Air Carriage Involving Trucking & Freight Forwarders 2_Air carriage involving... · Air Carriage...
Transcript of Air Carriage Involving Trucking & Freight Forwarders 2_Air carriage involving... · Air Carriage...
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6th IATA Cargo Claims & Loss Prevention ConferenceNovember 10-12, 2010
Air Carriage Involving Trucking & Freight Forwarders
Jeannine NelsonAmerijet International
Miami, Florida
Sjel WijngaardsJan De Rijk Logistics
Roosendaal, Netherlands
Holger BürskensArnecke Siebold
Frankfurt, Germany
Barry S. AlexanderClyde & Co US LLP
New York, New York
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NEW CLAIM—INITIAL CONCERNS
Obtain And Verify Facts/Obtain Relevant Documents
Master and House Air Waybill—Including Reverse Side
Delivery Receipts/Proof of Delivery
Damage/Irregularity ReportsDoes Report Explain Damage Claimed
Notices of Claim
Documents Evidencing Where Damage Occurred
E.g., Weather Records
Survey Reports
Truck Bill of Lading
Confirm Existence of Insurance Coverage
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NEW CLAIM—INITIAL CONCERNS
Determine Who Responsible For WhatWho Hired Trucker?
Often Freight Forwarder
Where Does Carrier’s Carriage End?
Determine Existence And/Or Extent Of LiabilityComparative Negligence of Claimant or Another Carrier
Determine DamagesSalvage Value
Market Value v. Cost
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NEW CLAIM—INITIAL CONCERNS
Determine Applicable LawMontreal Convention
Article 18(3)
CMR Convention (Europe)
Carmack Amendment (US)
Other Domestic Law
Conditions of Contract/Tariffs
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APPLICABLE LAW—CMR TREATY
LiabilityArticle 17—Liability
Article 23—Limit of Liability
Article 29—Wilful Misconduct
Shifts Burden of Proof
Extends Claim Period to Three Years
No Limit of Liability
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APPLICABLE LAW—CMR TREATY
DefensesArticle 17(2)
Wrongful Act or Neglect of Claimant
By Instruction of Claimant Where Not Result of Wrongful Act or Neglect of Carrier
Inherent Vice of Goods
Through Circumstances Carrier Could Not Avoid or Consequences Carrier Could Not Prevent
Potential For Forum Shopping…By Such Default on His Part…
…In Accordance With Law of Court Seized of Case…
…Is Considered Equivalent to Wilful Misconduct...
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APPLICABLE LAW—MONTREAL CONVENTION
ApplicabilityArticle 1—General
Article 18(4)—Transshipment/DeliveryTruck Transportation May Be Substantial
Commercial Union Ins. v. Alitalia Airlines, 347 F.3d 448 (2d Cir. 2003) (150-Mile Truck Transportation Deemed Governed by Article 18(4)
Presumption of Damage During Carriage by Air
Delivery Receipts/Proof of Delivery Key!
Substitution of Another Mode of Transport
Consignor Consent
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APPLICABLE LAW—MONTREAL CONVENTION
LiabilityArticle 18
Liability for Damage During Carriage by Air
Clean Delivery Receipt Prima Facie Defense to LiabilityPatent Damage v. Latent Damage
Article 22(3)—Limit of Liability (No Wilful Misconduct)19 SDRs for Shipments After December 30, 2009
Article 38—Combined CarriageCarrier Only Responsible for Carriage by Air
No Presumption
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APPLICABLE LAW—MONTREAL CONVENTION
DefensesArticle 18(2)—Inherent Defect or Improper Packaging
Article 19—All Necessary Measures for Delay
Article 20—Exoneration
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APPLICABLE LAW—MONTREAL CONVENTION
Freight Forwarders/Third-Party ClaimsChapter V—Articles 39-48
Chapter V Has Been Applied to Freight Forwarder/Carrier Relationship
Article 41—Liability for Each Other’s Acts
Article 42—Notice to Either Acceptable
Article 44—One Aggregate Limit of Liability
Article 45—May Claim Against Either Actual Carrier or Contracting Carrier
Party Against Whom Claim Asserted May Join Other
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APPLICABLE LAW—MONTREAL CONVENTION
Freight Forwarders/Third-Party ClaimsChapter V—Articles 39-48
Article 48—Montreal Convention Does Not Affect Right to Contribution/Indemnity
Two-Year Period of Limitations for Third-Party Claims?U.S.—Chubb Ins. v. Menlo Worldwide Forwarding, Inc. (9th Cir.)
