Andean Community Commission DECISION 398: International Passenger Transportation by Road, Replacing Decision 289

(Continuation)

CHAPTER V
ON THE TRANSPORTATION AUTHORIZATIONS

Article 39. - The national authority of each country that is responsible for road transportation is the competent entity for issuing to the carriers the original and the complementary service permits, as well as the certificate of approval for the vehicles comprising their fleet.

Article 40. - The original and the complementary service permits shall be granted by administrative resolution of the competent national authority, and shall be issued in keeping with the legal procedures and provisions of the respective Member Country.

Article 41. - The original service permit shall be granted by the competent national authority of the carrier's country of origin.

The complementary service permits shall be issued by the competent national authority of each of the Member Countries in the carrier's sphere of operation where it intends to operate.

Article 42. - The original and the complementary service permits shall each have two annexes containing information about the approved vehicles, the sphere of operation and the service routes, frequencies and itineraries.

Article 43.- The frequencies, as well as the routes and itineraries for the authorized carriers' service shall be decided and coordinated bilaterally or multilaterally among the competent national authorities. In the event that they fail to reach an agreement, the mediation of the Andean Committee of Land Transportation Authorities may be requested.

Article 44. - It is up to the competent national authority of the carrier's country of origin to assign its routes, frequencies and itineraries in each of the Member Countries within its sphere of operation and for each established trip.

The pertinent annex of the original service permit will record the assignment, which shall be reported to the competent national authorities of the Member Countries where the carrier will be providing the service.

Article 45.- The Member Country that is informed by the competent national authority, of the assignment of routes, frequencies and itineraries, shall allow for the service to be provided in keeping with the assignment referred to in article 44, unless it has a sound objection to it.

Article 46.- The routes and frequencies should be assigned on the basis of objective criteria, such as the company's real capacity to provide service on the routes and with the frequencies requested and transparently.

In any case, that assignment shall not favor monopolies, oligopolies or market domination.

Article 47. - The routes and itineraries assigned by the Member Country issuing the permit, together with the authorized frequencies, shall be recorded in the respective annex of the complementary service permit.

Article 48.- The original service permit shall be accepted by the Member Countries where complementary service permits are requested, as proof that the carrier is qualified to provide international transportation service.

Article 49.- The original and the complementary service permits are non transferable. As a result, the international transportation service may not be provided by a person other than that cited in those permits.

Article 50.- The carrier shall submit a written application for the original service permit, attaching the following documents and information:

1. Copy of the company's incorporation documentation and by-laws if they exist, with the respective record of their registration; in their absence, the incorporation certificate issued by the competent authority, stating the corporate purpose, reforms, owner's equity, and duration;
2. Copy of the appointment of the company's legal representative or, in its absence, a certificate of that appointment issued by the competent authority;
3. Full address of the company's headquarters;
4. Letter of commitment to take out the Andean Civil Liability Insurance Policy for the International Road Carrier with its Additional Crew Accident Policy. If the crew carries another kind of insurance covering injury, the carrier is not obliged to take out the additional policy, provided that the risk coverage and insured sums are equal to or larger than those established by the Andean Policy;
5. Sphere of operation, indicating the Member Countries in whose territories it intends to operate, including its country of origin;
6. Service routes, itineraries and frequencies in each Member Country within its sphere of operation and for each established trip to be offered; and
7. List and identification of the vehicles whose approval and registration it requests. It shall stipulate which vehicles belong to the company and which have been leased. The documents and information requested in article 78 shall be attached thereto.

Article 51.- The carrier shall submit a written application for the complementary service permit, to which it shall attach the following documents and information:

1. Copy of the original service permit and its annexes;
2. Copy of the notarial power of attorney indicating the appointment of the legal representative, with full power to represent the company in all administrative, commercial and legal acts in which it shall be involved in the Member Country where it is applying for a permit;
3. Full address of the company's legal representative in that Member Country;
4. Letter of commitment to take out the Andean Civil Liability Insurance Policy for the International Road Carrier and Additional Crew Injury Policy;
5. Service routes, itineraries and frequencies in the Member Country where it is applying for the permit and for each established trip to be offered; and
6. List and identification of the approved vehicles with which it shall operate in that Member Country and for whose registration it is applying. It shall indicate which vehicles belong to the company and which have been leased.

