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National Law Center
for Inter-American Free Trade
North American Committee
on Surface Transportation
Law and Practice
Report to:
NAFTA Land Transport Standards Subcommittee
June 27, 1995
Vancouver, B.C. Canada
Presented by:
Chairman:
Kenneth Hoffman
Hoffman & Stephens
Austin, Texas
Project Coordinator:
Gary T. Doyle, Esq.
National Law Center for Inter-American Free Trade
© Copyright NLCIFT
1995
Introduction
The North American Free Trade Agreement (NAFTA) envisions
surface transportation carriers from all three NAFTA countries
eventually moving freely across the North American borders. In
order to accomplish this objective, the laws and rules of
practice governing the transportation industry in all three
countries must be harmonized. The harmonization process should
include the unification and standardization of documents;
documentary and operational practices; liability for loss, damage
or delay, insurance requirements; and safety regulation.
The efficient and effective transportation of goods is critical
to the growth of trade between the United States, Mexico, and
Canada. The practical inefficiency and heightened insecurity
that arises from these legal and documentary disparities
constitutes a serious impediment to the efficient flow of goods
in North America. The purpose of this report is to provide the
current status of the efforts to replace those disparities with
uniformity and harmonization.
National Law Center for Inter-American Free Trade
On May 28, 1992, the U.S. Department of State, Mexico's
Ministry of Foreign Relations, and the National Autonomous
University of Mexico signed an agreement (later endorsed by the
Canadian Ministry of Justice) that formally created the National
Law Center for Inter-American Free Trade and established its
purposes as "proposing, investigating, discussing, and approving
uniform and harmonized legal actions designed to facilitate free
trade among the three countries."
The National Law Center is a research, training and
educational institution dedicated to the harmonization of trade
laws and practices in the Western Hemisphere. The Center is an
autonomous, independent, non-profit corporation located in
Tucson, Arizona, serving both the public and private sectors. It
has received financial support from the U.S. Congress, the State
of Arizona, the University of Arizona, and the City of Tucson as
well as private individuals and institutions. It is affiliated
with the College of Law of the University of Arizona and with
Canadian, Mexican, and South American "sister" institutions.
ISTEA Study for the Federal Highways Administration
In January of 1993, the Center was asked by the Federal
Highway Administration of the U.S. Department of Transportation,
as part of Section 6015 of the Intermodal Surface Transportation
Efficiency Act (ISTEA), to prepare a comparative study of surface
transportation law in the United States, Mexico, and Canada. The
study was to be concerned primarily with the "private law" of
transportation, i.e. the documentation used in the transport of
goods, the liability of carriers, and the allocation of risk.
The scope of the study specifically excluded concerns related to
safety, weights, and lengths of trucks and trailers.
In July, 1993, the Center completed the study titled
"Disparities in the Law and Practice of Surface Transportation of
Goods Between the United States and Mexico." The study
identified numerous legal barriers to the movement of goods
between the three NAFTA countries. (FHWA Report #: FHWA-PL-94-
009-026) As the title suggests, the paper primarily enumerates
various legal problems associated with the use of surface
transportation as a mode for moving goods between the NAFTA
countries, with the main focus on disparities between the U.S.
and Mexico. The study concentrates on United States and Mexican
law and practice, because the sharply different legal systems and
cultures in those two countries create more numerous and complex
problems than those that exist between the United States and
Canada. The recommendations made in the study concentrate on the
harmonization of surface transportation law and the creation of
uniform documentation for use in the NAFTA region. The proposed
recommendations include:
1. The drafting of a Uniform North American Bill of
Lading for the international movement of goods
including the adaptation to electronic data interchange
(EDI).
2. The establishment of a Uniform Liability Regime to
govern the movement of goods in the NAFTA region.
3. The creation of Guidelines and Rules of Practice
to harmonize and standardize the use of transportation
documentation.
4. The drafting of Insurance Policies that will
provide coverage for cargo liability in the entire
NAFTA region.
The North American Committee on Surface Transportation Law and
Practice
The primary means of implementing the recommendations of the
National Law Center was the creation of a committee to address
the problems identified in the Disparities study and to propose
solutions to those problems. The North American Committee on
Surface Transportation Law & Practice ("NACST") is comprised of
approximately 70 experts in all disciplines of the transportation
industry from all three NAFTA countries. Motor carriers,
brokers, shippers, insurance carriers, government agencies, and
third party logistics providers are all represented on the
Committee. The Committee has both lawyers and non-lawyers. A
complete roster of the membership of the NACST is included here
as Appendix C.
The NACST operates in two capacities. The first is to
formulate and submit proposals to the appropriate branches of
government as well as to various trade and professional
organizations. The second purpose is to serve as an advisory
board to the National Law Center in regard to the Center's work
in transportation.
