CMI - SINGAPORE

1.1 Contract of carriage means a contract under which the contracting carrier, against payment of freight, undertakes to carry the goods wholly or partly by sea from one place to another.

This definition is subject to change, depending on the outcome of the discussion on multimodality.

1.2 Carrier means a contracting carrier or a performing carrier.

This definition is generally based on the discussion at the ISC’s third meeting in July and on the proposed amendments to the U.S. COGSA. The broad term "carrier" includes each of the possible types of carriers that are defined in the draft. The different types of carriers are not mutually exclusive.

1.3 Contracting carrier means the person who enters into a contract of carriage with the contracting shipper.

This definition is generally based on the discussion at the ISC’s third meeting in July and on the proposed amendments to the U.S. COGSA.

The "contracting carrier" in this draft is substantially the same as the "carrier" under article 1.1 of the Hamburg Rules. The Hamburg Rules’ terminology is rejected as ambiguous. Both the current draft and the Hamburg Rules recognise that different types of carriers exist, yet article 1.1 of the Hamburg Rules uses the unmodified term "carrier" to mean only one of these different types. (Under the Hamburg Rules, an "actual carrier" may not be a "carrier.") When referring to one particular type of carrier, it is preferable to modify the term "carrier" to identify which of the different types of carriers is intended. Thus the carrier who enters into the contract of carriage is the "contracting carrier."

The current draft also differs from the Hamburg Rules in its omission of a "person ... in whose name" a contract has been completed. This clause is either unnecessary or wrong. If a person acting on its own behalf enters into a contract of carriage as carrier in its own name, then that person qualifies as the "contracting carrier" under the proposed definition and the omitted clause is unnecessary. Furthermore, if an agent acting on its principal’s behalf enters into a contract of carriage as carrier in the principal’s name, then the principal also qualifies as the "contracting carrier" under the proposed definition and the clause is once again unnecessary. The principal has "enter[ed] into a contract of carriage" through its agent. But if an impostor enters into a contract of carriage as carrier in someone else’s name, then that other person should not be treated as the "contracting carrier," and the Hamburg Rules clause–to the extent that it suggests the contrary result–is wrong.

1.4 Performing carrier means a person who performs, undertakes to perform, or procures to be performed any of a contracting carrier’s responsibilities under a contract of carriage, to the extent that the person acts, either directly or indirectly, at the request of, or under the supervision or control of, the contracting carrier, regardless of whether that person is a party to, identified in, or has legal responsibility under the contract of carriage. The term "performing carrier" does not include any person (other than the contracting carrier) who is retained by a shipper or consignee, or is an employee, servant, agent, contractor, or subcontractor of a person (other than the contracting carrier) who is retained by a shipper or consignee.

This section is generally based on the discussion at the ISC’s third meeting in July and on the proposed amendments to the U.S. COGSA.

The definition here is also broader and more specific than article 1.2 of the Hamburg Rules. It provides a functional definition, clarifying that anyone performing any of the contracting carrier’s duties under the contract of carriage is a "performing carrier," without regard for the contractual formalities that appear to be part of the Hamburg Rules’ definition. Furthermore, the proposed definition specifies more clearly than do the Hamburg Rules that the class of "performing carriers" includes not only the contracting carrier’s sub-contractors but also the entire line of subsidiary persons who perform the contract (i.e., the sub-contractor’s sub-contractors, that party’s sub-contractors, and so on indefinitely).

The "performing carrier" in this draft is similar to the "actual carrier" under article 1.2 of the Hamburg Rules. The Hamburg Rules’ terminology is rejected as ambiguous and confusing. By using the phrase "actual carrier," the Hamburg Rules imply that other carriers (including the "carrier" under article 1.1) are not "actually" carriers. This is contrary to commercial practice (not to mention article 1.1 of the Hamburg Rules), which undoubtedly regards the carrier who enters into the contract of carriage as a person who is actually a "carrier" (or even the carrier). It is preferable to modify the term "carrier" to identify functionally which of the different types of carriers is intended. Thus the carrier who performs the contract of carriage (or part of the contract) is the "performing carrier."

The definition also clarifies that "performing carriers" are only those who work, directly or indirectly, for the contracting carrier. If the consignor or consignee has a servant or agent performing a task that would otherwise be the contracting carrier’s responsibility under the contract of carriage, that servant or agent does not thereby become a "performing carrier."

1.5 Shipper means a contracting shipper or a consignor.

This definition is generally based on the discussion at the ISC’s third meeting in July. As in 1.2 (with reference to carriers), the broad term "shipper" includes each of the possible types of shippers that are defined in the draft. The different types of shippers are not mutually exclusive. Indeed, the consignor is often the contracting shipper.

