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RS 0.747.206 Strasbourg Convention of 4 November 1988 on Limitation of Liability in Inland Navigation (CLNI)

Original Language Title: RS 0.747.206 Convention de Strasbourg du 4 novembre 1988 sur la limitation de la responsabilité en navigation intérieure (CLNI)

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0.747.206

Original text

Strasbourg Convention on Limitation of Liability in Inland Navigation

(NAIL)

Conclue in Strasbourg on 4 November 1988
Approved by the Federal Assembly on March 22, 1996 1
Instrument of ratification deposited by Switzerland on 21 May 1997
Entry into force for Switzerland on 1 Er September 1997

(Status on 7 March 2006)

The Federal Republic of Germany, the Kingdom of Belgium, the French Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Swiss Confederation,

Recognising the usefulness of harmonising the applicable law on limitation of liability in inland navigation in particular on the Rhine and the Moselle,

Have decided to conclude a Convention for this purpose and, accordingly, have agreed as follows:

Chapter I The right to limitation

Art. 1 Persons entitled to limit their liability

Boaters and wizards, as defined below, may limit their liability in accordance with the rules of this Convention in respect of claims under Art. 2.

2. The expression

(a)
"Boat owner" means the owner, the lessee, the charterer, the shipowner and the owner-manager of a vessel;
(b)
"Boat" means an inland navigation vessel and also includes hydroslides, ferries and small craft, but not the hovercraft. Dredges, cranes, forklifts and any other floating and mobile machinery or equipment of a similar nature shall be assimilated to vessels;
(c)
"Assistant" means any person who provides services in direct relation to assistance or rescue operations. These operations also include those under s. 2, para. 1, let. D), e) and f).

3. If any of the claims referred to in s. 2 shall be made against any person whose facts, negligence or misconduct lead to the liability of the owner or assistant, that person shall have the right to avail himself of the limitation of liability provided for in this Convention.

4. In this Convention, the term " liability of the owner of a vessel shall include liability arising out of an action taken against the vessel itself.

5. The insurer covering liability in respect of claims subject to limitation in accordance with this Convention shall have the right to avail itself of it to the same extent as the insured person himself.

6. The fact of relying on limitation of liability does not imply recognition of that responsibility.

Art. 2 Creatures subject to limitation

1. Subject to s. 3 and 4, the following claims, irrespective of the basis of liability, are subject to limitation of liability:

(a)
Claims for death, for personal injuries, for loss or damage to all property (including damage to the works of art in ports, basins, waterways, locks, bridges and aids to navigation), which occurred on board the vessel or in relation to Direct with the operation of the latter or with assistance or rescue operations, as well as for any other damage resulting from it;
(b)
Claims for damage caused by a delay in the carriage of the cargo, passengers or their baggage;
(c)
Claims for other damages arising out of the infringement of all rights of non-contractual source and that have occurred in direct connection with the operation of the vessel or with assistance or rescue operations;
(d)
Debts for having lost, abducted, destroyed or rendered harmless a ship that was sunk, shipwrecked, failed or abandoned, including all that is or was on board;
(e)
Claims for abducting, destroying or rendering harmless the cargo of the vessel;
(f)
Claims produced by a person other than the person responsible for the measures taken to prevent or reduce damage for which the responsible person may limit its liability in accordance with this Convention and for the purposes of Damage subsequently caused by these measures.

(2) The claims referred to in paragraph 1 shall be subject to limitation of liability even if they are the subject of an action, whether contractual or not, recuring or guaranteeing. However, the claims filed under s. 1, let. (d), (e) and (f) are not subject to limitation of liability to the extent that they relate to remuneration pursuant to a contract with the person in charge.

Art. 3 Creatures excluded from limitation

The rules of this Convention shall not apply to:

(a)
The claims of the head of assistance, rescue or contribution in common damage;
(b)
Claims subject to any international convention or national law governing or prohibiting the limitation of liability for nuclear damage;
(c)
Claims against the owner of a nuclear vessel for nuclear damage;
(d)
To the claims of the servants of the owner of the vessel or assistant whose duties relate to the service of the vessel or to assistance or rescue operations as well as to the claims of their heirs, successors in title or other persons based on To form such claims if, according to the law governing the contract of engagement between the owner of the vessel or the assistant and the servants, the owner of the vessel or assistant does not have the right to limit its liability in respect of those Claims, or, if, according to that law, it can only do so to an amount greater than That provided for in s. 6.
Art. 4 Conduct suppressing the limitation

A responsible person is not entitled to limit his liability if it is proved that the damage is the result of his personal act or omission, committed with the intention of causing such damage, or recklessly and conscientiously committed That such damage would likely result.