The actual organization of the NACST began with a meeting
held October 24, 1993 in San Francisco, California. That meeting
was held in conjunction with the 26th Transportation Law
Institute.1 The attendees of the first meeting were encouraging
and expressed great interest in the concept of the Committee.
The National Law Center for Inter-American Free Trade
formally created the NACST on January 9, 1994 at Tucson, Arizona.
Since this time, the Committee has met five times varying the
location between the United States, Mexico and Canada.
The primary task at the first meeting was to confirm the
basic areas of inconsistency in transportation law and practice
among the three NAFTA countries. The Committee discussed the need
for concentrated work in the areas which the Law Center had
originally recommended in the Disparities study. The Committee
created working groups for that purpose as follows:
1. North American Uniform Bill of Lading Document --
This working group set out to create a the format of a
paper document that would satisfy all of the existing
bill of lading requirements of the customs and
transportation administrative agencies in the three
NAFTA countries. The use of electronic data
interchange (EDI) was to be taken into account in the
format of the document.
2. Uniform Liability Regime -- One of the primary
areas of concern is the difference in liability
standards and levels of carrier liability among the
NAFTA countries. The creation of a uniform level of
liability for loss, damage, and delay of delivery of
goods is necessary in order for trading parties to take
full advantage of NAFTA.
3. Rules of Practice -- This working group was
created to draft a standard set of rules or guidelines
regarding procedures for the international movement of
goods among the NAFTA countries. This document will
have two purposes. One purpose is to assist parties
interested in international commerce in the "how to's"
in moving goods across the border. What are their
responsibilities and how they can expect other parties
to act. The second purpose is as a guide to judges and
finders of fact when the common practices of the
industry is in dispute. This document would include a
detailed statement of practice for each phase of
transportation from receipt of goods or issuance of a
bill of lading to delivery of the goods and the filing
of claims.
4. Standard Insurance Policy -- Another primary
concern of the Committee is the applicability and
availability of insurance coverage for loss, damage, or
delay of goods in transit. The first assignment of
this working group was to collect and analyze air,
land, marine, and truck cargo insurance policies
currently in use in North America.
5. Implementation -- It was the consensus of the
Committee that there should be a working group
specifically dedicated to recommendations for the
implementation of the recommendations of the other
working groups. As its first task, this working group
was to investigate possible means of implementation,
such as treaty/convention, legislative action,
memorandum of understanding, regulatory agency action,
or trade organization agreements.
The results of NACST's work thus far is summarized below.
1. Uniform Transborder Motorfreight Through Bill of Lading
("UTMTBL")
A uniform bill of lading for cross-border transportation has
three important advantages over the current situation. First,
for parties involved in international trade, uniform
documentation assists them in understanding their rights and
responsibilities in the transaction. Second, public safety is
enhanced because critical information is easily found on the
document because it is always located in the same position on the
document. This point is especially important for hazardous spills
emergency response teams. Third, by including all required
information for transportation purposes on a single document,
enforcement is facilitated by limiting the number of documents to
be reviewed by a field officer and also permits this information
to be easily transfered by electronic means. The uniform bill of
lading must satisfy four basic requirements; simple, uniform,
enforceable, and flexible.
The first draft of what was essentially a consolidated bill
of lading form, including terms and conditions of the
transportation contract, was presented in Scottsdale, Arizona on
April 9 and 10 at the second NACST working meeting. The working
group has also proposed that a short form bill of lading be a
valid form with reference to or incorporation of the terms and
conditions of the contract of carriage and that the entire
document may be modified by the parties. In general, this
working group's principal concept was a standardized document
that allows alterations and modifications by the parties.
Consensus has also been reached on other critical issues.
The Committee reached a general consensus that the scope of the
uniform bill of lading shall include the entire movement of an
international shipment even if the goods are stopped and/or
unloaded at a transit point before the final destination. The
treatment of the UTMTBL in Mexico will be applicable from origin
to final destination as stated on the bill of lading. The
Committee also agreed that substitute service by railroad is
permitted and will be specifically stated on the face of the bill
of lading.
In January, 1995, the Committee accomplished the critical
task of completing the format of the face of the UTMTBL. It was
important that the Committee complete this work in order for the
document to be converted for the purposes of electric data
interchange (EDI). The organization in charge of creating
standards for EDI, ANSI ASC X.12 (commonly known as the "X-12"
committee), needed a draft for consideration on February 27,
1995.2 Committee X.12 will review the document and suggest any
changes. If the process goes according to schedule, the EDI
version of the NAUSBL will be published in X.12's January 1996
standards.
There are a number of issues that must still be resolved.
The first concern was the effect of changing hazardous materials,
(or in Canada and Mexico, "dangerous goods") regulations and
notification requirements. Another concern was the need for a
field for "Special Instructions" to the carrier. Carrier
representatives were concerned about the contractual nature of
such a statement on the face of the bill of lading and its
enforceability against the carrier.
