General Transport Law

General Transport Law
K. BERNAUW
Morgan Bechet synopsis transport law
COURSE INFO
The content of the course is as following:

Public transport law involves access to the market
Private transport law is the contract of carriage.
This will involve all modes of transportation. All regimes will be covered, even cargo
transportation and passengers. Air transport for passengers is more common than sea
transport.
The importance of the mode of transportation varies with who or what comes with it:
passengers or cargo.
The Belgian regime is internationally dictated.
We will also have a look at transport documents (bill of lading (dutch:
cognossement).
EXAM: syllabus is background information. Notes and slides are most important.
- Explain 4 or 5 concepts (e.g. cabotage)
- Open question (opinion)
- Small case (calculate SDR e.g.
- Comparing liability systems.
CHAPTER I INTRODUCTION
PART A
GENERALITIES
1. Relevance of transport law

Transport represents a grand part of the gross national product. Belgium has no or
very few minerals and other wealth flowing from the ground or agriculture, its a
service nation. It has to gain its income from services. Its important as an economic
sector.
Transport activity is economically important. Transport services are also important for
the rest of the economy and the society. The provision of goods would be very hard
without transport.
2. Classification of transport law
The legal regime depends on the classification
Carriage transportation (conveyance) can be distinguished in several ways:
*Persons/goods (cargo) - corpses are no longer persons.
*For own account/third persons - a manufacturer of certain products can transport
goods by his own truck and personnel. This manufacturer will transport for own
account. Someone who transports goods for someone else transports for third persons.
*For free/reward - transportation for free (hitchhiking, carpooling, airlines offer
promotions if you fly a lot), there will be no contract of carriage. The legal regime
will be decided by extracontractual common law.
*Public/private - there is not much public transportation left anymore. In modern
times there has been a shift from public transportation to private transportation. In
Belgium we have the national railway company. We have the Flemish bus company.
There are still a few, but less and less. The transport sector has been privatized to a
certain extent. Public transportations may have another legal regime, another legal
statute. De Post is another example (another regime, just as liability). This distinction
is a bit blurred
*Scheduled/non-scheduled - scheduled transportation is regular. The transport
operation is performed according to a pre-set schedule. There is a pre-set time
schedule and stop destinations, regardless where there are customers or not. In the
beginning there was a clear distinction in the air transportation between the scheduled
as opposed to the charter flights. These were only organized when there were a
sufficient amount of customers. After some time, there was so much demand for
charter flights that the non-scheduled charter flights became scheduled. This
distinction is important for the legal autorisations. It is easier to obtain autorisation for
non-scheduled flights.
*Domestic/international - domestic transport doesnt cross the border. International
means that it crosses the international border. In the context of the EU, the relevance
of this distinction has been diminished.
*Mode - transport, air, inland navigation, It determines the liability regime.
3. Modes of transportation
1) By air
2) By surface
Water
o Sea
o Inland navigation: on rivers and lakes.
Vehicular
o Road
o Rail
3) Multimodal transport: this mode is used when there are multiple modes of
transportation are used.
Sensu stricto: with transshipment. Transhipment means that the cargo is

offloaded from the means of transportation of one mode to be transferred and
loaded again on the means of transportation of another mode. For example, the
truck drives the cargo to the airport. At the airport, the cargo is loaded into the
aircraft. In the country of destination, the cargo will be again offloaded to a
truck.
Sensu lato: without transhipment (superposed transport): the truck with the
cargo drives on a boat (= roll-on, roll-off traffic). Another example is piggy
wagon(?) (truck on train)
4) Other: pipeline transportation for instance. The cargo moves, the transport mode
doesnt move. Another example are urban couriers. They transport small documents,
letters, packages. They even use pigeons.
There sometimes is discussion: what to do with a hovercraft? Is it a sailing aircraft or
a flying boat? The qualification will determine the legal regime. It is a sea craft.
4. Distinction between public and private transport law
The distinction between public and private transport law is also blurred: the public
transport companies operate on the same market as the private transport law.
Competition-wise they should be under the same legal regime.
Reasons for regulating public transport
The motives for the public authority to legislate and regulate public transport can be
diverse. There used to be an era that the transport sector was more regulated than
nowadays. Today, its very liberal and deregulated. There is a distinction between
liberalization and deregulation. Liberalization means free access to the market and the
profession. Regulation means that there are rules to be followed. Liberalization does
not automatically mean deregulation. Sometimes, in order to liberalize, you need to

regulate at first.
Is total liberalization and deregulation conceivable? Ergo, will auto-regulation be
sufficient? A total deregulation is not conceivable, liberalization might be, under
certain circumstances and preset rules.
As said before, there are several reasons to regulate. Transportation is very important
for the economy. Another reason is that the legislator wants to have some quality
control: they want to protect the user. They want to avoid that the user is confronted
with a substandard transport provider.
They want the transporter to be reliable, competent and solvent.
Another reason to regulate is that the legislator wants to regulate the supply side of
the market. They want to set admission borders, they want to make sure that
substandard providers can not access the markets. This applies to quotas: it has to be
said that there are no quota of the number of transporters on the market.
If you do set quota, if you regulate the supply, you necessarily have to regulate the
pricing as well. Otherwise, you create a oligopoly.
Today, there is only quality control, no quota.
The government also wants to regulate because of co-ordination of the market. The
government still wants to have transportation to remote and unprofitable areas or
markets. For instance, in Canada, the government wants to make sure there are means
of transportation. Private transport operators may not spontaneously offer services to
those remote areas because they are not profitable. Then, its the task of the governor
to make sure that all citizens have access to transportation means. Then they have the
regulate: they can set up a public operator themselves. They can also oblige private
operators (in order to get a government autorisation or license) to do services in the
remote areas.
They also wants to make sure there is traffic safety. There is a distinction between
quality control and traffic safety: quality control is making sure there is a sufficient
standard vis--vis the customer. Traffic safety or circulation has its characteristic that
they encounter third persons and they hurt them.
A last reason for transport regulation can be domestic market protection. Creating
jobs, doing services, creates economic value to a country. A sovereign country
doesnt want to give away this economic value. If there was no regulation, American
transporters would engulf our transport market and kill the Belgian transporters
economically and gain the economic value. A solution to this is reciprocity: you give
access to foreign transporters, if the domestic transporters can gain access to foreign
markets. (Domestic market = European Union)
CHAPTER II GLOBAL REGULATION

PART A
AIR TRANSPORT REGULATION
1. Introduction
A sovereign country has sovereignty over its national territory, to a certain extent.
There is sovereignty of the country over the national airspace. This dates from the
beginning of the aviation era. The motive for exercising in a strict manner, the
national sovereignty over the airspace above their national territory used to be
because of a military security motive.
Later on, as soon as commercial aviation became into being, after the 1920s. Instead
of the military security motive for exercising the national sovereignty, it was the
economic motive to a large extent the latter motive. Its the protection of the domestic
market.
2. Sources of air transport regulation
1) Paris Convention 1919
This confirmed the principle of national sovereignty.
2) Chicago Convention 1944
They used this to convince the nations to not use their national sovereignty as much.
The Chicago convention confirmed again the national sovereignty principle. Some
solution had to be found. If every country applies strictly the principle of national
sovereignty, everybody stays home.
Some system was to be elaborated for the whole period after the Chicago convention.
Its based on the so called freedoms of the air. Its also based on the distinction of
scheduled and non-scheduled transport. It is easier to obtain the authorization if it is a

non-scheduled transport operation
Freedoms of the air
What are these freedoms of the air? These are public rights. It is granting the right
from one state to another state. When a state has these rights, the state can allow the
transporters to use the air.
Their economic value increases in this order:
1. Overflight: the mere right of overflight, without landing. It has low economic
relevance.
2. Technical stopover: granting the right to landing for technical purposes. You
can not offload cargo.
3. Discharging passengers, cargo and mail: the state has granted another state the
right to discharge and disembark cargo and passengers in their national
airspace.
4. Charging passengers, cargo and mail and fly them back to your national
country.
5. Discharging passengers, cargo, mail from or to third country. In the case of 3
and 4, you can not go to another country. This is the so called fifth freedom
right. From a foreign country B you are entitled to embark, disembark, load
and offload cargo and passengers to a third country. The third country has to
give the fifth freedom as well. You need fifth freedom from 2 countries.
6. Traffic between third countries with stop-over in home country.
7. Direct traffic between two third countries without stopover in home country. It
is mostly granted on a reciprocity basis or when countries do not have the
financial basis to organize the transportation operation, for instance in Africa.
8. Cabotage: traffic within the territory of third country (two Canadian countries
for instance). The motives of this are the same as in 7. The cabotage right was
established in the European internal market. It was the last hinderance for
achieving the internal market. Luckily, it is established as of today.
Exchange of Air Traffic Rights
The Chicago convention only realized the first two freedoms. The third and fourth
freedoms were exchanged multilaterally for non-scheduled traffic.
In consequence, for scheduled operations, as for 3 and 4 (these are the ones you need
for economic exchange), there was no multilateral agreement.
By consequence, there was the phenomenon of bilateralism. There were pairs of
countries that used bilateral agreements to exchange the rights, for scheduled flights.
The distinction between scheduled and non-scheduled flights has become blurred.
This has given rise to tension: the freedoms of the air were only applicable on a nonscheduled basis.
The Chicago Convention adopted a failure and a success: bilateral agreements and the
ICAO.
Bilateralism
Bermuda I (US-UK)
It was a treaty between the US and the UK
Bermuda II
It is a more important treaty than Bermuda I. It is more liberal.
These were primitive types.
Open skies-agreement
It is a lot more flexible and dynamic. It has been closed between the US-Netherlands
and the US-EU.
The main aspects of these bilateral agreements are as following:
*Reciprocity: its an exchange of rights.
*The frequency, capacity, routes and city pairs (Paris-NY, ) were regulated. These
restrictions were gone in the Open Skies agreement.
*Tarification: in the primitive treaties, the states determined prices. Today and in the
open skies agreement, its the law of supply and demand that determined price.
*Substantive ownership and effective control: the majority of the stockholders of the
airline must be citizens or inhabitants of the country that is the contracting partner in
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the bilateral agreement. The same thing goes for the board of directors. This rule is to
avoid that a foreign country that is no party to the treaty would usurp rights in a
disguised manner.
*Designation of the carrier: in the Open Skies this is not an issue anymore. Any
carrier who meets the requirements of the access to the profession can fly. They need
no more extra qualifications.
This is one part of the failure of the Chicago Convention.
The other part of the Chicago Convention was a success: the ICAO (International
Civil Aviation Organisation).
ICAO
This is a very important organization. We find the basis and the framework to all
legislation on civil aviation. This is called quasi-legislation. It means that the
legislation will apply, unless a member state opts out. If they dont explicitly, within a
certain time, they are presumed to agree with it.
It is only applicable for civil aviation in an international context.
There are several annexes:
Annex 1 - personnel licensing: the crew on an aircraft must meet certain

