CELEX: 52014PC0721
Language: en
Date: 2014-12-08
Title: Proposal for a COUNCIL DECISION authorising Austria, Belgium and Poland to ratify, or to accede to, the Budapest Convention on the Contract for the Carriage of Goods by Inland Waterways ( CMNI)

|
			
		
		
		52014PC0721
		
			Proposal for a COUNCIL DECISION authorising Austria, Belgium and Poland to ratify, or to accede to, the Budapest Convention on the Contract for the Carriage of Goods by Inland Waterways ( CMNI) /* COM/2014/0721 final - 2014/0345 (NLE) */
			
				
		
		
			
			   	EXPLANATORY MEMORANDUM
1.           CONTEXT OF THE PROPOSAL
The Commission proposes that the Council
authorizes Austria and Poland to ratify, or to accede to, the Budapest
Convention on the Contract for the Carriage of Goods by Inland Waterways (CMNI)
(the "Budapest Convention"). The Budapest Convention has been adopted
by the Diplomatic Conference organised jointly by the Central
Commission for the Navigation of the Rhine and the Danube Commission in
collaboration with the United Nations Economic Commission for Europe.
The Budapest Convention, entered into force
on 1 April 2005, has proven to be a great success and contributes to the
internal market in the field of transport. It is
intended to harmonize contractual and inland navigational standards among
European countries. Eleven of the Member States of
the Union, namely Belgium[1],
 Bulgaria, Croatia, Czech Republic, France, Germany, Hungary, Luxembourg, the Netherlands, Romania, Slovakia are already Contracting Parties to this Convention. Cyprus, Denmark, Estonia, Finland, Greece, Ireland, Italy, Latvia, Lithuania, Malta, Portugal, Slovenia, Spain, Sweden and United Kingdom have indicated to the Commission that
they do not have inland waterways covered by the scope of the Budapest
Convention. 
Austria and Poland have expressed on several occasions their interest in becoming Parties to the
Convention; indeed their participation will foster the broad implementation of
this legal instrument with benefits for citizens and businesses.
2.           RESULTS OF CONSULTATIONS
WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS
The issue of the accession of Austria and Poland to the Budapest Convention has been discussed several times in the meetings of
the Working Party on Civil Law Matters (General Questions).
Even those Member States which do not
intend to become party to the Convention would support the Commission's
initiative aimed at allowing Austria and Poland to ratify or to accede to the
Budapest Convention.
The present proposal was also strongly
promoted by the European Associations representing the
inland navigation industry (European Barge  Union and IVR-International Association for the representation of the mutual
interests of the inland shipping and the insurance and for keeping the register
of inland vessels in Europe-).
3.           LEGAL ELEMENTS OF THE
PROPOSAL
Article 29 of the Budapest Convention
contains provisions on the choice of law by the parties to a contract of
carriage falling under the Convention. Those provisions affect the rules laid
down in Regulation (EC) No 593/2008 on the law applicable to contractual
obligations (Rome I)[2].
Therefore, the Budapest Convention is an agreement falling partly under
exclusive European Union competence. Member States cannot ratify or accede to
it without a Union authorization (Article 2(1) TFEU). 
The Commission observes that Belgium has ratified the Budapest Convention on 5 August 2008, after the adoption and the
entry into force of the Rome I Regulation on 24 July 2008. It is therefore
necessary to address the Union authorization also to Belgium, in order to
rectify the current unlawful situation.
The Commission also notes that only some
Member States have shown interest in being party to the Convention. Other
Member States do not consider themselves to be concerned as they consider not
having inland waterways which would be covered by the scope of the Budapest
Convention. Moreover, the Convention does not provide for the possibility for
the Union to become a party and in any event the Commission does not intend at
this stage to propose to approve that the Union be bound by the Convention in
any other way. 
There is no uniform definition of inland
waterways in the EU legislation concerning inland navigation. The scope of
application of some directives or regulations with regard to waterways is
regulated differently by each legal act. For example, Directive 2006/87/EC on
technical requirements for inland waterway vessels[3] contains a list of
waterways to which the directive applies (Annex I). This list is based on
notifications from Member States which declare where the directive should be
applicable on their territories. On the other hand, Directive 96/50/EC on the
harmonization of the conditions for obtaining national boatmasters'
certificates for the carriage of goods and passengers by inland waterway in the
Community[4]
has a different system for determining which waterways are covered by the scope
of the directive. In principle the directive applies to all waterways in the EU
with the exemption of the Rhine and other water ways mentioned in Annex II to
Directive 91/672/EEC.
The Union may exceptionally authorise one
or several Member States to be party to the Convention. In this case the
exclusive competence is limited to a single provision, and the authorisation does not constitute an obstacle to the implementation of the Union’s external policy on judicial cooperation in civil and commercial matters. The request of Austria and Poland is in particular justified since
other Member States became a party to the Convention before Regulation (EC)
No 593/2008 was adopted. This authorization should be
without prejudice to the exclusive competence of the Union, and tries to meet a
very specific situation. 
The Council Decision shall be therefore
addressed only to Austria, Belgium and Poland.
Under Article 30 of the Budapest
Convention, Contracting States have the possibility to make declarations on the
scope of application of the Convention. The Member States concerned may, when
acceding to the Convention, make the appropriate declarations allowed under its
provisions which they deem necessary. The text of such declarations should be
attached to the Council Decision. […]
2014/0345 (NLE)
Proposal for a
COUNCIL DECISION
authorising Austria, Belgium and Poland to ratify, or to accede to, the Budapest Convention on the Contract for the
Carriage of Goods by Inland Waterways ( CMNI)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the
Functioning of the European Union, and in particular Articles 2(1) and 81(2),
in conjunction with point (a) of Article 218(6) thereof,
Having regard to the proposal from the
European Commission,
Having regard to the consent of the
European Parliament[5],

Whereas:
(1)       The Union is working towards the establishment of a common judicial area
based on the principle of mutual recognition of judicial decisions.
(2)       The
Budapest Convention on the contract for the carriage of goods by inland
waterways (CMNI) (hereinafter "the Budapest
Convention") is a valuable instrument to promote
inland navigation across Europe. 
