Currently,
Thailand has no law that specifically addresses multimodal transport.
Disputes arising out of a multimodal transport operation are governed
by existing Thai law on the carriage of goods in the Thai Civil
and Commercial Code (CCC) and/or the Thai Carriage of Goods by
Sea Act (COGSA).
The
following is an example to illustrate how the liability and limitation
of liability of the carrier are decided under existing Thai law
in the multimodal transport context.
A
wheel of Dutch cheese is shipped in a refrigerated container from
Rotterdam to Bangkok by sea and in Thailand, from Bangkok to Chiang
Mai by truck. All transportation is based upon a single contract.
If the cheese were damaged during the ocean voyage, the Thai court
would apply the COGSA to the liability and limitation of liability
issues, whereas, if the cheese were damaged during transportation
by truck from the port of Bangkok to Chiang Mai, then the Court
would treat the shipment as goods carried by inland transport,
and accordingly the provisions on liability and limitation of
liability in the CCC would govern the case.
If
the cheese were flown from Amsterdam to Chiang Mai or from Bangkok
to Chiang Mai and it suffered damage in the air or within the
grounds of an airport, the Thai court would apply the general
provisions regarding liability and limitation of liability on
the carriage of goods in the CCC, as there is no specific Thai
law on carriage of goods by air.
Liability Under
Current Thai Law
A. The
Thai Civil and Commercial Code (CCC)
Liability of the
Carrier
Under
the CCC, the carrier is strictly liable to the consignor or
consignee for loss of, damage to or delay in delivery of the
goods entrusted to him. However, the carrier can be discharged
from liability if he can prove that the loss, damage or delay
in delivery is caused by:
- force
majeure;
- the
nature of the goods;
- or
the fault of the consignor or consignee.
Limitation of Liability
of the Carrier
There is no limitation
of a carrier's liability under the CCC. The carrier is therefore
liable for the full amount of loss, damage, or delay suffered
by the consignee.
B. The
Carriage of Goods by Sea Act (COGSA)
The
Act applies in the following circumstances:
- where
it is an international carriage from or to Thailand; or
- where
one of the parties to the contract of carriage is a Thai national
or a juristic person established under Thai law; or
- where
there is a coastal trade and the parties expressly agree in
writing to incorporate the Act into the contract of carriage;
or
- where
there is a bill of lading issued under a charterparty and
the dispute is between the carrier and the consignee who is
not the charterer.
Liability of the
Carrier
Under
the Thai COGSA, the carrier is liable for damages resulting
from loss of or damage to the goods which have been handed over
to him, as well as from delay in delivery, if the occurrence
which caused the loss, damage, or delay in delivery took place
while the goods were in his charge.
The
goods are deemed to be in the charge of the carrier from the
time he has received the goods at the port of loading from the
shipper or the shipper's agent or from an authority or any other
person to whom, under the law or regulations applicable at the
port of loading, the goods for shipment must be handed over,
until the time he has delivered the goods at the port or place
of destination.
The
carrier is deemed to have delivered the goods that were in his
charge :
- by
handing over the goods to the consignee, or
- when
the carrier has dealt with the goods in such a way that is
stipulated in the contract of carriage of goods by sea or
in accordance with the law or commercial practice applicable
at the port of destination, or
- by
handing over the goods to an officer or to any other person
to whom, pursuant to law or regulations applicable at the
port of destination, the carrier must hand over the discharged
goods.
Exclusion of Liability
of the Carrier
The
carrier is entitled to exclude his liability if he can prove
that the loss, damage or delay in delivery is in the scope of
"the exclusions of the carrier's liability". The exclusions
of liability of the carrier are similar to the exclusions of
the carrier's liability provided for in the Hague Visby Rules.
