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1991年联合国国际贸易运输港站经营人赔偿责任公约 UNITED NATIONS CONVENTION ON THE LIABILITY OF OPERATORS OF TRANS-PORT TERMINALS IN INTERNATIONAL TRADE, 1991 PREAMBLE

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颁布日期:19910419  颁布单位:维也纳

  THE CONTRACTING STATES:

  REAFFIRMING THEIR CONVICTION that the progressive harmonization andunification of international trade law, in reducing or removing legalobstacles to the flow of international trade, especially those affectingthe developing countries, would significantly contribute to universaleconomic co-operation among all States on a basis of equality, equity andcommon interest and to the elimination of discrimination in internationaltrade and, thereby, to the well-being of all peoples;

  CONSIDERING the problems created by the uncertainties as to the legalregime applicable with regard to goods in international carriage when thegoods are not in the charge of carriers nor in the charge of cargo-owninginterests but while they are in the charge of operators of transportterminals in international trade;

  INTENDING to facilitate the movement of goods by establishing uniformrules concerning liability for loss of, damage to or delay in handing oversuch goods while they are in the charge of operators of transportterminals and are not covered by the laws of carriage arising out ofconventions applicable to the various modes of transport,

  HAVE AGREED as follows:

  Article 1 Definitions

  In this Convention:

  (a) “Operator of a transport terminal” (hereinafter referred to as“operator”) means a person who, in the course of his business, undertakesto take in charge goods involved in international carriage in order toperform or to procure the performance of transport-related services withrespect to the goods in an area under his control or in respect of whichhe has a right of access or use. However, a person is not considered anoperator whenever he is a carrier under applicable rules of law governingcarriage;

  (b) Where goods are consolidated in a container, pallet or similararticle of transport or where they are packed, “goods” includes sucharticle of transport or packaging if it was not supplied by the operator;

  (c) “International carriage” means any carriage in which the place ofdeparture and the place of destination are identified as being located intwo different States when the goods are taken in charge by the operator;

  (d) “Transport-related services” includes such services as storage,warehousing, loading, unloading, stowage, trimming, dunnaging andlashing;

  (e) “Notice” means a notice given in a form which provides a record ofthe information contained therein;

  (f) “Request” means a request made in a form which provides a recordof the information contained therein.

  Article 2 Scope of application

  (1) This Convention applies to transport-related services performed inrelation to goods which are involved in international carriage:

  (a) When the transport-related services are performed by anoperator whose place of business is located in a State Party, or

  (b) When the transport-related services are performed in a StateParty, or

  (c) When, according to the rules of private international law, thetransport-related services are governed by the law of a State Party.

  (2) If the operator has more than one place of business, the place ofbusiness is that which has the closest relationship to thetransport-related services as a whole.

  (3) If the operator does not have a place of business, reference is tobe made to the operator's habitual residence.

  Article 3 Period of responsibility

  The operator is responsible for the goods from the time he has takenthem in charge until the time he has handed them over to or has placedthem at the disposal of the person entitled to take delivery of them.

  Article 4 Issuance of document

  (1) The operator may, and at the customer's request shall, within areasonable period of time, at the option of the operator, either:

  (a) Acknowledge his receipt of the goods by signing and dating adocument presented by the customer that identifies the goods, or

  (b) Issue a signed document identifying the goods, acknowledginghis receipt of the goods and the date thereof, and stating their conditionand quantity in so far as they can be ascertained by reasonable means ofchecking.

  (2) If the operator does not act in accordance with eithersubparagraph (a) or (b) of paragraph (1), he is presumed to have receivedthe goods in apparent good condition, unless he proves otherwise. No suchpresumption applies when the services performed by the operator arelimited to the immediate transfer of the goods between means of transport.

  (3) A document referred to in paragraph (1) may be issued in any formwhich preserves a record of the information contained therein. When thecustomer and the operator have agreed to communicate electronically, adocument referred to in paragraph (1) may be replaced by an equivalentelectronic data interchange message.

  (4) The signature referred to in paragraph (1) means a handwrittensignature, its facsimile or an equivalent authentication effected by anyother means.

  Article 5 Basis of liability

  (1) The operator is liable for loss resulting from loss of or damageto the goods, as well as from delay in handing over the goods, if theoccurrence which caused the loss, damage or delay took place during theperiod of the operator's responsibility for the goods as defined inArticle 3, unless he proves that he, his servants or agents or otherpersons of whose services the operator makes use for the performance ofthe transport-related services took all measures that could reasonably berequired to avoid the occurrence and its consequences.

