Article-by-article commentary on the Convention on the Contract for the International Carriage of Goods (CMR)
SCOPE OF THE CONVENTION»> Chapter I. Scope of the Convention
Cm. text Convention on the Contract for the International Carriage of Goods by Road (CMR). Geneva May 19, 1956 .
Article 2
The Convention on the Contract for the International Carriage of Goods by Road (CMR), hereinafter referred to as the Convention, is the basic, fundamental norm of private international road transport law. It regulates the generally accepted rules, customs and habits that have developed in world practice regarding the contract of carriage. The Convention establishes the procedures used by the parties to the contract for the international carriage of goods by road in terms of its conclusion, execution, termination, and also establishes the liability of the carrier for non-performance or improper performance of the terms of the contract.
The Convention was developed under the auspices and within the framework of the Inland Transport Committee of the United Nations Economic Commission for Europe. Its original text is published by the United Nations in French and English separate edition for NNE/EE/253, E/ECE/TRANS/480. Among transport workers, the Convention is better known under the acronym CMR (Convention%20%20relative%20au%20contrat%20de%20transport%20international%20de%20marchandises%20par%20route%0A,%20
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Chapter I. SCOPE OF THE CONVENTION
Article 1
P.1 The scope of the Convention is international road transport in cases where the contractual relationship for the carriage of goods provides that the goods must leave the territory of one country and be transported to the territory of another.
The “must” condition implies the intention of the parties to the cargo transactions. However, the possible crossing of the state border does not always classify the competence of the Convention in relation to any contract for the international carriage of goods by road. See the comment to paragraph 5 of this article.
The provisions of the Convention are also applied in cases where the goods transported by means of transport and issued according to the waybill in accordance with the contract of carriage did not actually leave the country of departure, but were, for example, removed from export or demanded by the sender for return before crossing the state border.
The Convention provides for the compensability of the contract for the international carriage of goods by road. Payment for the services of the carrier, as one of the essential conditions of the contract, must be formally declared in the contract of carriage and in the waybill, and actually made in accordance with the procedures and within the terms agreed by the parties to the contract. The form of remuneration for services under the contract for the carriage of goods and the procedure for settlements between the parties to the contract of carriage are not defined by the Convention.
The Convention does not apply in cases where the sender and the carrier are the same person (legal or natural), since the same person cannot conclude a contract of carriage with himself. The waybill in these cases will not have legal force (since there is no contract of carriage) and is not formally obligatory, but is drawn up according to the urgent requirements of the customs authorities to maintain statistical records of international transportation of goods.
The carrier and the recipient may be the same person, provided that it follows from the contract of carriage that the carrier's services will be paid (in one form or another) by the sender with the appropriate notes on the consignment note and actually confirmed by the relevant documents.
The convention has so-called open character. For the application of its provisions, it is sufficient that at least one of the two places - the acceptance of goods for carriage or intended for its delivery - is located in two different countries ah, of which at least one was a party to the Convention. This feature of the jurisdiction of the Convention has practical application only in cases where disputes arise between the parties under the contract of carriage or in connection with it. Any of the parties to the contract - the sender, the carrier, the recipient - can only apply to the appropriate court of the countries party to the Convention in accordance with the provisions of Articles 31 and 33, regardless of whether they have or not the nationality of the country party to the Convention.
However, any court or arbitration of a country not party to the Convention will not accept a claim from any party to the contract of carriage (regardless of their nationality), as it will not be competent to resolve the dispute in accordance with the provisions of the Convention, unless otherwise specified in the contract and is not contrary to Articles 31 and 33 of the Convention. See comments on these articles.
The terms of the contract of carriage, not determined by the Convention, are governed by the norms of that national legislation, the agreement on the application of which was reached by the parties to the contract for the international carriage of goods. Otherwise, disputes under the terms of the contract of carriage that do not fall under the jurisdiction of the Convention are resolved on the basis of conflict of law rules under the laws of the country of the court considering the case.
P.2. Convention on road traffic 1949 was amended and supplemented by the following international regulations: European Agreement of 16 September 1950, Convention on Road Traffic of 8 November 1968 and European Agreement of 1 May 1971. To specify the concept of "vehicle", one should use the definitions of the latest in terms of the adoption of these international treaties.
The possibility of using a particular vehicle is also determined by the provisions of bilateral intergovernmental agreements on international road transport.
P.4. A list of goods is declared, for the carriage of which the provisions of the Convention do not apply. The specified list of categories of goods is in fact significantly expanded by various bilateral, as well as multilateral intergovernmental agreements on international road transport. According to the agreements, the Convention does not apply when goods of a non-commercial nature are registered for transportation in international road traffic for their use by their owners (senders and recipients in the same person) on the territory of a foreign state with a mandatory subsequent return to the country of departure. Such goods include: vehicles, animals and equipment for sporting events; exhibits and equipment for exhibitions and fairs; theatrical scenery and props; musical instruments; equipment for film and photography, radio and television broadcasts; damaged vehicles; spare parts for their direct replacement on faulty vehicles and others.
It should be noted that the classification of fair and exhibition cargo as non-commercial does not exclude the possibility of their subsequent sale (donation, and sometimes sale) in the country of destination.
P.5. The imperative nature of the Convention is declared in relation to the application of its provisions to the conditions of international road transport of goods. The parties to the Convention agreed to use its provisions without changes, exceptions or additions. See commentary on article 41.
The intergovernmental agreements on international road transport mentioned above (Article 1, paragraphs 3, 4) do not affect the provisions of the Convention, but regulate only such relations between the countries-participants of the Convention that are not defined by it. The agreements define the fundamental provisions concerning: highways open for use in international traffic; driving licenses and registration documents for vehicles; licensing system for transportation; third party liability insurance; the level of taxes and fees, including road fees, and the procedure for their collection; procedures for border, customs, sanitary, veterinary and other types of control; settlements and payments; sanctions for violation by carriers of the terms of agreements, etc. Most of the agreements being signed are unified in form and close in content.
The possibility of applying the provisions of the Convention for carriage between points of departure and destination located on the territory of the same country in transit through the territory of another (other) country (countries) is determined by the relevant agreements interested parties. Such agreements may recognize both the jurisdiction of this Convention and the regulation of carriage by national law within each country through whose territory such carriage takes place.
Similar agreements are concluded by neighboring states for the implementation of international road transport as part of the implementation of border trade procedures between them. International transportation of goods between points of departure and destination located within the limits established by agreement of the parties of the border zones are governed by simplified rules developed on the basis of the provisions of the Convention.
A waybill for international carriage of goods drawn up in accordance with the provisions of the Convention is not a negotiable transport document. It is not subject to endorsement and cannot be used to transfer ownership of the goods being transported. However, the Convention does not exclude the possibility of using (in addition to the consignment note) other documents, as a rule, of a title to goods, by which ownership of goods can be transferred within the country of destination. Such documents have no legal force for the carrier, as they do not apply to the contract for the international carriage of goods by road. Additional documents of title are required for the actual recipients of the goods, if in the process of forwarding the goods such documents were endorsed in their favor. See commentary on article 12.
Article 2
P.1. If the goods are not transshipped from the means of transport before they arrive at their destination, then the provisions of this Convention shall apply to such international carriage by road, notwithstanding that part of the contracted itinerary the vehicle with the goods is itself transported as goods on other modes of transport. This means that a motor vehicle with the cargo in it is the object of a contract of carriage, for which the road carrier is the sender and recipient in one person, and the company of another type of transport acts as the carrier.
In the absence of fault of the international road carrier, its liability in such cases for damage, damage, total or partial loss of cargo, as well as for delay in delivery is determined to the sender or recipient of the cargo itself according to the same rules and regulations, according to which the carrier is responsible to the road carrier another type of transport. In the event of such a situation, the road carrier must compensate the damage to the person entitled under the contract of international road transport in the amount provided for by the imperative regulatory act of another mode of transport. After that, the road carrier has the right, on the basis of its contractual relationship with the carrier of another mode of transport, to demand from the latter the return of the amounts paid by way of recourse.
The burden of proving that the road carrier is not at fault to the party entitled under the contract and substantiating the amount of payments in accordance with the norms of imperative law for other modes of transport lies with the road carrier.
P.2. The possibility of transporting cargo on any part of the route by another (non-road) mode of transport must be reflected in the contract for international road transport. In this case, the carrier delivering cargo on different (by means of transport) sections of combined transportation (with a mandatory road section) may be one and the same legal entity. Then the responsibility of such a carrier for the non-safety of the cargo or the violation of the delivery time that occurred precisely on the non-automobile part of the route is determined in accordance with the imperative norms of the law on the contract for the carriage of goods by another mode of transport.
The main international legal acts of private transport law on other modes of transport are:
1. In maritime transport, the 1924 Brussels Convention for the Unification of Certain Rules Concerning Bills of Lading, as amended by the 1968 Protocol, and the 1978 United Nations Convention on the Carriage of Goods by Sea. These conventions are sometimes referred to as the Hague-Visby Rules and the Hamburg Rules, respectively.
2. On railway transport - International Berne Freight Conventions ( latest edition 1985), referred to by their full French abbreviation CIM-COTIF, and the Agreement on International Goods Transport by Rail (SMGS) (last edition 1998).
3. In air transport - the Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air, 1929, as amended by the 1955 Hague Protocol.
4. For multimodal transport of goods, the United Nations Convention on Multimodal Transport of Goods, 1980, Geneva, and the UNCTAD-ICC Rules for Multimodal Transport Documents, 1992, Geneva. The Convention, which has not yet entered into force, and the Rules are optional rules. Therefore, each of them regulates the terms of the multimodal transport contract only if the parties to the contract have recognized it as appropriate. In practice, the Rules are most often applied.
If the procedure for calculating compensation and the amount of amounts payable are other than those specified in this Convention, the carrier shall have the burden of proving that the damage, deterioration or loss of the goods, as well as the violation of the delivery time, occurred on that part of the route, on which the road carrier was not actually such, but was a carrier of another mode of transport. In such a contract (and in the waybill) for international road transport, the route of transportation and the possibility of using other modes of transport(while maintaining the integrity of the vehicle) or a clause that the carrier has the right to choose the method of delivery of the goods at its discretion, based on the principles of reasonableness and good faith.
Chapter II. PERSONS FOR WHOM THE CARRIER IS RESPONSIBLE
Article 3
Unless otherwise provided in the contract of carriage, the carrier has the right, for the purpose of its proper execution, to involve any legal or individuals. The carrier is fully liable for the acts and omissions of its agents, freight forwarders, as well as employees as for its own, unless it proves that such guilty persons and or employees acted beyond the limits of their duties or outside the area determined by the contract of carriage. See commentary on article 29.
Chapter III. CONCLUSION AND PERFORMANCE OF THE CONTRACT OF CARRIAGE
Article 4
The waybill is not a contract of carriage, but only confirms the fact of its existence.
Any international road transportation is formalized by an agreement, according to which the carrier undertakes to deliver the goods to the specified place and time for a specified fee, and the cargo owner undertakes to provide the goods and pay transport services. The contract of carriage must be in writing. The parties to the contract are: the carrier on the one hand and the sender or recipient on the other.
Formally, the party to the contract of carriage is the sender. But sometimes it is specifically stipulated that the functions and duties of the sender are performed by the recipient of the goods. In the latter case, the contract of carriage must clearly indicate that it is the consignee who is the person entitled under the contract and has the right to dispose of the goods.
The Convention contains the concept of "sender", including both legal and functional content in it: the sender is a party to the contract for the international carriage of goods and therefore the only person entitled for the carrier under the contract until the moment the goods are transferred to the recipient and the sender is the person transferring the goods to the carrier. See commentary to article 12, paragraph 3.
The contract of carriage is drawn up, as a rule, in two forms - a jointly signed document and an unconditional acceptance of a firm offer.
A contract of carriage in the form of a jointly signed document is usually drawn up when the parties intend to establish long-term relationships related to the carriage of goods in international road traffic. Such an agreement is most often referred to as a blanket agreement or “General agreement”, in which the parties try to stipulate all possible aspects of relations with each other related to the organization and implementation of transportation, as well as issues of responsibility of the parties under the terms of the contract for the international carriage of goods not named in the Convention.
The contract of carriage in the form of an unconditional acceptance of a firm offer is drawn up in cases of initial or episodic contacts between the parties. The contract is considered concluded when a specific targeted offer (offer) of one of the parties is fully accepted (accepted) by the other. The written form of the contract means in this case, among other things, telex, fax and other registered forms of transmission and reception of messages.
The most important for any contract of carriage is the subject of the agreement, in which its parties clearly express their intention to fulfill all the agreed conditions.
The Convention does not regulate all possible aspects of the relationship between the parties to the contract of international road transport of goods. For example, there are no provisions on the principles of organizing transportation, the terms for submitting and satisfying requests for transportation, the level of applicable rates and tariffs, the forms and terms of settlements between the parties, the terms for filing, loading and unloading vehicles, customs clearance of goods and vehicles, and other .
In the "General Agreement" these and other issues can be agreed upon by the parties and are governed by the national norm chosen by the parties to the agreement. civil law. In the agreement in the form of "Offer-acceptance" issues that are not related to the jurisdiction of the Convention are resolved on the basis of the conflict of law rules of the applicable law.
Article 5
P.1 The form of the consignment note (CMR Internationaler Frachtbrief) is not defined by the Convention. The International Road Transport Union (IRU) has developed a bill of lading form recommended for carriers, freight forwarders, operators and agents to draw up and confirm contracts for the carriage of goods. However, each of the persons mentioned last has the right to develop and apply the most convenient form of the transportation document for him in accordance with the laws and regulations of his country. Any form of consignment note must contain the mandatory and additional details specified in Article 6 of the Convention.
A set of shipping documents (waybills) can consist of any number of copies, however, only the first three named in this article have the same legal force. The rest are copies. The number of copies of the waybill is determined, as a rule, by the number of state borders crossed by the cargo, as well as by national customs procedures. The exact number of copies to be made out is indicated in bilateral intergovernmental agreements on international road transport.
P.2. If the contract provides for the transportation of a consignment of cargo in a volume (quantity) exceeding the capacity (carrying capacity) of the type of vehicle specified in the contract, then waybills should be drawn up as many vehicles as necessary to use to transport the entire cargo. The division of cargo for transportation on several vehicles with the issuance of an appropriate number of waybills may be requested by the sender or carrier in cases where cargo is presented for transportation that for any reason is incompatible for joint transportation (chemical, physical, biological and other properties of cargo), as well as at the request of the customs authorities.
Transportation of several consignments (consignments) in one vehicle is allowed only with full observance of the procedures in accordance with the TIR Convention (Customs Convention on the International Carriage of Goods using a TIR Carnet of November 14, 1975). The TIR Convention states that several consignments of goods can be transported in one vehicle, subject to the following conditions: the total number of Customs offices, which are the place of departure and destination of goods, should not exceed 4; all customs offices that are the place of departure of goods must be located in the same country; customs offices that are the destination of the goods must be located in no more than two countries; consignments must be placed in motor vehicle in such a way that it is possible to examine each of them.
Article 6
P.1. The addresses indicated in subparagraphs a) - e) of the consignment note are important for determining the places for filing claims with the appropriate courts in accordance with paragraph 1 of Article 31 of the Convention. When importing goods, subparagraph d) indicates the name and address of the customs authority where the carrier must deliver the goods.
See commentary on article 11.
See commentary to article 7, paragraph 3.
P.2. The right of the sender to make such a reservation in the consignment note, as a rule, is explained by the reasons that prompted the sender to make such a statement. Usually, the prohibition of reloading to another vehicle is motivated by the state of the cargo, the specifics of its stowage and fastening, the impossibility of its slinging, the displaced center of mass of the cargo, and others. Such a clause is useful for the carrier, as it clarifies to him the nature and properties of the cargo, the actual state of the container and packaging, the consequences of manipulations with the cargo, and so on.
The payer of transport services (sender or recipient) is determined by the contract of carriage and, if necessary, indicated in the consignment note. The carrier prefers to build its own financial relations with the sender and receive the agreed freight charges before the start of the cargo transportation process. However, in practice, the payer (or payers) under the contract of carriage are determined not arbitrarily, but in accordance with the basic terms of delivery on which the contract for the sale of goods was concluded, the delivery of which was concluded this agreement international shipping.
The obligations of the parties to the contract of sale to bear certain transportation costs, that is, to fully or partially pay the carrier for carriage charges, are determined by the Rules for the Interpretation of International Trade Terms (Incoterms) of the corresponding year of publication according to the official documents of the International Chamber of Commerce. Most often, Incoterms are used in the editions of 1990 and 2000.
In accordance with these documents, payment for international road transport services for the transportation of goods is made by the seller (sender), if the sales contract is concluded on the basic terms of CPT (carriage paid to), CIP (carriage and insurance paid to), DDU (delivery without payment of duty) and DDP (Delivered Duty Paid).
The buyer (recipient) pays for the carriage in cases where the parties to the contract of sale have agreed to one of the following basic conditions: EXW (ex works) and FCA (free carrier).
An indication of the payments that the sender undertakes to pay is indicated in the contract of carriage and in the waybill in cases where the goods are delivered in accordance with sales contracts concluded on the basis of DAF (delivery at the frontier). In these cases, the seller (sender) undertakes to pay only a part of the stipulated carriage charges (usually up to the automobile border crossing named in the basic condition), and the carrier makes final payments for the entire carriage with the buyer (recipient) of the goods. In practice, this is extremely rare, as the carrier tries to build its financial relationship with one known and reliable payer. Most often, it becomes the sender or the person representing him, for example, the forwarder, less often the recipient.