Representatives from the United States Federal Highways
Administration requested that the carrier's identification
number, or US DOT number, be placed on the face of the bill of
lading. The FHWA representatives were asking for the DOT number
in order to more effectively track compliance violations of
domestic and international motor carriers. The Committee agreed
that this was a feasible request but questioned the ability to
accommodate the information in operation. The issue raised a
concern as to who is responsible for providing the DOT number.
The Committee recommended that this element of the issue be
addressed in the Rules of Practice.
On March 9, 1995, in Tucson, Arizona, the Law Center
organized a group of E.D.I. transportation experts to review the
bill of lading for purposes of E.D.I. application. There were
some modifications made to the document that needed to be
addressed by the whole Committee. These revisions were presented
to the Committee in Quebec City on April 24th. and a total review
of the document followed. The resulting document is in Appendix
A. The discussions resulted in a much more complete
understanding of how the document will work in the real world.
(See appendix B for a detailed description of the use of the
UTMTBL.) Much of the discussion also concentrated on the
certifications for hazardous materials/dangerous goods and
intermodal container/trailer weights. One of the proposals was
to ask the FHWA and RESPA to consider a consolidation of the
certification requirements into a single statement. This would
also include discussions with the Canadian counterparts of
Transport Canada.
The enforcement of the container/trailer gross cargo weight
certification requirements under the Safe Container Act have been
delayed. However, the Committee expects that some form of
certification will be required. The certification will be
included in the UTMTBL.
Language requirements if one of the remaining problems yet
to be fully addressed. Canada and Mexico both have specific
language requirements. In Quebec, all documents must be written
in French unless the parties agree, in writing, to have the
contract written only in English or another language. In Mexico,
all contracts must be drafted in Spanish for them to be
enforceable. The Committee is currently addressing the necessity
of the three languages. One proposal is to have three duplicates
in the bill of lading pack. Each duplicate would be in a
different language. The duplicates would be ordered Spanish to
French, French to Spanish, depending on which direction the
shipment was moving. One problem associated with this solution
is that most computer printers cannot print legibly through more
than 3 copies. Another possible solution is to have those fields
requiring information to be in all three languages. Those fields
with only text would be in different languages depending on the
origin and destination of the shipment. This is primarily a
forms problems and is being addressed by companies in the forms
industry.
The UTMTBL is 98 percent complete. Revisions are still
expected concerning the Mexican tax information requirements,
Mexican freight charges and the hazardous materials
certifications. The document is to be 100% complete by the end
of August.
2. Uniform Liability Regime - Uniform Operating Standard for
Land Transport Documentation.
At the fifth working meeting in Zacatecas, Mexico on October
6-7, 1994, the Uniform Liability Regime working group presented
the first draft of a set of uniform terms and conditions for the
contract of carriage. The proposal was based on the following
concepts:
1. Domestic movements of goods shall be governed by
the prevailing domestic or national law.
2. The UTMTBL will be applicable to the international
movement of goods between NAFTA countries.
3. The UTMTBL may apply to multimodal (by rail and
truck) movements of goods, but is fundamentally
intended to be applied to road transport. There is not
an immediate need for this document in multimodal
transport.
4. The working groups used the UNCTAD/ICC rules and
the Organization of American States' Inter-American
Convention on Contracts for the International Carriage
of Goods by Road as the basis for their proposal.
5. The bill of lading will be the sole responsibility
of the issuer of the document and will be valid upon
issuance.
The working group presented three possible levels of
liability:
1. 8.33 SDR's (Special Drawing Rights) per pound
which is equal to approximately $12.50 (U.S.);3
2. $2.00 (Canadian) per pound or 1 SDR;
3. Leave the level of liability to the discretion of
the parties.
The U.S. shipper interests informally proposed that the carrier's
liability be based on the shipper value declaration for customs.
Prior to this, at the Toronto working meeting on June 16-17,
1994, a motor carrier representative and a shipper representative
each presented proposals for a Uniform Liability Regime for NAFTA
cross-border transportation. Both proposals ultimately concluded
that a regime setting a standard maximum liability limit, but
allowing for the declaration of a higher value limit, should
govern international shipments between North America countries.
A consensus of the NACST was reached for a uniform limited
liability regime with the carrier having a maximum "standard" or
"automatic" level of liability unless the shipper declares a
higher value. If the shipper declares a higher value of the
cargo, the carrier would be liable for the actual value of the
goods but not to exceed the value declared by the shipper. The
carrier would be permitted to increase the freight charges if the
shipper declares a value higher than the standard level. A
recommendation for the amount of the "standard" level of
liability was not agreed upon by the Committee.
