Formulating a statutory framework for carriage of goods by sea in Malaysia

Abstract

The Malaysian legal framework concerning carriage of goods by sea suffers from some shortcomings. The Hague Rules adopted by Malaysia is known for its defects, as point out by the UK Supreme Court in Volcafe v CSAV. There is no domestic legislation to regulate transfer of contractual rights like the UK Carriage of Goods by Sea Act 1992. The importation of English laws of different dates to different provinces in Malaysia, by the outdated ss. 3(1) and 5 of the Civil Law Act 1956, produces an anomalous result. The Sale of Goods Act 1957 does not permit transfer of property in part of bulk cargo. This limits merchant’s ability to trade in bulk cargo carried ship’s delivery order, unlike the position in the UK. Various problems caused by bills issued by non-vessel owning common carriers (NVOCCs), difficulty in identifying the carrier in the bill, etc have not been legally addressed, not only in Malaysia but globally. None of the studies on international conventions on this subject has attempted to formulate and draft a model statutory framework that facilitates adopting a convention with necessary modifications and making provision for a fully-fledged regulatory framework. This is what this thesis, in essence, attempts. The thesis compares the Hague group of Rules, Hamburg Rules and Rotterdam Rules to propose the convention that should be adopted for Malaysia. It proposes the Hague-Visby Rules (as amended by the SDR Protocol) [the Rules] subject to some essential modifications, eg. modifying Art. III(3) the Rules to require the bill to be given to the shipper rather than the consignor. The thesis formulates a consolidated Carriage of Goods by Sea Act for Malaysia that will give effect to the Rules with modifications, provide for transfer of contractual rights, facilitate passing of property and risk in a part of bulk cargo, regulate NVOCC bills, and require prominent display of the carrier’s identity in the bill for the carrier to enjoy the short-period time limit, etc. The thesis suggests amendments to ss. 3(1) and 5 of the 1956 Act, if not repealed in entirety, to render the current English laws uniformly applicable throughout Malaysia in case of gaps in the Malaysian legislation subject to safeguards. It is argued that it is a misnomer to call a bill of lading as a document of title, which is indeed a document of constructive possession. It is also argued that bills issued by NVOCCs are not true bills of lading and hence not transferable, as the NVOCC does not have the actual possession to give constructive possession. The thesis discusses the controversies over the status of ‘received for shipment’ bills of lading. It is argued that such bills, when issued by a shipowner, are bills of lading because they embed the constructive possession function, though it is a matter of contract between the parties whether they allow such bills. The methodology adopted is largely doctrinal research. Interviews were also conducted with local and Singapore experts and practitioners to get their insight. In the last chapter, proposed drafts of the Rules with modifications, the said consolidated statue, the amendments suggested for the ss. 3(1) and 5 of the 1956 Act are included. The draft can generally serve as a model law on the subject.