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Obligations for the carriage of goods, the concept of types of responsibility. Transport obligations. Agreement on the organization of cargo transportation

Introduction 3

1. General provisions on transport obligations:

1.1 Types of transport and their organizational building 5

1.2 Concept of carriage obligation 7

1.3 Organizational prerequisites for concluding a contract of carriage 9

1.4 Types of transportation contracts 15

2. Contract for the carriage of goods:

2.1 Form of the contract for the carriage of goods and the procedure for its conclusion 26

2.2 Subjects of obligations for freight transportation. Legal status of the consignee 30

2.3 Features of cargo transportation in direct mixed transport, combined transport 40

2.4 Rights and obligations of participants in freight transportation obligations arising before the conclusion of a transportation contract 42

2.5 Rights and obligations of the subjects of the contract of carriage and the consignee 43

3. Liability for violation of cargo transportation obligations:

3.1 Conditions and features of liability in freight transportation obligations 45

3.2 Responsibility of the carrier for non-delivery of vehicles and the shipper for their non-use 46

3.3 Liability for violation of the contract for the carriage of goods (subjects, grounds, volume) 48

3.4 The procedure for filing claims and claims under a freight transportation contract 51

4. Transportation of passengers and luggage 53

5. Solving a legal problem 63

6. Conclusion 65

References 67

Introduction

Transport forms an independent sphere of economic activity, living according to special rules. The role of transport is to provide specific services aimed at moving goods or people in space. Transport activity is not accompanied by the creation of new things (objects of the material world). Its value is economic effect which is created as a result of the movement of cargo, passengers and luggage to an agreed location. Therefore, transportation relations arise when there is a need for the territorial movement of objects or people using Vehicle. Typically, two entities take part in them: the transport organization (the owner of the vehicle) and the person interested in transportation. Being regulated by the rules of law, these relations take the form of legal obligations.

IN modern society There are several completely independent types of transport. Their division is due to the difference in vehicles that are used to move cargo and passengers (aircraft or sea vessel, train), as well as the different natural environment of their operation (for example, river and sea transport).

1. General provisions on transport obligations:

1.1 Types of transport and their organizational structure

Transport obligation - this is an obligation by virtue of which the carrier undertakes to deliver the cargo or passenger to the specified destination, and the sender of the cargo (luggage), the passenger or other person, undertakes to pay remuneration for the services provided to him.

Rail transportation. Being a natural monopoly, Railway remains the only mode of transport that is federally owned. Railways act as state unitary enterprises. They are managed by federal executive bodies (primarily the Ministry of Railways of Russia) in a centralized manner, but using market principles(Article 11 of the Law on Federal Railway Transport). This determines the specifics of the contract for the carriage of goods by rail.

Transportation by inland water transport. In river transport, transportation differs by type of fleet - carried out by shipping and non-self-propelled fleets, as well as on mixed river-sea vessels. Direct and local (carried out by the port fleet) transportation are also distinguished. For local transportation, the carrier is the port; in all other cases, the shipping company.

Sea transportation. Transportation by sea is classified into:

a) domestic transportation between ports of the same sea (in small cabotage);

b) internal transportation between ports of different seas (in large cabotage);

c) transportation in foreign traffic.

Local transportation is also distinguished (within the port and its waters).

Air transportation. The Air Code distinguishes between domestic air transportation, when all landing points are located on the territory of Russia, and international air transportation, in which at least one of the landing points is located on the territory of another state (Article 101 of the RF Air Code). In addition, local, direct and transit air transport are distinguished.

The legislation on air transportation distinguishes the figures of aviation enterprises, operators and carriers (Articles 61, 100 of the Air Code of the Russian Federation).

An aviation enterprise is a legal entity that can carry out any type of activity related to air transportation or aviation work on the basis of a license.

An operator is an individual or legal entity who has ownership or other legal title (lease agreement, etc.) to an aircraft and uses it for flights. The operator must have a special certificate to fly.

A carrier is an operator who has a license to carry out air transportation on the basis of relevant agreements.

Road transportation. On road transport transportation differs primarily on a territorial basis, namely:

a) urban (within the city limits, another settlement);

b) suburban (outside the city or other populated area at a distance of up to 50 km inclusive);

c) intercity (outside the above mentioned settlements at a distance of more than 50 km);

d) inter-republican (on the territory of several subjects of the Federation);

e) international (Article 5 of the Charter of Road Transport of the RSFSR 1969).

1.2 Concept of carriage obligation.

Transport forms an independent sphere of economic activity, living according to special rules. The role of transport is to provide specific services aimed at moving goods or people in transport. Transport activity is not accompanied by the creation of new things (objects of the material world). Its value lies in the economic effect that is created as a result of the movement of cargo, passengers and luggage to the agreed location. Therefore, transportation relations arise when there is a need for the territorial movement of objects or people using vehicles. Typically, two entities take part in them: the transport organization (the owner of the vehicle) and the person interested in transportation. Being regulated by the rules of law, these relations take the form of legal obligations.

However, not every territorial movement of objects or people using vehicles gives rise to an obligation to transport. The latter is characterized by a number of features. Firstly, it must be commercial and built on an equivalent-reimbursable basis. So-called technological transportation carried out by a person’s own transport (transportation of raw materials from a warehouse to a workshop, finished products to a warehouse, etc.) do not give rise to transportation obligations. Secondly, the method of travel must be taken into account. Transportation is characterized by the spatial movement of goods and persons located “on” and “in” the vehicles themselves (on the platform, on the deck, in the carriage, in the cabin, in the hold, etc.). If an object is moved by pulling and pushing (for example, a barge or raft using a tug), then special towing relationships arise. Thirdly, the bulk of transportation is carried out by so-called public carriers, specially created to provide transport services to everyone. Their functions are explained by the place of transport in the division of labor system. Transport is one of the most highly monopolized sectors of human activity, and some of its types have a natural monopoly (railway transport).

Consequently, by virtue of the obligation of carriage, the carrier undertakes to deliver the cargo or passenger to the specified destination, and the sender of the cargo (luggage), passenger or other person undertakes to pay remuneration for the transport services provided (pay freight charges).

The obligation to transport can be called the core of transport obligations. When implementing it, other obligations related to transport services (organizational and transportation, forwarding, rental, etc.) may also arise. The derivative nature of such obligations does not eliminate their independent legal significance. Close in nature, but still different from transportation, is the towing obligation. Thus, transport obligations are obligations for the transportation of goods, passengers and luggage, as well as other obligations for the provision of transport services related to transportation, or aimed at moving goods in another way.

1.3 Organizational prerequisites for concluding a contract of carriage.

Transportation of goods is always preceded by agreement on the basic conditions of transportation (timing and number of vehicles required for transportation, as well as the volume and nature of the goods transported). The main objective of such coordination is the most rational and economical use of transportation facilities that meets market demands. During the period when administrative principles prevailed in the regulation of the economy, the overwhelming majority of transportation was planned centrally. That is why sections on transportation planning were included in all transport charters and codes. At present, transportation planning, as a rule, is of a technical and economic rather than an administrative and legal nature.