However, at the Tucson working meeting, on January 30 -
February 1, 1995, U.S. shipper and carrier representatives made
divergent proposals. The U.S. shippers formalized a proposal to
base the liability of the carrier on the customs declaration.
The carriers reiterated the fact that at the June, 1994 meeting
in Toronto, the Committee had come to a consensus that there
would be a limitation of liability. The shippers conceded there
should be no carrier liability for consequential or special
damages based on delay in delivery unless specifically agreed
upon by the parties. The shipper interests also made the point
that if the carriers are fully liable for the declared value of
the goods, there is no need to discuss further the loss of the
carrier's right to a limitation of liability.
One reason for the difficulty in negotiating a compromise at
this meeting was the current re-evaluation of the Interstate
Commerce Act (I.C.A.). The U.S. Congress is considering
amendments to the I.C.A. including the possibility of eliminating
the Carmack Amendment. Neither shipper nor carrier interests
wanted to commit to any agreement that might impair their ability
to negotiate changes to the I.C.A.
All the parties do agree on a number of basic concepts
concerning the carrier's liability. The parties will be
permitted to negotiate different contract terms including the
liability of the carrier. If there is a declared value on the
bill of lading, that value will be the maximum limit of the
carrier's liability. The carrier is never liable for more than
the actual value of the goods unless under a separate agreement.
Special and consequential damages are only available if the
parties come to an written agreement prior to the time of the
shipment. The standard defenses as they have been proposed and
enumerated below are adequate.
Numerous other aspects of a Uniform Liability Regime have
been suggested and discussed, but no consensus has been reached
by the NACST. For example, what exceptions and/or defenses to
carrier liability should be allowed? The following have been
proposed:
1. Act of God, or unforeseen circumstances;
2. Public enemy;
3. Fortuitous cause;
4. Inherent vice or defect of the goods, including
shrinkage of the goods;
5. Act or omission of the shipper, owner, consignee
or other person acting on their behalf;
6. Insufficiency or defective condition of the
packaging or marks and/or numbers;
7. Force of law or government including, but not
limited to embargo;
8. Strike,lockout or stoppage which is not under the
control of the carrier;
9. Carrier compliance with respect to instructions
that have been expressly entered on the bill of lading
by the consignor, consignee or on their behalf;
10. Force majeure.
Some of the enumerated items may be included in one or more of
the other items. Some of the items may be a part of the current
law of one or more of the NAFTA countries. Most of the concepts
are included in the current law of each country, but may be
subject to different legal interpretations. It is the intention
of the Committee to include annotations and/or comments with its
final report in order to assist those who must use, implement or
enforce the Uniform Liability Regime in the future.
At the Toronto Working Meeting, there was a good deal of
discussion concerning the circumstances, if any, under which a
motor carrier should be precluded from availing itself of a
limitation of liability. A number of suggestions were made, but
no consensus was reached. The following are some of those
suggestions being considered:
1. The carrier would not be entitled to the benefit
of the limitation of liability if it were proved that
the loss, damage, or delay in delivery resulted from an
act or omission of the carrier done with the intent to
cause such loss, damage, or delay or recklessly and
with knowledge that such loss, damage, or delay would
probably result.
2. A servant or agent of the carrier or other person
of whose services the carrier makes use for the
performance of the bill of lading/transport contract
would not be entitled to the benefit of the limitation
of liability if it were proved that the loss, damage or
delay of delivery resulted from an act or omission of
such servant, agent, or other person done with the
intent to cause such loss, damage, or delay or
recklessly and with knowledge that such loss, damage,
or delay would probably result.
3. The carrier would not be entitled to the benefit
of the limitation of liability if it were proved that
the loss, damage, or delay in delivery resulted from
the carrier's conversion or theft of the goods for his
own use or purpose.
The first two suggested provisions were taken from the United
Nations Convention on International Multimodal Transport of
Goods. The third provision is current law in the United States
and Canada. As you might imagine, shipper interests favor the
first two provisions while carrier interests favor the third
provision.
Other issues to be discussed at future working meeting are
outlined as follows:
1. Level of limitation of liability;
2. Time of notice of claims;
3. Requirements for the content of a notice of
claim;
4. Burden of proof;
5. Juridical personality of carriers;
6. Conflicts with national laws.
The shipper and carrier interests did agree to work together
to solve these problems. The representatives will survey their
constituents to determine the actual value of shipments currently
moving domestically and internationally in the NAFTA countries.
3. Uniform Rules of Practice for Surface Transportation
Documentation
The Working Group on Uniform Rules of Practice presented the
first formal draft of the "Uniform Rules for Documentation in
NAFTA Customs and Practice Guidelines" at the 1995 Tucson working
meeting. Discussion ranged from the scope of application of the
Rules to how the Rules will interact with government regulations,
tariffs and other bills of lading that may or may not be issued.