(3)       The Union has exclusive
competence at least with regard to Article 29 of the Budapest Convention on the
Contract for the Carriage of Goods by Inland Waterways (CMNI) in so far as
those provisions affect the rules laid down in Regulation (EC) No 593/2008
on the law applicable to contractual obligations (Rome I)[6].
(4)       The Budapest Convention is
not open to participation by regional economic integration organisations. As a
result, the Union is not in a position to become a Contracting Party to the
Budapest Convention.
(5)       The Member States which
have navigable inland waterways coming in the scope of the Budapest Convention
should therefore be authorised to ratify or to accede to the Convention.
(6)       Eleven of the
Member States of the Union, namely Belgium, Bulgaria, Croatia, Czech Republic, France, Germany, Hungary, Luxembourg, the Netherlands, Romania, Slovakia are Contracting Parties to the Budapest Convention.
(7)       Belgium has ratified the
Convention on 5 August 2008, therefore after the adoption of the Rome I Regulation.
It is therefore necessary that the Council authorizes ex post Belgium to ratify the Budapest Convention.
(8)       Austria and Poland, which have navigable inland waterways coming in the scope of the Budapest
Convention, expressed their interest in becoming Contracting Parties.
(9)       The remaining
Member States of the Union indicated that they do not have inland
waterways covered by the Budapest Convention and thus they do not have an
interest in ratifying or acceding to the Convention.
(10)      The Budapest Convention
provides for a possibility for the Contracting States to make declarations with
regard the scope of application of the Convention. Accordingly, Austria and Poland should, when acceding to the Convention, make the appropriate declarations
allowed under its provisions which they deem necessary. The text of such
declarations should be attached to this Decision.
(11)     The United Kingdom and Ireland are bound by Regulation (EC) No 593/2008 of 17 June 2008 on the law
applicable to contractual obligations (Rome I) and are therefore taking part in
the adoption of this Decision.
(12)     In
accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the Treaty on European Union and to the Treaty on the Functioning of the
European Union, Denmark is not taking part in the adoption of this Decision and
is not bound by it or subject to its application. 
HAS ADOPTED THIS DECISION: 
Article 1
1. The Council hereby authorizes Austria, Belgium and   Poland to ratify, or to accede to, the Budapest
Convention on the contract for the carriage of goods by inland waterways
(CMNI), subject to the conditions set out in Articles 2.
2. The text of the Convention is attached
to this decision as Annex I. 
Article 2
The Council hereby authorizes Austria and Poland to make the appropriate declarations allowed under the provisions of the
Convention when ratifying or acceding to the Budapest Convention.
This Decision is addressed to Austria, Belgium and   Poland.
Done at Brussels,
                                                                       For
the Council
                                                                       The
President
[1]               According to the UNECE website, Belgium has ratified the Budapest Convention on 5 August 2008, therefore after the entry into force
of Regulation (EC) No 593/2008 on the law applicable to contractual
obligations (Rome I).
[2]               OJ L 177, 4.7.2008, p. 6.
[3]               OJ L 389, 30.12.2006, p.1-260.
[4]               OJ L 235, 17.9.1996, p. 31–38
[5]               OJ C […], […], p. […].
[6]               OJ L 177, 4.7.2008, p. 6.
Budapest Convention on the
Contract for the Carriage of Goods by Inland Waterways (CMNI)
Adopted
by the Diplomatic Conference Organized Jointly by CCNR, the Danube Commission
and UN/ECE, held in Budapest from 25 September to 3 October 2000.
The States Parties to
this Convention,
Considering
the recommendations of the Final Act of the Conference on Security and
Cooperation in Europe of 1 August 1975 for the harmonization of legal regimes
with a view to the development of transport by member States of the Central
Commission for the Navigation of the Rhine and the Danube Commission in
collaboration with the United Nations Economic Commission for Europe,
Having recognized the necessity and desirability of establishing by common agreement
certain uniform rules concerning contracts for the carriage of goods by inland waterway,
Have decided
to conclude a Convention for this purpose and have thereto agreed as follows:
CHAPTER I GENERAL
PROVISIONS
Article 1 Definitions
In this Convention,
(1)                   
"Contract of carriage" means any
contract, of any kind, whereby a carrier undertakes against payment of freight
to carry goods by inland waterway;
(2)                   
"Carrier" means any person by whom or
in whose name a contract of carriage has been concluded with a shipper;
(3)                   
"Actual carrier" means any person,
other than a servant or an agent of the carrier, to whom the performance of the
carriage or of part of such carriage has been entrusted by the carrier;
(4)                   
"Shipper" means any person by whom or
in whose name or on whose behalf a contract of carriage has been concluded with
a carrier;
(5)                   
"Consignee" means the person entitled
to take delivery of the goods;
(6)                   
"Transport document" means a document
which evidences a contract of carriage and the taking over or loading of goods
by a carrier, made out in the form of a bill of lading or consignment note or
of any other document used in trade;
(7)                   
"Goods" does not include either towed
or pushed vessels or the luggage or vehicles of passengers; where the goods are
consolidated in a container, on a pallet or in or on a similar article of
transport or where they are packed, "goods" includes such article of transport or packaging if supplied by the
shipper;
(8)                   
"In writing" includes, unless
otherwise agreed between the parties concerned, the transmission of information
by electronic, optical or similar means of communication, including, but not
limited to, telegram, facsimile, telex, electronic mail or electronic data
interchange (EDI), provided the information is accessible so as to be usable
for subsequent reference.
(9)                   
The law of a State applicable in accordance with
this Convention means the rules of law in force in that State other than its
rules of private international law.
Article 2 Scope of application
(1)                   
This Convention is applicable to any contract of
carriage according to which the port of loading or the place of taking over of
the goods and the port of discharge or the place of delivery of the goods are
located in two different States of which at least one is a State Party to this
Convention. If the contract stipulates a choice of several ports of discharge
or places of delivery, the port of discharge or the place of delivery to which
the goods have actually been delivered shall determine the choice.
(2)                   
This Convention is applicable if the purpose of
the contract of carriage is the carriage of goods, without transshipment, both
on inland waterways and in waters to which maritime regulations apply, under
the conditions set out in paragraph 1, unless:
a)            
a maritime bill of lading has been issued in
accordance with the maritime law applicable, or
b)            
the distance to be travelled in waters to which
maritime regulations apply is the greater.
