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.