Status of 1956 CMR Convention in UNESCAP region

Report
9th IRU Symposium of Lawyers
Geneva, 24 February 2012
Contractual liability of international road
carriers in Asia
Mr. Fedor Kormilitsyn
Economic Affairs Officer
Transport Facilitation and Logistics Section
Transport Division
Outline
 Status of 1956 CMR Convention and 1978
Protocol to CMR in Asia
 Subregional agreements related to carriers’
contractual liability and problems of their
implementation
 Examples of national regulations in Asia
 UNESCAP proposals for future activities on
harmonization of road transport legislation
The UNESCAP Resolution 48/11 on “Road and rail
transport modes in relation to facilitation measures”,
1992
Recommendation to consider accession to the following
international conventions facilitating road transport:
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The Convention on Road Traffic, 1968
The Convention on Road Signs and Signals, 1968
The Customs Convention on the International Transport of Goods
under Cover of TIR Carnets (TIR Convention), 1975
The Customs Convention on the Temporary Importation of
Commercial Road Vehicles, 1956
The Customs Convention on Containers, 1972
The International Convention on the Harmonization of Frontier
Controls of Goods, 1982
The Convention on the Contract for the International
Carriage of Goods by Road (CMR), 1956
Additions to the list of international conventions
recommended for accession
 The 1978 Protocol to the Convention on the
Contract for the International Carriage of Goods
by Road
 The International Convention on the Simplification and
Harmonization of Customs Procedures, as Amended
(Revised Kyoto Convention), 1973
 The Convention on Temporary Admission (Istanbul
Convention), 1990
 IMO Convention on Facilitation of International
Maritime Traffic (FAL)
Status of 1956 CMR Convention
in UNESCAP region
Participant
Signature
Armenia
Azerbaijan
Georgia
Iran (Islamic Republic of)
Kazakhstan
Kyrgyzstan
Mongolia
Russian Federation
Tajikistan
Turkey
Turkmenistan
Uzbekistan
Ratification, Accession(a),
Succession(d)
9 Jun 2006 a
18 Sep 2006 a
4 Aug 1999 a
17 Sep 1998 a
17 Jul 1995 a
2 Apr 1998 a
18 Sep 2003 a
2 Sep 1983 a
11 Sep 1996 a
2 Aug 1995 a
18 Sep 1996 a
28 Sep 1995 a
Status of 1978 Protocol to CMR
Convention in UNESCAP region
Protocol to the Convention on the Contract for the
International Carriage of Goods by Road (CMR)
Participant
Armenia
Georgia
Iran (Islamic Republic
of)
Kyrgyzstan
Turkey
Turkmenistan
Uzbekistan
Signature
Ratification, Accession
(a)
9 Jun 2006 a
4 Aug 1999 a
17 Sep 1998 a
2 Apr 1998 a
2 Aug 1995 a
18 Sep 1996 a
27 Nov 1996 a
Main problems in accession to international
conventions and of their implementation
in Asia
 Problems in accession:
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Concerns relating to cost of adjustment to meet the
requirements of
the conventions;
Perceived difficulties in implementation;
Lack of involvement in elaboration and amendment of
convention;
Perceived costs of participation in UNECE meetings;
Language barrier.
 Problems in implementation:
-
Lack of territorial continuity of some of the Conventions;
Accession to different versions of the same Convention;
Lack of harmonization due to non-accession to Protocols.
Subregional agreements in Asia
 Economic Cooperation Organization Transit
Transport Framework Agreement, 1998 (signed by
Afghanistan, Azerbaijan, The Islamic Republic of Iran,
Kazakhstan, Kyrgyzstan, Pakistan, Tajikistan, Turkey and
Turkmenistan)
 Greater Mekong Subregion Agreement for
Facilitation of Cross-Border Transport of Goods
and People, 1999 (Cambodia, China, Lao PDR,
Myanmar, Thailand and Viet Nam) (GMS CBTA)
 ASEAN Framework Agreement on Facilitation of
Goods in Transit, 1998 and Framework Agreement
on Facilitation on Inter-State Transport, 2009
(Brunei Darussalam, Cambodia, Indonesia, Lao PDR,
Malaysia, Myanmar, Philippines, Singapore, Thailand and
Viet Nam)
ECO Transit Transport Framework
Agreement
 Annex VI: Rules of carriage by road
transport
 For goods carriage 1956 CMR Convention
and 1978 Protocol to CMR to be applied
 Set of rules on carrier’s liability in case of
passenger carriage
 Liability for Bodily Injury of Passengers
 Liability for Loss or Damages to Luggage
GMS CBTA
 Annex 5: Cross-border
movement of people
 Contains provisions
for carrier of
passengers liability
 Subject of liability
 Limitation of
liability
 Compulsory
insurance of
carrier’s liability
 Annex 10: Conditions
of transport
 Rules on carrier of
goods liability
 Subject of liability
 Measure of
compensation and
limitation of liability
 Exoneration of
liability and its
lifting
 Model consignment
note
GMS CBTA
 Key points on carrier of goods liability
 the carrier shall be liable for the total, or partial
loss, damage to the goods and for the delay in
delivery;
 compensation due by the carrier shall not
exceed 8.33 SDR per kilogram gross weight of
the goods lost or damaged;
 the carrier shall refund in full in case of total loss
and in proportion to the loss sustained in case of
partial loss, the carriage charges, customs
duties, taxes, and other charges incurred in
respect of the carriage of goods.
Main factors hindering the efficiency of
subregional agreements
 Long time for negotiation and
formalities needed for entry into force
 Difficulties in implementation,
including need to adjust national
legislation
 Overlapping in geographical zone and
possible legal conflicts
A few examples of rules on carrier
liability contained in national laws
 China (Contract Law of the People's Republic of
China, 1999 )
 Chapter 17, Transportation Contracts
 Key points on carrier liability
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The carrier is liable for damages in case of damage to or loss
of the cargoes in the course of carriage
Where the parties agree on the amount of loss/damage of the
cargoes, the damages payable is the agreed amount; if the
amount of damages is not agreed, it shall be calculated on the
basis of the prevailing market price at the destination when
the cargoes are or ought to be delivered
Where the cargoes are lost in the course of carriage due to
force majeure, if the freight has not been collected, the carrier
may not request the payment thereof; if the freight has been
collected, the consignor may request the refund of the freight
A few examples of rules on carrier
liability contained in national laws