In the case of item f), the carrier is not obliged to present the documents or provide the information stipulated in article 78.

Article 52.- The application referred to in articles 50 and 51 shall be signed by the company's legal representative in the Member Country where the permit is being requested.

Article 53.- The competent national authority of the respective Member Country, before granting the original service permit, shall evaluate the carrier's work record and capacity.

Article 54.- The competent national authority shall have a period of thirty calendar days in which to issue and deliver to the carrier the original or the complementary service permit.

The period indicated in the previous paragraph shall run as of the date of presentation of the application, together with all of the documents and information required in articles 50 and 51, as applicable.

If the documents and information presented are incomplete or faulty, the company shall be asked to complete or rectify them; in that case, the period shall begin on the day when the requirements have been fulfilled.

Article 55.- The carrier shall request the complementary service permit or permits within ninety calendar days after the date of issue of the original service permit; if it fails to do so, the competent national authority that granted the original permit shall annul it.

The original service permit shall also be annulled if, within that same period computed as of the date of issue of the complementary permit, the authorized carrier does not start operating or, if having started its services, it interrupts them for an equal length of time, save as provided for in article 36.

Article 56.- The original service permit is valid for five years. The period of validity of the complementary service permit is subject to that of the original permit.

The term of both permits shall be extended automatically for like periods of time upon expiration, provided that the competent national authority that granted them has not issued a final Resolution suspending or annulling the permits.

Article 57.- The extension of the validity of the original and the complementary service permits shall be stated on the back of those documents.

Article 58.- If a projected service trip involves passing, between its origin and destination, through one or more Member Countries that have not granted the authorized carrier complementary service permits, those countries shall allow the approved vehicles that are providing the international transportation service to pass in transit through their territories.

In this case, the authorities having granted the original and the complementary service permits shall report this fact, by letter or facsimile, to the competent national authority of the Member Country or Countries through which the vehicles pass in transit.

That communication shall indicate the company's name, the kind of permit issued, the date of its issue, the routes, frequencies and itinerary assigned for each established trip, and the list of approved vehicles.

Article 59.- The competent national authority that has been notified pursuant to the previous article, shall proceed to register the approved vehicles and request their registration by the customs authorities of its country.

Article 60.- With the fulfillment of the stipulations of articles 58 and 59, the Member Countries through which they pass in transit shall permit the approved vehicles to move freely through their territories.

Article 61.- When passing in transit through a Member Country under the circumstances envisaged in article 58, vehicles are authorized to make technical stops only, such as for mechanical repairs, fuel replenishment, food provisioning, and overnight stays by passengers and crew. In that case, passengers may not be collected or dropped off and postal packages and parcels may not be picked up or delivered.

Article 62.- The authorized carrier may, at any moment, request from the competent national authority of its country of origin, a change in its sphere of operation, as well as its assigned routes, frequencies or itineraries.

Article 63.- If any amendments or changes are made in the company's partnership contract or by-laws which alter the text of the original or the complementary service permits, the authorized carrier shall request that those permits be modified accordingly.

Article 64.- The original and the complementary service permits may be suspended or annulled by the competent national authorities that granted them. The suspension or annulment shall be accomplished through an administrative resolution that shall be issued in accordance with the national legal procedures and provisions of the respective Member Country.

The resolution shall state the causes for the action to be taken and the authorized carrier shall be notified thereof.

Article 65.- The authorized carrier, with the prior specific consent of the competent national authority, may occasionally provide closed circuit international passenger transportation in approved vehicles.

