- •Table of Cases
- •Table of Statutes
- •Table of Statutory Instruments
- •Table of European Legislations
- •Table of Statutes and Other Instruments
- •Table of Abbreviations
- •Preface
- •Introduction
- •Overview
- •1 Standard Trade Terms
- •Introduction
- •Ex works
- •CIF contracts
- •CIF contracts under INCOTERMS 2010
- •C&F contracts
- •C&F and INCOTERMS
- •FOB contracts
- •Variants of an FOB contract
- •FAS contracts
- •Conclusion
- •Further reading
- •2 The Vienna Convention on the International Sale of Goods 1980
- •Introduction
- •The Vienna Convention
- •Conclusion: Recent international initiatives
- •Further reading
- •Overview
- •Introduction
- •Policy considerations, e-commerce and international regulatory measures
- •Electronic data interchange (EDI) and interchange agreements
- •UNCITRAL model law on e-commerce
- •Other international initiatives – the International Chamber of Commerce
- •The EU directive on e-commerce
- •The United Nations Convention on the use of electronic communications in international contracts
- •Conclusion
- •Further reading
- •Introduction
- •Electronic signatures and UNCITRAL
- •The EU directive on electronic signatures and the UK legislation: Electronic Communications Act 2000 and the Electronic Signatures Regulation 2002
- •Electronic medium and computer misuse
- •Conclusion: a bright future for e-commerce?
- •Further reading
- •Overview
- •Introduction
- •Types of charterparties
- •Common law implied obligations in a voyage charterparty
- •Common law immunities
- •Usual express terms
- •Conclusion
- •Further reading
- •6 Bills of Lading
- •Introduction
- •Nature of a bill of lading
- •Rights and liabilities of consignee/endorsee
- •The Carriage of Goods by Sea Act 1992
- •Bills of lading and fraud
- •Electronic data interchange (EDI) and the Carriage of Goods by Sea Act 1992
- •Conclusion
- •Further reading
- •7 Bills of Lading and Common Law
- •Introduction
- •Implied obligations on the part of the shipowner
- •Implied obligations on the part of the shipper
- •Common law exceptions
- •Contractual exceptions
- •Other terms in bills of lading
- •Conclusion
- •Further reading
- •Introduction
- •Limitation of liability
- •Scope of application
- •Contracting out
- •The future
- •Further reading
- •9 The Hamburg Rules and the Rotterdam Rules
- •Introduction
- •The Hamburg Rules
- •Scope of application
- •The Rotterdam Rules (The UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea)
- •Conclusion
- •Further reading
- •10 International Carriage of Goods by Air
- •Introduction
- •The Warsaw system
- •Approach to interpretation of the Warsaw Convention in the English courts
- •Scope of application of the Warsaw Convention (unamended and amended versions)
- •Contracting out
- •Documentary responsibilities
- •Air waybill and negotiability
- •Electronic data interchange (EDI) and the Warsaw regime
- •Carrier liability
- •Proceedings
- •The Montreal Convention
- •Further reading
- •11 International Carriage of Goods by Rail
- •Introduction
- •Interpretation of the CIM
- •Scope of application
- •Documentary responsibilities
- •Electronic data interchange (EDI) and the CIM rules
- •Contracting out
- •Proceedings
- •Conclusion
- •Further reading
- •12 International Carriage of Goods by Road
- •Introduction
- •Interpretation of the CMR by the English courts
- •Scope of application
- •Contracting out
- •Documentary responsibilities
- •Electronic data interchange (EDI) and the CMR
- •Proceedings
- •CMR – the future
- •Further reading
- •13 International Multimodal Transport
- •Introduction
- •Freight forwarder – agent or principal?