The presence in the invoice and the value of such a payment indicator is determined by the presence and specific content of subparagraph b).
The value of the goods declared by the sender has nothing to do with the practice of putting down the price of the goods on the invoice, which is used by Russian customs authorities to determine the customs value of imported goods for the purposes of collecting excises, taxes, duties and fees. The need to declare (declare) the value of the goods in the consignment note arises when the actual (actual) value of the goods is higher than maximum limit liability of the carrier in cases of damage, damage, total or partial loss of cargo. See comments on Articles 23 and 24 of the Convention and on Article 2 of the Protocol of 5 July 1978 to the Convention.
Often, in order to maintain its authority and reputation, the carrier voluntarily declares to the cargo owner a waiver of his rights to use the limit of liability in the form of an indication of the actual (actual) value of the cargo on the consignment note without charging additional fees and charges for this service.
The actual meaning of the clause in the consignment note under this subparagraph lies elsewhere. The amount of special interest in delivery is indicated by the sender in the consignment note in cases where the amount of the carrier's full compensation for the lost or undelivered cargo is less than the previously known losses of the cargo owner. It is the amount of possible losses that is declared as an amount of special interest in delivery. If the cargo owner suffers losses only when the goods are not delivered to the destination later than a certain date (delay in the delivery of goods), then it is necessary to declare not the amount of special interest in delivery, but the amount of special interest in delivery within the period specifically agreed with the carrier. Such additional agreement must be confirmed by an appropriate note on the invoice. See commentary on article 26.
Instructions on the procedure and conditions for cargo insurance are given by the sender to the carrier in cases where, in accordance with the delivery basis specified in the sales contract, the seller is obliged or necessary to insure the goods (when using the basic conditions CIP, DDU, DDP). In addition, the carrier must agree that, in addition to his main obligations under the contract of carriage, he will also perform the functions of a freight forwarder. Such instructions shall contain: the name of the beneficiary under the cargo insurance contract, one of the three conditions of cargo insurance for transport (A, B or C) in accordance with the Rules of the Institute of London Insurers, the amount of the declared sum insured, the maximum possible premium rate, restrictions on franchise clauses and abandonment, additionally announced risks to the insurer, names of firms of the most acceptable insurers. See the commentary to article 41, paragraph 2.
The Convention does not contain standards in accordance with which the time of delivery of goods should be calculated. Determining the delivery time in the contract and indicating it in the waybill is optional, however, the parties to the contract of carriage have the right to determine and fix this indicator. However, the delivery time specified in the consignment note does not impose any financial obligations on the carrier, unless they are specifically mentioned in the contract of carriage.
As a European custom, when calculating the delivery time, the following standards for the daily mileage of a vehicle are used: 600 km when transporting goods on expressways, 450 km on ordinary highways, 400 km on the roads of the Commonwealth of Independent States.
The sender may transfer to the carrier any documents that contain additional, in comparison with the waybill, information about the cargo, sender, recipient, customs, which are the place of departure and destination, and others. Usually, all or some of the shipping documents (invoice, shipping specification, invoice-specification, product quality certificate, product origin certificate, conformity certificate, packing list, quarantine certificate, veterinary certificate, sanitary certificate and others), customs documents (TIR Carnet, cargo customs declaration etc.), insurance policies, bank guarantees and others. The conditions for entering information on the documents provided to the carrier into the consignment note are determined by the provisions of Article 11.
P.3. Any data, conditions and reservations entered by the parties to the contract of carriage must correspond to the actual state of affairs; instructions to the carrier must be able to be actually executed. In any case, the data entered on the consignment note must not contradict the mandatory norms of the Convention and the norms of the applicable national law.
The consignment note may include, for example, the timing of the vehicle, its loading and unloading, the route, the names of forwarding and agency companies representing the parties to the contract of carriage, their contact numbers, and so on.
Article 7
P.1. The sender bears liability for the completeness and accuracy of any information specified in the consignment note, with the exception of: the date and place of the consignment note, the name of the carrier and his address, as well as the presence of a clause in the consignment note in accordance with subparagraph j) of paragraph 1 of Article 6. However, the carrier must prove that his losses are caused by the fault of the sender, who incorrectly or incompletely issued the invoice. For example, if the sender indicated inaccurately on the invoice the place intended for the delivery of the goods, then the carrier must prove both the amount of damage and the fact that the damage was caused precisely by the incorrect address of the recipient indicated on the invoice.
P.2. Instructing the sender to other persons (sales representative, freight forwarder, carrier's agent, etc.) to draw up an invoice does not release him from responsibility for the completeness and correctness of the document. The sender will be released from liability if he proves that he did not instruct any third parties (including the carrier) to draw up an invoice on his behalf or enter any information into it.
P.3. The Convention is the only generally recognized normative act regulating the terms of the contract for the carriage of goods in international road traffic. As a rule, all waybills confirming contracts of carriage are drawn up in accordance with the provisions of the Convention (as evidenced by the abbreviations “CMR” on the forms) and contain the clause of subparagraph j) of paragraph 1 of Article 6. The jurisdiction of the Convention can be recognized by a court even in the absence of invoice of such a clause. If this leads to losses of the cargo owner (sender, recipient), then the carrier will be forced to compensate them in full without the right to apply exemptions and limitations of liability.
Article 8
P.1. If the carrier has not made any motivated reservations in the consignment note regarding the number of packages, their marking and numbering, as well as the external condition of the cargo and its packaging, there is a presumption that the information indicated by the sender, in accordance with the provisions of subparagraphs e) and p) of paragraph 1 of Article 6 are correct, and the cargo itself, at the time of its acceptance by the carrier, was in a commercially sound condition that complied with the conditions of transportation.
P.2. The validity of the carrier's reservations must be accepted in writing by the sender. Unilateral notes of the carrier in the consignment note such as "Accepted without counting the number of seats", "I was not present during loading" and so on do not have probative value. On the other hand, the refusal of the consignor to admit the obvious inconsistencies discovered by the carrier according to the data verified by him in accordance with paragraph 1 of Article 8 of the Convention may lead to negative consequences up to termination of the contract of carriage through the fault of the consignor.
The carrier may not fulfill his obligations in accordance with paragraph 1 of Article 8, if the cargo was transferred to him in a serviceable vehicle or container behind other people's serviceable seals (sender, forwarder, customs). In this case, the carrier is not responsible for the safety and condition of the cargo, but is only responsible for the proper condition of the vehicle or container and the integrity of seals and other security marks and devices.
P.3. The sender may require the carrier to check the mass (quantity) of the cargo, as well as the contents of the packages, so that subsequently the carrier cannot use the limitations of his liability. After performing these checks, the carrier will not be able to subsequently refer to the fact that he did not have reliable information about the mass, volume or quantity of the cargo he accepted, as well as that he did not know and could not know what kind of cargo was actually inside the declared places and what was his real condition at the time of the start of transportation. The results of the checks are recorded on the invoice and signed by the authorized representatives of the parties. The cost of inspection operations must be justified by the carrier and declared before the start of inspections.
Article 9
P.1. If the contract of carriage establishes the basic conditions for the relationship between its parties (the sender and the carrier), then each waybill not only confirms the existence of the contract, but also specifies each cargo flight. The term prima facie (at first glance) means that the consignment note will confirm the existence of a contract of carriage until proven otherwise.
In addition to the above function, the invoice performs another important function in commercial circulation. The international road carrier is not a party to the sale and purchase agreement, however, the waybill signed by him is one of the main bank documents. The fact of acceptance of the cargo by the carrier gives the consignment note the function of a document confirming the delivery of goods under sales contracts on the basic terms of FCA, CPT, CIP (according to Incoterms 2000). A clean invoice, that is, without the carrier's motivated reservations regarding the quantity, quality and condition of the cargo accepted by him, is submitted by the seller to the bank along with other necessary documents confirming the delivery of the goods on the terms established in the international sales contract.
The seller (sender) always shows interest in receiving exactly a clean invoice, regardless of the condition and quantity in which he transfers the goods to the carrier. The practice of so-called "guarantee letters of trust" is widely known and often used, in which the seller (sender) asks the carrier not to make any notes and reservations on the consignment note, regardless of the quantity, quality and condition of the cargo accepted by the latter.
If such a letter is accepted by the carrier, the seller undertakes to reimburse him for all costs associated with the issuance of such a “clean waybill”, namely: to reimburse the carrier for losses in the amount in which he paid the recipient (buyer) the cost of the obviously missing or damaged cargo and pay the carrier compensation for moral damage (harm) in a predetermined amount.
The practice of "guarantee letters of trust", which is a generally recognized international trade custom, has recently caused particular concern to the courts, due to the fact that it is a deliberate collusion between the seller and the carrier, directed against a third party - the buyer of the goods. If the carrier had not issued a clean invoice to the seller (sender), the seller would have been considered to have failed to fulfill its obligations under the international sales contract, would not have received payment for the goods and, possibly, would have paid the buyer the penalty amounts determined by such an agreement.
Usually, carriers agree to accept fiduciary guarantees only from those persons with whom they maintain long-term business relations, since if the seller fails to pay the carrier's monetary obligations under the letter, the latter cannot sue it in the judicial authorities (knowing collusion with the seller).
P.2. See comments on article 8, paragraph 3, and article 9, paragraph 1.
Article 10
If the carrier is financially liable for the goods, then the sender is liable to the carrier for damage that may be caused to the carrier or any other persons as a result of the transportation of goods both under contractual and non-contractual relations, that is, on the basis of a contract of carriage and norms applicable law.
The carrier may demand compensation for expenses and losses caused by the actions of the cargo owner due to improper packaging or packaging of the cargo, only in cases where he refers to packaging defects that he could not detect during an external visual inspection of the cargo.
For example, the carrier's losses were caused by damage to the car body due to the fact that the packages were not properly secured by the sender. In this case, it will be difficult for the carrier to prove the sender's fault, since the carrier had to evaluate the packaging defects and the quality of the fastening of packages during a visual inspection of the cargo at the time of its acceptance for transportation.
Article 11
P.1. As a rule, a bona fide carrier, interested in the proper performance of the contract without incurring additional costs and losses of its parties, informs the consignor of the content of this article of the Convention and informs him of the list required documents and information. See the commentary to subparagraph e) of paragraph 2 of Article 6.
P.2. The sender may ask the carrier to check the presence and completeness of the documents attached to the consignment note for compliance with their content in accordance with generally accepted customs and norms of international and national law, under whose jurisdiction the implementation of the contract of carriage falls. Even if the carrier has checked the attached shipping documents for the cargo and the parties have signed the appropriate clause in the consignment note, the sender still remains liable to the carrier for possible losses of the latter (imperative rule).
Most often, the carrier's losses are caused by the fact that the content of customs, payment documents and various kinds of certificates does not allow the inspecting national authorities (border, customs, sanitary, veterinary and others) to pass the cargo across the state border. However, the sender has the right to prove that the carrier's losses are caused by the latter's own fault (for example, the carrier lost the document attached and recorded in the invoice).
P.3. The amount of compensation due from him must not, however, exceed that which would be payable in the event of loss of the goods.
The sender is interested in the complete list of the attached shipping documents being included in the consignment note, due to the carrier's mandatory liability for their loss and misuse. The specific amount of losses associated with this is proved by the cargo owner (in the claim of the sender or recipient) and is determined by the court or arbitration, but cannot exceed the amount of compensation as for the total loss of the cargo or its part in accordance with the provisions of Article 23 of the Convention. Moreover, the claimant must prove that the loss or misuse of documents actually meant for the cargo owner the loss of the cargo itself or the inability to use it. The burden of proving the proper use of the documents attached to the consignment note lies with the carrier.
Article 12
P.1. Initially, only the sender is a contractually entitled person for the carrier. The carrier is obliged to fulfill any instructions of the sender within the framework established by the contract and applicable norms of international (including the Convention) and national law. Any indication of the sender must be realistically feasible at the place and time of its execution and must not cause damage to the parties to the contract of carriage and third parties. An additional indication of the performance of services not provided for by the contract is realized by the carrier for an additional fee, the amount of which is specifically agreed by the parties before the performance of the service.
The sender has the right to require the carrier to change the destination and (or) release the goods to another recipient only in the country of destination of the goods.
P.2. The recipient may enter into a contract of carriage and exercise his rights to dispose of the goods in those cases when he accepts the goods or documents for the goods from the carrier (including the second copy of the consignment note). If the goods are completely lost or are considered as such in accordance with the provisions of Articles 19 and 20, the recipient, on an equal footing with the sender, may demand compensation from the carrier if it appears from the content of the documents submitted to the carrier that he is the owner of the goods or has at least the right to dispose of them.
The instructions received by the carrier from the recipient cannot go beyond the scope of the work and services provided for in the contract of carriage, but only must specify them.
P.3. The sender may transfer all of his rights as a contractually entitled person to the recipient by means of an appropriate clause in the consignment note. Such a clause in the waybill, reflecting the right of the recipient only to dispose of the goods, corresponds transport conditions purchase and sale agreements concluded on the basis of EXW and FCA (according to Incoterms 2000), when the costs and risks of transporting the goods are borne by the buyer.
P.4. The terms "recipient" and "buyer" rarely refer to the same person. Most often, one person (buyer) buys goods and concludes an international sales contract, and another person (recipient) is the final consumer of such goods. In such cases, the contract of carriage indicates the buyer, who, exercising his right specified in this article of the Convention, instructs the carrier, after completing customs formalities, to hand over the goods to the direct recipient. Such an indication must be accompanied by the final payment for the carriage, taking into account the additional mileage and excess downtime of the vehicle. The final recipient of the goods is only obliged to accept the goods and cannot give any additional instructions to the carrier.
P.5. The invoice is not a document of title. With the help of an invoice, the seller (sender) cannot transfer ownership of the goods to the buyer (recipient), and he to any third party according to the transfer (assignment) inscription on the invoice. This means that the invoice cannot be endorsed. Therefore, a person wishing to exercise his rights to dispose of the goods must instruct the carrier regarding his further actions, in the (first) copy of the waybill, which carrier issued to the sender at the time of acceptance of the goods. Usually, the first copy of the waybill, after the transfer of bank payments for the goods to the seller under an international sales contract, is sent to the buyer, who, being the recipient, enters into it the appropriate instructions to the carrier. See commentary to article 9, paragraph 1.
When transporting several consignments in one vehicle, redirecting any of them should not increase the delivery time of others.
P.6. The carrier's refusal to comply with the instructions of the person entitled to dispose of the cargo (sender or recipient) must be motivated and documented.
P.7. If the carrier has not complied with the instructions of the person entitled under the contract within the limits of the duties previously assigned to the carrier, it is considered that he has improperly performed the contract of carriage.
The requirement to present the first copy of the waybill to the carrier makes sense only when the party entitled under the contract is the sender, and additional instructions to the carrier are given by the recipient. If the carrier follows the directions of the consignee without requiring the presentation of the first copy of the consignment note, he risks thereby causing damage to the sender and will be obliged to compensate him.
This can fully apply to customs operations with cargo. If, for example, the carrier did not receive any instructions from the sender, and then, at the oral instruction of the recipient, leaves the goods in a customs warehouse or terminal, then it is the carrier, and not customs Department, is responsible for both the safety of the cargo and its delivery.
The carrier that has released the cargo to a third party will be liable to the sender or recipient in the same amount as for the total loss of the entire cargo. The delivery of the goods to the customs authority of the place of destination does not mean the fulfillment by the carrier of his obligations under the contract, if the recipient did not note the fact of acceptance of the goods on the consignment note or such customs authority was not indicated on the consignment note as the final destination.
Article 13
P.1. The right of the recipient is declared to enter into a contract of carriage and dispose of the cargo after he accepts the cargo from the carrier and signs the second copy of the invoice. If the cargo is not delivered to the recipient, this does not limit his right to enter into a contract of carriage and, on the basis of this right, to present appropriate claims and claims to the carrier. See comments on articles 19 and 20.
P.2. The carrier has the right to exercise its lien on the cargo and not release it to the recipient until the latter has fully settled with the carrier for all work and services under the executed contract of carriage. The amount of debt is determined not only by the payments originally indicated on the invoice, but also by the actual cost additional work and services performed by the carrier for the benefit of the party entitled under the contract.
Article 14
P.1. The main reasons why the execution of the contract on the conditions specified in the consignment note becomes impossible for the carrier, it is necessary to include a forced change in the route of transportation due to closure or restriction bandwidth roads and changing the delivery time of the cargo due to queues at border crossings and customs control points. In addition, it is important for the carrier to change the cost of services for the implementation of the contract of carriage due to the increase in vehicle mileage and additionally collected fiscal payments in foreign territory.
P.2. The carrier shall notify the entitled person of the possibility of executing the contract of carriage on any other terms by means of means of communication or operations fixing the request. The concept of "reasonable time" means the time during which the sender or recipient has the opportunity to decide on the situation and give a response to the carrier. Generally, "reasonable time" is limited to the end of the first business day following the day on which the carrier's notice could have been received by that person.
If the carrier nevertheless decides to execute the contract of carriage on terms different from those specified in the consignment note, he will subsequently be obliged to prove to the person entitled under the contract that his actions were reasonable, expedient and aimed at ensuring the interests of this person. Only in this case, the carrier can claim reimbursement of its expenses in part uncovered by the amounts originally indicated in the waybill.
