Download - CMNI Bratislava Agreement Kovacs
CMNI-Convention in relation to the Bratislava Agreementsthe Bratislava Agreements
Zsolt KovácsZsolt Kovács
Gárdos, Füredi, Mosonyi, Tomori Law Firm
6th IVR-Colloquium 22nd and 23rd January 2009
Prague
HISTORY IN BRIEF
• Unlike on the Rhine, alongside the Danube the riparian countries never h d hi ti t d t f tihad a sophisticated system of cooperation.
• The Danube inland waterway transport was governed by the Belgrade Convention, which regulated (and still regulates) only a rather limited segment of the navigation on the Danube.
• At the same time most of the Danube countries belonged to the communist block, which meant only one (state owned) shipping company in each country.
• When the need arose to create a private law framework in the early 1950’s, these monopolist companies agreed on the conditions they p p g ywould use in respect of the river transportation.
• Together with the fact that the Danube was a fully separated waterway, this had an actual effect of this agreement - the Bratislava gAgreements of 1955 - being used as a kind of an international treaty.
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THE „WIND OF CHANGE”
DMR Canal Opening of the Rhine-Main-Donau Canal meant that new carriers appeared applying their own conditions and not the Bratislava Agreementsg
Fall of the communist regimes
CMNI
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THE „WIND OF CHANGE”
DMR Canal
• The shipping market in the Danube countries became free that is the state owned shipping companies had been privatized and newstate owned shipping companies had been privatized and new shipping companies have been formed
• The Bratislava Agreements gradually lost its perceived role as a international agreement on the multiplayer markets
Fall of the communist regimes
CMNI
g p y
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THE „WIND OF CHANGE”
DMR Canal
• Until the coming into force of CMNI in 2005 the laws of the Danubecountries on inland transportation were still different
• The Bratislava Agreements could still played the role of a unified setof rules as the laws on the contract of carriage were mostly
Fall of the communist regimes
of rules as the laws on the contract of carriage were mostlydispositive, i.e. the parties could freely agree on the application of theBratislava Agreements
• CMNI changed this fundamentally being a genuine internationalg y g gtreaty
CMNI
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THE NEW SITUATION AFTER CMNI
SCOPE • CMNI is applicable to any contract of carriage in the international inland waterway transport, if at least one of the ports is in a CMNI state
APPLICATION
CHOICE OF LAWLAW
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THE NEW SITUATION AFTER CMNI
SCOPE
• Within its scope CMNI steps into the place of the local laws
• Domestic (national) laws and individual contracts may supplement the rules of CMNI but may not contradict it
• General transport conditions will have to be measured against CMNI and not the local transport laws
APPLICATION
CHOICE OF LAW
• CMNI is applicable regardless of • the nationality, place of registration or home port of the vessel• the nationality, domicile, registered office or place of residence
of the carrierLAW of the carrier
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THE NEW SITUATION AFTER CMNI
SCOPE
• Freedom of choice limited
APPLICATION
• The law chosen by the parties is only applicable in questions notregulated by CMNI
• No use to agree in the application of the law of a jurisdiction outsideCMNI, if the port of loading or discharge is in a CMNI state
CHOICE OF LAW
CMNI that is primer to the Bratislava Agreements on an internationallevel as its members are states, however may the Bratislava
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Agreement be in force in any of the members of CMNI, in case of nocontradiction, the terms of Bratislava Agreement may besupplementing the CMNI.
THE BRATISLAVA AGREEMENTSThe Bratislava Agreements include several agreements which theThe Bratislava Agreements include several agreements, which the member companies undertake to apply in their inland navigation activity
• General terms and conditions of international carriage of goods on the
The main areas
• General terms and conditions of international carriage of goods on the Danube
• Freight policies • General average• General average• Mutual assistance at accidents• Harbor agency activities
T t f l t i• Transport of large containers• Repair
The interlap between Bratislava Agreements and CMNI
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The rules of international carriage of goods
MEMBERS OF THE CMNI AND THE BRATISLAVA AGREEMENTS
CMNIBRATISLAVA AGREEMENTS(countries with shipping
companies that are members)companies that are members)BulgariaCroatia Germany Hungary
Austria
RomaniaRussian FederationSlovakia
Czech Republic France
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Serbia and MontenegroUkraine
FranceLuxembourg Netherlands Switzerland
APPLICATION OF THE BRATISLAVA AGREEMENT AFTER CMNI
• The Bratislava Agreement may apply only if the CMNI does not resolve on a certain issue.