The competent national authority that authorized closed circuit international passenger transportation shall inform the competent national authority of the other Member Country involved in the established trip, by letter or facsimile, about the authorization granted and shall indicate the name of the authorized carrier, the list of crew members, the starting and ending dates of the established trip, the authorized route, the cities and places to be visited, and the characteristics of each approved vehicle.

The mere fact of communicating the information stipulated in this article is sufficient for the respective Member Country to permit the vehicle's circulation and the provision of the service.

CHAPTER VI
ON THE CREW

Article 66.- In each approved vehicle used for the international transportation, the authorized carrier shall employ a main and auxiliary drivers and such other persons as it deems necessary to serve the passengers in order to ensure adequate service.

The drivers shall have their drivers' licenses with them at all times and these must be valid.

Article 67.- The main driver is responsible for the correct provision of the international transportation, the care and good use of the certificate of approval and the list of passengers, and for keeping order, the protection and care of the passengers and other crew members inside the bus and the safety of the luggage and postal parcels being carried.

He also represents the authorized carrier before the controlling authorities along the route.

Article 68.- The drivers of the approved vehicles shall comply with the land transportation provisions in effect in the Member Countries in whose territory they circulate.

Article 69.- The crews of the approved vehicles may not perform in any Member Country other than that of which they are citizens or in which they reside, any paid activity other than the transportation in which they are engaged.

Violation of this provision shall be punished according to the law of the Member Country where it occurs.

Article 70.- The drivers and other crew members must be trained in traffic and land transportation, road safety and other matters that are essential for the provision of efficient and safe service.

The authorized carriers shall prepare and carry out ongoing training programs for the crew.

Article 71.- The Member Countries shall adopt mechanisms for monitoring and evaluating the training programs.

Article 72.- Authorized carriers shall cover the expense of returning the crews of their approved vehicles when they must leave a country after having completed the transportation. They shall also cover such expenses if crew members are unable to continue the trip because they fail to comply with national legislation.

CHAPTER VII
ON VEHICLE APPROVAL

Article 73.- The international transportation shall be carried out in approved vehicles (buses), which shall be registered with the competent national transportation and customs authorities of the Member Countries through whose territories they will pass in transit or where they will provide the service.

Article 74.- Buses owned or leased by the carrier, which are registered in the carrier's country of origin or in another Member Country, may be approved.

The leasing contract may be signed in a Member Country or in a third country.

Article 75.- For each approved vehicle, a certificate of approval shall be issued at the carrier's request by the competent national authority of the Member Country that granted the original service permit.

Article 76.- Leased vehicles that come from a third country and that are to be used for the international transportation shall be admitted into the country under a temporary importation regime for the period of time stipulated in the respective contract.

Article 77.- The approval and registration of the buses shall be applied for at the same time as the original service permit.

The authorized carrier may also, at any time, request the approval of new vehicles, as well as the modification of the characteristics indicated in article 78b).

Article 78.- In applying for the approval of the buses, the carrier shall append the following documents and information to its request:

1. Copy of the vehicle registration or of the vehicle ownership registration for each vehicle; and
2. Characteristics of each vehicle: license plate number, make, year of manufacture, chassis number or series, number of axles, kind of vehicle, number of seats and external dimensions.

When applying for the approval of a leased bus, a copy of the respective leasing contract shall be attached.

Article 79.- In order for buses to obtain approval, they must meet the standards contained in the Technical Regulations on the Limitations on Weight, Type and Dimension of Vehicles for International Road Transportation and their corresponding annex.

Article 80.- Only buses less than seven years old may be approved and used for international transportation.

Article 81.- The certificate of approval shall be valid for five years. If the leasing contract expires or the age limit stipulated in article 80 is reached in less than five years' time, the period of validity of the certificate of approval shall be established accordingly.

Article 82.- The competent national authority shall issue and deliver the bus certificates of approval, together with the original service permit.