(3)                   
This Convention is applicable regardless of the
nationality, place of registration or home port of the vessel or whether the
vessel is a maritime or inland navigation vessel and regardless of the
nationality, domicile, registered office or place of residence of the carrier,
the shipper or the consignee.
CHAPTER II
RIGHTS AND OBLIGATIONS OF THE CONTRACTING PARTIES
Article 3
Taking over, carriage
and delivery of the goods
(1)                   
The carrier shall carry the goods to the place
of delivery within the specified time and deliver them to the consignee in the
condition in which they were handed over to him.
(2)                   
Unless otherwise agreed, the taking over and
delivery of the goods shall take place on board the vessel.
(3)                   
The carrier shall decide which vessel is to be
used. He shall be bound, before and at the beginning of the voyage, to exercise
due diligence to ensure that, taking into account the goods to be carried, the
vessel is in a state to receive the cargo, is seaworthy and is manned and
equipped as prescribed by the regulations in force and is furnished with the
necessary national and international authorizations for the carriage of the
goods in question.
(4)                   
Where it has been agreed that the carriage shall
be performed by a specific vessel or type of vessel, the carrier shall be
entitled to load or transship the goods in whole or in part
on to another vessel or on to another type of vessel without the consent of the
shipper, only:
a)            
in circumstances, such as low water or collision
or any other obstacle to navigation, which were unforeseeable at the time when
the contract of carriage was concluded and in which the loading or
transshipment of the goods is necessary in order to perform the contract of
carriage, and when the carrier is unable to obtain within an appropriate period
of time instructions from the shipper, or
b)            
when it is in accordance with the practice
prevailing in the port where the vessel
is located.
(5)                   
Except as provided by the obligations incumbent
on the shipper, the carrier shall ensure that the loading, stowage and securing
of the goods do not affect the safety of the vessel.
6. The carrier is
entitled to carry the goods on deck or in open vessels only if it has been agreed
with the shipper or if it is in accordance with the usage of the particular
trade or is required by the statutory regulations.
Article 4 Actual carrier
(1)                   
A contract complying with the definition set out in article 1, paragraph 1, concluded between a carrier and an actual carrier constitutes a
contract of carriage within the meaning of this Convention. For the purpose of
such contract, all the provisions of this Convention concerning the shipper
shall apply to the carrier and those concerning the carrier to the actual
carrier.
(2)                   
Where the carrier has entrusted the performance
of the carriage or part thereof to an actual carrier, whether or not in
pursuance of a liberty under the contract of carriage to do so, the carrier
nevertheless remains responsible for the entire carriage according to the
provisions of this Convention. All the provisions of this Convention governing
the responsibility of the carrier also apply to the responsibility of the
actual carrier for the carriage performed by him.
(3)                   
The carrier shall in all cases inform the
shipper when he entrusts the performance of the carriage or part thereof to an
actual carrier.
(4)                   
Any agreement with the shipper or the consignee
extending the carrier's responsibility according to the provisions of this
Convention affects the actual carrier only to the extent that he has agreed to
it expressly and in writing. The actual carrier may avail himself of all the
objections invocable by the carrier under the contract of carriage.
(5)                   
If and to the extent that both the carrier and
the actual carrier are liable, their liability is joint and several. Nothing in
this article shall prejudice any right of recourse as between them.
Article 5 Delivery time
The carrier shall deliver the goods within
the time limit agreed in the contract of carriage or, if no time limit has been
agreed, within the time limit which could reasonably be required of a diligent
carrier, taking into account the circumstances of the voyage and unhindered
navigation.
Article 6 Obligations of the shipper
(1)                   
The shipper shall be required to pay the amounts
due under the contract of carriage.
(2)                   
The shipper shall furnish the carrier in
writing, before the goods are handed over, with the following particulars
concerning the goods to be carried: 
a)            
dimensions, number or weight and stowage factor of the goods;
b)            
marks necessary for identification of the goods;
c)            
nature, characteristics and properties of the
goods;
d)           
instructions concerning the Customs or
administrative regulations applying to the goods;
e)            
other necessary particulars to be entered in the
transport document.
The shipper shall also hand over to the
carrier, when the goods are handed over, all the required accompanying
documents.
(3)                   
If the nature of the goods so requires, the
shipper shall, bearing in mind the agreed transport operation, pack the goods
in such a way as to prevent their loss or damage between the time they are
taken over by the carrier and their delivery and so as to ensure that they do
not cause damage to the vessel or to other goods. According to what has been agreed
with a view to carriage, the shipper shall also make provision for appropriate
marking in conformity with the applicable international or national regulations
or, in the absence of such regulations, in accordance with rules and practices
generally recognized in inland navigation.
(4)                   
Subject to the obligations to be borne by the
carrier, the shipper shall load and stow the goods and secure them in
accordance with inland navigation practice unless the contract of carriage
specifies otherwise.
Article 7 Dangerous and polluting goods
(1)                   
If dangerous or polluting goods are to be
carried, the shipper shall, before handing over the goods, and in addition to
the particulars referred to in article 6, paragraph 2, inform the
carrier clearly and in writing of the danger and the risks of pollution
inherent in the goods and of the precautions to be taken.
(2)                   
Where the carriage of the dangerous or polluting
goods requires an authorization, the shipper shall hand over the necessary
documents at the latest when handing over the goods.
(3)                   
Where the continuation of the carriage, the
discharge or the delivery of the dangerous or polluting goods are rendered
impossible owing to the absence of an administrative authorization, the shipper
shall bear the costs for the return of the goods to the port of loading or a
nearer place, where they may be discharged and delivered or disposed of.
(4)                   
In the event of immediate danger to life,
property or the environment, the carrier shall be entitled to unload the goods,
to render them innocuous or, provided that such a measure is not
disproportionate to the danger they represent, to destroy them, even if, before
they were taken over, he was informed or was apprised by other means of the
nature of the danger or the risks of pollution inherent in the goods.
(5)                   
Where the carrier is entitled to take the
measures referred to in paragraphs 3 or 4 above, he may
claim compensation for damages.
