The concept and features of the contract for the carriage of goods. According to paragraph 1 of Art. 784 of the Civil Code, the carriage of goods, passengers and baggage is carried out on the basis of a contract of carriage. At the same time, the contract for the carriage of goods found its general settlement in Art. 785 of the Civil Code, and the contract for the carriage of passengers - in Art. 786 GK. Under the contract for the carriage of goods, the carrier undertakes to deliver the goods entrusted to him by the sender to the destination and issue it to the person (recipient) authorized to receive the goods, and the sender undertakes to pay the established fee for the carriage of the goods. In separate transport charters and codes similar definitions of the contract of transportation of goods and the contract of transportation of passengers and luggage are given (see, for example, item 103 VK; item 82 UZhT, etc.) * (524).
The contract for the carriage of goods is bilaterally binding, paid, real. The bilateral-binding nature of the contract implies the presence in the contract of carriage of mutual rights and obligations for all parties to the contract. The sign of compensation follows from the very definition of the contract for the carriage of goods in paragraph 1 of Art. 785 of the Civil Code, which mentions the obligation of the sender to pay the established fee for the carriage of goods.
The sign of reality deserves a somewhat more detailed analysis. The term "entrusted cargo" in the legal definition of the contract of carriage means "previously transferred cargo", which traditionally emphasizes the real sign of the contract for the carriage of goods. Meanwhile, on the water and air transport the contract for the carriage of goods, concluded in the form of charter (charter), belongs to the category of consensual. In maritime transport, the contract of carriage (charter contract, or charter) is consensual.
The contract for the carriage of goods may be of a public nature (Article 789 of the Civil Code). To do this, the public transport organization, endowed with the function of a public carrier, must act as a carrier. Transportation carried out by a commercial organization is recognized as transportation by public transport, if it follows from the law, other legal acts that this organization is obliged to carry out the transportation of goods, passengers and luggage at the request of any citizen or legal entity. Moreover, this organization should be included in a special published list of persons obliged to carry out transportation by public transport.
Elements of a contract for the carriage of goods. The subject of the contract for the carriage of goods is the relationship between the parties (the consignor and / or consignee, on the one hand, and the carrier, on the other) regarding the corresponding movement of goods * (525). At the same time, the appropriate movement of goods implies compliance with regulatory and contractual requirements for the time and quality of delivery of goods, as well as their proper acceptance.
The parties to the contract for the carriage of goods are the consignor and the carrier. The consignor is that person on behalf of which the cargo for transportation * (526) is handed over. Modern legislation under the consignor understands the physical or entity, which, under the contract of carriage, acts on its own behalf or on behalf of the owner of the cargo and which is indicated in the shipping document (Article 2 of the UZHT, Article 2 of the UAT). It is with the sender that the carrier concludes a contract for the carriage of goods, and between the sender and the carrier a corresponding obligation for carriage arises.
The carrier, as determined by G.F. Shershenevich * (527), is the person who assumes the obligation to deliver with his means of transportation and hand over the cargo entrusted to him. The carrier (railway, shipping company, air transport operator) can only be commercial organization or individual entrepreneur authorized to carry out cargo transportation by law or on the basis of a license. At the same time, all transportation, with the exception of automobile transportation, is subject to mandatory licensing (clause 1, article 17 federal law about licensing certain types activities * (528)). However, the movement of goods for own needs does not fall under the definition of transportation activities. On all modes of transport, except for railway, private persons can also be carriers.
Due to the specifics of transportation activities, several persons may act on the side of the carrier. This applies to the cases of direct and direct multimodal transport described above.
In addition to the sender and the carrier, concluding between themselves a contract for the carriage of goods, its subjects (but not parties) also include the recipient (consignee) * (529). The parties proceed from the consignee's tacit consent to the terms of the contract, which, according to a number of authors, does not correspond to the basic principles of civil law * (530). In Russian legal science, the opinion prevails that the carriage of goods is carried out on the basis of an agreement in favor of a third party, and the recipient of the goods is a third party in such an agreement * (531). At the same time, it should be noted that, in some contradiction to the construction of the contract in favor of a third party, the recipient of the goods also acquires certain obligations to the carrier (Articles 792, 796 of the Civil Code; clause 2 of Article 103 of the VC; Article 111, Articles 72, 73 etc. KVVT, part 2, article 17 UAT, etc.).
In all contractual relationships that are of a continuing nature, such an element as time is of great importance. Therefore, the term is often defined as an essential condition. This is the case, for example, with a work contract, in which the legislator provides for special requirements for the definition in the contract of the initial and final dates for the performance of work (Article 708 of the Civil Code), recognizing the essential importance of the deadline.
In the definition of the contract for the carriage of goods, there is no indication of the period (Article 785 of the Civil Code). However, Art. 792 of the Civil Code determines the obligation of the carrier to deliver the goods to the destination within the time limits specified in the manner prescribed by the transport charters and codes, and in the absence of such terms, within a reasonable time * (532).
According to Art. 152 of the KTM, dedicated to the procedure for establishing a time limit and determining the route for the carriage of goods, the carrier is obliged to deliver the goods on time and by the route established by agreement of the parties, in the absence of an agreement - within the time that is reasonable to require from a caring carrier, taking into account specific circumstances, and by the usual route.
Article 33 of the UZHT determines that carriers are obliged to deliver goods to their destination and within the prescribed time. At the same time, the law establishes that the terms for the delivery of goods by rail and the rules for calculating such terms are approved by the federal executive body in the field of railway transport in agreement with the federal executive body in the field of economics. Consignors, consignees and carriers may provide in contracts for a different delivery time of goods.
Calculation of the term of delivery of goods starts from 24 hours of the day of receipt of goods for transportation. The date of acceptance of goods for transportation and the estimated date of expiration of the delivery of goods, determined on the basis of the rules for the carriage of goods by rail or on the basis of an agreement between the parties, is indicated by the carrier in the railway bill of lading and receipts issued to shippers on the receipt of goods. Moreover, the goods are considered delivered on time if, before the expiration of the delivery period specified in the railway bill of lading and the receipt of acceptance of goods, the carrier unloaded the goods at the destination railway station or wagons, containers with goods were submitted for unloading to the consignees or owners railway tracks non-public use for consignees. Goods are also considered to be delivered on time if they arrive at the destination railway station before the expiration of the delivery time specified in the railway bill of lading and the receipt of acceptance of goods and if the subsequent delay in the supply of wagons, containers with such goods for unloading occurred due to the fact that the unloading front is occupied due to reasons depending on the consignee, the payment for the carriage of goods and other payments due to the carrier have not been paid, or due to other reasons depending on the consignee, about which an act of a general form is drawn up.
The contract of carriage is of a reimbursable nature. The price of the contract of carriage is formed by the freight charge (freight). The amount of the carriage charge in this case is established by agreement of the parties, unless otherwise provided by law or other legal acts(Article 790 of the Civil Code). An exception to this rule applies to transportation by public transport; the payment here is defined on the basis of tariffs (item 2 of item 790 GK) * (533).
The Civil Code does not contain special requirements on the form of the contract of carriage, which implies an appeal to general provisions Code on the form of transactions and contracts. However, transport charters and codes establish special requirements for the form of the contract for the relevant carriage of goods. So, paragraph 1 of Art. 117 KTM obliges the parties to the contract of carriage of goods by sea to draw it up in writing * (534). A contract for the carriage of goods may be concluded on the basis of:
1) applications (orders) for railway, river, road and air transport;
2) agreements on the organization of transportation (annual, navigational, etc.) on any type of transport.
So, according to Art. 11 UZHT for the carriage of goods by rail, the consignor shall submit to the carrier a duly executed and in required quantity copies of the application for the carriage of goods. Such an application is submitted by the consignor indicating the number of wagons and tons, railway stations of destination and other information provided for by the rules for the carriage of goods by rail. In the application, the consignor must indicate the validity period of the application, but not more than 45 days. In this case, applications are submitted at least 10 days before the start of cargo transportation in direct rail traffic and at least 15 days before the start of cargo transportation in direct international traffic and indirect international traffic and in direct and indirect mixed traffic, and also if the destinations ports are specified.
