Andean Community Commission
DECISION 398:
International Passenger Transportation by Road, Replacing Decision 289
(Continuation)
CHAPTER IX
ON THE JURISDICTION AND COMPETENCE
Article 115.- Any conflict or
difference stemming from the application or performance of an international
transportation contract that does not involve provisions of public order
contained in this Decision, shall be regulated by the law envisaged in the
contract. In the event of a failure to reach an agreement, the provisions
of this Decision shall be applicable, and in all matters not covered by the
former, the pertinent national legislation shall apply.
Article 116.- Any legal actions
emanating from the transportation contract shall be brought before the
judge or court designated in that contract.
In the event that no designation is made or
that that stipulated in the contract is legally inapplicable, those
lawsuits may be brought, indistinctly and at the choice of the plaintiff,
before any competent judge or court of the jurisdiction of the:
- Residence of the defendant;
- Place where the event occurred;
- Place of origin of the passenger's trip;
or
- Place of destination of the passenger's
trip.
Article 117.- The executed judgments
or final judgments handed down by a judge or court of a Member Country in
the implementation of this Decision may be enforced in the territory of
another Member Country if in the interest of a party with some right
emanating from it, without need for homologizing or exequatur.
If a sentence is to be executed outside the
national territory of the judge or tribunal that pronounced it, it is
necessary to comply with the legally mandated formalities of the state
where its execution is requested.
Article 118.- Legal actions emanating
from the transportation contract shall lapse in a period of one calendar
year after the event or breach that motivated the action to be brought.
CHAPTER X
ON THE CUSTOMS ASPECTS
Article 119. - National customs
authorities shall keep a registry of authorized carriers and approved
vehicles.
Authorized carriers and approved vehicles
shall be registered with the national customs authority of each of the
Member Countries through which they pass in transit or where they provide
service.
Article 120.- The Member Countries
shall permit the departure and temporary entry into their territories of
approved and registered vehicles, without having to pay export or import
duties when those vehicles are in the process of providing international
transportation service or circulating through them as a result of the
latter.
The stipulation of the previous paragraph
applies also to the necessary equipment for use in the approved vehicles
and goods for passenger use and consumption that they transport and that
are included on a list prepared by the carrier, such as the auxiliary fuel
tank that is part of the bus's structure, provided that that tank does not
alter original design of the bus.
Article 121.- The Member Countries
shall permit the temporary importation of spare parts and pieces to be used
to repair approved vehicles if they have any malfunction in a Member
Country other than that where the vehicles are registered.
Article 122.- The equipment and the
spare parts and pieces referred to in articles 120 and 121 shall be brought
in duty-free, provided that they originated or were nationalized in a
Member Country.
Such spare parts and pieces as have been
replaced shall be reexported to the country from which they came or
destroyed under customs control and the authorized carrier shall assume the
cost involved.
Article 123.- The approved vehicles,
by the mere fact of their registration, by operation of law become a
demandable guaranty before customs authorities, of the payment of such
export and import duties, taxes, surcharges, interest and fines as may
possibly be due or applicable to the vehicles and equipment that
temporarily enter a Member Country in a transportation operation.
The vehicle's guaranty may be replaced by
another that satisfies the customhouse, issued by a bank or an insurance
company. This guaranty may be global for several transportation operations
or individual for a single one, and shall be issued in as many copies as
there are countries through which it shall travel.
Article 124.- The customhouse shall
not demand guaranties different from those stipulated in the previous
article, to ensure payment of any such duties, taxes, surcharges and
interest as may possibly be demandable for the approved vehicles and the
equipment that temporarily enter or leave the country.
Article 125.- Approved vehicles that
are leased become a guaranty before the customhouse, for the purposes
referred to in article 123, provided that there is an express written
declaration to this effect signed by the lessor or owner of the vehicle.
The cited declaration may be contained in
the respective contract or in an additional clause.
Article 126.- Approved vehicles that
temporarily enter the territory of a Member Country may remain there for a
period of thirty calendar days. That period may be extended by the
customhouse upon receipt of a justified request.
If the approved vehicles fail to leave the
country within the period established in the previous paragraph, the
authorized carrier shall be subject to the sanctions provided for by the
respective national legislation.
Excepted are those cases in which vehicles
fail to leave for duly proven reasons of force majeure or an act of God.