  (2) Where a failure on the part of the operator, his servants oragents or other persons of whose services the operator makes use for theperformance of the transport-related services to take the measuresreferred to in paragraph (1) combines with another cause to produce loss,damage or delay, the operator is liable only to the extent that the lossresulting from such loss, damage or delay is attributable to thatfailure, provided that the operator proves the amount of the loss notattributable thereto.

  (3) Delay in handing over the goods occurs when the operator fails tohand them over to or place them at the disposal of a person entitled totake delivery of them within the time expressly agreed upon or, in theabsence of such agreement, within a reasonable time after receiving arequest for the goods by such person.

  (4) If the operator fails to hand over the goods to or place them atthe disposal of a person entitled to take delivery of them within a periodof 30 consecutive days after the date expressly agreed upon or, in theabsence of such agreement, within a period of 30 consecutive days afterreceiving a request for the goods by such person, a person entitled tomake a claim for the loss of the goods may treat them as lost.

  Article 6 Limits of liability

  (1) (a) The liability of the operator for loss resulting from loss ofor damage to goods according to the provisions of Article 5 is limited toan amount not exceeding 8.33 units of account per kilogram of gross weightof the goods lost or damaged.

  (b) However, if the goods are handed over to the operatorimmediately after carriage by sea or by inland waterways, or if the goodsare handed over, or are to be handed over, by him for such carriage, theliability of the operator for loss resulting from loss of or damage togoods according to the provisions of Article 5 is limited to an amount notexceeding 2.75 units of account per kilogram of gross weight of the goodslost or damaged. For the purposes of this paragraph, carriage by sea orby inland waterways includes pick-up and delivery within a port.

  (c) When the loss of or damage to a part of the goods affects thevalue of another part of the goods, the total weight of the lost ordamaged goods and of the goods whose value is affected shall be taken intoconsideration in determining the limit of liability.

  (2) The liability of the operator for delay in handing over the goodsaccording to the provisions of Article 5 is limited to an amountequivalent to two and a half times the charges payable to the operator forhis services in respect of the goods delayed, but not exceeding the totalof such charges in respect of the consignment of which the goods were apart.

  (3) In no case shall the aggregate liability of the operator underboth paragraphs (1) and (2) exceed the limitation which would beestablished under paragraph (1) for total loss of the goods in respect ofwhich such liability was incurred.

  (4) The operator may agree to limits of liability exceeding thoseprovided for in paragraphs (1), (2) and (3)。

  Article 7 Application to non-contractual claims

  (1) The defences and limits of liability provided for in thisConvention apply in any action against the operator in respect of loss ofor damage to the goods, as well as delay in handing over the goods,whether the action is founded in contract, in tort or otherwise.

  (2) If such an action is brought against a servant or agent of theoperator, or against another person of whose services the operator makesuse for the performance of the transport-related services, such servant,agent or person, if he proves that he acted within the scope of hisemployment or engagement by the operator, is entitled to avail himself ofthe defences and limits of liability which the operator is entitled toinvoke under this Convention.

  (3) Except as provided in Article 8, the aggregate of the amountsrecoverable from the operator and from any servant, agent or personreferred to in the preceding paragraph shall not exceed the limits ofliability provided for in this Convention.

  Article 8 Loss of right to limit liability

  (1) The operator is not entitled to the benefit of the limitation ofliability provided for in Article 6 if it is proved that the loss, damageor delay resulted from an act or omission of the operator himself or hisservants or agents done with the intent to cause such loss, damage ordelay, or recklessly and with knowledge that such loss, damage or delaywould probably result.

  (2) Notwithstanding the provision of paragraph (2) of Article 7, aservant or agent of the operator or another person of whose services theoperator makes use for the performance of the transport-related servicesis not entitled to the benefit of the limitation of liability provided forin Article 6 if it is proved that the loss, damage or delay resulted froman act or omission of such servant, agent or person done with the intentto cause such loss, damage or delay, or recklessly and with knowledge thatsuch loss, damage or delay would probably result.