On the road transport the conclusion of a contract for the carriage of goods is confirmed by the consignment note (part 1 of article 8 of the UAT 2007). At the same time, an agreement for the carriage of goods by road can be concluded by accepting the order for execution by the carrier, and if there is an agreement on the organization of transportation of goods, the application of the consignor (part 5 of article 8 of the UAT).
KVVT clearly indicates the application as the basis for the subsequent conclusion of a contract for the carriage of goods, while not forgetting to emphasize the role of the contract on the organization of transportation. In accordance with par. 1 p. 1 art. 66 KVVT "carriage of goods is carried out on the basis of contracts for the carriage of goods in accordance with the applications of consignors and contracts for the organization of transportation of goods, as well as as they are presented for transportation."
According to paragraph 2 of Art. 785 of the Civil Code, the conclusion of a contract for the carriage of goods is confirmed by the preparation and issuance of a consignment note (bill of lading or other document for the goods provided for by the relevant transport charter or code) to the sender of the goods.
In transportation relations, the principle of a single document (or a single document system) is applied, as follows from paragraph 2 of Art. 785. Allocate a system:
1) a consignment note applicable to all modes of transport (see article 25 of the UZHT; article 105 of the VC; article 143 of the KTM; article 8 of the UAT; clause 2 of article 67 of the KVVT);
2) bill of lading (Article 142 et seq. KTM) and
3) charter (clause 2, article 117 of the KTM).
The procedure for issuing transport documents is defined in detail in the rules of transportation for the corresponding type of transport, and in rail, air and road transport, a single form of basic transport documents is used for this transport. Shipping companies use their own pro forma bills of lading in water transport. According to Art. 25 UZhT upon presentation of cargo for transportation, the consignor must submit to the carrier for each shipment of cargo a railway waybill drawn up in accordance with the rules for the carriage of goods by rail and other documents provided for by the relevant regulatory legal acts. At the same time, the specified railway waybill and the receipt issued on its basis by the carrier to the consignor confirming the conclusion of the contract for the carriage of goods.
The carrier has the following responsibilities. If the contract of carriage is consensual in nature, the carrier must ensure the timely and proper delivery of the vehicle (Article 791 of the Civil Code; Articles 69, 73 of the KVVT; Articles 124, 128 of the KTM; Article 9 of the UAT). Accordingly, the shipper has the right to require the carrier to fulfill this obligation. So, according to Art. 128 KTM when transporting cargo under a charter, the carrier is obliged to deliver the ship within the time period stipulated by the charter; at the same time, if the ship is not delivered within the stipulated time, the charterer has the right to cancel the contract for the carriage of goods by sea and demand compensation for losses.
In accordance with paragraph 1 of Art. 124 KTM, the carrier is obliged in advance, before the start of the voyage, to bring the vessel into a seaworthy condition: to ensure the technical suitability of the vessel for navigation, properly equip the vessel, equip it with a crew and supply it with everything necessary, as well as bring the holds and other premises of the vessel in which the cargo is transported, in a condition that ensures proper acceptance, transportation and safety of the cargo.
Next, the carrier must deliver the goods to the destination. This duty has several components. First of all, the carrier is obliged to deliver the goods on time. This obligation arises from the urgent nature of the contract of carriage. In most cases, the terms of delivery of goods are determined in a regulatory manner. The terms of delivery of goods are calculated based on the most rational routes, unless otherwise provided by the contract of carriage.
Moreover, the cargo must be delivered safely (Art. 150 KTM; Art. 25 UZhT; Art. 15 UAT). The carrier bears this obligation from the moment the cargo is accepted for transportation until it is delivered to the consignee. In fulfillment of this obligation, the carrier is obliged to comply with the conditions and mode of transportation of individual goods (for example, maintain a certain temperature regime in refrigerated cars); apply techniques and methods of driving vehicles that ensure the safety of the transported goods (for example, it is impossible to transport sprayable cargo at high speed on an open rolling stock); carry out special measures to ensure the safety of goods (for example, to protect goods from theft).
Finally, upon the arrival of the cargo at the destination, the carrier must notify the consignee of the fact of the delivery (Art. 79 KVVT; Art. 111 VC) or the delay in delivery (Part 2 of Art. 14 UAT). The fulfillment by the carrier of this obligation predetermines the obligation of the consignee indicated in the transportation documents to dispose of the cargo (accept and export the cargo).
The shipper, in turn, has the following responsibilities. In the consensual contract of carriage, he undertakes to provide the goods for transportation on time, as well as to ensure compliance with the loading deadlines (Article 69 KVVT; Art. 10, 11 UAT; Art. 130 KTM). Further, the shipper is obliged to pay for the carriage of goods (Article 790 of the Civil Code; Article 75 of the KVVT; Article 30 of the UZhT). Payment for transportation is made by the sender, as a rule, before the delivery of the goods for transportation. Final settlements are made between the carrier and the shipper at the destination. According to Art. 163 KTM, all payments due to the carrier are paid by the sender or the charterer; in cases stipulated by an agreement between the sender or the charterer and the carrier, and when data on this is included in the bill of lading, transfer of payments to the recipient * (535) is allowed.
The carrier has the right to retain the cargo in case of failure to fulfill the specified obligation to pay for the carriage (Article 359-360 of the Civil Code; paragraph 8 of Article 79 of the KVVT; Article 35 of the UZhT; Article 160 of the KTM) * (536).
The obligations of the consignee are established by transport charters and codes, but, as noted in the literature, do not follow from Art. 430 and paragraph 3 of Art. 308 of the Civil Code, as well as at one time, did not follow from Art. 167 GK RSFSR 1964 It is "a tribute to long-term practice" * (537). At the same time, the main obligations of the consignee are the acceptance of cargo and its removal from the station (port) (Articles 11, 15 of the UAT; Articles 111, 112 of the VC; Articles 160 of the KTM; Articles 67, 79 of the KVVT; Articles 21, 35 of the UZhT) .
Property liability in transportation obligations. Property liability in the obligation to transport goods is based on general principles responsibility, enshrined in Ch. 25 GK. At the same time, it has significant specifics in comparison with liability for violation of other civil law obligations. This specificity is manifested in the conditions, form, volume and procedure for the implementation of liability measures.
First of all, due to the real nature of the contract of carriage, the so-called pre-contractual liability for the obligation of carriage and liability for violation of the actual contract of carriage are distinguished. In the first case, the relevant sanctions are established by law; in the second case, along with the sanctions provided for by law, sanctions imposed by the parties themselves may be applied.
At the same time, Art. 793 of the Civil Code establishes an important rule that agreements between transport organizations and cargo owners cannot limit or eliminate the statutory liability of carriers: such agreements are declared invalid in advance. Exceptions are cases provided for the carriage of goods (but not passengers / luggage) by transport charters and codes * (538). However, the parties have the right to establish in the contract liability for violation of obligations for the carriage of goods, when it is not provided for by law, as well as increase the liability established by law (Article 123 of the VC).
Exclusively by law, liability is established for violation of the obligation to fulfill submitted and satisfied orders (applications) for the carriage of goods (clause 1 of article 794 of the Civil Code). The current transport charters and codes establish the liability of the carrier and consignor for non-delivery and non-use of vehicles in the form of payment of fines and penalties, which are in the nature of an exceptional penalty (Article 100-102 UZHT; Article 115 KVVT).
However, the new UAT provides, along with the payment by the carrier of a penalty in the form of a fine or a penalty fee, also provides for the possibility of recovery by the consignor (charterer) from the carrier (charterer) of the losses caused "in the manner prescribed by law Russian Federation"(part 4 of article 34 UAT) * (539).
For infringement of terms of loading the penalty is provided (item 43 UZhT, item 35 UAT) * (540).