competence standards. This is to guarantee a minimum competence level and
have some safety control.
Annex 2 - Rules of the air: priority of the right in non-controlled airspace. If

two aircrafts are about to collide, the one that comes from the right, has
priority. The other one has to dive or to climb. Another rule is that when two
aircrafts are about to collide head on, they will both have to deviate to the
right. Another rule is that two aircrafts have to fly in a semi-circular system:
one aircraft has to keep odd heights (3000 ft, 5000 ft, ), the other one has to
keep even heights.
Annex 3 meteorological service
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Annex 4 - aeronautical service
Annex 6 Operations of Aircraft
Annex 7 Aircraft nationality: only one nationality. This has been a problem
with joint ventures located in different countries (Scandinavian Air Services:
Norwegian Denmark). The pragmatic solution was that they registered a
number of aircrafts in one country and another number in the other country.
Annex 8 Airworthiness: an aircraft has to be airworthy. The prescriptions for

this are in annex 8. The country of nationality or registration should control
the airworthiness and should submit an aircraft to periodical control. This is
also the reason why an aircraft can only have one nationality, otherwise the
countries would point at each other for who is to blame.
Annex 9 Facilitation: VISA, immigration checks,
Annex 10 Aeronautical telecommunication.
Annex 11 air traffic services
Annex 12 search and rescue
Annex 13 aircraft accident investigation: this is important for two reasons: it

foresees the possibility in case of an accident to invite and to involve
delegations of investigators from several countries, involved in the accident
(the country where the aircraft has collided or crashed, the country of the
manufacturer of the aircraft, the country of the air traffic controller, ).
Another purpose is that countries want to find the technical cause of the
accident. In this way they can invite the people involved in the accident. This
is very broad (pilots, manufacturers, ). The information they get from these
people involved, can not be used in civil or criminal prosecutions. This way,
in theory, an air traffic controller can not be prosecuted. However, it is clear
that the district attorney will get inspiration to prosecute, to find who is guilty.
Annex 13 has been copied by the European Union.
Annex 14 aerodrones/heliports
Annex 15: Aeronautical information service
Annex 16: environmental protection (also noise). This is applicable for

international flights.
Annex 17: security
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Annex 18: transport of dangerous goods: it has been copied from IATA
(professional organization of the main international airlines). It made a manual
that has been copied from ICAO. You can transport any good, provided you
pack it well. Its a manual on how to pack and segregate the goods. The goods
are categorized (inflammable, radioactive, ).
3. IATA (International Air Transport Association)

Its a professional organization of big commercial enterprises. International Air
Transport Association in full. The task of IATA is self-regulation (they fear the public
authority), promoting the sector and lobbying.
More concretely, in the field of air transport, their activities relate to rate making: they
set prices. They agree upon rates applied by their members. This creates a competition
law problem.
They also have an interlining agreement within IATA. As a passenger, if you want to
fly from A to B, but there is no direct flight. You need to take a few flights with other
airlines before you reach your final destination. If there is no interlining agreement,
you need to buy a ticket for each flight and make sure your luggage is transported
safely. With an interlining agreement, you can buy your ticket all the way to your
final destination. At each intermediate point, the staff members will make sure that
your registered luggage will be transferred to the next destination. The interlining
system costs money: airline companies will pay a certain amount of money
periodically. This happens through a clearinghouse (een beetje zoals rekeningcourant.).
They also do code sharing. For a number of reasons you need a big aircraft: this is to
save expenses or marketing-wise. Sometimes there is not enough demand to fill a big
aircraft. It is not profitable to fly with half-empty aircrafts. Instead of each operating
with one big aircraft, they make an agreement to fly to a certain destination on a
certain date. The several airlines put all their passengers in one plane, with the same
flight number. They share their passengers and code. Its the same flight for the
customer. Note that the company who is flying can be different each time. They dont
compete with each other. They share their rights.
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The airline physically flying and operating on a particular moment should tell this to
the customer. This is mainly theory, because customers dont like to hear that the one
who is flying is not the same airline with whom he bought the ticket from.
Slot allocation is also included in the IATA-program. By obtaining your traffic rights
from another country, it is not sufficient anymore to be able to operate. The air space
in some parts of the world has become saturated. For crossing intersections, landing,
taking off, there are high ways to be followed by air crafts (even in the air). Air ways
can become saturated. There is a separation minima for safety motives. You need a
time slot for this. There are only a limited numbers of time slots a day (for instance,
each aircraft needs to wait 3,5 minutes before departing if one aircraft has departed
before them). There are a limited number of take off operations and landing
operations. You may have the traffic rights, but if you dont get a time slot, this right
is useless. Slot allocation means the dispersion of time slots. IATA has worked a
system out on a grandfather rights basis. Airlines who get a time slot to take off and
land, can keep this right, but they have to use this effectively. They can not use this to
block newcomers, otherwise they lose their rights. This has a competition law aspect,
since this could block newcomers in the market.
There is a Computer Reservation System (CRS). It was at the free disposal of the
travel agents. The travel agents would systematically book with the airline who use
the system. Non-IATA members can not participate in the CRS, so they dont get
booked.
There are competition law aspects on IATA. Rate-making could be considered a price
agreement. They still have anti-trust immunity in the US.
In the EU, the situation is different and has evolved. By allowing rate-making, they
want to avoid predatory pricing, where pricing kicks players out of the market. They
wanted to avoid price wars. The commercial aviation was not that strong at the time.
Commercial aviation is now very strong. There is no reason to keep the block
exemption for rate-making. Codesharing and interlining can still profit the anti-trust
immunity.
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4. Air transport liberalization

In the US, under the Carter administration, air transport was liberalized.
In the EU, the liberalization became a fact in1992 with the establishment of the free
market.
The World Trade Organization and the GATS (1994) came to life and helped
liberalization. The liberalization only applied to the so-called soft rights, even though
a lot of people dreamt of also liberalizing the hard rights (traffic rights). It was a
failure, there is no world wide open sky. The GATS only applied to soft rights, not to
hard rights. Soft rights are the right to provide repair and maintenance services to
aircrafts, to sell tickets,
Alliances came to life. There was a lot of collaboration between players. If you want
to collaborate, you could participate in the stock. There are concentration rules, to
check if competition has been distorted. If two independent entities want to work
together, they could also make agreements. This collaboration will be examined from
the perspective of cartel law.
These associations could be important with frequent-flyer programs. It could be
considered a cartel. They have to balance the advantages and the disadvantages for
the customer.
PART B
MARITIME TRANSPORT REGULATION
There is the right of innocent passage (art. 17 UNCLOS)

The system of exchanging rights does not exist in maritime transport, save exceptions.
There are different types of maritime transport. This qualification is important. It
determines the rules.
*Distinction between liner services(scheduled) and tramping (non-scheduled)
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*Bulk cargo (mostly in tramp services) (sand, iron ore, ) versus break bulk (mostly
by liner operations) (crates, boxes, pallets, bags, drums, barrels) versus container
transport.
The distinction is important. There are so called liner conferences. These are
conferences where people attend who are active in the liner business. They agree on
tariffs and cargo sharing (territory sharing). They will divide the world in segments.
They split the market amongst them. They are clearly cartels.
There are advantages for the customer: there is a stable market. Again, the public
authority has to weigh out the advantages versus the detriments.
Because of the issues in regards to liner conferences, the UN has issued a code of
conduct for liner conferences. This is to make sure that liner conferences keep the
balance and dont go too far. Its a convention on the world-wide level. It took some
time for the EU Competition authority to accept it.
There are also conventions on pollution prevention and safety. There are several other
safety codes.
PART C
ROAD TRANSPORT REGULATION
The road traffic rights must be exchanged, multilateraly if possible. Its the same as
with air traffic rights. GATS couldnt achieve a multilateral exchange. The situation
nowadays is bilateralism. There is a model agreement elaborated by the European
Council of the ministers of transport. Today, they are called the International
Transport Forum.
Within the European Union, there is no issue of exchanging traffic rights. There is the
single European transport market, also with respect to road transport. The European
Union territory is considered to be one domestic territory.
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1. Travel organization and intermediation

This is the activity related to the transport of people. They bring the prospective client
in contact with the transport operator. Travel agents who are mere intermediaries do
not contribute to the contract. They only bring the parties together.
They also need a license. There is no harmonization on the international or European
level. The licensing happens according to domestic law. This also occurs in aviation
law.
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CHAPTER III EUROPEAN TRANSPORT

REGULATION
PART A
EUROPEAN TRANSPORT REGULATION: GENERAL RULES
The main barrier to achieve the European transport market was the right of cabotage.
The EU Transport market has been achieved as of now. Transport activity is
important in itself as an economic segment, but also as support to the other economic
activities (cf. art. 90-100 TFEU)
There are a few principles in it:
*No discrimination: they cannot discriminate transporters. They must be treated
equally (no discrimination based on destination, origin,)
*Member states can not protect or support certain undertakings.
*No state aid. You can not subsidize transport activity, except for the fulfillment of
the public services (for instance, transport in remote areas).
*Border crossing charges can only be cost related. It is forbidden to disguise some
tax. Only the real cost can be charged. This relates to the free movement of goods,
persons and capital.
There are some regulations to implement the general policy.
The system is home country licensing and control. The country of origin checks
everything. This has to do with access to the profession. The licensing conditions
have been harmonized by European law. Ratio is that other countries can rely on the
checking of the conditions by the home country. That way they can rely on the
transporter. The application of these conditions can be applied differently, in practice.
(Transport conditions: solvency, reliability, competence)
1. Implementation of these general regulations
Inland navigation: via incorporation of the Convention for navigation of the