- •Fiata negotiable multimodal bill of lading
- •Conclusion
- •Further reading
- •Overview
- •14 Marine Insurance
- •Introduction
- •Scope and nature of marine insurance contracts
- •Principles of marine insurance law
- •Warranties on the part of the insured – implied and express
- •Deviation
- •Liability of insurer
- •Institute cargo clauses (A), (B) and (C)
- •Conclusion
- •Further reading
- •15 Letters of Credit
- •Introduction
- •Open account
- •Bills of exchange
- •Documentary bill
- •Letters of credit
- •Performance bonds/guarantees and standby letters of credit
- •Other means of minimising risk of non-payment
- •Conclusion
- •Further reading
- •Overview
- •16 Civil Jurisdiction
- •Introduction
- •Submission by appearance
- •Ordinary contracts
- •Tort claims
- •Ancillary jurisdiction
- •Jurisdiction clauses
- •Simultaneous actions
- •Interim relief
- •Conclusion
- •Further reading
- •17 Choice of Law
- •Introduction
- •The proper law – express choice
- •The proper law – implied choice
- •The proper law – closest connection
- •Particular issues
- •English public policy and overriding mandatory rules
- •Certain particular types of contract
- •Torts and restitutionary obligations
- •Conclusion
- •Further reading
- •18 Foreign Judgments
- •Introduction
- •European judgments
- •External judgments
- •Conclusion
- •Further reading
- •19 Arbitration
- •Introduction
- •Characteristics
- •Arbitration in international commercial contracts
- •Arbitration under English law
- •Foreign arbitral awards
- •Conclusion
- •Further reading
- •Introduction
- •International developments
- •Developments in England
- •Features and associated issues
- •Mediation online
- •The EU Directive on mediation in civil and commercial matters
- •Conclusion
- •Further reading
- •Overview
- •21 Fighting Corruption in International Business
- •Introduction
- •The OECD Convention
- •The OECD and the UK Bribery Act 2010
- •The UNCAC
- •Business codes of conduct
- •Conclusion
- •Further reading
- •Appendix 7
- •Index
THE MONTREAL CONVENTION |
| 331 |
I adopt the view, taken by other courts which have considered this problem, that there are, in this respect, strong considerations of commercial sense in favour of an interpretation which recognises and gives effect to the underlying contractual structure, save in so far this is positively inconsistent with the Warsaw and Guadalajara Conventions ...
The interests of international uniformity no longer point towards a restriction of the right of suit to any named consignor, consignee or person entitled under Art 12(1). The new magnetic pole of jurisprudence draws quite strongly towards conclusions that there is no such general restriction in the convention, and that, at least under systems which recognise the rights of unnamed or even undisclosed principals, there is nothing in the conventions to prevent such principals of the named consignor or consignee intervening and suing (or being sued) in reliance on the relevant contract for carriage by air. As principals, they will necessarily be subject to any limitations on suit which the convention imposes on their consignor or consignee agents [at pp 765–68].
Time limitation
An action for damages will be time barred if it is not brought within two years (Art 29(1)).108 Time starts to run from the date of arrival at the destination, from the date on which the aircraft should have arrived, or from the date the carriage stopped. The method of calculating the time is left to the forum (Art 29(2)). In Britain, s 5(1) of the Carriage by Air Act 1961 extends the availability of the time limitation to carriers’ agents and servants who have acted in the scope of their employment.
An action for freight or an action for indemnity between carriers is not affected by Art 29(1) since the provision restricts itself to action for damages.
The Montreal Convention
The Warsaw regime had been questioned for quite a while because of the complexity brought about by the co-existence of the Warsaw Convention 1929 and the Warsaw Convention as amended by the Hague Protocol 1955, along with the four Montreal Protocols. Attention to the shambles of the Warsaw system was continuously drawn by academic writers.109 The dissatisfaction with the system emanating from industry, legal practitioners, academics and policy makers seems to have had some impact, and, under the auspices of the International Air Transport Association (IATA), the convention, known as the Montreal Convention, was approved in 1999. As stated in the Introduction, the Montreal Convention does not introduce any dramatic changes to the liability scheme.110 There is, however, one important change introduced in relation to cargo documentation by the Montreal Convention, which reflects its modernisation aspect. Article 4(2) gives recognition to the use of electronic documentation by providing that ‘any other means which preserves a record of the carriage to be performed may be substituted for the delivery of an air waybill’. Where an alternative to a tangible document is used, Art 4(2) allows the carrier when requested by the consignor to deliver ‘a cargo receipt permitting identification of the consignment and access to the information
108Note also Art 26, which specifies the time for submitting written complaints. See also Western Digital Corp and Other v British Airways plc [2001] QB 733.
109See Matte, ‘The Warsaw system and the hesitation of the US Senate’ (1983) 8 Annals Air and Space Law 151; Harakas, ‘The Montreal Protocols in the United States 17 years later: the road to ratification or final defeat’ (1992) 41 ZLW 354.
110See Table 10.1 on carrier liability in relation to cargo under the different variations of the Warsaw Convention and the Montreal Convention.