The
carrier is not liable for loss, damage or delay in delivery
if the carrier can prove that the loss, damage or delay in delivery
arose or resulted from:
- force
majeure;
- perils,
dangers and accidents of the sea or navigable water;
- an
act of war or fighting between armed forces,
- civil
war, riots, subversion and civil commotions;
- detention,
arrest, restraint or any interference made against the ship
by the ruler of any State or territory, or under provisions
of law, provided that it is not caused by fault or neglect
of the carrier;
- quarantine
restrictions;
- strikes,
lockouts, stoppage or intentional slowdown at any port which
obstruct the loading and discharge of goods, or berthing or
unberthing;
- act
of piracy;
- fault
of the shipper or consignee, particularly on insufficiency
of packing or packing unsuitable for the condition of the
goods and insufficiency or inadequacy of marks;
- inherent
vice;
- latent
defects of the ship not visible or discoverable by inspection
with care and skill which can normally and properly be expected
of a person engaged in an occupation of inspector of ships;
- error
in navigation arising from the fault of the pilot in the discharging
of his duties or from the pilot's instruction;
- any
other cause arising without fault or neglect of the carrier
or without fault or neglect of the agents or servants of the
carrier.
The
carrier is not liable for loss, damage or delay in delivery
caused by fire unless the claimant can prove that the fire arose
from fault or neglect on the part of the carrier or his servants
or agents. Nor is the carrier liable for loss, damage or delay
in delivery arising from reasonable measures taken to prevent
the spread of a fire and to avoid or mitigate its consequences,
unless the claimant can prove that the damage was a result of
the fault or neglect of the carrier, his agents or servants..
The
carrier is also exempted from liability for loss, damage or
delay in delivery resulting from taking measures to save human
life or taking reasonable measures to save property at sea .
The
Act also covers the special circumstance of live animals. The
carrier is not liable for loss, damage or delay in delivery
resulting from any special risks usually inherent in the carriage
of live animals, provided that the carrier proves that:
- he
has complied with any special instruction given to him by
the shipper relating to those particular animals, and
- in
the circumstances of such case, the loss, damage or delay
in delivery could be attributed to risks or nature of such
animal.
However, the carrier
will be liable for loss, damage or delay in delivery resulting
from any special risks usually inherent in the carriage of live
animals if it can be proved that all or part of the loss, damage
or delay in delivery resulted from fault or neglect on the part
of the carrier, his servants or agents.
Limitation of Liability
of the Carrier
- for loss or damage to
the goods
Under
the Thai COGSA, the carrier is entitled to limit his liability
for lost or damaged goods. The limitation amount of the liability
of the carrier for damages resulting from loss of or damage
to all or part of the goods having been entrusted to him is
Baht 10,000 per shipping unit or Baht 30 per kilogram of net
weight of the goods, whichever is higher.
The
Act also provides the definition of the term "shipping
unit" which means a unit of the goods carried by sea
which is counted as one, and can be transported on its own,
for example, a sack, a piece, a barrel, a container, a bale,
a crate, a parcel and a package of any item.
- for
delay in delivery
The
liability of the carrier for damages resulting from delay
in delivery is limited to an amount equivalent to two and
a half times the freight payable for the goods delayed but
not exceeding the total freight payable under the contract
of carriage of goods by sea.
Future Multimodal Transport
Legislation in Thailand
In
the very near future, Thailand will enact legislation specifically
addressing mutimodal transport which will be applicable to both
domestic and international multimodal transports. The forthcoming
legislation will be based on the ASEAN Framework Agreement on
Multimodal Transport. Thailand and the rest of the ASEAN countries
have formulated the ASEAN Framework Agreement on Multimodal Transport
as a model law for application among ASEAN countries.
The
ASEAN Working Group on Development of Multimodal Transport and
Trade Facilitation is the agency preparing the Framework Agreement,
with Thailand being the main country responsible for the project.
So far, five meetings have been held in Thailand, and progress
is being made towards the final draft of the ASEAN Framework Agreement
on Multimodal Transport.