Art. 5 Compensation for claims

If a person entitled to limit his liability in accordance with the rules of this Convention has against his creditor a debt arising out of the same event, their respective claims shall be compensated and the provisions of this Convention shall not Apply to the potential balance.

Chapter II Limits of liability

Art. 6 General limits

1. Limits of liability for claims other than those referred to in s. 7, from the same event, are calculated as follows:

(a)
In respect of claims for death or personal injury:
(i)
For a vessel not assigned to the carriage of goods, in particular a passenger vessel, 200 units of account for each cubic metre of movement of water from the vessel to the maximum permitted draught, increased for vessels equipped with mechanical means of Propulsion of 700 units of account for each KW of the power of their propulsion machinery;
(ii)
For a vessel engaged in the carriage of goods, 200 units of account per tonne of heavy port of the vessel, increased for vessels equipped with mechanical means of propulsion of 700 units of account for each KW of the power of their machines Propulsion;
(iii)
For a pusher or tug, 700 units of account for each KW of the power of their propulsion machinery;
(iv)
For a pusher that, at the time the damage was caused, was coupled with barges in a pushed convoy, the amount of liability calculated in accordance with para. (iii) is increased by 100 units of account per tonne of port in heavy barges; this increase shall not be applicable to the extent that it is proved that the pusher has provided one or more of these barges for assistance or Rescue;
(v)
For a vessel equipped with mechanical means of propulsion which, at the time the damage was caused, ensures the propulsion of other vessels coupled to that vessel, the amount of liability calculated in accordance with paras. (i), (ii) or (iii) is increased by 100 units of account per tonne of port in heavy or per cubic metre of water displacement of other vessels; this increase shall not be applicable in so far as it is proved that the vessel has supplied one or more Vessels coupled with assistance or rescue services;
(vi)
For floating and movable equipment or tools within the meaning of s. 1, para. 2, let. (b) the second sentence, their value at the time of the event;
(b)
In respect of all other claims, half of the amounts referred to in the let. (a);
(c)
When the amount calculated in accordance with the let. (a) is insufficient for the full settlement of the claims in question, the amount calculated in accordance with the let. (b) may be used to settle the unpaid balance of the claims referred to in the let. (a) and that outstanding balance shall be in competition with the claims referred to in the let. (b);
(d)
In no case shall the limits of liability be less than 200 000 units of account in respect of claims for death or personal injury and 100 000 units of account in respect of all other claims.

2. However, without prejudice to the right of claims for death or bodily injury in accordance with para. 1, let. (c) a State Party may stipulate in its national law that claims for damage caused to works of art in ports, basins, waterways, locks, bridges and aids to navigation have, on the other claims referred to in subs. 1, let. (b) the priority provided for in that legislation.

3. The limits of liability referred to in s. 1, let. (d) shall also apply to any assistant who provides assistance or rescue services to a vessel and does not act from a ship of inland navigation or from a seagoing ship or any assistant acting solely on board the vessel Vessel to which it provides assistance or rescue services.

Art. 7 Limits on the claims of passengers

1. In the case of claims resulting from the death or personal injury of passengers of a vessel and arising from the same event, the limit of the liability of the owner of the vessel shall be set at a sum of 60 000 units of account multiplied by the Number of passengers that the vessel is authorised to transport according to the certificate of the vessel or, if the number of passengers that the vessel is authorised to carry is not prescribed, this limitation shall be determined by the number of passengers actually Transported by the vessel at the time of the event.

These limits cannot be less than 720,000 units of account or greater than the following amounts:

(a)
3 million units of account for vessels of an authorised capacity for transport not exceeding 100 passengers;
(b)
6 million units of account for vessels of an authorised capacity for transport not exceeding 180 passengers;
(c)
12 million units of account for vessels with an authorised capacity of more than 180 passengers.

