Contractual liability of international road carriers in Asia

1. 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

2. 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

3. 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: 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

4. 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)

5. Status of 1956 CMR Convention in UNESCAP region

6. Status of 1978 Protocol to CMR Convention in UNESCAP region

7. Main problems in accession to international conventions and of their implementation in Asia • Problems in accession: - 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.

8. 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)

9. 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

10. 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

11. 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.

12. 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

13. 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 • 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

14. 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: • 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.

15. 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

16. 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

17. 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: kormilitsyn@un.org

18. Thank you!