CMNI-Convention in relation to

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1 -Convention in relation to the Bratislava Agreements Zsolt Kovács Gárdos, Füredi, Mosonyi, Tomori Law Firm 6th IVR-Colloquium 22nd and 23rd January 2009 Prague

2 HISTORY IN BRIEF Unlike on the Rhine, alongside the Danube the riparian countries never had a sophisticated t system of cooperation. The Danube inland waterway transport was governed by the Belgrade Convention, which regulated (and still regulates) only a rather limited segment of the navigation on the Danube. At the same time most of the Danube countries belonged to the communist block, which meant only one (state owned) shipping company in each country. When the need arose to create a private law framework in the early 1950 s, these monopolist companies agreed on the conditions they would use in respect of the river transportation. Together with the fact that the Danube was a fully separated waterway, this had an actual effect of this agreement - the Bratislava Agreements of being used as a kind of an international treaty. 1

3 THE WIND OF CHANGE DMR Canal Opening of the Rhine-Main-Donau Canal meant that new carriers appeared applying their own conditions and not the Bratislava Agreements Fall of the communist regimes 2

4 THE WIND OF CHANGE DMR Canal Fall of the communist regimes The shipping market in the Danube countries became free that is the state owned shipping companies had been privatized and new shipping companies have been formed The Bratislava Agreements gradually lost its perceived role as a international agreement on the multiplayer markets 3

5 THE WIND OF CHANGE DMR Canal Fall of the communist regimes Until the coming into force of in 2005 the laws of the Danube countries on inland transportation were still different The Bratislava Agreements could still played the role of a unified set of rules as the laws on the contract of carriage were mostly dispositive, i.e. the parties could freely agree on the application of the Bratislava Agreements changed this fundamentally being a genuine international treaty 4

6 THE NEW SITUATION AFTER SCOPE is applicable to any contract of carriage in the international inland waterway transport, if at least one of the ports is in a state APPLICATION CHOICE OF LAW 5

7 THE NEW SITUATION AFTER SCOPE Within its scope steps into the place of the local laws Domestic (national) laws and individual contracts may supplement the rules of but may not contradict it APPLICATION CHOICE OF LAW General transport conditions will have to be measured against and not the local transport laws is applicable regardless of the nationality, place of registration or home port of the vessel the nationality, domicile, registered office or place of residence of the carrier 6

8 THE NEW SITUATION AFTER SCOPE Freedom of choice limited APPLICATION The law chosen by the parties is only applicable in questions not regulated by No use to agree in the application of the law of a jurisdiction outside, if the port of loading or discharge is in a state CHOICE OF LAW that is primer to the Bratislava Agreements on an international level as its members are states, however may the Bratislava Agreement be in force in any of the members of, in case of no contradiction, the terms of Bratislava Agreement may be supplementing the. 7

9 THE BRATISLAVA AGREEMENTS The Bratislava Agreements include several agreements, which the member companies undertake to apply in their inland navigation activity The main areas General terms and conditions of international carriage of goods on the Danube Freight policies General average Mutual assistance at accidents Harbor agency activities Transport of flarge containers Repair The interlap between Bratislava Agreements and The rules of international carriage of goods 8

10 MEMBERS OF THE AND THE BRATISLAVA AGREEMENTS Czech Republic France Luxembourg Netherlands Switzerland Bulgaria Croatia Germany Hungary Romania Russian Federation Slovakia BRATISLAVA AGREEMENTS (countries with shipping companies that are members) Austria Serbia and Montenegro Ukraine 9

11 APPLICATION OF THE BRATISLAVA AGREEMENT AFTER The Bratislava Agreement may apply only if the does not resolve on a certain issue. expressly prohibits certain derogations in particular the exclusion or limitation of the carrier s liability to the extent below the level provided for in such clauses in general conditions are null and void Bratislava Agreement in its entirety may only be applied if the carriage is between two ports in countries not ratified If a covered port is involved in the carriage, the clauses of the Bratislava Agreement shall not apply to the extent they are in contradiction with with special regard to those provisions derogation from which is null and void. The practical result for carriers using Bratislava Agreement as general conditions Uncertainty for the carrier as to the actual content of its general conditions 10

12 1 DIFFERENCES IN THE AGREEMENTS - LIABILITY Bratislava Agreement 1 2 Liability Exoneration Loss or damage to goods; Delay in delivery of goods; 3 Special cases of exoneration 4 Limits of liability 5 Objection, enforcement of claim 11

13 2 DIFFERENCES IN THE AGREEMENTS - EXONERATION Bratislava Agreement 1 2 Liability Exoneration No general rule The general rule: If the loss was due to circumstances which a diligent carrier could not have prevented and the consequences of which he could not have averted 3 Special cases of exoneration 4 Limits of liability 5 Objection, enforcement of claim 12

14 3 DIFFERENCES IN THE AGREEMENTS SPECIAL CASES Bratislava Agreement 1 Liability Only specific cases of exoneration Some of the specific cases (strike, war etc.) would probably fall under the general exoneration rule of the Exoneration Special cases of Exoneration Limits of liability Objection, enforcement of claim force majeure, emergency; acts and conducts of authorities or administrative offices; war and other violence; actions launched by employees, union; the shipper breached the restriction of prohibited shipping; defaults and breach by the shipper or other acts that are in conflict with the BA; undetectable faults of the goods; nature of the goods; Loss of the cargo to the extent its usual by its nature damage caused by the receiver s devices on taking over the goods. the goods were handed over intact and the shipper s lead was intact; the goods were forwarded in intact package and no signs imply opening of the package the goods were shipped with a due guard on stand acts or omissions of the shipper, the consignee or the person entitled to dispose of the goods; handling, loading, stowage or discharge of the goods by the shipper, the consignee or third parties acting on behalf of the shipper or the consignee; carriage of the goods on deck or in open vessels, nature of the goods; lack of or defective condition of packaging insufficiency or inadequacy of marks identifying the goods; rescue or salvage operations or attempted rescue or salvage operations on inland waterways; carriage of live animals, unless the carrier has not taken the measures or observed the instructions agreed upon in the contract of carriage. 13

15 4 DIFFERENCES IN THE AGREEMENTS LIMITS OF LIABILITY Bratislava Agreement Liability Exoneration Special cases of exoneration Limits of liability Objection, enforcement of claim If the freight documents indicate the value of the shipped goods, the carrier's liability shall be up to that value (or the parties may mutually stipulate a higher amount). If the value is not indicted, the following rules apply: actual value of the goods or the limited liability up to units of loss; BUT the carrier is liable up to EUR 320 / piece or EUR 96/ ton, maximum. Comment: If the BA amounts would be less than the amounts then the shall prevail. In any case the limits may not be broader than that defined in. account per package or other shipping unit, or 2 units of account per kilogram of weight, specified in the freight document, of the goods lost or damaged, whichever is the higher. 14

16 5 DIFFERENCES IN THE AGREEMENTS OBJECTION, ENFORCEMENT OF CLAIM Bratislava Agreement 1 Liability 1 year 1 year 2 Exoneration 3 Special cases of exoneration 4 Limits of liability 5 Objection, enforcement of claim 15

17 We still do not have a truly unified system of transport law on this great European inland waterway. It is high time to have it! 16

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