2. For the purposes of this Article, "claims resulting from the death or bodily injury of passengers of a vessel" means any claim made by any person carried on or on behalf of that person:

(a)
Under a passenger contract, or
(b)
Which, with the consent of the carrier, accompanies a vehicle or live animals subject to a contract for the carriage of goods.
Art. 8 Unit of account

1. The unit of account referred to in s. 6 and 7 is the Special Drawing Right as defined by the International Monetary Fund. Amounts referred to in s. 6 and 7 shall be converted into the national currency of the State in which the limitation of liability is invoked; conversion shall be effected according to the value of that currency on the date on which the fund was established, the payment made or the guarantee Equivalent provided in accordance with the law of that State.

2. The value, in the Special Drawing Right, of the national currency of a State Party shall be calculated according to the method of valuation applied by the International Monetary Fund on the date in question for its own transactions and transactions.

3. States Parties may fix, on the basis of the method of calculation referred to in par. 1, the equivalent of amounts referred to in s. 6 and 7 in their national currency in rounded numbers. Where, as a result of a change in the value of the Special Drawing Right of the national currency, the amounts expressed in that currency deviate from more than 10 % of the actual value expressed in Right of Special Drawing Right to Art. 6 and 7, the amounts will have to be adjusted to the actual value. The States Parties shall communicate to the depositary the sums expressed in national currency and any modification thereof.

Art. Receivables competition

1. Without prejudice to s. 2, the limits of liability determined under s. 6 apply to all claims arising from the same event:

(a)
In respect of the person or persons referred to in s. 1, para. 2, let. (a), and any person whose facts, negligence or misconduct lead to the liability of the person or the person, or
(b)
In respect of the owner of a vessel which provides assistance or rescue services from that vessel and in respect of the assistant or assistants acting from that vessel and any person whose facts, negligence or negligence Involve the responsibility of the person or the person, or
(c)
In respect of the assistant or assistant who does not act from an inland navigation vessel or a seagoing ship or acting solely on board the vessel to which assistance or rescue services are provided and of any person whose The facts, negligence or mistakes lead to the responsibility of the latter or the latter.
(a) Where, in accordance with Art. 6, para. 1, let. (a), para. (iv) the amount of liability for a pusher that, at the time the damage was caused, was coupled with barges in a pushed convoy, is increased, in respect of the claims arising out of the event, by 100 units of account per ton of port in heavy Advanced barges, the amount of responsibility for each barge is reduced, in respect of the claims arising from the same event, of 100 units of account for each tonne of heavy barge port.
(b)
Where, in accordance with s. 6, para. 1, let. (a), para. (v) the amount of liability for a vessel equipped with mechanical means of propulsion which, at the time the damage was caused, ensures the propulsion of other vessels coupled to that vessel, is increased, in respect of the claims arising from the event, of 100 Units of account per ton of port in heavy or per cubic metre of water displacement of vessels coupled, the amount of liability for each coupled vessel shall be reduced, in respect of claims arising out of the same event, of 100 units of account for Each tonne of port in heavy or for each cubic metre of water displacement of the mated vessel.

3. The limits of liability determined under s. 7 applies to all claims arising out of the same event in respect of the person or persons referred to in s. 1, para. 2, let. (a) in the case of the vessel referred to in s. 7 and any person whose facts, negligence or misconduct lead to the liability of the person or the person concerned.

Art. 10 Limitation of liability without the creation of a limitation fund

1. Limitation of liability may be invoked even if the limitation fund referred to in s. 11 has not been constituted. However, a State Party may stipulate in its national law that where an action is brought before its courts in order to obtain payment of a claim subject to limitation, a responsible person may not invoke the right to limit his Liability if a limitation fund has been established in accordance with the provisions of this Convention or is constituted where the right to limit liability is invoked.

2. If the limitation of liability is invoked without the creation of a limitation fund, the provisions of Art. 12 apply.

(3) The rules of procedure for the application of this Article shall be governed by the national law of the State Party in which the action is brought.

