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Submissions of the Canadian Maritime Law Association on Senate COGSA'99 (April 2000)

The Canadian Maritime Law Association wishes to make the following representations concerning the Sixth Draft of US COGSA 99:

1. Unilateral International Multimodal Applications. CMLA considers that COGSA 99 is a unilateral initiative on the part of the United States to govern international multimodal transportation of goods. The CMLA believes that any such legislation must be introduced on a multi-lateral basis and not imposed on the world unilaterally.

COGSA 99 adopts a new definition of Performing Carrier in s. 2(a)(3). This definition extends to anyone who has anything to do with the handling or movement of goods under a contract of carriage. This will include the contracting carrier, the ocean carrier sub-contracted warehouse, trucker, railway, container yard and stevedore at both port of loading and port of discharge, covering a period prior to any other discharge. Prior legislation, such as the Hague Rules restricted their scope to ocean carriage (tackle to tackle). As a result of the wording of COGSA 99 other modes of transport and transportation handlers are potentially covered by the legislation.

The CMLA believes that the better way to achieve a multi-modal regime would be way of international convention.

2. Fragmentation of International Uniformity. The wide ranging application of COGSA 99 as a multimodal convention constitutes a further fragmentation of international uniformity on the law of carriage of goods by sea. The CMLA considers that COGSA 99 introduces a completely new unique United States regime, which will make it difficult in the future for the International Transportation Sub-Committee of the CMI to find a balanced and acceptable compromise on a new carriage of goods by sea regime.

The CMLA considers that if COGSA 99 is enacted it will make future development of an international convention extremely difficult. The CMLA requests that the United States Government and its marine community focus its efforts and attention upon development of a new international transportation of goods convention that would have widespread international support.

3. Application to Movement of Goods to and from the United States. COGSA 99 applies to the movement of goods from their origin abroad to the United States and vice-versa. It therefore applies to goods originating in Canada that travel by sea to the United States. Presently the Canadian Carriage of Goods by Water Act applies to outbound shipments of goods by water from Canada to other nations. (N.B.: The Carriage of Goods by Water Act 1993, C. 21 has been repealed and replaced by Part 5 of the Marine Liability Act, S.C. 2001, c. 6, in force August 8, 2001, which, however, contains similar provisions at its sect. 43 to those of sect. 7 of the 1993 statute). The CMLA considers that COGSA 99 effectively supplants the application of the Canadian COGWA to shipments to which it would otherwise apply.

Most other nations maritime laws on issues of carriage of goods apply only to outbound transportation. As presently drafted, COGSA 99 requires the application of American law to any cargo that is loaded or discharged in the United States, regardless of Canadian laws and regardless of whether the goods were merely transhipped at a U.S. port to a third country.

The CMLA is concerned that US COGSA would effectively supplant Canadian Carriage of Goods by Water law in many circumstances.

4. Performing Carrier. COGSA 99 introduces the definition of performing carrier in addition to contracting carrier and ocean carrier. The definition includes both the performer and the procurer of the carriage of goods, or of any incidental service to facilitate the carriage of goods where such service is procured directly or indirectly by a contracting carrier. These include stevedores, terminal operators, consolidators, packers, warehousemen, and their servants, agents, contractors and sub-contractors.

The definition introduces traditional carriage by sea law into non-carriage services that normally are not governed by such legislation. The proposed Bill purports to regulate the liability of performing carriers whose activities may occur wholly outside the United States, may be confined to a single country and may have no international dimension. For example, warehouseman in the interior of Quebec would be subject to the bill and U.S. law (such as the Pomerene Act), and be subject to a U.S. court action if retained (without knowledge of the international carriage) by a freight forwarder who is deemed to be a contracting carrier. The extra-territorial approach of the COGSA 99 (by its application to inbound shipments) combined with the expanded definition of carrier is not accepted by the CMLA. The CMLA continues to object to the extraterritorial application of COGSA 99 in the way in which the Bill is drafted.

5. Application of Pomerene Act. COGSA 99 provides that the U.S. Bills of Lading Act (Chapter 801 of Title 49, U.S. Code), the Pomerene Act, applies to any contract of carriage subject to COGSA 99. This makes the Pomerene Act applicable to inbound shipments. Therefore a bill of lading issued in Canada for goods that may be transited to the United States for international shipment will be subject to the Pomerene Act. In the view of CMLA this extra-territorial application supplants Canadian law and is not acceptable. The CMLA objects to application of the Pomerene Act to goods from Canada to the United States.

Respectfully submitted

(signed) A. Barry Oland
Canadian Maritime Law Association

April 2000