In order to exclude possible conflicts when drawing up a contract of carriage, the parties are advised to enter into it an appropriate clause on the basis of the provisions of this article of the Convention. It is possible, for example, to provide in the contract an article regulating the procedure for informing the entitled person by the carrier about changes in the essential terms of the contract, the timing and procedure for obtaining response instructions, the possible actions of the carrier in case of non-receipt of instructions, and so on.
Article 15
P.1. The main obstacles to the delivery of cargo after the vehicle arrives at the destination are: the recipient's refusal to accept the cargo for any reason (including due to the recipient's inability or desire to clear the cargo), the absence of the recipient at the specified address, incorrect or inaccurate delivery address, and more . The carrier must remember that it is the right, but not the obligation, of the recipient to accept the goods from him. The recipient has the right to refuse to accept the cargo, regardless of its condition, without explaining the reasons due to the fact that initially, before presenting evidence to the contrary, he is not a party to the contract of carriage.
When, after the carrier’s request about how he should dispose of the unclaimed consignee, the sender gave a definite answer, the carrier should act in accordance with the provisions of Article 12 (paragraphs 1, 5, 6, 7) of the Convention, but without requiring duplication of instructions in the first copy of the consignment note , which is optional in this case.
P.2. Until the carrier receives from the sender instructions that are opposite in content, the recipient retains the right to enter into a contract of carriage and accept the goods even if he previously refused it. If the sender instructs the carrier how he should further dispose of the goods, it is understood that the sender undertakes to reimburse the carrier for all costs associated with the proper implementation of the instructions given by him.
P.3. The carrier builds its relationship with the recipient as with the only person entitled under the contract of carriage according to the procedures provided for in paragraphs 1 and 2 of this article, in cases where the recipient, exercising his rights, instructed to hand over the goods to a “new” recipient, and the carrier at the same time there were obstacles.
Article 16
P.1. All amounts claimed for reimbursement of expenses must be substantiated and documented by the carrier.
P.2. If the carrier cannot deliver or hand over the goods to the recipient, then in the absence of instructions from the sender, he has the right to unload the goods. After that, the contract of carriage is considered fulfilled. As a rule, the place of unloading is most often a customs terminal or a warehouse, where uncleared cargo is deposited under its collateral value. A clean warehouse document (receipt, simple warehouse certificate, double warehouse certificate, warehouse receipt, etc.) accepted in the normal practice of such a customs terminal or warehouse will confirm the fulfillment by the carrier of his duties. The carrier is obliged to transfer the warehouse document to the person entitled under the contract after the latter has made all final payments for the work and services performed.
P.3. It is used in the practice of international road transport between the countries of the European Union (EU) due to the lack of customs clearance procedures for goods produced and consumed within the EU. When carrying out transportation to (from) the countries of the Commonwealth of Independent States, the provisions of this paragraph are practically inapplicable due to the fact that the ownership of the cargo never passes to the carrier and, therefore, he cannot make customs formalities and payments on his own behalf.
The exception is cases when, in addition to performing its main functions, the carrier is the forwarder of the sender.
P.4. The procedure to be followed in the sale is determined by the laws or customs in force at the place of sale.
Chapter IV. CARRIER'S LIABILITY
Article 17
P.1. « Golden Rule» imperative liability and presumption of guilt of any carrier of any mode of transport. The moment of acceptance of the goods is fixed by the date on the consignment note in accordance with subparagraph a) of paragraph 1 of Article 6. The moment of delivery of the goods is determined by the date on the consignment note, affixed in its second copy by the recipient upon receipt of the goods. The condition of the cargo at the time of acceptance for transportation and at the time of its delivery to the recipient is determined by:
The presence or absence of motivated reservations in the consignment note made by the carrier and the recipient, respectively;
The recognition of these reservations, respectively, by the sender and the carrier;
The content of the claim of the recipient, filed within the time limits, in accordance with the provisions of Article 30 of the Convention.
P.2. In case of total or partial loss, damage, damage to the cargo or delay in its delivery, the carrier is a priori guilty. The carrier may rebut the presumption of his guilt. The carrier will be released from liability if he proves the absence of his fault in relation to the subject of the claim for the following items:
1. The carrier may prove improper actions of the sender and / or recipient in cases where the loading, unloading, stowage and securing of cargo was carried out by the latter and caused damage, damage or loss of cargo. In addition, the carrier may refer to improper packaging and labeling of the cargo, to the fact that the cargo was incorrectly secured inside the container and packaging, and also to the fact that he accepted the vehicle or container with the cargo with someone else's seals.
2. Incorrect instructions given to the carrier, or the absence of such instructions, are considered to be omissions of the sender or recipient, the proof of which allows the carrier to exonerate himself from liability. However, the carrier must prove that it was this omission of the person entitled under the contract that caused the damage, damage or loss of the goods or delay in delivery.
3. The carrier is given the opportunity to prove that damage, deterioration or loss of cargo occurred due to the special natural properties of the cargo, that is, those that are inherent in the cargo by nature (spontaneous combustion, corrosion, insects, etc.).
4. The carrier will be released from liability if he proves that the commercial failure of the goods or the violation of the delivery time occurred due to force majeure circumstances, that is, those that the carrier could not foresee and overcome. In relation to the contract of carriage, force majeure circumstances, as a rule, include fires, natural disasters, a ban on the export or import of transported goods, the closure of state borders, border crossings, highways, gangster actions, any types of wars and damage to goods by weapons of war, strikes, people's unrest, confiscation and liquidation actions of military and civil authorities, nuclear explosion and radiation contamination, as well as other circumstances beyond the reasonable control of the parties to the agreement. In case of reference to force majeure, the carrier must submit an appropriate certificate from the Chamber of Commerce and Industry (CCI).
P.3. The carrier must always operate only a technically sound vehicle. In case of damage, deterioration, total or partial loss of cargo, as well as in case of violation of the terms of its delivery, the carrier cannot invoke the articles of the Convention that limit or exclude his liability, unless he proves that by the time the voyage began, the vehicle he was operating was in a technically sound condition .
P.4. Here is a list of specific risks, referring to which the carrier can be released from liability if he proves that at least one of these risks caused damage, damage or loss of cargo.
1. The right to choose a vehicle belongs to the sender. If he chose an open rolling stock, then he thereby exposes the cargo carried on it to natural hazards (precipitation, humidity, solar radiation, etc.). In the modern practice of international settlements under documentary letters of credit and collection, the presentation to the bank of a clean bill of lading for goods transported on an open vehicle is not a confirmation of the seller's fulfillment of his obligations under an international contract of sale, if such a method of delivery of goods was not agreed in advance between the seller, buyer and bank.
2. Lack of packaging for cargo, which, when transported without packaging, may be subject to damage or deterioration, should be qualified as improper actions of the sender that do not ensure the safety of the cargo presented for transportation. The carrier may refer to defects in packaging that led to damage or damage to the goods, if these defects could not be detected during a visual inspection of the goods at the time of its acceptance for carriage.
3. The listed risks may be associated by the carrier with damage or deterioration of the cargo, attributing them to improper actions of the sender.
4. Those special natural properties of the cargo are listed, which the carrier can refer to, proving the absence of his fault in case of damage or damage to the cargo. Identification of special natural properties should be correlated with the delivery time of the cargo and the care of the cargo by the carrier in order to reduce the amount of damage. See the commentary to article 17, paragraph 2.
5. Insufficiency or insufficiency of marking or numbering of packages can be attributed to both actions and omissions of the consignor. It is very difficult for the carrier to invoke this limitation of his liability, since, in accordance with paragraph 1 of Article 8, he was obliged at the time of acceptance of the goods for carriage to check the marking and numbering of packages.
6. This refers to the death of animals for which the usual conditions of road transport are not natural for life and can cause death. The burden of proving the reasons for the death of animals lies with the carrier.
P.5. If the carrier cannot prove the complete absence of his fault and transfers only part of the damage to the sender or recipient, then the remaining part of the damage must be reimbursed by him.
Article 18
P.1. The a priori imperative fault of the carrier is declared for damage, damage or loss of cargo or delay in its delivery and the carrier's right to prove the opposite if he wishes to be released or limited in liability.
P.2. For the parties to the contract of carriage, there are four main principles of proving that the violation of carriage was not due to his fault.
First principle. The carrier is prima facie liable for loss of or damage to goods accepted for carriage in good condition but unloaded short or damaged. The evidence is rebuttable, that is, the carrier bears the burden of providing evidence rebutting the presumption.
Second principle. The parties are usually required to prove the circumstances of the case under consideration, information about which is available to them or could be available. The carrier bears the main burden of proof, since the goods were either in his direct possession or in the possession of his servants and agents. On the other hand, the sender knows how the goods were produced or assembled, what their special properties are, and how they were packaged. The sender controls the loading and has the burden of proving the condition of the goods at the time of loading. The recipient, accordingly, proves the condition of the cargo at the time of unloading.
Third principle. The burden of proof does not mean that all circumstances must be proven up to the point of absurdity, but rather the presentation of evidence within reasonable limits. Even the rebuttal of the presumption of liability requires nothing more than the presentation of some evidence to the contrary.
For example, the fact that 80% of the cargo was in good condition when unloaded is proof that all the cargo was in good condition when loaded, as evidenced by the absence of clauses on the waybill when the cargo was received.
Fourth principle. The evidence of the side that hides the facts is questioned. As a rule, courts, as soon as concealment of facts, forgery or erasure of documents, etc., are discovered, cast doubt on the rest of the evidence.
According to the existing judicial and arbitration practice, the procedure for proving claims and claims, that is, claims for cargo, is almost identical in all countries of the world. An example proof procedure is as follows.
1. The plaintiff (sender or recipient) must consistently prove that:
1.1. Is the owner of the cargo and/or the person having the right to bring a claim.
1.2. The basis for filing a claim is a breach of contract or law.
1.3. The person who is being sued is the person responsible for the damage caused.
1.4. The loss or damage to the cargo occurred while it was at the disposal of the carrier. This is usually done by proving the condition of the goods when they were accepted by the carrier and their condition when unloaded.
1.5. The amount of loss or damage in physical terms (examination of the CCI).
1.6. The actual amount of loss or damage in monetary terms (examination of the CCI).
2. The carrier must prove:
2.1. The reason for the damage.
2.2. Showing due diligence to bring the vehicle into a technically sound condition by the time the flight starts.
2.3. The fact that he takes care of the cargo in order to reduce the amount of damage in the interests of the person entitled under the contract.
2.4. One of the causes of damage, exempting him from liability.
3. The parties present the circumstances and evidence relevant to the case and available to them.
P.3. The choice by the consignor of an open rolling stock for the transportation of cargo cannot be the only reason for the complete loss of one or more packages. To prove the absence of his fault, the carrier must refer to other accompanying reasons, for example, incorrect packing and improper fastening of the cargo by the sender in the vehicle, force majeure, and more. See the commentary to article 17, paragraph 4.
P.4. The obligations of the carrier stipulated in the waybill and in the contract of carriage to use during transportation special equipment, the use of which prevents the manifestation of special natural properties of the cargo (corrosion, decay, shrinkage, etc.), deprive the carrier of the opportunity to invoke the exclusion or limitation of his liability, unless he proves that the type of such special equipment has been chosen or agreed upon with the sender, and that the equipment itself has been used and maintained properly.
P.5. In the event of the death of transported animals, the carrier will be released from liability only if he proves that he fully and exactly complied with all special instructions sender or recipient. The procedure for such proof is very complicated. Transportation of animals accompanied by a representative of the sender or recipient actually relieves the carrier of responsibility for the death of animals.
Article 19
The delivery time can be set in any way by the parties to the contract of carriage and indicated in the waybill. Usually, an agreed date is indicated, after which the contract provides for penalties to the carrier (usually, for each day of delay in delivery). See the commentary to subparagraph f) of paragraph 2 of Article 6.
The absence of an agreement between the parties on this issue, however, makes it possible to determine the deadline for the delivery of cargo for each specific flight. If the delivery time is not indicated on the consignment note, then in order to determine whether the carrier delivered the goods on time or not, it is necessary to establish what time should be considered reasonable for performing a specific transportation on a specific route in specific circumstances. For this, the shortest transportation distance, the daily mileage standard, the presence of queues at border crossings, the criminal situation on the delivery route, the repair and temporary closure of certain sections of roads, the waiting time for including a vehicle in a convoy, the impact of atmospheric phenomena on the condition of the road surface, etc. are taken into account. .
If the carrier, taking into account the assumptions of the most unfavorable conditions, does not exceed the maximum time parameters for each phase of the route, then his actions will be recognized as reasonable. A bona fide carrier, in this context, should be considered one who can prove that he has made every effort to minimize the delivery time, fully following the instructions and instructions of the sender (recipient), observing international and national laws, procedures, rules and taking care of the cargo in interests of the person entitled under the contract.
Article 20
P.1. In order for the recipient not to miss the deadlines for submitting a claim in full, that is, as for a completely lost (not delivered) cargo, he must know what specific delivery time is indicated on the invoice or when the cargo was accepted by the carrier. The recipient, in case of non-delivery of the goods to him, has the right to present claims to the carrier on the basis of paragraph 1 of Article 13 of the Convention and within the time limits specified by the parties to the contract or on the basis of the applicable law, if an agreement on this has not been established. The recipient must attach the first copy of the invoice to the claim. See commentary on article 30.
P.2. If the carrier paid compensation for the undelivered cargo as for completely lost, the recipient may reserve the right to dispose of it if the cargo is found within one year after the carrier transfers the funds for the cargo to the recipient. An application confirming such a right must be accepted and recorded by the carrier, which imposes on him the obligation to notify the recipient of the found cargo.
P.3. Submission by the recipient to the carrier of an application for possible return he does not impose, however, on the former the obligation to accept the goods, and does not require an explanation of the reasons for such a decision.
Having accepted the found cargo, the recipient must return to the carrier the amounts previously received from him. The recipient, as a rule, takes advantage of this opportunity when the contract of carriage stipulates significant penalties for each day of delay in delivery.
P.4. If the recipient has made the final decision to consider the cargo not delivered to him as completely lost, that is, he did not leave the carrier a statement about the possible return of the found cargo to him (See paragraph 2 of this article), and received an appropriate compensation for it, the carrier has the right to independently dispose of the subsequently found cargo.
Article 22
P.1. The procedure for concluding and executing the contract, as well as the regulation of the conditions for the carriage of dangerous goods in international road traffic are defined in the European Agreement on the International Carriage of Dangerous Goods by Road (ADR) of September 30, 1957, which entered into force on January 29, 1969.
If dangerous goods are transported on the basis of the terms of this Convention, then this imposes on the consignor an additional responsibility for the completeness of the submission to the carrier of the documents and information reflected in the consignment note regarding the properties of the goods, the nature of the danger posed by it, the necessary precautions when handling such goods. To absolve itself of liability for damage, deterioration, total or partial loss of dangerous goods, it is enough for the carrier to prove the consignor's omissions when he provides instructions on the consignment note regarding the danger of the goods and the risks that may arise in the course of its international transportation.
P.2. Non-compliance by the consignor with the requirements of paragraph 1 of this article may lead to the destruction of the cargo with subsequent demands from the carrier to reimburse him for all expenses associated with the unloading of the dangerous cargo and its neutralization. In addition, the sender may be subject to claims for damages related to damage to the vehicle carrying the dangerous goods. Unless otherwise specified in the contract of carriage, the carrier may immediately bring a claim in the appropriate court or arbitration without going through the claim procedure for a preliminary dispute resolution.
Preamble
States Parties to this Convention,
reaffirming, its conviction that international trade on the basis of equality and mutual benefit is an important element in promoting the development of friendly relations among States,
convinced that the progressive harmonization and unification of the law of international trade, by reducing or eliminating legal barriers to international trade contribute to a large extent to general economic cooperation among all states on the basis of equality, justice and common interests, as well as to the well-being of all peoples,
recognizing significant contribution of the International Convention for the Unification of Certain Rules Relating to Bills of Lading, signed at Brussels on August 25, 1924, and its protocols, as well as, signed at Hamburg on March 31, 1978, in harmonizing the law governing the carriage of goods by sea,
Considering the technological and commercial changes that have taken place since the adoption of these conventions and the need to consolidate and modernize them,
noting that shippers and carriers cannot benefit from a binding general regime that would support the performance of contracts of carriage by sea using other modes of transport,
assuming that the adoption of uniform rules governing international contracts of wholly or partly maritime transport would contribute to legal certainty, enhance the efficiency of the international transport of goods, and promote new access opportunities for previously distant parties and markets, and thus play a critical role in facilitating trade and economic development at both the national and international levels,
agreed about the following:
Chapter 1. General Provisions
Article 1
Definitions
For the purposes of this Convention:
1. "Contract of carriage" means a contract under which the carrier undertakes, in return for the payment of freight, to transport goods from one place to another. Such an agreement provides for carriage by sea and may provide for carriage by other modes of transport in addition to sea carriage.
2. "Contract for the organization of transportation" means a contract of carriage, which provides for the carriage of a specified quantity of goods in a series of consignments within an agreed period. Such indication of the amount of cargo may include a minimum quantity, a maximum quantity, or a specific range.
3. "Liner" means a transport service which is offered to the public by means of publication or in a similar manner, and includes transport by ships on regular schedules between specified ports in accordance with publicly available voyage schedules.
4. "Non-liner transportation" means any transportation that is not a liner transportation.