Chapter III The limitation fund

Art. 11 Constitution of the Fund

(1) Any person whose responsibility may be called into question may constitute a fund with the competent court or any other competent authority of any State Party in which an action is engaged for a claim subject to limitation, or, If no action is taken, before the competent court or any other competent authority of any State Party in which an action may be instituted for a claim subject to limitation. The fund must be made up of the amount as calculated in accordance with the provisions of s. 6 and 7 applicable to claims for which the person who constitutes the fund may be liable, plus interest accrued from the date of the event giving rise to liability up to the date of the establishment of the fund. Any such fund shall be available only to pay the claims in respect of which the limitation of liability may be invoked.

2. A fund may be constituted either by recording the sum or by providing a guarantee acceptable under the legislation of the State Party in which the fund is constituted and considered adequate by the court or any other authority Competent.

3. A fund constituted by one of the persons referred to in s. 9, para. 1, let. (a), (b) or (c), at para. 3, or by its insurer, is deemed to be constituted by all persons referred to in s. 9, para. 1, let (a), (b) or (c) or (c). 3.

Art. 12 Allocation of funds

1. Subject to the provisions of s. 6, para. 1 and 2, and those of s. 7, the fund is distributed among the creditors in proportion to the amount of their claims against the fund.

2. If, before the distribution of the fund, the responsible person, or its insurer, has settled a claim against the fund, that person is subrogated to the amount that it has paid, in the rights that the beneficiary of that settlement would have Under this Convention.

3. The right of subrogation under subs. 2 may also be exercised by persons other than those mentioned above, for any amount that they would have paid as compensation, but only to the extent that such subrogation is permitted by the applicable national law.

4. If the responsible person or any other person establishes that it may subsequently be forced to pay as compensation an amount for which it would have enjoyed a right of subrogation under subs. 2 and 3 if that amount had been paid before the distribution of the fund, the court or any other competent authority of the State in which the fund is constituted may order that a sufficient sum be provisionally reserved for that purpose Person to subsequently enforce his or her rights against the fund.

Art. 13 End of non-receipt

1. If a limitation fund has been established in accordance with s. 11, no person who has filed a claim against the fund may be permitted to exercise rights in respect of that debt on other property of a person by or on behalf of which the fund has been constituted.

2. After the establishment of a fund in accordance with Art. 11, any vessel or other property belonging to a person to whom the fund has been constituted, which has been seized in the jurisdiction of a State Party for a claim which may be opposed to the fund, and any guarantee Shall be released by the court or any other competent authority of that State.

3. The provisions of s. 1 and 2 apply only if the creditor can file a claim against the fund before the court administering that fund and if the fund is actually available and freely transferable in respect of that claim.

Art. 14 Applicable law

Subject to the provisions of this Chapter, the rules on the constitution and distribution of a limitation fund and any rules of procedure relating thereto shall be governed by the law of the State Party in which the fund is Made.

Chapter IV Scope of application

Art. 15

(1) This Convention shall apply to the limitation of the liability of the owner of a vessel or assistant when at the time of the event giving rise to claims:

(a)
The ship sailed on one of the waterways subject to the regime of the Revised Convention for the Navigation of the Rhine of 17 October 1868 1 Or the Convention of 27 October 1956 concerning the channelling of the Moselle, or
(b)
Assistance or rescue services have been provided in the scope of one of the said waterways to a vessel in danger or to the cargo of such a vessel, or
(c)
A vessel sunk, shipwrecked, failed or abandoned in the extent of one of the said waterways or the cargo of such a vessel has been replenishment, removed, destroyed or rendered harmless.

This Convention shall also apply to the limitation of the liability of an assistant providing assistance services of an inland navigation vessel to a marine vessel in danger in the scope of one of those waterways or to the cargo Of such a ship.

(2) Any State may at the time of signature, ratification, acceptance, approval or accession, or at any subsequent time, declare by means of a notification addressed to the depositary that this Convention is also applicable to Other waterways than those mentioned in par. 1 provided that they are located in the territory of that State.

This Convention shall take effect, for the waterways mentioned in the notification, on the first day of the month following the expiration of a period of three months following receipt of the notification or, if this Convention is not yet Entry into force, with its entry into force.