Article 127.- If the authorized
carrier's responsibility is established, it must pay the customhouse,
within the stipulated period, the amount due for such duties, taxes,
surcharges, interest and fines as may have been imposed on it. If it fails
to do so, the vehicle shall be seized and its ownership transferred or the
economic guaranty shall be cashed, pursuant to national legislation.
If the liquid proceeds of the sale fail to
cover the amount of the duties, taxes, surcharges, interest and fines
demandable, the authorized carrier shall cover the difference within the
period set by the customhouse; if it fails to make that payment, the
carrier's approved vehicles or goods may be seized to proceed as stipulated
above.
Article 128.- In all cases where a
vehicle is seized, the authorized carrier may present a guaranty to the
satisfaction of the customhouse in order to secure the vehicle's release so
that it may continue with the transportation while the administrative or
judicial proceedings move ahead. Excepted are cases in which a vehicle is
seized for a drug trafficking crime and the preliminary investigations have
established the authorized carrier's alleged responsibility.
Article 129.- If the authorized
carrier is found guilty of having committed a customs violation or crime,
the customhouse shall so inform the competent national authority of that
country, which in turn shall inform the competent national authority of the
carrier's country of origin, so that the corresponding measures may be
taken.
Article 130.- The national customs
authorities shall control the departure and temporary entry, as well as the
re-entry, of approved vehicles used in the international transportation,
when they cross a border, in order to verify their compliance with the
stipulations of this Decision.
Article 131.- The customs seals
placed on the containers for postal packages or the baggage compartments of
the approved vehicles shall comply with the conditions and characteristics
established in Decision 327.
The placement of the customs seals shall be
governed by the contents of the Regulations of this Decision.
Those customs seals shall be accepted and
recognized as valid by the Member Countries in their respective
territories.
Article 132.- When for reasons of
force majeure or of an act of God, an approved vehicle must remain in a
Member Country for a longer period of time than that established in article
126, the customhouse shall not demand an additional guaranty.
CHAPTER XI
ON THE IMMIGRATION ASPECTS
Article 133.- The crews of the
approved vehicles need only to present their Land Crew Cards and their
national identification documents in order to enter, pass through in
transit, stay in, and leave the Member Countries.
Article 134.- National immigration
authorities shall issue Land Crew Cards only in the name of individuals,
national or foreign, who hold residents' visas of the Member Countries
where they are applying for that card, after being requested to do so by an
authorized carrier.
They may also be issued by the Consuls of
the Member Countries, who shall report that fact in writing to the
immigration authorities of their countries, remitting the documentation
submitted by the carrier.
Article 135.- Land Crew Cards shall
be valid for a period of twelve months. They may be renewed for like
periods of time.
Article 136.- When engaged in
international transportation and carrying their card, holders of Land Crew
Cards shall not require a visa to enter the territories of the Member
Countries through which they travel in the course of the service.
Article 137.- Land Crew Cards permit
their holders when engaged in international land transportation in Member
Countries other than those of which they are nationals or residents, to
remain in those countries for a period of thirty days, which is open to
renewal.
Article 138.- Passengers must fulfill
the requirements of each of the Member Countries through which they travel,
in order to enter, pass through, stay in, or leave those countries.
Article 139.- The authorized carrier
shall prepare a passenger list for each international transportation
operation it carries out.
The passenger list shall be issued in an
original copy, which shall be kept by the authorized carrier, and two
copies for each Member Country on the route between the origin and
destination. One of the copies shall be handed over by the crew to the
immigration authority at the border of each Member Country, at the
passengers' entry and departure.
Article 140.- The passenger list
shall contain the following information:
- Company name of the authorized carrier;
- Identification of the approved vehicle;
- Date of issue of the passenger list, as
well as the countries of origin and destination of the trip;
- Family and given name, nationality,
identification document number, and Land Crew Card number of the crew
members if they are carrying this document;
- Sequential number, family and given name,
nationality, class and identification document (passport) number,
profession or occupation, origin and destination of the passengers; and
- Signature of the authorized carrier or its
representative or agent.
Article 141.- The Andean Immigration
Card to be used in the international transportation shall be printed up by
the authorized carriers. They shall use the form established in the
respective regulations and the card shall contain the required information
and the series number provided for that purpose by the national immigration
authority of the Member Country of origin, passage in transit, or
destination.
On each trip, the crew shall distribute the
Andean Immigration Card among the passengers who shall fill it out.
These cards, together with the respective
passports and required documents, shall be presented to the immigration
authorities at the border crossings.