Article 1.3 of the Hamburg Rules defines "shipper" to include the possibilities that are covered by this definition, but nothing in the Hamburg Rules distinguishes between the two possibilities.

There was some discussion at the ISC’s third meeting in July suggesting that the term "shipper" should also include a third possibility–the party identified as the "shipper" in the transport document. Such a party might be called the "documentary shipper." The present draft defines such a party as the "first holder," but does not include that person within the "shipper" definition.

1.6 Contracting shipper means the person who enters into the contract of carriage with the contracting carrier.

This definition is generally based on the discussion at the ISC’s third meeting in July and on the first part of article 1.3 of the Hamburg Rules. As was the case with 1.2 (with reference to carriers), when referring to only one type of shipper it is preferable to modify the term "shipper" to identify which of the different types of shippers is intended. Thus the shipper who enters into the contract of carriage is the "contracting shipper." The reference in article 1.3 of the Hamburg Rules to a "person ... in whose name or on whose behalf" a contract has been completed is omitted here for essentially the same reasons that comparable language was omitted from 1.3 (with reference to the contracting carrier).

1.7 Consignor means the person from whom a carrier receives the goods.

This definition is generally based on the discussion at the ISC’s third meeting in July and on the concept of the second part of article 1.3 of the Hamburg Rules. It might have been preferable here to modify the term "shipper" to identify which of the different types of shippers is intended. Thus the shipper who delivers the goods to a carrier might be the "delivering shipper" or the "consigning shipper." Such usage seems unnatural, however, and the term "consignor" is well-established in commercial practice.

The Working Group recognises that a carrier will generally receive the goods from a person acting on behalf of another. For example, a carrier may receive the goods from a freight forwarder or a trucking company acting on behalf of a seller who arranged to have the goods transported to an overseas buyer. In such a case, the seller qualifies as a "consignor" because a carrier received the goods from the seller (who was acting through an agent). The freight forwarder or trucking company would also qualify as a "consignor" because it was "the person from whom a carrier receives the goods."

1.8 Holder means the person who is for the time being in possession of the negotiable transport document and entitled to transfer the rights embodied in such document.

1.9 First Holder means the person who is named as the shipper in, or is identifiable as such from, a negotiable transport document.

1.10 Intermediate Holder means the holder, not being the first holder, until the moment that he claims delivery of the goods.

1.11 Consignee means the person entitled to take delivery of the goods under the contract of carriage or a transport document issued under the contract of carriage.

This definition is generally based on the discussion at the ISC’s third meeting in July and more directly on article 1.4 of the Hamburg Rules. The phrase "under the contract of carriage" does not appear in article 1.4 of the Hamburg Rules, but has been added for clarification. Under commercial practice, a person entitled to take delivery of the goods on some basis other than the contract of carriage (e.g., the true owner of stolen goods) would not be described as the "consignee."

1.12 Transport document means a document issued by a carrier that

(a) evidences a contract of carriage,

(b) [is a document of title to goods under a contract of carriage], or

(c) evidences a carrier’s receipt of goods under a contract of carriage.

This definition is generally based on the discussion at the ISC’s third meeting in July. Transport documents include not only such traditional documents as bills of lading and waybills, but also current and future substitutes for these traditional documents (including electronic documents when appropriate).

The definition is phrased in the alternative, meaning that a document qualifies as a transport document if it satisfies any one of the three alternatives listed in 1.12(a), 1.12(b), or 1.12(c). This means, for example, that being a "document of title to goods under a contract of carriage" (1.12(b)) is sufficient to qualify a document as a "transport document," but being a transport document is not sufficient to qualify a document as a document of title.

During the discussion at the ISC’s fourth meeting in October, the question was raised whether 1.12(b) adds anything of substance to the definition, or if every relevant document of title is also a receipt, and thus already covered under the definition by 1.12(c). Accordingly, 1.12(b) is bracketed in this draft.

1.13 Negotiable transport document means a transport document, such as a bill of lading, that states that the goods are to be delivered to order, to bearer, or to order of any person named in the document, and is not prominently marked "non-negotiable" or "not negotiable."

1.14 Non-negotiable transport document means a transport document that [is prominently marked "nonnegotiable" or "not negotiable," states that the goods are to be delivered to a person named in the document, or otherwise] fails to qualify as a negotiable transport document.

