1. Cefor – Marine Insurance Education, Copenhagen 22-23 April 2014 Henrik Thal Jantzen

2. introduction
Why does cargo underwriters need to know about transport law?
to assess appropriate premium (taking possible recovery funds into considerations)
to advise on possible risk and exposure to cover (limitations, exemptions, forum, legal entity responsible)
to advise about possible additional cover (on- carriage, rejection, deck cargo, subsidiary coverage)
to consider appropriate warranty clause to be inserted (deck cargo, pre-loading survey, packages, parking places)

3. introduction
Why does cargo claims handler need to know about transport law?
recovery profits are a substantial part of the premium assessment
To advise about – or take - immediate actions to protect and safeguard cargo interest position 

4. Transport law is complex
No uniform legislation applies in relation to the various mode of transport
No inter-connection regulations between the various unimodal conventions
Actual place of jurisdiction decisive in relation to the relevant rules to apply

5. Recovery prospect
It is not possible to predict the recovery prospect until you have an actual cargo claim in hands
Is it a C/P claim or a B/L claim?
The alternative forum available
Terms and conditions applicable
Carriers involved (actual and/or contractual) and their prospects to honour a claim
Evidence established as regards cause and extent of damage

6. Most relevant documents required
1. Contract of carriage (B/L, C/P, fixing note, recap)
to identify the contractual carrier
to decide on the mode of transport agreed
to identify the Terms and Conditions agreed

7. Most relevant documents required
2. Commercial invoice
Valuation of goods (to verify the extent of loss or damage)
Delivery terms - to substantiate the entity entitled to sue

8. Most relevant documents required
3. Evidence in relation to the damage/loss
Survey reports (preferable joint survey)
Sea protest and/or reports about the occurrence
Police reports, firefighting reports, custom reports or other public reports or info
Tally reports, temperature records, outturn reports
Logbook, engine log, pre-loading reports etc.

9. Legal regime Mode of transport Road (CMR)
Sea (Hague, Hague Visby, Hamburg)
Air (Montreal Convention)
Rail (Codif/CIM)
Multimodal (Rotterdam Rules ? or agreed terms)

10. Unimodal Basically elementary to determinate applicable rules BUT
Has the transport been carried in accordance with the agreement?
What rules apply in case the carriers have deviated from the agreed mode of carriage?
CASE (Salmon Roe)

11. Multimodal carriage No mandatory rules applicable
Multimodal terms agreed
Fiata Combined transport B/L
NSAB or similar freight forwarder terms
Individual Terms and Conditions
Network clauses often agreed
Known damage – unimodal rules to apply
Unknown damage - general rules to apply (SDR 2 per kilo)

12. Loss/damage caused while goods are in the carriers’ custody
Decisive factor in relation to liability
prima facie evidence in favour of cargo interest
carriers carry a heavy burden of proving that
damage did actually not incur while in the carriers’ custody
damage was caused by circumstances for which the carriers are not liable

13. Loss/damage caused while goods are in the carriers’ custody
Condition of goods while taken over by the carriers
visible inspection of the carriers
clean receipt documents (B/L, interchange receipt, mate receipt, consignment note (CMR))
qualified remarks (what about FCL – containers)
Case:
850 boxes of fish fingers
From pepper to corn

14. Loss/damage caused while goods are in the carriers’ custody
Condition of goods upon delivery to the consignee
receivers lodge a notification in time as per the applicable rules
reservation made on the receipt document

15. Loss/damage caused while goods are in the carriers’ custody
Loss or damage actually caused during transit (fire, road accident, rubbery during parking, salt-water damage)
Loss or damage based on documentation/evidence considered caused in transit
Imaginary loss constituted incurred in transit (B/L in hands of third party) 
Case:
From ram units to microwave oven

16. forum Extremely important for the recovery prospect:
applicable law decided by the competent court in question (conventions incorporated in the jurisdiction)
period of time and costs required to obtain a judgement - important factor for level of settlement
predictability of the outcome
enforceability of the judgement

17. b/l vs. c/p claim Claim under a B/L: mandatory legislation applicable
mandatory jurisdiction in the country where the goods have been taken over and/or at the place of delivery (and often as well in the place of loading and the place of discharging)
contractual carrier (liner company named on the B/L) and performing carrier jointly liable 

18. b/l vs. c/p claim Claim under a C/P:
no mandatory legislation applicable
terms and conditions inserted in the C/P apply
forum clause (often at the place of business of the carriers) applies
exclusion or limitation of liability - see ex clause 2 of Gencon 94

19. Gencon clause 2 Owners’ Responsibility Clause
The Owners are to be responsible for loss of or damage to the goods or for delay in delivery of the goods only in case the loss, damage or delay has been caused by personal want of due diligence on the part of the Owners or their Manager to make the Vessel in all respects seaworthy and to secure that she is properly manned, equipped and supplied, or by the personal act or default of the Owners or their Manager.

20. b/l vs. c/p claim Transference from C/P claim to B/L claim:
CIF terms - seller C/P party - buyer third party B/L holder
FOB terms - Seller  Shipper - Buyer  C/P party and not third party B/L holder

21. liability
1) Established that loss of or damage to goods incurred in the carriers’ custody
2) Prima facie evidence in favour of cargo interests
3) B/L claim - exemption of liability in case of fire and errors in navigation
4) No liability for damage outside the carriers’ control (inherent vice, shippers fault, act of god)

22. limitations CMR: SDR 8.33 per kilo SEA: SDR 2 / 667 AIR: SDR 19
Rail: SDR 17

23. Limitation regime
Limitation only for loss of or damage to cargo during carriage
No limitation for other losses in relation to the performance of the carriage such as mis-deliveries (CAD, COD), improper customs clearance
Rotterdam Rules and FF-terms include universal limitation for all claims under the contract

24. Breach of limitations
CMR: Gross negligence of the road carrier or his servant
SEA: Art. 4, subsection 4, of the Hague Visby Rules: “Is proved that the damage resulted from an act or omission of the servant or agent done with intent to cause damage or recklessly and with knowledge that damage would probably result."
AIR: Montreal Convention: Limitation cannot be breached

25. Claims handling – in practice
Now we are prepared to handle loss of or damage to the cargo
How has the transport been contracted?
How has it actually been carried out?
Information about cause of damage
Info about transport document issued and remarks made hereon, if any
Info about any notice of damage or loss made by the consignee
B/L issued and negotiated
Possible forum