Carriage of goods by air, rail and road, container transport and multimodal transport

1. Carriage by air: the conventions

• Warsaw Convention, 1929: the first uniform regime, with documents of carriage, presumed-fault liability and a limit of 250 gold francs per kilogram for cargo.
• Hague Protocol, 1955: amended Warsaw, simplified documents and doubled the passenger limit.
• Montreal Convention, 1999 (Convention for the Unification of Certain Rules for International Carriage by Air): consolidated and modernised the system, with strict liability for cargo within limits and electronic records. India acceded in 2009.

The Carriage by Air Act, 1972 gives effect to all three. The First Schedule contains the Warsaw Convention, the Second Schedule the Convention as amended at The Hague, and the Third Schedule, inserted by the amending Act of 2009 (w.e.f. 1 July 2009), the Montreal Convention, applied by section 4A. Which applies depends on whether the States of departure and destination are parties to Montreal, to amended Warsaw or only to original Warsaw. Section 8 allows the Central Government to apply the rules to non-international (domestic) carriage, which it has done by notification.

2. Montreal Convention: cargo rules

• Documentation (Articles 4 to 11): an air waybill, or any other means preserving a record of the carriage (an electronic record, with a cargo receipt on request). The air waybill is prima facie evidence of the contract, the receipt of the cargo and the conditions of carriage (Article 11). Unlike a bill of lading, it is not a document of title and is not negotiable; goods are delivered to the named consignee.
• Liability for cargo (Article 18): the carrier is liable for destruction, loss or damage to cargo upon the sole condition that the event took place during the carriage by air, which covers the period the cargo is in the carrier's charge. The carrier is exonerated only if it proves the damage resulted from: (a) inherent defect, quality or vice of the cargo; (b) defective packing by a person other than the carrier; (c) an act of war or armed conflict; or (d) an act of public authority in connection with the entry, exit or transit of the cargo. The liability is therefore strict.
• Delay (Article 19): liable unless it proves that it took all reasonably necessary measures or that it was impossible to take them.
• Contributory negligence of the claimant (Article 20).
• Limit (Article 22(3)): fixed in Special Drawing Rights per kilogram (17 SDR in the 1999 text, since revised upward under Article 24, the revised limits notified in India), unless a special declaration of interest was made. For cargo the limit is unbreakable, even for wilful misconduct.
• Notice of complaint (Article 31): for damage, within 14 days of receipt; for delay, within 21 days of the cargo being placed at the consignee's disposal. Without notice, no action lies except for fraud.
• Limitation (Article 35): the right to damages is extinguished if action is not brought within two years.
• Jurisdiction (Article 33): at the option of the claimant, the carrier's domicile, its principal place of business, the place of business through which the contract was made, or the place of destination.
• Exclusivity (Article 29): any action, however founded, is subject to the conditions and limits of the Convention.

In Trans Mediterranean Airways v. Universal Exports, 2011 INSC 689, (2011) 10 SCC 316, an exporter, as consignor, complained against the airline for deficiency in service in the carriage of its consignment. The Supreme Court held that the National Consumer Disputes Redressal Commission had jurisdiction to entertain the consignor's complaint for deficiency in service, the Carriage by Air Act and the Warsaw rules being applied by the consumer forum and not excluding it.

3. Carriage by rail

Internationally, rail carriage in Europe is governed by COTIF and its CIM Uniform Rules; India is not party, and its cross-border rail trade with Nepal and Bangladesh runs under bilateral arrangements. Domestically, the Railways Act, 1989, Chapter XI, governs the railway administration as carrier:

• Section 93: the railway is responsible for loss, destruction, damage, deterioration in transit or non-delivery of any consignment arising from any cause except act of God, act of war, act of public enemies, arrest or seizure under legal process, governmental orders, act or negligence of the consignor, consignee or their agents, natural deterioration or wastage, latent defects, fire, explosion or any unforeseen risk. Even where one of these causes is proved, the proviso keeps the railway liable unless it further proves that it used reasonable foresight and care in the carriage of the goods.
• Goods at owner's risk rate (section 97) and goods defectively packed (section 98): liability only on proof of negligence or misconduct.
• Responsibility after termination of transit (section 99) and the monetary limit on liability unless value is declared and a percentage charge paid (section 103).
• Notice of claim (section 106): within six months from the date of entrustment of the goods.
• Claims are decided by the Railway Claims Tribunal under the Railway Claims Tribunal Act, 1987.

4. Carriage by road

The Carriage by Road Act, 2007 repealed the Carriers Act, 1865 (section 22). A common carrier (section 2(a)) is a person engaged in collecting, storing, forwarding or distributing goods by goods carriage for all persons without discrimination, including courier and goods-booking companies, but not the Government. Common carriers must be registered (section 3). The consignor executes a goods forwarding note (section 8) and the carrier issues a goods receipt (section 9). The carrier is responsible for loss or damage in transit from any cause except act of God, war, riots, government orders and similar causes (section 17), and in a suit the plaintiff need not prove negligence or a criminal act (section 12(2)). Liability is limited as prescribed unless the consignor pays a higher risk rate (sections 10 and 11). Notice of loss must be served within 180 days of booking (section 16). International road carriage in Europe is under the CMR Convention (1956), to which India is not a party.

5. Container transport: the legal issues

Containerisation since the 1960s made door-to-door carriage normal and created questions the older rules did not answer:

• What is a “package” for limitation? Hague-Visby Article IV(5)(b): if the bill of lading enumerates the packages in the container, each counts; otherwise the container is one package. Exporters should list the cartons on the bill. The River Gurara (Court of Appeal, 1998) applied this to the original Hague Rules.
• “Said to contain” and “shipper's load, stow and count” clauses: the carrier cannot check sealed containers, so the bill is qualified, weakening its value as evidence of contents and its acceptability under a letter of credit.
• Deck carriage: containers are routinely carried on deck, but the Hague-Visby Rules exclude cargo stated to be carried on deck; the bill must say so, or the carrier risks liability outside the Rules.
• Seaworthiness and cargo-worthiness of the container supplied by the carrier, and responsibility for stuffing, temperature (reefers) and misdeclared weights. SOLAS (from 2016) requires a verified gross mass before loading.
• Where did the loss occur? In door-to-door carriage the loss may be on land, at a depot or at sea, and each stage has a different regime. A network system applies the law of the stage where loss occurred; a uniform system applies one regime.
• Demurrage and detention charges for containers held beyond free time, customs treatment under the Customs Convention on Containers (1972), and safety under the International Convention for Safe Containers (1972).

6. The Multimodal Transportation of Goods Act, 1993

India's answer is a combined network system. A multimodal transport operator (MTO) must be registered (sections 3 and 4) and issues a multimodal transport document (section 7), which is a document of title if negotiable (section 8). The MTO is liable for loss, damage and delay while the goods are in its charge unless it proves that it, its servants and agents took all reasonable measures (section 13). Where the stage of loss is not known, liability is limited to 2 SDR per kilogram or 666.67 SDR per package, whichever is higher (section 14); where the stage is known, the limit of the law applicable to that mode applies (section 15). Notice of loss is required (section 20), and an action must be brought within nine months (section 24).

How this is examined

For carriage by air: the Warsaw-Hague-Montreal sequence, the 1972 Act and its Schedules, then the air waybill, Article 18 liability and its four defences, delay, limits, notice, limitation and jurisdiction, with Trans Mediterranean Airways. For container transport: the six issues in section 5 and the 1993 Act. For carriage by rail: section 93 and its exceptions, owner's risk, monetary limit, six-month notice and the Claims Tribunal.