In case of delay in the delivery of cargo, the shipper has the right to collect a fine (penalty) from the carrier, the amount of which depends on the duration of the delay and is usually calculated as a percentage of the carriage charge. Collection of a fine (penalty) is possible if the carrier is at fault, but at the same time, his fault in the delay is assumed. The carrier pays a fine in the amount of 10 to 90% of the carriage charge (in air transport - up to 50%), depending on the duration of the delay.
The extent of the carrier's liability for non-safety of cargo is limited by law. Unlike other civil law obligations, the principle of full compensation for harm does not apply here. According to paragraph 2 of Art. 796 of the Civil Code, damage caused during the carriage of goods is compensated by the carrier:
in case of loss or shortage of cargo - in the amount of the value of the lost or missing cargo;
in case of damage (spoilage) of the cargo - in the amount by which its value has decreased, and if it is impossible to restore the damaged cargo - in the amount of its value;
in case of loss of cargo handed over for transportation with the declaration of its value - in the amount of the declared value of the cargo.
At the same time, the carrier bears responsibility for the non-safety of the cargo only if it is his own fault, although he is an entrepreneur. This circumstance is regulated in detail by the provisions of Art. 119 VK; Art. 161, 162 KTM; Art. 42, 96 UZHT; Art. 34 UAT; Art. 117 KVVT. Paragraph 1 of Art. 796 of the Civil Code does not contain a mention of the carrier's fault as a condition of his liability, however, it is generally recognized that the carrier is not liable in the presence of circumstances that he "could not prevent and the elimination of which did not depend on him" * (541).
The transport charters and codes contain a list of circumstances, proving the presence of any of which the carrier is exempted from liability for improper (unsafe) transportation (Article 95 of the UZhT; Article 118 of the KVVT; Clause 5 of Article 34 of the UAT). So, in Art. 118 ITC mentions such circumstances as the presence of restrictions or prohibitions on the movement of ships for the period of such restrictions or prohibitions; saving the life of people or property on the water; the presence of incorrect actions and instructions of the consignor or the sender of the towed object in case of evidence of such actions and instructions; the presence of hidden defects in the container, cargo or its properties; the established difference in the weight of the cargo within the limits of natural loss, decrease in humidity and discrepancy between the norms in the readings of weighing instruments, as well as the difference in the weight of the cargo accepted for transportation based on the weight determined by the consignor without the participation of the carrier; delivery of cargo on a serviceable vessel with serviceable locking and sealing devices or accompanied by a representative of the consignor, consignee without locking and sealing devices, if there is a note about this in the consignment note, etc.
This list is not exhaustive, so the carrier has the right to prove other circumstances that indicate the absence of his fault.
It should be noted that there are no indications in the Civil Code, according to which transport charters and codes may provide for cases when the proof of the carrier's fault in the failure to preserve the cargo is assigned to the cargo owner * (542).
A predetermined distribution of the risk of loss should be distinguished from property liability for violation of the obligation to transport. True, it is currently used only in maritime law, which knows the concept of "accident". The accident can be general and private. In case of general average, losses are inflicted in the interests of all participants in the carriage (Article 284 of the KTM). At the same time, losses must be of an extraordinary nature and be the result of intentional and reasonable actions in order to save the ship, cargo or freight from a common danger for them. They are distributed among the owner of the ship, cargo and freight in proportion to their value.
In the absence of general average conditions, a partial accident occurs. For example, excessive fuel consumption to overcome a headwind would be a private accident, since these expenses are not extraordinary, but are the result of normal maritime hazards. In this case, the losses are attributed to the participant in the carriage who actually incurred them.
Procedural features of imposing responsibility on the parties to the contract for the carriage of goods. The procedural legislation establishes the principle of exclusive jurisdiction in cases from the carriage of goods: claims against the carrier arising from the contract for the carriage of goods, including if the carrier is one of the defendants, are brought to the appropriate court at the location of the carrier * (543).
In the event of a dispute between the parties to the contract for the carriage of goods, the procedure for filing a claim is required (part 5, article 4 of the APC; part 3, article 30 of the Code of Civil Procedure). This means that before filing a claim against the carrier, it is mandatory to file a claim against him in the manner prescribed by the transport charter or code (Article 797 of the Civil Code; Article 24 of the VC; Article 120 of the UZhT; Part 2 of Article 39 of the UAT; Article 403 of the KTM; article 161 KVVT). An exception to this is the provision of art. 403 KTM, providing that the obligation to make a claim remains in cabotage, i.e. during sea transportation between the ports of the Russian Federation).
A claim should be understood as a written demand addressed to the carrier for the payment of a fine or compensation for losses in connection with the improper performance of the carriage obligation. The claim from the contract for the carriage of goods is presented to the management of the destination station * (544).
When filing a claim, it is necessary to submit a commercial act, which is a document certifying damage to the cargo, its shortage, individual violations of the contract that arose in the process of its execution * (545).
The term for filing a claim is, as a rule, 6 months, for fines - 45 days (Article 123 UZhT; Art. 126 VC) * (546).
The legislator obliges the carrier to respond to the claim of the consignor or consignee within 30 days (paragraph 2 of article 797 of the Civil Code). In transport charters and codes, the specified period is specified. So, according to par. 1 st. 124 UZHT, the carrier is obliged to consider the received claim and notify the applicant in writing of the results of its consideration within 30 days from the date of receipt of the claim. In accordance with paragraph 1 of Art. 128 BK, the carrier is obliged within 30 days from the date of receipt of the claim to consider it and notify the consignor or consignee in writing of the satisfaction or rejection of the claim.
In case of partial or complete rejection of the claim or in case of non-receipt of a response to the claim within the appropriate period, the person who filed the claim has the right to file a claim.
The limitation period for claims from a contract for the carriage of goods is one year (clause 3, article 797 of the Civil Code; article 408 of the KTM; clause 3 of article 164 of the KVVT; article 42 of the UAT). At the same time, the limitation period begins to expire from the moment determined in transport charters and codes * (547).
Organizational prerequisites for concluding a contract for freight transportation. The transportation of goods is always preceded by the agreement of the main conditions of transportation (the timing and number of vehicles required for transportation, as well as the volume and nature of the goods transported). The main task of such harmonization is the most rational and economical use of transportation means that meets the demands of the market. In a period when administrative principles prevailed in the regulation of the economy, the vast majority of transportation was planned centrally. That is why all transport charters and codes included sections on transportation planning. At present, transportation planning, as a rule, is of a technical and economic, and not of an administrative and legal nature.
By general rule enshrined in Art. 784 of the Civil Code, transportation of goods, passengers and luggage is carried out on the basis of a contract of carriage. The conclusion of a contract for the carriage of goods requires the presence organizational background. They are embodied in the counter actions of the parties to the obligation of transportation: the carrier must submit serviceable vehicles for loading, and the consignor– present the goods for transportation(Article 791 of the Civil Code). The prerequisites for concluding a freight transportation agreement today can acquire legal forms: a) applications(orders) on railway, river, road and air transport; b) contracts for the organization of transportation(annual, navigation, etc.) on any type of transport; in) administrative and planning acts in the special cases mentioned. In addition, sometimes all the organizational prerequisites for concluding a contract for the carriage of goods are simply contained in the contract of carriage, having a consensual nature.
With the system applications(orders) shippers provide the carrier with information about their needs for transportation. In railway transport, ten-day applications are especially distinguished (Article 18 of the TRA), and in export transportation - half-month applications. The filing of an application ensures the beginning of the process of transportation of goods, but is not considered an offer in the contract of carriage.