Article 8 Liability of the shipper
(1)                   
The shipper shall, even if no fault can be
attributed to him, be liable for all the damages and costs incurred by the
carrier or the actual carrier by reason of the fact that:
(a)                   
the particulars or information referred to in
articles 6, paragraph 2, or 7, paragraph 1, are
missing, inaccurate or incomplete;
(b)                   
the dangerous or polluting goods are not marked
or labelled in accordance with the applicable international or national
regulations or, if no such regulations exist, in accordance with rules and
practices generally recognized in inland navigation;
(c)                   
the necessary accompanying documents are
missing, inaccurate or incomplete.
The carrier may not avail himself of the
liability of the shipper if it is proven that the fault is attributable to the
carrier himself, his servants or agents. The same applies to the actual
carrier.
(2)                   
The shipper shall be responsible for the acts
and omissions of persons of whose services he makes use to perform the tasks
and meet the obligations referred to in articles 6 and 7, when such
persons are acting within the scope of their employment, as if such acts or
omissions were his own.
Article 9
Termination of the
contract of carriage by the carrier
(1)                   
The carrier may terminate the contract of
carriage if the shipper has failed to perform the obligations set out in
article 6, paragraph 2, or article 7, paragraphs 1 and 2.
(2)                   
If the carrier makes use of his right of
termination, he may unload the goods at the shipper's expense and claim
optionally the payment of any of the following amounts:
a)            
one third of the agreed freight; or
b)            
in addition to any demurrage charge, a
compensation equal to the amount of costs incurred and the loss caused, as well
as, should the voyage have already begun, a proportional freight for the part
of the voyage already performed.
Article 10 Delivery of the goods
(1)                   
Notwithstanding the obligation of the shipper
under article 6, paragraph 1, the consignee who, following the arrival of
the goods at the place of delivery, requests their delivery, shall, in
accordance with the contract of carriage, be liable for the freight and other
charges due on the goods, as well as for his contribution to any general
average. In the absence of a transport document, or if such document has not been presented, the consignee
shall be liable for the freight agreed with the shipper if it corresponds to
market practice.
(2)                   
The placing of the goods at the disposal of the
consignee in accordance with the contract of carriage or with the usage of the
particular trade or with the statutory regulations applicable at the port of
discharge shall be considered a delivery. The imposed handing over of the goods
to an authority or a third party shall also be considered a delivery.
CHAPTER III TRANSPORT
DOCUMENTS
Article 11 Nature and content
(1)                   
For each carriage of goods governed by this
Convention the carrier shall issue a transport document; he shall issue a bill
of lading only if the shipper so requests and if it has been so agreed before
the goods were loaded or before they were taken over for carriage. The lack of
a transport document or the fact that it is incomplete shall not affect the
validity of the contract of carriage.
(2)                   
The original of the transport document must be
signed by the carrier, the master of the vessel or a person authorized by the
carrier. The carrier may require the shipper to countersign the original or a
copy. The signature may be in handwriting, printed in facsimile, perforated,
stamped, in symbols or made by any other mechanical or electronic means, if
this is not prohibited by the law of the State where the transport document was
issued.
(3)                   
The transport document shall be prima facie
evidence, save proof to the contrary, of the conclusion and content of the
contract of carriage and of the taking over of the goods by the carrier. In
particular, it shall provide a basis for the presumption that the goods have
been taken over for carriage as they are described in the transport document.
(4)                   
When the transport document is a bill of lading,
it alone shall determine the relations between the carrier and the consignee.
The conditions of the contract of carriage shall continue to determine the
relations between carrier and shipper.
(5)                   
The transport document, in addition to its
denomination, contains the following particulars:
a)            
the name, domicile, registered office or place
of residence of the carrier and of the shipper;
b)            
the consignee of the goods;
c)            
the name or number of the vessel, where the
goods have been taken on board, or particulars in the transport document
stating that the goods have been taken over by the carrier but not yet loaded
on the vessel;
d)           
the port of loading or the place where the goods
were taken over and the port of discharge or the place of delivery;
e)            
the usual name of the type of goods and their method of packaging
and, for dangerous or polluting goods, their name according to the requirements
in force or, if there is no such name, their general name;
f)             
the dimensions, number or weight as well as the
identification marks of the goods taken on board or taken over for the purpose
of carriage;
g)            
the statement, if applicable, that the goods
shall or may be carried on deck or on board open vessels;
h)            
the agreed provisions concerning freight;
i)              
in the case of a consignment note, the
specification as to whether it is an original or a copy; in the case of a bill
of lading, the number of originals;
j)              
the place and date of the issue.
The legal character of a transport document
in the sense of article 1, paragraph
6, of this Convention is not
affected by the absence of one or more of the particulars referred to in this
paragraph.
Article 12 Reservations in transport documents
(1)                   
The carrier is entitled to include in the transport
document reservations concerning:
a)            
The dimensions, number or weight of the goods,
if he has grounds to suspect that the particulars supplied by the shipper are
inaccurate or if he had no reasonable means of checking such particulars,
especially because the goods have not been counted, measured or weighed in his
presence or because, without explicit agreement, the dimensions or weights have
been determined by draught measurement;
b)            
Identification marks which are not clearly and
durably affixed on the goods themselves or, if the goods are packed, on the
receptacles or packagings;
c)            
The apparent condition of the goods.
(2)                   
If the carrier fails to note the apparent
condition of the goods or does not enter reservations in that respect, he is
deemed to have noted in the transport document that the goods were in apparent
good condition.
(3)                   
If, in accordance with the particulars set out
in the transport document, the goods are placed in a container or in the holds
of the vessel and sealed by other persons than the carrier, his servants or his
agents, and if neither the container nor the seals are damaged or broken when
they reach the port of discharge or the place of delivery, it shall be presumed
that the loss or damage to the goods did not occur during carriage.
Article 13 Bill of lading
(1)                   
The originals of a bill of lading shall be
documents of title issued in the name of the consignee, to order or to bearer.
(2)                   
At the place of destination, the goods shall be
delivered only in exchange for the original of the bill of lading submitted
initially; thereafter, further delivery cannot be claimed against other
originals.
(3)                   
When the goods are taken over by the carrier,
handing over the bill of lading to a person entitled thereby to receive the
goods has the sameeffects as the handing over of the goods as far as the
acquisition of rights to the goods is concerned.