Issue Currently on Appeal
Germany—BGH I ZR 60/06
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APPLICABLE LAW—COMPARISONS
Warsaw Convention v. Montreal ConventionArticle 8—Stopping Places
Article 20—All Necessary Measures
Article 22—Limit of Liability
Article 25—Wilful Misconduct
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APPLICABLE LAW—COMPARISONS
CMR v. Montreal ConventionCMR Lower Limit of Liability
CMR Limit Breakable, Not Montreal Convention
One-Year v. Two-Year Limitation Period
Result is Forum Shopping and Tailoring of Claims to Obtain Highest Recovery
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APPLICABLE LAW—OTHER
Carmack AmendmentGoverns Interstate Transportation by Truck in United States
Preempts State Law
Notice of Claim—Nine-Month Deadline
Period of Limitations—Two Years from Denial of Claim
Limit of Liability
Must Communicate Limit and Offer Higher Amount
Generally No Applicability Where Air Transportation Involved—49 U.S.C. §13506(8)
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APPLICABLE LAW—OTHER
AWB/Bill Of Lading (Conditions Of Contract)Limit of Liability
Often Low Limit for Truckers
Chargeable Weight for Air Carriers
Released Value Doctrine
May Incorporate Treaty Provisions
Beware Sloppy Language in AWB
Freight Forwarder Liability Often Broader
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OTHER CONCERNS RELEVANT TO HANDLING
What Jurisdiction Are You In?Some Better Than Others
Germany
Brazil
Latin America
Within Country
e.g., U.S.—Ninth Circuit vs. Second Circuit
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OTHER CONCERNS RELEVANT TO HANDLING
Customer RelationsSometimes Best to Keep Law in Perspective
The Girl Who Still Believed in Santa Claus
Cost-Benefit AnalysisNuisance Value
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TIPS TO PREPARE FOR AND HANDLE CLAIMS
Usually The Carrier Must Take Lead in ResolvingMake Sure All Delivery Receipts/Proofs of Delivery Are MaintainedKnow Facts And Understand LawCoordinate With Counsel When NecessaryConfirm Salvage ValueConfirm Where Damage Occurred
Remember that Law May Presume Where Damage Occurred if it Cannot be Determined
• All-cargo airline established in 1974• Broad portfolio of route authority and
fifth freedom rights• U.S. Flag carrier with U.S. registered
air waybills• Operates B727 & B767 aircraft• Charter availability• Global logistics experience• HAZMAT certified• Class A Explosives
• FMC licensed freight consolidator (NVOCC) established in 1997
• Licensed Freight Forwarder• Agents/offices in U.S., The
Caribbean, Europe, Asia, Africa & Middle East
• Steamship contracts with over 25 global and regional ocean carriers
• International Ocean FCL/LCL provider with U.S. registered bill of landings
• Uzbek flag carrier established in 1992• Aviation Logistics• Office in U.S. and Uzbekistan• Operates Antonov (AN-12 & AN-26)• Worldwide route authority• Offices and Agents in Tajikistan, Georgia, Armenia,
Turkmenistan, Azerbaijan, Afghanistan, Russia, Ukraine, Belorussia, UAE, Pakistan, India and China
• Provider of ground handling and distribution services• Experience in handling corporate and government
projects in remote locations with limited infrastructure• Hazmat certified• Extensive experience in operating in Afghanistan
• Full service trucking company established in 1998
• Range of expedited and time sensitive transportation solutions
• Fleet of 225 trucks equipped withGPS satellite tracking
• Virtual fleet provides access to 2,600GPS Alliance partner trucks
• IATA and OTI Certified• Hazmat approved• Canadian cross-boarder authority
Primary Hub – Miami, FL• Scheduled all cargo flights to the Caribbean,
Mexico, South & Central America• Interline transfers to Asia, Europe,
Middle East and Africa• Charter Services/full or partial• Export Facility: 210,000-square-foot,
including 3,000-square-foot cooler• Imports Facility: 100,000-square-foot,
including a custom-built 10,300 square-foot (227,419 cu. ft.) cooling facility which was specially designed to maintain the cool chain integrity of perishables during the transportation process.
Caribbean Hub Operations• Eastern and Western Caribbean Hubs
provide scheduled service operations for goods from the U.S. and goods which are not able to transit the U.S.