Agreement on the organization of transportation is in the manner prescribed by Art. 798 GK. This form of relationship between the carrier and the cargo owner is used in the systematic transportation of goods on a long-term basis. The essence of this agreement is that the carrier undertakes to accept, and the cargo owner, to present for transportation goods in the stipulated volume in a timely manner. By its nature, it is not a contract of carriage, it is consensual, mutual in nature and is aimed at ensuring the planned dispatch of goods. Contracts on the organization of transportation have received different names in transport charters and codes (annual contract - for road transport, a long-term contract for the organization of maritime transportation - for maritime transport, etc.). The essential terms of the contract are the volumes and terms for the provision of vehicles and the presentation of goods for transportation, the procedure for calculating the parties, etc.
Carrying out the actions specified in Art. 791 of the Civil Code, occurs in the manner prescribed by transport legislation. The carrier is obliged submit vehicles in quantity, agreed with the consignor, in the stipulated term and in a certain place. In established cases and in agreement with the sender, it is allowed to supply vehicles in a larger quantity than indicated in the application (in order of concentration). Terms of submission of means of transport (tonnage) are determined by agreement of the parties or in accordance with the normative procedure. The conditions and procedure for the supply of means of transport (on the sidings or berths owned by the consignor, or on the roads and public berths) are established by special rules that are in force
yut on certain modes of transport. So, in railway transport, the procedure for supplying wagons to sidings is determined by an agreement for the operation of sidings or an agreement for the supply and cleaning of wagons, taking into account the size of the average daily loading or unloading. Submission of wagons for loading by means of the consignor on the public track is carried out upon prior notification or at certain intervals. The originally set time for the delivery of vehicles can be changed by agreement of the parties. The place of delivery of vehicles depends on the characteristics of their operation and the technical capabilities of the carrier and the sender. In air transport, for example, it will be the location of the airfield (airport) or a specially equipped runway. In road transport, the technical capabilities of which allow conveyances to be delivered directly to the warehouses of the clientele, the place of their supply is usually the warehouse of the consignor or another point specified in the order (contract). When transported by rail and water transport vehicles are served at stations (piers, berths), ports, both public and belonging to the senders.
In accordance with Art. 791 of the Civil Code, the carrier is obliged to submit to the consignor vehicles in good condition for transport the corresponding cargo. The serviceability and suitability of the means of transport must be technical and commercial and ensure the safety of the cargo during transportation. The vehicle is delivered cleaned of cargo residues and debris or washed and disinfected, etc. At the same time, the consignor of the cargo entitled refuse submitted vehicles that are not suitable for the carriage of the corresponding cargo. On the contrary, it is the responsibility of the consignor to check the commercial suitability of the vehicle, which, unlike the carrier, has a better knowledge of the properties of a particular cargo. For maritime transportation, the seaworthiness of the vessel (Article 124 of the KTM) is of great importance, including both technical (seaworthiness of the vessel for navigation in general) and its commercial characteristics (suitability for the carriage of certain cargo under specific conditions).
The obligation of the carrier to deliver the vehicle corresponds to the obligation of the sender present the goods for transportation. Conditions for the delivery of goods for transportation are general, which are subject to fulfillment in all cases, regardless of the specifics of the cargo, and special which are used in the transportation of goods with special properties. General conditions apply quantity and denominations cargo, determination of its weight, tare(packaging), markings and value declarations. Special - set for goods, the transportation of which requires compliance with special measures and conditions for their transportation. Thus, when transporting many types of cargo, it is necessary to present a certificate of their quality, and when transporting animals and birds, quarantine (veterinary) documents.
Quantity and genus cargo to be handed over for transportation is determined by the application, the agreement on the organization of transportation or the contract of transportation itself. Replacement of one cargo by another is allowed with the consent of the carrier. The goods presented for transportation must be correctly named. Goods requiring protection from loss, deterioration or damage must be presented in proper container, standards, or at least ensuring their complete safety. If this requirement is not met, the transport organization has the right to refuse to accept the goods. At the discretion of the sender, the goods may be handed over for carriage with declared value. The use of the latter makes it easier to prove the value of the cargo in case of its loss and damage. One of the conditions ensuring the safety and individualization of cargo during transportation is its marking, i.e. the application of certain inscriptions and conventional signs to the cargo to determine the ownership of the cargo, its features, the observance of precautionary measures (for example, “top”, “glass”, “do not turn over”), etc.
Cargo weight can be determined: a) by weighing (air and often other modes of transport); b) by stencil on each package; c) according to the standard when transporting goods packed in containers of standard capacity; d) by calculation (for example, according to the measurement or draft of the ship); e) conditionally (animals, cars, etc.). The method of determining the weight is indicated in the transport documents. Unless otherwise provided by law or contract, the weight of the cargo is determined by the person who performs the loading.
By performing these actions, the parties enter into a contractual relationship.
The contract for the carriage of goods and its conclusion. The contract is concluded by the transport organization and the consignor (cargo owner). If, after delivery to the destination, the cargo is subject to release to the sender himself, then the circle of participants in the obligation of carriage is limited to this. Most often, however, a third party is indicated as the consignee, which is the counterparty of the sender under the contract (purchase and sale, etc.). He must be given the goods at the destination.
The contract for the carriage of goods is defined as an agreement by virtue of which the carrier undertakes to deliver the goods entrusted to him by the sender to the destination and issue it to the person authorized to receive the goods (the recipient), and the sender undertakes to pay the established fee for the carriage of goods (Article 785 of the Civil Code).
It follows from the definition that the contract for the carriage of goods - mutual and compensated. It is considered concluded only after the goods have been handed over to the carrier and, therefore, is one of the real contracts. However, the contract of carriage concluded in the form of a charter contract (Article 787 of the Civil Code) is consensual. The contract for the carriage of goods is strictly formal contract. It is always concluded in writing, and often in compliance with the mandatory details that are established by law.
As a rule, the contract for the carriage of goods is public character (Art. 789, 426 of the Civil Code, Art. 20 of the Law on Federal Railway Transport). However, in order to recognize the contract of freight transportation as public, a number of conditions must be met. Firstly, a specialized commercial organization carrying out transportation should act as a carrier. public transport. Secondly, in accordance with the transport legislation or license, this organization should be endowed with the functions of a public carrier, obliged to carry out transportation at the request of anyone who applies. Thirdly, this organization should be included in a special list of persons obliged to carry out transportation by public transport, which is subject to mandatory publication.
For the conclusion of the contract, single document system provided for in paragraph 2 of Art. 785 GK. Filling out and issuing such a document is of great evidentiary value. Depending on the type of document executing the transportation, the following are distinguished: a) system overhead, used in almost all modes of transport, and b) the system bill of lading, commonly used in maritime transport. In some cases, the systems can be combined.
The procedure for concluding a contract of carriage depends on its nature. The conclusion of a real contract is timed to the moment of delivery of the cargo to the carrier along with the accompanying documents. If the carriage is formalized by a consensual charter agreement, it is concluded in general order provided for civil law contracts.
Freight transportation contracts are subdivided according to the types of transport into railway, road, inland waterway, sea and air transportation contracts. On a territorial basis, they are divided into domestic and international. Depending on the number of transport organizations involved in the transportation of goods, transportation contracts are allocated in local, direct and direct mixed communication. Local is the transportation carried out by one transport organization
tion, within the territorial boundaries of its activities (for example, rail transportation from St. Petersburg to Moscow within the Oktyabrskaya railway). Transportation, in which several transport organizations of the same type of transport participate under a single transport document, is called direct transportation (for example, rail transportation from St. Petersburg to Nizhny Novgorod). Direct mixed transportation is recognized as transportation in which at least two modes of transport participate, carrying out transportation according to a single document drawn up for the entire route (for example, transportation of goods from St. ). The procedure for such transportation is determined by agreements between organizations various kinds transport, which should be concluded on the basis of a special law on direct mixed (combined) transportation (Article 788 of the Civil Code). In this case, enterprises of various types of transport conclude agreements on the organization of work to ensure the transportation of goods (nodal agreements, contracts for centralized import and export of goods, etc.) in the manner prescribed by transport legislation (Article 799 of the Civil Code). If the cargo will follow from St. Petersburg to Moscow according to the railway waybill, and from Moscow to Volgograd - according to a new shipping document issued by the sender after receiving the cargo from the railway, then there is an ordinary multimodal transportation (cotransportation). It includes two contracts of carriage - by rail and by water.
