CMNI-Convention in relation to the Bratislavathe ... · THE BRATISLAVA AGREEMENTS The Bratislava...

CMNI-Convention in relation to the Bratislava Agreementsthe Bratislava Agreements

Zsolt KovácsZsolt Kovács

Gárdos, Füredi, Mosonyi, Tomori Law Firm

6th IVR-Colloquium 22nd and 23rd January 2009

Prague

HISTORY IN BRIEF

• Unlike on the Rhine, alongside the Danube the riparian countries never h d hi ti t d t f tihad a sophisticated system of cooperation.

• The Danube inland waterway transport was governed by the Belgrade Convention, which regulated (and still regulates) only a rather limited segment of the navigation on the Danube.

• At the same time most of the Danube countries belonged to the communist block, which meant only one (state owned) shipping company in each country.

• When the need arose to create a private law framework in the early 1950’s, these monopolist companies agreed on the conditions they p p g ywould use in respect of the river transportation.

• Together with the fact that the Danube was a fully separated waterway, this had an actual effect of this agreement - the Bratislava gAgreements of 1955 - being used as a kind of an international treaty.

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THE „WIND OF CHANGE”

DMR Canal Opening of the Rhine-Main-Donau Canal meant that new carriers appeared applying their own conditions and not the Bratislava Agreementsg

Fall of the communist regimes

CMNI

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DMR Canal

• The shipping market in the Danube countries became free that is the state owned shipping companies had been privatized and newstate owned shipping companies had been privatized and new shipping companies have been formed

• The Bratislava Agreements gradually lost its perceived role as a international agreement on the multiplayer markets


CMNI

g p y

3


DMR Canal

• Until the coming into force of CMNI in 2005 the laws of the Danubecountries on inland transportation were still different

• The Bratislava Agreements could still played the role of a unified setof rules as the laws on the contract of carriage were mostly


of rules as the laws on the contract of carriage were mostlydispositive, i.e. the parties could freely agree on the application of theBratislava Agreements

• CMNI changed this fundamentally being a genuine internationalg y g gtreaty

CMNI

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THE NEW SITUATION AFTER CMNI

SCOPE • CMNI is applicable to any contract of carriage in the international inland waterway transport, if at least one of the ports is in a CMNI state

APPLICATION

CHOICE OF LAWLAW

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SCOPE

• Within its scope CMNI steps into the place of the local laws

• Domestic (national) laws and individual contracts may supplement the rules of CMNI but may not contradict it

• General transport conditions will have to be measured against CMNI and not the local transport laws

APPLICATION

CHOICE OF LAW

• CMNI is applicable regardless of • the nationality, place of registration or home port of the vessel• the nationality, domicile, registered office or place of residence

of the carrierLAW of the carrier

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SCOPE

• Freedom of choice limited

APPLICATION

• The law chosen by the parties is only applicable in questions notregulated by CMNI

• No use to agree in the application of the law of a jurisdiction outsideCMNI, if the port of loading or discharge is in a CMNI state

CHOICE OF LAW

CMNI that is primer to the Bratislava Agreements on an internationallevel as its members are states, however may the Bratislava

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Agreement be in force in any of the members of CMNI, in case of nocontradiction, the terms of Bratislava Agreement may besupplementing the CMNI.

THE BRATISLAVA AGREEMENTSThe Bratislava Agreements include several agreements which theThe Bratislava Agreements include several agreements, which the member companies undertake to apply in their inland navigation activity

• General terms and conditions of international carriage of goods on the

The main areas

• General terms and conditions of international carriage of goods on the Danube

• Freight policies • General average• General average• Mutual assistance at accidents• Harbor agency activities

T t f l t i• Transport of large containers• Repair

The interlap between Bratislava Agreements and CMNI

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The rules of international carriage of goods

MEMBERS OF THE CMNI AND THE BRATISLAVA AGREEMENTS

CMNIBRATISLAVA AGREEMENTS(countries with shipping

companies that are members)companies that are members)BulgariaCroatia Germany Hungary

Austria

RomaniaRussian FederationSlovakia

Czech Republic France

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Serbia and MontenegroUkraine

FranceLuxembourg Netherlands Switzerland

APPLICATION OF THE BRATISLAVA AGREEMENT AFTER CMNI

• The Bratislava Agreement may apply only if the CMNI does not resolve on a certain issue.

