Inland Waterway Transport
1. Development and importance
Inland waterway transport is probably the oldest means of transport having some economic importance. The Euphrates and Tigris in Mesopotamia, the Nile and large Chinese rivers were already used for navigation in ancient times; and the first navigable canals were built in Egypt at about 2200 BC and in China between 481 and 221 BC. The Romans conducted military and civil navigation on the Rhine, the Rhône, the Loire, the Seine and the Danube. Because of the poor and unsafe conditions of the unpaved roads in the Middle Ages, the merchants of the Hanseatic League (Hanseatic League and pre-modern commercial law) used inland navigation vessels for the transport of their goods. Commodities such as drapery, silk, spices, wine, weapons and salt were transported by guilds which had an exclusive right to conduct the transport on certain rivers (so-called market navigation). Downstream sailing or rafting was practised, whereas upstream the vessels were hauled on towpaths. After the invention of the lock in the middle of the 15th century, some hydrologic problems of river navigation were resolved and networks of inland waterways developed all over Europe.
Nowadays, mainly bulk goods such as mineral oil, coal, fertilizer, grains, sand and gravel, ores and scrap, iron and steel products as well as semi-finished and finished products are transported at comparatively low cost on inland waterways if time is not of the essence. But in north-western Europe intermodal or short distance hinterland transport of containers on inland waterway vessels has significantly increased after the containerization of sea transport began in the 1960s. Transport of tourists on inland waterway excursions has also been flourishing for many years. Hence the European Commission regards inland waterway transport as an ecologically favourable and safe means of transport with a growth capacity. However, the situation of inland waterway transport on the Danube in particular and on other middle and eastern European waterways could further improve.
2. Inland waterway transport regimes
Inland waterway transport is carried out on inland waterways, ie on rivers, canals, lakes and inshore waters, with vessels which because of their design and construction are not designated for maritime navigation. Seagoing vessels navigating on inland waterways that are designated under national law as maritime waterways carry out maritime transport. This takes place, eg, on the lower course of the Rhine as well as the Danube linked to the sea and on the Elbe between Hamburg and the North Sea. The carriage of goods on national waterways by vessels registered in the country is subject to domestic transport law which, however, has normally implemented international rules and regulations. If a transport is carried out in at least two states, international rules and regulations apply. Such rules have been stipulated since the 19th century in particular for the Rhine and its estuaries and for the Danube.
Freedom of navigation on the Rhine, which had already been agreed upon in 1814, was confirmed at the Congress of Vienna in 1815. In 1816 a Commission of the riparian states held their first meeting in Mainz and in 1831 a Convention regarding Rhine navigation was signed. The Commission was transferred to Mannheim in 1861, where the Revised Convention for Rhine Navigation was signed by six riparian states on 17 October 1868. This Convention set forth the general regime that is still in place for the navigation of the Rhine and its estuaries. It provides for the freedom of navigation from Basel to the open sea for vessels of all nations for the transport of merchandise and persons. Hence all technical, administrative or juridical obstacles to navigation shall be avoided or minimized as far as possible. Moreover, it envisages equal treatment and the application of uniform rules for any person navigating the Rhine. Vessels flying the flag of a contracting state are deemed to belong to the Rhine navigation. They have the right to transport goods and passengers between free ports open to Rhine trade and other ports and unloading places designated by the riparian states. Other vessels shall be authorized to carry out such transport under the conditions laid down by the Central Commission. The transit of any merchandise on the river shall be unrestricted from Basel to the open sea unless health measures make exceptions necessary. Goods in transit shall be exempt from dues. Even before the customs union had been established, the passage on the Rhine was allowed without incurring customs duties or any inspection of the cargo if the ship’s hold was officially sealed.
Under the Mannheim Convention the Central Commission for Navigation on the Rhine (CCNR) has been established in Strasbourg. It organizes joint conferences on matters concerning the navigation of the Rhine, examines complaints, deliberates on proposals made by riparian governments and renders judgments in cases of appeal against the judgments of Rhine navigation tribunals. These tribunals are set up in the riparian states. They have jurisdiction in criminal matters in cases of an infringement of regulations regarding navigation and river police. In civil matters they decide, inter alia, disputes over dues for pilots, ports and wharfs and about damages caused by vessels or rafts during their voyage. Jurisdiction lies with the tribunal of the area in which payment is due or where the damage has occurred. If the claim exceeds 20 SDR (Special Drawing Rights as defined by the IMF), the parties may lodge an appeal to the CCNR or to a High Court of the riparian state in which the judgment has been delivered. Judgments of a Rhine navigation tribunal may be enforced in all states which are contracting parties to the Mannheim Convention, with due observance of the procedure prescribed in the domestic law where they shall be enforced.
