Contractual liability of international road Contractual liability of international road carriers in Asiacarriers in Asia

99thth IRU Symposium of Lawyers IRU Symposium of LawyersGeneva, 24 February 2012Geneva, 24 February 2012

Mr. Fedor Kormilitsyn

Economic Affairs OfficerTransport Facilitation and Logistics SectionTransport Division

OutlineOutline Status of 1956 CMR Convention and 1978 Status of 1956 CMR Convention and 1978

Protocol to CMR in AsiaProtocol to CMR in Asia Subregional agreements related to carriers’ Subregional agreements related to carriers’

contractual liability and problems of their contractual liability and problems of their implementationimplementation

Examples of national regulations in AsiaExamples of national regulations in Asia UNESCAP proposals for future activities on UNESCAP proposals for future activities on

harmonization of road transport legislation harmonization of road transport legislation

The UNESCAP Resolution 48/11 on The UNESCAP Resolution 48/11 on ““Road and rail Road and rail transport modes in relation to facilitation measurestransport modes in relation to facilitation measures””, , 19921992

Recommendation to consider accession to the following Recommendation to consider accession to the following international conventions facilitating road transport:international conventions facilitating road transport:

The Convention on Road TrafficThe Convention on Road Traffic,, 1968 1968 The Convention on Road Signs and SignalsThe Convention on Road Signs and Signals, , 19681968 The Customs Convention on the International Transport of Goods The Customs Convention on the International Transport of Goods

under Cover of TIR Carnets (TIR Convention), 1975under Cover of TIR Carnets (TIR Convention), 1975 The Customs Convention on the Temporary Importation of The Customs Convention on the Temporary Importation of

Commercial Road Vehicles, 1956 Commercial Road Vehicles, 1956 The Customs Convention on Containers, 1972The Customs Convention on Containers, 1972 The International Convention on the Harmonization of Frontier The International Convention on the Harmonization of Frontier

Controls of Goods, 1982Controls of Goods, 1982 The Convention on the Contract for the International The Convention on the Contract for the International

Carriage of Goods by Road (CMR), 1956 Carriage of Goods by Road (CMR), 1956

Additions to the list of international conventions Additions to the list of international conventions

recommended for accessionrecommended for accession

The 1978 Protocol to the Convention on the The 1978 Protocol to the Convention on the Contract for the International Carriage of Goods Contract for the International Carriage of Goods by Roadby Road

The International Convention on the Simplification and The International Convention on the Simplification and Harmonization of Customs Procedures, as Amended Harmonization of Customs Procedures, as Amended (Revised Kyoto Convention), 1973(Revised Kyoto Convention), 1973

The Convention on Temporary Admission (Istanbul The Convention on Temporary Admission (Istanbul Convention), 1990Convention), 1990

IMO Convention on Facilitation of International IMO Convention on Facilitation of International Maritime Traffic (FAL) Maritime Traffic (FAL)

Status of 1956 CMR Convention Status of 1956 CMR Convention in UNESCAP regionin UNESCAP region

Participant Signature Ratification, Accession(a), Succession(d)

Armenia 9 Jun 2006 a

Azerbaijan 18 Sep 2006 a

Georgia 4 Aug 1999 a

Iran (Islamic Republic of) 17 Sep 1998 a

Kazakhstan 17 Jul 1995 a

Kyrgyzstan 2 Apr 1998 a

Mongolia 18 Sep 2003 a

Russian Federation 2 Sep 1983 a

Tajikistan 11 Sep 1996 a

Turkey 2 Aug 1995 a

Turkmenistan 18 Sep 1996 a

Uzbekistan 28 Sep 1995 a

Status of 1978 Protocol to CMR Status of 1978 Protocol to CMR Convention in UNESCAP regionConvention in UNESCAP region

Protocol to the Convention on the Contract for the International Carriage of Goods by Road (CMR)

Participant Signature Ratification, Accession (a)

Armenia 9 Jun 2006 a Georgia 4 Aug 1999 a Iran (Islamic Republic of)

17 Sep 1998 a

Kyrgyzstan 2 Apr 1998 a Turkey 2 Aug 1995 a Turkmenistan 18 Sep 1996 a Uzbekistan 27 Nov 1996 a

Main problems in accession to international Main problems in accession to international conventions and of their implementation in conventions and of their implementation in

AsiaAsia

Problems in accession:Problems in accession: - - Concerns relating to cost of adjustment to meet the Concerns relating to cost of adjustment to meet the

requirements of requirements of the conventions; the conventions; -- Perceived difficulties in implementation;Perceived difficulties in implementation;-- Lack of involvement in elaboration and amendment of Lack of involvement in elaboration and amendment of convention;convention;-- Perceived costs of participation in UNECE meetings;Perceived costs of participation in UNECE meetings;-- Language barrier.Language barrier.

Problems in implementation:Problems in implementation:-- Lack of territorial continuity of some of the Conventions;Lack of territorial continuity of some of the Conventions;- Accession to different versions of the same Convention;- Accession to different versions of the same Convention;-- Lack of harmonization due to non-accession to Protocols.Lack of harmonization due to non-accession to Protocols.

