7th Symposium of Lawyers - Fedor Kormilitsyn

“Diversity of controls and sanctions in goods road transport: helping your hauliers through the maze of unharmonised applications”

Fedor Kormilitsyn,
Assistant Departmental Manager, ASMAP,
Russian Federation

The carrier's liability as regards instructions issued to him/her by other parties relating to the transport contract

The Constitution of the Russian Federation and civil legislation within the Russian Federation stipulate that commonly adopted principles and standards of international law form an integral part of the legal system of the Russian Federation, and that where the international agreement of the Russian Federation establishes rules other than those outlined in civil legislation, the rules of the international agreement apply.

Therefore, relations arising from the international agreement on road transport, concerning, among other things, the carrier’s liability, are regulated primarily by the standards of international agreements concluded by the Russian Federation, which may apply to these relations.

The CMR Convention (Convention on the Contract for the International Carriage of Goods by Road) 1956, to which the Russian Federation is a signatory, forms part of this agreement. Its standards take precedence over the standards contained in Russian legislation.

Nevertheless, as regards questions not covered by the CMR Convention, the standards of internal Russian legislation may be applied to relations arising from the international agreement for the international carriage of goods by road. 

Civil legislation within the Russian Federation contains a “transport” section, in which are detailed the general unified standards relating to transport by rail, sea, air, road and internal waterways.

As regards the carrier’s liability, civil legislation contains the following clauses:

Article 793. Liability in the event of a breach of obligations relating to transport

1. In the event of a non-performance or incorrect performance of obligations relating to transport, the parties are liable as established in this legislation, transport charters and legislation, as well as the agreement between the parties.
2. Agreements from transport organisations concluded with passengers and the owners of goods regarding limitation or waiver of the carrier’s liability, as established by law, are not valid, with the exception of cases where the option of this type of agreement when transporting goods is provided for in transport charters and legislation.

Article 794. The carrier’s liability in the event that vehicles do not arrive and the shipper’s liability in the event that the vehicles provided are not used

1. The carrier, in the event that vehicles do not arrive to transport goods in accordance with an accepted request (order) or another agreement, and the shipper, in the event that goods are not made available or the vehicles provided are not used for other reasons, are liable as established by transport charters and legislation, as well as by the agreement on behalf of the parties.
2. The carrier and the shipper of the goods are released from liability, in the event that vehicles do not arrive or are not used, where this results from:
an event of force majeure, as well as other natural catastrophes (fires, snow, floods) and military action,
a stoppage or restriction on transporting goods in certain directions in accordance with the procedure outlined in the corresponding transport charters and legislation,
in other cases outlined in the appropriate transport charters and legislation.

Article 795. The carrier’s liability for delays in transporting passengers

1. In the event of a delay in the departure of a vehicle transporting passengers or a delay in the arrival of this vehicle at its destination (with the exception of transport using an urban or suburban road network) the carrier pays the passenger a fine of an amount determined by the corresponding charter and legislation, if he/she cannot prove that the delay resulted from an event of force majeure, repairs to vehicles, dangers to the lives or safety of passengers or other circumstances beyond the carrier's control.
2. Should a passenger refuse to be transported because of a delay in the departure of the vehicle, the carrier must reimburse the passenger’s payment for transportation.

Article 796. The carrier’s liability in the event of a loss or partial non-arrival of and damage (deterioration) to goods or luggage

1. The carrier is liable for a lack of protection of goods or luggage arising after he/she has taken charge of the goods for carriage and before delivering them to the recipient, the authorised person or the person who the latter may have authorised to collect the luggage, if he/she cannot prove that the loss or partial non-arrival of or damage (deterioration) to the goods or luggage resulted from circumstances that the carrier could not prevent or that were beyond his/her control.
2. The cost of damage caused during carriage of goods or luggage is reimbursed by the carrier:
In the event of a loss or partial non-arrival of goods or luggage – an amount equivalent to the value of the lost or missing goods or luggage,
In the event of damage (deterioration) to goods or luggage – the amount by which their value has decreased, and in the event that it is impossible to restore the damaged goods or luggage – an amount equivalent to their value,
In the event of the loss of goods or luggage handed over for carriage with a declaration of their value - the declared value of the goods or luggage.
The value of the goods or luggage is defined in accordance with the value appearing on the vendor’s invoice or stated by agreement, and in the absence of an invoice or mention of a price in the agreement, on the basis of the price that would be deducted for similar goods in similar circumstances.
3. Apart from the payment of established compensation relating to the loss or partial non-arrival of or damage (deterioration) to goods or luggage, the carrier reimburses the shipper’s (recipient) payment for carriage of the lost, missing or damaged goods or luggage, if this payment does not form part of the value of the goods.
4. The documents relating to the causes of the lack of protection for goods or luggage (commercial document, document using a general form, etc.), drawn up unilaterally by the carrier, must, in the event of a dispute, be examined by the court with the other documents confirming the circumstances, which may serve as the basis for establishing the liability of the carrier, shipper or recipient of the goods or luggage.

 The general conditions of carriage for goods, passengers and luggage by these types of transport are defined in a more detailed manner in transport legislation comprising the transport charters and legislation, other laws, as well as the rules imposed by these laws.

In this sense, last year witnessed an important event in terms of the legal regulation of road transport when federal law No 259-F3 of 8th November 2007 was adopted as the “Charter for road transport and land-based electric-powered transport” (plus the law in the document known as the “new charter”). This law will come into force in mid-May 2008, in just two weeks time.

This is an eagerly anticipated document, given that prior to its adoption, apart from general rules contained in the civil legislation of the Russian Federation, road hauliers were obliged to refer to the standards appearing in the road transport charter for the Russian Soviet Federative Socialist Republic (RSFSR), which was ratified in 1969 and which has become obsolete with the move to a market economy.

