Spotlight on shipping contracts in Switzerland
All the questions
No commercial seagoing vessel is built in Switzerland.
ii Transport contracts
Ships flying the Swiss flag often perform contracts of carriage governed by the law of another country, usually England.
The main Swiss legislation dealing with contracts of carriage is the Navigation Law, supplemented by the general rules of contract law contained in the Swiss Code of Obligations. Swiss contract law, including transport contract law, is derived from German contract law. Thus, in the presence of gaps, the courts can examine the relevant position according to German case law as well as international trade practice.
The relevant provisions are to be interpreted in accordance with the Protocol amending the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading of 1968 (The Hague-Visby Rules) and its various protocols, which have been imported into Swiss law. The United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea 2009 (the Rotterdam Rules) has been signed but has not yet been ratified.
Between receipt of the goods and their delivery, the carrier will be responsible for the loss, total or partial destruction or damage of the goods and any delay in delivery, unless it proves that neither the carrier nor the captain, crew or other service persons on board the vessel, or persons assisting the carrier in carrying out the transport, are responsible.
In the event that the loss, destruction or damage to the goods or the delay results from the acts, omissions or negligence of the master, pilot or other persons working on board the vessel in the course of operations navigation or technical, or if it is due to a fire, the carrier cannot be held liable, provided there is no direct fault on his part. Measures taken primarily in the interest of the cargo are not considered to be part of the technical operation of the ship.
In the event that claims for loss, destruction or damage to goods or delay are made against the captain, crew or other persons working on the vessel, or persons assisting the carrier in carrying out the transport, they may avail exemptions from, and limitations of liability on the same basis as the carrier, regardless of the legal basis on which the claim is based, unless the damage was caused intentionally or recklessly.
The carrier will not be responsible for the loss, destruction or damage of the goods or the delay if one of the following causes is proven:
- force majeure, accident, danger or incident at sea or in other navigable waters;
- act of war, riot or public disturbance;
- an official measure such as forcible confinement, quarantine or any other limitation;
- a strike, lock-out or any other impediment to work;
- the saving (successful or attempted) of life or property at sea or any other justified deviation from the course of the voyage which does not constitute a breach of the freight contract;
- an act or omission of the consignor, consignee or owner of the goods, their agents or representatives;
- reduction in volume or weight or other damage resulting from hidden defects in the goods;
- the particular nature or particular condition of the goods;
- the inadequacy of the packaging, or the inadequacy or imprecision of the markings; and
- latent defect in the vessel which cannot be discovered by exercising normal due diligence.
The liability exemption will not apply if it is proven that the damage is due to the carrier or his auxiliaries. “Auxiliary” in this sense means the master, crew or other persons working on the vessel or persons assisting the carrier in carrying out the transport.
In the event that the charterer is responsible for the loss or complete destruction of the goods, he will only be liable to pay the value of the goods at the place of destination on the day the vessel is or should be discharged according to the contract. freight. . The value of the goods will be determined by the market price, or in the absence of such a value, according to the common value of goods of the same type or character.
In the event of partial destruction, damage or delay, the charterer will only be required to pay the amount of the reduction in value of the goods without other damage, but in no case more than in the event of total loss.
Subject to damage caused intentionally or recklessly, the carrier shall in no case be required, whatever the legal basis on which the claim is based, to pay damages in excess of those stipulated in the Ordinance on navigation. These amounts are calculated according to a rate determined either for each unit or other transport unit, or for each kilogram of gross weight of the goods lost or damaged, whichever is greater.
The carrier cannot avail himself of these maximum amounts in the event that the shipper has expressly indicated the particular nature and the maximum value of the goods before the start of loading, and this value, which can be refuted by the charterer, has been listed in the bill of lading, or if maximum liability amounts have been agreed.
Any agreement in the bill of lading which has the direct or indirect object of excluding or limiting the legal liability of the carrier for the destruction, loss or damage of the goods, or of reversing the burden of proof of such liability shall be be unenforceable unless the contract mentions the carrier’s liability for the period preceding the loading of the goods and after their unloading.
In the event that a container, pallet or similar device is used to collect goods, each part or transport unit mentioned in the bill of lading contained or appearing on such a device is considered to be a separate part or transport unit; in all other cases, the whole device will be considered as a part or a transport unit.
The carrier and its auxiliary staff taken together cannot be held responsible for an amount greater than the maximum amount for which the carrier would be solely responsible.
Neither the carrier nor his auxiliaries may avail themselves of the exemptions and limitations of liability if it is proved that they caused the loss or damage by an act or omission committed with the intention of causing loss or damage. , or by acting recklessly knowing that loss or damage could occur.
The authorized holder of a bill of lading has the right to receive the goods from the carrier who issued the bill of lading and, therefore, has the right to sue the carrier if the goods are not delivered.
Anyone who demands delivery of the goods will become the debtor of the freight and other debts attached to the goods, but the consignee will only be liable for demurrage and other debts accrued at the port of loading if these debts are recorded in the bill of lading, or if the receiver has otherwise discovered the claims.
The provisions of the York Antwerp Rules 2016 apply to general average claims.
iii Freight complaints
See section IV.ii for a general overview. It is possible to incorporate the terms of the charter party into other agreements, provided that the parties to the agreement have had an opportunity to know the terms of the charter party. If these conditions are widely available to the general public, as with standardized charter party forms, the standard will be somewhat lower, especially if the parties have commercial experience. In these conditions, it is suggested that the parties can be considered as having incorporated an arbitration clause. The applicability of a forfeiture clause probably depends on the facts. If the parties to the bill issued are experienced business parties, there is a good chance that the clause will be respected.
iv Limitation of liability
Under the Navigation Act, two limitations of liability are possible. First, Swiss federal law limits the liability of shipowners, as well as that of the shipper and the carrier, by applying Articles 1 to 13 of the 1976 Convention on the Limitation of Liability for Maritime Claims (LLMC 1976 Convention). Accordingly, liability may be limited for two types of claims: for loss of life or personal injury and for property claims. Limits under the LLMC Convention are based on the tonnage of the vessel.
The second area of liability covered by the Navigation Act concerns “oil loss or damage”. This is governed, as stipulated in Article 49, by the 1969 International Convention on Civil Liability for Oil Pollution Damage, replaced by the 1992 Protocol (the CLC Convention).
In the case of the limitation of liability under both the 1976 LLMC Convention and the CLC Convention, the fault of the shipowner, operator, charterer or carrier which justifies the exclusion of the limitation of liability must be proved by the party claiming the existence of the fault.
In case of limitation of liability for loss, partial damage or complete destruction of the goods, the liability is limited to the full value of the lost or damaged goods. River operators (most often in the case of barges on the Rhine) can limit their liability in accordance with the Strasbourg Convention of 1988 on the Limitation of Liability in Inland Navigation, which is incorporated into Swiss federal law. The only caveat is that, in the case of push boats rigidly connected to barges pushed in convoy, the liability will be calculated “according to the engine power of the push boat and the carrying capacity of the pushed barges”.