New Developments in the Field of Transport of Dangerous Goods: Presence and Prospects of the CRTD Convention

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1 New Developments in the Field of Transport of Dangerous Goods: Presence and Prospects of the CRTD Convention I. Oil Pollution Damage: CLC and IFC...9 II. Hazardous and Noxious Substances: HNS...11 III. Dangerous Goods: CRTD...13 IV. The Dutch Solution: Domestic Law in Book 8 and 6 CC...16 V. Restoration of the CRTD...18 VI. Conclusions...20 One of the main functions of law is that it should reflect the social and economic reality of daily life. It is the same in international law. In this regard, let us speak plainly. Oil and other potentially troublesome substances are still the driving forces behind worldwide economics, and hence play a pivotal role in shaping modern society. However, we dislike the risks associated with international commercial transactions since they are the results of technical deficiencies and human failures. The question is: how do we deal with these risks from a judicial point of view? Before emphasising new developments regarding the CRTD Convention (civil liability regarding the inland carriage of dangerous goods), 1 it is first necessary to examine the historical legal background of the transport of hazardous goods. I. Oil Pollution Damage: CLC and IFC Liability for the carriage of oil and dangerous substances became an internationally recognised issue when the Liberian oil tanker Torrey Canyon ran aground on the rocks of the Scilly Islands in Since then, the Torrey Canyon incident 1 Geneva Convention on Civil Liability for Damage Caused during Carriage of Dangerous Goods by Road, Rail and Inland Navigation Vessels of 10 October 1989, < J. Basedow et al. (eds.), The Hamburg Lectures on Maritime Affairs 2007 & 2008, Hamburg Studies on Maritime Affairs 16, DOI / _2, Springer-Verlag Berlin Heidelberg

2 10 has become a legal milestone. The International Convention on Civil Liability for Oil Pollution Damage (CLC, Brussels 29 November 1969) 2 was drawn up quickly by the board of IMCO (now IMO, International Maritime Organisation 3 ) in 1969, followed in 1971 by the supplementary International Convention on the establishment of an International Fund for Compensation for Oil Pollution Damage (Fund Convention, Brussels 18 December 1971). 4 The CLC creates a risk liability for owners of tankers that spill oil, which results in compensation that is primarily linked to the gross tonnage of the ship. In favour of the persons who suffered damage caused by the oil pollution, the ship-owners liability is covered by compulsory insurance that provides the possibility of a direct action against the insurer. As a second tier, the supplementary Fund Convention can compensate above the thresholds of the CLC those who have suffered damage caused by oil that spilled from the tanker. The Fund is furnished by contributions from the oil industry. The old regime of the CLC and IFC combination has been replaced by the London Protocols of 1992, which entered into force in The liability limits in the aforementioned Conventions were raised significantly, as a result of the shipping disasters known worldwide, such as the Amoco Cadiz (1978), the Aegean Sea (1992) and the Erika (1999). The amendment of the 1992 Protocols stemming from 2000, which entered into force in 2003, has raised the compensation limits to 90 Million SDR for the ship-owner under the CLC and to the amount of 200 Million SDR under the IFC. The latter includes the sum actually paid by the ship-owner or to his P&I club. After the accident involving the tanker Prestige in 2002, 5 the Supplementary Fund Protocol, which provides a third tier of compensation of up to 750 Mio SDR, was adopted in May 2003 and entered into force in Moreover, since 1969 the voluntary agreements Tovalop (Tanker Owners Voluntary Agreement Concerning Liability for Oil Pollution) and Cristal (Contract Regarding a Supplement to Tanker Liability for Oil Pollution) have been established by tank owners as supplementary instruments to the CLC and the IFC. However, the voluntary agreements have not been renewed since the 1992 Protocols. Later, in 2006, voluntary but legally binding agreements were established by the ship-owners P&I clubs in order to address the imbalance of the financial burden created by the establishment of the Supplementary Fund: these were the Small Tanker Oil Pollution Indemnification Agreement (STOPIA) and the Tanker Oil Pollution Indemnification Agreement (TOPIA). Through these agreements, the 1992 Fund may be reimbursed up to a certain amount for incidents involving Tractatenblad van het Koninkrijk der Nederlanden (Trb). 1970, 196; Trb. 1971, 77. Website: < Trb. 1970, 196; Trb.1971, 77. Cf. about the Prestige disaster, Pulido, in: Pollution of the Sea: Prevention and Compensation, ed. by Basedow/Magnus (Hamburg 2007) p For the integrated texts and last developments of the 1992 Protocols, cf. the Explanatory Note of the IOPC Fund of January 2008, available at <www. iopcfund.org>.