According to the general rule enshrined in Art. 784 of the Civil Code of the Russian Federation, transportation of goods, passengers and luggage is carried out on the basis of a contract of carriage. Concluding a contract for the carriage of goods requires the presence of organizational prerequisites. They are embodied in reciprocal actions of the parties to the transportation obligation: the carrier must submit serviceable vehicles for loading, and the shipper must present the cargo for transportation (Article 791 of the Civil Code of the Russian Federation). Prerequisites today can be acquired legal forms:

b)contracts on the organization of transportation (annual, navigation, etc.) on any type of transport;

c)administrative 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 application (order) system, the shipper provides the carrier with information about his needs for transportation. In railway and river transport, ten-day applications are especially distinguished (Article 28 of the Charter of Railways and Article 61 of the Charter of Inland Water Transport). Submitting an application initiates the process of transporting goods, but is not considered an offer in the contract of carriage.

The contract for the organization of transportation is concluded in the manner established by Article 798 of the Civil Code of the Russian Federation. This form of relationship between the carrier and the cargo owner is used for systematic transportation of goods on a long-term basis. The essence of this agreement is that the carrier undertakes to accept within a specified time frame, and the cargo owner – to present for transportation cargo in a specified volume. By its nature, it is not a contract of carriage, it is consensual, mutual in nature and is aimed at ensuring the systematic shipment of goods. Agreements on the organization of transportation received different names in transport charters and codes ( annual contract– on road transport, navigation – on inland waterways, etc.). The essential terms of the contract are the volume and timing of the provision of vehicles and the presentation of goods for transportation, the procedure for settlements between the parties, etc.

Carrying out the actions specified in Art. 791 of the Civil Code of the Russian Federation, occurs in the manner established by transport legislation. The carrier is obliged to deliver vehicles in the quantity agreed upon with the shipper, within the stipulated time and at a certain place. In established cases and in agreement with the sender, it is allowed to deliver means of transportation to large quantities than stated in the application. The timing of delivery of transportation means is determined by agreement of the parties or in accordance with regulations. The conditions and procedure for supplying vehicles are established by special rules that apply to certain types of transport. Thus, in railway transport, the procedure for supplying cars to access tracks is determined by an agreement for the operation of access roads or an agreement for the supply and removal of cars, taking into account the size of the average daily loading or unloading. The delivery of wagons for loading by the shipper on public tracks is carried out upon prior notification or at certain time intervals. The initially established time for delivery of transportation means 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 sender. On air transport, for example, it will be the location of an airport or a specially equipped runway. In road transport, the technical capabilities of which make it possible to deliver vehicles directly to the client’s warehouses, the place of delivery is usually the shipper’s warehouse or another point specified in the contract. When transporting by rail and water transport, the means of transport are delivered to stations (piers, moorings), to ports, both public and those owned by the senders.

In accordance with Art. 791 of the Civil Code of the Russian Federation, the carrier is obliged to provide the shipper with serviceable equipment in a condition suitable for the transportation of the relevant cargo. The serviceability and suitability of transportation means must be technical and commercial and ensure safety during transportation. The vehicle is supplied cleared of residual cargo and debris or washed and disinfected, etc. In this case, the sender of the cargo has the right to refuse the submitted vehicles for those suitable for transporting the corresponding cargo. For sea transportation great importance has the seaworthiness of the vessel, which also includes both its technical and commercial characteristics.

The carrier's obligation to present the goods corresponds to the sender's obligation to present the goods for transportation. The conditions for handing over cargo for transportation are general, which must be fulfilled in all cases, regardless of the specifics of the cargo, and special, which are applied when transporting cargo with special properties. General conditions relate to the quantity and name of the cargo, determination of its weight, container (packaging), marking and declaration of value. Special – installed for goods, the transportation of which requires compliance with special measures and conditions of their transportation. Thus, when transporting many types of cargo, it is necessary to provide a certificate of their quality, and when transporting animals and birds - veterinary documents.

The quantity and type of cargo to be delivered for transportation are determined by the application, the contract for the organization of transportation or the contract of transportation itself. Replacing one cargo with another is permitted with the consent of the carrier. The cargo presented for transportation must be correctly named. Goods that require protection from loss, spoilage or damage must be presented in serviceable containers that meet the standards or at least ensure their complete safety. If this requirement is met, the transport organization has the right to refuse to accept the cargo. At the discretion of the sender, the cargo may be delivered for transportation with declared value. The use of the latter makes it easier to prove the value of the cargo in case of its loss or damage. One of the conditions ensuring the safety and individualization of cargo during transportation is its marking, i.e. applying certain inscriptions and symbols to the cargo to determine the identity of the cargo, its characteristics, compliance with safety precautions, etc.

The weight of the cargo can be determined:

a) weighing (air and often other modes of transport);

b) a stencil on each piece of cargo;

c) according to the standard when transporting goods packed in containers of standard capacity;

d) by calculation method (for example, by measurement or by the draft of the vessel);

e) conditionally (animals, cars, etc.).

The method for determining weight is indicated in the transport documents. Unless otherwise provided by law or contract, the weight of the cargo is determined by the person loading it.

By performing these actions, the parties enter into a contractual relationship.

1.4 Types of transportation contracts

Rail transportation.

The contract is drawn up with a consignment note, which is the main shipping document. It accompanies the cargo along its entire route and is issued to the consignee along with the cargo at the destination station (hence its name - shipping document). The legal meaning of the invoice is that:

a) it is a mandatory written form of the contract;

b) proves the fact of concluding the contract and embodies its content;

c) legitimizes a person to file claims and claims against the transport organization arising from improper execution of the transportation contract.

The consignment note is drawn up by the shipper, who is responsible for all consequences of incorrectness, inaccuracy or incompleteness of the information specified in it. The road has the right, but is not obligated, to verify the accuracy of this information (Article 39 of the Railways).

The contract is considered concluded from the moment the cargo is handed over for transportation along with the consignment note. The carrier makes an appropriate mark on the consignment note, and in satisfaction of accepting the cargo for transportation, issues a cargo receipt to the sender. The latter has evidentiary value in relation to the fact of concluding a contract of carriage and serves as the basis for filing a claim against the railway in the event of loss of cargo and invoice. Other transportation documents also include a road manifest, a carriage list, and a transfer sheet for direct intermodal transportation. All of them are primary accounting documents and have evidentiary value.

Tariffs for freight transportation are established on the basis of the state budget, price and tariff policies in accordance with the Law on Natural Monopolies in the manner determined by the Government of the Russian Federation (Article 10 of the Law on Federal Railway Transport). Additional work and railway services can be paid at negotiated prices. All payments due to the railroad for the transportation of goods are made by the shipper at the departure station. Violation of this obligation entails the collection of a fine in the amount established by the Railways, and the shipment of cargo may be delayed until payments are made. In addition, the road is generally exempt from liability for non-delivery of vehicles until the sender makes payments for the previous transportation. A penalty will be charged for excess storage. Final payments for the carriage of goods are made with the recipient, unless otherwise provided by the contract.

