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1978年联合国海上货物运输公约(二)

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  Article 17. Guarantees by the shipper

  1. The shipper is deemed to have guaranteed to the carrier theaccuracy of particulars relating to the general nature of the goods, theirmarks, number, weight and quantity as furnished by him for insertion inthe Bill of Lading. The shipper must indemnify the carrier against theloss resulting from inaccuracies in such particulars. The shipper remainsliable even if the Bill of Lading has been transferred by him. The rightof the carrier to such indemnity in no way limits his liability under thecontract of carriage by sea to any person other than the shipper.

  2. Any letter of guarantee or agreement by which the shipperundertakes to indemnify the carrier against loss resulting from theissuance of the Bill of Lading by the carrier, or by a person acting onhis behalf, without entering a reservation relating to particularsfurnished by the shipper for insertion in the Bill of Lading, or to theapparent condition of the goods, is void and of no effect as against anythird party, including a consignee, to whom the Bill of Lading has beentransferred.

  3. Such letter of guarantee or agreement is valid as against theshipper unless the carrier or the person acting on his behalf, by omittingthe reservation referred to in para. 2 of this Article, intends todefraud a third party, including a consignee, who acts in reliance on thedescription of the goods in the Bill of Lading. In the latter case, if thereservation omitted relates to particulars furnished by the shipper forinsertion in the Bill of Lading, the carrier has no right of indemnityfrom the shipper pursuant to para. 1 of this Article.

  4. In the case of intended fraud referred to in para. 3 of thisArticle the carrier is liable, without the benefit of the limitation ofliability provided for in this Convention, for the loss incurred by athird party, including a consignee, because he has acted in reliance onthe description of the goods in the Bill of Lading.

  Article 18. Documents other than Bills of Lading

  Where a carrier issues a document other than a Bill of Lading toevidence the receipt of the goods to be carried, such a document is primafacie evidence of the conclusion of the contract of carriage by sea andthe taking over by the carrier of the goods as therein described.

  PART V. CLAIMS AND ACTIONS

  Article 19. Notice of loss, damage or delay

  1. Unless notice of loss or damage, specifying the general nature ofsuch loss or damage, is given in writing by the consignee to the carriernot later than the working day after the day when the goods were handedover to the consignee, such handing over is prima facie evidence of thedelivery by the carrier of the goods as described in the document oftransport or, if no such document has been issued, in good condition.

  2. Where the loss or damage is not apparent, the provisions of para. 1of this Article apply correspondingly if notice in writing is not givenwithin 15 consecutive days after the day when the goods were handed overto the consignee.

  3. If the state of the goods at the time they were handed over to theconsignee has been the subject of a joint survey or inspection by theparties, notice in writing need not be given of loss or damage ascertainedduring such survey or inspection.

  4. In the case of any actual or apprehended loss or damage the carrierand the consignee must give all reasonable facilities to each other forinspecting and tallying the goods.

  5. No compensation shall be payable for loss resulting from delay indelivery unless a notice has been given in writing to the carrier within60 consecutive days after the day when the goods were handed over to theconsignee.

  6. If the goods have been delivered by an actual carrier, any noticegiven under this Article to him shall have the same effect as if it hadbeen given to the carrier, and any notice given to the carrier shall haveeffect as if given to such actual carrier.

  7. Unless notice of loss or damage, specifying the general nature ofthe loss or damage, is given in writing by the carrier or actual carrierto the shipper not later than 90 consecutive days after the occurrence ofsuch loss or damage or after the delivery of the goods in accordance withpara. 2 of Art. 4, whichever is later, the failure to give such notice isprima facie evidence that the carrier or the actual carrier has sustainedno loss or damage due to the fault or neglect of the shipper, his servantsor agents.

  8. For the purpose of this Article, notice given to a person acting onthe carrier's or the actual carrier's behalf, including the master or theofficer in charge of the ship, or to a person acting on the shipper'sbehalf is deemed to have been given to the carrier, to the actual carrieror to the shipper, respectively.

