OAS

DECISION 331
Multimodal Transportation

THE COMMISSION OF THE CARTAGENA AGREEMENT,

HAVING SEEN: Chapter XI of the Cartagena Agreement; and Board Proposal 255;

WHEREAS: Resolutions II.22, III.39, V.90, VI.142 and VII.159 of the Meeting of Ministers of Transportation, Communications and Public Works of the Member Countries of the Andean Group and the Act of La Paz recommend the adoption of a Decision about Multimodal Transportation;

Trade both in and outside the subregion is carried out in a context of openness and liberalization involving the insertion of the Member Countries within a new international economic order in which international transportation is also subject to modernization;

The new systems of international transportation call for the intensive use of containers and the creation and provision of transportation services that go beyond the old modal forms of physical distribution of merchandise;

It is accordingly advisable to adopt a Community rule for regulating multimodal transportation operations in the subregion;

DECIDES:

CHAPTER I

DEFINITIONS

Article 1. The following definitions apply for purposes of this Decision:

Registration Certificate. The document issued by the competent national agency that certifies the registration of the multimodal transportation operator in the Registry of Multimodal Transportation Operators and authorizes it to act as such.

Physical Integration Council. The body created by Decision 71 of the Commission of the Cartagena Agreement.

Consignee. The person authorized to receive the merchandise from the multimodal transportation operator.

Multimodal Transportation Contract. The contract by virtue of which a multimodal transportation operator binds itself, in writing and upon reception of a shipment fee, to carry out the multimodal transportation of merchandise.

Special Drawing Right (SDR).- The unit of account as defined by the International Monetary Fund.

Multimodal Transportation Document. The document proving the existence of a multimodal transportation contract and proving that the multimodal transportation operator has taken the merchandise into its possession and committed itself to deliver it in keeping with the clauses of this contract. It may be replaced by an electronic mail message and be issued:

a) As a negotiable instrument; or

b) As a non-negotiable instrument, bearing the name of the consignee.

Delivery. The fact of placing the merchandise:

a) In the consignee’s possession;

b) At the disposal of the consignee pursuant to the multimodal transportation contract or according to pertinent business laws or practices applicable in the place of delivery; or

c) In the possession of an authority or other third party to which, in accordance with the laws or regulations applicable in the place of delivery, the merchandise is to be given.

Shipper. The person signing the contract with the multimodal transportation operator.

Obligatory Statute. Any law or international agreement that is a part of the body of national law regarding the transportation of merchandise, from whose provisions it is impossible to deviate via contractual stipulations that are detrimental to the shipper or consignee.

Merchandise. Goods of any kind, including live animals and the containers, pallets or other similar transportation or packing elements not supplied by the multimodal transportation operator, irrespective of whether or not those goods are or to be transported under cover or in out the open.

Competent National Agency. The national authority designated by each Member Country to register the multimodal transportation operators.

Multimodal Transportation Operator. Any person that enters into a multimodal transportation contract and assumes responsibility for its execution in the capacity of carrier.

Member Country. One of the Member Countries of the Cartagena Agreement.

In writing. A term encompassing a telegram, telex, fax or any other means of stamping, recording, repeating or transmitting what has been expressed via mechanical, electronic or any other kind of instrument that has been designed for that purpose.

Carrier. The person that effectively carries out the transportation or arranges to have it carried out, in full or in part, whether or not that person is the multimodal transportation operator.

Take into possession. The fact of giving the merchandise to the multimodal transportation operator and the latter’s acceptance of the goods for transportation.

Multimodal Transportation. The carriage of merchandise by at least two different modes of transportation pursuant to a single multimodal transportation contract, from a place where the multimodal transportation operator takes the merchandise into its possession to another designated for its delivery.

CHAPTER II

SCOPE OF APPLICATION

Article 2. This Decision is applicable to multimodal transportation contracts provided that:

a) The place stipulated in the multimodal transportation contract where the multimodal transportation operator is to take the merchandise into its possession is located in a Member Country, or

b) The place stipulated in the multimodal transportation contract where the multimodal transportation operator is to deliver the merchandise in its possession is situated in a Member Country.

It is likewise applicable to all multimodal transportation operators operating between Member Countries or to or from a Member Country..