The Committee was asked to review the Rules further and to send
any comments or suggested changes to the Law Center.
The Rules of Practice were again reviewed during the Quebec
meeting. Much of the concern during this portion of the meeting
dealt with who has what information at a given moment. It is
well understood that the shipper prepares the bill of lading in
advance of the carrier receiving the goods. However, some of the
information needed on the bill of lading must be provided by the
carrier. For example, the freight charges in Mexico, the
carriers tax identification number (RFC) and the carriers US DOT
or corresponding number in Canada and Mexico. Ultimately, each
field of information must be the responsibility of a specific
party involved in the transaction. The problem is, who has the
information and when does he have it? The discussion developed
many serious proposals to answer some of the these difficult
questions. Rule 31 of the Rules of Practice describing the
appropriate method of completing the UTMTBL is in Appendix B.
The Rules of Practice will operate in two capacities.
First, the Rules will provide a step by step guide for the
documentary practices for moving goods in the NAFTA. They will
describe what documents are required and who is to provide those
documents for customs clearance. Proper packaging and marking
for international shipments will be described.
The second purpose of the Rules is to provide a judge or
jury with a description of the customs and practices of the
transportation industry. If the parties have agreed to abide by
the Rules, either by membership in a trade association, by
incorporation in the bill of lading or by formal agreement, the
Rules will be binding as the common customs and practices for
international shipments in NAFTA. A judge or jury will be able
to consider the Rules in determining if a party was at fault if
they did not follow the Rules. This will remove many of the
issues and questions involved in litigation. Parties will
clearly understand there duties and responsibilities when
shipping goods between the NAFTA countries.
4. Standard Insurance Policy and Practices:
The primary concern of the NACST and its Standard Insurance
Policy working group has been that carriers are adequately
insured to indemnify their customers for loss, damage or delay
claims. The working group has recommended the establishment of a
minimum level of cargo insurance which must be maintained by
motor carriers in order to participate in cross-border
transportation operations in North America. The carrier would be
required to have proof of the minimum insurance in order to
receive operating authority and must maintain that insurance.
The insurance company would be required to notify the various
ministries of transportation if the policy were cancelled for any
reason, similar to insurance endorsements required by the I.C.C..
A draft of this endorsement has been prepared and is under
consideration by the Committee at this time.
It was generally agreed that the current Interstate Commerce
Commission requirement of $5,000/$10,000 is antiquated and
inadequate. The minimum level of insurance coverage will
probably be based on the "automatic" or "standard" limit of
liability established through the Uniform Liability Regime.
In the long term, there has been consideration of drafting a
model cargo insurance policy for NAFTA surface transportation.
The purpose of this model is to provide predictability to the
application of insurance in each of the three countries.
However, in the short term, the working group has suggested
consideration of using a standard "rider" for insurance policies
rather than drafting entire policies for motor carrier cargo and
public liability and property damage coverage for NAFTA purposes.
A rider could contain language requiring coverage of goods
without consideration of where, i.e., in which country, the
damage occurred. A rider could also provide for time limits to
prevent cancellation without notice to the governing agencies in
each country or prior to the expiration of a minimum stated
period of time.
The Standard Insurance Policy working group has also
presented a comprehensive review of cargo insurance in Mexico.
The discussion concentrated on the amount of cargo insurance to
be required by motor carriers. Another concern of the Committee
was the availability of adequate levels of insurance in Mexico at
a reasonable price.
The Insurance working group will also be assisting officials
from Mexico in developing cargo damage insurance policies for use
in the NAFTA market. The current insurance policies offered in
Mexico will not fully protect a motor carrier or its customers.
Insurance policies covering a motor carrier's "legal liability"
for cargo loss or damage are not generally available in the
Mexican market. The need for revised policies is recognized by
the Mexican insurance authorities and they are working to provide
more comprehensive insurance.
Possibilities for Implementation
Between July 11-13, 1994, representatives of the United
States, Canada, and Mexico met in Cancun, Mexico for three days
of consultations that included the first plenary sessions of the
trilateral Land Transportation Standards Subcommittee (LTSS) and
the Transportation Consultative Group (TCG) as well as working
group meetings and bi-lateral sessions. The TCG and the LTSS are
the formal mechanisms established under Article 913, paragraph
5(a)(i) and Article 914 of the North American Free Trade
Agreement. At a working session of the TCG on July 11, 1994,
representatives of the three governments agreed to consider the
concept of a Uniform North American Bill of Lading and a Uniform
Cargo Liability Regime for cross-border motor carrier freight
movements. The TCG agreed to review the relevant work of the
National Law Center for Inter-American Free Trade's studies and
proposals on bill of lading uniformity and the work of the Law
Center's North American Committee on Surface Transportation Law &
Practice. As part of its work program, the TCG's Working Group
on Operational Aspects of Cross-Border Transportation will be
examining insurance and civil liability requirements in the three
countries. The Working Group will seek to identify problems that
the different regimes may pose and consider whether the
development of more compatible systems would be possible. The
TCG Plenary endorsed the Working Group's plans regarding bill of
lading and cargo liability uniformity at its July 12, 1994,
meeting.