The railway is obliged to deliver the cargo to its destination within a specified time period, which depends on the distance, type of shipment, speed of transportation and other conditions. Transportation of freight and more varies high speed(Article 40 of the Ukrainian Railways), as well as transportation by passenger trains and cargo luggage. The delivery time is calculated from 24 o'clock on the day the cargo is accepted for transportation, and if the cargo was accepted for transportation earlier than the scheduled day of loading, then from 24 o'clock on the day on which the cargo must be loaded. The cargo is considered delivered on time if at the destination station it is unloaded by railway means or if the wagon (container) is submitted for unloading by the consignee before the expiration of the established delivery period. If there is a delay in the delivery of a wagon (container) for unloading for reasons depending on the recipient, the cargo is considered delivered on time if it arrived at the destination station before the expiration of the established delivery period (Article 57 of the Railways). Under various circumstances, the applicable time periods may be extended or shortened.

If there is no recipient in the area of the destination station of the cargo, the road arrives with the cargo at the direction of the sender. If instructions are not received from him before the expiration of the established storage period, the cargo is transferred as unclaimed for sale in the prescribed manner. The proceeds, minus what is due to the railway, are transferred to the recipient when he pays the cost of the cargo and to the sender in other cases.

Transportation by inland water transport.

The system of documents, their legal significance and the procedure for concluding a contract for the carriage of goods on inland water transport are close to those used in railway transport. Issues regarding the fulfillment of obligations by the parties under the contract are resolved in the same way. The main difference between them is as follows. First of all, for river transportation, deadlines for accepting goods for transportation are established. If the cargo is addressed to a point where the shipping company does not have premises suitable for storing this cargo, and the consignee did not appear for it at the time of arrival of the cargo, although he was notified in a timely manner, the cargo can be delivered by the shipping company at the expense of the consignee to the nearest point where the necessary warehouses. If this is not possible, the shipping company is obliged to notify the shipper of the consignee’s failure to appear and require instructions from the sender on how to deal with the cargo. While the ship is waiting for the unloading and acceptance of cargo, as well as while waiting for the sender’s order, a fine for demurrage of the ship is collected from it, and in the case of delivery of cargo to another point - unloading costs, fees for storing cargo at the point of forced unloading, as well as additional charges. transportation and sale of cargo (Article 99 of the Charter of Inland Water Transport).

Sea transportation.

Maritime transportation is traditionally regulated by dispositive norms, and therefore the contract takes on special significance here. The carrier is usually a shipping company (sometimes a port). A contract for the carriage of goods by sea can be concluded:

a) with the condition that the entire ship, its part or certain ship premises (holds) are provided for transportation;

b) without such a condition.

In the first case, a ship charter agreement or charter is concluded, by virtue of which one party (charterer, shipowner) undertakes to provide the other party (charterer, shipper) for a fee with all or part of the capacity of one or more vehicles for one or more voyages for the transportation of goods, passengers and luggage (Article 787 of the Civil Code of the Russian Federation). In the second case, the contract is formalized by a bill of lading.

A charter is used for the transportation of large consignments or bulk cargo, and a bill of lading is used for small-volume transportation. The bill of lading is drawn up by the carrier on the basis of the loading documents, signed by the captain of the ship and issued to the sender. It is a strictly formal security, the disposal of which means the transfer of goods. This is the difference between a bill of lading and a waybill: it does not simply accompany the cargo, but is a document of title. A bill of lading as a security can be registered, order and bearer. The bill of lading details are divided into mandatory (they are listed in the law) and optional, which are included by agreement of the parties. Among the mandatory articles. 124 of the Maritime Code refers to:

a) name of the vessel, if the cargo is accepted for transportation;

b) name of the carrier;

c) place of acceptance or loading of cargo;

d) name of the sender;

e) the destination of the cargo, and in the case of a charter, the destination or direction of the vessel;

f) the name of the recipient in the personal bill of lading or the person to whose order the bill of lading was issued (order bill of lading), or indications of the bearer nature of the bill of lading;

g) name and characteristics of the cargo;

h) the amount of the carrier's remuneration (freight);

i) time and place of issue of the bill of lading;

j) number of copies of the bill of lading;

k) captain's signature.

A document that does not contain at least one of these conditions is not considered a bill of lading. The bill of lading is usually drawn up in two copies, one of which remains with the carrier and goes with the cargo, and the other is issued to the sender and serves as the basis for receiving the cargo, as well as payments under the agreement with its recipient. At the sender's request, he may be issued several copies of a bill of lading of identical content with a note about their quantity. After the cargo is released according to one of them, the others become invalid.

The conclusion of a sea transportation contract is closely related to the choice of standard (basic) terms of sales contracts, which establish the method and place of delivery, and distribute the responsibilities for paying freight charges, insurance premiums, and also distribute the risks associated with the goods. They are collected in special international rules for the interpretation of trade terms (Incoterms).

Charter is a consensual type of contract of carriage. Since its conclusion does not indicate acceptance of the cargo for transportation and does not provide the opportunity to dispose of it, a bill of lading can also be issued during charter transportation. In this case, the relationship between the charterer and the charterer is determined by the charter, and between the carrier (charterer) and the recipient - by the bill of lading, unless there is another clause in it with reference to the charter.

An agreement to charter a vessel for a period of time – a time charter – differs from a charter. It is used both for the transportation of goods and passengers, and for achieving other purposes (conducting scientific expeditions, exploiting marine resources, conducting excursions and walks, etc.), as expressly stated in Art. 178 of the Merchant Shipping Code (MCC). By its nature, a time charter is a vehicle rental agreement, which was described above.

Freight charges (freight) are determined by agreement of the parties to the sea transportation contract, and in some cases - by tariff. In cases where the transfer of payments to the recipient is allowed (Article 154 of the Code of Transport and Communications), the cargo is issued to the latter, subject to his presentation of a document confirming the transfer of the relevant amounts.

Delivery times for goods are established in accordance with regulations and by agreement of the parties. If they are not determined, the carrier is considered to have fulfilled his obligation in relation to the deadline, provided that after loading the ship immediately set out on a voyage and moved at its usual speed, the usual route used by merchant ships during similar transportation. Deviations in transit for the purpose of saving human lives, ships and cargo at sea, as well as other reasonable deviation, if it is not caused by incorrect actions of the carrier, are not considered a violation of the contract (Article 150 of the Code of Transport and Communications).

Upon arrival of the cargo at the port of destination, the shipping company (port) is obliged to send a notice (notice) to the recipient no later than 12 o'clock the next day, even if the cargo arrived before the expiration of the delivery period. If this obligation is violated, the shipping company is deprived of the right to charge fees for storing cargo during overdue days. If it is impossible to deliver the notice to the recipient, the carrier shall notify the sender.