  Article 20. Limitation of actions

  1. Any action relating to carriage of goods under this Convention istime-barred if judicial or arbitral proceedings have not been institutedwithin a period of two years.

  2. The limitation period commences on the day on which the carrier hasdelivered the goods or part thereof or, in cases where no goods have beendelivered, on the last day on which the goods should have been delivered.

  3. The day on which the limitation period commences is not included inthe period.

  4. The person against whom a claim is made may at any time during therunning of the limitation period extend that period by a declaration inwriting to the claimant. This period may be further extended by anotherdeclaration or declarations.

  5. An action for indemnity by a person held liable may be institutedeven after the expiration of the limitation period provided for in thepreceding paragraphs if instituted within the time allowed by the law ofthe State where proceedings are instituted. However, the time allowedshall not be less than 90 days commencing from the day when the personinstituting such action for indemnity has settled the claim or has beenserved with process in the action against himself.

  Article 21. Jurisdiction

  1. In judicial proceedings relating to carriage of goods under thisConvention the plaintiff, at his option, may institute an action in acourt which, according to the law of the State where the court issituated, is competent and within the jurisdiction of which is situatedone of the following places:

  (a) the principal place of business or, in the absence thereof,the habitual residence of the defendant; or

  (b) the place where the contract was made provided that thedefendant has there a place of business, branch or agency through whichthe contract was made; or

  (c) the port of loading or the port of discharge; or

  (d) any additional place designated for that purpose in thecontract of carriage by sea.

  2. (a) Notwithstanding the preceding provisions of this Article, anaction may be instituted in the courts of any port or place in aContracting State at which the carrying vessel or any other vessel of thesame ownership may have been arrested in accordance with applicable rulesof the law of that State and of international law. However, in such acase, at the petition of the defendant, the claimant must remove theaction, at his choice, to one of the jurisdictions referred to in para. 1of this Article for the determination of the claim, but before suchremoval the defendant must furnish security sufficient to ensure paymentof any judgment that may subsequently be awarded to the claimant in theaction.

  (b) All questions relating to the sufficiency or otherwise of thesecurity shall be determined by the court of the port or place of thearrest.

  3. No judicial proceedings relating to carriage of goods under thisConvention may be instituted in a place not specified in paras. 1 or 2 ofthis Article. The provisions of this paragraph do not constitute anobstacle to the jurisdiction of the Contracting States for provisional orprotective measures.

  4. (a) Where an action has been instituted in a court competent underparas. 1 or 2 of this Article or where judgment has been delivered by sucha court, no new action may be started between the same parties on the samegrounds unless the judgment of the court before which the first action wasinstituted is not enforceable in the country in which the new proceedingsare instituted.

  (b) for the purpose of this Article the institution of measureswith a view to obtaining enforcement of a judgment is not to be consideredas the starting of a new action;

  (c) for the purpose of this Article, the removal of an action to adifferent court within the same country, or to a court in another country,in accordance with para. 2 (a) of this Article, is not to be considered asthe starting of a new action.

  5. Notwithstanding the provisions of the preceding paragraphs, anagreement made by the parties, after a claim under the contract ofcarriage by sea has arisen, which designates the place where the claimantmay institute an action, is effective.

  Article 22. Arbitration

  1. Subject to the provisions of this Article, parties may provide byagreement evidenced in writing that any dispute that may arise relating tocarriage of goods under this Convention shall be referred to arbitration.

  2. Where a charter-party contains a provision that disputes arisingthereunder shall be referred to arbitration and a Bill of Lading issuedpursuant to the charter-party does not contain a special annotationproviding that such provision shall be binding upon the holder of the Billof Lading, the carrier may not invoke such provision as against a holderhaving acquired the Bill of Lading in good faith.

  3. The arbitration proceedings shall, at the option of the claimant,be instituted at one of the following places:

  (a) a place in a State within whose territory is situated:

  (i) the principal place of business of the defendant or, inthe absence thereof, the habitual residence of the defendant; or

  (ii) the place where the contract was made, provided that thedefendant has there a place of business, branch or agency through whichthe contract was made; or

  (iii) the port of loading or the port of discharge; or

  (b) any place designated for that purpose in the arbitrationclause or agreement.

