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Santanu Sanyal

AFTER processing, the tea grown in the gardens of Assam will be packed in paper sacks for transportation by road to the inland container depot (ICD) at Amingaon near Guwahati. The empty containers available in the ICD will be stuffed with the tea sacks brought from the gardens; once loaded, the containers will be put on railway flats bound for Haldia Dock. On arrival at Haldia, the containers will be placed on a container vessel for shipments to various destinations. After unloading at the destination ports, the containers might go through the same processes, i.e. part movement by rail, part by road and part even by waterways.

The story is identical for exports originating in some inland locations such as Ludhiana or Mirzapur and getting routed through the Jawaharlal Nehru Port for shipment purposes — the same consignment is being handled by different modes of transport. So what, one might ask. The answer to this question may not be so easy.

Earlier, an export consignment, only after it had been put on board a vessel after complying with all necessary formalities, would be taken as "exported". Under multi-modalism, a consignment is taken as "exported" once it has been loaded into a container and the Customs Authorities have sealed the box no matter whether it is in the port or in an ICD far away from the port. This naturally throws up a plethora of issues, calling for a new legal framework and liability regime.

Despite attempts to establish a uniform legal framework governing multi-modal transportation, no such international regime has emerged as yet. The current regulatory framework in the field of international multi-modal transportation being notoriously complex, the liability is fragmented and cannot be assessed in advance. While the development of a uniform international regulation in the field is desirable, any new international liability regime to succeed has to offer clear advantages over the existing framework. This is important because any new but poorly designed or otherwise inadequate regime will add to the current complexity without giving benefits.

The United Nations Convention on International Multi-modal Transport of Goods 1980 failed to attract sufficient ratifications. The UNCTAD/ICC Rules of Multi-modal Transport Documents, which came into force in January 1992, do not have the legal backing. The rules, being contractual in nature, will have no effect in the event of conflict with mandatory law.

In 2001, a UNCITRAL Working Group on Transport Law was established by the UNCITRAL Commission to consider elaboration of a new international instrument, initially focusing on port-to-port transport. In view of the current proliferation of laws at the international level, this may be one of the most important developments since the adoption of the United Nations Convention on the subject (Hamburg Rules 1978). The Working Group met in April 2002 to begin consideration of a `Draft Instrument on Transport Law' (Draft Instrument), which had been prepared by CMI (Comite' Maritime International) at the insistence of the UNCITRAl Secretariat.

The Draft Instrument consists of 17 chapters and, to a large extent, covers matters covered in the existing maritime liability regimes, namely, the Hague-Visby Rules and the Hamburg Rules. In addition, several chapters are devoted to issues currently not subject to international uniform law such as delivery, freight and transfer of the right of control and right of suit. Not all these areas would be subject to mandatory rules and further debate may be needed before an international consensus emerges as to substantive non-mandatory regulation in these areas.

The Draft Instrument also provides for electronic communication and the issue of electronic substitutes for traditional paper documents, largely by recognising contractual agreements and by according electronic records the status of paper-based documents.

Interestingly, as the UNCTAD Review of Maritime Transport 2002, observes, the Draft Instrument — despite the limitation of the initial mandate of the Working Group on port-to-port transport — has broad scope of application and, as presently drafted, would cover all multi-modal contracts for the international carriage of goods which include a sea leg. As such, the proposed Draft Instrument represents an ambitious attempt to provide uniform regulation governing not only contracts for the carriage of goods from one seaport to another but also transport contracts generally.

But in the opinion of the UNCTAD Review, while uniform transport regulation may in principle be desirable, it appears questionable whether the approach taken, namely the extension of a maritime regime to the whole transport chain, is the most appropriate solution.

India is, perhaps, one of the few countries in the world to frame a separate law in this respect.

The Multi-modal Transportation of Goods Act 1993 was passed by the both Houses of Parliament in 2000. However, the provisions of the Act apply only to exports, not imports.

There are certain anomalies in regard to liability regime of various documents used for the multi-modal transportation in the country.

The CTD or the combined transport document used by the shipping lines and the FIATA documents used by the freight forwarders go by the Hague-Visby Rules, suggesting that the carriers are not responsible for the consequential loss caused by the delay. However, MTDs or the multi-modal transport documents used by the NVOCCs (non-vessel owning cargo carriers) cover such losses.

The concept of EDI (electronic date interchange) is yet to be in force in a big way. For example, in some west coast ports where EDI is supposed to have been launched "successfully", the presentation of the hard copy is also insisted upon. A large number of firms has registered themselves as multi-modal transport operators but how many of them really undertake the job is of course another matter.

Earlier, there was one association, the Multi-modal Transport Operators Association of India; now the Association of Multi-modal Transport Operators in India has also been formed.

One only hopes that the real issues facing the multi-modal operators will not get lost in the process.

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