malacca: Building a Comprehensive Security Environment”, 11-13 October 2004, Prince Hotel and Residence, Kuala Lumpur. This view is also echoed in government circles. For an interesting statement on the government’s vision, see http://www.mot.gov.my/English/TextVersion/Maritime/Maritime.htm where the Department of Transport describes Port Klang as “a load centre for local and regional containers” and having plans to develop “the port as a transhipment and distribution hub of the region”. [6] U.N. Doc. TD/MT/CONF/16 (1980) [7] For the non-maritime sector, a good example is the currency conversion under Warsaw Convention as applied by the Carriage by Air Act 1974. The conversion of francs to ringgit has not changed in the last 15 years. It is surprising that the Carriage by Air (Ringgit Equivalents) Order 1978 (Published as PU(A) 134/78) has not been updated to keep pace with the devaluation of the ringgit in real terms. The rates have remained the same since 21 March 1978 despite the impact of inflation. [8] Applied to West Malaysia through the Carriage of Goods by Sea Act 1950 (Act 527) For Borneo, see the Merchant Shipping (Implementation of Conventions Relating to Carriage of Goods by Sea and to Liability of Shipowners and Others) Regulations 1960 (Sarawak) and the Merchant Shipping (Applied Subsidiary Legislation) Regulations 1961 (Sabah). [9] See Merchant Shipping Ordinance 1952 (Peninsular Malaysia). For Borneo, see the Merchant Shipping Ordinance (Sabah) 1960 and the Merchant Shipping Ordinance (Sarawak) 1960. Only the regime for oil pollution has been updated with the enactment of the Merchant Shipping (Oil Pollution) (Amendment) Act 2005 (Act A1248). The Act entered into force on 1 September 2005 and amends the Merchant Shipping (Oil Pollution) Act 1994 by replacing the Fund Convention 1971 (Brussels) with the Fund Convention 1992 (London). The 2005 Act also replaces the Civil Liability Convention 1969 (Brussels), with the Civil Liability Convention 1992 (London). [10] The only bills that have been tabled so far are the following: Supplementary Supply (2005) Bill 2005 (19 September 2005), Loan (Local) (Amendment) Bill 2005 (19 September 2005), Islamic Family Law (Federal Territories) Bill 2005 (21 September 2005), Supply Bill 2006 (26 September 2005), Judges Remuneration (Amendment) Bill 2005 (26 September 2005), Constitution (Amendment) (No.2) Bill 2005 (26 September 2005) and Food (Amendment) Bill 2005 (27 September 2005) [11] Act 527. For Borneo, see the Merchant Shipping (Implementation of Conventions Relating to Carriage of Goods by Sea and to Liability of Shipowners and Others) Regulations 1960 (Sarawak) and the Merchant Shipping (Applied Subsidiary Legislation) Regulations 1961 (Sabah). Both of these regulations also apply the Hague Rules. [12] See Section 4 of the Carriage of Goods by Sea Act 1950 [13] Found in the First Schedule of Act 527. [14] See Section 2 of the Carriage of Goods by Sea Act 1950. [15] Act 148. Unlike application of the Hague Rules in Sabah and Sarawak through separate state legislation, section 1(1) stipulates that the Carriage by Air Act 1974 “shall extend through out Malaysia”. [16] Found in the First Schedule of the Carriage by Air Act 1974. According to section 2, Malaysia applies the convention with the 1955 Hague amendment. Also take note of section 11 that applies the 1961 Guadalajara amendments. [17] The Warsaw Convention also deals with passengers, for example claims for death, wounding or bodily injury under Article 17. [18] Act 334. [19] The Commercial Vehicles Licensing Board [20] See section 19(1)(b), (c) and (e) of the Commercial Vehicles Licensing Board Act 1987 [21] For example, the Standard Trading Conditions of Integrated Haulage Sdn Bhd, available at http://wwwilb.com.my/Attachments/STC_Haulage%20May%202002.pdf (Downloaded on 25 October 2005) [22] See section 19(1)(c) of the Commercial Vehicles Licensing Board Act 1987 empower the Commercial Vehicles Licensing Board to impose a condition “in relation to a carrier’s licence A which has no restriction on the types of goods to be carried, that the carriage of goods shall not be refused without reasonable excuse”. There are four recognised grounds for