Vilnius Protocol comes into force

Since its publication in the Official Gazette a couple of months ago, the Vilnius Protocol 1999 (which amended the Convention on International Carriage by Rail 1980) regulates the international regime for carriage by rail in Spain. Although there have been several amendments to the text, this update focuses on the main issues regarding the carriage of goods (Appendix B to the convention).

The protocol consolidates and simplifies the original text, but there have been several significant changes.

The new Article 6 establishes the consensual nature of contracts of carriage, which cease to be formal contracts, by stating that "the absence, irregularity or loss of the consignment note shall not affect the existence or validity of the contract". On the contrary, the former Article 11 established that "the contract of carriage shall come into existence as soon as the forwarding railway has accepted the goods for carriage together with the consignment note". Consignment notes now serve as proof of the existence of the contract, but are not a necessary requirement. In addition, the goods no longer need to have been accepted physically for the contract to exist.

International contracts of carriage of goods now require only the valid mutual consent of the carrier (which is no longer named 'the railway') and the consignor. Article 6(9) governs the procedure for the establishment of consignment notes in electronic form and serves as an example of the modern trade practices reflected in the law.

From a liability point of view, this major change affects the provisions on contracts of carriage where there are several carriers. Article 35(2) of the old text referred only to 'succeeding railways', which became party to the contract of carriage and were responsible for carriage over the entire route; in contrast, the protocol establishes the concepts of 'substitute carriers' (Article 27) and 'successive carriers' (Article 26). Pursuant to Article 27, carriers may entrust the performance of the carriage to a substitute carrier, which will not be party to the original contract of carriage. In this case, there are thus two contracts of carriage; however, both carriers (ie, the original and the substitute carrier) are jointly and severally liable towards the consignor.

Other minor changes include:

• the inclusion of railway vehicles as carried goods in Articles 24, 30(3) and 32(3);
  
   
• the expansion of the list of compulsory content in consignment notes;
  
   
• the elimination of the references to fixed tariffs; and
  
   
• the increased obligation of the consignor to provide the necessary documents for the carriage of goods.

Although the rules set forth by the protocol are not applicable to carriage of goods by rail carried out exclusively within the Spanish territory (cabotage), following the amendment the protocol applies both to railway operators and to those that, without being railway operators, carry goods by rail (eg, freight forwarders, to which the 1980 convention did not apply under case law).