The provisions of this Decision in no way constitute a restriction on such facilities as the countries may grant or have granted each other through bilateral or multilateral agreements.

CHAPTER III

ON THE MULTIMODAL TRANSPORTATION CONTRACT

Multimodal Transportation Document

Article 3. The multimodal transportation operator, in taking the merchandise into its possession, shall issue in writing a multimodal transportation document which shall, at the shipper’s choice, be either negotiable or non-negotiable.This document shall be signed by the multimodal transportation operator or by the person it authorizes to do so on its behalf. The signature may be handwritten, printed in facsimile, perforated, stamped, in symbols or recorded by any other mechanical or electronic means.

Article 4. The multimodal transportation document shall contain the following data:

a) The general nature of the merchandise; the main trademarks necessary for its identification; an express declaration, if applicable, about its dangerous nature; the number of bundles or pieces; and the gross weight of the merchandise or its amount expressed in any other way. Such data shall be recorded as furnished by the shipper;

b) The apparent condition of the merchandise;

c) The name and main establishment of the multimodal transportation operator;

d) The name of the shipper;

e) The name of the consignee if provided by the shipper;

f) The place in and date on which the multimodal transportation operator takes possession of the merchandise;

g) The place where the merchandise is to be delivered;

h) The merchandise delivery date or deadline at the place of delivery, if expressly agreed upon by the parties;

i) A declaration stating whether the multimodal transportation document is negotiable or non-negotiable;

l) The place and date of issue of the multimodal transportation document;

m) The signature of the multimodal transportation operator or of the person authorized by it to sign on its behalf;

n) The shipment cost for each mode of transportation if expressly agreed upon by the parties, or the total shipment cost, including the currency of payment, to the extent that it is to be paid by the consignee, or any other indication that the shipment cost is to be paid by the consignee;

o) The planned itinerary, modes of transportation and transfer points, if known at the time of issue of the multimodal transportation document;

p) Any other data that the parties agree to include in the multimodal transportation document, if not incompatible with the legislation of the country where the document is issued.

The omission in the multimodal transportation document, of any of the above-cited information shall not affect the legal nature of the document as a multimodal transportation instrument.

Article 5. The data contained in the multimodal transportation document shall establish the presumption, unless proven otherwise, that the multimodal transportation operator has taken possession of the merchandise, as described in the cited document, unless an indication to the contrary has been included in the printed text or added to it, such as "weight, nature and number declared by the carrier,"; "container filled by the carrier" or other similar statements.
No proof to the contrary shall be accepted if the multimodal transportation document has been transferred or the electronic mail message of equivalent data has already been sent to the consignee, which has acknowledged its receipt and, on its basis, has acted upon it in all good faith.

Responsibility of the multimodal transportation operator

Article 6. The multimodal transportation operator shall be responsible for the merchandise as of the moment it takes possession of the goods and up until the moment of their delivery.

Article 7. The multimodal transportation operator shall be responsible for the actions and omissions of its employees or agents in the performance of their duties, or those of any other person on whose services it relies for the contract performance, as if those actions or omissions were its own.

Article 8. The multimodal transportation operator agrees to perform or to have performed all necessary acts so that the merchandise may be delivered:

a) When the multimodal transportation document has been issued as a negotiable instrument, "to the bearer", to the person that presents one of the original copies of that document;

b) When the multimodal transportation document has been issued as a negotiable instrument, "to the order of", to the person presenting a duly endorsed copy of the original document;

c) When the multimodal transportation document has been issued as a negotiable instrument to the order of a given person; to that person, after having proven its identify and upon presentation of one of the original copies of the document. If the document has been endorsed "to the order of" or in blank, the provision of letter b) shall be applied;

d) When the multimodal transportation document has been issued as a non-negotiable instrument, to the person designated in the document as the consignee after that person has proven its identity; and

e) When no written document has been issued, to the person indicated in the instructions received from the consignor or such person as may have acquired the rights of the consignor or consignee to issue such instructions, pursuant to the multimodal transportation contract.