(4)                   
If the bill of lading has been transferred to a
third party, including the consignee, who has acted in good faith in reliance
on the description of the goods therein, proof to the contrary of the
presumption set out in article 11, paragraph 3, and
article 12, paragraph 2, shall not be admissible.
CHAPTER IV RIGHT TO
DISPOSE OF THE GOODS
Article 14 Holder of the right of disposal
(1)                   
The shipper shall be authorized to dispose of the
goods; in particular, he may require the carrier to discontinue the carriage of
the goods, to change the place of delivery or to deliver the goods to a
consignee other than the consignee indicated in the transport document.
(2)                   
The shipper's right of disposal shall cease to
exist once the consignee, following the arrival of the goods at the scheduled
place of delivery, has requested delivery of the goods and,
a)            
where carriage is under a consignment note, once
the original has been handed over to the consignee;
b)            
where carriage is under a bill of lading, once
the shipper has relinquished all the originals in his possession by handing
them over to another person.
(3)                   
By an appropriate entry in the consignment note,
the shipper may, when the consignment note is issued, waive his right of
disposal to the consignee.
Article 15
Conditions for the
exercise of the right of disposal
The shipper or, in the case of article 14, paragraphs 2 and 3, the consignee,
must, if he wishes to exercise his right of disposal:
a)            
 where a bill of lading is used, submit all
originals prior to the arrival of the goods at the scheduled place of delivery;
b)            
where a transport document other than a bill of
lading is used, submit this document, which shall include the new instructions
given to the carrier;
c)            
compensate the carrier for all costs and damage
incurred in carrying out instructions;
d)           
pay all the agreed freight in the event of the
discharge of the goods before arrival at the scheduled place of delivery,
unless the contract of carriage provides otherwise.
CHAPTER V LIABILITY
OF THE CARRIER
Article 16 Liability for loss
(1)                   
The carrier shall be liable for loss resulting
from loss or damage to the goods caused between the time when he took them over
for carriage and the time of their delivery, or resulting from delay in
delivery, unless he can show that the loss was due to circumstances which a
diligent carrier could not have prevented and the consequences of which he
could not have averted.
(2)                   
The carrier's liability for loss resulting from
loss or damage to the goods caused during the time before the goods are loaded
on the vessel or the time after they have been discharged from the vessel shall
be governed by the law of the State applicable to the contract of carriage.
Article 17 Servants and agents
(1)                   
The carrier shall be responsible for the acts
and omissions of his servants and agents of whose services he makes use during
the performance of the contract of carriage, when such persons are acting
within the scope of their employment, as if such acts or omissions were his
own.
(2)                   
When the carriage is performed by an actual
carrier in accordance with article 4, the carrier is also responsible for the acts and omissions of the
actual carrier and of the servants and agents of the actual carrier acting
within the scope of their employment.
(3)                   
If an action is brought against the servants and
agents of the carrier or the actual carrier, such persons, if they prove that
they acted within the scope of their employment, are entitled to avail
themselves of the exonerations and limits of liability which the carrier or the
actual carrier is entitled to invoke under this Convention. A pilot designated
by an authority and who cannot be freely selected shall not be considered to be
a servant or agent within the meaning of paragraph 1.
Article 18 Special exonerations from liability
(1)                   
The carrier and the actual carrier shall be
exonerated from their liability when the loss, damage or delay are the result
of one of the circumstances or risks listed below:
a)            
acts or omissions of the shipper, the consignee
or the person entitled to dispose of the goods;
b)            
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;
c)            
carriage of the goods on deck or in open vessels,
where such carriage has been agreed with the shipper or is in accordance with
the practice of the particular trade, or if it is required by the regulations
in force;
d)           
nature of the goods which exposes them to total
or partial loss or damage, especially through breakage, rust, decay,
desiccation, leakage, normal wastage (in volume or weight), or the action of
vermin or rodents;
e)            
lack of or defective condition of packaging in
the case of goods which, by their nature, are exposed to loss or damage when
not packed or when the packaging is defective;
f)             
insufficiency or inadequacy of marks identifying
the goods;
g)            
rescue or salvage operations or attempted rescue
or salvage operations on inland waterways;
h)            
carriage of live animals, unless the carrier has
not taken the measures or observed the instructions agreed upon in the contract
of carriage.
(2)                   
When, in the circumstances of the case, damage
could be attributed to one or more of the circumstances or risks listed in
paragraph 1 of the present
article, it is presumed to have been caused by such a circumstance or risk.
This presumption does not apply if the injured party proves that the loss
suffered does not result, or does not result exclusively, from one of the
circumstances or risks listed in paragraph 1 of this article.
Article 19 Calculation of compensation
(1)                   
Where the carrier is liable for total loss of
goods, the compensation payable by him shall be equal to the value of the goods
at the place and on the day of delivery according to the contract of carriage.
Delivery to a person other than the person entitled is deemed to be a loss.
(2)                   
In the event of partial loss or damage to goods,
the carrier shall be liable only to the extent of the loss in value.
(3)                   
The value of the goods shall be fixed according
to the commodity exchange price or, if there is no such price, according to
their market price or, if there is no commodity exchange price or market price,
by reference to the normal value of goods of the same kind and quality at the
place of delivery.
(4)                   
In respect of goods which by reason of their
nature are exposed to wastage during carriage, the carrier shall be held
liable, whatever the length of the carriage, only for that part of the wastage
which exceeds normal wastage (in volume or weight) as determined by the parties
to the contract of carriage or, if not, by the regulations or established
practice at the place of destination.
(5)                   
The provisions of this article shall not affect
the carrier's right concerning the freight as provided by the contract of
carriage or, in the absence of special agreements in this regard, by the
applicable national regulations or practices.
Article 20 Maximum limits of liability
(1)                   
Subject to article 21 and paragraph 4 of the
present article, and regardless of the action brought against him, the carrier
shall under no circumstances be liable for amounts exceeding 666.67 units of account per package or other
shipping unit, or 2 units of
account per kilogram of weight, specified in the transport document, of the
goods lost or damaged, whichever is the higher. If the package or other
shipping unit is a container and if there is no mention in the transport
document of any package or shipping unit consolidated in the container, the
amount of 666.67 units of account
shall be replaced by the amount of 1,500 units of account for the container without the goods it contains
and, in addition, the amount of 25,000 units of account for the goods which are in the container.
