In two important decisions of the Supreme Court (US. Supreme Court, 9 Nov. 2004, No. 440 U.S. 14 (2004), Kirby v. Norfolk Southern Railway and 21 June 2010, No. 560 U.S., 130 S. Ct. 2433 (2010), Kawasaki Kisen Kasiha Ltd. v. Regal-Beloit Corp.), the question of the law applicable to through bills of lading covering the transport of goods by intermodal transport was settled. In the Kirby decision, it was judged that the through bills of lading being maritime contracts, maritime law is applicable. Following this reasoning, in the Kawasaki case, it was judged that, when losses have taken place during the terrestrial part of an intermodal transport covered by a through bill of lading, it is the U.S. Carriage of Goods by Sea Act (COGSA) (46 U.S.C, § 30701) that is applicable. Furthermore it was decided that the Carmack Amendment (49 U.S.C: § 11706 (a)), a Federal law governing the transport of goods between American states, is not applicable in the cases where the through bill of lading contains a « Himalaya Clause » which refers to the COGSA.
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