  Article 9 Special rules on dangerous goods

  If dangerous goods are handed over to the operator without beingmarked, labelled, packaged or documented in accordance with any law orregulation relating to dangerous goods applicable in the country where thegoods are handed over and if, at the time the goods are taken in charge byhim, the operator does not otherwise know of their dangerous character, heis entitled:

  (a) To take all precautions the circumstances may require, including,when the goods pose an imminent danger to any person or property,destroying the goods, rendering them innocuous, or disposing of them byany other lawful means, without payment of compensation for damage to ordestruction of the goods resulting from such precautions, and

  (b) To receive reimbursement for all costs incurred by him in takingthe measures referred to in subparagraph (a) from the person who failed tomeet any obligation under such applicable law or regulation to inform himof the dangerous character of the goods.

  Article 10 Rights of security in goods

  (1) The operator has a right of retention over the goods for costs andclaims which are due in connection with the transport-related servicesperformed by him in respect of the goods both during the period of hisresponsibility for them and thereafter. However, nothing in thisConvention affects the validity under the applicable law of anycontractual arrangements extending the operator's security in the goods.

  (2) The operator is not entitled to retain the goods if a sufficientguarantee for the sum claimed is provided or if an equivalent sum isdeposited with a mutually accepted third party or with an officialinstitution in the State where the operator has his place of business.

  (3) In order to obtain the amount necessary to satisfy his claim, theoperator is entitled, to the extent permitted by the law of the Statewhere the goods are located, to sell all or part of the goods over whichhe has exercised the right of retention provided for in this Article. Thisright to sell does not apply to containers, pallets or similar articles oftransport or packaging which are owned by a party other than the carrieror the shipper and which are clearly marked as regards ownership except inrespect of claims by the operator for the cost of repairs of orimprovements to the containers, pallets or similar articles of transportor packaging.

  (4) Before exercising any right to sell the goods, the operator shallmake reasonable efforts to give notice of the intended sale to the ownerof the goods, the person from whom the operator received them and theperson entitled to take delivery of them from the operator. The operatorshall account appropriately for the balance of the proceeds of the sale inexcess of the sums due to the operator plus the reasonable costs of thesale. The right of sale shall in all other respects be exercised inaccordance with the law of the State where the goods are located.

  Article 11 Notice of loss, damage or delay

  (1) Unless notice of loss or damage, specifying the general nature ofthe loss or damage, is given to the operator not later than the thirdworking day after the day when the goods were handed over by the operatorto the person entitled to take delivery of them, the handing over is primafacie evidence of the handing over by the operator of the goods asdescribed in the document issued by the operator pursuant to paragraph (1)(b) of Article 4 or, if no such document was issued, in good condition.

  (2) Where the loss or damage is not apparent, the provisions ofparagraph (1) apply correspondingly if notice is not given to the operatorwithin 15 consecutive days after the day when the goods reached the finalrecipient, but in no case later than 60 consecutive days after the daywhen the goods were handed over to the person entitled to take delivery ofthem.

  (3) If the operator participated in a survey or inspection of thegoods at the time when they were handed over to the person entitled totake delivery of them, notice need not be given to the operator of loss ordamage ascertained during that survey or inspection.

  (4) In the case of any actual or apprehended loss of or damage to thegoods, the operator, the carrier and the person entitled to take deliveryof the goods shall give all reasonable facilities to each other forinspecting and tallying the goods.

  (5) No compensation is payable for loss resulting from delay inhanding over the goods unless notice has been given to the operator within21 consecutive days after the day when the goods were handed over to theperson entitled to take delivery of them.

  Article 12 Limitation of actions

  (1) Any action under this Convention is time-barred if judicial orarbitral proceedings have not been instituted within a period of twoyears.

  (2) The limitation period commences:

  (a) On the day the operator hands over the goods or part thereofto, or places them at the disposal of, a person entitled to take deliveryof them, or

  (b) In cases of total loss of the goods, on the day the personentitled to make a claim receives notice from the operator that the goodsare lost, or on the day that person may treat the goods as lost inaccordance with paragraph (4) of Article 5, whichever is earlier.

  (3) The day on which the limitation period commences is not includedin the period.

  (4) The operator may at any time during the running of the limitationperiod extend the period by a notice to the claimant. The period may befurther extended by another notice or notices.

  (5) A recourse action by a carrier or another person against theoperator may be instituted even after the expiration of the limitationperiod provided for in the preceding paragraphs if it is instituted within90 days after the carrier or other person has been held liable in anaction against himself or has settled the claim upon which such action wasbased and if, within a reasonable period of time after the filing of aclaim against a carrier or other person that may result in a recourseaction against the operator, notice of the filing of such a claim has beengiven to the operator.

