Limitation of liability under Kazakh law in a landlocked corridor setting

Alina Butrim
Kazakh Legal Consultant (Astana Chamber of Legal Consultants)
EMVE Trading, Dubai
butrim@emc2.ae

Corridor multimodal carriage in Kazakhstan: why limitation turns on stage and documents

As a landlocked jurisdiction, Kazakhstan’s foreign trade and transit carriage is structurally corridor-based and typically executed through multimodal chains: rail and road legs, terminal handling, and – where relevant – a maritime segment in the Caspian basin. In that operating reality, limitation of liability rarely turns on a single ‘carriage’ or a single document. Instead, it turns on: (1) where the loss occurred (stage identification); (2) who held custody and in what capacity; and (3) how handovers were documented across modal interfaces.

Forwarder responsibility

The Rules for the Provision of Forwarding (Expeditor) Services (registered Act No. 3037) codify the documentary and organisational workflow. The expeditor, acting under the client’s instruction, ensures the necessary transport documentation, engages third parties (carriers, terminal operators, other contractors), and structures the sequence of actions that later becomes the evidentiary backbone for identifying the responsible party and the loss stage.

Under the law of the Republic of Kazakhstan, the liability of a freight forwarder may be limited by a freight forwarding agreement, unless otherwise provided by law, and provided that such limitation does not contravene mandatory provisions of law.

Under the agreement, the parties may: establish a liability cap (a fixed amount, a limit per package/kilogram, etc.); limit liability to the amount of actual (direct) damages; exclude liability for loss of profit; provide that the freight forwarder shall be liable only in the event of fault on its part.

At the same time, limitations may not be applied where: the damage was caused intentionally; the damage was caused as a result of the freight forwarder’s gross negligence; the freight forwarder acted outside the scope of the mandate; or mandatory provisions of law have been breached. In such cases, contractual provisions limiting liability may be declared invalid.

Carriage of goods by sea: domestic framework and cargo limitation

Domestic merchant shipping framework and limitation fund

The Law of the Republic of Kazakhstan ‘On Merchant Shipping’ of 17 January 2002 No 284 regulates the carriage of goods by sea and the associated allocation of liability in the maritime segment.

A material feature of the national model is that it addresses not only the principle of limitation, but also its operation through a fund mechanism. The Merchant Shipping statute recognises the shipowner’s right to limit liability for defined categories of maritime claims and, at the same time, provides for the establishment of a mandatory limitation fund intended to satisfy claims arising from a single maritime incident or maritime operation. In this way, limitation of liability is framed not merely, as an abstract ceiling on recovery, but as a procedural device for the collective administration and distribution of multiple competing claims. The statute further institutionalises an aggregate cap on shipowner exposure for specified types of maritime claims, reflecting the balance it strikes between shipowners and claimants in maritime relations.

Within Kazakhstan’s corridor practice, a particular analytical weight is attached to the interface between the maritime leg and expedition/forwarding structures. Maritime forwarding is procedurally specified at the level of secondary regulation. The Rules on Forwarding (Expeditor) Activity in Maritime Transport, adopted by Order No 486 of 24 April 2015, set out an organisational model for performing a transport expedition contract in the maritime sector, including documentation requirements for mandates/instructions, the modalities of performance (by the expeditor’s own acts or through engagement of third parties), and coordination of operations connected with sea carriage. These rules directly affect whether a given actor is defined as an expeditor, a carrier, or a Multimodal Transport Operator (MTO) for purposes of allocating liability and applying limitation.

At the international level, the principal reference point for ‘global’ maritime limitation is the Convention on Limitation of Liability for Maritime Claims, 1976 (LLMC 1976), 1456 UNTS 221, which recognises a right of shipowners and other persons identified by the Convention to limit liability for certain categories of maritime claims.

Hague–Visby as a comparator and Hamburg as the operative regime

The international liability framework for sea carriers developed as a group of regimes, within which the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading, 1924, as amended by the 1968 Visby Protocol and the 1979 SDR Protocol (Hague–Visby Rules), has long served as the classic comparative baseline for allocating risk between ship and cargo interests. Hague–Visby embodies the conventional structure of carrier liability: the carrier assumes duties of proper care for the cargo and bears responsibility for loss or damage, while benefiting from a calibrated set of rights, defences, and limitations – including the limitation architecture reflected, inter alia, in Article 4. For that reason, Hague–Visby remains a natural point of departure for assessing how later; formally, more cargo-oriented instruments recalibrate the carrier–cargo balance.