The consignee is obliged to accept and transport the cargo to his address within the established time frame. In case of failure of the recipient to appear or his refusal to accept the cargo, the latter is handed over by the captain of the ship for storage to a warehouse or other safe place and is stored for 2 months from the date of the ship’s arrival at the port of unloading. If the sender fails to pay all amounts due to the carrier for this transportation, the cargo is sold in the prescribed manner (Article 157 of the KTM).

The MCC, as an exception to the general rule on the inadmissibility of unilateral refusal to fulfill the contract, lists the conditions under which the contract of carriage can be terminated by one party with or even without payment of remuneration to the other party (Articles 143-145 of the MCC). Under certain circumstances, the contract of carriage is generally terminated without refusal of the parties and without the obligation to pay remuneration to each other (Article 147 of the Labor Code).

Air transportation.

The contract is formalized by a cargo waybill, which is drawn up by the sender. He is responsible for the correctness and completeness of the information provided to the carrier in the consignment note. Along with regular air transportation, an air charter agreement is actively used, in which the charterer provides the charterer with one or more aircraft (parts thereof) for air transportation of cargo or passengers and luggage for one or more flights (Article 104 of the Air Code of the Russian Federation). The nature of such an agreement is similar to a maritime charter and is determined by Art. 787 Civil Code of the Russian Federation.

The carriage charge is calculated according to tariffs or by agreement of the parties in the manner established by Art. 790 Civil Code of the Russian Federation. It is charged for the distance along the shortest transportation route in accordance with the current schedule or the distance determined by the contract. The cargo delivery time is determined by the contract of carriage and the rules of air transportation (aircraft schedule). The sender has the right to receive back the cargo delivered for air transportation, change the recipient's invoice before releasing the cargo to an authorized person, and also dispose of unclaimed cargo. In the event of a break or termination of flights, the carrier is obliged to notify the shipper and consignee about this. The carrier is obliged to inform the recipient about the time of dispatch of the cargo to the destination airport or about its location if the delivery period has expired.

The cargo is usually released to the recipient at the destination airport warehouse. The consignee has the right to refuse to accept damaged or spoiled cargo if it is determined that the quality of the cargo has changed so much that the possibility of its full or partial use in accordance with its original purpose is excluded. If the recipient does not claim the cargo within the period established by the rules of transportation or the contract, or refuses to accept it, the carrier must notify the sender. At the same time, he retains the cargo at the expense of the sender and at his risk. Cargo not received within the storage period established by the rules and the transportation contract is considered unclaimed and subject to sale.

Road transportation.

Under contract road transport, transportation by road is also usually divided into centralized and decentralized. In centralized transportation, the motor transport organization enters into an agreement with the sender, upon whose instructions the goods are delivered to the recipients. In decentralized transportation, the motor transport organization enters into an agreement with each of the recipients, on whose instructions it delivers the goods to them. Road transportation is characterized by a condition of the contract about who will forward the goods - the sender or the recipient.

The delivery of cargo for transportation is formalized by a consignment note, which is a form of contract and performs the same functions as a railway consignment note. Transportation of homogeneous cargo from one sender to one recipient over the same distance can be documented by a weighing report for the total volume of transportation performed by the vehicle during the shift. The use of a car with payment for its work at a time rate is usually documented by the sender's (recipient's) entries in the waybill.

The payment for transportation is determined by agreement of the parties to the contract on tariffs or in another established way. All payments for transportation are made by customers of vehicles, which can be both senders and recipients. Subject to the exceptions specified in the law, freight charges must be paid before the cargo is handed over for transportation. Otherwise, motor transport enterprises do not accept cargo for transportation (Article 103 of the UAT).

Cargo delivery times are established only for transportation in international traffic and are calculated from 24 o'clock on the day of acceptance of goods and payment, and for urgent orders - from the moment of acceptance of goods and payment of the cost of transportation.

Transportation of goods should be carried out over the shortest distance open to traffic by road, except in cases where, due to road conditions, transportation with an increase in mileage is more rational. In these conditions motor transport enterprise must notify the customer about the increase in transportation distance.

The cargo is delivered at the recipient's warehouse or at another place specified in the transportation order. The recipient's obligation to claim the cargo against him is based on the law. He may refuse to accept the cargo only if the quality of the cargo due to spoilage or damage for which the motor transport company is responsible has changed so much that the possibility of full or partial use of the cargo for its intended purpose is excluded. The recipient must indicate the reason for the refusal in the invoice (Article 72 of the UAT).

2. Contract for the carriage of goods:

The contract for the carriage of goods is concluded by the transport organization and the shipper (cargo owner). If, after delivery to the destination, the cargo must be handed over to the sender himself, then the circle of participants in the transportation obligation is limited by this. Most often, however, a third party is indicated as the consignee, who is the sender’s counterparty under the contract (purchase and sale, etc.). He must be given the cargo at the destination.

A contract for the carriage of goods is defined as an agreement by virtue of which the carrier undertakes to deliver the cargo entrusted to him by the sender to the destination and deliver it to the person authorized to receive the goods (recipient), and the sender undertakes to pay the established fee for the carriage of goods (Article 785 of the Civil Code of the Russian Federation).

It follows from the definition that the freight transportation contract is mutual and compensated. It is considered concluded only after the transfer of the cargo to the carrier and, therefore, is considered a real contract. Only in maritime transport, the contract of carriage, called the contract of affreightment or charter, is consensual. A contract for the carriage of goods is a strictly formal contract. It always lies in writing, and often in compliance with the mandatory details established by law.

As a rule, the contract of carriage is of a public nature (Articles 789, 426 of the Civil Code of the Russian Federation, Article 20 of the Law on Federal Railway Transport). However, in order to recognize a freight transportation contract as public, a number of conditions must be met. Firstly, the carrier must be a specialized commercial organization that carries out transportation by public transport. Secondly, in accordance with transport legislation or a license, this organization must be endowed with the functions of a public carrier, obliged to carry out transportation at the request of anyone who applies. Thirdly, this organization must be included in a special list of persons obliged to carry out transportation by public transport, which is subject to mandatory publication.

To conclude an agreement, a single document system is used, provided for in paragraph 2 of Art. 785 of the Civil Code of the Russian Federation. Filling out and issuing such a document has important evidentiary value. Depending on this document, which serves to formalize transportation, the following are distinguished:

ü consignment note system used on almost all types of transport;

ü bill of lading system;

ü charter system, usually used in maritime transport.

In some cases, systems can be combined.

The procedure for concluding a contract of carriage depends on its nature. The conclusion of the actual contract is timed to coincide with the delivery of the cargo to the carrier along with the accompanying documents. Such transportation is formalized by a consensual charter agreement and is concluded in accordance with the general procedure provided for civil contracts.