(2)                   
Where a container, pallet or similar article of
transport is used to consolidate goods, the packages or other shipping units
enumerated in the transport document as packed in or on such article of
transport are deemed packages or shipping units. Except as aforesaid, the goods
in or on such article of transport are deemed one shipping unit. In cases where
the article of transport itself has been lost or damaged, that article of
transport, if not owned or otherwise supplied by the carrier, is considered one
separate shipping unit.
(3)                   
In the event of loss due to delay in delivery,
the carrier's liability shall not exceed the amount of the freight. However,
the aggregate liability under paragraph 1 and the first sentence
of the present paragraph shall not
exceed the limitation which would be established under paragraph 1 for total loss of the goods with respect to
which such liability was incurred.
(4)                   
The maximum limits of liability mentioned in
paragraph 1 do not apply:
a)            
where the nature and higher value of the goods
or articles of transport have been
expressly specified in the transport document and the carrier has not refuted those specifications, or
b)            
where the parties have expressly agreed to
higher maximum limits of liability.
(5)                   
The aggregate of the amounts of compensation
recoverable from the carrier, the actual carrier and their servants and agents
for the same loss shall not exceed overall the limits of liability provided for
in this article.
Article 21 Loss of right to limit liability
(1)                   
The carrier or the actual carrier is not
entitled to the exonerations and limits of liability provided for in this
Convention or in the contract of carriage if it is proved that he himself
caused the damage by an act or omission, either with the intent to cause such
damage, or recklessly and with the knowledge that such damage would probably
result.
(2)                   
Similarly, the servants and agents acting on
behalf of the carrier or the actual carrier are not entitled to the
exonerations and limits of liability provided for in this Convention or in the
contract of carriage, if it is proved that they caused the
damage in the manner described in paragraph 1.
Article 22
Application of the exonerations and limits of liability
The exonerations and limits of liability
provided for in this Convention or in the contract of carriage apply in any
action in respect of loss or damage to or delay in delivery of the goods
covered by the contract of carriage, whether the action is founded in contract,
in tort or on some other legal ground.
CHAPTER VI CLAIMS
PERIOD
Article 23 Notice of damage
(1)                   
The acceptance without reservation of the goods
by the consignee is prima facie evidence of the delivery by the carrier of the
goods in the same condition and quantity as when they were handed over to him
for carriage.
(2)                   
The carrier and the consignee may require an
inspection of the condition and quantity of the goods on delivery in the
presence of the two parties.
(3)                   
Where the loss or damage to the goods is
apparent, any reservation on the part of the consignee must be formulated in
writing specifying the general nature of the damage, no later than the time of
delivery, unless the consignee and the carrier have jointly checked the
condition of the goods.
(4)                   
Where the loss or damage to the goods is not
apparent, any reservation on the part of the consignee must be notified in
writing specifying the general nature of the damage, no later than 7 consecutive days from the time of delivery;
in such case, the injured party shall show that the damage was caused while the
goods were in the charge of the carrier.
(5)                   
No compensation shall be payable for damage
resulting from delay in delivery except when the consignee can prove that he
gave notice of the delay to the carrier within 21 consecutive days following delivery of the goods and that this
notice reached the carrier.
Article 24 Limitation of actions
(1)                   
 All actions arising out
of a contract governed by this Convention shall be time-barred after one year
commencing from the day when the goods were, or should have been, delivered to
the consignee. The day on which the limitation period commences is not included
in the period.
(2)                   
The person against whom an action is instituted
may at any time during the limitation period extend that period by a
declaration in writing to the injured party. This period may be further
extended by one or more further declarations.
(3)                   
The suspension and interruption of the limitation
period are governed by the law of the State applicable to the contract of
carriage. The filing of a claim in proceedings to apportion limited liability
for all claims arising from an event having led to damage shall interrupt the
limitation.
(4)                   
Any action for indemnity by a person held liable
under this Convention may be instituted even after the expiry of the limitation
period provided for in paragraphs 1 and 2 of the present
article, if proceedings are instituted within a period of 90
days commencing from the day on which the person
instituting the action has settled the claim or has been served with process,
or if proceedings are instituted within a longer period as provided by the law
of the State where proceedings are instituted.
(5)                   
A right of action which has become barred by
lapse of time may not be exercised by way of counter-claim or set-off.
CHAPTER VII LIMITS OF CONTRACTUAL FREEDOM
Article 25 Nullity of contractual stipulations
(1)                   
Any contractual stipulation intended to exclude
or to limit or, subject to the provisions of article 20, paragraph 4, to
increase the liability, within the meaning of this Convention, of the carrier,
the actual carrier or their servants or agents, to shift the burden of proof or
to reduce the periods for claims or limitations referred to in articles 23 and 24 shall be null and void. Any stipulation assigning a benefit of
insurance of the goods in favour of the carrier is also null and void.
(2)                   
Notwithstanding the provisions of paragraph 1 of the present article and without prejudice to
article 21, contractual
stipulations shall be authorized specifying that the carrier or the actual
carrier is not liable for losses arising from:
a)            
an act or omission by the master of the vessel,
the pilot or any other person in the service of the vessel, pusher or tower
during navigation or in the formation or dissolution of a pushed or towed
convoy, provided that the carrier complied with the obligations set out for the
crew in article 3, paragraph 3, unless the act or omission results from an
intention to cause damage or from reckless conduct with the knowledge that such
damage would probably result;
b)            
fire or an explosion on board the vessel, where
it is not possible to prove that the fire or explosion resulted from a fault of
the carrier or the actual carrier or their servants or agents or a defect of
the vessel;
c)            
the defects existing prior to the voyage of his
vessel or of a rented or chartered vessel if he can prove that such defects
could not have been detected prior to the start of the voyage despite due
diligence.
CHAPTER VIII SUPPLEMENTARY PROVISIONS
Article 26 General average
Nothing in this Convention shall prevent
the application of provisions in the contract of carriage or national law
regarding the calculation of the amount of damages and contributions payable in
the event of general average.