Rhine: they used this treaty to implement the general rules.
Rail carriage:
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*European legislation did not allow anymore that the rail carrier is at the same time
the operator or manager of the infrastructure. They want to promote competition in
the rail transport activity.
*Everyone has equal access to the infrastructure, as a private transporter.
*As a state you cannot cross-subsidize the public activities which he performs with
the private operator. The public authority wants to make sure that everyone has access
to indispensable transport. The public authority cannot use tax money to do activities
in which he is in competition with private transporters.
Maritime transport and air transport are not expressively mentioned in the TFEU. Are
they governed by it? There were various opinions about this. Some said no, because
they were not explicitly mentioned. The consequences are important (free
establishment, free provision of services, dumping, state aid, competition rules)
There were two cases about this:
French sailors case (1974): maritime transport is included in the TFEU.
Nouvelles Frontiers case (1986): air transport is included in the TFEU.
These cases had big consequences. The market situation in both domains was bad:
they broke all the rules of TFEU, so they had to adapt. Legislative action had to be
taken by the European Council in order to bring the air transport market in conformity
with the Treaty of Rome. This was a long term project. (there was a system of flag
carriers with a monopoly, state-owned, ... before the cases)
PART B
EUROPEAN REGULATION OF MARITIME TRANSPORT
There was a ratification of the UN Convention on a Code of Conduct for Liner

Conferences. After thorough examination, this was also ratified by the EC.
In maritime transport there is no need to exchange traffic rights. There is the right of
innocent passage.
There is a free provision of extra-community services system. If the European
maritime transport operators are treated in an unacceptable manner by third countries,
retaliation is possible. The same goes for unfair treatment or distortion of the market.
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In principle everyone can freely come in. They can be punished though if European
transporters are not treated as they should.
PART C
EUROPEAN REGULATION OF AIR TRANSPORT
At first there were monopolies and no single market. It had to be done in three
packages of regulation. The result has been the gradual liberalization of the market.
1. Gradual liberalization
*A cartel was allowed. It was expressly excluded by art. 101 TFEU. They were
granted a block exemption. Then, there were more conditions to grant the block
exemption. Further, exemptions were only granted after consultation.
*In regard to tarification: the two countries had to agree beforehand on the tariffs that
had to be applied by the operator. Later on, there was an automatic approval in a zone
of flexibility. In a next phase there was a system of double disapproval. They could
set the tariff as they liked and they could only be prohibited if both countries
disapproved. Lastly, there was a system of free pricing.
*Capacity sharing: a priori split. This means that it was agreed upon which airline had
which share of the market. Later on, this was restrained and further on banned. Now
its forbidden save exceptions (cf. linkages where there is not enough demand and
where it would be unprofitable to have free competition)
*Carrier designation: the designation was easy: there was only one air carrier. Later
on, the competition was stimulated. There had to be more than one operator. Then
became multiple carrier designation (so there was some competition). Lastly, free
market access was the norm.
2. European single air transport market
After the goal was reached of a single air transport market, a few issues were still to
be settled.
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One of those issues was a further block exemption. Furthermore, the rules were
different in every other country (they required one more person in the cockpit, for
instance). The Joint Aviation Rules tried to create a level playing field, so there is no
distortion in operating costs anymore.
3. Overbooking
Overbooking occurs when there are more seats sold than there are available.
Sometimes tour operators will speculate on a certain no-show. Because of this, they
sell a bit more seats than there are available. When you have booked a certain flight (a
full fare ticket), you can use it for a year. Airlines anticipate on this, that passengers
might not show up.
When its overbooked, they can call for volunteers to leave the plane. They can also
move a number of economy class to business class. If there is an overbooking, with
no solution, they have to deny boarding to the passengers (bumping)
European legislation states that there could be a rerouting of the passenger, maybe
with some delay or with an intermediate airport (this is a partial solution). If this is not
enough there can be lump sum compensation and care.
4. Flight delay and cancellation
When a cancellation occurs, passengers have right to re-routing or reimbursement
AND compensation AND care. (cf. Directive Passenger Rights)
When a delay occurs, a passenger there is a care and re-routing and compensation or
reimbursement.
The question arises on the cumulation of the compensation on regular legal basis and
the lump sum compensation. The European Court of Justice states yes.
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5. Slot allocation
In saturated airports and airspaces its not sufficient anymore to only have the traffic
right. You must be able to use it. There is a need to allocate slots (time period which
you need to perform a take off or a landing).
The rules are derived from IATA. To a certain extent, the system has been the
inspiration for the EU legislator. The principle rule is the historical precedence
grandfather rights (de verworven rechten). The one who has the slot can keep them.
This is for the sake of stability, but the airlines cannot misuse them to try and avoid
competition from newcomers on the markets. They must effectively use them for
80%. The slots lost by the grandfathers, come into a pool. They are redistributed to
newcomers on the market.
6. External EU relations
In the negotiation and the conclusion of air traffic exchange agreements, there has
been the issue if the European Council is the only competent authority in the
negotiation. The EU has answered that transport is a shared competence EU and
member countries. The member has the residual competence if the EU does not use it.
7. Technical exploitation
There has been a gradual harmonization of the civil aviation aspects (cf. joint aviation
rules, ) There have been lots of regulations.
The European Aviation Safety Agency (EASA, inspired by the federal aviation
authority, US) came to life.
There is a single European sky, to avoid the aviation traffic controller discussions. It
became more flexible.
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CHAPTER IV BELGIAN PUBLIC

TRANSPORT REGULATION
PART A
GENERAL
European law is the most important source of law here.

For the transport of passengers, there are certain undertakings that are public authority
(public bus and tram operators). We also have private coach operators and taxi
operators (max. 9 persons)
For the transport of cargo, its the European system. The access to the market is free,
but the access to the profession is different: you need to be competent, reliable and
solvent.
There are some safety regulations. The concerns are the safety of passengers, but also
the safety of the environment and third persons.
1. Safety regulation
They are dictated by European legislation. There is a driving time limitation. He can
only drive 8 hours a day, and 4 hours at a time. It is registered by the tachograph.
There is prohibition to incite the driver to drive more quickly by offering premiums.
There is a minimum driver age, according to the weight and the capacity. There are
also some technical requirements of the vehicle.
There is also a system of regulation of transportation of dangerous goods. Its the
ADR-convention. Hazardous goods can be safely transported if the regulations are
respected. The ADR system consists of first classifying the hazardous goods in 9
categories (explosive, flammable, ), in order to segregate them. It is important to
label and mark the cargo, so that in the case of a fire accident, the fire brigade knows
23
what to do. Every type of hazardous substance has an ADR-code. It should also be
packed in an appropriate manner.
The vehicle transporting the goods must carry a document indicating the type of
goods that are being transported. The crew must have a specified training.
PART B
BELGIAN PUBLIC TRANSPORT LAW INLAND NAVIGATION
There are no more exchange of traffic rights because of the European single market.
Before, there was an office for the regulation of inland navigation and charter rotation
offices, but this has been abolished.
1. Travel organization and intermediation
There is the distinction on a tour operator and a travel agent. A tour operator is an
organizer of the service. He takes the commitment to bring the traveler to the hotel,
etc He is an indirect service provider, because of the fact that he does not provide
the service, but he commits that there is a hotel that will accommodate the traveler.
A travel agent is a person who is merely an intermediary, bringing together the two
contracting partners. He doesnt take the commitment to provide the service. He only
brings the customer in contact with the service provider. He does not take a
commitment to achieve a certain result. If a travel agent makes an error, he is not
directly liable. He made a culpa in eligendo. He chose the wrong partner.
There are several licensing conditions: age, nationality, competence, solvency,
guarantee,
24
CHAPTER V PRIVATE TRANSPORT

LAW: THE CONTRACT OF CARRIAGE
PART A
GENERALITIES
The legal basis is to be found in the Civil Code (1804). There are the articles 17821786. The transport contract is seen as a specific type as the hiring of services to do a
certain work (building construction service aanneming).
There has been the commercial code as well. The contract of carriage is often a three
party relationship agreement.
1) Parties
There is the carrier. The others are the consignor and the consignee (the sender and
the receiver).
In passenger transport law the situations are different. Most of the time it is only a two
party relationship. Rather exceptionally you could have a three-party-relationship
when the employer buys the ticket for his employee to go on a business-trip.
The question arises is the legal basis of the consignee position. It is agreed that the
passenger or the consignee becomes party to the contract even though the consignee
did not sign a contract. What is the legal explanation of this?
There have been several legal grounds put forward for this: a stipulation in favor for a
third person, the phenomenon of accession, succession into the rights of the
consignor. The final result is often to say that its a contract sui generis.
It is not necessarily the seller that is the consignor.
2) Essential elements
A. Movement
There has to be the moving of the passenger or the cargo from one point to another
point.
25
Some contracts contain a clause of movement. Most of the times there are also other
accessory tasks, different from the movement. (breaking down part, building up, )
The question arises what the regime is of the mixed contracts. One possible theory is
that you look for the predominant part and you apply the rules of that dominant part to
the whole contract (accessorium sequitur principle). Another theory is that you split
the contract up in different activities and apply the applicable rules on each part.
Another regime is the sui generis regime.
Another question that has arisen if a towing contract is also a transport contract. The
trailer is the property of the owner of the goods. The trailer is presented to the vehicle
operator to tow it to its destination. Is this a contract of carriage? The Belgian
Supreme Court said yes.
B. Carrier controls the operation
The carrier must have control of the transport operation. If he does not have control, it
is not a contract of carriage. This arises in contexts of lease (in every mode of
transportation)
In case of lease of the craft by the person who wants to have his cargo moved from
point A to point B, the user will have control of the mode of transport. It is a rental
contract because the carrier does not transport the goods and does not have control.
When not only the craft is leased but also the personnel and the equipment, the
situation is different whether the contract has been closed for a particular voyage than
when its for a particular period of time. For a certain period of time, the user can
choose how to use the craft and at what time (time charter), there will be no contract
of carriage. When its for a certain voyage (voyage charter), the owner of the vessel
and the equipment and the personnel has the control of the operation.
The criterium is who has control of the operation: who decides physically how and
when to operate. When its the owner, there is a contract of carriage. When its the
user, there is no contract of carriage, but a lease or a rent contract.
26
C. For reward
The contract of carriage must be for reward.
Gratuitous carriage is no contract of carriage. Sometimes, the international rules will
extend the application of the contract of carriage to some situations.
D. Creates a duty to achieve a certain result (resultaatsverbintenis)
The carrier should bring the cargo to the agreed point of destination, intact and on
time.
With respect to passengers, he should be on time, at the destination and should have
respect for the passenger.
Once this duty is not achieved, the carrier is presumed liable. If he cannot bring
counterproof that there was force majeure or an act of a third person (not employees),
he will be liable. He must bring the positive proof that damage to the cargo was not
his fault.
In the case of the contract of lease or rent the duties are different, which is why the
qualification is relevant.
3) Proof
It is a consensual contract, meaning that the mere consent by the contract partners
about the essential elements of the contract (what cargo and price) is enough.
This stands as long as none of the parties challenges anything of the contract. You
need to prove it by paper or by e-mail. You could also prove it by a beginning of the
proof, but this has to be completed with presumptions or witnesses.
Towards merchants the proof is free.
27
The value of electronic documents has been assimilated with paper documents as a
proof in writing.
There is a distinction between the negotium (the contract) and the instrumentum (the
document).
4) Legal regime
There is no common legal regime for all modes. Initially there was no uniform carrier
regime. Some still feel that maritime transport is so characteristic, that they can not be
shoved into the same category as the other transport modes.
There are some common principles.
-
There is a distinction between an indirect carrier and a transport