3 Presence and Prospects of the CRTD Convention 11 small oil tankers, while the 2003 Supplementary Fund may be reimbursed for up to half of the compensation paid for claims by the Supplementary Fund. 7 More than 100 States are party to both the CLC and the IFC. As a result, this compensation system in the case of oil pollution caused by oil tankers seems to operate worldwide in practice. Its two-tier system and since 2005 even a thirdtier system, a genuine package deal between operational carriers and the oil industry apportioning the risks of oil pollution creates a fair balance by spreading the risks of oil transport by sea between the ship-owners and the oil industry. The system as such has been strongly inspired by economical and practical considerations rather than by justice. The comprehensive and uncomplicated system is based on four legal pillars of private law: risk liability, channelling of liability, limitation of liability and compulsory insurance. This transparent construction has been functioning for more than 30 years and in that time has managed to raise both the amounts of compensation owed by the ship-owner as well as those owed by the Fund in order to keep them in accordance with the growing market economy and the increase of transport volumes. This has been a considerable feat. II. Hazardous and Noxious Substances: HNS It is generally known that oil pollution is a severe disaster, with dire and prolonged consequences for the marine environment; oil, however, is unfortunately only one of many substances that pollute. The list linked to the HNS Convention 8 numbers over a hundred products, amongst them liquid substances, liquefied gases, and dangerous, hazardous and harmful materials carried in packaged form or in bulk, like oils and chemical products. The HNS Convention, also founded by IMO, is based upon the CLC and the IFC system and also employs the two-tier system, albeit within the same Convention. 9 The HNS Convention covers both pollution damage and the risks of fire and explosion (also in relation to persistent oils), including the loss of life or personal injury as well as the loss of or damage to property. The following types of damage are covered by the HNS Convention: Loss of life or personal injury on board or outside the ship; Loss of or damage to property outside the ship; Cf. on the Funds in more detail, Jacobson, The International Oil Pollution Compensation Funds and the International Regime of Compensation for Oil Pollution Damage, in: Pollution of the Sea: Prevention and Compensation, ed. by Basedow/ Magnus (Hamburg 2007) p International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, London, 3 May 1996, < For a recent publication on the HNS, Güner-Özbek, The Carriage of Goods by Sea (Hamburg 2008) p. 241 et seq.

4 12 Economic loss resulting from contamination of the environment in the fishing, mariculture and tourism sectors; Costs of preventive measures like clean-up operations at sea and on shore; Costs of reasonable measures for restoration of the environment. The liability of the ship-owner is strict-based, the compensation limit runs towards 100 Mio SDR and insurance is compulsory. The amount of the HNS Fund is 250 Mio SDR. Contributions to be made to the HNS Fund are split into several accounts relating to specific substances: a general account, an oil account, and LNG and LPG accounts. These contributions are to be paid by the first (physical) receivers (mostly chemical goods terminals) of hazardous and noxious substances. 10 Parties who physically receive hazardous and noxious substances on behalf of a third party, storage companies for instance, are allowed to designate that third party as the receiver in their place. 11 In addition, States are allowed to establish their own definition of a receiver under national law as an alternative if the total of contributions paid equals the amount of the contributions that would have been paid under the Convention definition of the physical receiver by a State making use of this option. This grants States the flexibility to implement the HNS Convention in conjunction with the existing national law, without giving any State the possibility of obtaining an unfair commercial advantage. The liability exceptions have also been derived from the CLC, with the important addition that the owner shall also be exonerated from liability and the obligation to pay compensation under the HNS Convention if the shipper or any other person failed to inform the carrier of the hazardous and noxious nature of the substances to be carried. In the event that the ship-owner is exonerated, the HNS Fund will pay compensation, except when the damage resulted from an act of war, hostilities or civil war. The pillars of the CLC have also been incorporated into the HNS system: the channelling of strict-based but limited liability and compulsory insurance. Thus, the HNS Convention is largely modelled on the existing CLC system and the IFC 1992 system. Generally speaking, one can even say that the HNS Convention is a copy of those systems. Unlike the CLC and the IFC, however, after 10 years the HNS Convention has still not entered into force. Becoming operative requires ratification by at least 12 States, under the condition that four States must each have a registered ship s tonnage of at least 2 Mio units of GT and contributors from States that have ratified the Convention must receive more than 40 Mio tonnes of cargo and/or bulk under HNS provisions. Thus far, only nine States, not being member signatory States, have ratified the HNS Convention. 12 Another three ratifications are required for its entry into force. Moreover, four of the 12 ratifying States need to receive at least 2 Mio units of gross tonnage of hazardous and noxious goods. One of the major problems concerns the contributions of the receiving chemical industry, mainly because there are difficulties in creating a well-founded, practical Art.1.4 (a) HNS. Art.1.4 (b) HNS. See <