  4. The arbitrator or arbitration tribunal shall apply the rules ofthis Convention.

  5. The provisions of paras. 3 and 4 of this Article are deemed to bepart of every arbitration clause or agreement, and any term of such clauseor agreement which is inconsistent therewith is null and void.

  6. Nothing in this Article affects the validity of an agreementrelating to arbitration made by the parties after the claim under thecontract of carriage by sea has arisen.

  PART VI. SUPPLEMENTARY PROVISIONS

  Article 23. Contractual stipulations

  1. Any stipulation in a contract of carriage by sea, in a Bill ofLading, or in any other document evidencing the contract of carriage bysea is null and void to the extent that it derogates, directly orindirectly, from the provisions of this Convention. The nullity of such astipulation does not affect the validity of the other provisions of thecontract or document of which it forms a part. A clause assigning benefitof insurance of the goods in favour of the carrier, or any similar clause,is null and void.

  2. Notwithstanding the provisions of para. 1 of this Article, acarrier may increase his responsibilities and obligations under thisConvention.

  3. Where a Bill of Lading or any other document evidencing thecontract of carriage by sea is issued, it must contain a statement thatthe carriage is subject to the provisions of this Convention which nullifyany stipulation derogating therefrom to the detriment of the shipper orthe consignee.

  4. Where the claimant in respect of the goods has incurred loss as aresult of a stipulation which is null and void by virtue of the presentArticle, or as a result of the omission of the statement referred to inpara. 3 of this Article, the carrier must pay compensation to the extentrequired in order to give the claimant compensation in accordance with theprovisions of this Convention for any loss of or damage to the goods aswell as for delay in delivery. The carrier must, in addition, paycompensation for costs incurred by the claimant for the purpose ofexercising his right, provided that costs incurred in the action where theforegoing provision is invoked are to be determined in accordance with thelaw of the State where proceedings are instituted.

  Article 24. General average

  1. Nothing in this Convention shall prevent the application ofprovisions in the contract of carriage by sea or national law regardingthe adjustment of general average.

  2. With the exception of Art. 20, the provisions of this Conventionrelating to the liability, of the carrier for loss of or damage to thegoods also determine whether the consignee may refuse contribution ingeneral average and the liability of the carrier to indemnify theconsignee in respect of any such contribution made or any salvage paid.

  Article 25. Other conventions

  1. This Convention does not modify the rights or duties of thecarrier, the actual carrier and their servants and agents, provided for ininternational conventions or national law relating to the limitation ofliability of owners of seagoing ships.

  2. The provisions of Arts. 21 and 22 of this Convention do not preventthe application of the mandatory provisions of any other multilateralconvention already in force at the date of this Convention relating tomatters dealt with in the said Articles, provided that the dispute arisesexclusively between Parties having their principal place of business inStates members of such other convention. However, this paragraph does notaffect the application of para. 4 of Art. 22 of this Convention.

  3. No liability shall arise under the provisions of this Conventionfor damage caused by a nuclear incident if the operator of a nuclearinstallation is liable for such damage:

  (a) under either the Paris Convention of July 29, 1960, on ThirdParty Liability in the Field of Nuclear Energy as amended by theAdditional Protocol of Jan. 28, 1964, or the Vienna Convention of May 21,1963, on Civil Liability for Nuclear Damage, or

  (b) by virtue of national law governing the liability for suchdamage, provided that such law is in all respects as favourable to personswho may suffer damage as either the Paris or Vienna Conventions.

  4. No liability shall arise under the provisions of this Conventionfor any loss of or damage to or delay in delivery of luggage for which thecarrier is responsible under any international convention or national lawrelating to the carriage of passengers and their luggage by sea.

  5. Nothing contained in this Convention prevents a Contracting Statefrom applying any other international convention which is already in forceat the date of this Convention and which applies mandatorily to contractsof carriage of goods primarily by a mode of transport other than transportby sea. This provision also applies to any subsequent revision oramendment of such international convention.