The Strasbourg Convention of 20 November 1963 amending the Revised Convention for Rhine Navigation signed at Mannheim 1868 entered into force for the five riparian states of the Rhine and the United Kingdom. It contains essentially the same rules and regulations as the Mannheim Convention of 1868. Four protocols have been added to it with the last occurring in 1989.
Special regulations for transport on the Mosel (Moselle) were laid down in the Convention on the Canalization of the Mosel, signed in Luxembourg by France, Germany and Luxembourg on 27 October 1956. The Convention, which has been amended by protocols in 1974, 1983 and 1987, was the basis for making this tributary of the Rhine navigable between Diedenhofen and Koblenz for ships of up to 1,500 tons. It contains regulations regarding an international regime for navigation between Koblenz and Metz including navigation dues on this canalized part of the river. Vessels of all nations are free to use public ports and transshipment points and to navigate upstream or downstream carrying merchandise and persons, provided that they comply with the rules of the Convention and observe the provisions on the maintenance of general safety and further provisions agreed between the contracting states. As regards customs regulations, provisions relating to passports, police, public health, social security, ship inspection and manning, the Luxembourg Convention refers to the provisions of the Revised Convention for Rhine Navigation. Similar to the situation on the Rhine, Mosel navigation tribunals and the Mosel Commission at Trier have been established. The tribunals have jurisdiction on criminal matters relating to navigation and actions of the river police. They also decide on disputes regarding, inter alia, the payment or amount of dues for pilotage, cranage or weighing and on dues for ports and wharfs and on claims in respect of damage caused by boatmasters during a voyage or in a collision. Judgments of the tribunals are again enforceable in the contracting states. They may be submitted on appeal to the Mosel Commission or to a high court in the state where the judgment has been delivered.
After the Crimean War the Treaty of Paris of 1856 opened navigation on the lower Danube for the flags of all nations on the basis of equal treatment. An international regime was established for its navigation which has been extended upstream by a convention signed in Paris on 23 July 1921. Today the Convention regarding the regime of navigation on the Danube, signed at Belgrade on 18 August 1948, applies with an additional protocol of 1998 to the international transport by inland navigation vessels on the whole navigable river between Ulm and the Black Sea. It provides for the freedom of navigation on the Danube for nationals, vessels of commerce and goods of all states based on equality with respect to port and navigation charges and conditions for merchant shipping. The Danube Commission in Budapest, which consists of delegates from 11 Member States, established a uniform system of traffic regulations. It coordinates large-scale developments on the Danube in order to unify administration and regulations and to provide for other matters such as hydrological and meteorological services, sailing directions and navigational charts. The Danube has been linked to the Rhine since 1992 by the Rhine-Main-Danube Canal.
3. Private law conventions concerning inland waterway transport
Under the auspices of the United Nations Economic Commission for Europe (UNECE), a regional commission of the Economic and Social Council, a number of conventions relating to inland navigation have been developed. However, not all of them have entered into force. The first was the Convention relating to the unification of certain rules concerning collisions in inland navigation, prepared at Geneva on 15 March 1960. This convention has been in force since 1966, presently for 13 contracting parties. It is applicable to compensation for damage to either vessels or persons or objects on board which has been caused by collision between vessels of inland navigation in the waters of one of the contracting parties. It also governs compensation for any damage caused by a vessel of inland navigation through the carrying out of or failure to carry out a manoeuvre, or through failure to comply with regulations, even if no collision has taken place. The duty to compensate for damage arises only if the damage is due to fault. There is no legal presumption of fault. The liability shall attach regardless of whether the damage is caused by the fault of a pilot, even if pilotage is compulsory. Actions for compensation for damage must be brought within two years from the date of the occurrence. The Convention does not affect general limitations of the liability of owners or managers of ships or of carriers under international law.
In 1973, the UNECE adopted the Convention relating to the limitation of the liability of owners of inland navigation vessels (CLN) which, however, never entered into force. The same happened to the Convention on the contract for the international carriage of passengers and luggage by inland waterway (CVN) of 1976. Later, the Inland Transport Committee of the UNECE adopted on 10 October 1989 in Geneva the Convention on Civil Liability for Damage caused during Carriage of Dangerous Goods by Road, Rail and Inland Navigation Vessels (CRTD), which had been prepared by UNIDROIT. Signed by two states and ratified by one, also the CRTD never entered into force.
