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MULTIMODAL TRANSPORT BILL

by
Tilleke & Gibbins International Ltd.

In Thailand, the term "multimodal transport" is used to describe the carriage of goods by at least two different modes of transport with only one underlying contract. In other jurisdictions, multimodal transport is commonly referred to as "inter-modal transport".

Currently, Thailand has no specific law focusing on multimodal transport. Disputes arising out of a Multimodal Transport Contract are governed by existing Thai law pertaining to the carriage of goods, found in the Thai Civil and Commercial Code ("CCC") and/or the Carriage of Goods by Sea Act ("COGSA"). Depending upon the circumstances of the case, either one of these Acts may govern. For example, if goods were damaged during their voyage by sea, the Thai Court would likely apply COGSA to the circumstances. On the other hand, if goods were damaged during inland transportation, or whilst in the air or within the grounds of an airport, the Court would likely apply the general provisions of the Thai CCC relating to carriage of goods. With regard to the latter, the CCC would likely govern, as there is no separate legal regime devoted to the carriage of goods by land or air. Note also that Thailand is not a party to the Warsaw Convention; and therefore, is not bound by its conventions concerning carriage of goods.

In the near future, however, Thailand is set to enact legislation addressing multimodal transport, which will be applicable to both domestic and international multimodal transports. Thailand and the rest of ASEAN countries have formulated the ASEAN Framework Agreement on Multimodal Transport as the model law for application among ASEAN countries. The forthcoming legislation will thus be in line with the ASEAN Framework Agreemnt.

Thailand's draft legislation, as well as the ASEAN Framework Agreement, will introduce principles which will make it separate and unique from currently applicable laws as outlined in the CCC and COGSA. One of the main principles of the draft agreement is that the multimodal transport operator is the only person who should be liable for loss, damage or delay, no matter how many carriers take part in the transportation.

The draft legislation will be divided into 6 Chapters as follows:

(1)

Definitions;

(2)

Scope of Application;

(3)
 National Multimodal Transport Committee;
(4)
 Multimodal Transport Operator;
(5)
 Civil Liability; and
(6)
 Penalty

In this article, I will discuss the most fundamental parts of the draft legislation i.e. definitions; scope of application; multimodal transport operator; and civil liability.

I. Definitions

It is important to note that the draft legislation defines the following terms:

(1)

"International multimodal transport" means the carriage of goods by at least two different modes of transport on the basis of a multimodal transport contract from a place in one country at which the goods are taken in charge by the multimodal transport operator, to a place designated for delivery situated in a different country. The operations of pick-up and delivery of goods carried out in the performance of a unimodal transport contract, as defined in such contract, shall not be considered as international multimodal transport;

(2)

"Multimodal transport contract" means a contract whereby a multimodal transport operator undertakes, against payment of freight, to perform or to procure the performance of international multimodal transport;

(3)

"Multimodal transport document" means a document which evidences a multimodal transport contract, the taking in charge of the goods by the multimodal transport operator, and an undertaking by him to deliver the goods in accordance with the terms of that contract;
(4)

"Multimodal transport operator" means 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;
(5)

"Carrier" means the person who performs or undertakes to perform the carriage, or part thereof, whether he is identical with the multimodal transport operator or not;
(6)

"Taken in charge", "Taken the goods in his charge" or "Taking in charge" means that the goods have been handed over to and accepted for carriage by the multimodal transport operator.

II. Scope of Application

The draft legislation applies to all "multimodal transport operators" in the registry of the competent national body of Thailand. The legislation will also apply to all international multimodal transport contracts in which 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 Thailand.

III. Multimodal Transport Operator

The Multimodal Transport Operator shall be registered with the registrar or with the competent national body of the countries which Thailand recognizes by treaty or international agreement.

To register as a Multimodal Transport Operator, an applicant shall fulfill all of the followings requirements:

(1)

being a limited company or public company established under the law of Thailand;

(2)

the principal office of business is located in Thailand;

(3)

having an insurance policy, or others financial character, or coverage from a protection and indemnity club, to cover payment of obligations for liability under the multimodal transport contract or contractual risks; and
(4)
 having registered and paid up capital of not less than 80,000 SDR.

Civil Liability

This Chapter consists of 6 parts, namely Multimodal Transport Document; Liability of the Multimodal Transport Operator; Exclusion of Liability of the Multimodal Transport Operator; Limitation of Liability of the Multimodal Transport Operator; Liability of the Consignor; and Claim for Compensation.

1. Multimodal Transport Document

The provisions in this section relate to the document(s) that evidence the multimodal transport contract. The legislation requires that the multimodal transport operator issue a multimodal transport document, signed by him/her, which contains a list of enumerated particulars, and sign it. For example, the document(s) must specify, among other things, the general nature of the goods in transport, the apparent condition of the goods, the name of the operator and consignor, the place of delivery of goods and the date they are expected to be received, and the intended route, etc. Although the legislation requires that these particulars are included in the multimodal transport document(s), it should be pointed out that the document(s)' legal character will not affected by absence of such detail. Moreover, the legislation provides that the multimodal transport document(s) shall be prima facie evidence of the taking in charge by the operator of the goods described in those document(s), unless a contrary intention (i.e. label on package states "shipper-packed container") can be inferred.

2. Liability of the Multimodal Transport Operator

Primary liability for performance of the contract lies with the multimodal transport operator, commencing from the time he has taken the goods in his charge to the time of their delivery. Liability is based on the notion of "presumed fault" of the multimodal transport operator, which is in line with the MT Convention and the rule of carrier's liability under the Hamburg Rules. The multimodal transport operator is prima facie liable for all loss resulting from loss or damage to the goods in delivery, as well as loss resulting from delay in delivery, if the occurrence which caused the loss, damage or delay took place while the goods were in his charge. To be discharged from liability, the multimodal transport operator must prove that he or his agent or delegate has taken all measures that could reasonably be required to avoid the occurrence and its consequences.

Part 2