Subregional agreements in Asia 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)

GreaterGreater 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 ECO Transit Transport Framework AgreementAgreement

Annex VI: Rules of carriage by road Annex VI: Rules of carriage by road transporttransport For goods carriage 1956 CMR Convention For goods carriage 1956 CMR Convention

and 1978 Protocol to CMR to be appliedand 1978 Protocol to CMR to be applied Set of rules on carrier’s liability in case of Set of rules on carrier’s liability in case of

passenger carriagepassenger carriage Liability for Bodily Injury of PassengersLiability for Bodily Injury of Passengers Liability for Loss or Damages to Luggage Liability for Loss or Damages to Luggage

GMS CBTAGMS CBTA Annex 5: Cross-border Annex 5: Cross-border

movement of peoplemovement of people Contains provisions Contains provisions

for carrier of for carrier of passengers liabilitypassengers liability

Subject of liabilitySubject of liability Limitation of Limitation of

liabilityliability Compulsory Compulsory

insurance of insurance of carrier’s liabilitycarrier’s liability

Annex 10: Conditions Annex 10: Conditions of transportof transport Rules on carrier of Rules on carrier of

goods liabilitygoods liability Subject of liabilitySubject of liability Measure of Measure of

compensation and compensation and limitation of liabilitylimitation of liability

Exoneration of Exoneration of liability and its liability and its liftinglifting

Model consignment Model consignment note note

GMS CBTAGMS CBTA Key points on carrier of goods liabilityKey points on carrier of goods liability

the carrier shall be liable for the total, or partial the carrier shall be liable for the total, or partial loss, damage to the goods and for the delay in loss, damage to the goods and for the delay in delivery; delivery;

compensation due by the carrier shall not compensation due by the carrier shall not exceed 8.33 SDR per kilogram gross weight of exceed 8.33 SDR per kilogram gross weight of the goods lost or damaged;the goods lost or damaged;

the carrier shall refund in full in case of total loss the carrier shall refund in full in case of total loss and in proportion to the loss sustained in case of and in proportion to the loss sustained in case of partial loss, the carriage charges, customs partial loss, the carriage charges, customs duties, taxes, and other charges incurred in duties, taxes, and other charges incurred in respect of the carriage of goods.respect of the carriage of goods.

Main factors hindering the efficiency of Main factors hindering the efficiency of subregional agreementssubregional agreements

Long time for negotiation and Long time for negotiation and formalities needed for entry into forceformalities needed for entry into force

Difficulties in implementation, Difficulties in implementation, including need to adjust national including need to adjust national legislationlegislation

Overlapping in geographical zone and Overlapping in geographical zone and possible legal conflictspossible legal conflicts

A few examples of rules on carrier A few examples of rules on carrier liability contained in national lawsliability contained in national laws

China (China (Contract Law of the People's Republic of China, Contract Law of the People's Republic of China, 1999 )1999 ) Chapter 17, Transportation ContractsChapter 17, Transportation Contracts Key points on carrier liabilityKey points on carrier liability

The carrier is liable for damages in case of damage to or loss of the The carrier is liable for damages in case of damage to or loss of the cargoes in the course of carriagecargoes in the course of carriage

Where the parties agree on the amount of loss/damage of the cargoes, the 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 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 agreed, it shall be calculated on the basis of the prevailing market price at the destination when the cargoes are or ought to be deliveredthe destination when the cargoes are or ought to be delivered

Where the cargoes are lost in the course of carriage due to force majeure, 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 if the freight has not been collected, the carrier may not request the payment thereof; if the freight has been collected, the consignor may payment thereof; if the freight has been collected, the consignor may request the refund of the freight request the refund of the freight

A few examples of rules on carrier A few examples of rules on carrier liability contained in national lawsliability contained in national laws India (India (Carriage by Road Rules 2011 under Carriage by Road Carriage by Road Rules 2011 under Carriage by Road

Act 2007)Act 2007) Establishes rules of contractual liability for common carriers Establishes rules of contractual liability for common carriers

onlyonly Key points on liability:Key points on liability:

the common carrier is liable for loss of, or damage to any the common carrier is liable for loss of, or damage to any consignment;consignment;

liability of common carrier for total loss shall be limited to ten liability of common carrier for total loss shall be limited to ten times the freight paid or payable, but shall not exceed the times the freight paid or payable, but shall not exceed the value of the goods as declared in the goods forwarding note; value of the goods as declared in the goods forwarding note;

in case of partial loss, the amount of liability shall be assessed in case of partial loss, the amount of liability shall be assessed by the Govt. approved valuer or surveyor; by the Govt. approved valuer or surveyor;

in case of partial damage to goods, evaluation of such damage in case of partial damage to goods, evaluation of such damage may be done by an independent Govt. approved valuer or may be done by an independent Govt. approved valuer or Surveyor selected by the consignor out of the list notified by Surveyor selected by the consignor out of the list notified by the common carrier;the common carrier;

the liability period is from the date of taking over the goods on 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 their charge to the date of arrival at the destination point plus three calendar days. three calendar days.

Three sets of rules

Direct application of CMRDirect application of CMR Application of subregional rules Application of subregional rules

similar or close to CMRsimilar or close to CMR Application of appropriate national Application of appropriate national

rules and regulations only rules and regulations only

UNESCAP proposed modality for UNESCAP proposed modality for future harmonization of road transport lawsfuture harmonization of road transport laws

Establishing of a regional network of legal experts to:Establishing of a regional network of legal experts to:

Exchange informationExchange information Provide coordinationProvide coordination Pinpoint areas of legal conflicts between different Pinpoint areas of legal conflicts between different

subregional agreements and their implicationssubregional agreements and their implications Suggest solutions for legal conflicts in geographically Suggest solutions for legal conflicts in geographically

overlapped countriesoverlapped countries Suggest connections of the countries in different Suggest connections of the countries in different

subregions under different subregional agreementssubregions under different subregional agreements Share experienceShare experience

Establishing of a regional Establishing of a regional network of legal expertsnetwork of legal experts

Welcome for cooperation!Welcome for cooperation! Tel: +66 22 88 24 96Tel: +66 22 88 24 96Fax: +66 22 88 10 20Fax: +66 22 88 10 20

E-mail: kormilitsyn@un.org E-mail: kormilitsyn@un.org

Thank you!Thank you!