5 Presence and Prospects of the CRTD Convention 13 and fairly distributed capacity system. 13 Despite intense negotiations, a final solution has not yet been found. Nevertheless, there is widespread and keen international interest in making the HNS Convention operative. For the above reason, the European Council, by means of its decision of 18 November 2002, insisted on moving the EU States forward by allowing them to ratify the Convention subject to the clause that the provisions of the HNS Convention concerning recognition and enforcement of judgments should be exercised in line with the existing rule of law of the European Community (Brussels I Regulation 2001). In addition, the provision on jurisdiction over the HNS Convention will and cannot be changed. 14 The hope for ratifications within a reasonable period of time as mentioned in the decision of the European Council of 30 June 2006 has turned out to be ill-founded. The European Parliament recently also stressed the importance of the HNS Convention in its amendment of 29 March 2007 by implementing the HNS Convention expressly into the framework of the Draft Directive concerning the legal liability and financial security of ship-owners. 15 However, as part of the proposal Directive of 29 October 2007, which is to incorporate the London Limitation of Liability for Maritime Claims Convention in its 1996 version into Community Law, 16 the European Commission does not want a solidarity fund aimed at compensating victims of damage caused by ships that have no financial guarantee in the event of an accident. The proposal establishes a compulsory insurance that does not exist in the LLMC and obliges owners to hold a certificate that attests to this insurance. The Commission considers that it should not be responsible for managing financial guarantee certificates. It should be noted here that both the CLC and the HNS have the status of specialised law in comparison with the general London LLMC. From the perspective of transparency vis-à-vis these complicated maritime regulations, it is hard to believe that the acceleration of the ratifying procedure will increase by incorporating these subjects into the spider web of EU Community law. III. Dangerous Goods: CRTD The origins of the CRTD (the French acronym of the Convention) 17 date back to 1972, when the government of the Netherlands requested UNIDROIT in Rome to examine the feasibility and preparation of a new convention concerning civil Cf. Güner-Özbek, (supra n. 9) p. 274 et seq. Art. 38 HNS rules that only the court of the State where the damage has been caused will have jurisdiction over actions for compensation against the carrier. COM(2005) 293 final. COM(2007) 674 final. Geneva Convention on Civil Liability for Damage Caused during Carriage of Dangerous Goods by Road, Rail and Inland Navigation Vessels 10 October 1989, <