This definition is intended to cover every "transport document" that is not a "negotiable transport document" under 1.13. The three parts of the definition are expressed in the alternative, meaning that a transport document is "non-negotiable" if it satisfies any one of the three alternatives. A transport document that is prominently marked "non-negotiable" or "not negotiable" is "non-negotiable" because 1.13 specifies that a negotiable transport document "is not prominently marked ‘non-negotiable’ or ‘not negotiable.’" A transport document that states that the goods are to be delivered to a person named in the document is "non-negotiable" because 1.13 specifies that a negotiable transport document "states that the goods are to be delivered to order, to bearer, or to order of any person named in the document" (which is different from stating that the goods are to be delivered to a person named in the document). Finally, a transport document that "otherwise fails to qualify as a negotiable transport document" is "non-negotiable" because a negotiable transport document necessarily qualifies as a negotiable transport document.

During the discussion at the ISC’s fourth meeting in October, the question was raised whether the first two parts add anything of substance to the definition. It is possible to define "non-negotiable transport document" with only the third part, i.e., as "a transport document that fails to qualify as a negotiable transport document." The first two parts, which illustrate the two most common ways that a transport document would fail to qualify as a negotiable transport document, do not cover any additional transport documents that are not also covered by this shorter definition. As a result of this discussion, the first two parts are bracketed here to flag the possible alternative approach.

1.15 Freight means the remuneration payable to the carrier for the carriage of goods under any contract of carriage.

Freight is defined as the contractual consideration. It should be read in relation to 1.1. According to 8.1, ‘freight’ in Chapter 8 includes deadfreight as well.

1.16 Goods means the whole or any part of the wares, merchandise and articles of every kind whatsoever, except for live animals, which a carrier received for carriage and includes the packing and any equipment and container not supplied by or on behalf of a carrier.

The exclusion of live animals follows the consensus in the Uniformity Sub-Committee.

1.17 Container includes any type of container, transportable tank or flat, swapbody, lashbarge, or any similar unit load used to consolidate goods, and any equipment ancillary to such unit load.

1.18 In writing includes, unless otherwise agreed between the parties concerned, information generated, sent, received or stored by electronic, optical or similar means of communication, including, but not limited to, telegram, facsimile, telex, electronic mail or electronic data interchange (EDI), provided the information contained therein is accessible so as to be usable for subsequent reference.

The wording of this definition is taken from UNCITRAL Model Law on Electronic Commerce.