intermediary.
An indirect carrier does not physically carry, does not own personnel, He barely
makes the commitment to make sure the goods are transported from point A to B. The
contractual carrier will subcontract to an actual carrier. They present themselves as if
they take the commitment to perform the transport operation.
A transport intermediary will barely bring the contracting parties in contact. He will
not make any commitment about transport. He selects, chooses and finds a suitable
counterparty. He needs to find a partner that is reliable, competent and solvent.
Only if he makes a wrong selection (culpa in illigendo) he will be liable. They present
themselves as if they take the commitment to perform the transport operation. When
the transport intermediary does not communicate clearly that he is only an
intermediary, case law states that this may be held against them and they can be held
liable.
-
Functions of the transport document
28
A receipt issued by the carrier to the consignor as a proof that the consignor
had handed over the cargo to the carrier.
The record of the cargo condition (the state of the cargo) was it already
damaged or fully intact?
A proof of the contract and its conditions. The transport document starts to
fulfill as evidence as the contract of carriage and its conditions.
Means to instruct how to handle the cargo to the carrier.
To dispose of goods in transit. The transport document can be used to reroute

the cargo to a different destination than that was stated in the contract.
Title of cargo ownership. This only applies to maritime transport. In maritime

transport, the bill of lading (cognossement) is a document of title. Whoever is
the rightful, physical holder of the original bill of lading, is considered to be
the owner of the cargo. This person can claim delivery of the cargo and can
claim compensation if this is not possible. The transport document incarnates
the property right.
5) Kinds of transport documents

Some transport documents are to be explained. A Master air waybill is issued by the
actual carrier. The House air waybill is issued by the contractual carrier (for each
customer separately.
A clean air waybill means there are no remarks made, the cargo is complete and
intact. A foul air waybill means that there are remarks about the cargo.
29
The bill of lading is used in maritime transport. It contains extensively the terms and
conditions (a long form bill of lading) or it states where you can find them (short form
bill of lading).
6) Issuance of a transport document
You can issue a transport document to a named person. It is transferable.
You can also issue a transport document to order. This means that a name can be
filled in. The legal transfer procedure will be different from the named person transfer
document. The transfer method is endorsement (endossement)
You can issue the transport document to bearer (holder). No person or name is
mentioned in the document. You transfer it solo consensus.
There is a technique to transfer a document to order to a document to bearer. You
issue it to order, but you leave it blank.
7) Course of a transport operation
a) The handing over of the cargo by the consignee to the carrier.
b) There must be a correct description by the goods. Reservations must be made by
the carrier if necessary.
c) There should be a comparison at destination of quantity and quality. Each quantity
or quality difference will encumber the carriers liability. The carrier will be
presumed liable.
d) Reservation on delivery. It is important to formulate reservations if necessary as a
customer.
e) Clean transport document (with back letter and covered by a guarantee). In a
number of international sales operations, there is a need for documentary credit. This
30
is because buyers and sellers dont trust each other. The respective banks will issue a
documentary credit. For the banks, to be willing to issue such a documentary credit,
one of the requirements is that the transport document should be clean. There should
be no reservations. The transport document is the collateral security for a bank. In
almost every case, this is mostly not possible: all the cargo is not 100 % clean. There
is a solution in commercial practices: a back letter (tegenbrief) is accepted. It is a
document that says the opposite compared to another document.
Contrary to reality (possibly a little damaged goods), a clean bill of lading is issued. A
back letter is issued as well (otherwise the liability of the carrier would be in danger.).
The back letter serves for the carrier as a way to reject liability. The carrier will have
to pay a fee to the consignee. The carrier will go in his turn to the consignor, and will
get reimbursed.
This may be impossible for a number of reasons (the consignor fled, ), which is
why there will sometimes be a bank guarantee.
8) Limitation of carrier liability
Generally, there is a limitation of liability. Its based on the weight of the cargo or on
the number of units.
This is expressed in special drawing rights (trekkingsrechten) (SDR). Its a basket
currency: the value is determined by various national currencies. This guarantees
stability. (X SDR/kg)
The prescription time is short: the short time bar means its only 1-2 years.
The carrier has a privilege/lien on the cargo: he has a retention right as long as he
hasnt been paid. He will also be one of the first to be paid from the proceeds of the
sales of the cargo.
PART B
AIR CARRIER LIABILITY
1) Global regime
31
There is a global legal regime:
Warsaw convention (29): only starting from this time, there was air transport.
The Hague protocol (55)
Guadalajara Convention (61). This introduces the regime for the liability of the
actual carrier. Normally the consignor only has a contract with the contractual
carrier. In case of loss of the cargo, the owner of the goods according to general
law, has no action against the subcontractor. In the civil law we call this the
relativity of contracts (privaty of contracts in common law). The actual carrier
may be much more solvent. The GC grants a direct action right to the
customer/conseignor against the subcontractor.
Guatemala protocol (71). This one is not ratified by the important countries.
3 Montreal Protocols (75). They introduce the gold conversion to SDR
Montreal n4 Protocols (75). It only applies to cargo transportation.
Montreal Convention (99). It has entered in force. It is the generally applicable air
carrier liability regime. There passed some time between the signing and the
ratification. In this time, the EU issued some regulations.
2) EU-legal regime
There is a EU legal regime:
Regulation 2027/97 and 889/2002 they copied the Montreal convention.
Regulation 261/2004 (denied boarding, cancellation, delay for passengers)
3) Self-regulation
There has also been a lot of self-regulation:
One of the activities of IATA is self-regulation. It developed general conditions and
an inter carrier agreement.
1. Quid pro quo-system: history
32
The air transport industry needed protection. They didnt want full liability (killing
passengers, destroying of cargo.). The shipper and the passengers also had their
interests: they wanted to be compensated in full.
On the one hand there will be limited liability, but it will be presumed, in favor of the
customer, otherwise it would be too hard to prove.
This limitation of liability, with respect to passengers, was challenged by the US. The
standard of living was higher than the rest of the world. The Americans felt that the
amount of compensation for the loss of a human life was not sufficient.
The Third World thought that the compensation was enough. They werent willing to
increase the limits of the liability. This would also increase the transport price,
because the insurance premium would increase as well. In case of an accident, the
next of kin who lived from the income of the deceased passenger would get a
compensation proportional to the income. Everyone would pay more transport rights.
Only a few would get more compensation. This is why the peasants shall not pay for
the kings.
An intermediary solution has been found. The developing countries dont have to pay
more, but the limitations have gone higher. (syll.)
2. Liability regime
1) Subject matter of air carrier liability
The regime of the liability will be different for passengers, cargo and luggage.
Luggage will follow in some cases the regime of cargo. In the category of luggage,
you can distinguish checked luggage or unchecked luggage. Checked luggage is
luggage that you hand over to the staff member of the air transport company. The
unchecked luggage is the cabin luggage, which means the personal belongings that
the passenger takes with him in the cabin. The relevance of this distinction is the
difference in liability.
33
There is also the distinction between the accompanied luggage (its in the same
aircraft) and the unaccompanied luggage (different aircraft).
2) Types of malperformance in air carriage
With passengers, there is the distinction between injuries, death and delay.
With cargo and luggage, there could be loss, damage, destruction, delay (e.g. fresh
vegetables may decay.) Delay can also lead to constructive loss (e.g. newspapers from
days before)
3) Other aspects
Types of liability
There could be a fault liability-system. The risk of proof is on the victim.

There could be a presumed fault liability-system. This system is integrated on the
Montreal Convention. You can break the presumption by bringing counterproof.
There could be an absolute (no-fault) liability-system. The operator creates a risk for
society. The operator must bear the risk of his activity.
Sometimes the systems are mixed.
Carrier defences
The operator can always try to protect himself by stating the fault was not his own.
There could be contributory negligence: the victim or the customer can always have
contributed to the damages.
There could be an inherent vice, when the passenger was ill or had a sickness prior to
boarding, or defective packing (inherent vice of the cargo transported its the duty
of the consignor).
34
There could also be force majeure. Its a force you cannot forecast or foresee.
Limitation of liability
In some cases the cap cant be removed (unbreakable), but most of the times the
limitation of liability is breakable. Its usually a sanction for the carrier, when the
fault is on intent or gross.
The removal of liability can also be stipulated a priori by a contract clause. They use a
declaration of special interest or an ad valorem-clause. It means youll have a
higher limit of SDR. A consequence of this will be the increase in price of transport.
Complaint required
On the occasion of delivery of the cargo, in principle there has to be a complaint. If

you do not make a complaint, you may lose your rights for compensation later on. It
will be too hard to prove that the goods were damaged when it was delivered.
Claim however founded
The carrier will be liable whether there is a contractual basis or an extracontractual

basis. In Belgian regime you can only claim contractual when there is a contract and
vice versa.
All elements of the liability-regime in the Conventions will always apply.
Its also the exclusive remedy.
There is no opt-in system.
The system is mandatory, unless the convention states otherwise.
35
There is also a Himalaya clause (its really a provision). It refers to the maritime
transportation case. The vessel transported passengers, which were injured. The
carrier had stipulated almost a total exoneration of liability. So, they sued the
employees and the crew. The carriers wanted to avoid this later. They stipulated that
all limitations and exonerations could also be invoked by the crew and agents. All
exonerations and limitations of liability also play in favor of the subcontractors and
employees.
The absence or irregularity of the transport document caused the carrier to lose the
limitation of liability. Under the Warschau-regime (1929) there was the released
value-doctrine. If the customer knows that the carrier is liable in limited manner, the
customer has the opportunity to subscribe to an additional insurance cover. This is the
reason why, under the Warschau-system, it was an absolute requirement to give
notice to the customer (through the transport document) that the liability was limited.
This is no longer the case under the Montral Convention. A carrier is always only
limited liable.
A transport document is prima facie evidence. It is rebuttable (weerlegbaar).
The customer has a direct action right against the subcontractor (actual carrier)
3. EU Regulations on air carrier liability
EU Regulation 2027/97
This regulation was issued because the Montral Convention hadnt entered into force
yet. It copies to a large extent the Montral system.
It only applies to passenger transportation ( Montral Convention also cargo)
Its a no fault liability (except contributory negligence. When a passenger made an
error that added to the damage this is an exoneration to the liability of the carrier) up
to a limit of 100,000 SDR. Above the 100 000 SDR, its a presumed fault-liability. In
36
this case, the carrier can bring the counterproof that he didnt do anything wrong. This
liability is unlimited.
There is an advance payment within 15 days (minimum 15 000 for death). This brings
no risk for the carrier because he is in any way liable up to 100 000 SDR.
This regulation aligns the EU law with the convention. It is also applicable to
baggage. There is a duty to inform on the liability regime vis--vis the customer.
It applies to all traffic that goes out of the EU (also the carriers that are not European)
and inbound EU traffic by an EU carrier. It applies to denied boarding/flight
cancellation and flight delay (supra)
Its about disabled travelers or travelers with reduced mobility. There are several
principles.
There is a non-discrimination principle. In itself, the extra work it takes, is no