The preceding work should be completed by the end of August
and September, 1995, prior to the opening of the border states to
international motor carriers. An exception to this will be the
model cargo insurance policy which will be completed by the end
of 1995 if the need still exists for such a document.
Conclusion
The ultimate goal of NACST and this project is to encourage
trade between the NAFTA countries by providing secure and
efficient surface transportation. Security dictates that a
shipper or a carrier can effectively make a claim against the
party responsible for loss, damage, or delay of goods.
Efficiency requires that the goods will move through the border
zones and between parties smoothly and quickly. This translates
into profitability for carriers and lower costs with better
service for the shipper and consignee.
At the beginning of this project, most of the Committee
members, and the industry at large, were skeptical about the
possibilities of a successful resolution of the disparities and
of the implementation of a uniform liability regime and uniform
bill of lading document for NAFTA use. Over the past year, the
members of the Committee and the staff of the Law Center have
convinced themselves and most everyone else that a successful
resolution of those matters will be achieved. Our evidence of
this is the continued growth of NACST and the dedication of time
and expense in the activities of the Committee by individuals in
the transportation community which have resulted in a great deal
of progress in resolving some very complex and contentious
issues.
The Committee's initial charge was to create a system that
was predictable, stable and usable. These points are reiterated
at every meeting and have not been forgotten by any of the
Committee members.
By addressing the concerns of shippers and carriers alike,
the National Law Center and NACST will eliminate many of the
fears associated with conducting international business. The
added transactional security will encourage shippers to do
business in all three countries due to their confidence in the
system. Carriers are also encouraged to begin full operations on
both sides of the border. The amount of loss and damage at the
border should be decreased by decreasing the number of times the
goods are handled. A reduction in the need to use cartage or
transborder carriers will reduce congestion and delays in the
border zones. To the extent such "bridge" carriers are used,
uniform documents, practices, and liability rules will facilitate
those operations also.
The need for uniform documentation and harmonized rules
regarding liability and insurance has been recognized by
international authorities for decades. Harmonization not only
lowers costs, but will also encourage others to take advantage of
these new opportunities. The Law Center's North American
Committee on Surface Transportation Law and Practice is dedicated
to resolving disparities in the transportation law of the NAFTA
countries and perhaps ultimately in the Western Hemisphere.
DRAFT: 5/01/95APPENDIX A - Uniform Transborder MotorFreight Through
Bill of Lading Pg.______ of _______
(NON-NEGOTIABLE) (INTERMEDIATE CARRIAGE BY RAIL PERMITTED)Bill of Lading No. 000000000
1) Shipper/Consignor 2) Receiver/Consignee
(Complete Name & Address) (Complete Name &
Address)
Postal Code:
Shipper Contact: Phone: Postal
Code:
3) Pickup Address: (If 4) Delivery Address:
different than above.) (If different than
above.)
Postal Code: Postal Code:
5) Originating Carrier(s): Carrier Code:6) Special 7) EMERGENCY
Instructions: CONTACT:
FOR A CHEMICAL
EMERGENCY
(Spill, Leak,
Exposure, Fire, or
Accident)
Contact Phone
Number:
1. Other Carrier(s): Carrier Code(s):
2.
3.
8) If the Shipment is to be delivered to consignee without recourse on the
shipper/consignor, the shipper consignor shall sign the following statement:
The carrier shall not make delivery of this shipment without payment of
freight charges stated hereon. Signature of Shipper/Consignor:
____________________________.
9) NOTIFY PARTY - CUSTOMS BROKER(S) Clearance Fax Phone
(Name) Location
CA:
MX:
US:
10) Forwarding Agent:(Name & Address)
11) Actual Description of Goods 12)Gross 13) D
No. Perishable agricultural commodities and Cargo eclared
of Ki HM contents with high probability of shifting in Weight Value:
Shi nd / transit, must be so described. Mark X or RQ in (Req'd for Check
ppi of DG HM/DG Column if cargo deemed Dangerous Intermodal Appropriat
ng Pk Goods/Hazardous Materials under any applicable trailers e Box
Uni g. law enroute. and ¨ CA$ ¨ N$
ts containers ¨US$
)
¨ Kg. ¨
Lbs.
Note: The freight charges hereon are agreed to on the Total Total
basis of shipper's representations. Failure to declare Declared
value will constitute a release by shipper to: 1) the Value
actual value of the shipment, or 2) if no value is
declared _____ SDR's per kilogram. Carrier liability
will in no event be limited to less than actual value
where carrier has converted the cargo to carrier's own
use.
