Appended Simulated Facts
Xis (an English company) purchased from a Kenyan seller on an FCR Mombassa basis a bulk consignment of macadamia nut oil. Xis then sold-on 10% of the bulk to a German company Helmut Mahlzeit Essen GmbH (“HME”) on a CPT Frankfurt Air Cargo Terminal basis. Xis asked its English freight forwarders, Fred Framlingham Freight Forwarders (“4F”), to make the required transportation arrangements.
4F’s enquiries revealed that the most cost effective transportation could be achieved by: (1) consigning the entire bulk by sea in a refrigerated cargo hold from Mombassa, Kenya to Marseilles, France; (2) transhipping 50% of the consignment (“the HME Cargo”) into road tankers for carriage by road to Frankfurt Airport, Germany; (3) transhipping 50% of the consignment (“the XIS Cargo”) into Rail tankers for carriage by rail to Runcorn, UK.
4F gave XIS no details of the proposed logical arrangements, but merely quoted a fixed price (which XIS accepted) for the carriage of both (a) 50% of the consignment to XIS at Runcorn, UK and (b) 50% of the consignment to HME at Frankfurt Airport, Germany.
4F concluded the following carriage arrangements:
• a Gencon charterparty1 with the Chinese shipowners Mega Oil Shipping plc (“MOS”) for the carriage of the cargo in a refrigerated hold from Mombassa, Kenya to Marseilles, France,
• an oral agreement with Van de Van bv (“VdV”), a Netherlands company, for the collection of the HME Cargo from Marseilles, France and its deliver by road to HME at Frankfurt Airport, Germany,
• an oral agreement with Shunter GmbH, a German company for the collection of the XIS Cargo from Marseilles, France and its delivery by rail to XIS at Runcorn, UK, and
• the issue in Runcorn, UK of 2 negotiable FIATA multimodal transport bills of lading (“4FBOL”)2 for, respectively, the XIS Cargo and the HME Cargo.
The 4FBOL included the following information:
• for the XIS Cargo, the 4FBOL stated Runcorn as the place of delivery and that the XIS Cargo was consigned to the order of XIS,
• for the HME Cargo, the 4FBOL stated Frankfurt Airport as the place of delivery and that the HME Cargo was consigned to the order of XIS,
• Otherwise the information contained on the frontside of each 4FBOL was identical, as follows. Ø XIS was named as consignor on each bill of lading
Ø 4F signed each bill of lading “as agent for the carrier”
Ø each bill of lading was printed with 4F’s name & logo in the top right hand corner of the document pursuant to 4F’s FIATA licence
Ø Mombassa, Kenya was stated as the port of loading
Ø Marseilles, France was stated as the port of discharge
Ø XIS & HME were each asked to apply to 4F for delivery of the goods.
Both the XIS Cargo and the HME Cargo arrived at their respective destinations in an overheated condition and each of XIS & HME want to recover compensation from the liable carrier.
1 The Gencon charterparty terms are available on-line at: BIMCO Gencon 94
2 The FIATA bill of lading terms are available on-line at:
http://www.bifa.org/_Attachments/Resources/1079_S4.pdf
Question:
Assuming that any disputes arising out of the Appended Simulated Facts are submitted to English jurisdiction, critically discuss each of the following issues.
• a) Whether or not the 1968 Hague-Visby Rules as scheduled to Carriage of Goods by Sea Act 1971 would be applicable to the carriage?
• b) Whether or not the 1956 CMR Convention as scheduled to Carriage of Goods by Road Act 1965 (as amended) would be applicable to the carriage?
• c) Whether or not the 1999 Montreal Convention as scheduled to Carriage by Air Act 1961 (as amended) would be applicable to the carriage?
• d) Whether or not CIM convention appended to the 1999 COTIF Convention as given the force of law by the Railway Transport & Safety Act 2003 SI 2005 No 2092 would be applicable to the carriage?
• e) Who, applying English law, would be the responsible carrier by sea, road, air or rail?
• f) What further information, if any, you would need to obtain to give a definitive answer to the questions at (a-e) above?
To answer Question :
Number of Words : 4500 Words
Number of sources : At least 10 sources