PROTOCOL
TO AMEND THE INTERNATIONAL CONVENTION FOR THE UNIFICATION OF CERTAIN RULES OF
LAW RELATING TO BILLS OF LADING, SIGNED AT BRUSSELS ON 25TH AUGUST 1924
(Brussels,
23.II.1968)
The
Contracting Parties,
Considering
that it is desirable to amend the International Convention for the unification
of certain rules of law relating to bills of lading, signed at Brussels on 25th
August 1924,
Have
agreed as follows:
1.
In Article 3, paragraph 4, shall be added:
"However,
proof to the contrary shall not be admissible when the bill of lading has been
transferred to a third party acting in good faith."
2.
In Article 3, paragraph 6, sub-paragraph 4 shall be deleted and replaced by:
"Subject
to paragraph 6bis the carrier and the ship shall in any event be discharged
from all liability whatsoever in respect of the goods, unless suit is brought
within one year of their delivery or of the date when they should have been
delivered. This period may, however, be extended if the parties so agree after
the cause of action has arisen."
3.
In Article 3, after paragraph 6, shall be added the following paragraph 6bis:
"An action
for indemnity against a third person may be brought even after the expiration
of the year provided for in the preceding paragraph if brought within the time
allowed by the law of the Court seized of the case. However, the time allowed
shall be not less than three months, commencing from the day when the person
bringing such action for indemnity has settled the claim or has been served
with process in the action against himself."
Article
4, paragraph 5, shall be deleted and replaced by the following:
"a) Unless
the nature and value of such goods have been declared by the shipper before
shipment and inserted in the bill of lading, neither the carrier nor the ship
shall in any event be or become liable for any loss or damage to or in
connection with the goods in an amount exceeding the equivalent of 10.000
francs per package or unit or 30 francs per kilo of gross weight of the goods
lost or damaged, wichever is the higher.
b) The total
amount recoverable shall be calculated by reference to the value of such goods
at the place and time at which the goods are discharged from the ship in
accordance with the contract or should have been so discharged.
The value of
the goods shall be fixed according to the commodity exchange price, or, if
there be no such price, according to the current market price, or, if there be
no commodity exchange price or current market price, by reference to the normal
value of goods of the same kind and quality.
c) Where a
container, pallet or similar article of transport is used to consolidate goods,
the number of packages or units enumerated in the bill of lading as packed in
such article of transport shall be deemed the number of packages or units for
the purpose of this paragraph as far as these packages or units are concerned.
Except as aforesaid such article of transport shall be considered the package
or unit.
d) A franc
means a unit consisting of 65.5 milligrammes of gold of millesimal fineness
900'. The date of conversion of the sum awarded into national currencies shall
be governed by the law of the Court seized of the case.
e) Neither the
carrier nor the ship shall be entitled to the benefit of the limitation of
liability provided for in this paragraph if it is proved that the damage
resulted from an act or omission of the carrier done with intent to cause
damage, or recklessly and with knowledge that damage would probably result.
f) The declaration
mentioned in sub-paragraph a) of this paragraph, if embodied in the bill of
lading, shall be prima facie evidence, but shall not be binding or conclusive
on the carrier.
g) By agreement
between the carrier, master or agent of the carrier and the shipper other
maximum amounts than those mentioned in sub-paragraph a) of this paragraph may
be fixed, provided that no maximum amount so fixed shall be less than the
appropriate maximum mentioned in that sub-paragraph.
h) Neither the
carrier nor the ship shall be responsible in any event for loss or damage to,
or in connection with, goods if the nature or value thereof has been knowingly
mis-stated by the shipper in the bill of lading."
Between
Articles 4 and 5 of the Convention shall be inserted the following Article -
4bis:
"1. The
defences and limits of liability provided for in this Convention shall apply in
any action against the carrier in respect of loss or damage to goods covered by
a contract of carriage whether the action be founded in contract or in tort.
2. If such an
action is brought against a servant or agent of the carrier (such servant or
agent not being an independent contractor), such servant or agent shall be
entitled to avail himself of the defences and limits of liability which the
carrier is entitled to invoke under this Convention.
3. The
aggregate of the amounts recoverable from the carrier, and such servants and
agents, shall in no case exceed the limit provided for in this Convention.
4.
Nevertheless, a servant or agent of the carrier shall not be entitled to avail
himself of the provisions of this Article, if it is proved that the damage
resulted from an act or omission of the servant or agent done with intent to
cause damage or recklessly and with knowledge that damage would probably
result."
Article
9 of the Convention shall be deleted and replaced by the following:
"This
Convention shall not affect the provisions of any international Convention or
national law governing liability for nuclear damage."
Article
10 of the Convention shall be deleted and replaced by the following:
"The
provisions of this Convention shall apply to every bill of lading relating to
the carriage of goods between ports in two different States if:
a) the bill of
lading is issued in a Contracting State, or
b) the carriage
is from a port in a Contracting State, or
c) the Contract
contained in or evidenced by the bill of lading provides that the rules of this
Convention or legislation of any State giving effect to them are to govern the
contract, whatever may be the nationality of the ship, the carrier, the
shipper, the consignee, or any other interested person.
Each
Contracting State shall apply the provisions of this Convention to the bills of
lading mentioned above.
This Article
shall not prevent a Contracting State from applying the Rules of this
Convention to bills of lading not included in the preceding paragraphs."
As
between the Parties to this Protocol the Convention and the Protocol shall be
read and interpreted together as one single instrument.
A
Party to this Protocol shall have no duty to apply the provisions of this
Protocol to bills of lading issued in a State which is a Party to the
Convention but which is not a Party to this Protocol.
As
between the Parties to this Protocol, denunciation by any of them of the
Convention in accordance with Article 15 thereof, shall not be construed in any
way as a denunciation of the Convention as amended by this Protocol.
Any
dispute between two or more Contracting Parties concerning the interpretation
or application of the Convention which cannot be settled through negotiation,
shall, at the request of one of them, be submitted to arbitration. If within
six months from the date of the request for arbitration the Parties are unable
to agree on the organization of the arbitration, any one of those Parties may
refer the dispute to the International Court of Justice by request in
conformity with the Statute of the Court.
1.
Each Contracting Party may at the time of signature or ratification of this
Protocol or accession thereto, declare that it does not consider itself bound
by Article 8 of this Protocol. The other Contracting Parties shall not be bound
by this Article with respect to any Contracting Party having made such a
reservation.
2.
Any Contracting Party having made a reservation in accordance with paragraph 1
may at any time withdraw this reservation by notification to the Belgian
Government.
This
Protocol shall be open for signature by the States which have ratified the
Convention or which have adhered thereto before the 23rd February 1968, and by
any State represented at the twelfth session (1967 - 1968) of the Diplomatic
Conference on Maritime Law.
1.
This Protocol shall be ratified.
2.
Ratification of this Protocol by any State which is not a Party to the
Convention shall have the effect of accession to the Convention.
3.
The instruments of ratification shall be deposited with the Belgian Government.
1.
States, Members of the United Nations or Members of the specialized agencies of
the United Nations, not represented at the twelfth session of the Diplomatic
Conference on Maritime Law, may accede to this Protocol.