3. Any State which has made a declaration under s. 2 may withdraw it at any time by means of a notification addressed to the depositary. The withdrawal shall take effect on the first day of the month following the expiration of one year from the date on which the notification is received or at the expiration of any longer period that may be specified in the declaration.


Chapter V Final clauses

Art. 16 Signature, ratification and accession

1. This Convention shall be open for signature by all States Parties to the Revised Convention for the Navigation of the Rhine of 17 October 1868 1 And the Grand Duchy of Luxembourg, from 4 November 1988 to 4 November 1989 at the headquarters of the Central Commission for the Navigation of the Rhine in Strasbourg and remains open to accession.

2. This Convention shall be subject to ratification, acceptance or approval by the States which have signed it.

3. States other than those referred to in par. 1, having a direct navigable link with the waterways referred to in s. 15, para. 1, may, by unanimous decision of the States in respect of which this Convention entered into force, be invited to accede. The depositary shall convene the States referred to in the first sentence to rule on the invitation decision. The decision shall include the adaptations of this Convention necessary in the event of the accession of the State to be invited, in particular with regard to the conversion of the amounts of liability into the national currency of a State, which is not a member of the Fund International monetary policy. The decision shall enter into force when all the States party to this Convention mentioned in the first sentence have notified the Secretary General of the Central Commission for the Navigation of the Rhine of the acceptance of the decision. Any State so invited may accede to the Convention as amended by the decision.

4. The ratification, acceptance, approval or accession shall be effected by the deposit of an instrument in good form with the Secretary General of the Central Commission for the Navigation of the Rhine.


Art. 17 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 from the date on which three of the States referred to in Art. 16, para. 1, shall have deposited the instrument of ratification, acceptance, approval or accession.

2. For a State which deposits an instrument of ratification, acceptance, approval or accession after the conditions governing entry into force of this Convention have been fulfilled, the Convention shall enter into force on the first day of the Months after the expiry of a period of three months from the date on which that State has deposited its instrument.

Art. 18 Reservations

(1) Any State may, upon signature, ratification, acceptance, approval or accession, as well as, for a reservation referred to in the let. (b) at any time thereafter, reserve the right to exclude the application of the rules of this Convention in whole or in part:

(a)
Claims for damage due to changes in the physical, chemical or biological quality of water;
(b)
Claims for damage caused by hazardous materials during transport, to the extent that such claims are governed by an International Convention or a national law which excludes the limitation of liability or sets limits of Greater responsibility than those provided for in this Convention;
(c)
Claims under s. 2, para. 1, let. (d) and (e);
(d)
Sports and recreational vessels and vessels that are not employed in navigation for profit;
(e)
Allèges exclusively used in ports for transhipments.

2. Any State may, at the time of signature, ratification, acceptance, approval or accession, declare that it will not apply to claims arising out of an event on its waterways, the maximum limits of liability Under s. 7, para. 1, second sentence, let. (a) and (b).

3. Reservations made at the time of signature must be confirmed upon ratification, acceptance or approval.

(4) Any State which has made a reservation in respect of this Convention may withdraw it at any time by means of a notification addressed to the depositary. The withdrawal shall take effect on the date on which the notification is received or at a later date specified in the notification.

Art. 19 Denunciation

(1) This Convention may be denounced by any of the States Parties by notification addressed to the depositary at any time, one year after the date on which the Convention enters into force in respect of that Party.

(2) Denunciation shall take effect on the first day of the month following the expiration of one year from the date on which the notification is received or at the expiration of any longer period that may be specified therein.

Art. Revision of limitation amounts

At the request of a State Party to this Convention, the depositary shall convene a Conference of all Contracting States to deliberate on the revision of the amounts of limitation provided for in Art. 6 and 7 or the replacement of the unit of account referred to in s. 8 of this Convention.

2. During the debate on the revision of the amounts of limitation provided for in Art. 6 and 7, account must be taken of the experience acquired in relation to harmful events and, in particular, the amount of damage resulting from them, fluctuations in the value of the currencies and the impact of the proposed amendment on the cost of the Insurance.