When new vehicles are to be approved, this shall be accomplished within a period of eight calendar days after the date of presentation of the application accompanied by the respective documents and information.

Article 83.- Vehicles approved by a Member Country shall be recognized by the other countries as suitable for international passenger transportation by road.

Article 84.- In order to apply for registration of the approved vehicles in Member Countries other than the carrier's country of origin, it is necessary to attach a copy of the original service permit and its respective annex.

Article 85.- The competent national authority that registers the approved vehicles shall communicate this fact to the customs authority of its country, requesting their registration also.

Article 86.- The national transportation and customs authorities shall have periods of two and four working days, respectively, in which to register the approved vehicles.

Article 87.- Vehicles shall bear their respective certificates of approval during the international transportation.

Article 88.- The authorized carrier shall report to the competent national authority of the Member Country that granted it the original service permit, about the withdrawal of any approved vehicles from its fleet, so that note may be taken in the respective annex and the pertinent certificate of approval and registration may be annulled.

Article 89.- The competent national authorities shall permit the use of a vehicle that has not been given approval, belonging to the carrier, a third party or another authorized carrier, in order to continue an international transportation operation that for reasons of force majeure or an act of God cannot proceed in the original vehicle. The service shall continue to be provided under the responsibility of the authorized carrier that issued the passenger list and travel tickets.

CHAPTER VIII
ON THE TRANSPORTATION CONTRACT
AND THE OBLIGATIONS

First Section of the Contract

Article 90.- Each passenger that uses the international transportation shall be covered by a transportation contract whose conditions shall be established on the travel ticket.

The travel ticket proves the existence of the transportation contract.

Article 91.- The issuing of the travel ticket by the authorized carrier and its acquisition by the passenger implies the acceptance and submission of both parties to the contract terms.

Article 92.- The travel ticket shall be issued by the authorized carrier on an individual basis and in the passenger's name.

Article 93.- Through the travel ticket, the authorized carrier commits itself to transport the passenger from a city of origin to a city of destination located in different Member Countries, using a preestablished route, itinerary and schedule.

Article 94.- The travel ticket shall be numbered and shall contain the following information and stipulations:

1. Company name and address of the authorized carrier;
2. Passenger's family and given names;
3. Passenger's city and country of origin and city and country of destination;
4. Place and date of issue of the travel ticket;
5. Total price of the travel ticket, including tax;
6. Starting date and time for the trip;
7. Conditions for endorsement, postponement, refund and expiration;
8. General features of the insurance coverage;
9. General description of what is considered to be luggage; and
10. Maximum permitted luggage weight or volume per passenger.

The authorized carrier may, on the back of the travel ticket or on a separate sheet attached to it, establish general clauses for the contracting of the international transportation, which shall be accepted by the passenger at the moment of its purchase.

A sheet attached to that travel ticket shall give the addresses of the terminals on the itinerary.

Article 95.- The travel ticket shall be issued in as many copies as needed to comply with the transportation itinerary commitment to the passenger. It shall contain one copy that shall remain in the authorized carrier's possession and another in the passenger's.

Article 96.- Before starting the trip, the authorized carrier shall let passengers know their assigned seat numbers.

Article 97.- Passengers deciding not to make the trip or to postpone it shall communicate this fact seventy-two hours before the scheduled starting time. In the former case, they shall be entitled to a refund of ninety percent of the fare stated on the ticket after the deduction of taxes.

The travel ticket expires if passengers do not use it on the stated starting date for the trip and fail to communicate the fact that they will not be making or are postponing the trip, as stipulated in the previous paragraph. Tickets without any starting date expire one calendar year after their issue date.

If their travel tickets expire, passengers shall not be entitled to demand a refund of the value of those tickets.

Article 98.- The lack or loss of a travel ticket, as well as any irregularity in the information it contains, shall not affect the existence or the validity of the transportation contract or relieve the authorized carrier of its obligations or responsibility to the passenger if the relationship is proven by other legally accepted means.