Article 27
Other applicable
provisions and nuclear damage
(1)                   
This Convention does not modify the rights or
duties of the carrier provided for in international conventions or national law
relating to the limitation of liability of owners of inland navigation or
maritime vessels.
(2)                   
The carrier shall be relieved of liability under
this Convention for damage caused by a nuclear incident if the operator of a
nuclear installation or other authorized person is liable for such damage
pursuant to the laws and regulations of a State governing liability in the
field of nuclear energy.
Article 28 Unit of account
The unit of account referred to in article 20 of this Convention is the Special Drawing
Right as defined by the International Monetary Fund. The amounts mentioned in
article 20 are to be converted
into the national currency of a State according to the value of such currency
at the date of judgment or the date agreed upon by the parties. The value, in
terms of the Special Drawing Rights, of a national currency of a Contracting   State is to be calculated in accordance with the method of evaluation applied
by the International Monetary Fund in effect at the date in question for its
operations and transactions.
Article 29 Additional national provisions
(1)                   
In cases not provided
for in this Convention, the contract of carriage is governed by the law of the
State agreed by the Parties.
(2)                   
In the absence of such agreement, the law of the
State with which the contract of carriage is most closely connected is to be
applied.
(3)                   
It is to be presumed that the contract of
carriage is most closely connected with the State in which the principal place
of business of the carrier is located at the time when the contract was
concluded, if the port of loading or the place where the goods are taken over,
or the port of discharge or the place of delivery or the shipper's principal
place of business is also located in that State. Where the carrier has no place
of business on land and concludes the contract of carriage on board his vessel,
it is to be presumed that the contract is most closely connected with the State
in which the vessel is registered or whose flag it flies, if the port of
loading or the place where the goods are taken over, or the port of discharge
or the place of delivery or the shipper's principal place of business is also
located in that State.
(4)                   
The law of the State where the goods are located
governs the real guarantee granted to the carrier for claims set out in article
10, paragraph 1.
CHAPTER IX
DECLARATIONS
CONCERNING THE SCOPE OF APPLICATION
Article 30
Carriage by way of
specific inland waterways
(1)                   
Each State may, at the lime of signing this
Convention or of ratification, acceptance, approval or accession, declare that
it will not apply this Convention to contracts relating to carriage by way of
specific inland waterways situated on its territory and to which international
rules of navigation do not apply and which do not constitute a link between
such international waterways. However, such a declaration may not mention all
main waterways of that State.
(2)                   
Where the purpose of the contract of carriage is
the carriage of goods without transshipment both on waterways not mentioned in
the declaration referred to in paragraph 1 of this article and on waterways mentioned in this declaration, this
Convention equally applies to this contract, unless the distance to be
travelled on the latter waterways is the longer.
(3)                   
When a declaration has been made according to
paragraph 1, any other Contracting   State may declare that it will not apply either the provisions of this
Convention to the contracts referred to in this declaration. The declaration
made in accordance with the present paragraph shall take effect at the time of
entry into force of the Convention for the State which has made a declaration
according to paragraph 1, but at
the earliest at the time of entry into force of the Convention for the State
which has made a declaration according to the present paragraph.
(4)                   
The declarations referred to in paragraphs 1 and 3 of this article may be withdrawn in whole or in part, at any time,
by notification to the depositary to that effect, indicating the date on which
they shall cease to have effect. The withdrawal of these declarations shall not
have any effect on contracts already concluded.
Article 31
National transport or
transport free of charge
Each State may, at the time of the
signature of this Convention, of its ratification, its approval, its
acceptance, its accession thereto or at any time thereafter, declare that it
will also apply this Convention:
a)            
to contracts of carriage according to which the
port of loading or the place of taking over and the port of discharge or the
place of delivery are located in its own territory;
b)            
by derogation from article 1,
paragraph 1, to carriage free of charge.
Article 32
Regional provisions
concerning liability
(1)                   
 Each State may, at the
time of signature of this Convention, or of its ratification, its approval, its
acceptance, its accession thereto or at any time thereafter, declare that in
respect of the carriage of goods between ports of loading or places where goods
are taken over and ports of discharge or places of delivery, of which either
both are situated on its own territory or one is situated on its own territory
and the other on the territory of a State which has made the same declaration,
the carrier shall not be liable for damage caused by an act or omission by the
master of the vessel, pilot or any other person in the service of the vessel,
pusher or tower during navigation or during the formation of a pushed or towed
convoy, provided that the carrier complied with the obligations set out for the
crew in article 3, paragraph 3, unless the act or omission results from an
intention to cause damage or from reckless conduct with the knowledge that such
damage would probably result.
(2)                   
The provision concerning liability referred to
in paragraph 1 shall enter into
force between two Contracting States when this Convention enters into force in
the second State which has made the same declaration. If a State has made this
declaration following the entry into force of the Convention for that State,
the provision concerning liability referred to in paragraph 1 shall enter into force on the first day of
the month following a period of three months as from the notification of the
declaration to the depositary. The provision concerning liability shall be
applicable only to contracts of carriage signed after its entry into force.
(3)                   
A declaration made in accordance with paragraph 1 may be withdrawn at any time by notification
to the depositary. In the event of withdrawal, the provisions concerning
liability referred to in paragraph 1 shall cease to have effect on the first day of the month following the notification or at a subsequent time
indicated in the notification. The withdrawal shall not apply to contracts of
carriage signed before the provisions concerning liability have ceased to have
effect.
CHAPTER X FINAL
PROVISIONS
Article 33
Signature,
ratification, acceptance, approval, accession
(1)                   
This Convention shall be open for signature by
all States for one year at the headquarters of the depositary. The period for
signature shall start on the day when the depositary states that all authentic
texts of this Convention are available.
(2)                   
States may become Parties to this Convention:
a)            
by signature without reservation as to
ratification, acceptance or approval;
b)            
by signature subject to ratification, acceptance
or approval, followed by ratification, acceptance or approval;
c)            
by accession after the deadline set for
signature
(3)                   
Instruments of ratification, acceptance,
approval or accession shall be deposited with the depositary.
