Lloyd's Maritime and Commercial Law Quarterly
THE PROPOSED US CARRIAGE OF GOODS BY SEA ACT
Regina Asariotis*
Michael N. Tsimplis**
The United States is about to enact a new Carriage of Goods by Sea Act. While the genesis and progress of the proposed legislation is well documented,1 little independent analysis of its potential wider implications has taken place.2 This paper seeks to provide an analytical overview over key features of the draft Act and to consider the legislative proposal within a broader context of international developments in transportation practice and regulation.
I. INTRODUCTION
In April 1998, the US Senate was presented with a Bill for the enactment of a new US Carriage of Goods by Sea Act 1998. A decision on the Bill was deferred on that occasion and it is now expected that new legislation will be enacted early in 1999. In the field of international trade and transportation, any new US legislation merits close attention, but this is particularly the case when the legislation emerges at a time of increasing “disunification” of laws internationally.
The draft legislation, if enacted, will (a) modernize the US law on the Carriage of Goods by Sea; (b) reverse the law on the admissibility of foreign choice of forum agreements as established by the Supreme Court in Vimar Seguros y Reaseguros S.A. v. M/V Sky Reefer;
3 and (c) provide a mandatory liability regime for most intermodal transportation of goods to or from the US. Moreover, it may be of significant influence in shaping any future international consensus on uniform regulation of liability in carriage of goods by sea4 and intermodal transportation.
* Lecturer in Law, Institute of Maritime Law, University of Southampton.
** Part-time Lecturer, Faculty of Law, University of Southampton.
1. See Final Report of the Ad Hoc Study Group, US M.L.A. Doc. No. 724, 3 May 1996; M. Sturley, “Uniformity in the Law Governing the Carriage of Goods by Sea” (1995) 26 J.M.L.C. 553; M. Sturley, “Proposed Amendments to the Carriage of Goods by Sea Act” [1996] Houston J.Int.L. 609.
2. But see W. Tetley, “Liability structures in the law of carriage of goods by sea” in: Swedish Maritime Law Association (ed.), Cargo Liability in Future Maritime Carriage (Stockholm, 1998), 95.
3. (1995) 115 S. Ct. 2322; 1995 AMC 1817.
4. This appears to have been intended by the draftsmen. See US M.L.A. Doc. No. 724, 3 May 1996, at p. 4 (COGSA Proposal Summary): “Some people think that the amended COGSA will create disunity. We think that it will, in the long term, foster unity. If we do not amend COGSA, a new CMI Convention, which is now being discussed by an international subcommittee, may well retain the error of navigation defense. If the new Convention retains [that] defense, the United States will probably [not] ratify it. If an amended COGSA deletes error of navigation, the new CMI Convention will probably delete error in navigation, and the United States may very well ratify that Convention.” (The “not” was omitted in error from the “printed” text of Doc. No. 724.)
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