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19 June 2019
On 29 May 2019 the Federal Department of Foreign Affairs (FDFA) opened a consultation procedure on the Strasbourg Convention on the Limitation of Liability in Inland Navigation 2012 (CLNI 2012) and its implementation (ie, an amendment to the Swiss Maritime Navigation Act). Interested parties are invited to submit comments by 30 September 2019, after which the proposal will be submitted to Parliament, where it could be dealt with as early as 2020. If accepted, the federal government would be authorised to declare its accession to the CLNI 2012. Accession is therefore not expected until 2020 at the earliest.
The FDFA's proposal has been welcomed and is considered a necessary step towards Switzerland ensuring a level playing field for the inland navigation industry.
Switzerland is a signatory to the CLNI 2012's predecessor agreement, the CLNI 1988.
In accordance with the Convention on Limitation of Liability under Maritime Law, the CLNI 1988 introduced a limitation of liability which was actually contrary to principles of Swiss civil law: vessel owners and certain other parties, such as charterers or insurers of an inland waterway vessel, can limit their liability for death, personal injury, damage to property and damages caused by delay if such damage occurs in connection with the operation of the vessel.
The limitation of liability applies if the liable party establishes a liability fund or, if national law does not exclude this (which is not the case for Swiss law), even without the establishment of such fund. The maximum amount of liability is calculated based on the displacement and the engine power of the vessel concerned.
The CLNI 1988 was open only to the contracting states of the Mannheim Convention or the Moselle Treaty and today applies to Switzerland, Germany, Luxembourg and the Netherlands.
Since there was a desire for a system which could also apply to the Danube states – not least due to the opening of the Main-Danube Canal – and since the maximum liability amounts, which have remained unchanged for more than 30 years, are widely considered insufficient, an amendment was adopted on 27 September 2012 to remedy these deficits: the CLNI 2012.
In June 2018 the Netherlands became the fourth country to ratify the CLNI 2012 after Serbia, Hungary and Luxembourg, thus reaching the minimum number required for the CLNI 2012 to enter into force. At the same time, the Netherlands, Luxembourg and Germany terminated the CLNI 1988 with effect from 1 July 2019. The CLNI 2012 can therefore enter into force on 1 July 2019.
With the termination by three out of four contracting states, the CLNI 1988 as a treaty ceases to exist. However, Article 126 of the Swiss Maritime Navigation Act declares the CLNI 1988 integrally applicable, thus declaring it part of domestic law. Therefore, for the time being, the CLNI 1988 will remain applicable in Switzerland. It remains unclear whether the reference to the CLNI 1988 is to be understood as a reference to the convention with its limited geographical scope or to the system of liability as such.
By means of contemporary interpretation, the reference should be interpreted in such a way that the limitation system already applies to the entire network of major European waterways of international importance. However, if Switzerland becomes a signatory to the CLNI 2012, Article 126 of the Swiss Maritime Code would be amended accordingly and the CLNI 1988 would officially cease to exist in Switzerland.
For further information on this topic please contact Stephan Erbe at ThomannFischer by telephone (+41 61 226 24 24) or email (email@example.com). The ThomannFischer website can be accessed at www.thomannfischer.ch.
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