motive for refusing passengers.
They can only be refused for safety reasons.
The carrier must inform the prospective customer of the refusal and his motives.
Right on special assistance, free of charge.
4. Warsaw regime
It still applies alongside to the Convention and the EU Regulations.
5. Montreal Convention
37
It applies to air carriage for reward (art. 1,1) It may also be applicable to gratuitous
carriage, if the provider is an air transport enterprise (for instance, free miles). What
with stowaway (verstekeling)? A stowaway does not have a contract, so he can not
rely on the application of the Montral Convention.
It only applies to international carriage. It is not prohibited that the sovereign states
that sign the Montral Convention that they transpose the Convention in domestic
law.
It is therefore necessary that the country of the place of departure is another country
than the place of arrival of the flight.
In addition, if you make a stopover in another country (art. 1,2) (even though the
country of arrival and departure are the same) it is considered an international flight.
It doesnt even matter if the stop-over country is a signatory state.
It is applicable to successive carriage (art. 1,3), which means that it applies to the
entire transport operation, even though some parts are merely domestic. Series of
contracts are considered as one carriage, for the purpose of the international character.
Who will be liable (art. 36)? For passengers, it is the performing carrier. With respect
to the cargo/baggage, its the first/last carrier. If you can pinpoint the performing
carrier and there are damages, you can also hold the performing carrier liable.
In principle, its not applicable to other modes of transport. There are a few nuances
to this rule.
Art. 38 allows to make Montral system applicable to multimodal carriage. Youd

have to check if the other Conventions allow this.
Art. 18, 4 states that the loading, delivery and transshipment operations (e.g. road
transport from the center of the city to the airport) are presumed to be governed by
the Montral regime. When contrary to what was agreed, there is a substitution by
another mode (air transport substituted by road transport), the Montral
Convention is also applicable. The contractual transport is determining.
The Montral Convention will not apply to carriage in extra-ordinary

circumstances. It is not applicable to the contractual relation between the carrier
and his personnel.
38
It is also applicable to carriage by the actual carrier (art. 1,4). Both the actual and the
contracting carrier are liable vis--vis the customer (art. 45). The contractual carrier
has a right of recourse to actual carrier if he had to pay damages to the customer or his
next of kin.
It is applicable to state carriage, unless there has been a reservation (art. 2,1 j art. 57).
Postal carriage is excluded from the scope of application (art. 2,2-3). What is the
criterion, the inherent nature of the good or the inherent nature of the provider? It is
the capacity, the quality of the provider of the service that determines the postal
nature of the carriage.
The transport document can be electronic under the Montral Convention. There are
three types of transport documents:
The passenger ticket (art. 3) for the passenger. It is no longer a ground to lose the
liability limitation when you dont inform about the limited liability regime.
Checked baggage: identification tag
In respect to cargo: an air waybill (containing certain information.)
When there are no transport documents or when they are non-existent, the regime and
limitations of liability still apply.
There has to be 3 original copies of the Air Waybill (art. 7). They are numbered: nr. 1
for the carrier, nr. 2 for the consignee, nr. 3 for the shipper.
The air waybill has to be drafted by the shipper (art. 7,1) (or on his behalf by the
carrier) (art. 7,4)
There is liability for wrong or missing information in air waybill (art. 10) for the
shipper. In practice, the carrier does it, at the request of the shipper.
The evidentiary value of an air waybill (art. 11) is prima facie. It is refutable by
counter proof.
39
There is a right of disposal in transit (art. 12). The shipper can have motives to reroute
the cargo. The air waybill copy nr. 3 allows this. This right stops upon arrival of the
goods at destination.
There is a right of action (art. 14): who has the right to claim compensation. The
Montral Convention stipulated that both the consignor and the consignee have the
right to claim from the carrier. He only needs to pay once.
The carrier liability for passengers is as follows:
For death or injury
* On board or while disembarking (art. 17,1)

* No-fault liability (except contributory negligence: art. 20) up to SDR 100, 000(art.
21,1)
* Presumed (refutable) fault liability over SDR 100,000 (unlimited) (art. 21,2)
* There must be advance payments for death or injury (art. 28)
For delay
* Presumed fault liability (art. 19)

* Limited (to SDR 4,150: art. 22,1)
* Breached by gross negligence/willful misconduct (art. 22,5)
The carrier liability for baggage in his charge:
Destruction, loss, damage (the limit is 1000 SDR, art. 22,2)
* Checked baggage: no-fault liability (except if defective (art. 17, 2) or contributory

negligence (art. 20)
* Unchecked baggage: fault liability (art. 17, 2) fault, causality and damages must
be proven.
Delay: presumed fault liability (art. 19)
If the delay is more than 7 days it is considered a constructive loss (art. 13, 3). After
seven days, you have the right to consider it to be lost, so you are compensated under
the regime of loss.
You can contract for a higher limit of liability for baggage. This can be through a
special declaration of interest (art. 22,2). This happens beforehand.
40
The limit can be breached in case of willful misconduct or gross negligence (art. 22,5)
There has to be a complaint in writing for baggage (art. 31). This must happen ASAP
or for checked baggage within 7 days for damage and 21 days for delay.
The carrier liability for cargo in his charge is as follows:
Destruction, loss or damage
* Presumed fault liability (art. 18,1)

* Refutable by inherent vice, defective packing (should be resistant for a normal air
transport operation), war, fait du prince (art. 18,2), contributory negligence (art. 20)
Delay
*Presumed fault liability (art. 19)

*Delay > 7 days equals to a constructive loss (art. 13,3)
For cargo: the complaint must happen in writing (art. 31,2)
Damage: within 14 days after delivery
Delay: within 21 days after delivery.
The limitation of carrier cargo liability is a maximum of 17 SDR/kg. Its a posteriori

unbreakable. A higher limit is agreeable with a special declaration of interest (art.
22,3)
The Montral Convention is a mandatory regime (art. 49), further carrier exoneration
or liability limitation by contract is null and void (art. 26). Higher limits by contract
are valid (art. 25)
The Convention is the exclusive ground of action whether the action is based on
contractual ground or extracontractual ground (art. 29). Only compensatory damages
are allowed, excluding punitive or exemplatory damages (art. 29)
The limits exclude court expenses (art. 22,6).
41
There is also a Himalaya provision in the Convention. The same defences apply for
the carriers servants and agents (art. 30). The grounds for exoneration and limitation
of liability apply here as well.
There is a short time bar (two years) for action, counting from planned arrival. (art.
35)
The geographically competent court is a choice: the place of the carrier seat, contract
conclusion or the destination. The passenger can also choose the place of his main
residence (art. 33)
The Convention requires adequate carrier liability cover (art. 50) There is no
definition of what is meant by adequate.
PART C
ROAD CARRIER LIABILITY
1. CMR Convention 1956

This is not a global convention. Its mostly the European countries that are signatories
and a few countries outside of Europe.
It applies to international carriage (cross-border). Some countries, like Belgium, have
chosen to apply the Convention to domestic activities as well.
Its only applicable to the road transport. Its applicable to the contract.
The country of departure or destination should be a CMR-signatory.
Transportation of mail, funeral and removal (household furniture) are excluded.
The CMR-Convention can apply to superposed transport (supra) (art. 2), provided:
The loss happened during the other mode of transportation (cf. roll-on, roll-off:
the accident happened during the maritime segment)
The loss can not be due to the road carriage (if, even on board of the vessel, the
loss to the cargo is caused by the fact that the truck explodes)
42
Tt must be caused by an event that is related to the other mode of transportation

(the damage caused by salt seawater)
The regime of the other transport mode is mandatory. This condition is not that
important.
2. Transport document: proof of the contract of carriage by road

The document is called the consignment note. There are three original copies (n1 for
the consignor, n2 accompanies the cargo, n3 for the carrier). It serves as a receipt.
Absence or irregularity or incompleteness does not prevent application of the CMR
regime. There are a few exceptions to this.
3. The transport operation
The condition of the cargo at the point of departure should be compared to the
condition of the cargo at the point of destination. If there is any difference, then this
creates a liability of the carrier. Reservations should be made.
Similar to the system in the Montral Convention, there is a system of exercising the
power of disposal in transit. One can decide and to order to the carrier to bring the
cargo to another destination than is agreed upon in the contract of carriage. The
person who holds the copy n 1 can exercise this right until copy n2 reaches the
consignee.
4. Carrier liability
Its a presumed liability system. The duty that flows from a contract of carriage is to
bring the carriage on time and intact to a certain destination. If this result is not
achieved, there is a presumption of liability on the shoulders of the carrier.
The carrier can bring the counterproof. He can prove that its not his fault that the
cargo is not intact or if the carriage did not reach the destination on time. There are
some general exoneration grounds:
43
Force majeure.
Inherent vice (when the carriage was leaking)
Contributory negligence.
The carrier has to prove these grounds in a positive manner.

A more modern system in this convention is the idea of more special exoneration
grounds. In addition to the general exoneration grounds, there are a number of special
ones. They are special, because it is not the same strict onus of proof that is on the
shoulders of the carrier. In the case of the special exoneration grounds, the carrier can
profit from an alleviated onus of proof. In those cases, the carrier must only prove that
there is a possible link between one of the grounds and the loss or damage of the
cargo. It shifts the onus of proof to the customer, the customer should bring the
positive proof again.
These grounds are:
Uncanvassed truck. It requires that there was an agreement on this. The contract
partners shouldve agreed upon this in the contract, that the truck could be
uncanvassed.
Lack of or defective packing.
Handling etc. by consignor/consignee (e.g., loading by the customer)
Own vulnerable nature of the cargo
Insufficient/inadequate marking/numbering (when the carrier is confused about

the destination, )
Live animals
The liability is limited to 8,33 SDR/kg of gross weight.