Article 9. Without prejudice to the stipulations of articles 11 and 13 to 19 of this Decision, the multimodal transportation operator shall be responsible for the loss of or any damage to the merchandise, as well as any delay in its delivery, if the event causing the loss, damage or delay in delivery occurred when the goods were in its possession, in the terms of article 6, unless the operator proves that there was no guilt or negligence on its own part or that of its employees, agents or any of the other persons indicated in article 7, that caused the loss, damage or delay or contributed to it.

Nonetheless, the multimodal transportation operator shall not be responsible for any damages resulting from the delay in delivery unless the shipper made a declaration of interest in the delivery being made within a specified period and this was accepted by the multimodal transportation operator.

Article 10. There is a delay in delivery when the merchandise is not delivered within the period expressly agreed upon or, in the absence of such an agreement, within the period, given the circumstances of the case, it would be reasonable to demand of a diligent multimodal transportation operator.

If the goods are not delivered within ninety calendar days after the delivery date, determined in accordance with the foregoing paragraph, the consignee or any other person entitled to claim the merchandise may consider it lost, unless proven otherwise.

Article 11. Notwithstanding the stipulations of article 9, the multimodal transportation operator shall not be responsible for the loss, damage or delay in delivery of merchandise shipped by sea or inland water transport, when such loss, damage or delay occurred during that transportation due to:

a) acts, negligence or failure by the captain, sailors, pilot or employees of the carrier, in the navigation or handling of the ship;

b) fire, unless caused by an act or omission of the carrier;

c) provided that, in the cases where the loss or damage are the result of the ship’s inability to navigate, the multimodal transportation operator is able to prove that due diligence was exercised to make the ship seaworthy at the beginning of the trip.

Article 12. The amount of compensation to be paid for the loss of or damage to the merchandise shall be set according to its value in the place and at the time of its delivery to the consignee or in the place and at the moment when, in accordance with the multimodal transportation contract, it should have been delivered.

The value of the goods shall be determined in keeping with their price in a commodity exchange or, lacking that, according to their price in the market or, if such exchange and market prices are lacking, in accordance with the usual value of merchandise of the same kind and quality.

Limitation of the responsibility of the multimodal transportation operator

Article 13. Unless the nature and value of the merchandise were declared by the shipper before the multimodal transportation operator took them into its possession and were recorded in the multimodal transportation document, the responsibility of the multimodal transportation operator for damages resulting from the loss of or damage to the goods shall be limited to a maximum sum equivalent to 666.67 SDR per bundle or unit or 2.00 SDR per kilogram of gross weight of the merchandise lost or damaged, if that amount is larger.

Article 14. If a container, a pallet or similar transportation element is loaded with more than one bundle or unit, all bundles or units of cargo transported, which according to the multimodal transportation document are contained in that transportation element, shall be considered a bundle or unit of cargo transported. If that information is omitted from the document in question, all of the merchandise contained in that transportation element shall be considered as a single cargo unit transported.

Article 15. Notwithstanding the provisions of articles 13 and 14, if the multimodal transportation does not, pursuant to the contract, include ocean or inland water shipping of the merchandise, the responsibility of the multimodal transportation operator shall be limited to a maximum sum equivalent to 8.33 SDR per kilogram of gross weight of the lost or damaged goods.

Article 16. If the loss of or damage to the merchandise occurred during a given phase of the multimodal transportation for which an applicable international agreement or an obligatory statute in that country establishes a different system or limitation of responsibility had a different transportation contract been entered into for that given phase of transportation, the responsibility or limitation of responsibility of the multimodal transportation operator for that loss or damage shall be determined in keeping with the provisions of that agreement or obligatory statute.

Article 17. Were the multimodal transportation operator to be responsible for the damages resulting from the delay in delivery or any indirect loss or damage other than the loss of or damage to the merchandise, its responsibility would be limited to a sum not to exceed the equivalent of the freight charges to be paid for the multimodal transportation pursuant to the respective contract.

Article 18. The accrued responsibility of the multimodal transportation operator shall not exceed the limits of responsibility for the total loss of the merchandise.

Article 19. The multimodal transportation operator may not avail itself of the limitation of responsibility if it is proven that the loss, damage or delay in delivery were the result of an action or omission attributable to it, committed with the intention of causing that loss, damage or delay or acted rashly and knowing that it would probably lead to the loss, damage or delay.

