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Article Comparison - Convention on Civil Liability for Damage Caused During Carriage of Dangerous Goods by Road, Rail and Inland Navigation Vessels

Article 11

1. The carrier may constitute a fund with the court or other competent authority of any one of the States Parties in which an action is brought under article 19. If such action under article 19 has not been brought in a State Party, then the carrier may constitute his fund with the court or other competent authority of any one of the States Parties referred to in article 19, paragraph 1 (a), (b) or (c), or in subparagraph (d) provided that the carrier and all the victims have their habitual residence in the territory of the same State Party. The fund shall be constituted in the sum of the amounts set out in article 9 as applicable to him, together with interest thereon from the date of the incident until the date of the constitution of the fund. Any fund thus constituted shall be available only for the payment of claims in respect of which limitation of liability may be invoked under this Convention.

2. A fund may be constituted either by depositing the sum or by producing a bank guarantee or other guarantee, admitted by the legislation of the State Party where the fund is constituted, and considered to be adequate by the court or another competent authority.

3. Any person providing the carrier with insurance or other financial security under this Convention shall be entitled to constitute a fund in accordance with this article on the same conditions and having the same effect as if it were constituted by the carrier. Such fund may be constituted even in the event that according to article 10, paragraph 1 the carrier shall not be entitled to limit his liability, but its constitution shall in that case not prejudice the rights of any claimant against the carrier. The fund shall be deemed to be constituted by the carrier.

4. Subject to the provisions of article 9, paragraph 3, the fund shall be distributed among the claimants in proportion to their established claims against the fund.

5. If, before the fund is distributed, the carrier or any person providing him with insurance or other financial security has as a result of the incident paid compensation for damage, such person shall, up to the amount he has paid, acquire by subrogation the rights which the person so compensated would have enjoyed under this Convention.

6. The right of subrogation provided for in paragraph 5 of this article may also be exercised by a person other than those mentioned therein in respect of any amount of compensation for damage which he may have paid but only to the extent that such subrogation is permitted under the applicable law.

7. Where the carrier or any other person establishes that he may be compelled to pay at a later date in whole or in part any such amount of compensation with regard to which such person would have enjoyed a right of subrogation pursuant to paragraphs 5 and 6 of this article had the compensation been paid before the fund was distributed, the court or other competent authority of the State where the fund has been constituted may order that a sufficient sum shall be provisionally set aside to enable such person at such later date to enforce his claim against the fund.

8. Where the carrier, after an incident, has constituted a fund in accordance with this article, and is entitled to limit his liability:

(a) no person having a claim for damage arising out of that incident shall be entitled to exercise any right against any other assets of the carrier in respect of such claim;

(b) the court or other competent authority of any State Party shall order the release of any property belonging to the carrier which has been arrested or attached in respect of a claim for damage arising out of that incident, and shall similarly release any bail or other security furnished to avoid such arrest or attachment.

9. Paragraph 8 of this article shall only apply if the claimant has access to the court administering the fund and if the fund is actually available and freely transferable in respect of his claim.

10. Subject to the provisions of this article, the rules relating to the constitution and distribution of a limitation fund, and all rules of procedure in connection therewith, shall be governed by the law of the State Party in which the fund is constituted.