		1 Definitions 1.1 Contract of carriage means a contract under which the contracting carrier, against payment of freight, undertakes to carry the goods wholly or partly by sea from one place to another. This definition is subject to change, depending on the outcome of the discussion on multimodality. 1.2 Carrier means a contracting carrier or a performing carrier. This definition is generally based on the discussion at the ISC’s third meeting in July and on the proposed amendments to the U.S. COGSA. The broad term "carrier" includes each of the possible types of carriers that are defined in the draft. The different types of carriers are not mutually exclusive. 1.3 Contracting carrier means the person who enters into a contract of carriage with the contracting shipper. This definition is generally based on the discussion at the ISC’s third meeting in July and on the proposed amendments to the U.S. COGSA. The "contracting carrier" in this draft is substantially the same as the "carrier" under article 1.1 of the Hamburg Rules. The Hamburg Rules’ terminology is rejected as ambiguous. Both the current draft and the Hamburg Rules recognise that different types of carriers exist, yet article 1.1 of the Hamburg Rules uses the unmodified term "carrier" to mean only one of these different types. (Under the Hamburg Rules, an "actual carrier" may not be a "carrier.") When referring to one particular type of carrier, it is preferable to modify the term "carrier" to identify which of the different types of carriers is intended. Thus the carrier who enters into the contract of carriage is the "contracting carrier." The current draft also differs from the Hamburg Rules in its omission of a "person ... in whose name" a contract has been completed. This clause is either unnecessary or wrong. If a person acting on its own behalf enters into a contract of carriage as carrier in its own name, then that person qualifies as the "contracting carrier" under the proposed definition and the omitted clause is unnecessary. Furthermore, if an agent acting on its principal’s behalf enters into a contract of carriage as carrier in the principal’s name, then the principal also qualifies as the "contracting carrier" under the proposed definition and the clause is once again unnecessary. The principal has "enter[ed] into a contract of carriage" through its agent. But if an impostor enters into a contract of carriage as carrier in someone else’s name, then that other person should not be treated as the "contracting carrier," and the Hamburg Rules clause–to the extent that it suggests the contrary result–is wrong. 1.4 Performing carrier means a person who performs, undertakes to perform, or procures to be performed any of a contracting carrier’s responsibilities under a contract of carriage, to the extent that the person acts, either directly or indirectly, at the request of, or under the supervision or control of, the contracting carrier, regardless of whether that person is a party to, identified in, or has legal responsibility under the contract of carriage. The term "performing carrier" does not include any person (other than the contracting carrier) who is retained by a shipper or consignee, or is an employee, servant, agent, contractor, or subcontractor of a person (other than the contracting carrier) who is retained by a shipper or consignee. This section is generally based on the discussion at the ISC’s third meeting in July and on the proposed amendments to the U.S. COGSA. The definition here is also broader and more specific than article 1.2 of the Hamburg Rules. It provides a functional definition, clarifying that anyone performing any of the contracting carrier’s duties under the contract of carriage is a "performing carrier," without regard for the contractual formalities that appear to be part of the Hamburg Rules’ definition. Furthermore, the proposed definition specifies more clearly than do the Hamburg Rules that the class of "performing carriers" includes not only the contracting carrier’s sub-contractors but also the entire line of subsidiary persons who perform the contract (i.e., the sub-contractor’s sub-contractors, that party’s sub-contractors, and so on indefinitely). The "performing carrier" in this draft is similar to the "actual carrier" under article 1.2 of the Hamburg Rules. The Hamburg Rules’ terminology is rejected as ambiguous and confusing. By using the phrase "actual carrier," the Hamburg Rules imply that other carriers (including the "carrier" under article 1.1) are not "actually" carriers. This is contrary to commercial practice (not to mention article 1.1 of the Hamburg Rules), which undoubtedly regards the carrier who enters into the contract of carriage as a person who is actually a "carrier" (or even the carrier). It is preferable to modify the term "carrier" to identify functionally which of the different types of carriers is intended. Thus the carrier who performs the contract of carriage (or part of the contract) is the "performing carrier." The definition also clarifies that "performing carriers" are only those who work, directly or indirectly, for the contracting carrier. If the consignor or consignee has a servant or agent performing a task that would otherwise be the contracting carrier’s responsibility under the contract of carriage, that servant or agent does not thereby become a "performing carrier." 1.5 Shipper means a contracting shipper or a consignor. This definition is generally based on the discussion at the ISC’s third meeting in July. As in 1.2 (with reference to carriers), the broad term "shipper" includes each of the possible types of shippers that are defined in the draft. The different types of shippers are not mutually exclusive. Indeed, the consignor is often the contracting shipper. Article 1.3 of the Hamburg Rules defines "shipper" to include the possibilities that are covered by this definition, but nothing in the Hamburg Rules distinguishes between the two possibilities. There was some discussion at the ISC’s third meeting in July suggesting that the term "shipper" should also include a third possibility–the party identified as the "shipper" in the transport document. Such a party might be called the "documentary shipper." The present draft defines such a party as the "first holder," but does not include that person within the "shipper" definition. 1.6 Contracting shipper means the person who enters into the contract of carriage with the contracting carrier. This definition is generally based on the discussion at the ISC’s third meeting in July and on the first part of article 1.3 of the Hamburg Rules. As was the case with 1.2 (with reference to carriers), when referring to only one type of shipper it is preferable to modify the term "shipper" to identify which of the different types of shippers is intended. Thus the shipper who enters into the contract of carriage is the "contracting shipper." The reference in article 1.3 of the Hamburg Rules to a "person ... in whose name or on whose behalf" a contract has been completed is omitted here for essentially the same reasons that comparable language was omitted from 1.3 (with reference to the contracting carrier). 