  Article 13 Contractual stipulations

  (1) Unless otherwise provided in this Convention, any stipulation in acontract concluded by an operator or in any document signed or issued bythe operator pursuant to Article 4 is null and void to the extent that itderogates, directly or indirectly, from the provisions of this Convention.The nullity of such a stipulation does not affect the validity of theother provisions of the contract or document of which it forms a part.

  (2) Notwithstanding the provisions of the preceding paragraph, theoperator may agree to increase his responsibilities and obligations underthis Convention.

  Article 14 Interpretation of the Convention

  In the interpretation of this Convention, regard is to be had to itsinternational character and to the need to promote uniformity in itsapplication.

  Article 15 International transport conventions

  This Convention does not modify any rights or duties which may ariseunder an international convention relating to the international carriageof goods which is binding on a State which is a party to this Conventionor under any law of such State giving effect to a convention relating tothe international carriage of goods.

  Article 16 Unit of account

  (1) The unit of account referred to in Article 6 is the SpecialDrawing Right as defined by the International Monetary Fund. The amountsmentioned in Article 6 are to be expressed in the national currency of aState according to the value of such currency at the date of judgement orthe date agreed upon by the parties. The equivalence between the nationalcurrency of a State Party which is a member of the International MonetaryFund and the Special Drawing Right is to be calculated in accordance withthe method of valuation applied by the International Monetary Fund ineffect at the date in question for its operations and transactions. Theequivalence between the national currency of a State Party which is not amember of the International Monetary Fund and the Special Drawing Right isto be calculated in a manner determined by that State.

  (2) The calculation mentioned in the last sentence of the precedingparagraph is to be made in such a manner as to express in the nationalcurrency of the State Party as far as possible the same real value foramounts in Article 6 as is expressed there in units of account. StatesParties must communicate to the depositary the manner of calculation atthe time of signature or when depositing their instrument of ratification,acceptance, approval or accession and whenever there is a change in themanner of such calculation. FINAL CLAUSES

  Article 17 Depositary

  The Secretary-General of the United Nations is the depositary of thisConvention.

  Article 18 Signature, ratification, acceptance, approval, acces-sion

  (1) This Convention is open for signature at the concluding meeting ofthe United Nations Conference on the Liability of Operators of TransportTerminals in International Trade and will remain open for signature by allStates at the Headquarters of the United Nations, New York, until 30 April1992.

  (2) This Convention is subject to ratification, acceptance or approvalby the signatory States.

  (3) This Convention is open to accession by all States which are notsignatory States as from the date it is open for signature.

  (4) Instruments of ratification, acceptance, approval and accessionare to be deposited with the Secretary-General of the United Nations.

  Article 19 Application to territorial units

  (1) If a State has two or more territorial units in which differentsystems of law are applicable in relation to the matters dealt with inthis Convention, it may, at the time of signature, ratification,acceptance, approval or accession, declare that this Convention is toextend to all its territorial units or only to one or more of them, andmay at any time substitute another declaration for its earlierdeclaration.

  (2) These declarations are to state expressly the territorial units towhich the Convention extends.

  (3) If, by virtue of a declaration under this Article, this Conventionextends to one or more but not all of the territorial units of a StateParty, this Convention shall be applicable only if

  (a) The transport-related services are performed by an operatorwhose place of business is located in a territorial unit to which theConvention extends, or

  (b) The transport-related services are performed in a territorialunit to which the Convention extends, or

  (c) According to the rules of private international law, thetransport-related services are governed by the law in force in aterritorial unit to which the Convention extends.

  (4) If a State makes no declaration under paragraph (1) of thisArticle, the Convention is to extend to all territorial units of thatState.

  Article 20 Effect of declaration

  (1) Declarations made under Article 19 at the time of signature aresubject to confirmation upon ratification, acceptance or approval.

  (2) Declarations and confirmations of declarations are to be inwriting and to be formally notified to the depositary.

  (3) A declaration takes effect simultaneously with the entry intoforce of this Convention in respect of the State concerned. However, adeclaration of which the depositary receives formal notification aftersuch entry into force takes effect on the first day of the month followingthe expiration of six months after the date of its receipt by thedepositary.