3. A)
No amendment to amend the limitation amounts under this Article shall be considered before the expiration of five years from the date on which this Convention has been opened for signature or a time limit of Five years from the date of entry into force of an earlier amendment adopted under this Article.
(b)
No limit shall be raised to the point of exceeding an amount corresponding to the limit set in this Convention plus six per cent per annum, in compound interest, from the date on which this Convention was opened for Signature.
(c)
No limit shall be raised to the point of exceeding an amount equal to three times the limit set out in this Convention.

4. The decision to review the amounts of limitation under s. 6 and 7, or to replace the unit of account referred to in s. 8, shall be taken by a two-thirds majority of the Contracting States present and voting, comprising a two-thirds majority of the States referred to in Art. 16, para. 1, for which this Convention has entered into force.

The depositary shall notify all Contracting States of the amendments adopted in accordance with subs. 2. The amendment shall be deemed to have been accepted after the expiry of a period of six months from the date of the notification, unless, within that period, one third of the Contracting States have notified the depositary of their refusal to accept the amendment.

6. An amendment deemed to have been accepted in accordance with s. 5 shall enter into force eighteen months after its acceptance, in respect of all States which, at that time, are Parties to this Convention, unless they denounce this Convention, in accordance with art. 19, para. 1, at least six months before the entry into force of this amendment. Such denunciation shall take effect when the said amendment enters into force. The amendment shall bind any State becoming a Party to this Convention after the date referred to in the first sentence.

Art. Depositary

1. This Convention shall be deposited with the Secretary General of the Central Commission for the Navigation of the Rhine.

2. The Secretary General of the Central Commission for the Navigation of the Rhine

(a)
Transmit certified copies of this Convention to all States referred to in Art. 16, para. 1, as well as to all other States which accede to this Convention;
(b)
Inform all States which have signed or acceded to this Convention:
(i)
Any new signature, instrument deposit and any declaration and reservation thereto, as well as the date on which such signature, deposit or declaration occurred;
(ii)
The date of entry into force of this Convention;
(iii)
Any denunciation of this Convention and the date on which it takes effect;
(iv)
Any amendment deemed to have been accepted under s. 20, para. 5, as well as the date on which the amendment enters into force, in accordance with Art. 20, para. 6;
(v)
Of each decision by which a State is invited to accede under Art. 16, para. 3, first sentence, and the date of entry into force of the decision;
(vi)
Any communication required by any of the provisions of this Convention.
Art. Languages Application on 23 November 2005

This Convention shall be established in a single original in the German, French and Dutch languages, each text being equally authentic.

In witness whereof, The undersigned, having deposited their full powers, have signed this Convention.

Done at Strasbourg, 4 November 1988.

(Suivent signatures)

Scope of application on 23 November 2005 2

States Parties

Ratification

Entry into force

Germany *

March 9

1999

1 Er July

1999

Luxembourg *

July 5

1993

1 Er September

1997

Netherlands *

April 16

1997

1 Er September

1997

Switzerland *

21 May

1997

1 Er September

1997

*

Reservations and declarations.

Reservations and declarations, with the exception of those of Switzerland, are not published in the RO. The texts in French and German can be obtained from the Directorate of Public International Law (DDIP), International Treaty Section, 3003 Berne.

Reservations and declarations

Switzerland 3

Reservations

(a)
The Swiss Confederation excludes the application of the rules of the Convention to claims for damages due to changes in the physical, chemical or biological quality of water (Art. 18, para. 1, let. (a);
(b)
The Swiss Confederation excludes the application of the rules of the Convention to sports and recreational vessels and to vessels that are not employed in navigation for profit (art. 18, para. 1, let. (d)
(c)
The Swiss Confederation will not apply the maximum liability limits laid down in Art. 7, para. 1, let. (a) and (b), of the Convention (art. 18, para. 2).

Statement

The Federal Council also declares, in accordance with Art. 15, para. 2, of the Convention, that the Swiss Confederation will also apply the provisions of the Rhine Convention between Basel and Rheinfelden.


RO 1998 1000; FF 1995 IV 233


1 Art. 1 Er Al. 1 of March 22, 1996 (RO) 1998 998)
2 A version of the updated scope of application is published on the DFAE website (http://www.eda.admin.ch/eda/f/home/foreign/intagr/dabase.html).
3 Article 2 of the AF of 22 March 1996 (RO 1998 998).


State 11. July 2006