PART 4 LIABILITIES OF MULTIMODAL TRANSPORT OPERATOR |
| Period of responsibility of multimodal transport operator |
| 12. For the purposes of this Part, the period of responsibility of a multimodal transport operator of a multimodal transport contract starts at the time the multimodal transport operator takes in charge the goods that are the subject of the contract and ends at the time that the goods are delivered. |
| Multimodal transport operator liable for acts of servants or agents |
13.—(1) A multimodal transport operator of a multimodal transport contract is liable for any act or omission described in subsection (2), of —| (a) | any servant or agent of the multimodal transport operator, when acting within the scope of the servant’s or agent’s employment relating to the carriage of the goods that are the subject of the contract; and | | (b) | any other person whose services the multimodal transport operator makes use of for the performance of the contract. |
(2) The act or omission is one that —| (a) | takes place during the period of responsibility of the multimodal transport operator; and | | (b) | causes loss of, damage to, or delay in the delivery of, the goods. |
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| Multimodal transport operator to ensure delivery of goods |
14. A multimodal transport operator of a multimodal transport contract for the international multimodal transport of any goods is taken to have given an undertaking to the following persons to perform, or to procure the performance of, all acts necessary to ensure the delivery of the goods:| (a) | where the multimodal transport document relating to the contract is issued in a negotiable form to bearer — to the person who surrenders to the multimodal transport operator one original of the document; | | (b) | where the multimodal transport document relating to the contract is issued in a negotiable form to order — to the person who surrenders to the multimodal transport operator one original of the document duly endorsed; | | (c) | where the multimodal transport document relating to the contract is issued in a negotiable form to a named person — to the person (upon proof of the person’s identity) who surrenders to the multimodal transport operator one original of the document; | | (d) | where the multimodal transport document relating to the contract is issued in a negotiable form to a named person and has been transferred to order or in blank — to the person if that person surrenders to the multimodal transport operator one original of the document duly endorsed; | | (e) | where the multimodal transport document relating to the contract is issued in a non-negotiable form — to the person named as the consignee of the goods in the document upon proof of the person’s identity; | | (f) | where no document is issued — to a person as instructed by the consignor of the goods or by a person who has acquired the consignor’s or consignee’s rights under the multimodal transport contract to give such instructions. |
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| Multimodal transport operator liable for loss resulting from loss of or damage to goods, etc. |
15.—(1) Subject to subsections (2), (3) and (4), a multimodal transport operator of a multimodal transport contract is liable for loss resulting from the loss of, damage to, or delay in the delivery of, any goods that are the subject of the contract if the occurrence which caused the loss, damage or delay took place during the period of responsibility of the multimodal transport operator.(2) The multimodal transport operator is not liable under subsection (1) if the multimodal transport operator proves that —| (a) | the multimodal transport operator, or the servant or agent or other person for whose act or omission the multimodal transport operator is liable under section 13, took all reasonable measures to avoid the occurrence and the loss, damage or delay; or | | (b) | the occurrence which caused such loss, damage or delay is the result of one or more of the following:| (i) | force majeure; | | (ii) | any act or neglect of the consignor or consignee, or the consignor’s or consignee’s representative or agent; | | (iii) | insufficient or defective packaging, marking or numbering of the goods; | | (iv) | the handling, loading, unloading or stowage of the goods that is effected by the consignor or consignee, or the consignor’s or consignee’s representative or agent; | | (v) | any inherent or latent defect in the goods; | | (vi) | any strike, lockout or stoppage or restraint of labour from whatever cause, whether partial or general; | | (vii) | where the goods are carried by sea or inland waterways —| (A) | any act, neglect or default of the master, mariner, pilot or the servant of the carrier of the goods in the navigation or in the management of the ship; or | | (B) | any fire unless caused by the actual fault or privity of the carrier of the goods. |
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| (3) The multimodal transport operator is not liable under subsection (1) for loss resulting from delay in the delivery of the goods unless the consignor has made a declaration of interest in timely delivery which has been accepted by the multimodal transport operator. |
| (4) If any loss of or damage to the goods is the result of the unseaworthiness of the ship in which the goods are carried, the multimodal transport operator is not liable under subsection (1) if the multimodal transport operator proves that due diligence has been exercised to make the ship seaworthy at the commencement of the voyage. |
| (5) For the purpose of this Part, delay in delivery occurs when the goods have not been delivered within the time expressly agreed upon by the parties to the multimodal transport contract or, in the absence of such agreement, within the time which it would be reasonable for a diligent multimodal transport operator to deliver the goods, having regard to the circumstances of the case. |