The new charter contains Chapter 6 “Liability of carriers, forwarding agents, shippers, recipients, passengers and owners”.

This chapter outlines the following standards in relation to the carrier’s liability (article 34):

     1. For the non-export of goods detailed in the transport contract for goods, as a result of an error by the carrier, the latter pays the shipper a fine equating to twenty percent for transporting the goods, unless specified otherwise in the transport contract for the goods. The shipper is also entitled to require the carrier to pay compensation for losses/damage caused by the carrier, in accordance with the procedure outlined in the legislation of the Russian Federation.
     (…)
     3. For the non-arrival on time of vehicles and containers detailed in the transport contract for goods, the carrier pays the shipper, for each complete hour’s delay, a fine of the amount determined by the transport contract for the goods, and in the event that the amount of the fine is not determined by the transport contract, an amount equivalent to:
     1) five percent of the price of carriage in the case of transport using an urban or suburban road network,
     2) one percent of the average price of carriage per day, defined in accordance with the transport contract, in the case of transport using an intercity road network.
     4. The shipper or the loader, in the case mentioned in section 3 of this article, are also entitled to require the carrier or the forwarding agent to pay compensation for losses/damage they have caused, in accordance with the procedure outlined in the legislation of the Russian Federation.
     5. The carrier is responsible for protecting goods from the moment when he/she takes charge of them for carriage until the moment when they are delivered to the recipient or the authorised person, if he/she cannot prove that the loss or partial non-arrival of or damage (deterioration) to the goods resulted from circumstances that the carrier could not anticipate or prevent for reasons beyond his control.
     6. The carrier is responsible for protecting luggage from the moment when he/she accepts it for carriage until the moment when it is delivered to the person authorised to collect the luggage, if he/she cannot prove that the loss or partial non-arrival of or damage (deterioration) to luggage resulted from circumstances that the carrier could not anticipate or prevent for reasons beyond his control.
     7. The carrier pays compensation for damage caused when transporting goods of an amount relating to:
     1) the value of the lost or missing goods or luggage in the event of a loss or partial non-arrival of goods or luggage,
     2) the amount by which the value of the goods or luggage has decreased in the event of damage (deterioration) to goods or luggage, and if it is impossible to restore the damaged goods or luggage (deteriorated),
     3) the proportion of the declared value of the goods or luggage corresponding to the missing or damaged (deteriorated) proportion of the goods or luggage, in the event of partial non-arrival of or damage (deterioration) to goods or luggage handed over for carriage with the declared value,
     4) the declared value in the event of the loss of goods or luggage, as well as in the event that it is impossible to restore the goods or luggage handed over for carriage with the declared value and which may have been damaged or deteriorated.
     8. The value of goods or luggage is defined on the basis of the price of the goods or luggage appearing on the vendor’s invoice or detailed in the transport contract for the goods, by the transport contract for passengers, and in the absence of an invoice or mention of the price in the contract, the value is defined on the basis of the price that would be deducted for similar goods in similar circumstances.
     9. At the same time as paying compensation for losses/damage caused by the loss or partial non-arrival of or damage (deterioration) to the transported goods or luggage, he repays the shipper, recipient or passenger the price paid for carriage of the lost, missing or damaged (deteriorated) goods or luggage, if this payment does not form part of the value of the goods.
     (…)
     11. The carrier pays the recipient a fine for late delivery of the goods, of a sum corresponding to nine percent of the price of carriage for each day that a delivery is late, unless specified otherwise in the transport contract for the goods. The total amount of the fine for late delivery of the goods may not exceed the price of carriage. The delay in delivering the goods is calculated from midnight on the day on which the goods should have been delivered, unless specified otherwise in the transport contract for the goods. The details on the road waybill of the time at which the vehicle arrived at the unloading point is used as the basis for calculating the fine for late delivery of goods.

Article 36 of the charter includes the following reasons for exempting the carrier from liability:     

     The carrier, forwarding agent, shipper, recipient or loader are exempt from the liability outlined in articles 34 and 35 of federal law, if non-performance by the above of their obligations resulted from:
     1) an event of force majeure,
     2) a temporary limitation or ban on the movement of transport vehicles by road, enforced in accordance with the procedure specified in the legislation of the Russian Federation for reasons beyond the control of the carrier, forwarding agent, shipper, recipient or loader,
     3) other reasons beyond the control of the carrier, forwarding agent, shipper, recipient or loader.

Article 37 of the new charter partially recreates the standard appearing in point 2 of article 793 of the civil legislation of the Russian Federation mentioned above, by establishing the fact that agreements of whatever kind between carriers or forwarding agents with shippers, recipients, loaders or passengers aimed at limiting or avoiding liability are deemed to be invalid, unless specified otherwise in the charter itself.

***
The new charter is undeniably vitally important for the legal regulation of relations arising from internal road transport.

Nevertheless, the new charter contains a standard that calls into question the possibility of applying the standards of this law (in the section that does not contradict the CMR Convention) to international road transport.

Point 3 of article 1 of the new charter states that road transport of passengers, luggage and goods using the international road network will be regulated by the international agreements of the Russian Federation.

This standard may be interpreted in such a way that the clauses of internal Russian legislation and, in any case, of the new charter, may not be applied to international road transport whatever the circumstances, even where Russian law, by referring to conflicting standards for example, should be applied to relations not regulated by the international agreement.

It would appear however, that it is still too early to draw any categorical conclusions whatsoever in this regard. The question that has arisen is, as yet, unanswered – which is where practical application of the new charter may help. 

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