At the same time, ‘regime change’ should not be overstated. The literature emphasises that, notwithstanding differences in drafting, the scope of defences, and elements of evidentiary allocation, a substantial subset of disputes may yield comparable outcomes under Hague–Visby and the UN Convention on the Carriage of Goods by Sea, 1978 (Hamburg Rules). The Hamburg Rules apply through Law of the Republic of Kazakhstan of 23 April 2008 No 28-IV ‘On Ratification of the United Nations Convention on the Carriage of Goods by Sea (Hamburg Rules)’, which gives the Convention effect within the national legal system. Accordingly, where an international maritime stage arises within Kazakhstan’s corridor chains, the Hamburg Rules provide the primary convention framework for cargo claims and the associated limitation of liability mechanics, while Hague–Visby continues to function as the key comparative reference point for mapping the evolution and practical comparability of sea-carrier liability across regimes.

Cargo limitation under the Hamburg Rules: calculation and evidentiary inputs

In international carriage of goods by sea governed by the UN Convention on the Carriage of Goods by Sea, 1978 (Hamburg Rules), the carrier’s liability ceiling for cargo claims is determined under Article 6, 1695 UNTS 3. The provision sets a dual-calculation approach: liability for loss of or damage to goods is limited to an amount equivalent to ‘835 units of account per package or other shipping unit’ or ‘2.5 units of account per kilogram of gross weight of the goods lost or damaged’, whichever is higher. The Hamburg Rules therefore provide a formally defined and predictable upper bound intended to balance carrier and cargo interests in international sea carriage.

In Kazakhstan-type corridor chains, however, applying that formula is rarely a purely mechanical exercise. Its operability depends: first, on whether the claimant can demonstrate that the loss is attributable to the maritime stage; and, second, on whether the transport record reliably provides evidence of the cargo configuration, This comprises the shipment composition, the number of packages or other shipping units, and the relevant gross weight. In a multimodal itinerary, it is the transport documents – bill of lading or other sea carriage document – that typically determine what counts as a ‘package or other shipping unit’ and which weight data is accepted for limitation purposes.

Practically therefore, most cargo-limitation disputes are not determined by breaking the limit. They are determined by: (1) correct regime characterisation; and, above all, (2) documentary construction, that is, which items qualify as a ‘package’ or ‘shipping unit’, what weight is legally relevant for the calculation, and whether the evidentiary chain is sufficient to localise the loss to the sea leg within a multimodal movement. This is why, in corridor carriage, the document functions not as an ancillary exhibit but as the decisive instrument for applying the Hamburg limitation formula.

Road and multimodal transport: CMR limitation and the network logic

International road carriage in Kazakhstan’s corridor setting is anchored in the application of the Convention on the Contract for the International Carriage of Goods by Road, 1956 (CMR). Kazakhstan acceded to the Convention through the Decree of Accession of the Republic of Kazakhstan of 12 May 1995 No. 2271. As a result, CMR governs qualifying international road movements involving Kazakhstan and supplies the baseline carrier-liability model and the contours of limitation. Where a segment of a corridor chain is properly characterised as a ‘road stage’ and the carriage meets the Convention’s internationality requirements, CMR provides the primary framework for both liability attribution and limitation.

CMR expresses limitation for loss of or damage to goods through the formula in Article 23, 399 UNTS 189. Compensation is capped at ‘8.33 units of account per kilogram of gross weight short’. In a scenario where the loss can be localised to the road leg, limitation analysis typically shifts into a relatively determinate mode: the ceiling is convention-defined, subject to correct stage characterisation and credible documentation proving that the actual weight of goods delivered is lower than the weight declared.

Domestic law provides the institutional backdrop for how road carriage is organised and documented. The Law of the Republic of Kazakhstan ‘On Automobile Transport’ of 4 July 2003 No. 476 defines the general legal relationships among the carrier, consignor, and consignee, thereby shaping the internal context in which duties and responsibility are allocated on the road stage. In practice, however, the viability of stage identification – and therefore the operability of the CMR ceiling – depends on whether the evidentiary chain is continuous and coherent: that is, acceptance of the cargo, its recorded condition, the route, and the points of handover across the chain.

Road carriage is sustained by the consignment documentation and accompanying records that establish the background, context, and surrounding circumstances of the carriage, identify the shipment, and register events relevant to allocating responsibility among chain participants.^[1] In a multimodal chain, these documents perform an inter-stage ‘interface’ function and often determine whether loss can be localised to a specific leg.

Where the loss stage is identified, the liability regime of the relevant mode applies. Where the loss stage is unknown, outcomes depend on the legal documents and contracts and the documentary record available.

Rail carriage: stage localisation through procedural documentation

For landlocked routes, the rail leg in Kazakhstan operates as the principal load-bearing segment of corridor logistics and, correspondingly, a core locus for stage determination in limitation disputes (limitation of liability). The Law of the Republic of Kazakhstan ‘On Railway Transport’ of 8 December 2001 No. 266 regulates carriage by rail and contemplates carriage performed in mixed (multimodal) communications, thereby legally embedding the rail stage within an integrated chain that may include other modes of transport.