Article 34 Entry into force
(1)                   
This Convention shall enter into force on the
first day of the month following the expiration of a period of three months as
from the date on which five States have signed this Convention without any
reservation as to ratification, acceptance or approval or have deposited their
instruments of ratification, acceptance, approval or accession with the depositary.
(2)                   
For each State which signs this Convention
without any reservation as to ratification, acceptance or approval, or deposits
the instruments of ratification, acceptance, approval or accession with the
depositary after the entry into force of this Convention, the same shall enter
into force on the first day of the month following the expiration of a period
of three months as from the date of signing without any reservation as to
ratification, acceptance or approval, or the deposit of the instruments of ratification,
acceptance, approval or accession with the depositary.
Article 35 Denunciation
(1)                   
This Convention may be denounced by a State
Party on the expiration of a period of one year following the date on which it
entered into force for that State.
(2)                   
Notification of denunciation shall be deposited
with the depositary.
(3)                   
The denunciation shall take effect on the first
day of the month following the expiration of a period of one year as from the
date of deposit of the notification of denunciation or after a longer period
referred to in the notification of denunciation.
Article 36 Review and amendment
At the request of not less than one third
of the Contracting States to this Convention, the depositary shall convene a
conference of the Contracting States for revising or amending it.
Article 37
Revision of the
amounts for limitation of liability and unit of account
(1)                   
 Notwithstanding the
provisions of article 36, when a
revision of the amount specified in article 20, paragraph 1, or the
substitution of the unit defined in article 28 by another unit is proposed, the depositary shall, when not less
than one fourth of the States Parties to this Convention so request, submit the
proposal to all members of the United Nations Economic Commission for Europe,
the Central Commission for the Navigation of the Rhine and the Danube
Commission and to all Contracting States and shall convene a conference for the
sole purpose of altering the amount specified in article 20,
paragraph 1, or of substituting the unit defined in article 28
by another unit.
(2)                   
The conference shall be convened at the earliest
six months after the day on which the proposal was transmitted.
(3)                   
All Contracting States to this Convention are
entitled to participate in the conference, whether or not they are members of the
organizations referred to in paragraph 1.
(4)                   
The amendments shall be adopted by a majority of
two thirds of the Contracting States to the Convention represented at the
conference and taking part in the vote, provided that not less than one half of
the Contracting States to this Convention are represented when the vote is
taken.
(5)                   
During the consultation concerning the amendment
of the amount specified in article 20, paragraph 1, the
conference shall take account of the lessons drawn from the events having led
to damage and in particular the amount of damage resulting therefrom, changes
in monetary values and the effect of the proposed amendment on the cost of
insurance.
(6)                   
 
a)            
The amendment of the amount in accordance with
this article may take effect at the earliest five years after the day on which
this Convention was opened for signature and at the earliest five years after
the day on which an amendment made previously in accordance with this article
entered into force.
b)            
An amount may not be so increased as to exceed
the amount of the maximum limits of liability specified by this Convention,
increased by six per cent per annum, calculated according to the principle of
compound interest as from the day on which this Convention was opened for
signature.
c)            
An amount may not be so increased as to exceed
the triple of the maximum limits of liability specified by this Convention.
(7)                   
The depositary shall notify all Contracting
States of any amendment adopted in accordance with paragraph 4. The amendment is deemed to have been accepted
after a period of eighteen months following the day of notification, unless
during such period not less than one fourth of the States which were
Contracting States at the time of the decision concerning the amendment have
informed the depositary that they will not accept that amendment; in such case,
the amendment is rejected and does not enter into force.
(8)                   
An amendment which is deemed to have been
accepted in accordance with paragraph 7 shall enter into force eighteen months after its acceptance.
(9)                   
All Contracting States are bound by the
amendment unless they denounce this Convention in accordance with article 35 not later than six months before the
amendment enters into force. The denunciation takes effect when the amendment
enters into force.
(10)               
When an amendment has been adopted but the
scheduled eighteen-month period for acceptance has not elapsed, a State which
becomes a Contracting State during that period is bound by the amendment if it
enters into force. A State which becomes a Contracting State after that period
is bound by an amendment accepted in accordance with paragraph 7. In the cases cited in the present paragraph,
a State is bound by an amendment as soon as it enters into force or as soon as
this Convention enters into force for that State if this takes place
subsequently.
Article 38 Depositary
(1)                   
This Convention shall be deposited with the
Government of the Republic of Hungary.
(2)                   
The depositary shall:
a)            
communicate to all States which participated in
the Diplomatic Conference for the Adoption of the Budapest Convention on the
Contract for the Carriage of Goods by Inland Waterway, for checking, the
present Convention in the official language version which was not available at
the time of the Conference;
b)            
inform all States referred to under subparagraph
(a) above of any proposal for the amendment of the text communicated in
accordance with subparagraph (a) above;
c)            
establish the date on which all official
language versions of this Convention have been brought into conformity with
each other and are to be considered authentic;
d)           
communicate to all States referred to in
subparagraph (a) above the date established in accordance with subparagraph (c)
above;
e)            
communicate to all States which were invited to
the Diplomatic Conference for the Adoption of the Budapest Convention on the
Contract for the Carriage of Goods by Inland Waterway and to those which have
signed this Convention or acceded thereto, certified true copies of this
Convention;
f)             
 inform all States which have signed this
Convention or acceded to it:
                                                             
i.     
of any new signature, notification or
declaration made, indicating the date of the signature, notification or
declaration;
                                                           
ii.     
of the date of entry into force of this
Convention;
                                                         
iii.     
of any denunciation of this Convention and of the date on which such denunciation is to take
effect;
                                                         
iv.     
of any amendment adopted in accordance with
articles 36 and 37 of this Convention and of the date of entry
into force of such amendment;
                                                           
v.     
of any communication required under a provision
of this Convention.
(3)                   
After the entry into force of this Convention,
the depositary shall transmit to the Secretariat of the United Nations a
certified true copy of this Convention for registration and publication, in
accordance with Article 102 of the
Charter of the United Nations.
DONE AT Budapest on the twenty-second of
June 2001 in a single original
copy of which the Dutch, English, French, German and Russian texts are equally
authentic.
IN WITNESS WHEREOF, the undersigned
plenipotentiaries, being duly authorized thereto by their Governments, have
signed this Convention.