refusing the tender of cargo from a customer. First, where the vehicle used for the carriage is full and there is no longer any space for the cargo. The common carrier is not under an obligation to perform a carriage in addition to his scheduled service. (See Jackson v Rogers (1683) 2 Shaw 327). Second, there is no duty to received goods tendered outside business hours. (See Lane v Cotton (1701) 12 Mod.472 at p 481) It is doubtful, whether this case would be decided the same way again today as modern logistics was now a 24/7 operation. Third, as the common carrier is entitled to demand a reasonable amount of freight in advance for the goods carried, there is no obligation to accept the tender of cargo where a customer is unable to pay this sum. (See Wyld v Pickford (1841) 8 M. & W.443)Fourth, there is no obligation to carry dangerous goods if the carrier is not equipped to handle such cargo. (See Brass v Maitland (1856) 6 E. & B.470) [23] Act 463 [24] For example, sections 3-6 deal with the appointment of the Director General of Railways as well as his duties and functions. The process of planning and obtaining approval for a railway network must be done in accordance with the railway scheme under sections 7-10, and the construction of the system must comply with the rules provided for in sections 11-22. The licensing of railway companies is dealt with by, sections 23-30. For railway accidents, the procedures for notice and reporting are found in sections 45-53. [25] Hereinafter referred to as KTMB. [26] KTMB conducts its freight business through its KTM Freight Services division. It deals with containerised freight services, conventional freight services, international freight services and the new landbridge service with Thailand. For more information, see http://www.ktmb.com.my/section.fcm?id=343 (Downloaded on 25 October 2005) [27] Railways Act 1991, section 39(1) [28] Ibid, section 39(2) [29] Section 44 of the Railways Act 1991 clearly stipulates that, “a railway company shall not be deemed to be a common carrier or to be subject to any law relating to common carriers”. [30] These are the initials of the French version of the convention, Convention Relative au Contrat de Transport International de Marchandises par Route, also known as the Convention on the Contract for the International Carriage of Goods by Road. This is a part of English Law by virtue of the Carriage of Goods by Road Act 1965. The convention was signed at Geneva on 19 May 1965 and based on a draft by the Economic Commission for Europe. [31] Known as the Convention Concerning International Carriage by Rail. The convention was signed at Berne on 9 May 1980. For more information, see the website of the United Nations Economic Commission for Europe at http://www.unece.org/trade/cotif/Welcome.html (Downloaded on 25 October 2005) For carriage of goods by rail, the relevant part of C.O.T.I.F. is Appendix B, as it contains the Uniform Rules Concerning the Contract for International Carriage of Goods by Rail (CIM). Appendix A consists of Uniform Rules Concerning the Contract for International Carriage of Passengers and Luggage by Rail (CIV). [32] Carriage of Goods by Sea Act 1971 [33] Chinese Maritime Code 1993, Article 2 [34] See Tetley, ‘The Proposed New United States Senate COGSA: The Disintegration of Uniform International Carriage of Goods by Sea’, (1999) 30 J. Mar. L. & Com.595 at p 614 who says that “the international shipping community … is like the donkey who starved to death when it was placed equidistant between two bales of hay and did not know in which direction to turn its head”. [35] Ralph de Wit, Multimodal Transport: Carrier Liability and Documentation, 1st Ed., 1995, Lloyd’s of London Press at para 1.10, p 10 [36] The seal used may be a conventional seal, or an electronic seal. See also ibid, where de Wit remarks that ideally, the seal should remain unbroken during the whole transit, as this is an indication that the contents have not been subject to theft or pilferage. However, he concedes that opening of the container is inevitable due to custom’s requirements. Take note that these views may now have to be modified in the light of the procedures put into place by the