5. "Carrier" means a person who enters into a contract of carriage with a shipper.
a)"Performing Party" means any person, other than the carrier, who performs or undertakes to perform any of the carrier's obligations under the contract of carriage in respect of the receipt, loading, handling, stowage, carriage, care of, unloading or delivery of the goods, to the extent in which such person acts, directly or indirectly, at the request of the carrier or under the supervision or control of the carrier.
b)"Performing party" does not include any person who is employed, directly or indirectly, by a shipper, documentary shipper, controlling party, or consignee, and not by a carrier.
7. "Marine performing party" means a performing party to the extent that it fulfills or undertakes to fulfill any obligations of the carrier between the arrival of the cargo at the ship's port of loading and its departure from the ship's port of discharge. A land carrier is a maritime performing party only if it performs or undertakes to perform its services exclusively in the port area.
8. "Consignor" means a person who enters into a contract of carriage with a carrier.
9. "Documentary shipper" means a person, other than the shipper, who agrees to be named "shipper" in a transport document or electronic transport record.
10. "Holder" means:
a) the person who is in possession of a negotiable transport document, and
i) if the document is a warrant document, is identified therein as the shipper or consignee, or is the person to whom the document is duly endorsed, or
ii) if the document is a blank endorsed order document or a bearer document, is the bearer of such document; or
b) a person to whom a negotiable electronic transport record has been issued or transferred in accordance with the procedures provided for in paragraph 1 of Article 9.
11. "Consignee" means the person entitled to receive the goods in accordance with the contract of carriage or transport document or electronic transport record.
12. "Right of control over the goods" means the right under the contract of carriage to give instructions to the carrier in respect of the goods in accordance with chapter 10.
13. "Controlling Party" means the person who, in accordance with Article 51, has the right to control the cargo.
14. "Transport document" means a document issued under a contract of carriage by a carrier and which:
a)
b)
15. "Negotiable transport document" means a transport document which, by means of language such as "to order" or "negotiable" or other appropriate language recognized in the law applicable to such documents, as having similar effect, that the goods have been sent to the order of the shipper, the order of the consignee or the bearer, and which does not expressly state that it is "non-negotiable" or "non-transferable".
16. "Non-negotiable transport document" means a transport document other than a negotiable transport document.
17. "Electronic message" means information prepared, sent, received or stored by electronic, optical, digital or similar means, as a result of which the transmitted information is available for its subsequent use.
18. "Electronic transport record" means information contained in one or more messages that have been transmitted electronically by a carrier pursuant to a contract of carriage, including information logically linked to an electronic transport record as a result of inclusion as attachments or otherwise linked with an electronic transport record at the same time as it is issued or after it is issued by the carrier in order to make it part of an electronic transport record that:
a) testifies to the receipt by the carrier or the performing party of the goods in accordance with the contract of carriage; and
b) indicates the existence of a contract of carriage or contains such a contract.
19. "Negotiable electronic transport record" means an electronic transport record:
a) which, by means of such language as "order" or "negotiable", or other appropriate language recognized in the law applicable to such records, as having similar effect, indicates that the goods were sent to the order of the shipper or the order of the consignee, and in which is not expressly stated to be "non-negotiable" or "non-transferable"; and
b) which is used in accordance with the requirements of paragraph 1 of Article 9.
20. "Non-negotiable electronic transport record" means an electronic transport record that is not a negotiable electronic transport record.
21. "Issue" of a negotiable electronic transport record means the issuance of such a record in accordance with procedures that ensure that the record remains under exclusive control from the time it is created until it ceases to be valid or valid.
22. "Transfer" of a negotiable electronic transport record means the transfer of exclusive control over such record.
23. "Contractual terms" means any information relating to a contract of carriage or cargo (including provisions, indications, signatures and endorsements) contained in a transport document or electronic transport record.
24. "Cargo" means property, goods and articles of any kind which the carrier undertakes to carry under the contract of carriage and includes packaging and any equipment and container not provided by or on behalf of the carrier.
25. "Vessel" means any vessel used for the carriage of goods by sea.
26. "Container" means any type of freight container, a transportable tank or flatbed, a swap body or any similar packaging used to consolidate cargo, and any accessory to such a container.
27. "Vehicle" means a road or rail freight vehicle.
28. "Freight" means the consideration paid to the carrier for the carriage of goods in accordance with the contract of carriage.
29. "Domicile" means
a) the place where any company or other legal person or association of natural or legal persons has its
i) the statutory seat or the place of incorporation, or the seat of the central registered office, as applicable,
ii) the seat of the central administration, or
iii) place of business, and
b) habitual residence of an individual.
30. "Competent court" means a court in a Contracting State which, in accordance with the rules on the internal distribution of competence between the courts of that State, may exercise jurisdiction in a dispute.
Article 2
Interpretation of this Convention
In interpreting this Convention, regard shall be had to its international character and the need to promote uniformity in its application and the exercise of good faith in international trade.
Article 3
Form Requirements
Notifications, confirmation, consent, agreement, declaration and other communications referred to in paragraph 2 of Article 19, paragraphs 1-4 of Article 23, subparagraphs b, With and d paragraph 1 of article 36, subparagraph b article 40, paragraph 4, article 44, article 48, paragraph 3, subparagraph b Article 51, paragraph 1, Article 59, paragraph 1, Article 63, Article 66, Article 67, paragraph 2, Article 75, paragraph 4, and Article 80, paragraphs 2 and 5, must be in writing. Electronic communications may be used for these purposes provided that such medium is used with the consent of the person sending it and the person to whom it is sent.
Article 4
Applicability of objections and limits of liability
1. Any provision of this Convention which may provide for the defense or limitation of the carrier's liability shall apply in any legal or arbitration proceeding, whether in contract, tort or otherwise, for loss, damage or delay in the delivery of the goods covered by the contract of carriage, or the breach of any other obligation under this Convention in respect of:
a) carrier or maritime performing party;
b) the captain, crew or any other person who performs services on board the vessel; or
With) employees of the carrier or maritime performing party.
2. Any provision of this Convention which may provide for an objection to a shipper or a documentary shipper shall apply in any legal or arbitration proceeding, whether in contract, tort or other cause, brought against the shipper, documentary shipper or their contractors, agents or employees.
Chapter 2 Scope
Article 5
General scope
1. Subject to the provisions of Article 6, this Convention shall apply to contracts of carriage in which the place of receipt of the goods and the place of delivery of the goods are in different States, and the port of loading for a carriage by sea and the port of discharge for the same carriage by sea are in different States, if, according to the contract of carriage any one of the following places is located in a Contracting State:
a) place of receipt of the goods;
b) loading port;
With) place of delivery of goods; or
d) unloading port.
2. This Convention shall apply without regard to the nationality of the ship, carrier, performing parties, shipper, consignee or any other party concerned.
Article 6
Specific exceptions
1. This Convention shall not apply to the following liner contracts:
a) charters; and
b) other contracts for the use of the ship or any space on it.
2. This Convention shall not apply to contracts of carriage in non-liner carriage unless:
a) there is no charter or other agreement between the parties for the use of the ship or any space on it; and
b) a transport document or electronic transport record has been issued.
Article 7
Application to certain parties
Notwithstanding the provisions of Article 6, this Convention shall apply between a carrier and a consignee, controlling party or holder who is not the original party to a charter or other contract of carriage excluded from the scope of this Convention. However, this Convention does not apply between the original parties to a contract of carriage excluded under article 6.
Chapter 3 Electronic transport records
Article 8
Use and implications of electronic transport records
Subject to the requirements set out in this Convention:
a) anything to be included in a transport document in accordance with this Convention may be recorded in an electronic transport record, provided that the issuance or subsequent use of the electronic transport record is subject to the consent of the carrier and the shipper; and
b) the issuance of, exclusive control of, or transfer of an electronic transport record has the same effects as the issuance, possession, or transfer of a transport document.
Article 9
Procedures for the use of negotiable electronic transport records
1. The use of a negotiable electronic transport record shall be carried out in accordance with procedures that provide for:
a) the method of issue and transfer of this record to the intended holder;
b) confirmation regarding the preservation of the integrity of the negotiable electronic transport record;
With) the manner in which the holder is able to demonstrate that he is such a holder; and
d) method of sending confirmation that the delivery of the goods to the holder has been made or that, in accordance with paragraph 2 of Article 10 or subparagraphs a(ii) and With article 47, paragraph 1, the electronic transport record has completely lost its legal force or validity.
2. The procedures provided for in paragraph 1 of this article shall be specified in the contractual terms and conditions and provide for the possibility of unhindered certification.
Article 10
Replacement of negotiable transport document or negotiable electronic transport record
1. If a negotiable transport document is issued and the carrier and holder agree to replace that document with a negotiable electronic transport record:
a) the holder hands over the negotiable transport document or all copies thereof, if more than one copy has been issued, to the carrier;
b) the carrier shall issue to the holder a negotiable electronic transport record containing a statement that it replaces the negotiable transport document; and
With) The negotiable transport document then loses its legal effect or validity.
2. If a negotiable electronic transport record is issued and the carrier and holder agree to replace that electronic transport record with a negotiable transport document:
a) instead of the electronic transport record, the carrier issues to the holder a negotiable transport document containing a statement that it replaces the negotiable electronic transport record; and
b) the electronic transport record then loses legal force or validity.
Chapter 4 Obligations of the carrier
Article 11
Transportation and delivery of cargo
The carrier, subject to the provisions of this Convention and in accordance with the terms of the contract of carriage, shall carry the goods to the place of destination and deliver them to the consignee.
Article 12
Carrier's liability period
1. The period of liability of the carrier for the goods under this Convention shall commence on the date the carrier or performing party receives the goods for carriage and shall end on the delivery of the goods.
a) If the laws or regulations of the place of receipt of the goods require that the goods be handed over to any authority or other third party from which the carrier may collect them, the carrier's liability period begins when the carrier receives the goods from that authority or other third party.
b) If the laws or regulations of the place of delivery require the carrier to hand over the goods to any authority or other third party from which the consignee can obtain them, the carrier's liability period ends when the carrier hands over the goods to that authority or other third party.
3. For the purpose of determining the period of liability of the carrier, the parties may agree on the moment and place of receipt and delivery of the goods, but a provision in the contract of carriage is void to the extent that it provides that:
a) the moment of receipt of the cargo occurs after the start of its initial loading in accordance with the contract of carriage; or
b) the moment of delivery of the cargo occurs before the completion of its final unloading in accordance with the contract of carriage.
Article 13
Specific Commitments
1. The carrier, during the period of his responsibility as defined in Article 12 and subject to Article 26, shall ensure that the goods are properly and carefully received, loaded, handled, stowed, transported, stored, cared for, unloaded and delivered.
2. Notwithstanding the provisions of paragraph 1 of this article, and without prejudice to the other provisions of chapter 4 and chapters 5 to 7, the carrier and the shipper may agree that the loading, handling, stowage or unloading of the goods shall be carried out by the shipper, the documentary shipper or the consignee. Such an agreement is specified in the contractual terms.
Article 14
Specific obligations applicable to sea voyage
The carrier is obliged before, at the beginning and during the sea voyage to exercise due diligence in order to:
a) ensuring and maintaining the seaworthiness of the ship;
b) properly manning, equipping and supplying the ship and maintaining such manning, equipping and supplying the ship during the entire voyage; and
With) ensuring and maintaining the proper condition and safety of the holds and all other parts of the ship on which the cargo is carried, as well as any containers provided by the carrier in which or on which the cargo is carried, for the purpose of receiving, transporting and securing it.
Article 15
Cargo that can become dangerous
Notwithstanding the provisions of Articles 11 and 13, the carrier or performing party may refuse to receive or load the goods and may take such other measures as are reasonable, including unloading, destroying or rendering harmless the goods, if the goods in question represent or may reasonably be expected to will present a real danger to people, property or the environment during the carrier's liability period.
Article 16
Cargo donation during sea voyage
Notwithstanding the provisions of Articles 11, 13 and 14, a carrier or performing party may sacrifice the goods at sea if such sacrifice is reasonably made in the interests of the general safety or for the protection against threat to human life or other property which is part of a single undertaking.
Chapter 5. Liability of the carrier for loss, damage or delay in delivery of goods
Article 17
Grounds for liability
1. The carrier shall be liable for loss of or damage to goods, as well as delay in delivery, if the claimant proves that the loss, damage or delay, or the event or circumstance that caused or contributed to them, took place during the period of the carrier's liability, as defined in chapter four.
2. The carrier shall be exempted in whole or in part from liability under paragraph 1 of this article if he proves that the cause or one of the causes of the loss, damage or delay cannot be attributed to him or any person referred to in article 18.
3. The carrier shall also be exempted in whole or in part from liability under paragraph 1 of this article if, as an alternative to proving no fault as provided in paragraph 2 of this article, he proves that the loss, damage or delay was caused or contributed to by one or more of the following events or circumstances:
a) irresistible force;
b) risks, dangers and accidents at sea or in other navigable waters;
c) war, hostilities, armed conflicts, piracy, terrorism, uprisings and civil unrest;
d) quarantine restrictions; government intervention, government agencies, rulers or peoples or obstacles created by them, including detention, arrest or confiscation through no fault of the carrier or any person referred to in article 18;
e) strikes, lockouts, suspensions or delays in work;
f) fire on board;
g) hidden defects that cannot be detected with the exercise of reasonable care;
h) act or omission by the shipper, documentary shipper, controlling party or any other person for whose actions the shipper or documentary shipper is liable under article 33 or 34;
i) loading, handling, stowage or unloading of cargo carried out pursuant to an agreement reached in accordance with article 13, paragraph 2, unless the carrier or performing party is carrying out such activities on behalf of the shipper, documentary shipper or consignee;
j) loss of volume or weight or any other loss or damage arising from inherent defects in the goods, properties or hidden defects of the goods;
k) insufficiency or poor condition of packaging or labeling, which is not produced by the carrier or not on his behalf;
l) rescue or attempted rescue of life at sea;
m) reasonable salvage measures or attempts to salvage property at sea;
n) reasonable measures or attempts to avoid damage to the environment; or
o) actions of the carrier in the exercise of the powers provided for in articles 15 and 16.
4. Notwithstanding the provisions of paragraph 3 of this article, the carrier shall be liable for all or part of the loss, damage or delay:
a) if the claimant proves that the fault of the carrier or any person referred to in Article 18 caused or contributed to the event or circumstance invoked by the carrier; or
b) if the claimant proves that another event or circumstance not listed in paragraph 3 of this article contributed to the loss, damage or delay, and the carrier cannot show that this event or circumstance cannot be attributed to him or any person named in article 18.
5. Notwithstanding the provisions of paragraph 3 of this article, the carrier shall also be liable for all or part of the loss, damage or delay if:
a) the claimant will prove that the loss, damage or delay was caused or is likely to be caused or contributed to
i) unseaworthiness of the ship;
(ii) improper manning, equipment or supplies of the ship; or
(iii) the fact that the holds or other parts of the ship in which the cargo is carried, and any containers provided by the carrier in which or in which the cargo is carried, were not in proper or safe condition for the receipt, carriage and storage of the cargo; and
b) the carrier cannot prove that
i) the loss, damage or delay was not caused by any of the events or circumstances referred to in subparagraph a paragraph 5 of this article, or that
ii) he has complied with his obligation to exercise due diligence under article 14.
6. When a carrier is partially exempted from liability under this article, the carrier shall be liable only to the extent that such loss, damage or delay can be attributed to the event or circumstance for which he is liable under this article.
Article 18
Carrier's liability for other persons
The carrier is liable for breach of its obligations under this Convention caused by acts or omissions:
a) any performing party;
b) the captain or crew of the vessel;
c) employees of the carrier or performing party; or
d) any other person who performs or undertakes to perform any of the carrier's obligations under the contract of carriage, to the extent that that person is acting, directly or indirectly, at the carrier's request or under the carrier's supervision or control.
Article 19
Liability of maritime performing parties
1. A maritime performing party shall be bound by the obligations and responsibilities incumbent on the carrier under this Convention and shall be entitled to the defenses and limits of liability of the carrier provided for in this Convention if:
a) the maritime performing party has received the cargo for carriage in a Contracting State or delivered it in a Contracting State, or has carried out arrangements with respect to the cargo in one of the ports of a Contracting State; and
b) the event that caused the loss, damage or delay has occurred:
i) during the period between the arrival of the cargo at the ship's port of loading and its departure from the ship's port of discharge;
(ii) when the goods were in its custody; or
iii) at any other time, to the extent that she participated in the implementation of any activities provided for in the contract of carriage.
2. If the carrier agrees to assume any obligations other than those incumbent on the carrier under this Convention, or agrees that his liability exceeds the limits specified in accordance with this Convention, then the maritime performing party is not bound such consent, unless it expressly agrees to accept such obligations or such wider limits of liability.
3. The maritime performing party shall be liable for breach of its obligations under this Convention caused by the acts or omissions of any person to whom it has entrusted the performance of any of the carrier's obligations under the contract of carriage in accordance with the conditions provided for in paragraph 1 of this article.
4. Nothing in this Convention shall impose liability on the master or crew of a ship or on any servant of the carrier or maritime performing party.
Article 20
Joint responsibility
1. If the carrier and one or more maritime performing parties are liable for loss, damage or delay in delivery of the goods, their liability shall be joint and several, but only to the extent provided for in accordance with this Convention.
2. Without prejudice to the provisions of article 61, the aggregate liability of all such persons shall not exceed the total limits of liability under this Convention.
Article 21
Delivery delay
A delay in delivery occurs when the goods are not delivered at the place of destination stipulated in the contract of carriage before the expiration of the agreed period.