6 14 liability for damage resulting from the carriage of dangerous goods by road. 18 Due to the explosion of a truck carrying propane gas near a campsite in Los Alfaques (Spain) in 1978, legal interest appeared to have been awakened. There is a striking resemblance between this explosion and the Torrey Canyon disaster that led to the swift preparation of the CLC, as mentioned above. Since 1979, carriage by rail and inland waterways has also been involved, thanks to a recommendation by the Inland Transport Committee of the UNECE. 19 At the end of the 1980s, the Draft Convention was prepared and presented by a committee of government experts and was adopted in The primary aim of the CRTD is to guarantee prompt and adequate compensation to the victims of damage resulting from the carriage of dangerous goods. The conditions are similar to those regulating compensation for oil pollution resulting from carriage by sea. Hence, it is logical that the CRTD is largely modelled on the principles of the CLC, as is the HNS Convention. The four principles are (a) risk-liability of the carrier (i.e. the person who controls the use of the vehicle on board which the dangerous goods are carried); (b) channelling of liability, i.e. no claims for compensation for damage can be brought against the servants and agents, the pilot, the owner, the hirer, the charterer or the operator provided that they are not the carrier as described under the definition and the salvage operator; (c) limitation of liability; rail and road carriage liabilities are limited to the amount of 30 Mio SDR, while the liability for inland navigation is limited to 15 Mio SDR; and (d) the system is guaranteed by its tailpiece, which is the compulsory insurance that provides the victim with a direct action against the insurer. Let us investigate in more detail whether these pillars of the system actually achieve their goal of providing a prompt and adequate compensation system. Ad (a). The concept of risk liability prevents laborious debates about the measure of carelessness. 20 This risk liability is, however, not absolute: the carrier of the vessel is not liable if the damage is the result of (a) acts of the enemy or unavoidable and exceptional natural occurrences; (b) the intent of a third party (non-auxiliaries of the owner of the vessel) to cause the entire damage (an act or a failure to act); or (c) the failure of the consignor (or any other party) to inform the carrier and his auxiliaries about the dangerous nature of the substances, and about which neither the owner of the vessel nor his auxiliaries needed to have been aware. Moreover, if the carrier succeeds in proving the damage resulted from the intent to cause it or from the negligence of the person who has suffered the damage, the carrier may also be relieved of his liability with respect to that person. With regard to the scope of the regulation, it is important to stress that the period of carriage is not restricted to the period the goods are on board; it also includes the period of loading and discharging the goods. One should bear in Evans, Explanatory Report on the Convention on Civil Liability for Damage Caused during Carriage of Goods by Road, Rail and Inland Navigation (CRTD), Uniform Law Review 1991, p. 76 et seq. United Nations Economic Committee for Europe. Evans (previous note) p. 85.

7 Presence and Prospects of the CRTD Convention 15 mind, however, that for practical reasons the carrier can delegate the task of loading and discharging to the consignor or consignee by making use of contractual before and after clauses, which is allowed under the Hague-Visby Rules. If the carrier proves the damage has been caused during the period of loading or discharging under supervision of the consignor or consignee, he may be relieved of liability. In that case, liability shifts to the mentioned persons. In my opinion, this may be a weak element in the liability provision, because it can be argued that the other party is not likely to be a suitable substitute debtor for the victim since adequate insurance at the level of the Convention is probably missing. Ad (b). Channelling the liability towards the carrier could be justified by the fact that he is the person in control of the movement of the goods in transit, being the person most identifiable by victims and usually familiar with the insurance policy. During CRTD negotiations, the objection submitted by the road industry was that it would be unfair to burden only the carrier with liability. Indeed, this makes the CRTD different from the two-tier systems of the CLC and HNS Conventions. The reason for the missing second tier, however, is purely economical. It would be nearly impossible to install a fund, because normally the goods of more than one shipper will have been carried simultaneously in a certain vehicle which makes it difficult to prove which goods caused the damage. 21 Moreover, it would be unpractical as it would lead to double insurance premiums being paid by both the carrier and every single shipper. Hence, one may say that the concept of combining channelled liability with strict liability is a convincing argument vis-à-vis the interests of the potential victims. Ad (c). The concept of limitation of liability is broadly accepted in the field of the international carriage of goods, but it is in certain ways arbitrary. Unlike the CLC and the HNS, but compatible with the system of the London Limitation of Liability Convention for Maritime Claims (1996) as well as the Strasbourg Convention for Limitation of Liability in Inland Navigation (1988), claims can be divided into those involving material damage and those involving personal damage. The limitation can only be invoked by the carrier on the condition that he has furnished a special fund with the appropriate sum. The Strasbourg CLNI Convention also provides States with the opportunity to create a special dangerous goods fund by way of a reservation. Most countries, including Germany as well as the Netherlands, have accepted the reservation in their ratification of the CLNI and have installed special funds; these have been doubled or even tripled when it comes to environmental damage or to personal damage and loss of life. The CRTD differentiates between the various personal damage and material damage funds, and a different amount for each has been established: 18 or 12 Mio SDR for rail and road carriage, and 8 or 7 Mio SDR for inland navigation. We must keep in mind, however, that the extra-contractual (third-party) strict liability of the CRTD is brand new for these modes of transport (road, rail and inland navigation). Indeed, it may be argued that marketing dangerous goods creates several risks, in principle to be endured by the manufacturing industry (e.g. chemical industry). Of course, generally speaking, that industry 21 Evans (supra n. 18) p. 95.