This limitation can be broken. You can set it aside a priori and a posteriori.
A priori, through a declared value clause (ad valorem clause: art. 23 6) or declared
interest (art. 26). If the value is higher than 8,33 SDR/kg, then the customer may
agree with the carrier that the amount to be compensated in case of loss or damage
due to the transport operation, will be the higher amount that has been agreed upon.
The amount of declared value will be a ceiling for compensation, not a lump sum. It
44
requires the evidence of the amount of actual loss in order to be compensated. It is not
automatic.
A posteriori, removal of liability can also happen in case of willful misconduct or
gross negligence of the carrier, servants or agents.
In case of gross negligence, it is necessary that the country of the judge that decides
upon the liability action, has a law that assimilates the gross negligence with willful
misconduct. This is the case in some jurisdictions, but not in Belgium (culpa lata dolo
(non) aequiparatur). In Germany, for instance, it does. In this respect it is interesting
to know that the competent jurisdiction gives a broad choice (art. 31). You can do
forum shopping and choose a place where the law assimilates the gross negligence
with willful misconduct.
Upon arrival, the consignee should make reservations if the cargo was not in the same
condition compared to the condition at the point of departure. These reservations
should be made (art. 30):
apparent loss/damage: immediately
non apparent loss/damage: within 7 days and in writing. When this is not done the
consequences are different when the check of the goods happened in the presence
or in the absence of the carrier: the check of the goods can happen in presence of
the carrier. There can be no counter proof after these periods.
When the check happens in absence of the carrier, the onus of proof is reversed.
The time bar is 1 year or 3 years in case of willful misconduct or gross negligence.
The suspension of this time bar happens via claim in writing (art. 32).
The competent court gives a broad choice (art. 31): the courts of signatory countries
can be designated by contract. Otherwise, its the court of defendants principal place
of business, residence or branch/agency through which the contract was concluded. It
can also be the court of place of handing over of goods to carrier or delivery to
consignee.
Any aspect that is not governed by the convention, is governed by national law.
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The regime is mandatory. All incompatible contract clauses are to be considered null
and void (art. 41)
5. Road transport of passengers by bus/coach
You have CMR on the one hand, on the other hand there was the CVR-regime. This
CVR-Convention applied to passengers. The practical relevance was very limited. It
still exists, but it has no practical relevance.
The EU elaborated a liability regime for the transportation of passengers (EU
Regulation 181/2011).
The scope of application is different:
the full application goes for scheduled transport >250 km departing from, or
arriving in EU.
the partial application applies to non scheduled transport and/or <250 km.
The general provisions provide for a binding effect for the contractual and the actual
carrier. The system is mandatory.
The recent legislation in the field of transport and carrier liability expresses a lot of
concern around non-discrimination on nationality or territorial grounds. This is also
true for this regulation. There are also special rights for disabled persons or people
with reduced mobility.
There are some passenger rights, in case of cancellation or delay. There should be
information, there must be assistance, re-routing, reimbursement, compensation, etc
There is also an information duty for the carrier: the carrier should inform the
passenger on travel, on his rights and should handle complaints or at least mention
how complaints are handled.
1) Liability regime
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The carrier liability for death, injury and luggage damage is as follows: the national
compensation cannot be lower than 220,000 euro per passenger and 1,200 euro per
luggage item.
The carrier has a duty to provide assistance and immediate practical needs.
PART D
RAIL CARRIAGE TRANSPORTATION LIABILITY
1. Domestic carriage
There is a distinction between domestic carriage and international carriage.
Domestic carriage is governed, for passengers, by the Chapter II Act 25/8/1891.
Rather recently, the European legislator issued a Regulation 1371/2007. The Belgian
regime is in all respects more favorable for the passenger. It provides for an unlimited
liability. Its based on a presumption of liability when the passenger is hurt or dies
during the transport operation.
The regulation refers to the international system of COTIF-CIV only requires for the
liability to be a minimum amount. In Belgium, it is more: it is unlimited, there is no
conflict between Belgian and European law.
The time bar is 1 year for passengers and 6 months for luggage. This time bar is
supplemented by general conditions.
For cargo, the regime is the same as the international regime.
2. International carriage
It is regulated by the COTIF-CIV (Convention relative aux transports internationaux
ferroviaires). It is split in two parts: the CIM and the CIV (carriage and persons)
1) Passengers
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The international regime for passengers contain mandatory rules and minimum
liabilities (SDR 70 000/passenger, 700/personal objects, 34/kg or 500 per item
luggage, 4000/ vehicle)
The time bar is 3 years for passengers, 1 year for other claims.
2) Cargo
For cargo, the COTIF CIM is relevant. There is a limitation of liability of SDR 17/kg.
The time bar is 1 year. There are some special regimes for:
Dangerous goods (RID)
Private wagons (RIP)
Containers (RICO)
Express parcels (RIEX)
It is one of the most elaborate liability regimes that exist, contrary to the CMR.
PART E
INLAND NAVIGATION LIABILITY REGIME
Its the maritime transportation on lakes and rivers.

1. Sources
*Domestic carriage the act of 5/5/36 on inland navigation charter operations. Its
not applicable to scheduled services (default regime of the act of 25/8/1891).
We will not study this in detail, because its a non-mandatory regime. Parties are free
in to stipulate as they like. The only mandatory rules are about the charterers fee and
the prohibition of exclusion of liability for fault in management of cargo.
*International carriage regulated by the CMNI (Budapest Convention 22/06/01, its
effective since 01/12/08). By merely signing a convention it will not be effective yet.
It still requires a minimum number of ratifications.
*Passenger rights regulated by 1177/2010, about delay and cancellation.
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2. CMNI
Its only applicable to cargo.
The regime is applicable when the country is a point of departure or destination is a
CMNI signatory (art. 2,1)
Its only applicable to the contract of carriage of goods by inland waterways, but also
partly by sea, unless a marine bill of lading is issued or when the maritime segment is
predominant (art. 2,2)
1) Carrier duties (art. 3)
The carrier can choose the vessel. It must be fit.
This choice exists unless the vessel is specified by the contract, but there are
exceptions: when there are unforeseeable circumstances or in accordance with
practice.
Receipt and delivery of cargo happens on board, but the carrier has to ensure the
safety of loading, stowing (op de juiste plaats zetten voor redenen van stabiliteit) and
lashing. He must not do it, the consignor and the consignee have the duty to perform
the task of loading and unloading. The carrier is to be considered liable, because he is
considered to be an expert)
Carriage on deck is only permissible if agreed upon, customary or required by
regulations (e.g. hazardous goods). For instance, what is customary? Containers are
traditionally also carried on deck.
2) Contractual and actual carrier (art. 4)
A subcontract to the actual carrier is also governed by CMNI. The actual and the
contractual carriers are jointly liable vis--vis the consignor or the consignee.
There is a recourse by the contractual carrier against the actual carrier.
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There is a duty to inform the shipper about subcontracting.

3) Shippers duties (art. 6)
He must pay the freight, even in case of malperformance (j art. 19,5)
He must give information on the nature of the cargo to the carrier.
He must provide documents, he must pack the cargo, he must load it, stow it, lash it.
The final responsibility of the safety is with the carrier and stays with the carrier.
He will be held liable if he fails to fulfill aforementioned duties (art. 8)
4) Consignees duties
He must pay (art. 10) the unpaid freight, the other charges and the general average
contribution in a general average situation. The general average contribution mainly
applies in maritime transport, but also a bit in inland navigation. Its a kind of
solidarity system on the basis of which the three interests of the transport operation
(vessel, cargo and freight (= expenses that are required to make a transport operation
operational: if you have a bare vessel, it will not sail, you need crew, tolls, insurance,
), must contribute in two cases:
Intentional damage to the vessel or the cargo/sacrifices (when its necessary to

save the vessel and the rest of the cargo). The loss suffered by damaging the
vessel or by throwing cargo overboard, is not to be borne by the victim. Its
spread between the three interests, so each of them contributes to their value.
Exceptional costs e.g. repair under way)
This solidarity idea stands because the costs are not made for just one interest, its
made for all the interests. Its a deviation from res perit domino. The general average
system does not apply every time, only in two cases. The division of the damages
happens through the York-Antwerp rules. This happens through the proportional
contribution to the costs.
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5) Transport document (art. 11)

The CMNI requires the issuance of a transport document. It has to be a bill of lading
if required by consignor. A bill of lading is:
a negotiable document (ownership can be transferred by transferring the

document),
a document of title
it proves a contractual relation.
It must contain certain information.

The absence or irregularity of this document does not affect the validity of the
contract.
The transport document is prima facie evidence. It is rebuttable, for instance with
respect to the condition of the cargo.
The bill of lading is a negotiable document. This makes it an abstract character, which
means that all the rights and all the duties are incorporated in this specific document
vis--vis a third holder. It determines the relationship with the consignee, contrary to
the relationship between the carrier and consignor. The contract prevails in this
situation (art. 13). The fact that an abstract character supports the negotiability is the
basic application of what you see, is what you get.
6) Reservation by carrier (art. 12)
When one does not make a reservation, there is a presumption of good condition of
the cargo. It is rebuttable.
When there is loss or damage of goods in a sealed container or hold, this loss or
damage is presumed to be not due to the carriage.
7) Right of disposal in transit (art. 14-15)
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The consignor can decide that during the transport operation the destination should be
changed. This right exists until the transport document is handed over to the
consignee, save contract clause to the contrary.
8) Liability of the carrier
When the cargo is damaged, not on time,
Its a presumed liability, refutable by proof of:
Contributory negligence
Force majeure
Defective packing
Missing marks (which causes misdelivery, e.g.) (art. 16)
There is a reversed onus of proof if the carrier establishes a possible link (art. 18,2)
with the grounds mentioned in art. 18,1.
There is a limited liability (art. 20):
SDR 2/kg or SDR 666,67 per package for cargo (whichever is higher)
With container clause: for lack of details of contents: SDR 1,500 for container and
SDR 25,000 for contents. When the container is mentioned as one package, or the
entire contents are specified. When there is no detail about the contents, the
container clause will apply and one will get 1,500 SDR. When the contents are
specified, you get SDR 25,000
The damages are limited to the freight when there is delay (art. 20,3).
The limitation can be breached (art. 20 and 21)
A priori: ad valorem clause. A clause stating the real value of the cargo.
A posteriori: when there is gross negligence and willful misconduct.
The Budapest Convention is a mandatory regime. All deviation by contract clause is

to be considered null and void (art. 25) except for when the regime allows it.
9) Reservation by consignee (art. 23)
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Reservations must be made in writing.
When the damage or the loss is apparent, this must be done at the delivery.
When the damage or the loss is non-apparent, this must be done within 7 days.
When this reservation is not made, there is a refutable presumption of conform

delivery.
10) Time bar (art. 24, 2)
One year after date of planned delivery. It can be extended by written declaration of
debtor of compensation.
PART F
MARITIME CARRIAGE OF GOODS
There are two possible legal regimes in the context of a maritime transportation of
goods. The parties can choose the type of legal regime.
You can either have a charter contract or a contract of carriage under bill of lading.
Sometimes the two regimes may apply to the same transport operation. For instance
when the shipper concludes a charter contract with the carrier and the carrier in his
turn contracts under bill of lading with another person for another part of the vessel.
1. Charter contract
Its the rent of (a part of) a vessel for transportation, but there are some deviations.
The contract is governed by the Code of Commerce (Book II, title III, art. 112 and
following.) It sometimes happen for a part of a vessel, in the context of a voyage
charter. Its not conceivable in a timed charter contract.
Its a non-mandatory regime, there is a party autonomy. There are standard contracts.
The evidence must be brought in writing by the charter parties.
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1) Qualification of charter contract