Elements of a freight carriage obligation.The subjects of the obligation are primarily the carrier and shipper. Consignors of goods can be any subjects of civil law. On the contrary, only a commercial organization or an individual entrepreneur entitled to carry out cargo transportation by law or on the basis of a license can be a carrier. Those persons who, although they have a license for transport activities, are not carriers, but carry out the movement of goods for their own needs.
The contract is usually concluded with the transport organization of the point of departure of the goods. If the carriage is carried out within the scope of the transport organization that has concluded the contract, then it is the subject of the contract on the side of the carrier.
In the case of direct transportation by one mode of transport or direct multimodal transportation, an obligatory legal relationship arises with a plurality of co-carriers. Each of them, accepting the cargo from the previous organization, fulfills its obligation to transport in the corresponding section of the movement of the cargo, arising from the contract that was concluded by the first transport organization. When concluding a contract of carriage, the transport organization of the point of departure acts both on its own behalf and on behalf of all other persons participating in the performance of the obligation of carriage as their representative. Representation in this case is based on the indication of the law (as is the case in railway transport) or on agreements between transport organizations. Co-carriers become subjects of legal relations for transportation, and the sender agrees to their participation in the contract by signing the waybill, which indicates the route and points of transshipment. Finally, in certain cases the only carrier is the combined transport operator. Then the multiplicity of persons on the side of the carrier does not arise. The consignee, who does not coincide with the sender and does not participate in the conclusion of the contract of carriage, nevertheless acquires rights and bears certain obligations to the carrier. In such cases, the consignee acts as a special subject of the transportation obligation - a third party in whose favor the contract is concluded. It cannot be considered either as an independent (third) party to the contract of carriage, or as one
parties with the sender, nor as a person accepting performance for the sender. Thus, a contract for the carriage of goods is a contract in favor of a third party.
Subject transportation contracts - services for the delivery of material assets (cargo) entrusted to the carrier to the destination. These services include not only the actual transportation of goods, but also other actions, in particular storage, delivery of goods to the recipient, often loading and unloading. Each of these actions, taken separately, resembles the subject matter of other civil law contracts. Thus, the provision of cargo transportation services, as well as the performance of loading and unloading operations, brings the transportation contract closer to work contracts and paid provision services. Since the vehicles during the loading period are actually used in the interests of the clientele, there is a similarity of transportation with a lease agreement. The obligation of the carrier to ensure the storage of goods indicates the presence of elements characteristic of storage. The issuance of cargo by the transport organization to the recipient at the direction of the sender resembles the action of an attorney (agent) under an agency agreement. However, both loading and unloading of cargo, and its storage and delivery only accompany the purpose of the contract of carriage. The legal nature of any contract is determined by its main purpose, and not by the moments accompanying it. Such a purpose in the contract of carriage is the transportation and delivery of goods to destinations. The fulfillment of all these actions is only a condition for the proper fulfillment of this obligation by the transport organization. It is she who determines the allocation of the contract of carriage in the system of obligations as an independent one.
Term in the obligation of carriage, this is the period of time during which the goods must be delivered to the destination. In accordance with Art. 792 of the Civil Code, the carrier is obliged to deliver the goods to the destination within the time limits specified by the transport legislation, and in the absence of such terms - within a reasonable time. In a number of cases, in road and sea transportation, delivery times are determined by agreement of the parties, and in its absence, by the usually accepted terms (terms that are reasonable to require from a caring carrier, taking into account specific circumstances - Article 152 of the KTM). In the case of direct multimodal transportation, the delivery times are determined by the totality of the times calculated on the basis of the rules in force for the respective modes of transport. The delivery time is observed if at the point of destination the cargo is unloaded by the means of the carrier or the wagons (vessels) are submitted for unloading by the means of the recipient before the expiration of the established (agreed) delivery time. This takes into account the special circumstances that caused the delay in the delivery of goods. For example, a delay in delivery is not considered a delay in the delivery of goods that followed in a direct mixed railway-water traffic and remained in ports or piers after the closure of navigation.
Content Contracts for the carriage of goods constitute the rights and obligations of the parties. Loading and unloading cargo are carried out by the transport organization or the sender (recipient) in the manner prescribed by the contract, in compliance with the rules of transport legislation (clause 2 of article 791 of the Civil Code). Responsibilities for loading and unloading are distributed among the parties to the obligation of carriage, depending on the place of loading. Transport organizations independently carry out loading and unloading in public places. In other places (warehouses, berths, etc.), loading and unloading operations are carried out respectively by the sender and the recipient at their expense. The transport organization can take over the performance of these works under special agreements with the clientele. Auxiliary materials or special devices necessary for loading and unloading are provided by the consignor, unless otherwise provided by the rules of transportation or by agreement of the parties. The transport organization is usually not responsible for the non-safety of the cargo if its loss (damage, spoilage) occurred due to circumstances related to the actions of the sender during loading.
Only in maritime transport, the carrier is responsible in all cases for the correct placement, securing and separation of goods on the ship.
Loading and unloading, carried out by the forces and means of the sender (recipient) of the cargo, must be carried out within the time period stipulated by the contract, if such time periods are not established by transport charters, codes and rules issued in accordance with them (clause 3 of article 791 of the Civil Code). In most of the existing transport acts and rules, standard unloading periods are established. In maritime transport, the duration of the terms of loading and unloading, called lay time (stage), is determined by agreement of the parties, and even more often - by the terms adopted in the respective ports (Article 130 of the KTM). The parties may set additional term waiting for the vessel under cargo operations - counter lay time (counter lay). For demurrage of the vessel during this period, a special fee is also established - demurrage(Art. 132 KTM). If the cargo operations are not completed even during the counter lay time, the carrier may send the vessel to sea, even though the loading of the vessel has not been completed. At the same time, he retains the right to full remuneration (Article 136 of the KTM).
If the loading or unloading is not completed within the established timeframe, a demurrage of means of transport occurs, for which a fine is collected from the sender or recipient. In case of early loading (unloading), on the contrary, a premium is paid to the consignor (consignee) (for sea transportation - dispatcher). In order to prevent access to the cargo and ensure its safety during transportation, separate premises and containers (holds, covered wagons, tanks, etc.) must be sealed.
Making a carriage charge (freight on sea transport) and other payments is the most important responsibility of the consignor. Its size is established by agreement of the parties, unless otherwise provided by transport legislation (Article 790 of the Civil Code). Such an exception is made in relation to public transport, where the freight charge takes the form of a fixed tariff, approved in the manner prescribed by transport charters and codes. The size of this tariff is determined by federal executive bodies and governing bodies of the constituent entities of the Russian Federation.
The freight charge must normally be paid by the consignor at the conclusion of the contract of carriage. It is also allowed to transfer the payment obligation to the recipient (see, for example, Art. 163 KTM). The distribution of payment obligations also depends on the terms of the contract concluded between the sender and the recipient. They can determine in different ways the moment of transfer of payment obligations in transportation from one party to another, depending on the conditions for the transfer of goods (from the factory, from the sender's warehouse, from the departure station, from the destination station, at the recipient's warehouse). In addition to the carriage fee, the sender is obliged to pay for additional services rendered to him (for example, for weighing, for storing cargo). They are paid by agreement of the parties.
The carrier has the right to retain cargo (Articles 359, 360 of the Civil Code, paragraph 8 of Article 79 of the KVVT, paragraph 2 of Article 160 of the KTM, etc.) in order to ensure the carriage due to him and other payments. However, the right of retention may be weakened or revoked by law, other legal acts, an agreement, or not applied due to its inconsistency with the essence of the obligation that has arisen.