Freight transport contracts are divided by type of transport into railway, road, inland waterway, sea and air transport contracts. Based on territoriality, they are divided into domestic and international. Depending on the number of transport organizations involved in the transportation of goods, contracts for transportation in local, direct and direct mixed transport are distinguished. Local is 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 one 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 are involved, carrying out transportation under a single document drawn up for the entire route (for example, transportation of cargo from St. Petersburg to Volgograd with transshipment by the transport itself in Moscow from railway to water transport) . The procedure for carrying out 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 of the Russian Federation). In this case, enterprises of various types of transport enter into agreements with each other on the organization of work to ensure the transportation of goods (nodal agreements, contracts for centralized delivery and export of goods, etc.) in the manner established by transport legislation (Article 799 of the Civil Code of the Russian Federation). If the cargo travels from St. Petersburg to Moscow using a railway consignment note, and from Moscow to Volgograd using a new transportation document issued by the sender after receiving the cargo from the railway, then there is ordinary mixed transportation (co-transportation). It includes two contracts of transportation - by rail and by water.

2.2 Subjects of obligations for freight transportation. Legal status of the consignee

The subjects of the obligation are, first of all, the carrier and the shipper. Shippers of goods can be any subjects of civil law. On the contrary, the carrier can only be commercial organization or an individual entrepreneur entitled to carry out freight transportation by law or on the basis of a license. Those persons who, although they have a license to transport activities, but carry out the movement of goods for their own needs.

The contract is usually concluded with the transport organization at the point of departure of the goods. If transportation is carried out within the scope of activity of the transport organization that has entered into the contract, it is the subject of the contract on the side of the carrier. In case of direct transportation by one type of transport or direct mixed transportation, a mandatory legal relationship arises with a plurality of co-carriers, each of them, accepting cargo from the previous organization, fulfills its obligation to transport on the corresponding section of the cargo movement, arising from the agreement 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 others involved in the fulfillment of the obligation to transport persons, as their representative. Representation in this form is based on 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 a consignment note, which indicates the route and transshipment point. Finally, in certain cases, the sole carrier is the combined transport operator. Then there is no plurality of persons on the side of the carrier.

The consignee, who is not the same as 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. He cannot be considered either as an independent (third) party to the contract of carriage, or as one party with the sender, or 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.

The subject of the contract of carriage is 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, and often loading and unloading. Each of these actions, taken separately, resembles the subject of other civil contracts. Thus, the provision of services for the transportation of cargo, as well as the performance of loading and unloading operations, brings the contract of carriage closer to contracts for contracting and paid services. Since the transportation means during the loading period are actually used in the interests of the clientele, there is a similarity between transportation and a rental agreement. The carrier's obligation to ensure the storage of cargo indicates the presence of elements characteristic of storage. The delivery of cargo by a transport organization to the recipient at the direction of the sender resembles the action of an attorney (agent) under a mandate (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 its accompanying aspects. This purpose in the contract of carriage is the transportation and delivery of goods to their destinations. Performing all of the above actions is only a condition for the proper fulfillment of this obligation by the transport organization. It is this that determines the identification of the contract of carriage in the system of obligations as an independent one.

The term in a carriage obligation is the period of time within which the cargo must be delivered to its destination. In accordance with Art. 792 of the Civil Code, the carrier is obliged to deliver the cargo to the destination within the time limits determined by 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 usually accepted terms (terms that are reasonable to require from a diligent carrier, taking into account specific circumstances - Article 152 of the KTM). For direct multimodal transport, delivery times are determined by the totality of terms calculated on the basis of the rules in force for the relevant modes of transport. The delivery period is met if at the destination the cargo is unloaded by the carrier’s means or the wagons (vessels) are submitted for unloading by the recipient’s means before the expiration of the established (agreed) delivery period. At the same time, special circumstances that caused a delay in delivery of goods are also taken into account. For example, the delay in delivery of goods traveling in direct mixed rail-water communication and remaining in ports or piers after the closure of navigation is not considered a delay in delivery.

The content of the contract for the carriage of goods consists of the rights and obligations of the parties. Loading and unloading of cargo is 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 participants in the carriage obligation depending on the place of loading. Transport organizations independently carry out loading and unloading at locations public access. In other places (warehouses, berths, etc.), loading and unloading operations are performed by the sender and the recipient, respectively, at their expense. The transport organization can undertake this work under special agreements with the clientele. Auxiliary materials or special devices necessary for loading and unloading are provided by the shipper, unless otherwise established by the transportation rules or agreement of the parties. The transport organization is usually not responsible for the failure of the cargo if its loss (damage, spoilage) occurred due to circumstances related to the loading actions of the sender. Only during sea transportation is the carrier responsible for the correct placement, securing and separation of cargo on the ship in all cases.

Loading and unloading carried out by the forces and means of the sender (recipient) of the cargo must be carried out within the period stipulated by the contract, unless such terms are established by transport charters, codes and rules issued in accordance with them (clause 3 of Article 791 of the Civil Code). Most of the current transport acts and rules establish standard unloading periods. On maritime transport the duration of loading and unloading periods, called lay time (stay), is determined by agreement of the parties, and even more often - by the terms accepted in the relevant ports (Article 130 of the Labor Code). The parties may establish an additional waiting period for the vessel during cargo operations - counter-stay time (counter-stay time). For the vessel's demurrage during this period, a special fee is established - demurrage (Article 132 of the Code of Labor Code). If cargo operations are not completed even during the delay time, the carrier may send the ship sailing, even though the loading of the ship has not been completed. At the same time, he retains the right to full remuneration (Article 136 of the Labor Code).

If loading or unloading is not completed within the established time frame, the vehicle becomes idle, for which a fine is collected from the sender or recipient. In case of early loading (unloading), on the contrary, the consignor (consignee) is paid a premium (in case of sea transportation - dispatch). In order to prevent access to cargo and ensure its safety during transportation, separate rooms and containers (holds, covered wagons, tanks, etc.) must be sealed.

Payment of freight charges (maritime freight) and other payments is the most important responsibility of the shipper. Its size is established by agreement of the parties, unless otherwise established by transport legislation (Article 790 of the Civil Code). This exception is made in relation to public transport, where the freight charge takes the form of a fixed tariff, approved in the manner established by transport charters and codes. The size of this tariff is determined by federal executive bodies and governing bodies of the constituent entities Russian Federation.

Freight charges must usually be paid by the shipper upon entering into the contract of carriage. It is also possible to transfer the payment obligation to the recipient (see, for example, Article 163 of the Labor Code). The distribution of payment responsibilities also depends on the terms of the agreement 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 of 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 freight charge, the sender is obliged to pay for additional services provided to him (for example, for weighing, for storing cargo). They are paid by agreement of the parties.

The carrier is vested with the right to retain cargo (Articles 359, 360 of the Civil Code, Article 95 of the UVVT, Article 160 of the KTM, etc.) in order to ensure the freight charges and other payments due to him. However, the right of retention may be weakened or canceled by law, other legal acts, contract, or not applied due to its inconsistency with the essence of the obligation that has arisen.