| (6) If the goods have not been delivered within 90 consecutive days after the date determined in accordance with subsection (5), any person entitled to claim the goods may, in the absence of evidence to the contrary, treat the goods as lost. |
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| Assessment of compensation |
16.—(1) An assessment of compensation by a multimodal transport operator of a multimodal transport contract for the loss of or damage to the goods that are the subject of the contract, and for which the multimodal transport operator is liable under section 15, is to be made by reference to the value of such goods —| (a) | at the place and time that the goods are delivered to the consignee of the goods; or | | (b) | at the place and time when, in accordance with the multimodal transport contract, the goods should have been so delivered. |
(2) The value of the goods is to be determined according to —| (a) | their current commodity exchange price; | | (b) | if there is no current commodity exchange price, their current market price; or | | (c) | if there is no current commodity exchange price or current market price, the normal value of goods of the same kind and quality based on other sale transactions relating to the goods. |
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| Limit on liability of multimodal transport operator |
17.—(1) Subject to subsection (2) and sections 18, 19, 21 and 22, a multimodal transport operator of a multimodal transport contract is not liable under section 15 for any loss of or damage to the goods that are the subject of the contract, in an amount exceeding the higher of the following:| (a) | the equivalent of 666.67 SDR per package or shipping unit of the goods lost or damaged; | | (b) | 2.00 SDR per kilogram of gross weight of the goods lost or damaged. |
| (2) Subsection (1) does not apply if the nature and value of the goods have been declared by the consignor of the goods before the goods are taken in charge by the multimodal transport operator, and inserted in the multimodal transport document. |
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| Liability of multimodal transport operator if no carriage of goods by sea, etc. |
| 18. If a multimodal transport contract does not provide for the carriage of goods by sea or inland waterways, the liability of the multimodal transport operator under section 15 for the loss of or damage to the goods is limited to an amount not exceeding 8.33 SDR per kilogram of gross weight of the goods lost or damaged. |
| Liability to be determined in accordance with other conventions or law |
| 19. If the loss of or damage to the goods that are the subject of a multimodal transport contract occurred during a particular stage of the international multimodal transport of the goods, in respect of which a mandatory law would have provided another limit of liability if a separate contract of carriage had been made for that particular stage of transport, then the limit of the multimodal transport operator’s liability under section 15 for such loss or damage is to be determined by reference to such mandatory law. |
| Liability of multimodal transport operator other than for loss of or damage to goods |
| 20. Subject to sections 19, 21 and 22, the liability of a multimodal transport operator of a multimodal transport contract under section 15 for loss resulting from delay in the delivery of the goods that are the subject of the contract, or any consequential loss or damage (other than loss of or damage to the goods), is limited to an amount equivalent to the freight under the contract. |
| Aggregate liability of multimodal transport operator |
| 21. The aggregate liability of a multimodal transport operator of a multimodal transport contract under this Part must not exceed the limits of liability for the total loss of the goods that are the subject of the contract calculated in accordance with sections 17 and 18. |
| Aggregate liability of multimodal transport operator and servant, agent, etc. |
22. The aggregate liability of —| (a) | a multimodal transport operator of a multimodal transport contract; and | | (b) | any servant or agent of the multimodal transport operator, or other person whose services the multimodal transport operator has used in order to perform the contract, |
| must not exceed the limits in sections 17 to 21. |
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| Multimodal transport operator and servant, agent, etc., not entitled to limitation of liability if loss, etc., resulted from personal act or omission |
23.—(1) The multimodal transport operator is not entitled to the benefit of the limitation of liability under this Part for the loss of, damage to, or delay in the delivery of the goods if it is proved that the loss, damage or delay resulted from an act or omission of the multimodal transport operator that is done —| (a) | with the intention to cause such loss, damage or delay; or | | (b) | recklessly and with knowledge that such loss, damage or delay would probably result. |
(2) A servant or an agent of a multimodal transport operator or other person whose services a multimodal transport operator makes use of for the carriage of goods is not entitled to the benefit of the limitation of liability under this Part if it is proved that the loss, damage or delay resulted from an act or omission of such servant, agent or other person that is done —| (a) | with the intention to cause such loss, damage or delay; or | | (b) | recklessly and with knowledge that such loss, damage or delay would probably result. |
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