  Article 26. Unit of account

  1. The unit of account referred to in Art. 6 of this Convention is theSpecial Drawing Right as defined by the International Monetary Fund. Theamounts mentioned in Art. 6 are to be converted into the national currencyof a State according to the value of such currency at the date of judgmentor the date agreed upon by the parties. The value of a national currency,in terms of the Special Drawing Right, of a Contracting State which is amember of the International Monetary Fund is to be calculated inaccordance with the method of valuation applied by the InternationalMonetary Fund in effect at the date in question for its operations andtransactions. The value of a national currency in terms of the SpecialDrawing Right of a Contracting State which is not a member of theInternational Monetary Fund is to be calculated in a manner determined bythat State.

  2. Nevertheless, those States which are not members of theInternational Monetary Fund and whose law does not permit the applicationof the provisions of para. 1 of this Article may, at the time ofsignature, or at the time of ratification, acceptance, approval oraccession or at any time thereafter, declare that the limits of liabilityprovided for in this Convention to be applied in their territories shallbe fixed as:

  12,500 monetary units per package or other shipping unit or 37.5monetary units per kilogramme of gross weight of the goods.

  3. The monetary unit referred to in para. 2 of this Articlecorresponds to sixty-five and a half milligrams of gold of millesimalfineness nine hundred. The conversion of the amounts referred to in para.2 into the national currency is to be made according to the law of theState concerned.

  4. The calculation mentioned in the last sentence of para. 1 and theconversion mentioned in para. 3 of this Article is to be made in such amanner as to express in the national currency of the Contracting State asfar as possible the same real value for the amounts in Art. 6 as isexpressed there in units of account. Contracting States must communicateto the depositary the manner of calculation pursuant to para. 1 of thisArticle, or the result of the conversion mentioned in para. 3 of thisArticle, as the case may be, at the time of signature or when depositingtheir instruments of ratification, acceptance, approval or accession, orwhen availing themselves of the option provided for in para. 2 of thisArticle and whenever there is a change in the manner of such calculationor in the result of such conversion.

  PART VII. FINAL CLAUSES

  Article 27. Depositary

  The Secretary-General of the United Nations is hereby designated asthe depositary of this Convention.

  Article 28. Signature, ratification, acceptance, approval, acces-sion

  1. This Convention is open for signature by all States until Apr. 30,1979, at the Headquarters of the United Nations, New York.

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

  3. After Apr. 30, 1979, this Convention will be open for accession byall States which are not signatory States.

  4. Instruments of ratification, acceptance, approval and accession areto be deposited with the Secretary-General of the United Nations.

  Article 29. Reservations

  No reservations may be made to this Convention.

  Article 30. 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 20thinstrument of ratification, acceptance, approval or accession.

  2. For each State which becomes a Contracting State to this Conventionafter the date of the deposit of the 20th instrument of ratification,acceptance, approval or accession, this Convention enters into force onthe first day of the month following the expiration of one year after thedeposit of the appropriate instrument on behalf of that State.

  3. Each Contracting State shall apply the provisions of thisConvention to contracts of carriage by sea concluded on or after the dateof the entry into force of this Convention in respect of that State.

  Article 31. Denunciation of other conventions

  1. Upon becoming a Contracting State to this Convention, any StateParty to the International Convention for the Unification of Certain Rulesrelating to Bills of Lading signed at Brussels on Aug. 25, 1924 (1924Convention) must notify the Government of Belgium as the depositary of the1924 Convention of its denunciation of the said Convention with adeclaration that the denunciation is to take effect as from the date whenthis Convention enters into force in respect of that State.

  2. Upon the entry into force of this Convention under para. 1 of Art.30, the depositary of this Convention must notify the Government ofBelgium as the depositary of the 1924 Convention of the date of such entryinto force, and of the names of the Contracting States in respect of whichthe Convention has entered into force.

  3. The provisions of paras. 1 and 2 of this Article applycorrespondingly in respect of States Parties to the Protocol signed onFeb. 23, 1968, to amend the International Convention for the Unificationof Certain Rules relating to Bill of Lading signed at Brussels on Aug. 25, 1924.

