Introduction
Multimodal transport is essential to the development of commerce on a global scale. However, despite being one of the main types of transportation, contracts pertaining to the multimodal carriage of goods are not regulated at the international level, as is the case for:
- land carriage, which is regulated in Europe by the Convention on the Contract for the International Carriage of Goods by Road;
- air carriage, which is regulated by the Warsaw and Montreal Conventions; and
- sea carriage, which is regulated by the Hague Rules, the Hague-Visby Rules and the Hamburg Rules (the Rotterdam Rules are still pending).
With no international convention applicable to contracts for the multimodal carriage of goods (the 1980 Convention on International Multimodal Carriage was never effective), such contracts are usually governed by the so-called 'soft law'; the United Nations Conference on Trade and Development and International Chamber of Commerce Rules 1992 are frequently referenced in multimodal carriage contracts. Some jurisdictions also have their own instruments which address the matter at a regional level, such as Decision 331/1993 of the Andean Community, which was later partially modified by Decision 393/1993 (collectively, the 'Andean Multimodal Regime' (AMR)).
The AMR was originally intended to apply to all international multimodal contracts for the carriage of goods either to or from the Andean countries.(1) It was also intended to be a mandatory regime from which parties could not deviate by agreement.(2)
In the AMR, the multimodal transport operator (MTO) is treated as a principal – namely, as a carrier (and thus not an agent) – and is intended to be the only party responsible for the goods while they are in transit.(3)
The MTO will be liable for any damage to or loss of cargo, as well as for delay in delivery of the goods, unless the MTO can show that it and its employees, agents and subcontractors adopted all measures that could reasonably have been adopted to avoid the situation and its consequences.(4)
Additionally, certain events expressly mentioned in the AMR can absolve the MTO of liability, such as an act or omission of the shipper or a latent defect of the goods.(5)
The basic principles for liability limits in case of damage to or loss of cargo are as follows:
- If the shipper has not declared the value of the cargo, the MTO is liable for a maximum of 666.67 standard drawing rights (SDR) per package or two SDR per kilo, whichever is higher.(6)
- However, if the carriage – in accordance with the contract – did not include a sea or inland waterway leg, the MTO is liable for a maximum of 8.33 SDR per kilogram.(7)
- In any case, the AMR establishes that if the leg in which the damage or loss has occurred is known, any limitation provided by an international convention or imperative law that would otherwise apply to such a leg is applicable to the situation, provided that this limitation is higher than that applicable by default in the AMR.(8)
In case of damages arising out of delay in delivery (which can be caused only if the shipper has made a declaration of interest to that effect and the MTO has accepted it),(9) the AMR establishes that limitation in such cases will be equivalent to the amount to be paid as freight for the complete multimodal carriage (Article 17, Decision 331).
A liability claim under the AMR must be pursued – unless agreed to the contrary in the contract – within nine months of the moment that the goods are delivered to the consignee or should have been delivered according to the contract, or from the moment the consignee can treat them as lost under the AMR.(10)
Case law on the application of the AMR in Colombia is minimal. However, in a recent Supreme Court decision, Mapfre Seguros Generales de Colombia SA v Air Carrier Zona Franca SA,(11) the court recognised the mandatory nature of the AMR in a case regarding a contract for the multimodal carriage of cargo from Miami, United States (which is not a state party to the regional agreement) to Bogota, Colombia. In applying the AMR, the court held that the MTO is liable as a carrier for any damage to or loss of cargo while the goods are in its custody, unless the it can prove that it adopted all reasonable measures for the "vigilance and custody of the cargo". This was not the case in Mapfre, as the cargo had been stolen while stored in Miami, after it had been delivered to the carrier for transportation, and the court took the view that such measures had not been taken by the MTO.
For further information on this topic please contact Javier Franco at Franco & Abogados Asociados by telephone (+571 7035633) or email ([email protected]). The Franco & Abogados Asociados website can be accessed at www.francoabogados.com.co.
Endnotes
(10) Decision 331, Article 22.
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