The Strasbourg Convention on the limitation of liability of owners of inland navigation vessels (CLNI), of 4 November 1988, has been ratified by Germany, Luxembourg, the Netherlands and Switzerland and has been in force since 1997. The liability of shipowners, charterers, managers and operators of an inland water vessel as well as salvors and any persons for whose act, neglect or default these parties are responsible is limited. Subject to limitation of liability are claims in respect of loss of life or personal injury or loss of or damage to property occurring on board or in direct connection with the operation of the vessel or with salvage operations, and consequential loss resulting therefrom. Damages to property also include damage to harbour works, basins, waterways, locks, bridges and aids to navigation. The limitations of liability also apply to loss resulting from delay in the carriage by sea of cargo, passengers or their luggage. Claims in respect of raising, removal, destruction or the rendering harmless of a ship which is sunk, wrecked, stranded or abandoned are also subject to limitation of liability. The person liable is not entitled to limit his liability if it is proved that the loss resulted from his personal act or omission committed with the intent to cause such loss or recklessly and with knowledge that such loss would probably result.
The Budapest Convention on the contract for the carriage of goods by inland waterway (CMNI), of 22 June 2001, came into force on 1 April 2005. The CMNI establishes certain uniform rules concerning contracts for the carriage of goods by inland waterway. It has 15 States Parties and is applicable to any contract of carriage according to which the port of loading or the place of taking over the goods and the port of discharge or the place of delivery of the goods are located in two different countries of which at least one is a State Party of the Convention. If the goods are carried both on inland waterways and on waters to which maritime regulations apply, the CMNI is applicable unless a maritime bill of lading has been issued or the distance to be travelled on waters to which maritime regulations apply is the greater. The CMNI is applicable regardless of the nationality, place of registration or home port of the vessel or whether the vessel is a maritime or inland navigation vessel and regardless of the nationality, domicile, registered office or place of the carrier, the shipper or the consignee. The carrier shall carry the goods to the place of delivery within the specified time and in the condition in which they were handed over to him. The carrier is exonerated from his liability whenever the damage is the result of acts or omissions of the shipper, the consignee or the person entitled to dispose of the goods. He is also not liable when the loss, damage or delay are the result of handling, loading, stowage or discharge of the goods by the shipper or of legitimate carriage of the goods on deck or in open vessels; furthermore, no liability attaches if damage of the goods is due to their nature, defects in packaging, insufficiency or inadequacy of marks identifying the goods. The carrier is also exonerated in the case of damage related to attempted salvage operations on navigable waters or damage resulting from carriage of live animals, unless the carrier has not taken the measures or observed the instructions agreed upon in the contract of carriage.
The amount of compensation in case of total loss of the goods depends on the value of the goods at the place and on the day of delivery according to the contract of carriage. In the event of partial loss or damage to goods, the carrier shall be liable only to the extent of the loss in value. The value shall be fixed according to the commodity exchange price or, if there is no such price, by reference to the normal value of goods of the same kind and quality at the place of delivery. However, the carrier shall under no circumstances be liable for amounts exceeding 666.67 SDR per package or other shipping unit, or 2 SDR per kilogram of weight, specified in the transport document, of the goods lost or damaged, whichever is the higher. If the package is a container and there is no mention in the transport document of any package or shipping unit consolidated in the container, the liability amounts to 1,500 SDR for the container without the goods it contains and, in addition, 25,000 SDR for the goods which are in the container. Higher liability amounts may be expressly agreed between the contracting parties. The exonerations and limits of liability do not apply if it is proved that the carrier himself caused the damage by an act or an omission, either with the intent to cause such damage or recklessly and with knowledge that such damage would probably result. The limitations of liability are applicable for contractual claims as well as for claims in tort. The actions shall be time-barred after one year commencing on the day when the goods were, or should have been, delivered to the consignee. The suspension or interruption of the limitation period is governed by the law of the country which is applicable to the contract of carriage.