Article 22
Compensation calculation
1. Subject to the provisions of Article 59, the amount of compensation payable by the carrier for loss of or damage to goods shall be calculated by reference to the value of such goods at the place and at the time of delivery of the goods established in accordance with Article 43.
2. The value of a consignment shall be determined on the basis of the exchange price or, in its absence, on the basis of the market price or, in the absence of both the exchange price and the market price, by reference to the normal value of goods of the same kind and quality at the place of delivery.
3. In case of loss of or damage to the goods, the carrier shall not be liable for the payment of any compensation in excess of that provided for in paragraphs 1 and 2 of this article, except in cases where the carrier and the shipper have agreed to calculate compensation in another way within the limits specified in chapter 16.
Article 23
Notice in case of loss, damage or delay
1. In the absence of proof to the contrary, the carrier shall be deemed to have delivered the goods as described in the contractual terms, unless notice, in the event of loss or damage to the goods, indicating the general nature of such loss or damage, is given to the carrier or performing party who delivered the goods. , before or at the time of delivery or, if the loss or damage is not obvious, within seven working days at the place of delivery after delivery of the goods.
2. Failure to give the notice referred to in this article to the carrier or performing party shall not affect the right to claim compensation for loss of or damage to goods under this Convention, nor shall it affect the burden of proof provided for in article 17.
3. The notification referred to in this article shall not be required in respect of loss or damage established during a joint inspection of the cargo by the person to whom it was delivered and the carrier or maritime performing party in charge.
4. No compensation for delay shall be payable if notice of damage due to delay is not given to the carrier within twenty-one calendar day after delivery of the goods.
5. If the notice referred to in this article is given to the performing party who delivered the goods, it shall have the same effect as if it had been given to the carrier, and the notice given to the carrier shall have the same effect as if it had been given to maritime performing party.
6. In the event of any actual or perceived loss or damage, the parties to the dispute shall afford each other every reasonable opportunity to inspect and account for the goods and shall provide access to records and documents relating to the carriage of the goods.
Chapter 6. Additional provisions concerning specific stages of transport
Article 24
Off Course
If, under applicable law, a ship's course deviation constitutes a breach of the carrier's obligations, such deviation shall not in itself deprive the carrier or the maritime performing party of any objection or limitation provided for in this Convention, except to the extent provided for in article 61.
Article 25
Deck cargo on ships
1. Cargo may be transported on the deck of a ship only if:
a) such carriage is required by law;
b) it is carried in or on containers or vehicles which are adapted for carriage on deck and the deck is specially adapted for the carriage of such containers or vehicles; or
c) carriage on deck shall be in accordance with the contract of carriage or the customs, usages or practices of the industry.
2. The provisions of this Convention relating to the liability of the carrier shall apply to loss of, damage to or delay in delivery of goods carried on deck in accordance with paragraph 1 of this article, but the carrier shall not be liable for loss of, damage to, or delay in delivery of such goods, which are caused by the special risks associated with its carriage on deck, if the goods are carried in accordance with subparagraphs a or With paragraph 1 of this article.
3. If the goods have been carried on deck in cases other than those permitted under paragraph 1 of this article, the carrier shall be liable for loss of or damage to the goods, or delay in delivery, which is caused solely by their carriage on deck, and shall not be entitled to objections provided for in Article 17.
4. The carrier may not invoke subparagraph (c) of paragraph 1 of this article against a third party who has acquired a negotiable transport document or negotiable electronic transport record in good faith, unless the contractual terms state that the goods may be carried on deck.
5. If the carrier and the shipper have expressly agreed that the goods will be carried in the hold, then the carrier shall not be entitled to use the limitation of his liability for any loss, damage or delay in delivery of the goods to the extent that such loss, damage or delay is caused by its carriage on deck.
Article 26
Transportation before or after sea transportation
If the loss of or damage to the goods, or an event or circumstance causing a delay in their delivery, occurs during the period of the carrier's liability, but only before it has been loaded on board or only after it has been unloaded from the ship, the provisions of this Convention shall not prevail over with the provisions of another international instrument which, at the time of such loss, damage, or event or circumstance leading to delay:
a) in accordance with the provisions of such an international instrument would apply to all or any of the activities of the carrier if the shipper has entered into a separate and direct contract with the carrier relating to the specific stage of carriage at which the loss of or damage to the goods or an event or circumstance leading to a delay in its surrender;
b) specifically provide for the carrier's liability, limitation of liability or time limit for filing a claim; and
With) cannot be violated on the basis of the contract either at all, or to the detriment of the shipper according to such document.
Chapter 7. Obligations of the consignor to the carrier
Article 27
Delivery of cargo for transportation
1. Unless otherwise agreed in the contract of carriage, the consignor delivers the goods ready for carriage. In any case, the shipper delivers the goods in such a condition that they will withstand the intended carriage, including their loading, handling, stowage, lashing and securing, and unloading, and that they will not cause harm to persons or property.
2. The shipper will duly and carefully perform any obligation entered into under an agreement reached under article 13, paragraph 2.
3. If a container is packed or a vehicle is loaded by a shipper, the shipper shall properly and carefully stow, lash and secure the contents in or on such container or vehicle in such a manner that they do not cause injury to persons or property.
Article 28
Cooperation between shipper and carrier in providing information and instructions
The carrier and the shipper shall respond to each other's requests for information and instructions required for the proper handling and carriage of the cargo, if such information is available to the requested party or the provision of such instructions is within the reasonable ability of the requested party to provide them, and if such information and instructions are not may reasonably be obtained by the requester from another source.
Article 29
Shipper's obligation to provide information, instructions and documents
1. The shipper shall promptly provide the carrier with such information, instructions and documents relating to the cargo as cannot reasonably be obtained by the carrier from another source and as are reasonably necessary for:
a) the proper handling and transport of the cargo, including the precautions to be taken by the carrier or performing party; and
b) compliance by the carrier with the rules, regulations or other requirements of public authorities in connection with the intended carriage, provided that the carrier promptly informs the shipper of the information, instructions and documents he needs.
2. Nothing in this article affects any specific obligation to provide certain information, instructions and documents relating to the cargo, in accordance with the rules, regulations or other requirements of public authorities in connection with the intended carriage.
Article 30
Grounds for liability of the consignor to the carrier
1. The shipper shall be liable for loss or damage suffered by the carrier if the carrier proves that such loss or damage was caused by a breach of the shipper's obligations under this Convention.
2. Except in cases of loss or damage caused by a breach by the shipper of his obligations under paragraph 2 of Article 31 and Article 32, the shipper shall be wholly or partly released from liability if the cause or one of the causes of the loss or damage cannot be attributed to his fault or fault any person referred to in article 34.
3. If the shipper is partially exempted from liability under this article, the shipper shall only be liable for that part of the loss or damage which can be attributed to him or any person referred to in article 34.
Article 31
Information for the formulation of contractual terms
1. The shipper provides the carrier in a timely manner with reliable information necessary for the formulation of contractual terms and the issuance of transport documents or electronic transport records, including the terms referred to in paragraph 1 of article 36, the name of the party who will be called the shipper in the contractual terms, the name of the consignee, if any , and the name of the person to whose order the transport document or electronic transport record, if any, is to be issued.
2. The shipper shall be deemed to have guaranteed the accuracy of the information provided under paragraph 1 of this article at the time it was received by the carrier. The shipper shall indemnify the carrier for any loss or damage resulting from the inaccuracy of such information.
Article 32
Special rules for dangerous goods
If the goods, by virtue of their properties or nature, constitute or are reasonably expected to become dangerous to persons, property or the environment, then:
a) the shipper notifies the carrier of the dangerous properties or nature of the goods in a timely manner prior to delivery of the goods to the carrier or performing party. If the shipper fails to do so and the carrier or performing party does not otherwise become aware of the hazardous properties or nature of the goods, the shipper shall be liable to the carrier for loss or damage resulting from failure to provide such information; and
b) the shipper marks or labels the dangerous goods in accordance with any rules, regulations or other requirements of public authorities that are applicable at any stage of the intended carriage of the goods. If the shipper fails to do so, he shall be liable to the carrier for loss or damage resulting from his failure to act.
Article 33
Acceptance of the rights and obligations of the shipper by the documentary shipper
1. A documentary shipper shall bear the obligations and responsibilities incumbent on a shipper under this chapter and under article 55 and shall enjoy the shipper's rights and defenses provided for in this chapter and chapter 13.
2. Paragraph 1 of this article does not affect the obligations, liability, rights or objections of the shipper.
Article 34
Shipper's Liability for Others
The shipper shall be liable for breach of its obligations under this Convention caused by the act or omission of any person, including servants, agents and subcontractors, to whom it has entrusted the performance of any of its obligations, but the shipper shall not be liable for the act or omission of the carrier or a performing party acting from the name of the carrier to whom the consignor has entrusted the performance of his obligations.
Chapter 8. Transport Documents and Electronic Transport Records
Article 35
Issuance of a transport document or electronic transport record
Unless the shipper and the carrier have agreed not to use a transport document or electronic transport record or their non-use is not in accordance with the custom, custom or practice of the industry, when the goods are handed over for carriage to the carrier or performing party, the shipper or, if the shipper so agrees, The documentary shipper is entitled to receive from the carrier, at the choice of the shipper:
a) non-negotiable transport document or, subject to subparagraph a article 8, non-negotiable electronic transport record; or
b) the relevant negotiable transport document or, subject to subparagraph a article 8, negotiable electronic transport record, unless the shipper and the carrier have agreed not to use a negotiable transport document or negotiable electronic transport record or their non-use is not in accordance with custom, usage or practice in the industry.
Article 36
Contract terms
1. The contractual terms in the transport document or electronic transport record referred to in Article 35 shall include the following information provided by the shipper:
a) a proper description of the cargo to be transported;
b) the main marks necessary for the identification of the cargo;
c) the number of places or items, or the amount of cargo; and
d) the weight of the shipment, if specified by the shipper.
2. The contractual terms in the transport document or electronic transport record referred to in Article 35 must also include:
a) a statement about the appearance and condition of the cargo at the time of its receipt by the carrier or performing party for transportation;
b) the name and address of the carrier;
c) the date of receipt by the carrier or performing party of the goods or the loading of the goods on board the vessel, or the issuance of the transport document or electronic transport record; and
d) if the transport document is negotiable, the number of originals of the negotiable transport document if more than one original is issued.
3. The contractual terms in the transport document or electronic transport record referred to in Article 35 must also include:
a) the name and address of the consignee, if indicated by the consignor;
b) the name of the ship, if it is indicated in the contract of carriage;
With) the place of receipt of the goods and the place of its delivery, if known to the carrier; and
d) port of loading and port of unloading, if specified in the contract of carriage.
4. For the purposes of this article, the wording " appearance and condition of the cargo" in subparagraph a paragraph 2 of this article means the type and condition of the cargo, determined on the basis of:
a) reasonable external inspection of the packaged cargo at the time of its delivery by the consignor to the carrier or performing party; and
b) any additional examination that the carrier or performing party actually carries out prior to the issuance of a transport document or electronic transport record.
Article 37
Carrier identification
1. If the carrier is identified by name in the contractual terms, then any other information in the transport document or electronic transport record relating to the identification of the carrier is null and void to the extent that it does not correspond to such identification.
2. If the contractual terms do not identify any person as the carrier, as required under subparagraph b article 36, paragraph 2, but the contractual terms state that the goods were loaded on board a named vessel, the carrier is the registered owner of that vessel, unless such owner proves that the vessel was under a bareboat charter at the time of carriage, and indicate the name and address of the charterer of the bareboat charter vessel, who in such case will be considered the carrier. Otherwise, the registered owner of the ship may refute the presumption that he is the carrier by providing the name and address of the carrier. The bareboat charterer may refute the presumption that he is the carrier in the same manner.
3. Nothing in this article shall prevent a claimant from proving that any person, other than the person named in the contractual terms or under paragraph 2 of this article, is the carrier.
Article 38
Signature
1. The transport document is signed by the carrier or a person acting on behalf of the carrier.
2. An electronic transport record includes an electronic signature of the carrier or a person acting on behalf of the carrier. Such electronic signature must identify the signatory in relation to the electronic transport record and indicate that the carrier has authorized the electronic transport record.
Article 39
Drawbacks in contract terms
1. The absence or invalidity of one or more of the contractual terms referred to in paragraphs 1, 2 or 3 of Article 36 shall not in themselves affect the legal nature or validity of the transport document or electronic transport record.
2. If the contractual conditions contain a date, but they do not indicate its meaning, then such a date is considered:
a) the date on which all the goods specified in the transport document or electronic transport record were loaded on board the vessel, if the contractual terms indicate that the goods were loaded on board the vessel; or
b) the date on which the carrier or performing party received the goods, unless the contractual terms indicate that the goods were loaded on board the vessel.
3. If the contractual terms do not indicate the appearance and condition of the goods at the time of its receipt by the carrier or the performing party, then it is considered that the contractual terms indicate that the goods had a good appearance and condition at the time of its receipt by the carrier or the performing party.
Article 40
Reservations regarding cargo information in contractual terms
1. The carrier may include, in relation to the information referred to in article 36, paragraph 1, an appropriate clause to indicate that the carrier is not responsible for the accuracy of the information provided by the shipper if:
a) the carrier actually knows that any material provision in the transport document or electronic transport record is incorrect or misleading; or
b) the carrier has reasonable grounds to believe that any material provision in the transport document or electronic transport record is incorrect or misleading.
2. Without prejudice to paragraph 1 of this article, the carrier may include in the information referred to in paragraph 1 of article 36, in the circumstances and in the manner specified in paragraphs 3 and 4 of this article, a clause to indicate that the carrier is not responsible for the accuracy of the information provided by the consignor.
3. In the event that the goods are not handed over to the carrier or performing party for carriage in a closed container or vehicle, or when the goods are handed over in a closed container or vehicle and the carrier or performing party actually examines the goods, the carrier may include, with respect to the information specified in paragraph 1 article 36, the relevant clause, if:
a) the carrier had no practical or commercially reasonable opportunity to verify the information provided by the shipper, in which case it may indicate which information it was unable to verify; or
b) the carrier has reasonable grounds for believing that the information supplied by the shipper is false, in which case it may include a provision to the effect that it reasonably believes to be true.
4. If the goods are delivered to the carrier or performing party for carriage in a closed container or vehicle, then the carrier may include an appropriate clause regarding the information specified in:
a) subparagraphs a, b or from Article 36, paragraph 1, if:
i) the carrier or performing party did not actually inspect the cargo inside the container or vehicle; and
ii) neither the carrier nor the performing party has actually become familiar with the contents of the container or vehicle prior to the issuance of the transport document and electronic transport record; and
b) subparagraph d paragraph 1 of article 36, if:
i) neither the carrier nor the performing party weighed the container or vehicle and the shipper and carrier agreed prior to shipment that the container or vehicle would be weighed and that the weight would be specified in the contractual terms; or
ii) there was no practical or commercially reasonable possibility to check the weight of the container or vehicle.
Article 41
Probative force of contractual terms
Except to the extent that a reservation has been made to contractual terms in the circumstances and in the manner set out in Article 40:
a) the transport document or electronic transport record is prima facie evidence of receipt by the carrier of the goods as described in the contractual terms;
b) evidence to the contrary provided by the carrier in relation to any contractual terms is not admissible if such contractual terms are included in:
(i) a negotiable transport document or negotiable electronic transport record that is transferred to a third party acting in good faith; or
(ii) a non-negotiable transport document indicating that it must be handed over to secure delivery of the goods and handed over to the consignee acting in good faith;
With) proof to the contrary provided by the carrier is not admissible in relation to a consignee who has acted in good faith in respect of any of the following contractual terms that are included in a non-negotiable transport document or non-negotiable electronic transport record:
i) the contractual terms referred to in Article 36, paragraph 1, where such contractual terms are provided by the carrier;
ii) number, type and identification numbers containers, but not identification numbers of container seals; and
iii) the contractual terms referred to in paragraph 2 of Article 36.
Article 42
"Freight Prepaid"
If the contract terms contain the indication "freight prepaid" or an indication of a similar nature, the carrier may not invoke against the holder or consignee that the freight has not been paid. This article shall not apply if the holder or consignee is also the consignor.
Chapter 9. Delivery of cargo
Article 43
Obligation to accept delivery
When the goods arrive at their destination, the consignee who claims delivery under the contract of carriage shall accept delivery of the goods at or within the time and place agreed in the contract of carriage or, in the absence of such agreement, at the time and place at which, having regard to the terms of the contract, the customs, usages and practices of the industry and the circumstances of the carriage, delivery of the goods could reasonably be expected.
Article 44
Obligation to acknowledge receipt of goods
At the request of the carrier or performing party who delivers the goods, the consignee acknowledges receipt of the goods from the carrier or performing party in the manner customary at the place of delivery. The carrier may refuse delivery of the goods if the consignee refuses to acknowledge receipt of the goods.
