OAS

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:

  1. Residence of the defendant;
  2. Place where the event occurred;
  3. Place of origin of the passenger's trip; or
  4. 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:

  1. Company name of the authorized carrier;
  2. Identification of the approved vehicle;
  3. Date of issue of the passenger list, as well as the countries of origin and destination of the trip;
  4. Family and given name, nationality, identification document number, and Land Crew Card number of the crew members if they are carrying this document;
  5. Sequential number, family and given name, nationality, class and identification document (passport) number, profession or occupation, origin and destination of the passengers; and
  6. 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:

  1. 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;
  2. Coordinate the execution of the operative aspects of the international passenger transportation by road, with the competent national authorities of the other Member Countries.
  3. Promote mechanisms for coordination with their countries' authorized carriers and users of the international passenger transportation by road;
  4. Promote the establishment of Facilitation Commissions for International Land Traffic and Transportation; and
  5. 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.