14) Method of Payment: 15) C.O.D. Amt. 16) FREIGHT CHARGES:
(Prepaid unless otherwise ______________ (MX Portion)
indicated) ¨ Prepaid ¨ ¨ CA$ ¨ N$ ¨ US$
Collect C.O.D. Fee: ¨ Prepaid ¨
¨ Prepaid Collect
__________________________ ¨ CA$ ¨ N$ ¨ US$
Collect Beyond
Check One: ¨ CA$ ¨ N$ ¨
US$
17) I.V.A. Amount:
(MX Only)
18) Bill Freight Charges To: 20) 21) Tax I.D. Number
Carrier Pro Number (RFC)
________________
19) INTERMODAL CERTIFICATION: Sequence Code:
Container/Trailer 000000000
Identification Number:
__________________ .
Shipper/Consignor
_____________________ per
_________
22) Date ______ by Shipper/Consignor 23) Date _______ by Carrier
____________ per _______. ____________________ per _____ .
Pieces Received ________
24) Acknowledgement of Delivery, Date: 25) Placard offered ¨Emergency Respons
_______ . e Guidelines offered ¨
Receiver/Consignee:_________________. Placard Received ______Emergency Respo
nse Guidelines Received _______
This agreement is subject to the Uniform Operating Standards for Land
Transportation Documentation pursuant to Chapter 9 of the North American Free
Trade Agreement. Shipper/consignor warrants that all information stated hereon
is accurate and that if it has tendered dangerous/hazardous goods that they
have been properly described and packaged and carrier has been furnished with
all required placards and Emergency Response Guidelines. Shipper further
certifies the accuracy of the identification number, cargo description and
gross cargo weight of intermodal containers and trailers. Carriers signature
hereon constitutes issuance of this bill of lading. Property described above
is received by carrier in apparent good order and condition, except as noted
(contents and condition of contents unknown). Carrier agrees to carry said
goods to the designated place of delivery, if on its route, otherwise to
deliver to another carrier to said destination, excluding carriers by water.
APPENDIX B - Uniform Rules of Practice for Documentation in
NAFTA, Rule 31.
The Uniform Transborder Motor Carrier Through Bill of Lading
shall be completed in following manner by the shipper/consignor:
1) Shipper/Consignor: Mandatory
The full name and address of the party hiring the carrier to
transport the goods.
2) Consignee/Receiver: Mandatory
The full name and address of the party to whom the carrier
is to deliver the goods and has the right to receive the
goods.
3) Pickup Address: Conditional
If the address of the location the carrier is to receive the
goods is different than that of the address of the
Shipper/consignor in 1), then the address of the location
the carrier is to actually receive the goods should be
provided in this field.
4) Delivery Address: Conditional
If the address of the location the carrier is to deliver the
goods is different than that of the address of the
Consignee/receiver in 2), then the address of the location
the carrier is to actually deliver the goods should be
provided in this field.
5) Carrier and Carrier Code: Mandatory
a) The shipper shall provide the name of the originating
carrier. The origination carrier shall provide his US DOT
number if the goods are to enter the United States.
b) Other carriers shall provide their names and US DOT
number when they receive the goods if they are to transport
the goods within the United States.
6) Special Instructions: Optional
[The nature and type of notations that may be made in this
field have yet to be decided. The Rule should be specific
in determining what notations are permitted.]
7) Emergency Contact: Conditional
If the goods are classified as hazardous materials or
dangerous goods, this field shall include an area code and
phone number of the party.
8) Non-recourse Statement: Optional
This statement provides that if the shipper elects to not
have responsibility for the freight charges and the carrier
has no recourse against the shipper/consignor for the
freight charges, the carrier is not required to deliver the
goods to the consignee/receiver unless the carrier is paid
the freight charges prior to deliver either from the
shipper/consignor or the consignee/receiver. Signature of
the shipper/consignor or a person representing the
shipper/consignor indicates the shipper/consignor's election
to invoke this provision.
9) Notify Party - Customs Broker: Mandatory
a) If the shipment is originating in the United States and
1) destined for Canada the shipper shall provide
the name, fax and telephone number of the Canadian
Customs Broker, or if
2) destined for Mexico, the shipper shall provide
the name, fax and telephone number of the Mexican
Customs Broker.
b) If the shipment is originating in Canada and
1) destined for the United States the shipper
shall provide the name and address of the United States
Customs Broker, or if
2) destined for Mexico, the shipper shall provide
the name and address of the United States Customs
Broker and the Mexican Customs Broker.
c) If the shipment is originating in Mexico and
1) destined for the United States the shipper
shall provide the name, fax and telephone number of the
United States and Mexican Customs Broker, or if
2) destined for Canada the shipper shall provide
the name, fax and telephone number of the Mexican,
United States and Canadian Customs Broker.
d) Clearance location is that city and state or province in
which the goods would need to be delivered if the cargo is
to be inspected by the appropriate customs agency. If the
goods are moving in-bond, this location may not be a city
located on the border.