Methodologically, this matters because where the law accommodates mixed carriage; the allocation of responsibility and the selection of an applicable limitation regime depend on whether the loss can be evidentially localised to a specific stage, or whether it remains ‘unfocalised’ within the multimodal itinerary. In corridor disputes, the rail leg often becomes the decisive evidentiary anchor precisely because it is typically accompanied by comparatively dense procedural documentation.

Under the law of the Republic of Kazakhstan, the liability of a railway carrier is limited and largely regulated by mandatory rules. As a general principle, the railway carrier is liable for loss, shortage or damage to cargo within statutory limits, usually based on the actual value of the lost or damaged cargo, unless a higher value has been declared by the consignor and accepted by the carrier. Liability for consequential losses and loss of profit is excluded, unless otherwise explicitly provided by law.

Any contractual provisions increasing the carrier’s liability are permitted, whereas provisions reducing or excluding liability below statutory limits are invalid, as the relevant rules of transport law are of an imperative nature. The carrier is released from liability if it proves that the loss or damage resulted from circumstances beyond its control, including inherent defects of the cargo, unsuitable packing, or incorrect consignor instructions.

The evidentiary infrastructure for stage identification on the rail stage is primarily shaped by procedural regulation of documents and physical acceptance/delivery operations. The Rules on Carriage of Goods by Railway Transport (registered act No. V1900019188) supply the operational ‘procedural context’ of rail carriage. They regulate the issuing and completion of carriage documents, the procedures for accepting cargo for carriage, recording its condition, quantity, and packaging, and the procedures governing release (delivery) of the cargo to the consignee.

Taken together, these procedural mechanisms generate the proof required to: (1) localise the moment and segment at which loss may have occurred on the rail leg; (2) corroborate proper performance by the relevant chain participant within the rail stage; or (3) demonstrate that, on the available documentation, the loss cannot be confidently attributed to a particular stage, thus shifting the dispute towards legal documents, contracts and risk allocation across the multimodal chain.

Freight forwarding and through documents: expeditor or MTO?

Under FIATA Multimodal Transport Bill of Lading (FBL), 1992, the freight forwarder issuing the document and named as a contracting party, is treated as the Multimodal Transport Operator and assumes responsibility for undertaking the multimodal contract ‘as a carrier’. This means that generally, the MTO is liable for the cargo interests as a principal contractor for the entire multimodal transport, irrespective of whether the damage was caused by a subcontracted carrier. Where the stage of transport during which the loss, damage or delay occurred can be identified, the MTO’s liability is determined according to the mandatory liability regime applicable to that particular mode of transport (rail, road, sea, etc.), including statutory limits and grounds for exemption.

If the stage of transport cannot be determined, the MTO’s liability is assessed under general civil law principles, typically limited to actual (direct) damages, with liability for loss of profit excluded unless otherwise agreed. Contractual limitation of liability is generally permissible, provided it does not contradict mandatory rules of transport law and does not cover cases of wilful misconduct or gross negligence.

The through-transport structures may also support the opposite model. In some settings, the contracting party to a ‘through’ arrangement may be characterised as acting only as the merchant’s agent for stages it does not itself perform, bearing responsibility solely for its own leg. The ultimate allocation of responsibility (and the associated limitation consequences) depends on contractual drafting, the transport-document terms, and the factual pattern of performance.^[2] The documentary model serves two purposes: it may consolidate liability in a single centre (MTO); or it may fragment liability across stages, depending on what the instrument and contract actually stipulate.

Conclusion

International multimodal liability continues to operate as a mosaic, in which the applicability of any given convention is typically determined through loss localisation and the characterisation of the relevant transport stage.

The practical consequence of this fragmentation is structural: outcomes in multimodal disputes depend systematically on contractual drafting and case-specific facts, including whether the loss can be attributed to a particular stage based on evidence. Modal conventions function in parallel, without an internal mechanism for harmonising overlaps, which produces regime competition and a corresponding variability of results. As the literature emphasises, the distinction between situations in which a stage is known or unknown is frequently decisive, as is the analysis of which documents establish custody transfer, cargo condition, and functional allocation among chain participants.^[3] In such a setting, limitation of liability disputes are commonly reconstituted as disputes about documents and the correct legal characterisation of the stage.

This is why, for Kazakhstan, limitation of liability in land corridor transport is rarely reducible to the numerical ceiling alone. It is more accurately treated as a function olegal agreements, contracts, and documentary quality. In the absence of a universal multimodal regime, the contract, the transport document, and the evidence of inter-stage handover are the determinants of applicable law, the proper defendant, and the realistic boundaries of recovery.