8 16 already bears the burden of product liability and other liability provisions under European Law. Be that as it may, the concept of a second tier containing funds to be levied by the receiving industry is not feasible. To achieve the aim of the Convention, which is to compensate those who suffer damage resulting from the carriage of dangerous goods, the drafters had no option other than to burden the carrier with the risks. Ad (d). From the very beginning of the work of revising the CRTD, it was apparent that the CRTD could only achieve its aim of ensuring adequate compensation for victims if the liability regime were to be backed up by a system of compulsory insurance or alternative financial security. From a carrier s point of view, which was shared by the insurance market, one can imagine there was a legitimate concern that obtaining insurance coverage to the amounts of 30 and 20 Mio SDR was not possible under reasonable conditions. 22 The limitations could be lowered if a supplementary fund were to be established. Again, a supplementary fund as it is operative under the CLC could not be implemented due to the number of shippers, the goods to be transported, the many industries involved and the variety of substances. This missing link can be considered a weak element in the CRTD structure and framework. To me, the only solution would be for the European Commission to create a solidarity fund to be furnished by States in proportion to their import quota. However, such an administrative operation could easily jeopardise the transparency of the CRTD framework. Moreover, the symptomatic stagnation of the effort to render the HNS Convention operative emphasises the complexity of collecting the indispensable amounts from the receivers of dangerous goods. The CRTD was adopted in 1989, but currently, though five ratifications are required, only two States Germany and Morocco have signed, and only Liberia has acceded (Contracting State). Why have most States shown no interest at all? Before looking for possible answers to this question, I would like to take a step aside and review the Dutch solution, in which the Netherlands did it their way. IV. The Dutch Solution: Domestic Law in Book 8 and 6 CC It may be of interest to know that the CRTD system was incorporated in 1994 in the 8 th Book of the Dutch Civil Code for domestic carriage. The Dutch Government was of the opinion that the first concern of the carrier should be the risk of damage to the environment as well as to persons, resulting from the carriage of dangerous goods. Since the concept of risk liability was broadly accepted in the New Civil Code in 1992, the CRTD concept was equally suitable for insertion into Dutch civil law. At this point I would like to add four comments. 1. A remarkable extension of the CRTD regime needs to be mentioned. The scope of application is not restricted to the carriage by road, rail and inland waterways: it also covers the carriage of dangerous goods by sea. Therefore, one could say that 22 Evans (supra n. 18) p. 93.