Responsibility of the shipper

Article 20. The shipper, whether acting either directly or through an intermediary, shall guarantee the accuracy of all of the information about the general nature of the merchandise, its trademarks, number, weight, volume and quantity and, if applicable, its dangerous nature, to the multimodal transportation operator when the latter takes possession of the goods for inclusion in the multimodal transportation document.

The shipper shall compensate the multimodal transportation operator for damages resulting from the inaccuracy or insufficiency of the data cited in the previous paragraph and shall continue to be responsible even if the multimodal transportation document is transferred.

The right of the multimodal transportation operator to that compensation shall in no way whatsoever limit its responsibility pursuant to the multimodal transportation contract with respect to any person other than the shipper.

Notifications, claims, actions and lapsing

Article 21. Unless the consignee notifies the multimodal transportation operator in writing, of any loss or damage, specifying its general nature, at the time the merchandise was delivered to it, the fact of placing the goods in its possession shall establish the presumption, unless proven to the contrary, that the multimodal transportation operator delivered the goods precisely as described in the multimodal transportation document.

If the loss or damage are not apparent, the presumption in the preceding paragraph shall also apply, if no written notice is forthcoming within six days after the merchandise is delivered into the possession of the consignee.

Article 22. Unless an express agreement exists to the contrary, the multimodal transportation operator shall be free from all responsibility by virtue of the provisions of this Decision unless legal or arbitral action is brought within a period of nine months after delivery of the merchandise or, if such was not delivered, as of the date on which the goods should have been delivered or the date on which, according to the stipulation of the last paragraph of article 10, the failure to deliver would have given the consignee the right to consider them lost.

Article 23. The rules and regulations of this Decision shall be applicable to all such claims as are filed against the multimodal transportation operator with relation to the performance of the multimodal transportation contract, irrespective of whether or not the claim is based on contractual or extra-contractual liability.

They shall be applicable, as well, to all claims relating to the performance of the multimodal transportation contract that are filed against any employee or agent of the multimodal transportation operator or against any other person of whose services it avails itself for the performance of that contract, irrespective of whether or not those claims are based on contractual or extra-contractual liability. The accrued liability of the multimodal transportation operator and its employees, agents or other persons hired by it shall not exceed the limits set in articles 13 to 19.

Jurisdiction and competence

Article 24. Lawsuits emanating from multimodal transportation contracts shall, at the choice of the claimant, be tried by the competent judges or courts of any of the following places, in keeping with the law of the respective country:

a) That of the main residence of the multimodal transportation operator;

b) That of the place where the multimodal transportation contract was signed;

c) That of the place where the merchandise was taken into possession for its multimodal transportation;

d) That of the place where the merchandise is delivered; or

e) Any other place designated for that purpose in the multimodal transportation contract and indicated in the multimodal transportation document.

Article 25. Without prejudice to the provisions of the previous article, the parties may agree in writing that any difference over the multimodal transportation contract shall be submitted to arbitration, in which case the arbitrator shall be appointed after the claim has been filed.

Lawsuits shall be brought before the arbitrator or arbitration court that is competent in accordance with the stipulations of article 24, which shall be obliged to implement the provisions of this Decision.

Complementary provisions

Article 26. Any stipulation in the multimodal transportation document shall be null and shall have no effect whatsoever if it deviates directly or indirectly from the provisions of this Chapter, and especially if it is detrimental to the shipper or the consignee. This provision shall in no way affect the other stipulations in the document.

Notwithstanding the provision of the previous paragraph, the multimodal transportation operator may, with the consent of the shipper, increase the liability and the obligations incumbent upon it by virtue of the provisions of this Decision.

Article 27. Provisions of international agreements applicable to multimodal transportation contracts shall prevail over the stipulations of this Decision.

Article 28. The provisions of this Decision shall not impede the application of rules and regulations regarding the liquidation of the ship’s gross average contained in the multimodal transportation contract or in the respective national legislation, as applicable.

CHAPTER IV

ON THE MULTIMODAL TRANSPORTATION OPERATORS

Article 29. In order to be able to perform the activity of multimodal transportation operator in any of the Member Countries, it is necessary to be entered in the respective registry kept by the competent national agency of the Member Country.