  (4) Any State which makes a declaration under Article 19 may withdrawit at any time by a formal notification in writing addressed to thedepositary. Such withdrawal takes effect on the first day of the monthfollowing the expiration of six months after the date of the receipt ofthe notification by the depositary.

  Article 21 Reservations

  No reservations may be made to this Convention.

  Article 22 Entry into force

  (1) This Convention enters into force on the first day of the monthfollowing the expiration of one year from the date of deposit of the fifthinstrument of ratification, acceptance, approval or accession.

  (2) For each State which becomes a Contracting State to thisConvention after the date of the deposit of the fifth instrument ofratification, acceptance, approval or accession, this Convention entersinto force on the first day of the month following the expiration of oneyear after the date of the deposit of the appropriate instrument on behalfof that State.

  (3) Each State Party shall apply the provisions of this Convention totransport-related services with respect to goods taken in charge by theoperator on or after the date of the entry into force of this Conventionin respect of that State.

  Article 23 Revision and amendment

  (1) At the request of not less than one third of the States Parties tothis Convention, the depositary shall convene a conference of theContracting States for revising or amending it.

  (2) Any instrument of ratification, acceptance, approval or accessiondeposited after the entry into force of an amendment to this Convention isdeemed to apply to the Convention as amended.

  Article 24 Revision of limitation amounts

  (1) At the request of at least one quarter of the States Parties, thedepositary shall convene a meeting of a Committee composed of arepresentative from each Contracting State to consider increasing ordecreasing the amounts in Article 6.

  (2) If this Convention enters into force more than five years after itwas opened for signature, the depositary shall convene a meeting of theCommittee within the first year after it enters into force.

  (3) The meeting of the Committee shall take place on the occasion andat the location of the next session of the United Nations Commission onInternational Trade Law.

  (4) In determining whether the limits should be amended, and if so, bywhat amount, the following criteria, determined on an international basis,and any other criteria considered to be relevant, shall be taken intoconsideration:

  (a) The amount by which the limits of liability in anytransport-related convention have been amended;

  (b) The value of goods handled by operators;

  (c) The cost of transport-related services;

  (d) Insurance rates, including for cargo insurance, liabilityinsurance for operators and insurance covering job-related injuries toworkmen;

  (e) The average level of damages awarded against operators forloss of or damage to goods or delay in handing over goods; and

  (f) The costs of electricity, fuel and other utilities.

  (5) Amendments shall be adopted by the Committee by a two-thirdsmajority of its members present and voting.

  (6) No amendment of the limits of liability under this Article may beconsidered less than five years from the date on which this Convention wasopened for signature.

  (7) Any amendment adopted in accordance with paragraph (5) shall benotified by the depositary to all Contracting States. The amendment isdeemed to have been accepted at the end of a period of 18 months after ithas been notified, unless within that period not less than one third ofthe States that were States Parties at the time of the adoption of theamendment by the Committee have communicated to the depositary that theydo not accept the amendment. An amendment deemed to have been accepted inaccordance with this paragraph enters into force for all States Parties 18months after its acceptance.

  (8) A State Party which has not accepted an amendment is neverthelessbound by it, unless such State denounces the present Convention at leastone month before the amendment enters into force. Such denunciation takeseffect when the amendment enters into force.

  (9) When an amendment has been adopted in accordance with paragraph(5) but the 18month period for its acceptance has not yet expired, a Statewhich becomes a State Party to this Convention during that period is boundby the amendment if it enters into force. A State which becomes a StateParty after that period is bound by any amendment which has been acceptedin accordance with paragraph (7)。

  (10) The applicable limit of liability is that which, in accordancewith the preceding paragraphs, is in effect on the date of the occurrencewhich caused the loss, damage or delay.

  Article 25 Denunciation

  (1) A State Party may denounce this Convention at any time by means ofa notification in writing addressed to the depositary.

  (2) Subject to paragraph (8) of Article 24, the denunciation takeseffect on the first day of the month following the expiration of one yearafter the notification is received by the depositary. Where a longerperiod is specified in the notification, the denunciation takes effectupon the expiration of such longer period after the notification isreceived by the depositary.

  DONE AT VIENNA, this nineteenth day of April one thousand nine hundredand ninety-one, in a single original, of which the Arabic, Chinese,English, French, Russian and Spanish texts are equally authentic.

  IN WITNESS WHEREOF the undersigned plenipotentiaries, being dulyauthorized by their respective Governments, have signed the presentConvention.

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