Cargo delivery is the main responsibility of the carrier. Its execution requires not only compliance with the delivery time, but also ensuring the safety of the transported cargo. The carrier is responsible for the safety of the cargo from the moment it is accepted for transportation until it is delivered to the recipient. He is obliged to take all possible and depending on him measures to ensure the safety of the cargo. After acceptance for transportation, the cargo is stored at the point of departure, as well as during transportation free of charge. The storage fee is charged if the cargo is delivered before the date of its acceptance for transportation. After the cargo arrives at the point
destination, it is stored free of charge for the time established by law or by agreement of the parties, and then for a fee.
When transporting goods in direct mixed traffic, the carrier is also obliged to transfer the goods to another mode of transport (transshipment). The procedure for transferring cargo, performing loading and unloading operations and other working conditions in this case are determined by contracts of transport organizations (nodal agreements, etc.).
In the course of transportation, the contract may undergo two types of changes. Firstly, the consignor has the right to change the consignee specified in the consignment note without changing the point (station, port) of destination. Secondly, it is allowed to change the destination of the cargo, i.e. its redirection. An application for redirection of cargo can be submitted by the consignor, consignee, as well as other persons duly authorized to do so. The forwarding conditions differ mainly depending on the mode of transport. So, on inland waterway, road, sea and air transport, the redirection is subjective right person and, as a general rule, does not depend on the consent of the carrier (Article 78, paragraph 6 of Article 79, Article 84 of the KVVT, paragraph 3 of Article 72 of the UAT and section No. 8 General rules transportation of goods by road, paragraph 2 of Art. 149, Art. 153 KTM, Art. 110 VK). In railway transport, redirection is possible only with the consent of the carrier, and therefore, until such consent is received, the consignor (consignee) does not have a subjective right to redirect (Articles 37, 49, 50 of the TUZhD, clauses 2, 9 of the Rules for the redirection of goods in railway transport).
Transportation, depending on the type of transport, can be issued when forwarding with new shipping documents drawn up by the forwarding station (port, pier) (in particular, waybill, electronic waybill) or carried out using the same documents. With an increase in the time of transportation of goods due to redirection, the time of its delivery changes. The person, at the request of which the change in the consignee or destination of the cargo, is responsible for the consequences of these changes and is obliged to settle the settlements between the sender, the original addressee and the actual recipient of the cargo (clause 3, article 78 of the KVVT, articles 38 - 39 of the TCAR, clause 19 Rules for the redirection of goods on railway transport).
Operations for issuance and acceptance cargo completes the execution of the contract of carriage. The cargo arrived at the recipient's address must be accepted by the recipient, and, in appropriate cases, also taken out of the station (port, pier). On railway transport for any transportation (Article 49 of the TUZhD), and on road transport for international transportation or for centralized export of goods from railway stations, from ports (piers) and from airports (part 4 of Article 72 of the UAT), such an obligation lies with the consignor even when a cargo not ordered by him arrived at his address. In this case, the cargo is accepted for safekeeping and its further fate is determined by the sender. The recipient has the right to refuse to receive the goods only on condition that the quality of the goods has changed so much as a result of damage or damage that the possibility of its full or partial use is excluded (Article 42 of the TURR, Article 79 of the KVVT, Article 111 of the VC, Article 72 of the UAT) .
The receipt of the goods must be properly documented, which is covered by the concept crediting of documents or redemption of cargo and certified accordingly on the waybill (bill of lading). To fulfill this obligation, the recipient must be notified of the arrival of the goods in the manner and within the time limits established for the respective mode of transport. Only in road transport, which ensures the delivery of goods directly to the warehouse of the recipient, it is not always necessary to notify the latter of the arrival of the goods. Violation of this obligation by the carrier deprives him of the right to collect from the consignee a fee for excess storage of cargo and demurrage of vehicles. In cases provided for by law, the recipient has the right
ve to require verification of the quantity, weight and condition of the cargo arrived. Circumstances identified during the inspection that may serve as a basis for the carrier's liability must be certified by a commercial act, a general form act, and entries in the shipping documents.
The consignee is obliged to accept (take out) the cargo within the established time limits. If they are violated, the costs of storing cargo in excess of the free storage period are assigned, depending on the type of transport and the stage of development of the transportation obligation, to the consignee, consignor or (in maritime transport) to any person authorized to dispose of the cargo (Article 43 TUZhD, paragraph 1 article 112 of the VC, paragraph 3 of article 79 of the KVVT, article 159 of the KTM). Upon the expiration of the established storage period, the cargo as unclaimed is subject to sale in the prescribed manner. Undocumented goods are also subject to sale, i.e. goods that arrived without accompanying documents.
3.1. Organizational prerequisites for concluding a contract for freight transportation.
The transportation of goods is always preceded by the agreement of the main conditions of transportation (the timing and number of vehicles required for transportation, as well as the volume and nature of the goods transported). The main task of such harmonization is the most rational and economical use of transportation means that meets the demands of the market. In a period when administrative principles prevailed in the regulation of the economy, the vast majority of transportation was planned centrally. That is why all transport charters and codes included sections on transportation planning. At present, transportation planning, as a rule, is of a technical and economic, and not of an administrative and legal nature.
According to the general rule enshrined in Art. 784 of the Civil Code, transportation of goods, passengers and luggage is carried out on the basis of a contract of carriage. The conclusion of a contract for the carriage of goods requires the presence of organizational prerequisites. They are embodied in the counter actions of the parties to the obligation to transport: the carrier must submit serviceable vehicles for loading, and the consignor must present the cargo for transportation (Article 791 of the Civil Code). The prerequisites for concluding a freight transportation agreement today can take legal forms: a) applications (orders) for rail, river, road and air transport; 6) agreements on the organization of transportation (annual, navigation, etc.) on any type of transport; c) administrative-planning acts in the mentioned special cases. In addition, sometimes all the organizational prerequisites for concluding a contract for the carriage of goods are simply contained in the contract of carriage itself, which has a consensual nature.
In the application (order) system, consignors provide the carrier with information about their needs for transportation. In railway and river transport, ten-day applications stand out (Art. 28 UZhD and Art. 61 UVVT). The filing of an application ensures the beginning of the process of transportation of goods, but is not considered an offer in the contract of carriage.
The agreement on the organization of transportation is concluded in the manner prescribed by Art. 798 GK. This form of relationship between the carrier and the cargo owner is used in the systematic transportation of goods on a long-term basis. The essence of this agreement is that the carrier undertakes to accept, and the cargo owner, to present for transportation goods in the stipulated volume within the established time limits. By its nature, it is not a contract of carriage, it is consensual, mutual in nature and is aimed at ensuring the planned shipment of goods. Contracts on the organization of transportation received a different name in transport charters and codes (annual contract - for road transport, navigation - for inland waterway, etc.). The essential terms of the contract are the volumes and terms for the provision of vehicles and the presentation of goods for transportation, the procedure for calculating the parties, etc.
Carrying out the actions specified in Art. 791 of the Civil Code, occurs in the manner prescribed by transport legislation. The carrier is obliged to submit vehicles in the quantity agreed with the consignor, within the stipulated time and at a certain place. In established cases and in agreement with the sender, it is allowed to supply vehicles in a larger quantity than indicated in the application (in order of concentration). Terms of submission of means of transport (tonnage) are determined by agreement of the parties or in accordance with the normative procedure. The conditions and procedure for the supply of means of transport (on the sidings or berths owned by the consignor, or on the roads and berths of public use) are established by special rules that apply to certain modes of transport. So, in railway transport, the procedure for supplying wagons to sidings is determined by an agreement for the operation of sidings or an agreement for the supply and cleaning of wagons, taking into account the size of the average daily loading or unloading. Submission of wagons for loading by means of the consignor on the public track is carried out upon prior notification or at certain intervals. The originally set time for the delivery of vehicles can be changed by agreement of the parties. The place of delivery of vehicles depends on the characteristics of their operation and the technical capabilities of the carrier and the sender. In air transport, for example, it will be the location of the airfield (airport) or a specially equipped runway. In road transport, the technical capabilities of which allow conveyances to be delivered directly to the warehouses of the clientele, the place of their supply is usually the warehouse of the consignor or another point specified in the order (contract). When transported by rail and water, vehicles are delivered to stations (piers, berths), ports, both public and owned by senders.