The
ASEAN Framework Agreement on Multimodal Transport is a combination
of the UN Convention on International Multimodal Transport 1980,
the UNCTAD/ICC Rules for multimodal transport documents, the terms
and conditions in the FIATA Multimodal Transport bill of lading,
and The Multimodal Transport Agreement among the Andean group
of countries in South America, namely, Bolivia, Colombia, Ecuador,
Peru and Venezuela.
This
draft agreement will introduce principles which will govern multimodal
transport and remove it from the provisions of the Thai CCC and
Thai COGSA. One of the main principles of the draft agreement
is that the multimodal transport operator is the only party liable
for loss, damage or delay, no matter how many carriers take part
in the transportation.
This
principle will change the existing scheme in the Thai CCC and
the Thai COGSA where a consignee is entitled to bring an action
against any and all carriers to whom the contracting carrier entrusts
a part of its performance under the contract. Now, the consignee's
only choice of defendant will be the multimodal transport operator.
The
draft agreement defines a multimodal transport operator (MTO)
as any person who on his own behalf or through another person
acting on his behalf, concludes a multimodal transport contract
and who acts as a principal, not as an agent of or on behalf of
the consignor or of the carriers participating in the multimodal
transport operations, and who assumes responsibility for the performance
of the contract.
The
draft agreement applies to all MTOs in the registry of the competent
national body of each ASEAN member country.
It
also applies to all international multimodal transport contracts
if the place for taking charge of the goods or the place for delivery
of the goods as provided for in the multimodal transport contract
is located in a member country.
Liability of the
MTO
The
basis of liability of the MTO is based on "presumed fault",
in line with the UN Convention on International Multimodal Transport
1980 and the carrier's liability under the Hamburg Rules. To
be discharged from the presumed fault liability, the MTO must
prove that he, his servants or agents or any other person whose
services he made use of for the performance of the contract
took all measures that could reasonably be required to avoid
the occurrence and its consequences.
In
addition to the general principle of the exclusion of the MTO's
liability, the draft agreement also provides a list of exemptions
from liability of the MTO. The MTO can be discharged from liability
by proving that the event which caused the loss, damage or delay
in delivery to occur was:
- an
act of neglect of the consignor, the consignee or his representatives
or agents;
- resulted
from insufficient or defective packaging, marking or numbering
of the goods;
- arose
from handling, loading, unloading or storage of goods effected
by the consignor, the consignee or his representatives or
agents;
- was
caused by an inherent or latent defect in the goods; or
- resulted
from a strike, lock-out, work stoppage, total or partial restraint
of labor.
The
responsibility of the MTO for the goods covers the period of
time from when the multimodal transport operator has taken the
goods in his charge to the time of his delivery.
Limitation of Liability
of the MTO
The
amount for loss of or damage to goods is limited to 666.67 SDR
per package or unit, or 2 SDR per kilogram of gross weight of
the goods lost or damaged, whichever is higher.
The
limit for loss from delay in delivery is an amount not exceeding
the equivalent of the freight under the contract.
The
draft Agreement is scheduled to be signed at the Fifth ASEAN Summit
Meeting in Hanoi in December of this year. However, the draft
Agreement is subject to ratification or acceptance. It will enter
into force on the thirtieth day after all members of the ASEAN
have deposited their instruments of ratification or acceptance.
Some member countries may need to prepare implementing legislation
before the deposit of such instruments; therefore, it will take
some years before the draft agreement is fully in force.
As
far as Thailand is concerned, legislation to give effect to the
draft agreement and enable the country to deposit the instrument
of ratification needs to be prepared. After the legislation comes
into force, the draft Agreement will have full force in Thailand
as a domestic law.
For further information, contact
Ms. Pimvimol Vipamaneerut,
Partner & Head of Transportation Group and Labor Group, Tilleke
& Gibbins (e-mail
pimbimol.v@tillekeandgibbins.com)
©1998 Tilleke & Gibbins, Bangkok, Thailand