• CMNI expressly prohibits certain derogations in particular the exclusion or limitation of the carrier’s liability to the extent below the level provided for in CMNI → such clauses in general conditions are

ll d idnull and void

• Bratislava Agreement in its entirety may only be applied if the carriage is between two ports in countries not ratified CMNIcarriage is between two ports in countries not ratified CMNI

• If a CMNI covered port is involved in the carriage, the clauses of the Bratislava Agreement shall not apply to the extent they are in contradiction with CMNI with special regard to those provisions derogation from which is null and void.

The practical result for carriers using Bratislava Agreement as general conditions

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Uncertainty for the carrier as to the actual content of its general conditions

1 DIFFERENCES IN THE AGREEMENTS - LIABILITY

Bratislava Agreement CMNI

Loss or damage to goods;

Delay in delivery of goods;

Liability

Exoneration

1

2

Special cases of

ti3

exoneration

Limits of liability4

Objection, enforcement of claim

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2 DIFFERENCES IN THE AGREEMENTS - EXONERATION


No general rule The general rule:Liability

Exoneration

1

2

No general rule The general rule: If the loss was due to circumstances which a diligent carrier could not have prevented and the consequences of which he could not have averted

Special cases of exoneration

3exoneration



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3 DIFFERENCES IN THE AGREEMENTS – SPECIAL CASESBratislava Agreement CMNIBratislava Agreement CMNI

• Only specific cases of exoneration• Some of the specific cases (strike, war

etc.) would probably fall under the general exoneration rule of the CMNI

Liability

Exoneration

1

2

general exoneration rule of the CMNI

• force majeure, emergency;• acts and conducts of authorities or

administrative offices;

• acts or omissions of the shipper, the consignee or the person entitled to di f th d

Special cases of Exoneration

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administrative offices;• war and other violence;• actions launched by employees,

union;• the shipper breached the restriction

f

dispose of the goods;• handling, loading, stowage or

discharge of the goods by the shipper, the consignee or third parties acting on behalf of the shipper or the Exoneration


of prohibited shipping;• defaults and breach by the shipper

or other acts that are in conflict with the BA;

• undetectable faults of the goods;

g ppconsignee;

• carriage of the goods on deck or in open vessels,

• nature of the goods;• lack of or defective condition of

Objection, enforcement of claim5

undetectable faults of the goods;• nature of the goods;• Loss of the cargo to the extent its

usual by its nature • damage caused by the receiver’s

devices on taking over the goods

• lack of or defective condition of packaging

• insufficiency or inadequacy of marks identifying the goods;

• rescue or salvage operations or devices on taking over the goods.

• the goods were handed over intact and the shipper’s lead was intact;

• the goods were forwarded in intact

attempted rescue or salvage operations on inland waterways;

• carriage of live animals, unless the carrier has not taken the measures or observed the instructions agreed upon

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gpackage and no signs imply opening of the package

• the goods were shipped with a due guard on stand

observed the instructions agreed upon in the contract of carriage.

4 DIFFERENCES IN THE AGREEMENTS – LIMITS OF LIABILITY


If th f i ht d t i di t th l f th hi d d th i ' li bilit h ll bLiability

Exoneration

1

2

If the freight documents indicate the value of the shipped goods, the carrier's liability shall be up to that value (or the parties may mutually stipulate a higher amount). If the value is not indicted, the following rules apply:

• actual value of the goods or the • limited liability up to 666.67 units of


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gloss;

• BUT the carrier is liable up to EUR 320 / piece or EUR 96/ ton, maximum.

y paccount per package or other shipping unit, or

• 2 units of account per kilogram of weight, specified in the freight d t f th d l texoneration


Comment: If the BA amounts would be less than the CMNI amounts then the CMNI shall prevail. In any case the limits ma not be broader than that

document, of the goods lost or damaged, whichever is the higher.


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limits may not be broader than that defined in CMNI.

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5 DIFFERENCES IN THE AGREEMENTS – OBJECTION, ENFORCEMENT OF CLAIM


1 year 1 year

Liability

Exoneration

1

2


3exoneration



5

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We still do not have a truly unified system of transport law on this great European inland waterway It is high time toon this great European inland waterway. It is high time to

have it!

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