Article 45
Delivery of goods when a negotiable transport document or negotiable electronic transport record has not been issued
If a negotiable transport document or negotiable electronic transport record has not been issued:
a) the carrier delivers the goods to the consignee at the time and place specified in article 43. The carrier may refuse to deliver the goods if, upon request from the carrier, the person claiming to be the consignee does not properly identify himself as the consignee;
b) if the name and address of the consignee are not specified in the contractual terms, then the controlling party, before or at the time of the arrival of the goods at the place of destination, informs the carrier of the name and address of the consignee;
With)
(i) the consignee, after having received notification of the arrival of the goods, does not require, at the time or within the period referred to in Article 43, the delivery of the goods by the carrier after their arrival at the place of destination;
(ii) the carrier refuses to deliver the goods because the person claiming to be the consignee does not properly identify himself as the consignee; or
iii) the carrier, having made reasonable efforts, cannot locate the consignee to request instructions for delivery, the carrier may inform the controlling party and request instructions for delivery. If, after making reasonable efforts, the carrier cannot find the controlling party, the carrier may inform the shipper and request instructions for delivery. If, after making reasonable efforts, the carrier is unable to locate the shipper, the carrier may inform the documentary shipper and request instructions for delivery;
d) a carrier delivering goods on the instructions of the controlling party, shipper or documentary shipper in accordance with subparagraph With of this article, is released from its obligations to deliver the goods in accordance with the contract of carriage.
Article 46
Delivery when a non-negotiable transport document requiring handover has been issued
If a non-negotiable transport document stating that it is to be handed over for delivery of the goods is issued:
a) the carrier delivers the goods to the consignee at the time and place specified in article 43 after the consignee, at the request of the carrier, duly identifies himself and hands over the non-negotiable instrument. The carrier may refuse to deliver the goods if the person claiming to be the consignee fails to properly identify himself at the request of the carrier, and refuses to deliver the goods if the non-negotiable document is not handed over. In case of issuance of more than one original of a non-negotiable document, the transfer of one original is sufficient, and the other originals lose their legal force or cease to be valid;
b) without prejudice to the provisions of article 48, paragraph 1, if the goods cannot be delivered for the reason that
(i) the consignee, having received notification of the arrival of the goods, does not require, at the time or within the period referred to in Article 43, the delivery of the goods by the carrier after their arrival at the place of destination;
(ii) the carrier refuses to deliver the goods because the person claiming to be the consignee does not properly identify himself as the consignee or fails to hand over the transport document; or
(iii) the carrier, having made reasonable efforts, cannot locate the consignee to request instructions for delivery, the carrier may inform the shipper and request instructions for delivery. If, after making reasonable efforts, the carrier is unable to locate the shipper, the carrier may inform the documentary shipper and request instructions for delivery;
With) b of this article is released from his obligation to deliver the goods under the contract of carriage, whether or not a non-negotiable transport document has been handed over to him.
Article 47
Delivery when a negotiable transport document or negotiable electronic transport record is issued
1. If a negotiable transport document or negotiable electronic transport record is issued:
a) the holder of a negotiable transport document or negotiable electronic transport record may require the carrier to deliver the goods after they have arrived at the place of destination, in which case the carrier delivers the goods at the time and place specified in article 43 to that holder:
i) after handing over of the negotiable transport document and if the holder is one of the persons referred to in subparagraph a(i) paragraph 10 of Article 1, after the holder has properly identified himself; or
ii) after the holder, in accordance with the procedures referred to in paragraph 1 of Article 9, proves that he is the holder of a negotiable electronic transport record;
b) the carrier refuses to hand over the goods in case of non-compliance with the requirements provided for in subparagraph a(i) or a(ii) this paragraph;
c) if more than one original negotiable transport document is issued, and if the number of originals is indicated on that document, the handing over of one original is sufficient and the other originals become null and void or cease to be valid. If a negotiable electronic transport record has been used, such negotiable electronic transport record shall cease to have legal effect or cease to be valid upon delivery of the goods to the holder in accordance with the procedures referred to in paragraph 1 of article 9.
2. Without prejudice to the provisions of article 48, paragraph 1, where the negotiable transport document or negotiable electronic transport record expressly states that the goods may be delivered without handing over the transport document or electronic transport record, the following rule shall apply:
a) if the goods cannot be delivered for the reason that
(i) the holder, having received notice of the arrival of the goods, does not require the delivery of the goods by the carrier after their arrival at the place of destination at or within the period referred to in Article 43;
(ii) the carrier refuses to deliver the goods because the person claiming to be the holder does not properly identify himself as one of the persons referred to in subparagraph a(i) paragraph 10 of Article 1; or
(iii) The carrier, after making reasonable efforts, cannot find a holder to request delivery instructions, the carrier may inform the shipper and request delivery instructions. If, after making reasonable efforts, the carrier is unable to locate the shipper, the carrier may inform the documentary shipper and request instructions for delivery;
b) carrier delivering goods on the instructions of the shipper or documentary shipper in accordance with subparagraph a of paragraph 2 of this article shall be released from its obligation to deliver the goods under the contract of carriage to the holder, regardless of whether the negotiable transport document has been handed over to him or whether the person claiming delivery of the goods according to the negotiable electronic transport record is able to prove in accordance with the procedures referred to in paragraph 1 article 9 that it is the holder;
With) person giving instructions under subparagraph a paragraph 2 of this article, compensates the carrier for losses resulting from his liability to the holder in accordance with subparagraph e paragraph 2 of this article. The carrier may refuse to comply with these instructions unless that person provides adequate security, as the carrier may reasonably request;
d) a person who, after the carrier has delivered the goods in accordance with subparagraph b paragraph 2 of this article, becomes the holder of a negotiable transport document or negotiable electronic transport record under any contract or other agreement concluded prior to such delivery of goods, acquires rights in relation to the carrier under the contract of carriage, with the exception of the right to demand delivery of goods;
e) notwithstanding subparagraphs b and d of paragraph 2 of this article, a holder who becomes a holder after such delivery of the goods and who, at the time he became the holder, did not and could not reasonably have known of such delivery, shall acquire the rights provided for in a negotiable transport document or in a negotiable electronic transport record. If the contractual terms indicate the expected time of arrival of the goods or indicate how to obtain information about whether the goods have been delivered, it is presumed that the holder, at the time he became the holder, knew or could reasonably have known about the delivery of the goods.
Article 48
Cargo left undelivered
1. For the purposes of this article, the goods shall be considered as remaining undelivered only if, after its arrival at the place of destination:
a) the consignee does not accept delivery under this chapter at the time and place specified in article 43;
b) the controlling party, holder, shipper or documentary shipper cannot be found or does not give the carrier proper instructions under articles 45, 46 and 47;
c) the carrier has the right or obligation to refuse delivery of the goods in accordance with articles 44, 45, 46 and 47;
d) the carrier is not permitted to deliver the goods to the consignee in accordance with the laws or regulations of the place where delivery is requested; or
e) the cargo cannot be handed over by the carrier for other reasons.
2. Without prejudice to any other rights which the carrier may have against the shipper, the controlling party or the consignee, if the goods remain undelivered, the carrier may, at the risk and expense of the person entitled to the goods, take such measures with respect to the cargo as may reasonably be required under the circumstances, including:
a) place the cargo in a warehouse in any acceptable place;
b) unpack the cargo if it is packed in containers or vehicles, or take other measures in relation to the cargo, including moving it; and
With) order the sale or destruction of the cargo in accordance with the practice or laws or regulations of the place where the cargo is currently located.
3. The carrier may exercise these rights under paragraph 2 of this article only after he has given reasonable notice of the intended action under paragraph 2 of this article to the person named in the contractual terms as the person to be notified of the arrival of the goods at the place of destination, if such person is indicated, as well as one of the following persons in the order they are listed: the consignee, the controlling party or the consignor, if such persons are known to the carrier.
4. If the goods are sold in accordance with subparagraph With paragraph 2 of this article, the carrier shall withhold the proceeds from the sale of the goods for the benefit of the person entitled to the goods, subject to the deduction of an amount to reimburse any expenses incurred by the carrier and any other amounts due to the carrier in connection with the carriage of this goods.
5. The carrier shall not be liable for loss of or damage to the goods during the period during which the goods remain undelivered under this Article, unless the claimant proves that such loss or damage resulted from the carrier's failure to take reasonable measures in the circumstances to preserve the goods and that the carrier knew or should have known that failure to take such measures would result in loss of or damage to the goods.
Article 49
Cargo retention
Nothing in this Convention shall affect the right of the carrier or performing party to hold the goods to secure payment of amounts due, which may be provided for in the contract of carriage or applicable law.
Chapter 10 Controlling Party Rights
Article 50
Exercise and scope of the right to control the goods
1. The right to control the cargo can only be exercised by the controlling party and is limited to:
a) the right to give or modify instructions in respect of the goods which do not constitute a change to the contract of carriage;
b) the right to receive the cargo at the scheduled port of call or, in case of overland transport, at any place along the route; and
c) the right to replace the consignee by any other person, including the controlling party.
2. The right to control the goods shall remain for the entire period of the carrier's liability as provided for in Article 12 and shall cease at the end of that period.
Article 51
Identification of the controlling party and transfer of control over the cargo
1. Except for the cases specified in paragraphs 2, 3 and 4 of this article:
a) the shipper is the controlling party, unless the shipper, at the conclusion of the contract of carriage, designates the consignee, the documentary shipper or another person as the controlling party;
b) the controlling party has the right to transfer the right to control the cargo to another person. The transfer becomes effective with respect to the carrier when the transferor notifies him of the transfer and the transferee becomes the controlling party; and
c) the controlling party properly identifies itself when exercising its right to control the cargo.
2. If a non-negotiable transport document has been issued stating that it must be handed over for delivery:
a) the shipper is the controlling party and may transfer control of the goods to the consignee named in the transport document by delivering the transport document to such person without endorsement. In case of issuance of more than one original of the document, all originals shall be transferred for the transfer of the right to control the cargo; and
b) in order to exercise its right to control the goods, the controlling party presents the transport document and properly identifies itself. In the case of issuing more than one original of the document, all originals are presented, and if this is not done, then the right to control the cargo cannot be exercised.
3. If a negotiable transport document has been issued:
a) the holder or, if more than one original negotiable transport document is issued, the holder of all originals is the controlling party;
b) the holder may transfer control of the goods by handing over the negotiable transport document to another person in accordance with article 57. If more than one original of such document is issued, all originals shall be transferred to that person to effect the transfer of control of the goods; and
c) in order to exercise the right to control the goods, the holder presents a negotiable transport document to the carrier, and if the holder is one of the persons referred to in subparagraph a(i) paragraph 10 of Article 1, the holder shall properly identify himself. If more than one original of the document is issued, all originals are presented, and if this is not done, then the right to control the cargo cannot be exercised.
4. If a negotiable electronic transport record has been issued:
a) the holder is the controlling party;
b) the holder may transfer control of the goods to another person by transferring a negotiable electronic transport record in accordance with the procedures referred to in paragraph 1 of article 9; and
c) in order to exercise the right of control over the goods, the holder proves, in accordance with the procedures referred to in Article 9, paragraph 1, that he is the holder.
Article 52
Execution of instructions by the carrier
1. Subject to the provisions of paragraphs 2 and 3 of this article, the carrier shall comply with the instructions referred to in article 50 if:
a) the person giving such instructions is entitled to exercise the right to control the goods;
b) such instructions can be reasonably executed in accordance with their terms at the time they reach the carrier; and
c) such instructions will not result in disruption of the normal operations of the carrier, including its delivery practices.
2. In any event, the controlling party shall indemnify the carrier for any reasonable additional costs the carrier may incur and shall indemnify the carrier for any loss or damage the carrier may suffer as a result of his diligent execution of any instruction under this article, including any compensation that the carrier may be liable to pay for the loss of or damage to other cargo carried by him.
3. The carrier may obtain security from the controlling party in respect of the amount of additional costs, loss or damage that the carrier reasonably expects to incur in connection with the execution of any instruction in accordance with this article. The carrier may refuse to comply with the instructions if such security is not provided.
4. The liability of the carrier for loss of or damage to the goods, or delay in delivery resulting from his failure to comply with the instructions of the controlling party in breach of his obligation under paragraph 1 of this article, shall be governed by the provisions of articles 17 to 23, and the amount of compensation payable by the carrier shall be governed by the provisions of articles 59–61.
Article 53
Cargo considered delivered
Goods which are delivered pursuant to an instruction under Article 52, paragraph 1, shall be deemed to have been delivered at the place of destination, and the provisions of Chapter 9 relating to such delivery shall apply to such cargo.
Article 54
Changes in the contract of carriage
1. The controlling party is the only person who can negotiate with the carrier other changes to the contract of carriage than the changes specified in subparagraphs b and With paragraph 1 of Article 50.
2. Changes in the contract of carriage, including the changes specified in subparagraphs b and With Article 50, paragraph 1, are set out on a negotiable transport document or on a non-negotiable transport document requiring handover or included in a negotiable electronic transport record, or, at the request of the controlling party, appear on a non-negotiable transport document or included in a non-negotiable electronic transport record. When setting forth or including such amendments, they shall be signed in accordance with Article 38.
Article 55
Providing additional information, instructions or documents to the carrier
1. The controlling party, at the request of the carrier or performing party, promptly provides information, instructions or documents relating to the cargo that are not already provided by the shipper and are not reasonably available to the carrier from other sources and which the carrier may reasonably need to fulfill its obligations under the contract transportation.
2. If the carrier, after making reasonable efforts, is unable to find the controlling party, or if the controlling party is unable to provide the appropriate information, instructions or documents to the carrier, then the shipper shall provide them. If the carrier, after making reasonable efforts, is unable to find the shipper, then such information, instructions or documents are provided by the documentary shipper.
Article 56
Change by agreement
The parties to the contract of carriage may change the effect of subparagraphs b and c Article 50, paragraph 1, Article 50, paragraph 2, and Article 52. The Parties may also limit or exclude the possibility of transferring the right to control the goods referred to in subparagraph b paragraph 1 of article 51.
Chapter 11. Transfer of rights
Article 57
Cases where a negotiable transport document or negotiable electronic transport record is issued
1. If a negotiable transport document has been issued, the holder may transfer the rights attached to that document by transferring it to another person:
a) on the basis of proper endorsement, either to such other person or in blank form if the document is a warrant; or
b) without endorsement if:
i) the document is a bearer document or a document endorsed in blank; or
ii) the document is issued to the order of a named person and the transfer is between the first holder and such named person.
2. If a negotiable electronic transport record has been issued, its holder may transfer the rights attached to that electronic transport record, whether or not issued to an order or the order of a named person, by transferring the electronic transport record in accordance with the procedures referred to in paragraph 1 of Article 9.
Article 58
Holder's responsibility
1. Without prejudice to the provisions of article 55, a holder who is not a shipper and who does not exercise any right under the contract of carriage shall not assume any liability under the contract of carriage solely on the ground that he is the holder.
2. A holder who is not the shipper and who exercises any right under the contract of carriage shall assume any liability incumbent on him under the contract of carriage, insofar as such liability is provided for in the negotiable transport document or negotiable transport electronic records or follows from them.
3. For the purposes of paragraphs 1 and 2 of this article, a holder who is not a shipper does not exercise any right under a contract of carriage merely because he:
a) agrees with the carrier in accordance with Article 10 to replace the negotiable transport document with a negotiable electronic transport record or replace the negotiable electronic transport record with a negotiable transport document; or
b) transfers its rights in accordance with Article 57.
Chapter 12 Limits of Liability
Article 59
Limits of Liability
1. Subject to the provisions of article 60 and paragraph 1 of article 61, the carrier's liability for breach of his obligations under this Convention shall be limited to 875 units of account per package or other shipping unit or 3 units of account per kilogram of the gross weight of the consignment that is the subject of the claim or dispute, as the case may be. whichever is higher, except where the value of the goods has been declared by the shipper and included in the contractual terms or where the carrier and shipper have agreed to a higher amount than the limitation of liability specified in this article.
2. If the goods are carried in or on a container, pallet or similar transportable device used to consolidate the cargo, or in or on a means of transport, the places or shipping units listed in the contractual terms as being packed in or on such a device for transport or means of transport are treated as places or shipping units. In the absence of such a list, goods in or on such means of transport or means of transport are treated as one shipping unit.
3. The unit of account referred to in this article is the "special drawing right" unit as defined. The amounts specified in this article shall be converted into the national currency of the state in accordance with the value of this currency on the date of the judicial or arbitral award or on the date agreed by the parties. The value in units of "special drawing right" of the national currency of a Contracting State which is a member of the International Monetary Fund shall be calculated in accordance with the method of valuation applied by the International Monetary Fund on the relevant date for its own operations and settlements. The "special drawing right" value of the national currency of a Contracting State which is not a member of the International Monetary Fund shall be calculated in the manner prescribed by that State.
Article 60
Limits of liability for loss caused by delay
Subject to article 61, paragraph 2, compensation for loss of or damage to cargo due to delay shall be calculated in accordance with article 22, and liability for economic loss caused by delay shall be limited to an amount equivalent to 2.5 times the freight payable in respect of the delayed delivery of cargo. The total amount payable under this article and paragraph 1 of article 59 may not exceed the limit that would be established under paragraph 1 of article 59 in respect of the total loss of the goods concerned.
Article 61
Loss of the right to limit liability
1. Neither the carrier nor any of the persons referred to in article 18 shall be entitled to the limitation of liability as provided in article 59 or as provided in the contract of carriage if the claimant proves that the damage resulting from the breach of the carrier's obligation under of this Convention may be attributed to the personal act or omission of the person claiming the right to limit liability, done with the intent to cause such damage, or due to gross negligence and with an understanding of the likelihood of such damage.
2. Neither the carrier nor any of the persons referred to in article 18 shall be entitled to the limitation of liability as provided in article 60 if the claimant proves that the delay in delivery was caused by the personal act or omission of the person claiming the right to limit liability done with intent to cause such damage through delay or gross negligence and with the knowledge that such damage is likely to occur.