Delivery of cargo is the main responsibility of the carrier. Its execution requires not only compliance with the delivery deadline, 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 measures depending on him 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. A storage fee is charged if the cargo is delivered before the time it is accepted for transportation. After the cargo arrives at its destination, it is stored free of charge for the time established by the rules or 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 type 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.).

During transportation, the contract may undergo two types of changes. Firstly, the shipper has the right to change the consignee indicated 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., redirect it. An application for redirection of cargo can be submitted by the consignor, consignee, as well as other persons duly authorized to do so. Redirection is permitted only with the consent of the carrier. Transportation of goods after redirection is issued with a new consignment note drawn up by the station (port, pier) of redirection. The delivery time of the goods varies. The organization, at the request of which a change in the consignee or station (port) of destination of the cargo is made, is responsible to the original addressee for the consequences of these changes and is obliged to settle settlements between the sender, the original addressee and the actual recipient of the cargo (Articles 92-93 UVVT, Articles 38-39 THERE

The execution of operations for the issuance and acceptance of goods completes the execution of the contract of carriage. The cargo arriving at the recipient's address must be accepted by the recipient, and, in appropriate cases, also removed from the station (port, pier). Such an obligation lies with the consignee even when the cargo that he did not order arrived at his address. In this case, the cargo is accepted at safekeeping and its further fate is determined by the sender. The recipient has the right to refuse to receive the cargo only under the condition that the quality of the cargo due to spoilage or damage has changed so much that the possibility of its full or partial use is excluded (Article 42 TUZD, Article 96 UVVT, Article 111 VK, Article 72 UAT) .

The consignee is obliged to accept (remove) the cargo within the established time frame. If this condition is violated, he must pay a fee for storing the cargo, which can be increased several times if there is his fault (Article 43 TUZD, Article 98 UVVT). In addition, the delay of the creditor-receiver in this case relieves the carrier of liability for damage to the cargo caused by its untimely acceptance. After the expiration of the established storage periods, the cargo as unclaimed is subject to sale in the prescribed manner. Undocumented cargo is also subject to sale, i.e. cargo that arrived without accompanying documents.

2.3 Features of cargo transportation in direct mixed traffic, combined transport

When transporting goods in direct mixed traffic, the carrier is obliged to transfer the goods to another type 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.).

During transportation, the contract may undergo two types of changes. Firstly, the shipper has the right to change the consignee indicated 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. Redirection is permitted with the consent of the carrier. Transportation of goods after redirection is issued with a new consignment note drawn up by the station (port, pier) of redirection. The delivery time of the goods varies. The organization, at the request of which the consignee or station (port) destination of the cargo has changed, is responsible to the original addressee for the consequences of these changes and is obliged to settle settlements between the sender, the original addressee and the actual recipient of the cargo (Articles 92-93 UVVT, Articles 59-61 UZD).

The execution of operations for the issuance and acceptance of goods completes the execution of the contract of carriage. The cargo arriving at the recipient's address must be accepted by the recipient, and, in appropriate cases, also removed from the station (port, pier). Such an obligation lies with the consignee even when the cargo that he did not order 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 cargo only under the condition that the quality of the cargo, due to spoilage or damage, changes so much that the possibility of its full or partial use is excluded (Articles 62-63 of the Ukrainian Railways, Article 96 of the UVVT, Art.IIIVC RF, Art. 72 UAT).

Receipt of the cargo must be properly formalized, which is covered by the concept of clearing documents or repurchasing the cargo and is certified accordingly on the invoice (bill of lading). To fulfill this obligation, the recipient must be notified of the arrival of the cargo in the manner and within the time limits established for the relevant mode of transport. Only during road transport, which ensures delivery of cargo directly to the recipient’s warehouse, is there not always a need to notify the latter of the arrival of the cargo. 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 transportation means. In cases provided for by law, the recipient has the right to demand verification of the quantity, weight and condition of the arrived cargo. Circumstances identified during the inspection that may serve as a basis for the liability of the carrier must be certified by a commercial act, an act general form, entries in shipping documents. The consignee is obliged to accept (remove) the cargo within the established time frame. If this condition is violated, he must pay a fee for storing the cargo, which can be increased several times if he is at fault (Article 52 of the Ukrainian Railways, Article 98 of the UVVT, Article 158 of the KTM). In addition, the delay of the creditor-receiver in this case relieves the carrier of responsibility for damage to the cargo caused by its untimely acceptance. After the expiration of the established storage periods, the cargo as unclaimed is subject to sale in the prescribed manner. Undocumented cargo is also subject to sale, i.e. cargo arriving without accompanying documents.

2.4 Rights and obligations of participants in the obligation of freight transportation arising before the conclusion of the contract of carriage

The carrier is obliged to deliver the cargo entrusted to him by the sender safely and on time. Using this responsibility, he:

1. carries out actions specifically aimed at ensuring the safety of cargo (for example, the railway protects cargo from theft), and also eliminates the reasons that may lead to loss, damage, or damage to the cargo. For example, Art. 140 KTM provides for the right of the carrier to destroy flammable, explosive cargo if it becomes dangerous for other cargo;

2. complies with the conditions and mode of transportation of individual goods (for example, supports temperature regime in wagons when transporting perishable goods);

3. handles the cargo in accordance with the shipper’s instructions, made by applying special markings to the container;

4. apply techniques and methods of driving vehicles that ensure traffic safety and cargo safety. For example, increasing the speed of transportation is not always justified: if, for example, sprayed cargo is transported on open rolling stock (in the back of a car, in a gondola car), this will inevitably lead to its losses;

5. delivers the goods on time. Time limits are calculated in days, and for air transportation - in hours. Fulfilling this obligation, the carrier delivers the cargo along the shortest route. He can, if this does not threaten the safety of the cargo, increase speed and deliver the cargo ahead of schedule.

The obligation is considered fulfilled in a timely manner when the carrier not only delivers to the destination point in due time, but also, before the expiration of the delivery period, performs additional actions provided for by transport legislation: unloads the goods with his own technical means or will deliver the wagons to the recipient’s access track (Article 39 of the TUZD), notify the recipient of the arrival of the cargo at his address (Article 111 of the RF CC);

6. releases the goods to the proper recipient, i.e. specified in the delivery note. The cargo is issued in the same order in which it was received from the sender. If the weight of the cargo is determined by the carrier together with the sender, then upon delivery of the cargo its weight is determined jointly. Conversely, the cargo is issued without checking the weight if, upon its acceptance, the weight is determined by the sender without the participation of the carrier (for example, when loading by means of the sender on his access route).

The shipper is obliged to pay for transportation and other services of the carrier. As a rule, transportation is paid before the goods are actually delivered to the recipient.

The shipper has the right to redirect the cargo, i.e. change the consignee indicated in the consignment note, provided that the cargo has not yet been released to the recipient (Article TUZD, Article 91 UVVT).

The consignee has the right to demand that the carrier release the cargo to him in the prescribed manner (with or without checking the weight and condition of the cargo). At the same time, he is obliged to accept cargo delivered to his address, and if it is delivered at a station or port (i.e., if he does not have access roads), to remove the cargo in due time.

