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Reflections on Multimodal Transport Operators Liability for Delay in Delivery Under Indian Law.

(By Adv. V.M. Syam Kumar-Lecturer for Maritime Law, National University for Advanced Legal Studies, Kochi.) When can it be said that a multimodal transport operator has caused delay in delivering the goods? To what extent can he be made liable if there is delay in delivery? Can he be made liable to compensate for the loss of profit that the consignor would have derived had the cargo reached its destination without delay? Answers to these ought to be derived from the Multimodal Transportation of Goods Act, 1993 (in short the Act). Multimodal transportation is defined by the Act as carriage of goods by at least two different modes of transport under a multimodal transport contract from the place of acceptance in India to a place of delivery of goods outside India. So for instance if cargo is to be transported from a place in India viz., Cochin to a place in Europe say the city of Hannover, Germany (which city does not have a direct port access) it will have to be first transported from Cochin to the port of Hamburg by sea and from there carried by road to the city of Hannover. Such a transport involving both sea and road legs is an instance of Multimodal transportation as defined by the Act provided it is undertaken under a multimodal transport contract. The Act defines multimodal transport contract as a contract under which a multimodal transport operator undertakes to perform or procure the performance of multimodal transportation against payment of freight. The terms procure the performance would bring within the ambit of the term multimodal transport operator any one who does not personally own any conveyance needed for conducting a multimodal transport operation and hence relies on other carriers or transporters for the said purpose. Since the definition of the terms multimodal transport operator is of crucial relevance regarding the scope of applicability of the Act, the statute envisages a detailed exposition of the said term. Three requirements are to be satisfied for a person to be brought within the term multimodal transport operator. It is mandatory that he should have registered himself as a multimodal transport operator under the relevant provision of the Act. Further, he should have concluded the multimodal transport contract on his own behalf or through an agent. In addition to the above and towards bringing with in the sweep of the definition only those who are assuming principal liability for the performance of the carriage contract, it has been stipulated that an agent of the consignor or the consignee or the carrier shall not come within the said definition of multimodal transport operator. A person who satisfies the above said basic requirements can be termed as a multimodal transport operator and can in furtherance of a multimodal transport contract, issue a multimodal transport document which could be either negotiable or nonnegotiable. Thus, in the above example when a person undertakes to perform a multimodal transport contract for transportation of goods from Cochin in India to Hannover in Germany, which transportation would involve two modes, viz., a sea leg between the port of Cochin to the port of Hamburg and in the second phase transportation of the container through road from Hamburg to Hannover, will be a multimodal transport operator as envisaged in the Act if he has registered himself under the Act and if the principal responsibility for performance of carriage from Cochin to Hannover rests on him. The document issued by him covering the entire transport from Cochin to Hannover will be a multimodal transport document as defined under the Act. All disputes arising out of such a carriage of goods will have to be governed by the Act and the responsibilities and liability of such a multimodal transport operator, including that for delay in delivery, will be specifically governed by Chapter IV of the Act.