Article 143.- It shall not be
necessary for purposes of immigration control, for passengers to descend
from the bus in order to personally carry out the respective formalities
with the immigration authority, except in cases when the latter deems it
necessary.
The respective authority shall board the
vehicle in order to make the necessary verifications.
CHAPTER XII
ON THE COMPETENT NATIONAL
AUTHORITIES
Article 144.- The competent national
authorities designated and accredited by the Member Countries shall be
responsible for the implementation of this Decision and its complementary
provisions in their respective territories.
Article 145.- The competent national
authorities shall, furthermore:
- Coordinate with the other authorities of
their country, the implementation of the operative and procedural
aspects established in the Decisions and the complementary provisions
that regulate international passenger transportation by road, as well as
the transportation of postal packages and parcels;
- Coordinate the execution of the operative
aspects of the international passenger transportation by road, with the
competent national authorities of the other Member Countries.
- Promote mechanisms for coordination with
their countries' authorized carriers and users of the international
passenger transportation by road;
- Promote the establishment of Facilitation
Commissions for International Land Traffic and Transportation; and
- Give the Board of the Cartagena Agreement
and the Pro-Tempore Secretariat of the Committee such information about
international passenger transportation by road as is requested, as
stipulated in this Decision and its complementary provisions, as well as
in the Agreements or Resolutions approved by the CAATT.
Article 146.- The competent national
authorities shall keep a national registry of the authorized carriers, as
well as of the approved vehicles that operate in their countries, together
with their corresponding routes, frequencies and itineraries and any
changes, suspensions or annulments.
CHAPTER XII
ON THE NATIONAL OR BINATIONAL BORDER SERVICE CENTERS
Article 147.- The Member Countries
shall adopt the necessary measures for establishing and organizing the
National Border Service Centers (CENAF) or the Binational Border Service
Centers (CEBAF) at each of the authorized border crossings for the
international transportation.
Article 148.- The competent national
authorities shall take the necessary actions for their operation, together
with the national authorities of the different government ministries that
exercise the control and provide complementary services at the borders.
In order for the CENAF or CEBAF to provide
the appropriate services, the competent national authorities, together with
the other authorities referred to in the previous paragraph, shall adopt
binational manuals of procedure to facilitate their operation.
CHAPTER XIV
ON THE ANDEAN REGISTRY OF AUTHORIZED
CARRIERS
AND APPROVED VEHICLES
Article 149.- An Andean Registry of
Authorized Carriers and one of Approved Vehicles are hereby created, to be
entrusted to the Board of the Cartagena Agreement, which shall take the
necessary action for their organization and operation.
Article 150.- The competent national
authorities shall furnish the Board of the Cartagena Agreement with the
necessary information for the implementation of the Registries provided for
in the previous article, on a timely basis and regularly.
That information shall consist of: the name
of the authorized carrier; name and address of the legal representative;
address of the company's headquarters and of the cities on its itinerary;
and the original and the complementary service permits granted, as well as
their annulments, renewals, expiration date, and any changes made in them.
They shall also report on the approval of
the vehicles that make up the authorized carriers' fleets, their withdrawal
and any changes in their characteristics.
The competent national authorities shall the
information supplied to the Board of the Cartagena Agreement keep up to
date.
CHAPTER XV
GENERAL PROVISIONS
Article 151.- Twice a year the
authorized carriers shall submit monthly statistical data about the
movement of passengers and number of journeys per established trip, to the
competent national authority of their countries of origin. The consolidated
information shall be given to the Board of the Cartagena Agreement.
The Board of the Cartagena Agreement, after
hearing the opinion of the Andean Committee of Land Transportation
Authorities, shall establish the pertinent form for recording the
information.
Article 152.- Each Member Country
shall inform the competent national authorities of the other Member
Countries, on a timely basis, about the conditions demanded for the
circulation of approved vehicles, which in no case may be stricter than
those required for the movement of the vehicles registered in the country
in question.
Article 153.- Authorized vehicles
engaged in providing the international transportation service shall not be
submitted to customs, immigration, police and sanitary formalities at
places other than the border.
Such inspections as must be carried out
along the route for legal reasons of national security or if there is
evidence of the commission of customs violations are excepted from the
stipulation of the previous paragraph.
Article 154.- The public offer of
international transportation service to be provided along national segments
is considered to be deceitful advertising that is subject to legal sanction
by the respective Member Country.