10) Forwarding Agent: Conditional
If goods are destined for Mexico, the shipper/consignor
shall provide the complete name and address of the party to
whom the carrier is to deliver the goods at the United
States border for completion of the customs transaction.
11) Actual Description of Goods: Mandatory
To be completed
12) Gross Cargo Weight: Mandatory
a) If there is the possibility that the goods may move by
more than one mode of transport the gross cargo weight shall
include the contents, the packing material and pallets.
b) If the goods are to move only by motor carrier, either
the gross cargo weight as stated in the preceding paragraph
may be used or the weight of only the cargo.
c) The unit of measure must be indicated in the space
provided.
13) Declared Value: Optional
If the shipper elects to insert the value of the cargo, the
carrier shall be liable for that amount or the actual value
of the goods, which ever is less. The carrier may increase
his freight charges if the declared value exceeds the amount
of the carrier's liability under the applicable law or
regulation.
14) Method of Payment: Mandatory
a) The shipper/consignor shall indicate in the appropriate
box the method in which the carrier shall receive the
freight charges.
b) For shipments prepaid to a designated point, collect to
final destination, the shipper/consignor shall indicate that
designated point in the space provided.
c) The shipper/consignor shall indicate the appropriate
currency denomination.
Comments:
A common method of payment is "Prepaid border, collect beyond."
This method of payment is explicitly permitted. The designated
point however, may be any location agreed upon between the
parties to the sales transaction.
15) C.O.D. Amount: Optional
a) The shipper/consignor shall provide the amount to be
collected upon delivery and indicate the appropriate
currency denomination.
b) The carrier may charge an additional fee for providing
the C.O.D. service. The shipper/consignor shall indicate
the method of payment of these charges and the appropriate
currency denomination.
c) A shipment may not be changed to C.O.D. after the goods
have been tendered to the carrier.
16) Freight Charges: Conditional
The amount of the freight charges taxable by under Mexican
Law shall be placed in this field by the carrier.
17) I.V.A. Amount:
This I.V.A. ("Impuesto al Valor Agregado") is the Mexican
tax for all goods and services provided in Mexico. [This
definition will be more fully developed as to what portion
of the transport is taxable.] It is the carrier's
responsibility to pay this tax to ("Secretaria Hacienda").
The carrier then adds this cost to the freight charges.
18) Bill Freight Charges To: Conditional
Shipper shall provide the name and address of the party
responsible for the payment of freight charges [if the
method of payment is prepaid.]
19) Intermodal Certification: Conditional
If the goods are to move by intermodal container or trailer,
the shipper must certify the gross cargo weight of the
shipment. (See field 12 for description of gross cargo
weight) If the shipper is certifying the weight he shall
sign in this field and include the container/trailer
identification number.
20) Carrier PRO Number:
The PRO number is a tracking device for the carrier's
internal operations and shall be provided by the carrier.
21) Tax Identification Number (RFC):
This number is issued by the taxation authorities in Mexico
(Sec. Hacienda). This number and stamp must be included on
all invoices for taxable transactions in Mexico. The
carrier shall provide this information. The sequence code
must be included so that the carrier can keep track all of
his bills of lading/invoices for tax reporting purposes.
The carrier shall provide this number when he receives the
cargo.
22) Shipper/Consignor Signature:
The shipper/consignor or a person representing the
shipper/consignor shall sign in this location when the
carrier receives the goods.
23) Carrier's Signature:
The carrier or a person representing the carrier shall sign
in this location when the carrier receives the goods and
include the total number of pieces received.
24) Acknowledgement of Receipt:
The Consignee/receiver shall sign in this location to
indicate the carrier has delivered the goods. The
consignee/receiver shall not under [what field??] any damage
or shortage of goods.
25) Hazardous Materials:
If the goods are classified as hazardous materials or
dangerous goods under any applicable law enroute and the
shipper is responsible for the proper placards and Emergency
Response Guidelines be issued, the shipper/consignor shall
indicate in this field that the placards and the guidelines
were offered to the driver. The driver shall initial the
appropriate locations to indicate his receipt of the those
items.
Appendix C - NACST Roster
_______________________________
1Sponsored by the University of Denver College of Law, The
Transportation Lawyers Association, the Association of
Transportation Practitioners, and the Section of Administrative
Law and Regulatory Practice of the American Bar Association.
2American National Standards Institute Accredited Standards
Committee X-12 Transportation Sub-Committee I.
3These values have been revised to show the current rate of
exchange between U.S. and Canadian dollars with the SDR. Ed.
