Legal
Know your BIFA Standard Trading Conditions: clause 2 – REVISITED
Carriage by Air Acts (Implementation of the Montreal Convention 1999) Order 2002 SI 2002/263. Up to December 2010, 97 states had adopted this convention including the UK and all other EU states and the US. Also still in force are three versions of the Warsaw Convention – Original, Amended and Montreal Protocol No.4 of 1979, identi fi ed as ‘MP4’. For ‘Non- International Carriage’ (see below) there are now the Non- International Carriage Rules implemented by The Carriage by Air Acts (application of provisions) Order 1967 SI 1967/480 as amended. The Montreal Convention of 1999, the three versions of the Warsaw Convention and the Non- International Carriage Rules can all apply to air carriage to and from the UK. These complexities arise because each regime applies only if both the country of despatch and the country of destination have adopted it, failing which the regime previously common to both countries applies. For example, until the 28 June 2004, the UK had adopted (since 1998) the MP4 version of the Warsaw Convention. Israel has not adopted the Montreal Convention of 1999 (up to December 2010) but in 1998 it adopted the MP4 version of the Warsaw Convention. Thus air carriage between the UK and Israel is subject to the MP4 version of the Warsaw Convention, not the Montreal Convention of 1999 (which in so far as cargo is concerned have little difference) The term ‘non-international carriage’ is used in the legal sense – not the geographical sense – and the term does apply to air carriage between the UK and its overseas territories such as the Channel Islands, Bermuda, Falkland Islands, Turks and Caicos Islands, etc. Thus the Non-International Carriage Rules apply to such air carriage as well as to air carriage within the UK. The Montreal Convention of 1999 and all versions of the Warsaw Convention apply only to the period
This month we pause the Know Your BIFA Standard Trading Conditions series to revisit Clause 2.
I n June 2022, BIFA examined the relationship between Clause 2 of the BIFA STC and the various international modal conventions covering the carriage of goods. The main focus was on common law, contract law and statute law. Subsequently BIFA received an enquiry from a Member regarding a 2018 judgment which, in certain limited circumstances, impacts on this particular clause. Due to the complexity of the subject matter, and to ensure that context is clear to the reader, we are reproducing the whole article with the amendment highlighted in blue. The CMR Convention for the International Carriage of Goods by Road enacted by the Carriage of Goods by Road Act 1965. It is important to note that this Convention concerns the contract of carriage and not the vehicles used to perform the contract. Thus the CMR Convention may still apply to local collections and deliveries before and after carriage by the vehicle used for an international journey, if those local journeys form part of the contract of international carriage. If the local carrier has not contracted for international carriage, then that local carrier may have liability only to the extent offered under its trading conditions, unless it has taken over the CMR consignment note or unless the provisions of the CMR Convention are voluntarily adopted. The CMR Convention does apply to road carriage to or from a country that is a party to the CMR Convention. Most European countries are a party to the CMR Convention. The CMR Convention does not apply to a contract for the carriage of an ISO container when the container is taken off the road vehicle for sea carriage (that is what usually happens).
The CMR Convention does not apply to road carriage between the UK and the Republic of Ireland, nor that between the UK and Jersey. Hague Visby Rules: The Hague Visby Rules for Sea Carriage enacted by the Carriage of Goods by Sea Act 1971. This International Convention applies compulsorily only when a bill of lading or equivalent document is issued by the carrier (not a certificate of shipment or sea waybill because sea waybills are not bills of lading under Article 1(b) of the Hague-Visby Rules as found in the case of the Rafaela S [2005] ). There is a small exception to this where it is possible for the rules to apply compulsorily when sea waybills are issued when the contract of carriage requires bills of lading to be issued or allows the customer to demand the issue of bills of lading and no bills of lading are issued. (Kyokuyo Co Ltd v AP Møller-Maersk A/S (Maersk Tangier) [2018]) . It also applies compulsorily only to the time when the goods are loaded onto a ship until they are discharged from a ship (‘tackle to tackle’). Thus, for multimodal carriage by container, they apply compulsorily only to the ‘sea leg’. The Hague Visby Rules apply to international sea carriage when the port of shipment is in the UK. Several other countries have adopted the Hague Visby Rules of 1968 but other countries apply the Hague Rules of 1924 or the Hamburg Rules of 1978, or variants of those rules. All these rules can apply to imports into the UK, depending on the country of shipment. The Montreal Convention 1999 for International Air Carriage. The main UK legislation for this Convention is the Carriage by Air Act 1961, as amended by the
“ The CMR Convention does apply to road carriage to or from a country that is a party to the CMR Convention. Most
European countries
are a party to the CMR Convention.
22 | June 2023
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