Since in this article we are only concerned about the liability of a multimodal transport operator for delay in delivery, I confine myself to those provisions of Chapter IV of the Act which are relevant from the point of view of delay in delivery. Since the meaning of the term Delivery has different connotations depending upon the nature of the document evidencing contract of carriage issued to the shipper of the cargo, the Act has proceeded to define delivery by distinguishing between negotiable and non-negotiable multimodal transport documents. Under Sec. 2 (f) (i) of the Act, in a case where the carrier has issued a negotiable multimodal transport document [more elaborately defined in Sec.2 (n)], delivery will be treated as complete when the consignment is delivered to or placed at the disposal of the consignee or the person entitled to receive the same. In the case of a non-negotiable multimodal transport document, the only difference is that delivery could be made to any person authorized by the consignee to accept delivery of the consignment on his behalf. Thus the attempt is to bring a Multimodal transport document at par with the traditional bill of lading so as far as negotiability is concerned thereby rendering it a crucial document enabling international commerce. The sweep of the term placing at the disposal of will assume immense practical relevance especially in view of the terms following it viz., or the person entitled to receive the same. Can delivery to a port authority be termed as delivery under Sec.(f) (i)? Can a port be deemed as the person entitled to receive the same? Though these questions have been answered by courts of law in various decisions from the point of view of Carriage of Goods by Sea, under Multimodal Transportation they assume tremendous practical relevance. Being outside the purview of the subject discussed herein, I save it to different occasion to discuss. Delay in delivery and any consequential loss or damage arising out of such delay is a liability for which the Multimodal Transport Operator (whom we call Carrier in this article for brevity) will be answerable under law. Sec.13 of the Act clarifies that such a liability will accrue only if such delay in delivery took place while the consignment was in the charge of the Carrier. Taking note of the fact that transportation of goods especially, carriage by sea is subject to the vicissitudes of nature, the law mandates that such a liability for delay will be attributable on the Carrier only upon the existence of two factual aspects. One is that the carrier shall not be liable if he proves that no fault or neglect on his part or that of his servants or agents had caused or contributed to such delay in delivery and secondly carrier shall not be liable for delay in delivery and any consequential loss or damage arising out of such delay unless the consignor had made a declaration of interest in timely delivery which had been accepted by the carrier. The above said protections afforded by law to the carrier in the form of provisos to section 13 of the Act calls for deeper scrutiny. May be we can understand it easily by applying it to the fictitious journey of our container from Cochin to Hannover through Hamburg. The first question would be what can be termed as a declaration of interest in timely delivery by the consignor and when can it be legally said that such a declaration has been accepted by the carrier? Does a mere statement of the use to which the cargo would be put to at the destination amount to declaration of interest in timely delivery? For example, if it is stated on the multimodal transport document that the cargo is for a particular use at Hannover on a particular date, does it mean that the consignor has made a declaration of interest in timely delivery? Can such a mere statement on the multimodal transport document mean that it has been accepted by the carrier? What is required in law to constitute a valid acceptance by the Carrier of declaration of interest in timely delivery? Answers to these questions can be gathered from the explanations to Sec. 13. It states that delay in delivery for the purpose of Sec 13 shall be deemed to occur when the consignment has not been delivered within the time expressly agreed upon or in the absence of such agreement within a reasonable time required by a diligent carrier having regard to the circumstances of the case to effect delivery of the consignment. The explanation further goes on to provide that if the consignment has not been