India (Carriage by Road Rules 2011 under Carriage by Road
Act 2007)
 Establishes rules of contractual liability for common carriers
only
 Key points on liability:
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the common carrier is liable for loss of, or damage to any
consignment;
liability of common carrier for total loss shall be limited to ten
times the freight paid or payable, but shall not exceed the
value of the goods as declared in the goods forwarding note;
in case of partial loss, the amount of liability shall be assessed
by the Govt. approved valuer or surveyor;
in case of partial damage to goods, evaluation of such damage
may be done by an independent Govt. approved valuer or
Surveyor selected by the consignor out of the list notified by
the common carrier;
the liability period is from the date of taking over the goods on
their charge to the date of arrival at the destination point plus
three calendar days.
Three sets of rules
 Direct application of CMR
 Application of subregional rules
similar or close to CMR
 Application of appropriate national
rules and regulations only
UNESCAP proposed modality for
future harmonization of road transport laws
Establishing of a regional network of legal experts to:
 Exchange information
 Provide coordination
 Pinpoint areas of legal conflicts between different
subregional agreements and their implications
 Suggest solutions for legal conflicts in geographically
overlapped countries
 Suggest connections of the countries in different
subregions under different subregional agreements
 Share experience
Establishing of a regional
network of legal experts
Welcome for cooperation!
Tel: +66 22 88 24 96
Fax: +66 22 88 10 20
E-mail: [email protected]
Thank you!

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