Table 10.1: Carrier liability in relation to cargo underWarsaw Convention 1929 (WC1929),Warsaw Convention 1929 as amended by Hague Protocol 1955 (WC1955),Warsaw Convention 1929 as amended by Hague Protocol 1955 as amended by Montreal Protocol no 4 (MP4), and the Montreal Convention 1999
ISSUES |
WC1929 |
WC1955 |
MP4 |
MONTREAL CONVENTION |
|
|
|
|
1999 |
|
|
|
|
|
Carrier liability |
Carrier liable for destruction or |
Same as WC1929 |
No change to liability, except |
Same as MP4 |
|
loss of, damages to goods (Art 18 |
|
change in defences |
|
|
(1)), and damage occasioned by |
|
|
|
|
delay (Art 19) |
|
|
|
|
|
|
|
|
Period of |
Responsible for goods when |
Same as WC1929 |
Effect of replacement Art 18 (see |
Responsible for cargo when |
responsibility |
in carrier’s charge (Art 18(2)). |
|
Arts 18(4) & 5) has the same ef- |
carrier in charge of cargo |
|
This period does not extend |
|
fect as Art 18(2) & (3) of WC1929 |
(Art 1(3)). It does not extend, |
|
to carriage by other modes of |
|
(see Art IV amending Art 18). |
however, to carriage by land, |
|
transport – for example, land, |
|
|
sea or inland waterway, |
|
sea, river – unless undertaken |
|
|
unless done for the purpose |
|
in the performance of carriage |
|
|
of loading, delivery and so |
|
by air as in loading and delivery |
|
|
on. However, where the |
|
(Art 18(3)). |
|
|
carrier substitutes air car- |
|
|
|
|
riage with another mode of |
|
|
|
|
carriage without the consent |
|
|
|
|
of the consignor, the entire |
|
|
|
|
carriage would be treated |
|
|
|
|
as within the period of air |
|
|
|
|
carriage (Art 18(4)). |
|
|
|
|
|
Defences |
Not liable if he proves that he |
Same as WC1929, |
Not liable in the event of inherent |
Same as MP4 (see Arts 18 |
|
and his agents have taken all |
except negligent |
defect, quality or vice of the |
and 19) |
|
necessary measures to avoid |
navigation, |
cargo; defective packing of the |
|
|
damage or it was impossible for |
management |
cargo performed by a party other |
|
|
him/them to take such measures |
exceptiondropped |
than carrier, servants or agents; |
|
|
(Art 20(1)). |
(see Art 10) |
an act of war or armed conflict; |
|
|
Also not liable if he proves |
|
or an act of public authority |
|
|
damage caused by negligent |
|
carried out in connection with |
|
|
handling of aircraft or in |
|
the entry, exit or transit of cargo |
|
|
navigation (Art 20(2)) |
|
(Art IV amending Art 18). |
|
|
|
|
In the event of damage caused |
|
|
|
|
by delay, not liable if he can |
|
|
|
|
show that he took all necessary |
|
|
|
|
measures that could reasonably |
|
|
|
|
be required to avoid the damage |
|
|
|
|
or that it was impossible to take |
|
|
|
|
such measures (Art V amending |
|
|
|
|
Art 20). |
|
|
|
|
|
|
Liability |
250 per kg, unless there is |
Same as WC1929 |
No change |
Was same as WC1955 |
limits |
a declaration of interest by |
Expression |
|
as amended by Montreal |
|
consignor (Art 22). |
in SDRs due |
|
Protocol. (Art 22(3)) |
|
(Expressed as 17 SDRs in |
to Montreal |
|
Note, however, Montreal |
|
Montreal Protocol No 1 |
Protocol No 2 |
|
Convention allows for |
|
amending WC1929) |
|
|
periodic review of liability |
|
|
|
|
limits (Art 24). This provision |
|
|
|
|
has been used to increase |
|
|
|
|
limits to 19 SDRs per kg. |
|
|
|
|
|
(Continued)
Table 10.1: Carrier liability in relation to cargo underWarsaw Convention 1929 (WC1929),Warsaw Convention 1929 as amended by Hague Protocol 1955 (WC1955),Warsaw Convention 1929 as amended by Hague Protocol 1955 as amended by Montreal Protocol no 4 (MP4), and the Montreal Convention 1999 (Continued )
ISSUES |
WC1929 |
WC1955 |
MP4 |
MONTREAL CONVENTION |
|
|
|
|
1999 |
|
|
|
|
|
Breaking the |
Limits broken in the event |
Limits broken |
Limits cannot be broken in the |
Same as MP4 (see Art 22(5)) |
limits |
of damage caused by wilful |
where damage |
carriage of cargo (Art IX amend- |
|
|
misconduct or by default that is |
resulted from an |
ing Art 25). |
|
|
considered equivalent to wilful |
act or omission |
|
|
|
misconduct (Art 25) |
of the carrier, |
|
|
|
|
his servants or |
|
|
|
|
agents done |
|
|
|
|
with intent to |
|
|
|
|
cause damage |
|
|
|
|
or recklessly and |
|
|
|
|
with knowledge |
|
|
|
|
that damage |
|
|
|
|
would probably |
|
|
|
|
result (see Art 13 |
|
|
|
|
amending Art 25) |
|
|
|
|
|
|
|
Time limitation |
Two years from date of arrival or |
No change |
No change |
No change (see Art 35) |
|
from date when aircraft should |
|
|
|
|
have arrived (Art 29) |
|
|
|
|
|
|
|
|