Snapshot of the limitation regime for the international transportation of goods in India
Ashwin Shanker
Chambers of George Rebello, Mumbai
Ridhi Nyati
Chambers of George Rebello, Mumbai
Bimal Rajashekar
Chambers of George Rebello, Mumbai
Carriage by sea
The package limitation for goods being shipped out of India is to be found in the Carriage of Goods by Sea Act, 1925 ('COGSA'), which incorporates the Hague Rules, 1924. As per Article IV (5) of the Schedule to the Act, the limitation is an amount not exceeding 666.67 special drawing rights per package or unit or two special drawing rights per kilogram of gross weight of the goods lost or damaged, whichever is higher.
The exceptions are as follows:
- declaration of the nature and value of the goods before shipment inserted in the bill of lading; and
- damage that resulted from an act or omission of the carrier done with intent to cause damage or recklessly and with knowledge that damage would probably result.
For goods being shipped into India, the package limitation regime in the country of loading will apply. If there is no such applicable regime, then the package limitation as per the Indian COGSA will apply.
Carriage by air
India has incorporated the Warsaw Convention 1929 (amended by the Hague Protocol of 1955), as well as the Montreal Convention 1999 in its Carriage of Goods by Air Act 1972. The choice of Conventions/Protocol is determined based on whether the country of departure/destination (other than India) is a signatory to the said Conventions/Protocol. The package limitation of liability for damage/loss/delay in carriage of goods is as follows:
Warsaw Convention 1929 (and/or Hague Protocol of 1955 thereto)
As per Rule 22 (2) of Schedule I and II of the Act, the liability is limited to an amount of 250 francs per kilogram, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of the value at delivery and has paid a supplementary sum if the case so requires. In the latter case, the carrier will be liable to pay a sum not exceeding the declared sum, unless the carrier proves that that sum is greater than the actual value to the consignor at delivery.
Montreal Convention 1999
As per Rule 22(3) of Schedule III of the Act, the liability is limited to a sum of 22 SDRs per kilogram, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at the destination and has paid a supplementary sum, if so required. In that case, the carrier shall be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the consignor's actual interest in delivery at the destination: 'As per the Conventions, in the performance of any contract for carriage by air, in case the consignment is carried by land, sea or river for the purposes of loading, delivery or transhipment, such carriage is deemed part of the carriage by air'.
Multimodal transportation of goods
The Indian Multimodal Transportation of Goods Act, 1993 applies where the place of loading is in India and a registered multimodal transport operator is engaged.
Where the nature and value of the goods have not been declared by the consignor before such consignment has been taken in charge by the multimodal transport operator and the stage of transport at which such loss or damage occurred is not known, then the liability of the multimodal transport operator shall not exceed two SDRs per kilogram of the gross weight of the consignment lost or damaged or 666.67 SDRs per package, or unit lost or damaged, whichever is higher, as per section 14 of the Act.
Further, if the multimodal carriage includes carriage of goods by sea or by inland waterways, the liability of the multimodal transport operator shall be limited to an amount not exceeding 8.33 SDRs per kilogram of the gross weight of the goods lost or damaged, as per section 14(2) of the Act.
Where the nature and value of the goods have not been declared by the consignor before such consignment has been taken in charge by the multimodal transport operator and the stage of transport at which such loss or damage occurred is known, then the liability of the multimodal transport operator shall be determined in accordance with the provisions of the relevant law applicable in relation to the mode of transport during the course of which the loss or damage occurred, as per section 15 of the Act
Where the consignor has not made a declaration of interest in timely delivery, the multimodal transport operator shall not be liable for any loss or damage arising out of such a delay, as per section 13 of the Act.
Where the consignor has made a declaration of interest in timely delivery, and there is a delay in the delivery of the consignment, then the liability of the multimodal transport operator for any loss or damage arising out of such a delay shall be limited to the freight payable for the consignment, as per section 16 of the Act.