Article 30. The registration certificate issued by the competent national agency of any of the Member Countries shall authorize the multimodal transportation operator to operate in the other Member Countries.

The competent national agency shall inform the Board of the Cartagena Agreement in writing about the multimodal transportation operators registered with it and any changes made in the pertinent registry, appending the respective documents. The Board shall, in turn, pass on this information to the other Member Countries.

The registration shall remain in effect so long as the competent national agency does not officially inform the multimodal transportation operator and the Board of the Cartagena Agreement in writing of the suspension or cancellation of that registration.

Article 31. In order to be entered in the registry of multimodal transportation operators, the interested party must submit an application to the respective competent national agency, together with proof of the fulfillment of the following requirements:

a) To be legally incorporated;

b) To have sufficient legal representation and an established residence in the Member Country where it is applying for registration, as well as in the other Member Countries where it intends to operate;

c) To possess an insurance policy that covers the payment of liabilities for the loss of, damage to or delay in delivery of merchandise that stem from multimodal transportation contracts; and

d) To maintain a minimum equity equivalent to 80,000 SDR or to provide an equivalent guaranty.

Article 32. The competent national agency shall issue the corresponding registration certificate or shall deny it through a justified resolution, within a period not to exceed 60 calendar days as of the date on which fulfillment of the requirements established in article 31 is accredited.

CHAPTER V

MISCELLANEOUS PROVISIONS

Article 33. The Board of the Cartagena Agreement shall be responsible, when it deems it necessary, for issuing the regulations for the correct implementation of this Decision and for coordinating with the Member Countries pertinent actions for promoting multimodal transportation and its operators.

Article 34. For tax purposes, the pertinent provisions of the "Agreement among the Member Countries to Avoid Double Taxation", approved by Decision 40 of the Commission of the Cartagena Agreement and such rules and regulations as may replace and amend it, shall be applied to multimodal transportation carried out within the subregion.

Article 35. The Member Countries shall, within their territories, organize and regulate everything having to do with the necessary physical infrastructure for the development of the activity referred to in this Decision. In that sense, they shall undertake actions aimed at the operation of private customs zones, customs warehouses, drydocks, container terminals, spaces for the consolidation and breakdown of cargoes and the handling of transportation units by multimodal transportation operators, in such a way that their operations may be conducted efficiently and in keeping with this Decision.

CHAPTER VI

INSTITUTIONAL ASPECTS

On the Physical Integration Council

Article 36. The Physical Integration Council created by Decision 71 of the Commission of the Cartagena Agreement shall be responsible for ensuring compliance with and the implementation of this Decision.

The Council shall have a Permanent Technical Secretariat to be occupied by the Board of the Cartagena Agreement, and shall enjoy the support of a Pro-Tempore Secretariat headed by the Member Country exercising the Chairmanship, as provided for in the respective regulations.

Competent National Agencies

Article 37. The competent national agencies designated by the Member Countries shall be responsible for the comprehensive implementation of this Decision in their respective territories.

Article 38. Without prejudice to the contents of the previous article, and of such other functions as may be conferred upon them pursuant to this Decision, the competent national agencies of the Member Countries shall be responsible for coordinating all aspects of multimodal transportation with the users, operators, authorities and national and international institutions.

TEMPORARY PROVISIONS

FIRST. The Physical Integration Council, within a period of 90 calendar days after this Decision enters into force, shall submit for the Board’s approval via a Resolution, the contents and format of the necessary documents for implementation of this Decision.

SECOND. Within 30 days after the entry into effect of this Decision, the Member Countries shall designate the competent national agency referred to in article 37 and inform the Board of the Cartagena Agreement thereof.

THIRD. The Board of the Cartagena Agreement, within a period not to exceed 120 calendar days as of the date this Decision enters into force, shall issue the necessary regulations for the registration of the multimodal transportation operators; these shall consider the necessary facts or acts for proving fulfillment of the requirements set out in article 31, including the form of the equivalent guaranty and of the insurance policy.

Signed in the city of Bogota, Colombia, on the fourth of March of nineteen ninety-three.