- The Singapore parliament, on 05th Jan 2021, passed the Multimodal Transport Billi to facilitate the ratification of the ASEAN framework agreement on Multimodal Transportii. At the time of passing the act, the date of application of the Act was left to the Minister of Transportiii and who has recently published a notification that the Act would come into operation from 28th Nov 2021.
- International Multimodal Transport is defined in this Act as being “the carriage of goods on the basis of a multimodal transport contract by at least 2 different modes of transport
- from a place in a country at which the goods are taken in charge by the multimodal transport operator of the contract;
- to a place designated for the delivery of the goods situated in a different country;
This being the case, it appears to us that if a multimodal shipment emanates or is delivered in an ASEAN member state the provisions of this Act would apply.
- While the intention of this Act is to provide for a single, unified framework for the multimodal transport in the ASEANiv region, the effect will be far wider given that the Act would apply if either cargo is taken or delivered by the Multimodal operatorv (“MTO”) in an ASEAN member country (e.g. a shipment for delivery to ICD Delhi by a MTO from Singapore or for that matter any ASEAN member nation would be caught within this act given that the cargo emanates from an ASEAN member country and that there are two modes of transport).
- The Act allows the MTO
- to limit liability similar to what is provided under the Hague Visby Rules i.e., SDR 666.67 per package or SDR 2 per kg (whichever is higher). However, if there is no sea-leg, the limitation amounts are set higher at SDR 8.33 per kgvi. The Act also entitles an MTO to limit liability for delay including any consequential damage and which is to upto the amount of freight under the contractvii. The aggregate liability (loss, delay, consequential damages) of the MTO is capped to SDR 2 per kg or SDR 666.67 per package (whichever is higher) or SDR 8.33 per kg if there is no sea carriageviii. The bar to limitation is set high (…intention to cause such loss, damage or delay or was reckless)ix such that the MTO would invariably be entitled to limit liability. The significant difference would be on the time-barx (the Hague Visby Rules provides for 1 year time bar with respect to cargo claims) and which provides for the claim to be time-barred unless an action in court or arbitration is brought within 9 months of the delivery of the goods or on the date when the goods should have been delivered.
- disputes could be referred to Arbitrationxi subject to the listed conditions of the Act being fulfilled. One of the conditions is for Singaporexii to be designated as the place of arbitration. We had earlier propounded on the use of Arbitration for Liner contractsxiii and to make this a reality, we would suggest that various arbitral institutions such as the Singapore Chamber of Maritime Arbitration take the lead and publish a model clause for easy incorporation into multimodal contracts.
- The Act requires MTO’s to register with the competent national body of an ASEAN Member to fall within the definition of an MTO.
- The Singapore Minister of Transport has published a notification providing for the Land Transport Authority of Singapore (“LTA”) to be the Singapore’s competent national bodyxiv for registration. Surprisingly, we do not see any penal provisions for an unregistered MTO trading in the ASEAN member nation and perhaps this would be cured by subsequent notifications from the Minister. Registration of a MTO in Singapore is only possible if the entity has a principal place of business in Singaporexv. This being the case, it appears to us that MTO’s registered in countries outside the ASEAN member nation would fall outside the provision of this act.
- In order to register, the Act provides for an MTO to either maintain minimum assets or provide an acceptable guarantee for a sum of SDR 80,000.00 (approx. SGD 150,000)xvi together with an acceptable insurance/bond/guarantee to cover liability claims.
- In conclusion, while this act does appear to be the right way forward, the application of the Act is still not clear and whether it would only apply to MTO’s registered in a ASEAN member state. In particular, would MTO’s from non-ASEAN nations be similarly bound to the provisions of this Act if trading from a ASEAN member state? Otherwise, this Act would result in additional costs and responsibilities only to the ASEAN based MTO’s and which surely would not have been the intention when this was thought of.
ii. See article by Rajah & Tann and which can be viewed at https://eoasis.rajahtann.com/eoasis/lu/pdf/2021-01_Multimodal_Transport_Bill.pdf
iii. S 1 of the Multimodal Transport Act 2021. The Minister published a notification on 22nd Oct 2021 for the Act to apply from 28th Nov 2021 – see https://sso.agc.gov.sg/SL-Supp/S821-2021/Published/20211029?DocDate=20211029.
iv. There are presently 10 member countries including Singapore. Further details can be viewed at https://asean.org/about-asean/member-states/
v. S 3 of the Multimodal Transport Act 2021
vi. See S 17 & 18 of the Multimodal Transport Act 2021
vii. S 20 of the Multimodal Transport Act 2021
viii. S 21 of the Multimodal Transport Act 2021
ix. See S 23 of the Multimodal Transport Act 2021
x. See S 26 of the Multimodal Transport Act 2021
xi. See S 27 of the Multimodal Transport Act 2021
xii. See 27 (d) of the Multimodal Transport Act 2021
xiii. See our earlier article –Arbitration of Liner Contracts
xiv. The Minister published the notification on 22nd Oct 2021 and which can be viewed at https://sso.agc.gov.sg//SL-Supp/S824-2021/Published/20211029?DocDate=20211029
xv. See S 4(4)(b) of the Multimodal Transport Act 2021
xvi. See the Multimodal Transport Regulations dated 22nd Oct 2021