A charter contract may be re-qualified to a contract of carriage. A contract of hire is
legally different from a contract of carriage. The rights and the duties are different.
There are three possibilities:
The charter contract relates to a naked vessel (bareboat). In the case of a

bareboat charter contract, the vessel is disposed at the use of the user, without
any fuel, crew, )
The hire of vessel and crew (time charter): the vessel is operational. The
commercial control is with the user. The technical control is with the shipowner.
Contract of carriage (voyage charter): when its specifically intended for the a
specific voyage. The technical and the commercial control is with the shipowner.
The criterion is who controls the maritime operation (ship-owner or charterer-cargo).

The legal duties are different:
A carrier has to bring carriage to a set destination
A charter contractor needs to put to use a vessel, thats it.
2) Parties duties
Ship-owner
He must provide the agreed vessel, at the right time and at the right place.
The ship must be in seaworthy condition, at the agreed moment and at the agreed
place.
He must direct the vessel to destination via most direct route. It must be a safe route,
so a reasonably direct route. If the commercial control is with the user, the shipowner
can not direct the vessel to the destination via the most direct route.
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Charterer
He must load the agreed cargo and the right volume, even the empty space must be
paid. (deadfreight) If he doesnt load at all, he must pay damages. Sometimes the
vessel is not suited to sail empty.
He must also pay the agreed freight.
3) Responsibility for loading and unloading
Most of the cases the scheduled services are performed under a contract of carriage
under a bill of lading. Non-scheduled services are generally performed under a charter
contract.
In tramping (non-scheduled services) services, its the user who will take care of the
loading and unloading.
In scheduled services (liner services), its the ship-owner who takes care of loading
and unloading.
The liner services are under pressure of time, it must sail at the moment that was
preset. If you depend on the user, there may be problems. The overhead expenses
represent an enormous amount of money. This is why it cannot stay idle. Even if the
user (consignor, consignee) must take care of the loading and unloading physically
(he takes the cost for it), the final responsibility will stay with the vessel owner.
In tramping, the vessel cant sit idle in the port either.
For this reason, there is a legal issue called lay time and demurrage. It relates to the
period of time that is granted to the user for loading and unloading.
There is a certain timeline:
55
At first, there is a notice of readiness. The notice of readiness shows that the vessel is
ready, in the port,
Secondly, there is some free time. Its a kind of transition period, for the user to get
ready.
The period of time that is allotted per contract is the lay time (the period to perform
the loading operations). Regularly, it is possible that the loading operations are not
finished. This overtime period, the demurrage period, there is a penalty stipulated in
the contract. Its an additional payment of rent.
According to the circumstances, there could be a possible contract annulment.
2. Contract of carriage under bill of lading (B/L)
1) Introduction
It can be used together with a charter contract. Sometimes the distinction is blurred. A
bill of lading may be issued with a charter contract (for instance, a partial chartering
under voyage charter)
A bill of lading has different functions:
Its a receipt for goods
Its the proof of contract and the conditions of carriage
Its a negotiable document of title (property title)
Its a means to give instructions.
2) Legal regime of Hague-Visby
Art. 85-91 Book II, Title II, Code of Commerce
Art. 91 implements the Hague-Visby Rules (Brussels Convention 1924 and

Brussels Protocol 1968). The CMI plays an important role here. The CMI is at
the origin of the original Brussels Convention. Its a non-governmental
56
organization. They developed the (not yet in effect) Rotterdam rules. The
Harter Act was the inspiration for the CMI.
These regimes give protection against excessive carrier exoneration. The customer
must pay the fee in any case. On the other hand, there were so many exonerations that
there was total freedom for the carriers. For that reason, the US Harter Act was
issued.
Our Belgian Supreme Court is probably mistaken in its ruling that the regime of the
Hague/Visby Rules, only intends to support the negotiability of the contract. It only
protects the abstract character.
The regime sets a minimum liability. The carrier cant exonerate himself than what is
permissible under the mandatory rules of the international regime. It supports
negotiability.
But, these rules also try to protect the direct contract partner of the carrier against
excessive exonerations. This isnt accepted by the Belgian Supreme Court.
The direct contract partner, who concluded the contract, in the case that the transport
document has never been negotiated (= transferred), according to the Belgian
Supreme Court, the protection doesnt play.
If it has been transferred, the liability regime can be invoked.
It contains a minimum liability. The carrier cannot exonerate himself totally. It
contains a number of duties. Its a balanced system.
With respect to the vessel
The carrier is only liable for mismanagement of the ship before the voyage. If the
cause of the loss of your cargo is due to a defect or a fault during the voyage, the
carrier cannot be held liable (seaworthiness, suitable crew, equipment, provisions)
With respect to the cargo
57
The carrier is liable during the voyage for the mismanagement of cargo (loading,
handling, stowing, carriage, guarding, care and unloading).
In many circumstances, there are grey cases. It will depend on the qualification of the
loss (e.g. if your cargo consists of fresh fruit and vegetables, that requires
refrigeration. If the cooling equipment breaks down during the voyage, its important
to find out if the breaking down was due to a lack of care during the voyage. If the
carrier can prove that it was a defect to the equipment during the transport operation,
and its not due to a mismanagement of the vessel before the voyage.)
3) Sea carrier liability
There are exoneration grounds (art. 91):
Unseaworthiness during the voyage
Contributory negligence consignor
Dangerous cargo
(Attempted) salvage at sea (the damage caused to the cargo, by helping

another vessel, there is an exoneration of the carrier. Its an incentive to help
other vessels in problem.)
Fire (easy to escape liability)
Perils of the sea (storm, shipwreck, stranding, (except when its the cause
of the crew)
Nautical error by the Master. If the most important of your personnel makes a
mistake due to which there is an accident, this is a ground of exoneration.
Force majeure.
Its a limited list. He cannot add additional grounds of exoneration. Its a minimum
amount of liability, he cannot decrease it. Its a mandatory regime.
The liability is limited:
666,67 SDR/package or 2 SDR/kg, whichever is higher
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Container clause: specification of contents. If the consignor requests the

transportation of the container as one package, the contents will not be
accounted for.
The limitation can be removed in case of:
Willful misconduct/gross negligence
Carrier fraud
Unauthorized deck shipment: shipment on deck is considered more dangerous

than under deck. This is the reason why authorized deck shipment is not
covered by the Hague-Visby rules.
According to some, unauthorized deck shipment would be outside of the scope of the
Hague-Visby system. According to other, as confirmed by case law, unauthorized
deck shipment is still governed by the H-V system. Its not what happens in reality
that determines the scope, its what was agreed in the contract. The system will not be
set aside if you act contrary to the contract. It will be considered as a gross negligence
though, which makes you lose the limitation of liability.
There can be a liberty clause: you can agree that the carrier can choose whether he
transports on deck or under deck. On the other hand, you can also have a custom to
transport on deck (for instance: containers). In these cases, there will not be
unauthorized deck transport.
The time bar is short: one year, unless extended by mutual agreement.
The carriage that is not covered by Hague-Visby are live animals and authorized deck
shipment.
Reservations should be made at handing over (clean bill of lading) and at delivery
(within a time limit).
3. Bill of lading clauses
Ignorance clause
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said to contain: I did not check the weight, I did not check the number of items
upon receiving them, so in this way, the carrier will try to escape liability when there
is a shortage upon delivery. The onus of proof will be reversed. This isnt always
accepted by courts. They are not accepted when its physically possible to count and
weigh. In a number of cases, they are well founded: when it is impossible to count
and to weigh.
Jurisdiction clause
When the consignor or the consignee brings an action in the Antwerp Commercial
Court, the carrier will challenge the territorial competence of the court. The reaction
of the Antwerp Court will always overrule the contract: the Hague-Visby regime
should be applied. The Belgian court does not recognize foreign jurisdiction if there is
no certainty on application of regime. The Hague-Visby system is a mandatory
regime of public policy for Belgian out-inbound maritime traffic. All maritime
transport that starts from or arrives at a Belgian port, are subject to the Hague Visby
system.
This was the situation until the EEX-treaty (presently art. 23 Reg. 2001/44, future
1215/2012/EU): the Court of Justice stated in the Tilly Russ-case that on the basis of
art. 17 EEX, a jurisdiction clause must be respected if its in writing and the third
party steps in the contract, who was not the original contract party, it is required that
the third party succeeds in the contract partners rights and duties. So it must be in
writing and there must be the third party, who must succeed in the rights and duties of
the original contract partner. (niet goed begrepen, zie syll. p. 66)
So, if a contract partner stated a jurisdiction, and a third party comes into play, he
needs to succeed into the rights and duties of the contract partner (p. 67 syllabus). The
Belgian Supreme Court doesnt say that there is succession in the rights of the
contract partner. The legal position can not be explained by succession.
Himalaya clause
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Exoneration grounds can be invoked by the agents, the employees, The servants
and agents are treated in the same manner as their employer.
Received for shipment
A bill of lading, according to Belgian law, must be issued when the cargo is loaded
onboard. Cargo that is ready for maritime transportation is handed over to the carrier,
before it is loaded into the vessel (it sits in the warehouse for some time). A receipt
can be issued by the carrier. Its not a bill of lading. Once it is physically loaded into
the hold of the vessel:
(1) the receipt for shipment can be replaced by a full fletched bill of lading
(2) the document can be stamped shipped and it serves as a bill of lading.
Standard clauses
E.g. acting as agents only: they act as agents for the carrier, to escape liability. If
this does not express the real situation, the clause will not be upheld by the judge.
4. Documents used in maritime carriage operation
The use of these documents is historical. Before, there was direct contact between the
consignee and the captain. In modern times, as maritime transport operations became
more and more sophisticated and frequent, a more complex process has been
installed, without direct contact.
Booking note
Its the document confirming that you have made a booking for your cargo, for a
journey. When you have this confirmation, that your space of your cargo is booked
the day or a few days before the actual departure, the consignor will present himself
to the representative of the maritime carrier. For administrative reasons, this
representative will be the ships agent.
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Loading permit
The loading permit is required, issued by the ships agent, to load your cargo on
board. Once the cargo is loaded, according to Belgian law, a bill of lading must be
issued (serves as proof that the cargo has been loaded).
Mates receipt
Once the cargo has been loaded, the document signed by the mate (second in rank),
proving that the goods have been loaded on the ship is called the Mates receipt.
Bill of lading
The Mates receipt has been signed and on this basis the shipper can go back to the
ships agent (the representative of the maritime carrier), to get the bill of lading.
This is the process for the loading operations. A similar process can happen at the
point of destination.
Laissez-suivre
The consignee, or someone for him, will represent himself to the ships agent and will
submit the original bill of lading. On the basis of the original bill of lading, the ships
agent will issue a laissez-suivre. Its the opposite of the mates receipt or the loading
permit. On basis of the laissez-suivre, you can claim the handing over of the goods.
Delivery order
Instead of exchanging your bill of lading, for a laissez-suivre, you can exchange it for
a delivery order. It allows you to split up the consignment. There can be several
delivery orders. It happens in bulk cargo transportation, when there are a lot of
consignees. One bill of lading is exchanged for several delivery orders, so that you
can split up the cargo.
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PART G
MARITIME TRANSPORTATION OF PASSENGERS
1. Athens 1974 Convention (PAL)
This convention applies when the flag, the contract, the departure, the destination is in
the contracting state.
The liability regime is a fault-based liability. In a few cases its a presumed fault
liability (when the death or the injury of the passenger are the consequence of a major
accident). The mere fact that a passenger has died or is injured under the transport
operation establishes a fault. There is a possibility to bring counterproof. There is
exoneration via contributory negligence.
The liability is limited. This limitation can be breached.
The time bar is short. The regime is mandatory.
2. EU Law
A modified version of the Athens Convention has been adopted by the EU.
In addition to adopting the amended version of the Athens Convention, there has been
some more duties for the carrier due to EU law.
The carrier should give information about the passenger rights.
The carrier should also pay advance payments (without waiting for the outcome).
There is basically no risk for the carrier to make these advance payments, since there
is a no-fault liability regime.
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Its almost the same as the one in air transport and road transport. There are similar
types of regulations.
3. PALProt
This is the amended version of the Athens Convention, as adopted by the EU
392/2002.
1) Liability regime
The liability regime is as follows, for death and personal injury is as follows (art. 3):
In case of shipping incidents (shipwreck, collision, stranding, explosion, fire,