The consignee may refuse to accept the cargo in the event that the quality of the cargo, for reasons depending on the carrier, has changed so much that the possibility of its full or partial use for its intended purpose is excluded (Article 42 TUZD, Article 96 UVVT, Article 72 UAT).

When carrying out urban and suburban transportation by road, the recipient may refuse to accept the cargo even when caused by reasons beyond the control of the carrier (for example, due to an accident in the workshop). In this case, the cargo is redirected by the sender to another recipient and returned to the sender (Article 72 of the UAT).

The recipient makes final payments with the carrier related to the transportation: he is obliged to pay for the transportation, if this has not previously been done by the sender (Article 36 TUZD, Article 154 KTM).

3. Liability for violation of cargo transportation obligations:

3.1 Conditions and features of liability in freight transportation obligations

The property liability of participants in the obligation to transport goods is based on the general principles of liability in civil law (Chapter 25 of the Civil Code). In Art. 793 of the Civil Code provides that in case of non-fulfillment or improper fulfillment of transportation obligations, the parties bear responsibility established by this Code, transport charters and codes, as well as by agreement of the parties. At the same time, liability in transportation obligations also has significant specifics that distinguish it from ordinary liability for violation of obligations. First of all, it applies to cases limited liability, narrowing the right to full compensation for losses compared to the general procedure. Limitations may apply to lost profits and even part of actual damages. In addition, such liability is largely unilaterally normative: agreements between carriers and cargo owners (senders and recipients) to limit or eliminate the carrier’s statutory liability are invalid, except in cases where such agreements are permitted by transport charters and codes (clause 2 of Art. 793 Civil Code). Consequently, by agreement of the parties, the level of responsibility of the carrier, as well as other subjects of cargo transportation obligations, can be increased. In transport charters and codes, the principles of liability were formulated more strictly: any agreements between carriers and clients that changed (lowered or increased) or completely eliminated the liability of any party to the obligation were declared invalid (Article 179 of the UVVT, Article 126 of the UAT). Thus, liability for violation of transportation obligations is now characterized by:

a) restriction of the right to recover part of the losses;

b) prohibition on reducing or eliminating the carrier’s regulatory liability;

c) the possibility of determining its size and limits by agreement of the parties in established cases.

3.2 Responsibility of the carrier for non-delivery of vehicles and the shipper for their non-use

A special feature of liability for violation of obligations for the carriage of goods is that it can occur not only for violation of an already concluded transportation contract, but also for failure to perform actions related to the organization of transportation. This is the responsibility of the carrier for non-delivery of vehicles and the sender for their non-use (Article 794 of the Civil Code). It can arise both from a contractual basis (an accepted application, an agreement on the organization of transportation, a charter), and from other grounds preceding the contract of transportation (an administrative act for deliveries under a government contract). By its nature, such liability is civil. It is distinguished by its formal character: clause 2 of Art. 794 establishes an approximate list of circumstances in the event of which the carrier or sender is released from liability for failure to deliver vehicles and their non-use (failure to present cargo for transportation). These include:

b) termination or restriction of the transportation of goods in certain directions, which are established in the manner prescribed by the transport charter and code;

c) other cases provided for by transport charters and codes (cessation of production for a period of at least three days, delay by the sender of ships during unloading and other specific individual species transport cases).

The list of these circumstances in the Civil Code, charters and codes is considered exhaustive. All other circumstances not included in it, even if their occurrence did not depend on the parties, do not relieve the sender and the carrier from liability for failure to take actions to organize transportation. This means that carriers and senders are responsible for the non-delivery of vehicles and for their non-use, regardless of fault, on the basis of business risk.

3.3 Liability for violation of the contract for the carriage of goods (subjects, grounds, volume)

Liability under a contract of carriage is based on slightly different conditions. First of all, this concerns the carrier’s liability for unsafe cargo. Failure to preserve the cargo can manifest itself in its loss, shortage and damage (spoilage). Loss means the inability to deliver the goods to the recipient within the established time frame (30 days after the expiration of the delivery period or another period). Shortage (partial loss) means there is a difference in the weight or quantity of cargo accepted for transportation and handed over to the recipient under one invoice (bill of lading). Damage to cargo is a discrepancy between the quality of cargo arriving at its destination and its original quality indicated in the transport documents. In the event of loss, shortage or damage, a document is usually drawn up indicating the unsafety of the cargo (commercial act, general form act, etc.). If such a document is drawn up by the carrier alone without the participation of representatives of the cargo owner, it does not have pre-established force and is assessed by the court along with other documents and evidence in the case (clause 4 of Article 796 of the Civil Code).

The general condition for the carrier's liability for loss, shortage or damage to cargo is presumptive guilt. This shows a deviation from the general rules of liability of commercial organizations engaged in entrepreneurial activities (Article 401 of the Civil Code) and liable on the basis of risk. The carrier is responsible for the failure to preserve the cargo after accepting it for transportation and before handing it over to the recipient (another authorized person), unless he proves that the loss, shortage or damage to the cargo occurred due to circumstances that he could not prevent and the elimination of which did not depend on him ( Art. 796 Civil Code). Thus, it is the carrier who must prove his innocence by referring to one of the named circumstances in order to be released from liability.

The exception is the rule of Art. 167 of the Code of Labor Code, by virtue of which, during sea transportation (except for coastal shipping), the carrier is not at all responsible for failure to preserve the cargo or delay in its delivery if he proves that the loss (damage) of the cargo or delay in delivery occurred as a result of the actions and omissions of the captain and other members of the ship’s crew or a pilot in navigation or control of a vessel (for a so-called navigation error), even when they are caused by the guilty behavior of these persons. He is responsible only for the omissions of these persons that occurred during the acceptance of cargo for transportation, its loading, placement on the ship, storage, unloading and delivery (for the so-called commercial error). In case of cabotage transportation, the carrier is generally responsible not only for commercial errors, but also for navigational errors (errors in navigation).

Establishing a presumption of guilt of the carrier does not mean that it is irrefutable. On the contrary, transport legislation contains an approximate list of the most typical cases when a carrier can exempt himself from liability by proving his innocence. In addition to the fault of the sender or recipient, such circumstances include:

a) special natural properties of the cargo that caused it to lose its consumer properties;

b) defects in containers or packaging that could not be noticed in appearance when accepting the cargo for transportation;

c) delivery of cargo for transportation without indicating in the consignment note its special properties that require special conditions or precautions to preserve the cargo during transportation or storage;

d) delivery for transportation of cargo whose humidity exceeds the established norm, etc. (Article 108 TUZD, Article 191 UVVT, etc.);

e) in other cases (Article 166 of the Labor Code).

In this case, the fault of the sender or recipient (clients) can serve as a basis for either complete release of the carrier from liability or for the application of mixed liability.