The CMNI also contains regulations for the condition of the ship, the transshipment of goods to other ships, the carriage of goods on deck and the delivery time. The shipper shall be required to pay the amounts due under the contract of carriage and shall furnish the carrier with details regarding the goods and undertake their packaging. Subject to the obligations to be borne by the carrier, he shall load and stow the goods and secure them in accordance with inland navigation practice unless otherwise stipulated in the contract of carriage, and he has to inform the carrier clearly about dangerous or polluting goods and hand over the necessary documents. In the event of immediate danger to life, property or the environment, the goods may be unloaded, rendered innocuous or even destroyed. The shipper shall, even if no fault can be attributed to him, be liable for all the damages and costs incurred by the carrier or the actual carrier by reason of the fact that the required information is missing, inaccurate or incomplete, the dangerous or polluting goods are not marked or labelled or the necessary accompanying documents are missing, inaccurate or incomplete. If it is proven that the fault is attributable to the carrier himself, his servants or his agents, he may not avail himself of the liability of the shipper. If the shipper has failed to perform certain of his obligations, the carrier has the right to terminate the contract and may unload the goods at the shipper’s expense and claim one-third of the agreed freight; or, in addition to any demurrage charge, he may claim a compensation equal to the amount of costs incurred and the loss caused and, should the voyage have already started, a proportional freight for the part of the voyage already performed. The carrier shall issue a transport document subject to the regulations in the convention; a bill of lading shall be issued if so agreed. Until delivery to the consignee, the shipper is authorized to dispose of the goods. He may require the carrier to discontinue the carriage of the goods, to change the place of delivery or to deliver the goods to a consignee other than indicated in the transport document.
The carriage of dangerous goods is subject to numerous special rules of international and domestic law. On the Rhine and the Mosel it has been governed by the Agreement concerning carriage of dangerous goods on the Rhine (ADNR). Now the European Agreement concerning the international carriage of dangerous goods by inland waterways (ADN) applies to the carriage of dangerous goods on inland waterways in Europe. Prepared at Geneva on 26 May 2000 under the joint auspices of the UNECE and the CCNR, it came into effect on 29 February 2008 and has presently 16 contracting parties (as of March 2011). In 2008 the EU extended the application of the ADN to the transport of dangerous goods by inland waterway within or between Member States (Directive 2008/68/EC). The ADN consists of a main legal text and annexed regulations. The regulations contain detailed provisions regarding the international carriage of dangerous goods by inland waterways, requirements and procedures concerning inspections, the issue of certifications of approval, recognition of classification societies, derogations, special authorizations, monitoring, training and examination of experts. The Agreement shall define uniform safety standards for the entire European inland waterway network.
4. European uniform law projects
On the occasion of a legal opinion concerning the Draft Agreement establishing a European laying-up fund for inland waterway vessels and a protocol to the Revised Convention for Rhine Navigation (ECJ, Opinion 1-76  ECR 741), the European Court of Justice (ECJ) dealt with the allocation of rights and duties between the Member States and the European Union with regard to the conclusion of conventions regarding inland waterway transport. In the cases of the Commission against Luxembourg (ECJ Case C-266/03  ECR I-4805) and the Commission against Germany (ECJ Case C-433/03  ECR I-6985), the court held that Member States violated obligations arising out of the EC Treaty when they ratified and implemented bilateral agreements with third states on inland waterway transport without having cooperated or consulted with the Commission.
The NAIADES Action Programme of 2006 aims to promote inland waterway transport within the European Union. It shall exploit the market for inland waterway transport and increase the attractiveness of this means of transport. Markets, the fleet, the image and the infrastructure are to be expanded and improved. It is intended to attract employees by improving employment conditions and qualifying measures. Additionally, the Marco Polo II programme adopted for the period 2007-2013 by Regulation (EC) 1692/2006 provides funding to shift freight transport from road to sea, rail and inland waterways.
A draft European Convention on liability and compensation for damage in connection with the carriage of hazardous and noxious substances by inland waterway (CRDNI), of 27 April 2001, was presented by the association of waterway operators and the insurance industry. Because of the substantial differences between the national regulations, the Central Commission for Navigation on the Rhine supports this draft. In some countries tortious liability is applicable whereas in other countries strict liability applies. Sometimes liability is limited, sometimes it is unlimited. Therefore, the CRDNI aims to unify the civil liability for transport of hazardous goods and the compensation of damage caused by it. Strict liability of the shipowner and a compulsory insurance requirement with a direct action against the insurer are envisaged. However, the draft has not come into effect.
Jürgen Basedow, Der Transportvertrag (1987); Jürgen Basedow, Münchener Kommentar zum Handelsgesetzbuch, vol 7a, 4th book (2000); Walter Müller, ‘Inland Navigation’ in IECL XII (2002) ch 5; Eibe Riedel, Rechtsprobleme bei der Havarie von Binnenschiffen (2006); Thor von Waldstein and Hubert Holland, Binnenschifffahrtsrecht (2007); Krijn Haag, New Developments in the Field of Transport of Dangerous Goods—Presence and Prospects of the CRTD Convention in Jürgen Basedow, Ulrich Magnus and Rüdiger Wolfrum (eds), The Hamburg Lectures on Maritime Affairs 2007 & 2008 (2009).