defective vessel):
o Up to SDR 250,000: no fault liability save defenses (war, natural
catastrophe, intentional act or omission by a third person).
o Over SDR 250,000: presumed fault liability
Other causes: fault liability
For damage to or loss of cabin luggage due to a shipping incident, the liability is
assumed. When its due to other causes, there is a fault liability.
The damage to or loss of other luggage is based on a presumed liability system (art.
3).
In all cases, there is a general carrier defense: contributory negligence (art. 6).
The liability is limited (per passenger & trip):
- personal injury: 400 000 SDR (art. 7)
- cabin luggage: SDR 2,250
- vehicles: SDR 12 700
- other luggage: SDR 3 375 (art. 8)
There is an exoneration for liability for precious valuables unless they are deposited
with the carrier.
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Contractual variation of liability limits are allowed. The limitation can be decreased
(art. 8,4) in a limited manner for vehicles and other luggage. There are no limits for
increasing the liability the carrier (art. 10)
The cap of the liability will be removed in case of willful misconduct or gross
negligence (art. 13)
The time bar for claims are two years (art. 16)
The actual carrier is also liable (art. 4). There is a compulsory carrier liability
insurance or another sufficient financial guarantee. There is a direct action right
against insurer (art. 4bis). There is also a Himalaya provision (art. 11)
4. Hamburg rules
For the sake of interest, a few words about the Hamburg rules. Its an outdated system
that still are largely applicable in the world. They are in force, but only in respect to
countries that have not an important fleet. It was expected that they may never come
into force, but they will probably never be generally applied. They will probably be
exchanged for the Rotterdam rules.
There are some difference with the Hague-Visby rules
They apply to all types of carriage, H-V only applies to carriage under bill of
lading
There is a higher limitation of liability
The navigation error exoneration ground is no longer there. Its not acceptable
that a carrier gets exonerated if his most professional expert commits an error
in his core business.
The time bar is two years.
It applies to all kind of cargo and all types of carriage.
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5. Rotterdam rules
These rules will probably overtake the Hamburg rules. The Hague-Visby system was
developed by a non-governmental organization. It was taken over by a governmental
conference.
The same scenario has been repeated for the Rotterdam rules (also developed by
CMI). A UN Conference was convened, in order to sign and adopt it. They are not in
force yet. Just a few characteristics: it covers all types of maritime carriage. It
acknowledges the electronic transport document. It covers liability for delay, which is
new compared to the Hague-Visby system. It covers issues of deck carriage. The
identity of carrier should also be mentioned on the documents and is more clearly
regulated. There is an actual carrier liability provision. There are provisions on
multimodal carriage.
66
CHAPTER VI - THE MULTIMODAL

TRANSPORT CONTRACT
Part A
The multimodal problem
A multimodal transport contract always brings problems. The damage that is

established at the end of the transport operation, is ex post not localizable. You cannot
tell where or your cargo is damaged.
There are also conflicting mandatory modal regimes. The liability system may differ,
the amount of limitation may differ, Mostly, you cant deviate by contract.
Its a carriage by at least two different modes in one single contract. There is a
distinction between sensu strictu and sensu lato multimodal transport, depending on
whether there has been transshipment or not. The latter means this is superposed
transport.
Part B
The solutions
There are several theoretical solutions.
A uniform regime for all modes of transportation. Why is there a difference

between air transport and maritime transport?
A sui generis regime, for multimodal transport. They have tried to do this, the
UN Convention on multimodal transport (1980). This was in the same period
of the Hamburg rules.
Network or Chameleon regime: for one part, the air transport liability regime
is applicable, for the other part its maritime liability regime. This doesnt help
when the damages are not localizable.
Mixed regime: if possible, you apply the Network regime. If not, you apply
the uniform regime.
67
In Belgium, we do not have express legal solutions in the law. We solve it in our
Commercial Code. Its a carrier liability regime sine modal. Its a general regime.
With respect to the formalities and the time bar, are the formalities of the last segment
regime. In other countries, they do have legislation.
There are a few fragmentary solutions in the modal conventions.
There have been a few international solutions (the aforementioned UN Convention
1980)
For lack of legislative action, there is a contractual solution: the ICC issued some
uniform rules for a combined transport document (ICC Uniform rules for a combined
transport document 1975 doc n 298)
These rules are applied in the FBL (the Fiata Bill of Lading) and in COMBIDOC
(ngo)
Part C
New initiatives
A number of international organizations have tried to find solutions.
CMI/UNCITRAL: developed the Rotterdam Rules
UN ECO ITC: examines compatibility of multimodal transport liability

regimes. Its field of activity is worldwide.
UNCTAD: its a worldwide study of multimodal transport rules application

and national legislation.
OECD: established a maritime transport committee, established to abolish

conflicts between unimodal regimes.
ICC: recommends UNCTAD/ICC rules.
EU Commission: research for uniform regime.
68
69

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General Transport Law

Morgan Bechet synopsis transport law

The content of the course is as following:

Morgan Bechet synopsis transport law

1. Relevance of transport law

Morgan Bechet synopsis transport law

Sensu stricto: with transshipment. Transhipment means that the cargo is

Morgan Bechet synopsis transport law

not automatically mean deregulation. Sometimes, in order to liberalize, you need to

Morgan Bechet synopsis transport law

Morgan Bechet synopsis transport law

CHAPTER II GLOBAL REGULATION

AIR TRANSPORT REGULATION

Morgan Bechet synopsis transport law

scheduled and non-scheduled transport. It is easier to obtain the authorization if it is a

Freedoms of the air

Exchange of Air Traffic Rights

Morgan Bechet synopsis transport law

Annex 1 - personnel licensing: the crew on an aircraft must meet certain

Annex 2 - Rules of the air: priority of the right in non-controlled airspace. If

Annex 3 meteorological service

Morgan Bechet synopsis transport law

Annex 4 - aeronautical service

Annex 6 Operations of Aircraft

Annex 8 Airworthiness: an aircraft has to be airworthy. The prescriptions for

Annex 9 Facilitation: VISA, immigration checks,

Annex 10 Aeronautical telecommunication.

Annex 11 air traffic services

Annex 12 search and rescue

Annex 13 aircraft accident investigation: this is important for two reasons: it

Annex 15: Aeronautical information service

Annex 16: environmental protection (also noise). This is applicable for

Annex 17: security

Morgan Bechet synopsis transport law

3. IATA (International Air Transport Association)

4. Air transport liberalization

MARITIME TRANSPORT REGULATION

There is the right of innocent passage (art. 17 UNCLOS)

Morgan Bechet synopsis transport law

ROAD TRANSPORT REGULATION

Morgan Bechet synopsis transport law

1. Travel organization and intermediation

Morgan Bechet synopsis transport law

CHAPTER III EUROPEAN TRANSPORT

EUROPEAN TRANSPORT REGULATION: GENERAL RULES

Inland navigation: via incorporation of the Convention for navigation of the

Morgan Bechet synopsis transport law

EUROPEAN REGULATION OF MARITIME TRANSPORT

There was a ratification of the UN Convention on a Code of Conduct for Liner

Morgan Bechet synopsis transport law

EUROPEAN REGULATION OF AIR TRANSPORT

Morgan Bechet synopsis transport law

Morgan Bechet synopsis transport law

Morgan Bechet synopsis transport law

CHAPTER IV BELGIAN PUBLIC

European law is the most important source of law here.

Morgan Bechet synopsis transport law

BELGIAN PUBLIC TRANSPORT LAW INLAND NAVIGATION

Morgan Bechet synopsis transport law

CHAPTER V PRIVATE TRANSPORT

Morgan Bechet synopsis transport law

There is a distinction between an indirect carrier and a transport

Functions of the transport document

Morgan Bechet synopsis transport law