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3. Exclusion of Liability of the Multimodal Transport Operator

Notwithstanding that primary liability lies with the multimodal transport operator, the draft legislation also provides a list of situations where said operator will be exempted from liability. The multimodal transport operator will be discharged from liability in cases where the loss, damage or delay was caused by:

4. Limitation of Liability of the Multimodal Transport Operator

The following basic rules may be gleaned from the provisions in the draft legislation pertaining to limitation of liability:

Unless the nature and value of goods are declared in the contract, the multimodal transport operator will not be liable for any loss or damage to the goods exceeding 666.67 SDR per unit or 2.00 SDR per kilogram of gross weight of the goods lost/damaged, whichever is higher. In cases where the transport does not include carriage by sea or inland waterway, liability shall be limited to 8.33 SDR per kilogram of gross weight of the goods lost/damaged.

Where the loss/damage occurred during one particular stage of the transport, in respect of which an international convention or mandatory law would have provided another limit of liability if a separate contract had been made for that particular stage of transport, the multimodal transport operator's liability for such loss/damage shall be determined in reference to the provisions of said convention or law.

If the multimodal transport operator is liable for loss caused by delay or consequential loss other than loss of or damage to goods, liability is limited to the equivalent of the freight under the contract.

The aggregate liability of the transport operator shall not exceed the limits of liability for total loss of the goods.

5. Liability of the Consignor

The draft legislation states that the consignor is deemed to have guaranteed the accuracy of all particulars relating to the general nature of the goods furnished to the multimodal transport operator. As stated above, such particulars would be listed in the multimodal transport document. Moreover, the consignor is bound to indemnify the multimodal transport operator for any inaccuracies or inadequacies of the particulars.

Note also that the legislation makes particular reference to the consignor's obligations with regard to dangerous goods. The consignor has a duty to mark or label such goods in accordance with international standards, and furthermore, must inform the transport operator (or its agent or delegate) of the dangerous nature of the goods, and if necessary, the precautions that need be undertaken in handling, storage shipping and use. If the consignor fails to do so, and the transport operator does not otherwise have knowledge of the goods dangerous character, the consignor shall be liable for all loss resulting from the shipment of the goods and the goods may at any time be unloaded, destroyed or rendered innocuous by the multimodal transport operator without payment of compensation.

6. Claim for compensation

Under the proposed law, the consignee is required to give a written notice of loss or damage to the goods to the multimodal transport operator when the goods are delivered to him. Without such notice, the goods so delivered will be deemed to be the proper and exact goods as described in the multimodal transport document. However, where the loss/damage is not apparent, the consignee has six (consecutive) days to make notice in writing, or else the same presumption of properly delivered goods will apply.

Unless otherwise agreed, actions relating to multimodal transport shall be time-barred, unless they are instituted within a period of nine months after the delivery of the goods, or if the goods have not been delivered, nine months after the date they were scheduled to be delivered.

The provisions of this part are equally applicable to actions in contract and tort and to claims made against the multimodal transport operator, or his/her servant, agent or other person whose services were used by the multimodal transport operator to perform the contract.

This section also deals with disputes arising out of the multimodal transport contract and specifies those jurisdictions which may have competence to settle, either through judicial proceedings or arbitration, such disputes. As a general rule, the plaintiff may institute an action in a court in any one of the following jurisdictions:

Note also that if the jurisdiction is Thailand, claim will be decided according to the draft legislation.

The legislation also makes provision for arbitration. Where the parties have included in the contract that matters in dispute shall be referred by way of arbitration, the arbitration proceedings shall be held in any of the jurisdictions referred to in points (a) through (d) above, at the option of the claimant.

Current status of the draft legislation

At the present time, the cabinet has approved the Multimodal Transport Bill which was prepared by the office of the Maritime Promotion Commission. It has forwarded the Bill to the office of the Council of State for its review and revise sometime thereafter. There will be a meeting of the Council of State's Committee to approve the Bill and then it will be sent to the Cabinet again for approval. As soon as the Cabinet approves the Bill, it will then be sent to the House of Representative for approval.

It is expected that the Multimodal Transport Bill is likely enacted and in force sometime by the end of next year.