Article 155.- The Member Countries,
within a period of one hundred and eighty calendar days as of the date this
Decision enters into effect, shall, bilaterally or multilaterally, agree
upon the schedules and any other operational or service procedure necessary
for the international transportation at the authorized border crossings.
Those agreements shall be adopted jointly
and in coordination by the transportation, customs, immigration, plant and
animal health, police, and any other authorities that exercise that
control.
The Member Countries shall adopt the
necessary measures for providing continuing and uninterrupted service at
the border crossings.
Article 156.- International passenger
transportation by road is recognized by the Member Countries as an export
service.
Article 157.- Authorized carriers
shall offer the international transportation service under conditions of
free and equitable competition. They shall also offer their rates freely.
Article 158.- Each Member Country
shall establish the provisions regarding the public or private facilities
for passenger service and the dispatch and reception of the approved
vehicles.
Article 159.- In implementing this
Decision, the Member Countries shall make the necessary efforts to achieve
appropriate solutions for resolving the problems stemming from Bolivia's
geographic enclosure.
Article 160.- In cases not envisaged
in this Decision and its complementary provisions, the national legislation
and regulations of the corresponding Member Countries shall be applicable.
Article 161.- Any modification of the
company name or change in designation of the competent national authority,
as well as of the other national authorities involved in the control of
international transportation operations, shall be communicated to the Board
of the Cartagena Agreement and to the other Member Countries through the
corresponding liaison bodies.
CHAPTER XVI
COMPLEMENTARY PROVISIONS
Article 162.- The Board of the
Cartagena Agreement, after hearing the opinion of the Andean Committee of
Land Transportation Authorities (CAATT), shall approve via a Resolution the
Regulations and forms for the authorizations and documents to be used for
the transportation, that may be necessary to comply with the stipulations
of this Decision.
The forms and the information to be entered
in them may also be modified.
Article 163.- The Board of the
Cartagena Agreement after hearing the opinion of the Andean Committee of
Land Transportation Authorities (CAATT), shall approve via a Resolution the
regulations for controlling the service of international passenger
transportation by road.
Article 164.- The Board of the
Cartagena Agreement, after hearing the opinion of the Andean Committee of
Land Transportation Authorities (CAATT), when deemed necessary, shall
establish via Resolution the risks to be covered and the amounts of
coverage of the insurance policies to be used in the operations of
international passenger transportation by road.
Article 165.- Until the Community
legislation referred to in the Second Temporary Provision has been
approved, the national legislation and regulations of each of the Member
Countries in which the service is provided shall be applicable to the
transportation of postal packages and parcels.
CHAPTER XVII
FINAL PROVISIONS
Article 166.- This Decision replaces
Decision 289 of the Commission of the Cartagena Agreement.
Article 167.- This Decision shall
enter into force as of the date of its publication in the Official Gazette
of the Cartagena Agreement.
TEMPORARY PROVISIONS
FIRST: The Member Countries, at the
proposal of the Board and within a period of ninety calendar days after
this Decision becomes effective, shall approve a Community provision that
establishes the violations and the system of penalties for the authorized
carriers.
SECOND: The Member Countries, at the
proposal of the Board and within a period of one hundred and eighty days
after this Decision becomes effective, shall approve a Community provision
for regulating the complementary service of transportation of postal
packages and parcels in the vehicles authorized for international passenger
transportation by road.
THIRD: The authorized carriers,
within one hundred and eighty calendar days after this Decision becomes
effective, shall adjust their original and their complementary service
permits, together with their annexes and the vehicle certificates of
approval and the transportation documents, to the stipulations of this
Community provision. Failure to update those permits and certificate shall
lead to their lapsing.
FOURTH: Such authorized carriers as
on the date this Decision enters into force are operating with approved
vehicles whose date of manufacture is earlier than that stipulated in
article 80, may continue to provide the international transportation
service for a period of one year. At the conclusion of that period, their
certificates of approval shall be annulled.
FIFTH: The Board of the Cartagena
Agreement, after hearing the opinion of the Andean Committee of Land
Transportation Authorities and within a period not to exceed ninety
calendar days after this Decision becomes effective, shall adopt via
Resolution the criteria for rating the capacity of the authorized carrier.
SIXTH: The provisions of Decision 359
that do not run counter to this Decision shall remain in force until the
Board adopts the regulations for the latter via a Resolution.
Signed in the city of Lima, Peru, on the
seventeenth of January of nineteen ninety-seven.
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