In accordance with Art. 791 of the Civil Code, the carrier is obliged to provide the consignor with serviceable vehicles in a condition suitable for the carriage of the corresponding cargo. The serviceability and suitability of the means of transport must be technical and commercial and ensure the safety of the cargo during transportation. The vehicle is delivered cleaned of cargo and debris or washed and disinfected, etc. At the same time, the sender of the cargo has the right to refuse the submitted vehicles that are not suitable for the transportation of the corresponding cargo. For maritime transportation, the seaworthiness of the vessel is of great importance, which also embraces both technical (seaworthiness of the vessel for navigation in general) and its commercial characteristics (suitability for the carriage of certain cargo under specific conditions).
Conclusion of a contract of carriage
To conclude a contract, a single document system is used, provided for in paragraph 2 of Art. 785 PS Completing and issuing such a document is of great evidentiary value. Depending on the type of document that serves to process the transportation, the following are distinguished: a) the consignment note system used in almost all modes of transport; b) a bill of lading system; and c) a charter system, commonly used in maritime transport. In some cases, the systems can be combined.
The procedure for concluding a contract of carriage depends on its nature. The conclusion of a real contract is timed to the moment of delivery of the cargo to the carrier along with the accompanying documents. If transportation is formalized by a consensual charter agreement, it is concluded in accordance with the general procedure provided for civil law contracts.
Freight transportation contracts are subdivided according to the types of transport into railway, road, inland waterway, sea and air transportation contracts. On a territorial basis, they are divided into domestic and international. Depending on the number of transport organizations involved in the transportation of goods, transportation contracts are distinguished in local, direct and direct mixed traffic. Local is the transportation carried out by one transport organization, within the territorial boundaries of its activities (for example, rail transportation from St. Petersburg to Moscow within the Oktyabrskaya Railway). Transportation, in which several transport organizations of the same type of transport participate under a single transport document, is called direct transportation (for example, rail transportation from St. Petersburg to Nizhny Novgorod). Direct mixed transportation is recognized as transportation, in which at least two modes of transport participate, carrying out transportation according to a single document drawn up for the entire route (for example, transportation of goods from St. Petersburg to Volgograd with transshipment in Moscow from the railway to water transport) . The procedure for the implementation of such transportation is determined by agreements between organizations of various modes of transport, which must be concluded on the basis of a special law on direct mixed (combined) transportation (Article 788 of the Civil Code). In this case, enterprises of various types of transport conclude agreements on the organization of work to ensure the transportation of goods (nodal agreements, contracts for centralized import and export of goods, etc.) in the manner prescribed by transport legislation (Article 799 of the Civil Code). If the cargo will follow from St. Petersburg to Moscow according to the railway waybill, and from Moscow to Volgograd - according to a new transportation document issued by the sender after receiving the cargo from the railway, then there is an ordinary mixed transportation (co-transportation). It includes two contracts of carriage - by rail and by water.
A contract for the carriage of goods is an agreement between the parties, according to which the carrier undertakes to deliver the goods entrusted to him by the sender to the point of destination and issue it to the person authorized to receive the goods (recipient), and the sender undertakes to pay the established fee for the carriage of goods.
The contract for the carriage of goods is real, paid, bilaterally binding. The parties to the contract are the shipper and the carrier.
The subject of the contract is the activity of the carrier for the delivery of cargo to the person authorized to receive it.
The conclusion of a contract for the carriage of goods is confirmed by the preparation and issuance to the sender of the goods of a waybill, bill of lading or other document for the goods provided for by the relevant transport charter or code.
The conclusion of the contract of carriage may be confirmed by other written documents. So, for rail and inland water transportation, it is planned to draw up a road sheet, which basically repeats the information of the consignment note.
In addition, during these transportations, the consignor is issued a cargo receipt in the certificate of acceptance of the goods.
In case of loss of the consignment note by the carrier, he is obliged to draw up a copy of the consignment note on the basis of the bill of lading and issue it to the consignor.
The procedure for issuing transport documents is defined in detail in the rules of transportation for the corresponding type of transport, and in rail, air and road transport, a single form of basic transport documents is used for this transport.
In water transport, the shipping companies also use their own bills of lading pro forma.
The forms of the consignment note for certain types of transportation are determined by the relevant charters and codes or in the manner prescribed by them.
The amount of the carriage charge in a regular contract of carriage, as a general rule, is established by agreement of the parties, and the carriage charge for transportation by public transport is determined on the basis of tariffs approved in the manner established by transport charters and codes.
Responsibility for non-fulfillment and improper fulfillment of transportation obligations is established by law, as well as by the contract of carriage. If the carrier's liability is established by law, agreements to limit and eliminate it are basically void.
The basis of the carrier's liability for loss, shortage or damage to cargo is the presence of his guilt in violation of the contract of carriage. The fault of the carrier is presumed unless he proves otherwise.
The carrier's liability for loss, shortage or damage to cargo or baggage is limited to the amount of real damage caused to the sender or passenger, however, in addition to this, the carrier is obliged to return the carriage fee if it is not included in the cost of the cargo.
Damage caused during the carriage of cargo or baggage shall be reimbursed by the carrier: in case of loss or shortage of cargo or baggage - in the amount of the value of the lost or missing cargo or baggage; in case of damage (spoilage) of cargo or baggage - in the amount by which its value has decreased, and if it is impossible to restore the damaged cargo or baggage - in the amount of its value; in case of loss of cargo or baggage handed over for transportation with the declaration of its value - in the amount of the declared value of the cargo or baggage.
Contracts of carriage are traditionally divided by means of transport for contracts of carriage by rail, road, air, sea and inland water transport. In maritime transport, domestic transportation is called cabotage; at the same time, a distinction is made between small cabotage (transportation between ports of one sea basin) and large cabotage (transportation between ports of several sea basins). In road transport, there are urban (within the city), suburban (outside the city, but not more than 50 kilometers), intercity (more than 50 kilometers outside the city), inter-republican and international transportation.
Along with this, transportation carried out in local, direct and direct mixed traffic is distinguished. Local transportation are transportations within the limits of one transport organization (railway, shipping company, etc.); direct- transportation carried out by several transport organizations of the same type of transport and under one transport document; to direct mixed include transportation carried out by several transport organizations related to different modes of transport, but on the basis of one transport document<1>. At the same time, the allocation of transportation in local traffic is not confirmed in the transport legislation, since, in accordance with the above definition, they will include, for example, air transportation carried out by one airline along the route Moscow - Vladivostok, or sea transportation of goods in large cabotage by the forces of one shipping company .
However, the most important legal feature of relations for the transportation of passengers, cargo and baggage is the fact that they are drawn up not by one contract, but system of contractual obligations. Thus, the obligations between the consignor and the carrier are not limited to a contract for the carriage of a specific cargo. They arise already at the stage of submitting vehicles for loading and presenting cargo for transportation. The basis for their occurrence are: in case of systematic transportation and long-term relations of the parties - contracts on the organization of transportation, in other cases - contracts of transportation (a charter contract (charter) for sea and air transport) or contracts concluded by accepting the application (order) of the consignor by the carrier. Only the actual transportation of cargo is covered by a contract for the carriage of cargo, the execution of which (when the cargo is delivered to the recipient in public places) is the basis for terminating the transportation relationship.
But the indicated system of relations is typical only for the elementary organization of the transportation process. In real property turnover, more complex schemes of legal relations are used for registration of freight traffic. In particular, it is not uncommon for shippers to conclude agreements with motor transport organizations or with freight (forwarding) offices of other modes of transport for the centralized transportation of goods to stations, ports (at the wharf), and airports. Agreements are concluded between transport organizations on the organization of work to ensure the transportation of goods (for example, an agreement on the centralized delivery (export) of goods at the station railways, to ports (at the pier) airports). When transporting goods under a single transport document, agreements are concluded between transport organizations of various modes of transport on the procedure for organizing the transport of goods in direct mixed traffic. All these contracts give rise to civil obligations between the participants in the transportation process - the consignor, carrier, other transport organizations, and the consignee.