delivered within ninety consecutive days following the date of delivery expressly agreed upon or the reasonable time as stated above the claimant may treat the consignment lost. The point that stands pout clear from above is that there has to be a DECLARATION OF INTERST IN TIMELY DELIVERY and the time within which the delivery has to be made has to be EXPRESSLY AGREED UPON. So in our above example, a mere statement on the multimodal transport document that the cargo is for a particular use at Hannover on a particular date will not legally suffice. First and foremost, it does not amount to a declaration of interest in timely delivery as envisaged in the Act. Declaration has to be clear specific and sufficiently elaborate to reveal the intent. It should contain the dates, the loss that is apprehended would occasion in case of non delivery within that time etc. Had this not been the intent of the legislature, the word as wide in its sweep as Declaration would not have been used. Hence it cannot be deemed or gathered from mere sentences or statements in the face of the multimodal transport document that the cargo is for a particular use at Hannover on a particular date. Moreover, there has to be an express mention of the date on which the parties agree, before which delivery will be made. A vague statement of purpose to which the cargo will be put to at its destination is insufficient so as to meet the requirements of Sec. 13 of the Act. Now comes the equally important question regarding the liability of the carrier for any consequential loss or damage arising out of the delay. What is the import of the terms consequential loss or damage and when can it be said that it arises of out the delay? Can profits that are indeterminate and vague like those that the consignor would have enjoyed had the consignment reached the destination on the date assumed by him be termed as consequential loss or damage arising out of the delay? Can the carrier be made liable to compensate for such loss of assumed profit? This takes us to the realm of contract law and the proximity of the loss occasioned to the alleged breach. Much may depend on the facts of the case and the evidence tendered to prove the alleged loss, but as far as the carrier under the Act is concerned, a provision comes to his rescue hereto. Sec.16 of the Act provides to the effect that where delay in delivery of the consignment occurs under any of the circumstances mentions in Sec.13 or any consequential loss or damage arises from such delay, the liability of the carrier SHALL BE LIMITED TO THE FREIGHT PAYABLE FOR THE CONSIGNMENT SO DELAYED. The Act thus provides for a clear limitation of liability of the carrier in case of delay. Whatsoever may be the alleged consequential loss or damage arising from the delay, the carrier need pay only the amount of freight payable with respect to the relevant consignment. This provision is well in order and in pari materia with similar provisions in enactments pertaining to limitation of liability of transporters/carriers in force across various legal jurisdictions. The above said Sec.16 relating to limitation of liability for delay should however be read along with Sec.18 of the Act which provides to the effect that the carrier shall not be entitled to the benefit of limitation of liability if it is proved that the loss, damage or delay in delivery of consignment resulted from an act or omission of the carrier with intent to cause such loss, damage or delay or recklessly and with knowledge that such loss, damage or delay would possibly result. Consignor thus has to prove that the delay resulted from the act or omission of the carrier either intentionally or recklessly and with knowledge that such delay would occur. What is the standard of proof required for a court to find that carrier had intent to cause such delay? What is the evidence needed to prove that the carrier had been reckless? When can it be said that he had the knowledge that such delay would possibly result? Is that a condition which should preexist for recklessness to apply? Should the knowledge be coupled with intention or recklessness? Answer to the former would not be easy as gauging of intention would call for an importation of concepts from the realm of criminal jurisprudence sans the criminal intent. Intent points to the existence of deliberate act of delaying

the consignment. Normally for a carrier to harbor such intent against the consignor, there ought to be some prior dealings between him and the same consignor or somebody in whom he is interested in, the repercussions of which would have lead to the formation of the intent in the carrier to deliberately cause the loss to the consignor by delaying the consignment. So, to successfully contend that the carrier is not entitled to limit his liability for loss due to delay since there was in him an intent to cause such delay and consequential loss, the consignor will have to prove the existence of a prior intercourse leading to the formation of such intent in the carrier. Easier course of would be contend recklessness. The facts of the case could prove whether the carrier has been reckless or not. It has to be borne in mind that reckless in law is different from careless ness or negligence. It is an act higher in degree. Mere delay of a day or two may not amount to recklessness. Moreover, unless the carrier had prior knowledge that such loss, damage or delay would possibly result from delay, recklessness cannot be alleged against him. So first it has to be proved that the carrier had clear knowledge of the delay that would probably result if he is reckless. How can such knowledge be acquired by the carrier? It can be when the consignor makes a declaration of interest in timely delivery. So in a case where there is no declaration of interest in timely delivery or when the time within which delivery has to be made has not been expressly agreed upon and stated, recklessness or intention to cause delay cannot even be contended nor can liability be mulcted on the carrier based on such alleged delay. Multimodal Transportation of Goods Act, 1993 thus envisages a totally different regime regarding liability of the carrier for delay in delivery. The provisions therein reflect the felt necessities of the business of multimodal transportation. The Act as in force in India attempts a delicately balance the interests of the consignor in protecting his interest in timely delivery of goods entrusted to the carrier and the genuine interests of a prudent carrier who performs his duties reasonably and fairly. The Act in attempting to do so indeed tilts the balance more in favour of the carrier as it puts in place an arduous procedure for the consignor to get over the protections afforded to the carrier. * * *

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