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CONVENZIONE
DI
BUDAPEST DEL 22 GIUGNO 2001 SUL CONTRATTO DI TRASPORTO DI MERCI PER
NAVIGAZIONE
INTERNA (CMNI)
La
Convenzione relativa al contratto di trasporto di merci per navigazione
interna
(CMNI) è stata adottata al termine della Conferenza
internazionale sul diritto
convenzionale nella navigazione interna in Europa, promossa dalla
Commissione
centrale per la navigazione sul Reno (CCNR), insieme alla Commissione
del
Danubio (CD) ed alla Commissione economica delle Nazioni Unite per
l'Europa
(CEE - ONU) e tenutasi a Budapest dal 25 settembre al 3 ottobre 2000.
Alla
Conferenza
hanno partecipato i maggiori esperti in materia, in qualità
di delegati dei
rispettivi Stati dell'Europa centrale, orientale e occidentale.
La
Convenzione
di Budapest, che si applica ai trasporti internazionali, ha colmato un
lacuna
nell'ambito del diritto internazionale relativamente alla disciplina
del
contratto di trasporto di merci per navigazione interna.
Chapter I: General Provisions
Art. 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.
Art. 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
Art. 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.
Art. 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.
Art. 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.
Art. 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.
Art. 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.
Art. 8 (Liability of the
shipper) — 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.
Art. 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.
Art. 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
Art. 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 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.
Art. 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 theport
of
discharge or the place of delivery, it shall be presumed that the loss
or
damage to the goods did not occur during carriage.
Art. 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 same effects
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
Art. 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.
Art. 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;.- 12 -
(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
Art. 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.
Art. 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.
4. 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.
Art. 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.
Art. 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.
Art. 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.
Art. 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.
Art. 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
Art. 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.
Art. 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
Art. 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
Art. 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.
Art. 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.
Art. 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
judgement 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.
Art. 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
Art. 30 (Carriage by way of
specific inland waterways) — 1.
Each State
may, at the time 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.
Art. 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.
Art. 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
Art. 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.
Art. 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.
Art. 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.
Art. 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.
Art. 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.
Art. 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.
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