Air Carriage Involving Trucking & Freight Forwarders 2_Air carriage involving... · Air Carriage Involving Trucking & Freight Forwarders ... In Accordance With Law of Court Seized

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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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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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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

ApplicabilityArticle 1—General Provision

Article 2—Combined Carriage

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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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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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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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DefensesArticle 18(2)—Inherent Defect or Improper Packaging

Article 19—All Necessary Measures for Delay

Article 20—Exoneration

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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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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

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Thank You For Attending

Amerijet Group of Companies

Amerijet Group of Companies

• 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

United States

Caribbean & South America

Central America & Mexico

Europe & Africa

Asia & Middle East

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