Container Security Initiative after the event of 9/11. For more information on that initiative, see http://www.csiinstitute.com/ (Downloaded on 25 October 2005). This is the website of the Container Security Initiative Institute. [37] Ralph de Wit, Multimodal Transport: Carrier Liability and Documentation, 1st Ed., 1995, Lloyd’s of London Press at para 1.6, p 7. The author also illustrates this point by borrowing an illustration from Van Den Heuvel, ‘De vervoerovereenkomst’, R.W., 1985-86 at p 2147-2168: “If 1,000 bales of cotton are delivered to a carrier, they are obviously easy to count and if at destination only 900 bales are delivered, the carrier may be held liable for the loss. Similarly, if an intricate piece of new machinery, such as a large transformer, is delivered to a carrier, and is somewhere along the way it is dropped from the cargo handling gear to the ground 30 feet below, its condition will obviously have deteriorated and, again the carrier may be held liable for damage. The difficulties begin when some bales of cotton are opened at destination and it appears that they are wet inside, or when the same transformer is switched into an electrical grid and, though it appears to be in order, it does not work. Were the bales already wet when they were delivered to the carrier, or did the deterioration occur during carriage? Was the transformer already defective when it was tendered to the carrier, or did something happen to it along the way? Very often, the receipt will be of no help in these cases, because the carrier will only state what is apparent outside. This is a problem which has always existed, but which is enhanced considerably by the use of new transportation techniques. What is there to describe about a locked and sealed steel container, or about a lock and sealed trailer which is driven onto a ship or a train?” [38] See http://www.mymils.com/home/default.asp (Downloaded on 25 October 2005) [39] See http://www.ktmb.com.my/article.cfm?id=89 (Downloaded on 22 October 2005) [40] An example of this clause can be found in Vistar S.A. v Sea Land Express 792 F.2d 469; [1986] A.M.C.2382 (5 Cir.1986) (Court of Appeal, 5th Circuit): “This Bill of Lading shall have effect subject to all the provisions of the Carriage of Goods by Sea Act of the United States of America, approved April 16, 1936, as if set forth herein. The defences and limitations of the said Act shall apply to goods whether carried on or under deck, to carriage of goods between U.S. ports, or between non-U.S. ports, before all goods are loaded on and after they are discharged from the vessel, and throughout the entire time the goods are in actual custody of the carrier, whether acting as carrier, bailee or stevedore”. See also Ralph de Wit, Multimodal Transport: Carrier Liability and Documentation, 1st Ed., 1995, Lloyd’s of London Press at para 9.6, p 341, fn 50 [41] 792 F.2d 469; [1986] A.M.C.2382 (5 Cir.1986) (Court of Appeal) [42] See Ralph de Wit, Multimodal Transport: Carrier Liability and Documentation, 1st Ed., 1995, Lloyd’s of London Press at para 9.7, p 342 [43] The clause derives its name from the famous case, The Himalaya; Alder v Dixon [1955] 1 Q.B.158 [44] Recently described as a clause “to make available to the third party the same exceptions and limitations as are available to the carrier”, see The Starsin [2003] UKHL 12 at para.200 per Lord Millet [45] [1962] A.C.446 [46] Ibid at p 474 [47] New Zealand Shipping Co. v A.M. Satterthwaite & Co. Ltd [1974] 1 All E.R.1015 [48] For more views on The Eurymedon, see Reynolds, ‘Himalaya Clause Resurgent’ (1974) 90 L.Q.R.301-306; Coote, ‘Vicarious Immunity by an Alternative Route’ (1974) 37 M.L.R.453-457; Palmer and Davies, ‘The Eurymedon: Aground or Afloat?’ (1978) 41 M.L.R.745-747 [49] Port Jackson Stevedoring Pty. Ltd. v Salmond & Spraggon (Australia) Pty. Ltd. [1981] 1 W.L.R.138 [50] For example, Herrick v Leonard & Dingley Ltd. [1975] 2 N.Z.L.R.566 (Supreme Court of New Zeland); The Suleyman Stalskiy [1976] 2 Lloyd’s Rep.609 (Supreme Court of British Columbia, Canada) and Lummus Co. Ltd. v East African Harbours Corporation [1978] 1 Lloyd’s Rep.317 (High Court, Kenya). Prior to The New York Star, support for The Eurymedon could only be found in continental law system of Quebec in cases such as Eisen und Metall A.G. v Ceres Stevedoring Co. Ltd. and Canadian Overseas Shipping Ltd. [1977] 1 Lloyd’s Rep.665 (Court of Appeal, Montreal) and The Federal Schelde; Miles International Corporation v Federal Commerce and Navigation Co., Federal Stevedoring Ltd. and Belcan n.v. [1978] 1 Lloyd’s Rep.285 (Quebec Superior Court). See also Davies and Palmer, ‘The Eurymedon Five Years On’, [1979] J.B.L.337-349 [51] [2003] UKHL 12 The only dissenting judgment on this point was that of Lord Steyn. [52] Ibid at para.34 [53] [2003] UKHL 12 at para.140 [54] Ibid at para.192-193 [55] [1959] 2 Lloyd’s Rep.105 [56] 125 S. Ct.385, [2004] A.M.C.2705 [57] Ibid at p 392 [58] Costabel, ‘The Himalaya Clause Crosses Privity’s Far Frontier. Norfolk Southern Railway Co. v James N. Kriby, Pty. Ltd.’ (2005) 36 J. Mar. L. & Com.217 [59] 125 S. Ct.385 at p 399 [60] Ibid [61] 900 F.2d 714; [1991] A.M.C.75 (4th Cir.1990) [62] Ibid at p 724 [63] 900 F.2d 714 at p 726 For further information, see Crowley, ‘The Limited Scope of the Cargo Liability Regime Covering Carriage of Goods by Sea: The Multimodal Problem’ (2005) 79 Tul. L. Rev.1461 at p 1480 [64] Sweeney, ‘Crossing the Himalayas: Exculpatory Clauses in Global Transport. Norfolk Southern Railway Co. v James N. Kirby, Pty. Ltd.’ (2005) 36 J. Mar. L. & Com.155 at p 199 [65] Ibid [66] See Laemthong International Lines Co. Ltd. v Artis and Others [2005] EWCA Civ.519 [67] See Nissin Shipping Co. Ltd. v Cleaves & Co. Ltd. and Others [2003] EWHC 2602 (Comm.) [68] See Owners of the Borvigilant v Owners of the Romina G [2003] EWCA Civ.935 [69] Todd, Modern Bills of Lading, 1st Ed., 1990, Oxford, Blackwell Law at p 224 For a sample of this clause, see Ralph de Wit, Multimodal Transport: Carrier Liability and Documentation, 1st Ed., 1995, Lloyd’s of London Press at para 16.13, p 496, fn 339: “The merchant undertakes that no claim or allegation shall be made against any servant, agent or sub-contractor of the carrier which imposes or attempts to impose upon any of them or any vessel owned by any of them any liability whatsoever in connection with the goods, and if any such claim of allegation should nevertheless be made to indemnify the carrier against all consequences thereof”. [70] Nippon Yusen Kaisha v International Import and Export Co. Ltd. [1978] 1 Lloyd’s Rep.206 [71] By contrast, in Australia, circular indemnities have been given the judicial nod in Broken Hill Proprietary Co. Ltd. v Hapag-Lloyd Aktiengesellschaft [1980] 2 NSWLR 572 (Supreme Court of New South Wales), Sidney Cooke Ltd. v Hapag-Lloyd Aktiengesellschaft [1980] 2 NSWLR 587 (Supreme Court of New South Wales), the unreported case of Mercedes Benz Aust. Pty. v Scan Carriers S.A. (25 November 1987) that was cited in Chellaram & Co. v China Ocean [1989] 1 Lloyd’s Rep.413 at p 430 per Carruthers J and more recently in Sellers Fabrics Pty. Ltd. v Hapag-Lloyd AG 1997 NSW LEXIS 1066 (Supreme Court of New South Wales) as well as Chapman Marine Pty. Ltd. v Wilhelmsen Lines A/S and Another 1999 FEDCT LEXIS 256 (Federal Court of Australia, New South Wales District Registry) The Dutch Court of Appeal has also given it s approval in The Tokyo Bay, cited in Ralph de Wit, Multimodal Transport: Carrier Liability and Documentation, 1st Ed., 1995, Lloyd’s of London Press at para 16.19, p 501 at fn 364. The judgment in Dutch and its translation can be found at fn 366. [72] Ralph de Wit, Multimodal Transport: Carrier Liability and Documentation, 1st Ed., 1995, Lloyd’s of London Press at para 16.15, p 497 [73] Neptune Orient Lines Ltd. v J.V.C. (UK) Ltd. [1983] 2 Lloyd’s Rep.438 [74] Ralph de Wit, Multimodal Transport: Carrier Liability and Documentation, 1st Ed., 1995, Lloyd’s of London Press at para 16.15, p 497 [75] Ibid. This view is also shared by Todd, Modern Bills of Lading, 1st Ed., 1990, Oxford, Blackwell Law at p 225 – p 226 [76] Article I of the Hague Rules. Found in the First Schedule to the Carriage of Goods by Sea Act 1950 (Act 527) [77] Ibid [78] Article I of the Hague Rules that deck cargo is only subjected to the regime if the contract of carriage states that cargo “being carried on deck and is