• Charter availability• Interline transfers to Europe, Asia, Middle
East and Africa• Company operated facilities with customs
bonded warehousing• Chilled and frozen storage at airport• Local maintenance service• Caribbean Hubs are served by B767 from
Miami • B727 and Antonov aircraft provide service to
feeder routes• Offers handling and maintenance services to
other airlines
Maintenance and Crew• Company operated Flight
Operations/Dispatch • Company employed flight crew• Ramp operations• In-house aircraft maintenance staff
performing all regular and heavy maintenance checks
• Crew Training and Safety Department• Provides maintenance and flight
support to other carriers• Provides hazardous material training
to other handling companies
Air Products & Services• Scheduled Service/Charters• Combination of Air and Ground Services• Consolidations• Products
– Dry goods– Oversized/odd-sized– Small Package Service– Perishables (cooler / x-ray)– Pharmaceuticals– Hazmat– Human Remains– Live Animals
• Offers full-service cargo handling to third parties and other airlines, including perishable storage and security screening
• Pickup and Delivery within the United States
Ocean Products & Services• Consolidation Services
– Full Container Loads (FCL)– Less Than Container
Loads (LCL)• Freight Forwarding Services • Documentation creation and
Reconciliation• Customs Brokerage• Refrigerated and Dry Truck
Load – Full Truck Loads (FTL)– Less Than Truck Loads
(LTL)• Intermodal Service
Logistics Services• Global Logistics• Trade Show Logistics• Reverse Logistics• Cold Chain Solutions • Warehousing and Distribution• Supply chain management
solutions, including 3PL & 4PL • Warehouse Order Fulfillment
– B2B,B2C and Retail• Solution Design
• Engineered solutions• Value Added Services
– Packaging– Display building– Kitting – Critical parts– Reverse logistics
I.T. Systems/Multimodal Cargo Management
• Cargo Management System follows waybills across multimodal transportation services from receipt to final destination, including preparing freight manifests and recording accounting entries associated with a shipment
• I.T. systems providing reservations, invoicing and tracking of all ocean and logistics services
• Purchase Order Management • On-line Cargo tracking, including Proof of Delivery• GPS Tracking for truck fleet and ocean containers• E-Commerce Web Portal, allowing customers to obtain quotes and
book shipments for air, truck and ocean• Office networked voice and data communication system • Video conferencing and web-based training• Customer Resource Management System
Amerijet Group of Companies• The Amerijet group of companies provides multi-model
transportation and logistics services worldwide• The Company provides direct transportation service to
175 air and sea ports in 75 different countries worldwide thought its network of 32 Company-operated and 145 agent-operated stations throughout the Caribbean, Latin America, Europe, the Middle East, Africa and Asia.capabilities
• Serving 550 destinations worldwide both direct and through contractual relationships with other carriers
Contracts with Air Cargo Partners Worldwide
ABSA AIRLINES NIPPON CARGO AIRLINES
AEROMEXPRESS S.A. BRINGER CORPORATION ESTAFETA CARGA AEREA S.A. POLAR AIR
AEROUNION SA DE CV BRITISH MIDLANDS HONG KONG DRAGON AIRLINETIHAD AIRWAYS
AEROVIAS DE MEXICO SA DE CV CARGOJET IBC AIRWAYS EVA AIR
AIR CANADA CATHAY PACIFIC CARGO IBERIA REGIONAL CARGO
AIR FRANCE CAYMAN AIRWAYS KOREAN AIR ROBLEX AVIAITON INC.
AIR JAMAICA CENTURION AIR CARGO LAN CARGO SPIRIT AIRLINES
AIR NEW ZEALND CHINA AIR LEADER JET SWISS INT'L.
AIRMAX CARGO CONTINENTAL AIRLINES LIAT TACA AIR
AIRTRAN AIRWAYS COPA AIRLINES LTU TAMPA AIRLINES
ALITALIA AIRLINES DELTA AIRLINES LUFTHANSA THOMPSON FLY
AMERICAN AIRLINES DHL AERO EXPRESO, S.A. MARIO'S AIR TURKS AIR CARGO
ASIANA AIRLINES DHL GUA MARTINAIR UNITED PARCEL SERVICE CO.
BAHAMAS AIR EL AL ISRAEL AIRLINES MAS AIR VENSECAR
AIRLINE INTERLINE PARTNERS
Contracts with Steamship Lines Worldwide
Antillean Marine Steam Ship Partners Maersk APL Maruba Bringer Lines Evergreen MSC CCNI Great White Fleet NYK CMA-CGM Hanjin Seaboard Crowley Hapag-Lloyd Seafreight CSAV Hyundai Merchant Marine Trinity Delmas Interocean Yang Ming Line Dole King Ocean ZIM Line