1.7 Consignor means the person from whom a carrier receives the goods. This definition is generally based on the discussion at the ISC’s third meeting in July and on the concept of the second part of article 1.3 of the Hamburg Rules. It might have been preferable here to modify the term "shipper" to identify which of the different types of shippers is intended. Thus the shipper who delivers the goods to a carrier might be the "delivering shipper" or the "consigning shipper." Such usage seems unnatural, however, and the term "consignor" is well-established in commercial practice. The Working Group recognises that a carrier will generally receive the goods from a person acting on behalf of another. For example, a carrier may receive the goods from a freight forwarder or a trucking company acting on behalf of a seller who arranged to have the goods transported to an overseas buyer. In such a case, the seller qualifies as a "consignor" because a carrier received the goods from the seller (who was acting through an agent). The freight forwarder or trucking company would also qualify as a "consignor" because it was "the person from whom a carrier receives the goods." 1.8 Holder means the person who is for the time being in possession of the negotiable transport document and entitled to transfer the rights embodied in such document. 1.9 First Holder means the person who is named as the shipper in, or is identifiable as such from, a negotiable transport document. 1.10 Intermediate Holder means the holder, not being the first holder, until the moment that he claims delivery of the goods. 1.11 Consignee means the person entitled to take delivery of the goods under the contract of carriage or a transport document issued under the contract of carriage. This definition is generally based on the discussion at the ISC’s third meeting in July and more directly on article 1.4 of the Hamburg Rules. The phrase "under the contract of carriage" does not appear in article 1.4 of the Hamburg Rules, but has been added for clarification. Under commercial practice, a person entitled to take delivery of the goods on some basis other than the contract of carriage (e.g., the true owner of stolen goods) would not be described as the "consignee." 1.12 Transport document means a document issued by a carrier that (a) evidences a contract of carriage, (b) [is a document of title to goods under a contract of carriage], or (c) evidences a carrier’s receipt of goods under a contract of carriage. This definition is generally based on the discussion at the ISC’s third meeting in July. Transport documents include not only such traditional documents as bills of lading and waybills, but also current and future substitutes for these traditional documents (including electronic documents when appropriate). The definition is phrased in the alternative, meaning that a document qualifies as a transport document if it satisfies any one of the three alternatives listed in 1.12(a), 1.12(b), or 1.12(c). This means, for example, that being a "document of title to goods under a contract of carriage" (1.12(b)) is sufficient to qualify a document as a "transport document," but being a transport document is not sufficient to qualify a document as a document of title. During the discussion at the ISC’s fourth meeting in October, the question was raised whether 1.12(b) adds anything of substance to the definition, or if every relevant document of title is also a receipt, and thus already covered under the definition by 1.12(c). Accordingly, 1.12(b) is bracketed in this draft. 1.13 Negotiable transport document means a transport document, such as a bill of lading, that states that the goods are to be delivered to order, to bearer, or to order of any person named in the document, and is not prominently marked "non-negotiable" or "not negotiable." 1.14 Non-negotiable transport document means a transport document that [is prominently marked "nonnegotiable" or "not negotiable," states that the goods are to be delivered to a person named in the document, or otherwise] fails to qualify as a negotiable transport document. This definition is intended to cover every "transport document" that is not a "negotiable transport document" under 1.13. The three parts of the definition are expressed in the alternative, meaning that a transport document is "non-negotiable" if it satisfies any one of the three alternatives. A transport document that is prominently marked "non-negotiable" or "not negotiable" is "non-negotiable" because 1.13 specifies that a negotiable transport document "is not prominently marked ‘non-negotiable’ or ‘not negotiable.’" A transport document that states that the goods are to be delivered to a person named in the document is "non-negotiable" because 1.13 specifies that a negotiable transport document "states that the goods are to be delivered to order, to bearer, or to order of any person named in the document" (which is different from stating that the goods are to be delivered to a person named in the document). Finally, a transport document that "otherwise fails to qualify as a negotiable transport document" is "non-negotiable" because a negotiable transport document necessarily qualifies as a negotiable transport document. During the discussion at the ISC’s fourth meeting in October, the question was raised whether the first two parts add anything of substance to the definition. It is possible to define "non-negotiable transport document" with only the third part, i.e., as "a transport document that fails to qualify as a negotiable transport document." The first two parts, which illustrate the two most common ways that a transport document would fail to qualify as a negotiable transport document, do not cover any additional transport documents that are not also covered by this shorter definition. As a result of this discussion, the first two parts are bracketed here to flag the possible alternative approach. 1.15 Freight means the remuneration payable to the carrier for the carriage of goods under any contract of carriage. Freight is defined as the contractual consideration. It should be read in relation to 1.1. According to 8.1, ‘freight’ in Chapter 8 includes deadfreight as well. 1.16 Goods means the whole or any part of the wares, merchandise and articles of every kind whatsoever, except for live animals, which a carrier received for carriage and includes the packing and any equipment and container not supplied by or on behalf of a carrier. The exclusion of live animals follows the consensus in the Uniformity Sub-Committee. 1.17 Container includes any type of container, transportable tank or flat, swapbody, lashbarge, or any similar unit load used to consolidate goods, and any equipment ancillary to such unit load. 1.18 In writing includes, unless otherwise agreed between the parties concerned, information generated, sent, received or stored by electronic, optical or similar means of communication, including, but not limited to, telegram, facsimile, telex, electronic mail or electronic data interchange (EDI), provided the information contained therein is accessible so as to be usable for subsequent reference. The wording of this definition is taken from UNCITRAL Model Law on Electronic Commerce.