• CMNI expressly prohibits certain derogations in particular the exclusion or limitation of the carrier’s liability to the extent below the level provided for in CMNI → such clauses in general conditions are
ll d idnull and void
• Bratislava Agreement in its entirety may only be applied if the carriage is between two ports in countries not ratified CMNIcarriage is between two ports in countries not ratified CMNI
• If a CMNI covered port is involved in the carriage, the clauses of the Bratislava Agreement shall not apply to the extent they are in contradiction with CMNI with special regard to those provisions derogation from which is null and void.
The practical result for carriers using Bratislava Agreement as general conditions
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Uncertainty for the carrier as to the actual content of its general conditions
1 DIFFERENCES IN THE AGREEMENTS - LIABILITY
Bratislava Agreement CMNI
Loss or damage to goods;
Delay in delivery of goods;
Liability
Exoneration
1
2
Special cases of
ti3
exoneration
Limits of liability4
Objection, enforcement of claim
5
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2 DIFFERENCES IN THE AGREEMENTS - EXONERATION
Bratislava Agreement CMNI
No general rule The general rule:Liability
Exoneration
1
2
No general rule The general rule: If the loss was due to circumstances which a diligent carrier could not have prevented and the consequences of which he could not have averted
Special cases of exoneration
3exoneration
Limits of liability4
Objection, enforcement of claim
5
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3 DIFFERENCES IN THE AGREEMENTS – SPECIAL CASESBratislava Agreement CMNIBratislava Agreement CMNI
• Only specific cases of exoneration• Some of the specific cases (strike, war
etc.) would probably fall under the general exoneration rule of the CMNI
Liability
Exoneration
1
2
general exoneration rule of the CMNI
• force majeure, emergency;• acts and conducts of authorities or
administrative offices;
• acts or omissions of the shipper, the consignee or the person entitled to di f th d
Special cases of Exoneration
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administrative offices;• war and other violence;• actions launched by employees,
union;• the shipper breached the restriction
f
dispose of the goods;• handling, loading, stowage or
discharge of the goods by the shipper, the consignee or third parties acting on behalf of the shipper or the Exoneration
Limits of liability4
of prohibited shipping;• defaults and breach by the shipper
or other acts that are in conflict with the BA;
• undetectable faults of the goods;
g ppconsignee;
• carriage of the goods on deck or in open vessels,
• nature of the goods;• lack of or defective condition of
Objection, enforcement of claim5
undetectable faults of the goods;• nature of the goods;• Loss of the cargo to the extent its
usual by its nature • damage caused by the receiver’s
devices on taking over the goods
• lack of or defective condition of packaging
• insufficiency or inadequacy of marks identifying the goods;
• rescue or salvage operations or devices on taking over the goods.
• the goods were handed over intact and the shipper’s lead was intact;
• the goods were forwarded in intact
attempted rescue or salvage operations on inland waterways;
• carriage of live animals, unless the carrier has not taken the measures or observed the instructions agreed upon
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gpackage and no signs imply opening of the package
• the goods were shipped with a due guard on stand
observed the instructions agreed upon in the contract of carriage.
4 DIFFERENCES IN THE AGREEMENTS – LIMITS OF LIABILITY
Bratislava Agreement CMNI
If th f i ht d t i di t th l f th hi d d th i ' li bilit h ll bLiability
Exoneration
1
2
If the freight documents indicate the value of the shipped goods, the carrier's liability shall be up to that value (or the parties may mutually stipulate a higher amount). If the value is not indicted, the following rules apply:
• actual value of the goods or the • limited liability up to 666.67 units of
Special cases of exoneration
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gloss;
• BUT the carrier is liable up to EUR 320 / piece or EUR 96/ ton, maximum.
y paccount per package or other shipping unit, or
• 2 units of account per kilogram of weight, specified in the freight d t f th d l texoneration
Limits of liability4
Comment: If the BA amounts would be less than the CMNI amounts then the CMNI shall prevail. In any case the limits ma not be broader than that
document, of the goods lost or damaged, whichever is the higher.
Objection, enforcement of claim
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limits may not be broader than that defined in CMNI.
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5 DIFFERENCES IN THE AGREEMENTS – OBJECTION, ENFORCEMENT OF CLAIM
Bratislava Agreement CMNI
1 year 1 year
Liability
Exoneration
1
2
Special cases of exoneration
3exoneration
Limits of liability4
Objection, enforcement of claim
5
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We still do not have a truly unified system of transport law on this great European inland waterway It is high time toon this great European inland waterway. It is high time to
have it!
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