Thus, at present, the contract for the carriage of a specific cargo can no longer be considered as a kind of "central contract" to which various legal forms designed to serve it adjoin: relations for the carriage of goods are indeed regulated treaty system, in which this contract is only one of the varieties.
In the literature, proposals are often made to combine all contracts with the participation of transport organizations into a single category of "transport contracts" and even to single out some single " transport obligations" <1>. But in the area transport activities a variety of contracts and types and types of civil law obligations are used. For example, in the activities of maritime and air transport, a temporary chartering of a vehicle is widely used, which refers to varieties of a lease agreement; in maritime and river transport, a ship towing agreement relating to contracts for the provision of services for a fee is applied; freight forwarding services carried out on all modes of transport are covered by a completely independent freight forwarding agreement. Therefore, attempts to single out the category of "transport contracts" or "transport obligations", claiming their own place in the system of civil law obligations, seem artificial and erroneous in essence.
The actual transportation (transportation) of goods is mediated by contract for the carriage of goods, according to which the carrier undertakes to deliver the cargo entrusted to him by the sender to the destination and issue it to the person (recipient) authorized to receive the cargo, and the sender undertakes to pay the established fee for this transportation (clause 1 of article 785 of the Civil Code). This agreement is real, since the obligations of the carrier arise only in relation to such cargo, which is handed over by the consignor and accepted by the carrier for its delivery to the destination (carrier entrusted cargo). In contractual relations for the carriage of goods, in addition to the carrier and the sender, the recipient also participates, on whose side there are not only rights, but also certain obligations.
The terms of such a contract of carriage should be contained in the relevant transport document: on railway, river and air transport - in the consignment note; in maritime transport - in the waybill or bill of lading; in road transport - in the bill of lading or the act of measurement (weighing). Drawing up and issuing to the consignor of a consignment note or other transportation document at the same time serve as confirmation of the conclusion of a contract for the carriage of goods.
stand out public transport contracts when a commercial organization acts as a carrier, which, by virtue of the law, other legal acts or a permit (license) issued to this organization, is obliged to carry out transportation at the request of any person, issued public contracts.
Along with the contract for the carriage of a specific cargo, contracts on the organization of transportation and agreements between transport organizations on the organization of work to ensure the transportation of goods are also widely used.
Under an agreement on the organization of cargo transportation, the carrier undertakes to accept, and the cargo owner, to present for transportation cargo in the stipulated volume (Article 798 of the Civil Code). Such contracts are of a long-term nature and are concluded by the carrier and the cargo owner if it is necessary to carry out systematic transportation of goods. These include navigational treaties- on sea and river transport; special agreements- in air transport; annual contracts- in road transport.
Between organizations of different types of transport are also agreements on the organization of work to ensure the transportation of goods(Article 799 of the Civil Code), which determine the procedure for the transfer and receipt of goods from one mode of transport to another, as well as the conditions for the implementation of such transportation: key agreements, contracts for centralized import (export) of goods between organizations of road and other types of transport, etc.
At the same time, there are agreements on the organization of work to ensure the transportation of goods, which regulate the relationship that develops between transport organizations of various modes of transport during the transportation of goods, not covered by a single transport document(for several bills of lading), and agreements between organizations of various modes of transport with direct mixed communication. It is also possible that transport organizations of various types of transport can conclude an agreement that simultaneously provides for both obligations to ensure the transportation of goods carried out according to various transport documents, and obligations related to the organization of transportation of goods in direct mixed traffic. Such mixed contracts are, in particular, nodal agreements regulating the procedure and conditions for the interaction of transport organizations at the points of cargo transshipment.
A special place in the relationship of transportation occupies passenger carriage contract(Article 786 of the Civil Code), according to which the carrier undertakes to transport the passenger to the destination, and in the case of the passenger's baggage, also deliver this baggage to the destination and issue it to the person authorized to receive the baggage, and the passenger undertakes to pay the established fare and baggage . The conclusion of a contract for the carriage of a passenger is certified by a travel ticket and baggage check-in baggage receipt.
This contract, in contrast to the real contract for the carriage of a specific cargo, is consensual and is considered concluded after the passenger purchases a ticket or a baggage receipt. In addition, these relations are subject to consumer protection legislation, and the passenger is granted a number of additional rights.
Charter agreement (charter), according to which one party (the charterer) undertakes to provide the other party (the charterer) for a fee with all or part of the capacity of one or more vehicles for one or more flights for the carriage of goods, passengers and baggage (Article 787 of the Civil Code), differs from the contract of carriage cargo, and from the contract of carriage of the passenger. The subject of the obligation of the carrier (freighter) during the charter is the actions to provide all or part of the capacity of the vehicle for one or more flights, which predetermines the specifics of the content of this obligations <1>.
Moreover, the contractual relationship between the consignor (consignee) and the carrier arises already when the consignor submits applications (orders) for the carriage of goods and acceptance by the carrier (clause 1 of article 791 of the Civil Code), i.e. before the conclusion of the contract for the carriage of goods. From the fact of its acceptance by the carrier follows his obligation to submit vehicles for loading, as well as the obligation of the sender to present the relevant goods for transportation.
Sometimes the filing and acceptance of an application for the carriage of goods is considered not as a transaction entailing the emergence of a civil obligation, but as organizational prerequisites for a contract of carriage.<1>or some stage of the "start of the transport process"<2>. Meanwhile, from this legal fact, a typical civil law obligation arises, which cannot arise either from “organizational prerequisites” or from “the start of the cargo transportation process,” since civil law does not know such grounds for the emergence of civil rights and obligations. In other words, by filing and accepting an application between the carrier and the consignor, treaty, containing all essential conditions obligations for the submission and use of vehicles (formulated in the application accepted by the carrier).
Thus, the obligation to provide vehicles and use them always arises from the contract: a contract of carriage, an agreement on the organization of transportation, or from an agreement concluded by accepting the shipper's application by the carrier.
By at the time of the conclusion of the contract stand out:
a real contract for the carriage of a specific cargo;
all other types of contract of carriage that are of a consensual nature (contract for the carriage of a passenger, contract for the organization of the carriage of goods, etc.).
By the subject of the contract stand out:
contracts for the carriage of goods (both a real contract of carriage and a consensual contract for the organization of transportation);
charter agreement (charter).
By subject composition stand out:
contracts for the carriage of passengers;
contracts for the carriage of goods (concluded by consignors);
agreements on the procedure for organizing work to ensure transportation, concluded between transport organizations.
By goals treaties transportation is divided into:
contracts aimed at organizing transportation, the purpose of which is to determine the volume of goods transported and the number of vehicles supplied, as well as the procedure for the work of consignors and carriers (contracts on the organization of transportation; contracts for the operation of an access road and for the supply and cleaning of wagons; contracts concluded by accepting application or order of the sender);
contracts aimed at ensuring the transportation of goods, passengers and baggage and their delivery to their destination (agreements between transport organizations on the procedure for organizing transportation in direct mixed traffic; key agreements);
contracts aimed at the delivery of goods, passengers and baggage to the destination (real contract for the carriage of goods and a contract for the carriage of a passenger).
By carrier status contracts of carriage are divided into:
contracts under which transportation is carried out by public transport (which are public contracts);
contracts, the carrier under which are other transport organizations.
By contract form can be distinguished:
contracts drawn up by waybill or bill of lading (real contracts for the carriage of a specific cargo);
contracts concluded by performing conclusive actions (acceptance by a transport organization of an application or an order from a consignor; contracts for the carriage of passengers who purchase tickets directly on a bus, fixed-route taxi, etc.);
general contracts.
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