9 Presence and Prospects of the CRTD Convention 17 on the basis of this extension the Dutch law is a predecessor of the HNS Convention. The reason for this legal policy is that there was no convincing argument to make a difference between, on the one hand, carriage by sea and, on the other hand, other modes of transport. Moreover, the shipping industry has long been familiar with third-party liability. 2. Three of the four characteristic pillars of the CRTD system have been incorporated into the Dutch system of transport law: the risk liability of the carrier, the channelling of liability and the limitation of liability. The tailpiece of the compulsory insurance, however, appeared to be a stumbling block. This seems to be an extremely critical point as the primary aim of the regulation is to provide the victim with an adequate and direct system of compensation to be paid by the insurer. Strong objections by the road and inland shipping industry were submitted against the CRTD limitation amounts in combination with the compulsory insurance. The objections led to a lowering of the limitations in the case of strict liability of the road and rail carrier: 7.2 Mio SDR for loss of life or personal damage and 4.8 Mio SDR for material damage, both including the costs of preventive measures. This added up to a total of 12 Mio SDR. 23 A highly remarkable supplementary rule was added: if the victim proves that the damage has been due to the fault of the carrier (as opposed to the no-fault-based risk liability), the CRTD limit of 30 Mio SDR shall apply. It can be said that this escape route to a fault-based liability undermines the basic system of the CRTD regulation. Problems regarding the limitations arising in the road carriage industry could easily be avoided for the shipping industry. Both the owner and the operator of a seagoing ship and the owner or the operator of an inland navigation vessel have the right to invoke the limitation of their liability provided for in the LLMC 1996 or the CLNI 1988, as previously mentioned. In the meantime, the sea carrier may invoke these limits for all maritime claims, including those for damage caused by dangerous goods, so there is little concern on his part. For carriage by inland waterways, however, by the establishment of a special dangerous goods fund 24 the Dutch law doubled and tripled the limits of the CLNI for personal and material damage, respectively. 3. The introduction of compulsory insurance appeared to be a bridge too far, due to the new high limitations for the road and inland waterway industry; they made the insurance market reluctant to provide certificates. The only possible legal solution was to raise the general compulsory insurance ( green card ) upwards to 7 Mio for motor vehicles above 3500 kg. In the end, the resulting guaranteed compensation for damage based upon strict liability in the road industry is about four times lower than the CRDT limitation of 30 Mio SDR. 4. At the same time that the CRTD regulation was introduced into Dutch civil law, the general law on obligations for extra-contractual strict liability was extended to the professional user or depositary of dangerous goods, thus creating for Staatsblad van het Koninkrijk der Nederlanden (Stb.) 1994, 888. Stb. 1996, 587.

10 18 the professional holder a legal position equal to that of the carrier. Therefore, the professional depository is equated to a carrier for the period during which the goods have not yet been loaded into the vehicle but are still under his control. This applies as well to the freight forwarder, the stevedore and all persons who have control over dangerous goods because of a contractual relationship that is related to the contract of carriage; they are liable when these goods cause damage. As the carrier, the depositary can in principle invoke a number of exceptions (art.6:178 CC). However, unlike the same situation under transport law, a professional depositary of this nature does not have the right to limit his liability, so in principle he has to pay compensation in full. This difference between the carrier (book 8 CC) and the depositary under general law (Book 6 CC) may lead to a disturbing legal situation in the supply chain of logistic contracts. Let us take the example of a ship that arrives by sea at Rotterdam, where the dangerous goods are discharged from the ship and stored in a warehouse waiting for ongoing transport by road or inland vessel to Germany. If there is an explosion on board the ship, the road vehicle or the inland vessel, the carrier will be liable subject to certain limitations. However, if the incident occurs during the period that the goods are being discharged by the stevedore, or while the goods are stored in a warehouse, the responsible persons (the professional depositees) would be liable without any limitation. Only in very special circumstances might a judge relieve this financial burden, depending on the possible insurance policy of the depositees. 25 V. Restoration of the CRTD Let us now re-examine the question of why most States have shown no interest in the CRTD. To gain further insight into why States still ignore the CRTD and to try at the same time to encourage other States to ratify or to accede, the International Transport Committee of UNECE established a Working Party in 2000 to examine the replies given in the questionnaire that was sent to all delegations, all being members of the International Transport Committee. 26 Replies were submitted by the delegations of Armenia, Austria, Belgium, the Czech Republic, Finland, France, Germany, Lithuania, the Netherlands, Poland, the Russian Federation, Switzerland and Turkey. 27 The experts met in 2001, 2002 and 2003 with representatives of the intergovernmental organisations IRU (International Road Union), EBU (European Barge Union), CENCC (European Conference of Full Distributors), CEFIC (European Chemical Industry Council), CIT Art. 6:109 Dutch Civil Code. Cf. ECE/TRANS/133. ECE/TRANS/WP.15/2001.