so carried”. The legal position in the Hague-Visby Rules is the same under Article 1(c). [79] Cioarec, ‘Containers As Deck Cargo’. Available on the Internet at the following address: http://www.forwarderlaw.com/library/view/php?article_id337 (Downloaded on 25 October 2005) [80] See Svenska Traktor v Maritime Agencies [1953] 2 Q.B.295 [81] See Encyclopedia Britannica v Hong Kong Producer [1969] 2 Lloyd’s Rep.536 [82] See Ingersoll Milling Machine Co. v M/V Bodena [1988] A.M.C.223 (2 Cir. 1987) at p 231 [83] For example a booking note in Hojgaard and Schultz v Transamerican S.S. Corp. [1985] A.M.C.2129 (S.D.N.Y. 1984); aff’d [1985] A.M.C.2408 (2 Cir. 1985) [84] See Colonial Yacht Harbour Ltd. v The Octavia [1980] 1 F.C.331 at p.338 (Federal Court, Canada) [85] See The Kapitan Petko Voivoda [2003] 2 Lloyd’s Rep.1 (Q.B.D., Commercial Court) [86] See The Antares [1987] 1 Lloyd’s Rep.424 (CA) [87] In practice, this would probably be solved by a received for shipment bill of lading being issued at an earlier stage. This is the more common bill that is used in the container transport industry as containers are usually sent to the yard and stacked first, before being loaded on board the ship. [88] See The Happy Ranger [2001] 2 Lloyd’s Rep.530 (Q.B.D., Commercial Court) [89] In order to satisfy the requirement of under deck carriage, the cargo that is carried must be completely protected within the structure of the ship and not exposed the elements of mother nature, see The Lossiebank;Massce & Co. Inc. v Bank Line [1983] A.M.C.1033 (Sup. Ct. of Cal. 1938) [90] A specially designed container ship does not mean that the carriage of cargo on deck is no longer a risky affair. Container ships have a high centre of gravity and it is not unusual for containers on the top to slide overboard. Containers on deck are also stove in by storms and their contents damaged or wetted, see Chapter 31, titled “Deck Carriage” of Tetley, Marine Cargo Claims, 4th Ed., fn 18 Due to be published in 2008. Drafts are available at http://www.mcgillca/maritimelaw/mcc4th (Downloaded on 25 October 2005) [91] For more information, see Glass, Freight Forwarding and Multimodal Transport, 1st Ed., Witherbys, 2005 [92] For example, clause 3 of the Federation of Malaysian Freight Forwarders Standard Trading Conditions, see http://www.fmff.net/home/fmff_stc.php (Downloaded on 5 August 2005) [93] See Tetley, Marine Cargo Claims, 3rd Edition, 1988, International Shipping Publications at p691 –711 See also Ralph de Wit, Multimodal Transport: Carrier Liability and Documentation, 1st Ed., 1995, Lloyd’s of London Press at para 1.25, p 19 [94] See Powermatic-Apcom Systems Pte. Ltd. v Concord Express (S) Pte Ltd. 1999 SLR LEXIS 14 at p 18 – p 28 (Court of Appeal, Singapore) [95] House bills are only accepted if the freight forwarder is carrying the goods as a principal, i.e. accepting liability as a carrier, see Art 25 of the Uniform Customs & Practice For Documentary Credits (1993 Revision) of The International Chamber of Commerce I.C.C. Publication No.500-ISBN 92-842-1155-7(E) [96] Driscoll and Larsen, ‘The Convention on International Multimodal Transport of Goods’ (1982) 57 Tul. L. Rev.193 at p 212 [97] Its application is supplemented by DGS Order No.4 of 2001 which regulates the licensing of multimodal transport operators. For more information, see the website of the Directorate General of Shipping, Mumbai at http://dgshipping.nic.in/index2_files/top.htm (Downloaded on 25 October 2005) [98] The United Nations Commission on International Trade Law [99] See Tetley, ‘Reform of Carriage of Goods – The UNCITRAL Draft and the Senate COGSA ’99’, (2003) 28 Mar. Law.1 at p 16 [100] Association of South East Asian Nations [101] See Pimvimol (June) Vipamaneerut, “Multimodal Transport Bill’, published by Tilleke & Gibbins International Ltd., 2001 See http://www.tillekeandgibbins.co.th (Downloaded on 25 October 2005) [102] See Diamond Alkali v Bourgeois [1921] 3 K.B.443 [103] See Yelo v S.M. Machdo [1952] 1 Lloyd’s Rep.183 *This paper was delivered at the 13th Malaysian Law Conference.
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Circular No 109/2012: Be a Part of the Bar Council Constitutional Law Committee