Chapter 13
Article 62
Limitation of actions
1. No proceedings or arbitration in respect of claims or disputes arising out of the breach of any obligation under this Convention shall be commenced after the expiration of a period of two years.
2. The period referred to in paragraph 1 of this article shall begin on the day on which the carrier delivered the goods or, in the case where the goods were not delivered or only part of the goods were delivered, on the last day on which the goods were to be delivered. The day on which this period begins is not included in it.
3. Notwithstanding the expiration of the time limit set out in paragraph 1 of this article, one of the parties may use its claim by way of defense or for the purpose of set-off against any claim made by the other party.
Article 63
Extension of the time limit for filing a claim
The period provided for in Article 62 shall not be subject to suspension or interruption, but the person against whom the action is brought may, at any time during that period, extend that period by a declaration made to the plaintiff. This period may be further extended by another declaration or declarations.
Article 64
Compensation claim
An action for indemnity may be brought by any person found liable after the expiration of the period provided for in article 62, if an action for indemnification is brought within the later of the following periods:
a)
b) within ninety days from the date on which the person making the claim for damages either paid the claim or received a summons to bring proceedings against him, whichever came first.
Article 65
Claims against a person identified as a carrier
An action against a bareboat charterer or a person identified as a carrier under article 37, paragraph 2, may be brought after the expiration of the period provided for in article 62 if such action is brought within the later of the following periods:
a) within the period permitted by the applicable law of the State in which the proceedings are initiated; or
b) within ninety days from the date on which the carrier was identified or on which the registered owner or bareboat charterer has refuted the presumption that he is the carrier under article 37, paragraph 2.
Chapter 14. Jurisdiction
Article 66
Claims against the carrier
Unless the contract of carriage contains an exclusive choice of court agreement that complies with article 67 or 72, the claimant is entitled to bring proceedings under this Convention against the carrier:
a) before the competent court within whose jurisdiction is one of the following places:
i) carrier's domicile;
(iv) the port where the cargo is initially loaded onto the ship or the port where the cargo is finally unloaded from the ship; or
b) before the competent court or courts designated by agreement between the shipper and the carrier for the purpose of deciding on claims against the carrier that may arise under this Convention.
Article 67
Choice of court agreements
1. Jurisdiction of the court chosen in accordance with subparagraph b Article 66 is exclusive to disputes between the parties to the treaty only if the parties reach an agreement to this effect and if the agreement granting jurisdiction:
a) contained in a contract for the organization of carriage, which expressly indicates the names and addresses of the parties and which either
i) concluded on an individual basis, or
(ii) contains a clear statement of the existence of an exclusive choice of court agreement and indicates the sections of the transport contract that contain such an agreement; and
b) clearly indicates the courts of one of the Contracting States or one or more specific courts of one of the Contracting States.
2. A person who is not a party to a transport contract is bound by an exclusive choice of court agreement entered into in accordance with paragraph 1 of this article only if:
a) the court is located in one of the places specified in subparagraph a articles 66;
b) such agreement is contained in the transport document or electronic transport record;
c) the person is promptly given due notice of the court in which the action is to be brought and that the jurisdiction of that court is exclusive; and
d) the law of the court hearing the claim recognizes that this person may be bound by an exclusive choice of court agreement.
Article 68
Claims against a maritime performing party
The claimant shall have the right to bring proceedings under this Convention against a maritime performing party in a competent court having jurisdiction over one of the following places:
a) domicile of the maritime performing party; or
b) the port where the maritime performing party receives the cargo, or the port where the cargo is delivered by the maritime performing party, or the port where the maritime performing party performs its actions in relation to the cargo.
Article 69
No Additional Grounds for Jurisdiction
Subject to articles 71 and 72, no proceedings under this Convention against a carrier or a maritime performing party may be brought in a court not designated under articles 66 or 68.
Article 70
Arrest and provisional or provisional measures
Nothing in this Convention shall affect jurisdiction over provisional or provisional measures, including arrest. A court in the State in which a provisional or provisional measure has been granted does not have jurisdiction to rule on the merits of the case unless:
a) the requirements of this chapter are not met; or
b) any international convention that applies in that state does not provide for this.
Article 71
Consolidation and transfer of claims
1. Except where there is an exclusive choice of court agreement which is binding under article 67 or 72, if the same action is brought against both the carrier and the maritime performing party for the same event, such action may be brought only in the court specified under both sections 66 and 68. In the absence of such court, such action may be brought in the court specified under subsection b article 68, if such a court exists.
2. Except where there is an exclusive choice of court agreement that is binding under article 67 or 72, a carrier or maritime performing party bringing a claim that purports to be a declaration of non-liability or any other claim in which any or the person would be deprived of the right to choose a court under section 66 or 68 shall, at the request of the defendant, withdraw his action after the defendant has chosen the court specified under section 66 or 68, whichever is applicable in which the claim can be brought again.
Article 72
Post-dispute agreement and jurisdiction if the defendant appears
1. After a dispute has arisen, the parties to the dispute may agree on its resolution in any competent court.
2. The competent court before which the defendant appears without contesting jurisdiction in accordance with the rules of that court shall have jurisdiction over these parties.
Article 73
Recognition and enforcement
1. An award given by a court having jurisdiction under this Convention in one Contracting State shall be recognized and enforced in the other Contracting State in accordance with the law of that other Contracting State if both States have made a declaration in accordance with Article 74.
2. A court may refuse recognition and enforcement on the grounds for refusal of recognition and enforcement which are permitted by the law of that court.
3. This chapter does not affect the application of the rules of any regional organization economic integration which is a Party to this Convention, with regard to the recognition or enforcement of judgments between Member States of that regional economic integration organization, whether they were taken before or after the adoption of this Convention.
Article 74
Application of Chapter 14
Chapter 15 Arbitration
Article 75
Arbitration Agreements
1. Subject to this chapter, the parties may agree that any dispute that may arise in connection with a contract for the carriage of goods under this Convention shall be submitted to arbitration.
2. Arbitration, at the option of the claimant against the carrier, shall take place in:
a) any place specified for this purpose in the arbitration agreement; or
b) any other place located in the state in which any of the following places is located:
i) carrier's domicile;
ii) the place of receipt of the goods as agreed in the contract of carriage;
iii) the place of delivery of the goods agreed in the contract of carriage; or
(iv) the port where the cargo is initially loaded onto the ship or the port where the cargo is finally unloaded from the ship.
3. An indication of the place of arbitration in an arbitration agreement shall be binding in connection with disputes between the parties to this agreement if it is contained in a contract for the organization of carriage, which clearly indicates the names and addresses of the parties and which either:
a) concluded on an individual basis; or
b) contains an explicit statement of the existence of an arbitration agreement and specifically refers to the sections of the transportation contract that contain an arbitration agreement.
4. If an arbitration agreement has been concluded in accordance with paragraph 3 of this article, then it is mandatory for a person who is not a party to the contract on organization of transportation to indicate the place of arbitration in this agreement only if:
a) the place of arbitration specified in the agreement is one of the places specified in subparagraph b paragraph 2 of this article;
b) the agreement is contained in the transport document or electronic transport record;
With) the person for whom such indication is mandatory is given timely and appropriate notice of the place of arbitration; and
d) the applicable law allows the arbitration agreement to be binding on that person.
5. The provisions of paragraphs 1, 2, 3 and 4 of this article shall be deemed part of any arbitration clause or agreement, and any provision of such clause or agreement, to the extent that it is inconsistent with them, shall be void.
Article 76
Arbitration Agreement for Non-Linear Transportation
1. Nothing in this Convention shall affect the possibility of enforcing an arbitration agreement in a contract of carriage for non-liner transportation to which this Convention or the provisions of this Convention apply by virtue of:
a) the application of Article 7; or
b) voluntary incorporation of this Convention by the parties into a contract of carriage which would otherwise not be covered by this Convention.
2. Notwithstanding paragraph 1 of this article, an arbitration agreement in a transport document or electronic transport record to which this Convention applies by virtue of the application of article 7 shall be subject to this chapter only if such transport document or electronic transport record:
a) does not identify the parties to the charter and the date of the charter or other contract excluded from the scope of this Convention by virtue of the application of Article 6; and
Article 77
Agreement to Arbitrate After a Dispute Arises
Notwithstanding the provisions of this chapter and chapter 14, once a dispute has arisen, the parties to the dispute may agree to resolve the dispute through arbitration anywhere.
Article 78
Application of Chapter 15
The provisions of this Chapter shall be binding only on those Contracting States which, in accordance with Article 91, have declared that these provisions will be binding on them.
Chapter 16. Validity of contractual provisions
Article 79
General provisions
1. Except as otherwise provided in this Convention, any provision of a contract of carriage is void to the extent that it:
a) expressly or implicitly excludes or limits the obligations of the carrier or the maritime performing party under this Convention;
b) expressly or implicitly excludes or limits the liability of a carrier or a maritime performing party for a breach of an obligation under this Convention; or
With) provides for the transfer in favor of the carrier or the person referred to in Article 18 of cargo insurance rights.
2. Except as otherwise provided in this Convention, any provision of a contract of carriage is void to the extent that it:
a) expressly or impliedly excludes, limits or expands the obligations under this Convention of a shipper, consignee, controlling party, holder or documentary shipper; or
b) expressly or impliedly excludes, limits or extends the liability of a shipper, consignee, controlling party, holder or documentary shipper for breach of any of its obligations under this Convention.
Article 80
Special rules for transport contracts
1. Notwithstanding the provisions of article 79, between a carrier and a shipper, a transport contract to which this Convention applies may provide for rights, obligations and liabilities greater or less than those provided for in this Convention.
2. Derogation from the provisions of this Convention under paragraph 1 of this article shall be binding only when:
a) the contract for the organization of carriage contains a direct indication that it deviates from the provisions of this Convention;
b) contract for the organization of transportation
i) concluded on an individual basis or
ii) contains an explicit reference to the sections of the transport contract that allow such derogations;
c) the shipper shall be given the opportunity to conclude a contract of carriage under the terms and conditions of this Convention without any derogation under this article, and shall be notified of such possibility; and
d) retreat
ii) is not provided for in a non-negotiable standard contract.
3. A carrier's publicly available price list, transport document, electronic transport record or similar document does not constitute a transport contract under paragraph 1 of this article, but a transport contract may incorporate the provisions of such documents by reference as contract provisions.
4. Paragraph 1 of this article does not apply to the rights and obligations provided for in subparagraphs a and b articles 14 and articles 29 and 32, as well as liability arising from their violation; paragraph 1 of this article shall not apply to any liability arising from an act or omission referred to in article 61.
5. If the volume contract satisfies the requirements of paragraph 2 of this article, the provisions of the volume contract derogating from the provisions of this Convention shall apply between the carrier and any person other than the shipper, provided that:
a) such person has received information expressly stating that the transport contract derogates from the provisions of this Convention and has expressly agreed to be bound by such derogations; and
b) such consent is not only indicated in the carrier's publicly available price list, transport document or electronic transport record.
6. The party claiming to be entitled to such a derogation bears the burden of proving that the conditions for such a derogation have been met.
Article 81
Special rules for live animals and certain other goods
Notwithstanding the provisions of article 79, and without prejudice to the provisions of article 80, a contract of carriage may exclude or limit the obligations or liability of both the carrier and the maritime performing party if:
a) the goods are live animals, but any such exclusion or limitation shall not apply if the claimant proves that the loss of or damage to the goods, or delay in delivery, resulted from an act or omission by the carrier or a person referred to in article 18, done with the intent to cause such loss or damage to the goods or such loss as a result of delay, or due to gross negligence and with an understanding of the likelihood of such loss or damage to the goods or the likelihood of such loss as a result of delay; or
b) the nature or condition of the goods, or the circumstances and conditions under which the carriage took place, are such as to constitute a reasonable basis for a special agreement, provided that such contract of carriage does not concern ordinary commercial deliveries carried out in ordinary trade and that no negotiable transport document or negotiable electronic transport record for the carriage of such goods.
Chapter 17 Matters not governed by this Convention
Article 82
International conventions governing the carriage of goods by other modes of transport
Nothing in this Convention shall affect the application of the provisions of any of the following international conventions, including any future amendment to such conventions, which are in force on the date this Convention enters into force and govern the carrier's liability for loss of or damage to goods:
a) any convention governing the carriage of goods by air, in so far as such convention, according to its provisions, applies to any part of the contract of carriage;
b) any convention governing the carriage of goods by land, insofar as such convention, according to its provisions, applies to the carriage of goods remaining loaded on a road freight vehicle carried on board a ship;
c) any convention governing the carriage of goods by rail, in so far as such convention, according to its provisions, applies to the carriage of goods by sea in addition to rail carriage; or
d) any convention governing the carriage of goods by inland waterways, insofar as such convention, according to its provisions, applies to the carriage of goods without transshipment, both by inland waterways and by sea.
Article 83
General Disclaimer
Nothing in this Convention shall affect the application of any international convention or domestic law governing the general limitation of shipowners' liability.
Article 84
General average
Nothing in this Convention shall affect the application of the terms of the contract of carriage or the provisions of domestic law relating to the allocation of losses in general average.
Article 85
Passengers and baggage
This Convention shall not apply to a contract for the carriage of passengers and their baggage.
Article 86
Damage caused by a nuclear incident
No liability shall arise under the provisions of this Convention for damage caused by a nuclear incident if the operator of the nuclear installation is liable for such damage:
a) in accordance with the Paris Convention on Third Party Liability in the Field of Nuclear Energy of July 29, 1960, as amended by the Additional Protocol of January 28, 1964 and the Protocols of November 16, 1982 and February 12, 2004, the Vienna Convention on Civil liability for nuclear damage of 21 May 1963, as amended by the Joint Protocol concerning the Application of the Vienna Convention and the Paris Convention of 21 September 1988, and as amended by the Protocol of 12 September 1997 amending the Vienna Convention the 1963 Convention on Civil Liability for Nuclear Damage, or the Convention on Supplementary Compensation for Nuclear Damage of 12 September 1997, including any amendment to those conventions and any future convention relating to the liability of the operator of a nuclear installation for damage caused by a nuclear incident; or
b) according to the domestic law applicable to liability for such damage, provided that such law is in all respects as favorable to persons who may suffer damage as the Paris or Vienna Conventions or the Convention on Supplementary Compensation for Nuclear Damage.
Chapter 18. Final Provisions
Article 87
Depository
The Secretary-General of the United Nations is hereby designated as the depositary of this Convention.
Article 88
Signature, ratification, acceptance, approval or accession
1. This Convention shall be open for signature by all States at Rotterdam, the Netherlands on 23 September 2009 and thereafter at United Nations Headquarters in New York.
2. This Convention is subject to ratification, acceptance or approval by signatory States.
3. This Convention shall be open for accession by all non-signatory States from the date of its opening for signature.
4. Instruments of ratification, acceptance, approval and accession shall be deposited with the Secretary-General of the United Nations.
Article 89
Denunciation of other conventions
1. A State which ratifies, accepts, approves or accedes to this Convention and which is a party to the International Convention for the Unification of Certain Rules on Bills of Lading, signed at Brussels on August 25, 1924, the Protocol to Amend the International Convention for the Unification of Certain Rules on Bills of Lading, signed at Brussels on February 23, 1968, or the Protocol amending the International Convention for the Unification of Certain Rules Concerning Bills of Lading, as amended by the Protocol amending February 23, 1968, signed at Brussels on December 21, 1979, simultaneously denounces this Convention and the protocol or protocols thereto, by a Party which it is, by giving notice to the Government of Belgium to that effect, declaring that the denunciation shall take effect from the date on which this Convention enters into force in respect of that State.
2. A State which ratifies, accepts, approves or accedes to this Convention and which is a Party to the United Nations Convention on the Carriage of Goods by Sea, done at Hamburg on March 31, 1978, shall simultaneously denounce this Convention by giving notice to the Secretary-General of the United Nations of this with a declaration that the denunciation shall take effect from the date on which this Convention enters into force in respect of that State.
3. For the purposes of this article, ratification, acceptance, approval of this Convention and accession thereto by the States Parties to the instruments listed in paragraphs 1 and 2 of this article, notification of which is sent to the depositary after the entry into force of this Convention, shall not enter into force until until such denunciation as may be required of these States in respect of these instruments has entered into force. The depositary of this Convention shall consult with the Government of Belgium, acting as depositary of the instruments referred to in paragraph 1 of this article, in order to ensure the necessary coordination in this regard.
Article 90
Reservations
No reservations to this Convention shall be permitted.
Article 91
Procedure and consequences of declarations
1. Declarations permitted by Articles 74 and 78 may be made at any time. Initial declarations permitted by article 92, paragraph 1, and article 93, paragraph 2, are made at the time of signature, ratification, acceptance, approval or accession. No other declarations are permitted under this Convention.
2. Declarations made at the time of signature are subject to confirmation upon ratification, acceptance or approval.
3. Applications and their confirmations must be made in writing and officially communicated to the depositary.
4. The declaration shall take effect simultaneously with the entry into force of this Convention in respect of the State concerned. However, a declaration of which the depositary receives formal notice after such entry into force shall take effect on the first day of the month following the expiration of six months after the date of its receipt by the depositary.
5. Any State which has made a declaration under this Convention may at any time withdraw that declaration by giving formal written notification to the depositary. Withdrawal of a declaration or modification thereof, where permitted by this Convention, shall take effect on the first day of the month following the expiration of six months after the date of receipt of this notification by the depositary.