11 Presence and Prospects of the CRTD Convention 19 (International Rail Transport Committee) and CCNR (Central Commission for the Navigation of the Rhine), but unfortunately only five States participated. 28 As could be expected, the main obstacles were the high limits in relation to the current capacity of the insurance market. More flexibility was needed, which would mean a severe lowering of the limits in the case of strict liability. In some States, the maximum limits covered by voluntary insurance schemes were six to ten times lower than those of the CRDT. Moreover, the amounts resulting from a few accidents did not even reach 4 Mio SDR (rail), 6 Mio SDR (road) or 125,000 SDR (inland navigation). Otherwise, due to the lack of statistical data in several countries, limits were slightly arbitrary thus far. Once again, the IRU put forward the fact that it would not be fair to shift all liability on to the carrier s shoulders. 29 However, this item appeared to be non-negotiable, since the carrier s third-party liability found in other liability conventions had already been successfully and effectively implemented in civil- as well as in common-law jurisdictions. During the meetings, the concept of splitting the CRTD into several tranches, one for each mode of transport, was vehemently rejected 30 as it would be the kiss of death for the CRTD. Nevertheless, in 2001 the Central Commission for the Navigation of the Rhine (CCNR) launched its own draft regarding liability for damage in connection with the carriage of hazardous and noxious substances by inland waterways. This draft was conceived based on the sceptical notion that the CRTD would never enter into force in its original form. The most remarkable results of the Ad Hoc Meeting in 2003 on the CRTD s revised draft are the following: 1. The main principles of the CRTD have been maintained and both the strict liability of the carrier and the direct action of the victim against the insurer are preserved; 2. The CRTD contains one set of rules for all transport modes (excepting carriage by sea, because of the upcoming HNS Convention, and air carriage); the idea of dividing the CRTD into several tranches, one for each mode of transport, was rejected; 3. The limits of liability were generally considered too high and had to be reduced, depending on the mode of transport, which in concreto means the limits were lessened for road carriage to 12 Mio SDR (7 Mio personal damage, 5 Mio material damage), for rail carriage to 20 Mio SDR (12 Mio personal damage, 8 Mio material damage) and for inland navigation to 7 Mio SDR (4 Mio personal damage, 3 Mio material damage). Thus, when it comes to limitation there is still a minor split-up of the framework; 4. The carrier s compulsory insurance can be dispensed with for a maximum of 6 years if the carrier has permission of the relevant State de Boer, The New Draft CRTD: Modernizing the International Civil Liability and Compensation Regime for the Inland Transport of Dangerous Goods, Uniform Law Review 2004, p. 66. de Boer (previous note) p.58. de Boer (supra n. 28) p. 57, 64.

12 20 Because of uncertainties as to the member States willingness to ratify the new CRTD, the Inland Transport Committee considered it premature in 2004 to adopt the revised text; it was only to be hoped that States, after a careful study of the draft, would demonstrate substantially more interest. 31 Now, three years later, the silence on the CRTD front is still deafening. VI. Conclusions 1. It is clear that the International Transport Committee of the UNECE needs to consult with the several organisations in the transport branch to render the CRTD operative. Although firm steps were taken to overcome the main obstacles, the new draft failed to impress the potential member States. 2. The remarkable lack of interest of most potential member States is, in my opinion, neither due to the legal structure of the CRTD nor to the potential shortcomings of the insurance market; rather, it is attributable to the lack of a real social and economical basis for a system involving compensation for damage resulting from the carriage of dangerous goods based on third-party liability. The question remains: what is the future of the CRTD? The possibility of a slow disappearance into history books should not be discounted; the CRTD could be following the path of many former drafts in the broad field of transport law. What would remain is a stillborn child, whose existence will only be honoured by a glance at the Dutch Civil Code. In a sense, one may say that the CRTD has been a Dutch brainchild from the very start. However, I wonder whether perhaps the Netherlands will become a place of pilgrimage for that very reason. The only way out of this scenario would be a revival of interest in the CRTD if the HNS Convention entered into force. Although the experts involved in HNS negotiations are hopeful, I fear that hope alone is not enough to alter a more realistic and sceptical view with regard to the future of the CRTD. Or is it too cynical to think that the CRTD could only come into being in the aftermath of a new Torrey Canyon disaster? Only time will tell. 31 For the text of the New Draft, see Uniform Law Review 2004, p

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