The omission of an item or some of the information stipulated in article 94 does not affect the juridical validity of the travel ticket.

Article 99.- Any stipulation contained on the travel ticket or in the general contract clauses that deviates directly or indirectly from the provisions of this chapter, if to the passengers' detriment, shall be null and without any effect whatsoever. The foregoing shall not affect the other stipulations contained on the travel ticket or in the general contract clauses.

Article 100.- The stipulations of this Decision and their complementary provisions are applicable to the transportation contract, together with the national provisions of the respective Member Country in all matters not covered by those stipulations and their provisions.

Article 101.- The provisions of this chapter are applicable to all such claims as may be filed against the authorized carrier, its representatives or agents with regard to the performance of the transportation contract.

Second Section
On the Responsibility

Article 102.- The authorized carrier is the only party responsible to the passenger for the performance of the transportation contract, although during the operation the carrier may use the services of third parties --in the latter case, provided that this does not generate a new transportation contract.

It is also liable to third parties for any such damages and losses as may be caused during the operation.

Article 103.- Passengers must carry the documents and fulfill the necessary requirements for entry into, passage in transit through, a stay in, and departure from the Member Countries through whose territories they travel. The authorized carrier is responsible for providing the pertinent information.

Passengers shall furnish the authorized carrier with the necessary information and documents for carrying out customs formalities with the respective authorities. The authorized carrier is not obliged to examine the documents and information given to it to determine whether they are reliable.

Passengers are responsible for any damage that could result from the irregularity of or failure to present the documents and information required.

Article 104.- The authorized carrier is liable for any damages and losses that could be caused by the loss or incorrect use of the documents provided by passengers during their trip.

Article 105.- Passengers have a right to demand that the authorized carrier transport them from the city of origin to that of destination, in accordance with the established terms of the travel ticket.

If, for reasons attributable to the authorized carrier, the trip fails to be started, the carrier shall refund to the passengers the entire cost of their travel tickets. If the cause is one of force majeure or an act of God, it shall refund ninety percent of the ticket cost minus tax.

If the trip is interrupted after it has started, the authorized carrier shall be obliged to pay passengers the travel costs involved in reaching their respective destinations via a similar transportation medium.

Article 106.- The authorized carrier may not allege damage to or the lack of a vehicle, or mistakes in operation, or the negligence of its subordinates, as a pretext for freeing itself from its responsibility.

Article 107.- Passengers shall be covered, in all international transportation and throughout the trip, by an injury insurance policy previously taken out by the authorized carrier.

Article 108.- In the case of an accident, the authorized carrier is obliged to give passengers and crew the necessary assistance. It shall also, and immediately, cover the medical, hospitalization, surgical, pharmaceutical and internment costs without this signifying that it recognizes its responsibility for the event.

An action may be brought to recover those expenses from any party that may have the obligation to pay them.

Article 109.- An authorized carrier that has not taken out or that does not hold a valid injury insurance policy for passengers and crew shall, in the event of an accident, cover on its own account the expenses indicated in the previous article.

Article 110.- Before starting the trip, passengers carrying luggage with them shall hand it over to the authorized carrier, which is obliged to issue a numbered claim or receipt for each suitcase or bundle received.

Article 111.- The failure of passengers to appear on the date and at the time stipulated for the start of the trip frees the authorized carrier from its contractual obligation to them. The same thing applies in the event that, after the trip has started, passengers decide on their own to interrupt it at any point along the route.

Article 112.- The authorized carrier shall not transport:

1. Persons who, at the moment of boarding or during the trip, are in abnormal physical or emotional states that could threaten the order or safety of the transportation, or who are under the influence of alcoholic beverages or drugs;
2. Animals and objects that may disturb or pose a threat to passengers or crew; or
3. Persons carrying weapons, ammunition, explosives, chemicals, or inflammable substances.

Continue on to  Chapter IX