  4. Notwithstanding Art. 2 of this Convention, for the purposes ofpara. 1 of this Article, a Contracting State may, if it deems itdesirable, defer the denunciation of the 1924 Convention as modified bythe 1968 Protocol for a maximum period of five years from the entry intoforce of this Convention. It will then notify the Government of Belgium ofits intention. During this transitory period, it must apply to theContracting States this Convention to the exclusion of any other one.

  Article 32. Revision and amendment

  1. At the request of not less than one-third of the Contracting Statesto this 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,is deemed to apply to the Convention as amended.

  Article 33. Revision of the limitation amounts and unit of accountormonetary unit

  1. Notwithstanding the provisions of Art. 32, a conference only forthe purpose of altering the amount specified in Art. 6 and para. 2 of Art.26, or of substituting either or both of the units defined in paras. 1 and3 of Art. 26 by other units is to be convened by the depositary inaccordance with para. 2 of this Article. An alteration of the amountsshall be made only because of a significant change in their real value.

  2. A revision conference is to be convened by the depositary when notless than one-fourth of the Contracting States so request.

  3. Any decision by the conference must be taken by a two-thirdsmajority of the participating States. The amendment is communicated by thedepositary to all the Contracting States for acceptance and to all theStates signatories of the Convention for information.

  4. Any amendment adopted enters into force on the first day of themonth following one year after its acceptance by two-thirds of theContracting States. Acceptance is to be effected by the deposit of aformal instrument to that effect, with the depositary.

  5. After entry into force of an amendment a Contracting State whichhas accepted the amendment is entitled to apply the Convention as amendedin its relations with Contracting States which have not within six monthsafter the adoption of the amendment notified the depositary that they arenot bound by the amendment.

  6. Any instrument of ratification, acceptance, approval or accessiondeposited after the entry into force of an amendment to this Convention,is deemed to apply to the Convention as amended.

  Article 34. Denunciation

  1. A Contracting State may denounce this Convention at any time bymeans of a notification in writing addressed to the depositary.

  2. The denunciation takes effect on the first day of the monthfollowing the expiration of one year after the notification is received bythe depositary. Where a longer period is specified in the notification,the denunciation takes effect upon the expiration of such longer periodafter the notification is received by the depositary.

  DONE at Hamburg, this thirty-first day of March one thousand ninehundred and seventy-eight, 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.

  ANNEX COMMON UNDERSTANDING ADOPTED BY THE UNITED NATIONS CON-FERENCE ON THE CARRIAGE OF GOODS BY SEA

  It is the common understanding that the liability of the carrier underthis Convention is based on the principle of presumed fault or neglect.This means that, as a rule, the burden of proof rests on the carrier but,with respect to certain cases, the provisions of the Convention modifythis rule.

  ANNEX RESOLUTION ADOPTED BY THE UNITED NATIONS CONFERENCE ON THECARRIAGE OF GOODS BY SEA

  “The United Nations Conference on the Carriage of Goods by Sea,

  “Noting with appreciation the kind invitation of the Federal Republicof Germany to hold the Conference in Hamburg,

  “Being aware that the facilities placed at the disposal of theConference and the generous hospitality bestowed on the participants bythe Government of the Federal Republic of Germany and by the Free andHanseatic city of Hamburg, have in no small measure contributed to thesuccess of the Conference,

  “Expresses its gratitude to the Government and people of the FederalRepublic of Germany, and

  “Having adopted the Convention on the Carriage of Goods by Sea on thebasis of a draft Convention prepared by the United Nations Commission onInternational Trade Law at the request of the United Nations Conference onTrade and Development,

  “Expresses its gratitude to the United Nations Commission onInternational Trade Law and to the United Nations Conference on Trade andDevelopment for their outstanding contribution to the simplification andharmonization of the law of the carriage of goods by sea, and

  “Decides to designate the Convention adopted by the Conference as the: `UNITED NATIONS CONVENTION ON THE CARRIAGE OF GOODS BY SEA, 1978', and

  “Recommends that the rules embodied therein be known as the `HAMBURGRULES'.”

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