Article 92
Consequences for Intrastate Territorial Units
1. If a Contracting State has two or more territorial units in which different systems of law apply in matters governed by this Convention, it may, at the time of signature, ratification, acceptance, approval or accession, declare that this Convention shall apply to all its territorial units or only to one or more of them, and may change its declaration by submitting another declaration at any time.
2. These declarations shall be brought to the attention of the depositary and shall expressly indicate the territorial units to which the Convention applies.
3. Where a Contracting State has declared under this Article that this Convention applies to one or more territorial units, but not to all territorial units, then for the purposes of this Convention, a place located in the territorial unit to which this Convention does not apply, is not located in a Contracting State.
4. If a Contracting State does not make any declaration under paragraph 1 of this Article, then this Convention shall apply to all territorial units of that State.
Article 93
Participation of regional economic integration organizations
1. A regional economic integration organization established by sovereign States and competent in respect of certain matters governed by this Convention may also sign, ratify, accept or approve or accede to this Convention. In such case, the regional economic integration organization shall have the rights and obligations of a Contracting State insofar as that organization has competence in respect of the matters governed by this Convention. Where the number of Contracting States is relevant to this Convention, a regional economic integration organization shall not be considered a Contracting State in addition to its member States that are Contracting States.
2. A regional economic integration organization, at the time of signature, ratification, acceptance, approval or accession, shall make a declaration to the depositary indicating the matters which are governed by this Convention and in respect of which competence has been transferred to that organization by its member states. The regional economic integration organization shall promptly notify the depositary of any change in the distribution of competence referred to in a declaration made under this paragraph, including new transfers of competence.
3. Any reference to a "Contracting State" or "Contracting States" in this Convention shall be equally to a regional economic integration organization when the context so requires.
Article 94
Entry into force
1. This Convention shall enter into force on the first day of the month following the expiration of one year after the date of deposit of the twentieth instrument of ratification, acceptance, approval or accession.
2. For each State which becomes a Contracting State to this Convention after the date of the deposit of the twentieth instrument of ratification, acceptance, approval or accession, this Convention shall enter into force on the first day of the month following the expiration of one year after the deposit of the instrument in question, or document on behalf of that State.
3. Each Contracting State shall apply the provisions of this Convention to contracts of carriage concluded on or after the date on which this Convention enters into force in respect of that State.
Article 95
Review and amendment
1. At the request of at least one third of the Contracting States to this Convention, the Secretary-General of the United Nations shall convene a conference of Contracting States to review or amend it.
2. Any instrument of ratification and any instrument of acceptance, approval or accession deposited after the entry into force of an amendment to this Convention shall be deemed to relate to the Convention as amended.
Article 96
Denunciation of this Convention
1. This Convention may at any time be denounced by a Contracting State by written notification to the depositary.
2. The denunciation shall take effect on the first day of the month following the expiration of one year after the receipt by the depositary of such notification. If the notice specifies a longer period, the denunciation shall take effect upon the expiration of such longer period after the receipt by the depositary of such notice.
DONE at New York this eleventh day of December of the year two thousand and eight, in a single original, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic.
IN WITNESS WHEREOF the undersigned plenipotentiaries, being duly authorized thereto by their respective governments, have signed this Convention.
International transport law is a group of international principles and norms governing the transportation of goods and passengers across the territory of two or more states, and is currently a sub-branch of the law of international cooperation in the field of economics.
It should be borne in mind that transportation by sea, air, rail and road is carried out on the basis of both universal transport conventions (Convention for the Unification of Certain Rules for International Carriage by Air, 1929, Convention on the Contract for the International Carriage of Goods by Road, 1956, UN Convention on the Carriage of Goods by Sea 1978, etc.), and in accordance with bilateral agreements on transport communication and transportation (Russia participates in several dozen such agreements).
By general rule, the universal conventions apply regardless of the nationality of the ship, carrier, shipper, consignee or any other person concerned. The Conventions also apply if the carriages within their scope are carried out by States or governmental agencies or organizations. The rules of bilateral agreements apply as special rules to the provisions of multilateral conventions.
Under the conventions, the carrier is understood to be the person by whom or on whose behalf a contract for the carriage of goods is concluded with the consignor. Actual carrier - a person to whom the carrier has entrusted the carriage of goods or part of the carriage.
The term "shipper" means a person by whom or in whose name or on whose behalf a contract of carriage of goods by sea is entered into with a carrier, or any person by whom or in whose name or on whose behalf the goods are actually delivered to the carrier in connection with a contract of carriage by sea. "Consignee" is a person authorized to receive the cargo.
The concept of "cargo" includes live animals; where the goods are combined in a container or similar means of transport, or when they are packaged, "cargo" includes such means of transport or packaging, if provided by the shipper.
Transportation rules various types transport are regulated by special sources.
International air transportation
The provisions on international air transportation are contained primarily in the Convention for the Unification of Certain Rules for International Carriage by Air of 1929 (in 1955, the Convention was supplemented by the Hague Protocol, which involves about 100 states, including Russia), the Chicago Convention on International civil aviation 1944 In addition to these documents, Russian Federation dozens of bilateral agreements on air traffic have been concluded.
The 1929 Convention applies to the international carriage of people, baggage or goods by means of an aircraft, both for a fee and free of charge. The Convention applies to carriage by a State or legal entities. The Convention regulates the issuance of transport documents (travel tickets, baggage checks, air transportation documents), the content of the contract of carriage, the rules on the liability of the carrier are established, and the issues of multimodal transport are regulated.
Bilateral agreements determine the procedure for the establishment and operation of international airlines. States appoint national airlines to operate contractual lines on designated routes, establish conditions for the granting and cancellation of permits, regulate the issue of tariffs, customs duties, aviation security rules, etc.
International rail transport
Rail transport is regulated primarily by the Convention on International Carriage by Rail of 1980. This Convention combined the texts of the Berne Convention on the Carriage of Goods by Rail of 1890 and the Berne Convention on the Carriage of Passengers and Luggage by Rail. The Convention establishes the rules for the carriage of goods and passengers by rail, the terms of payments and insurance of goods in transit, liability railways, the procedure for filing claims and lawsuits.
In relations between the Russian Federation and the countries of Eastern Europe, the Agreement on International Freight Transport (SMGS) is in force.
International shipping
In international merchant shipping, two forms of transportation have developed: regular and irregular (charter). Regular transportation is documented by a bill of lading issued by the carrier to the consignor when the cargo is transferred to the carrier. Charter flights are carried out most often with the help of an intermediary on the basis of a freight contract concluded in accordance with the rules and national legislation.
Legal status The bill of lading is regulated by the Convention on the Unification of Certain Rules on Bills of Lading of 1924 and its Protocol of 1968 (Russia does not participate in the Convention and the Protocol).
The 1924 Convention defines the concepts used in maritime transportation (carrier, contract of carriage by sea, transportation, cargo, bill of lading, ship), establishes the rules for accepting cargo and issuing a bill of lading, the carrier's liability limits, etc.
Maritime transport issues are regulated in the Russian Federation by bilateral agreements on trade, shipping and navigation and other documents.
International road transport of goods
The rules for international road transport of goods are regulated by the multilateral Convention on the Contract for the International Carriage of Goods by Road of 1956 (Russia participates), as well as bilateral agreements on international road transport (there are several dozen of them).
The 1956 Convention applies to contracts for the carriage of goods by road for reward by means of vehicles when the place of loading of the goods and the place of delivery of the goods specified in the contract are located in the territory of two different countries, of which at least one is a party to the Convention.
It must be borne in mind that the application of the Convention does not depend on the place of residence and nationality or nationality of the parties to the contract.
The Convention defines the persons for whom the carrier is responsible, the procedure for concluding and amending the contract of carriage, the requirements for the consignment note, the procedure for the acceptance and transfer of goods, the liability of the carrier, the presentation of claims and lawsuits, the rules for carriage by several carriers.
Documents and literature
Charter of Economic Rights and Duties of States of 1974 // Current International Law / Comp. Yu. M. Kolosov and E. S. Krivchikova. T. 3. S. 135-145.
Agreement about European Union 1992 // Ibid. pp. 211-225.
Agreement establishing the World Trade Organization 1994 // Ibid. pp. 162-173.
Agreement on the principles of convergence of the economic legislation of the states - participants of the Commonwealth of 1992 // BMD. 1993. No. 10.
Agreement on cooperation in the field of investment activity in 1993 // BMD. 1995. No. 4.
Biryukov P. N. Contract for the international sale of goods. International commercial arbitration. Voronezh, 1994.
Biryukov P.N. Issues of international private law. Voronezh, 1996.
Biryukov P.N. Issues of private international law. Issue. 2. Voronezh, 1997.
Boguslavsky M.M. International private law. M., 1996.
Velyaminov G.M. Fundamentals of international economic law. M., 1994.
Well international law. In 7 vols. T. 4. M., 1991.
Magomedova A. I. Organizational structure GATT // Jurisprudence. 1994. No. 4.
Malinin S.A., Magomedova A.I. On the "law of the GATT" //Jurisprudence. 1995. No. 1. pp.52-59.
The world is becoming more transparent. States open their borders to others, trade relations are being established. This gives a strong impetus to the rapid development of such an area as international cargo transportation. Many cars are trying to make money on this transport companies. Therefore, it became necessary to regulate the behavior of all players. This is how conventions and basic rules for international road transport arose.
Features of international cargo transportation
International transportation, unlike domestic, has a number of features affecting such areas:
- organization of road communication;
- crossing the border of states;
- technical assistance to vehicles arriving from another country.
Safety is one of the main factors and requirements put forward to the carrier. To ensure the fulfillment of this condition, transport routes are used that meet international standards, unified rules of the road are established, road signs and signals are brought to a single form. Violation of international rules for the carriage of goods by road is severely punished, especially in terms of road safety standards.
Regulatory documents
The features listed above are stipulated in a number of international acts. They are conditionally divided into five groups.
Installing car communications
Agreements are usually concluded between the governments of countries (Russia has concluded more than 35 agreements). Here, motorways, their legal regime are specified, routes are established, the procedure for issuing permits, the distribution of cargo transportation volumes in equal shares, specifications used transport, technical control procedure.
Bilateral agreements establish the principle of the licensing system, according to which the competent authority issues an admission for one round trip with a loaded or empty vehicle. Exceptions are also mentioned under which certain rules may be violated. In particular, this applies to the transportation of the deceased, transport, animals, property and other circumstances.
Organization of regular lines between states
We are talking about special agreements between governments and individual organizations that determine regular automobile lines that are allowed to be used for the delivery of goods. These documents define routes, introduce a schedule for carriers, stipulate the amount of the fee, duties and responsibilities of the signatories.
The question of the functioning of regular transport lines is so important that some European states entered into a special agreement between them, which is abbreviated as AGTC, or AGTC.
Use of motor transport routes, requirements for the vehicle and the driver
The third group of documents is, first of all, the 1968 Convention on Road Traffic. It unifies the rules of conduct on the road, introduces requirements for cars and other vehicles used in this type of cargo transportation, registration numbers. Part of the document is devoted to the topic of driver training and compliance. Samples of driver's licenses are introduced and the reasons for their cancellation due to various violations are described.
Another important document is the 1978 Convention on Road Signs and Signals, which brings them to a single general view. The text provides their detailed characteristics, description, locations and compliance procedures.
Cargo transportation
The groups of documents referred to above are only an addition to the 1961 Convention on the Contract for the International Carriage of Goods by Road, as well as two agreements:
- on international road transport of goods, or CMR (1969);
- on the international transportation of perishable products and special vehicles intended for these purposes (1976).
CMR (CMR)
As stated above, the Convention on the Carriage of Goods by car 1969 is one of the main sources of regulation. Its adoption was initiated by the Inland Transport Committee of the UN European Commission. Russia has been participating in the treaty since 1983 as the legal successor of the USSR, which joined the KDPD (another name for the document) in 1983.
The Convention in the field of international road transport applies if the place of delivery or acceptance is in the country that is the area of validity of the document. The terms of the contract that are not regulated by the provisions of the Convention shall be interpreted in accordance with the norms of the legislation of the country of one of the signatories.
The document has an imperative character and is obligatory for execution by the parties that signed it. All provisions of the contract for the carriage of goods that are contrary to these rules are considered invalid.
The main requirements of the CMR relate to the registration and acceptance of cargo, the timing of its delivery, issuance, liability, the procedure and conditions for filing claims and lawsuits.
Invoice CMR
According to an international agreement, when transporting goods in international directions, an invoice is issued. It does not replace the contract, but certifies the fact of its conclusion.
The document must include requisites:
- date and place of drawing up the contract of carriage;
- for an individual entrepreneur - full name, for a company - the name, as well as the addresses of persons or organizations that send, receive and transport cargo;
- place of receipt and delivery of the shipment, date of receipt;
- marking, type of packaging, if hazardous products are transported - the presence of an appropriate sign;
- the number of packages, marking, if there are several - then the number of each;
- the exact quantity transported, usually the mass with packaging (gross weight) is used;
- payments made;
- instructions that are necessary to comply with customs formalities;
- a note that the carriage will take place regardless of the provisions of the Convention.
Sometimes the document contains other information. To additional information indicated in the invoice include:
- a note about the prohibition of overload;
- payments made by the sender and those that must be paid upon delivery of the item;
- the cost of goods, the amount of interest in delivery;
- insurance requirements and instructions (provided by the carrier), etc.
The FMC consignment note is signed by the sender and the carrier. It is issued in triplicate, which remain with the sender and the carrier, the consignee.
International documents for cargo transportation
When crossing the border, other acts are drawn up.
Declaration EX-1
This document accompanies export products manufactured in the EU and exported outside the Commonwealth. Declaration EX-1 allows you to avoid paying local VAT. It is issued by the seller of the goods or the buyer during expert customs clearance before the export of the goods. For the buyer, the document can be issued by a freight forwarder or a representative of a freight forwarding company. The export declaration is canceled when crossing the border of the European Union. The document is drawn up in in electronic format on the European server.
Declaration T1
Unlike the previous one, the T1 declaration accompanies goods produced outside of Europe. If the cargo is imported by cars, it is processed at customs warehouses. This procedure is the responsibility of authorized representatives of the supplier or carrier.
TIR system
This system was introduced in order to simplify the border crossing for trucking companies during the transit of goods. Another function is to make transparent the rules for international transportation of goods by road, according to which the customs of different countries work. The system operates in more than 50 countries of the world, more than 4 thousand carriers are guided by it.
According to the TIR system, transport companies and individual entrepreneurs engaged in road transport comply with the following rules:
- transported goods are sealed, access to them is excluded;
- carry a TIR carnet (English name - Carnet TIR).
TIR Carnet accompanies the cargo between the customs of the countries. It contains a sender and a recipient. The document is drawn up by authorized bodies (for example, in the Russian Federation - ASMAP).
Outwardly, the document is a notebook with a dark yellow cover, inside there is a manifesto, paired vouchers (they are confiscated during customs clearance), and a protocol. Each such notebook has an individual number, which is a combination of letters and numbers.
The validity of the document is limited. The end date is stamped on the cover. To get a TIR notebook, you must have an international transport permit and a vehicle permit card.
Features of competition in international road transport
In international freight transport, the level of competition is quite high. So, according to some data, the number of players from Asia and Europe reaches a thousand only in the country.
common tool competition regulation is a licensing system. According to it, transport operators who have received the appropriate permits, or “permits”, gain access to the market. Such systems operate in most countries of the world. The conditions and procedure for issuing permits are regulated by intergovernmental agreements.
Each responsible and aspiring road carrier must know the documents, conventions on road transport freight transport. This will help to avoid errors in work and deliver goods to the recipient without hindrance, as well as earn advantages over their competitors.
The customer concludes an agreement with a resident organization of the Russian Federation, a freight forwarder for freight forwarding services, including export-import, with the right to conclude contracts for the international carriage of goods by the freight forwarder, with a single reference to Russian legislation, including the Law "On Freight Forwarding Activities" . Is it legal not to mention and apply (not be guided by) the CMR (Convention on the Contract for the International Carriage of Goods) in the relationship between the Customer and the freight forwarder, or if this convention is not used, conflicts that cannot be resolved under the law on TED may arise?
Answer
The parties may not apply the provisions on the contract for the carriage of goods if it is not planned to carry out international transportation. However, in the event that the place of loading of the goods and the place of delivery of the goods specified in the contract are located in the territory of two different countries, the provisions will apply regardless of the absence of these provisions in the contract.
Additionally, you can read:
The rationale for this position is given below in the materials of "Systems Lawyer"
« Treaty transport expedition is very much in demand. It is widely used by business entities in their activities, as it is beneficial to both the client and the freight forwarder.
Under a transport expedition agreement, one party (the forwarder) undertakes, for a fee and at the expense of the other party (the client-shipper or consignee), to perform or organize the execution of the expedition specified in the agreement (). At the same time, the forwarder may not have its own fleet, but distribute orders among freight carriers.
In practice, there are often situations when the shipper imposes on the carrier some obligations that go beyond the scope of the subject. In such cases, the court may reclassify the concluded agreement as a transport expedition agreement or determine it as a mixed one. Such relations will be subject to the rules for the implementation of a transport expedition ().
Example from practice: the court qualified the contract as a mixed one (forwarding and transportation of goods), since its subject matter includes both the conditions for the carriage of goods and the conditions for the organization of transportation
166.212(11,17)
Advice
If the parties plan to conclude a mixed contract of carriage and forwarding, then you need to:
The parties determine the terms of the contract independently, unless otherwise provided:
- “On Forwarding Activities” (hereinafter referred to as the Law on TED);
- approved (hereinafter referred to as the TED Rules);
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