The Analysis of the Causes for Exoneration from Liability of the Danubian Carrier in the International Regime

• Author: Ion Iorga - Mirela Paula Costache
• Position: Senior Lecturer, PhD, Police Academy 'Al. I. Cuza', Bucharest, Romania - Senior Lecturer, PhD, 'Danubius' University of Galati, Romania
• Pages: 67-84

JURIDICA

67

The Analysis of the Causes for Exoneration

from Liability of the Danubian Carrier in

the International Regime

Ion IORGA1, Mirela Paula COSTACHE2

Abstract: In this paper we intend to continue the analysis of the river international contract of

carriage of goods on the Danube, in general, and, in particular, to analyze the causes for exoneration

from the liability of the Danubian carrier. Objectives: The main objective is to argue how, in the

event of damage caused during transport, the carrier is presumed to be at fault, as an effect of

triggering the presumption of liability, it may rebut the presumption of juris tantum by contrary

evidence, proving that the real cause of the prejudice is not imputable. Prior Work: In the context

where also the Romanian and European doctrine analyzes these causes, this paper aims at examining

in detail and comparatively their impact, analyzing the legal texts, and also their impact during the

trial. Approach: We will consider the exemption circumstances, based on the interpretation of

international regulation of the contract of carriage of goods by inland waterways, which we will

report in detail. Results: By comparing the two international conventions, we will demonstrate that

these causes of re moval of liability have a predetermined scope, in the sense that they affect both

contractual relations and in tort liability of the carrier. Values: In the article it was used as a research

method the analysis of these incidents laws, with direct interpretation of causes for exemption from

liability of the Danubian carrier.

Keywords: contract of carriage of goods; carrier; causes for exemption; force majeure

1. Introduction

We start this analysis as a continuation of previous approaches3 of the authors on

the content of the international river contract of carriage of goods. Thus we

reiterate that this analysis will enhance the interpretation of the provisions of two

1 Senior Lecturer, P hD, Police Academy “Al. I. Cuza”, Bucharest, Romania. Address: 1A

Privighetorilor Alley, sector 1, 014031, Bucharest, Romania. Tel.: +40213.17.55.23, Fax:

+40213.175517. Corresponding author: ioniorgaion@yahoo.com.

2 Senior Lecturer, PhD, “Danubius” University of Galati, Roma nia. Address: 3 Galati Boulevard,

800654, Galati, Romania. Tel.: +40.372.361.102, fax: +40.372.361.290. E-mail:

mirelacostache@univ-danubius.ro.

3 For details see (Iorga, 2011, pp. 123-148; Iorga, & Costache, 2012, pp. 53-65; Iorga, & Costache,

2015).

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ACTA UNIVERSITATIS DANUBIUS Vol. 11, no. 2/2015

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international conventions, under which it substantiates the legal regime of the

carrier of goods liability on the Danube, namely the Budapest Convention on the

Contract for the Carriage of Goods by Inland Waterway (hereinafter referred to as

CNMI)1 and the Viena Convention on the General Conditions of Carriage of Goods

in International Traffic on the Danube2 (hereinafter referred to as the Convention).

Also, we have previously concluded that the liability of the Danubian carrier, as

configured by the legal depositions as mentioned above, is a liability by the

operation of law based on the presumption of liability which means more than a

presumption of guilt. The obligations of carriers are relative to the means of

transport – the ship and the services which have as object the transported goods

(for delivery, travel, preservation, supply) (Iorga, 2011, p. 125). As such, the

carrier undertakes the obligation to move goods to their destination in perfect

condition, assuming the obligation to preserve the goods in all this time. He will be

responsible for perishing or damaging the goods which were committed in any

situation unless, the circumstances which are non-imputable, as they have occurred

independently of any manifestation of will of the carrier able to draw his fault.

2. Classification of Causes for Exemption3

In the event of caused damage during transport, the carrier is presumed to be at

fault, as effect of triggering the presumption of liability4. He can rebut the juris

tantum presumption by the contrary evidence, proving to be the true cause of the

injury. There are, however, certain circumstances or risks envisaged by the two

mentioned conventions in the presence of which the carriers do not have to prove

the contrary, as we have shown. Of course, they do not depend on carriers. Finding

1 The Bud apest Convention on the Contract for the Carriage of Goods by Inland Waterway (CMNI)

adopted on 3 October 2000 by the representatives of the Danube Commission and the CCNR under

the UNECE has been ratified by Romania b y Law no. 494/2003 published in the Official Monitor no.

854 of 2 December 2003. The Convention, signed on 22 June 2001, entered into force on 1 April

2005 with its ratification by the 5th state (Croatia) on 7 December 2004 in accordance with art. 34.

On that date Romania, Switzerland and Luxembourg had ratified the Convention of Hungary. It was

later ratified by Germany, the Neth erlands and France last by Law no 2007-300 of 05.03.2007. The

CMNI follows the p rinciples contain ed in other Conventions in the transport sector such as the

Hague-Visby Rules in 1968 or Hamburg 1978 or WRC1956, the last being a true source of

inspiration.

2 The Siofok Convention was amended within the Conference in Vienna in 1994 and it is in force

from 1 February 1995, at which time the provisions were repealed b y the depositions of Bratislava

Convention, signed in September 26, 1955.

3 See (Malaurie, Aynes, & Stoffel-Munck, 2007, pp. 537-542; Bonasies, & Scapel, 2010, p. 732 and

the next; Paulin, 2005, pp. 252-258; Orga-Dumitriu, 2008, pp. 167-218)

4 For detail about the contract of carriage of goods, see (Modiga, 2012) .