CMNI-Convention in relation to

the Bratislava Agreements

Zsolt Kovcs
Grdos, Fredi, 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 a sophisticated
had
hi ti t d system
t
off cooperation.
ti

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
1950s, these monopolist
p
companies
p
agreed
g
on the conditions they
y
would 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
g
- the Bratislava
Agreements of 1955 - being used as a kind of an international treaty.

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
Agreements
g

Fall of the
communist
regimes

CMNI

THE WIND OF CHANGE

DMR Canal

Fall of the
communist
regimes

The shipping market in the Danube countries became free that is the
state 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
g
on the multiplayer
p y markets

CMNI

THE WIND OF CHANGE

DMR Canal

Fall of the
communist
regimes

Until the coming into force of CMNI in 2005 the laws of the Danube
countries on inland transportation were still different
The Bratislava Agreements could still played the role of a unified set
of rules as the laws on the contract of carriage were mostly
dispositive, i.e. the parties could freely agree on the application of the
Bratislava Agreements
CMNI changed
g
this fundamentallyy being
g a g
genuine international
treaty

CMNI

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
LAW

THE NEW SITUATION AFTER CMNI

SCOPE

APPLICATION

CHOICE OF
LAW

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

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 carrier

THE NEW SITUATION AFTER CMNI

SCOPE

Freedom of choice limited

The law chosen by the parties is only applicable in questions not

regulated by CMNI

No use to agree in the application of the law of a jurisdiction outside

CMNI, if the port of loading or discharge is in a CMNI state

APPLICATION

CHOICE OF
LAW

CMNI that is primer to the Bratislava Agreements on an international

level as its members are states, however may the Bratislava
Agreement be in force in any of the members of CMNI, in case of no
contradiction, the terms of Bratislava Agreement may be
supplementing the CMNI.

THE BRATISLAVA AGREEMENTS

The Bratislava Agreements include several agreements
agreements, which the
member companies undertake to apply in their inland navigation activity

The main areas

General terms and conditions of international carriage of goods on the

Danube
Freight policies
General average
Mutual assistance at accidents
Harbor agency activities
Transport
T
t off large
l
containers
t i
Repair

The interlap between Bratislava Agreements and CMNI

The rules of international carriage of goods

8

MEMBERS OF THE CMNI AND THE BRATISLAVA AGREEMENTS

CMNI

BRATISLAVA AGREEMENTS
(countries with shipping
companies that are members)
Bulgaria
Croatia
Germany
Hungary
Romania
Russian Federation
Slovakia

Czech Republic
France
Luxembourg
Netherlands
Switzerland

Austria
Serbia and Montenegro
Ukraine
9

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 carriers liability to the extent below the
level provided for in CMNI such clauses in general conditions are
nullll and
d void
id

Bratislava Agreement in its entirety may only be applied if the

carriage 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

Uncertainty for the carrier as to the actual content of its general conditions
10

1 DIFFERENCES IN THE AGREEMENTS - LIABILITY

Bratislava Agreement
1

Liability

CMNI

Loss or damage to goods;

Delay in delivery of goods;

Exoneration

Special
cases of
exoneration
ti

Limits of
liability

Objection,
enforcement
of claim

11

2 DIFFERENCES IN THE AGREEMENTS - EXONERATION

Liability

Exoneration

Special
cases of
exoneration

Limits of
liability

Objection,
enforcement
of claim

Bratislava Agreement

CMNI

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

12

3 DIFFERENCES IN THE AGREEMENTS SPECIAL CASES

Bratislava Agreement

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

Special
cases of
Exoneration

CMNI

Limits of
liability

Objection,
enforcement
of claim

force majeure, emergency;

acts and conducts of authorities or
administrative offices;
war and other violence;
actions launched by employees,
union;
the shipper breached the restriction
off prohibited shipping;
defaults and breach by the shipper
or
other acts that are
in conflict with the BA;
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 receivers
devices on taking over the goods
goods.
the goods were handed over intact
and
the shippers lead
was intact;
the g
goods were forwarded in intact
package and no signs imply
opening of the package
the goods were shipped with a due
guard on stand

acts or omissions of the shipper, the

consignee or the person entitled to
di
dispose
off th
the goods;
d
handling, loading, stowage or
discharge of the goods by the
shipper, the consignee or third parties
acting
g on behalf of the shipper
pp or the
consignee;
carriage of the goods on deck or in
open vessels,
nature of the goods;
lack of or defective condition of
packaging
insufficiency or inadequacy of marks
identifying the goods;
rescue or salvage operations or
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
in the contract of carriage.

13

4 DIFFERENCES IN THE AGREEMENTS LIMITS OF LIABILITY

Bratislava Agreement
1

Liability

Exoneration

Special
cases of
exoneration

Limits of
liability

Objection,
enforcement
of claim

CMNI

If the
th freight
f i ht documents
d
t indicate
i di t th
the value
l off th
the shipped
hi
d goods,
d th
the carrier's
i ' liliability
bilit shall
h ll b
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 g

goods or the
loss;

BUT the carrier is liable up to EUR

320 / piece or EUR 96/ ton,
maximum.

Comment: If the BA amounts would be

less than the CMNI amounts then the
CMNI shall prevail. In any case the
limits ma
may not be broader than that
defined in CMNI.

limited liabilityy up
p to 666.67 units of
account per package or other
shipping unit, or

2 units of account per kilogram of

weight, specified in the freight
d
document,
t off the
th goods
d llostt or
damaged, whichever is the higher.

14

5 DIFFERENCES IN THE AGREEMENTS OBJECTION, ENFORCEMENT OF

CLAIM

Bratislava Agreement

CMNI

1 year

1 year

Liability

Exoneration

Special
cases of
exoneration

Limits of
liability

Objection,
enforcement
of claim

15

We still do not have a truly unified system of transport law

on this great European inland waterway.
waterway It is high time to
have it!

16