The current legislation also provides for cases when the carrier can be released from liability for loss, shortage or damage to cargo by simply referring to one of the circumstances established by law (Article 109 TUZD, Article 192, 193 UVVT, Article 168 KTM), and the burden of proof The carrier's fault is directly assigned to the cargo owner. These include, in particular:

a) arrival of the cargo in a serviceable vehicle with serviceable locking and sealing devices of the sender or other means of securing the safety of the cargo installed by him;

b) arrival of the cargo accompanied by a representative (security guard, forwarder) of the sender or recipient;

c) unreliability, inaccuracy or incompleteness of the information specified in the transportation document;

d) natural causes associated with the transportation of goods in open place(for example, in open format);

e) natural loss of cargo within normal limits.

3.4 The procedure for filing claims and claims under a freight transportation agreement

The specificity of the consideration of disputes regarding cargo transportation lies in the presence of a special claims procedure. Before filing a claim against the carrier arising from the transportation of goods, it is mandatory to present a claim to him in the manner prescribed by the transport charter or code (Article 797 of the Civil Code). A claim is a written demand addressed to the carrier for payment of a fine or compensation for damages in connection with improper fulfillment of the transportation obligation. Only if the claim is rejected (in whole or in part) or if a response to it is not received within the established period can a claim be brought. If the claim is not stated, the plaintiff loses the right to sue.

The right to file a claim belongs to:

a) to the sender - if the carrier fails to fulfill the obligation to deliver the vehicles;

b) to the sender and recipient - in case of complete loss of the cargo, depending on which of them presented documents for the cargo (cargo receipt, bill of lading); c) to the recipient - in case of shortage, deterioration or damage to the cargo, as well as in case of delay in its delivery against the invoice or bill of lading;

d) to the sender or the recipient - when sorting out cargo payments, depending on which of them presents the invoice (bill of lading).

The transfer of the right to make a claim to other persons is, in principle, not permitted, except in cases where such a right is transferred by the sender to the recipient and vice versa, as well as by any of them to the freight forwarder or insurer.

The claim, accompanied by the necessary documents, must be submitted in the manner established by transport charters and codes. If the carrier partially or completely refuses to satisfy the claim or does not receive a response from him within thirty days (for air transport - 45 days) the consignor or consignee may bring a claim against the carrier. The limitation period in any relationship for the transportation of goods is one year from the date determined in accordance with transport charters and codes.

4. Transportation of passengers and luggage

Transportation of passengers. One of the tasks of transport is to move passengers and their luggage. The relations arising in this case are formalized by an agreement, by virtue of which one party (the carrier) undertakes to transport the passenger to the specified destination, and the other party (the passenger) undertakes to pay the established fee for the journey (Article 786 of the Civil Code).

The contract for the carriage of passengers is mutual, paid and consensual, which distinguishes it from the contract for the carriage of goods. In addition, the contract for the carriage of passengers by public transport is public. The transportation of passengers is regulated in the general form of the Civil Code, transport charters and codes, as well as the current Rules for the provision of services for the transportation of passengers. Since the party to this agreement is a citizen-consumer (passenger), this type of transportation is subject to the Law on the Protection of Consumer Rights and other legal acts.

The contract is formalized by issuing the passenger a travel ticket, which specifies all the essential terms of the contract. The form of the ticket is established in the manner prescribed by transport charters and codes. On certain types of urban transport (for example, the metro), the contract can be concluded by the implicit actions of the passenger without issuing a ticket (when passing through the metro turnstiles and making a payment with a magnetic card or token). For all types of transport (except for air and rail in long-distance trains), travel tickets are presenter documents: the transport organization is obliged to fulfill the contract of carriage in relation to any passenger who presents a ticket or its equivalent upon boarding. However, after the start of transportation, transfer of the travel ticket is not allowed. A lost ticket cannot be restored, and the fare paid for it is not refunded.

Contracts for the carriage of passengers can be one-time (for a single trip) or long-term. The latter are used for transportation by urban and suburban transport and are concluded by purchasing a subscription ticket. One-time contracts can be concluded for travel in one, and sometimes in the opposite direction (there and back) and have a set validity period (expiration date), within which the passenger has the right to make stops along the way, i.e., interrupt transportation. In some cases, the validity period of the ticket may be extended. Moreover, if the ticket was not used for a good reason (for example, due to illness of the passenger), the carrier is obliged, and in other cases has the right to extend the validity period of the ticket.

The carriage charge, being the contract price, on public transport is determined by tariffs, and in other cases - by agreement of the parties (Article 790 of the Civil Code). Transportation tariffs are set by federal and local (for urban and suburban transport) executive authorities. Tariffs depend on the type of transportation, its distance, the type (type) of transportation means and the category (class) of space occupied in them. There are general and reduced fares for some passengers. In cases established by law, a passenger may generally be exempt from paying fares (pensioners in public transport, etc.). Expenses incurred in this regard are reimbursed to the transport organization from the appropriate budget. Freight charges are paid upon conclusion of the contract. The exception is transportation in non-route taxis, in which payments for transportation are made after its completion.

The main responsibility of the passenger is to pay carriage charges. Purchasing a ticket means fulfilling this obligation if the passenger is not granted the right to free travel. The passenger is obliged to keep the ticket until the end of the trip and present it en route upon request. officials authorized to check travel documents. A passenger found on a train (on a ship, on an airplane) without a ticket or with a ticket that does not give the right to travel on this train (on a ship on an airplane) is obliged to pay a fine in the prescribed amount and, in addition, the cost of travel to the nearest station ( port). Then he either purchases a ticket for further travel, or is removed from the train (removed from the flight). Passengers are required to comply with established transportation rules.

The rights that belong to the passenger are different and may be related to:

a) conclusion and execution of a contract of carriage;

b) modification of the originally concluded contract and

c) refusal to fulfill it.

In the very general view they are indicated in Art. 786 of the Civil Code and are specified in transport charters and codes. In addition, the list of these rights is not limited to transport legislation. A passenger acting as a consumer also has other rights arising from the Consumer Protection Law (Chapter III).

First of all, the passenger has the right to take the seat in accordance with the ticket. If the passenger is not provided with a seat according to the ticket, the carrier is obliged to provide him with a seat of at least a higher category without charging an additional fee. If the passenger agrees to take a seat of lower cost, the difference will be returned to him. If the passenger refuses the replacement offered to him, the carrier returns the fare. In addition, a passenger has the right to carry with him free of charge one child under the age of 5 years (on air and sea transport - up to 2 years, and in public transport - up to 7 years), if he does not occupy a separate seat. Other children traveling with the passenger are carried on child tickets and are provided with a separate seat. The passenger also has the right to carry things (carry-on luggage) free of charge within the established weight limits. In excess of these limits, hand luggage can be carried as baggage for an additional fee. The passenger has the right to make one stop along the way, having notified the carrier, with an extension of the validity period of the ticket for a specified time, and in case of illness - for the duration of the illness (if there is a certificate from a medical institution).

a) occupy an empty seat in the carriage (cabin) for more than high category with additional payment of the difference in fare;

b) leave (take off) by train (ship, plane) departing earlier than the one for which the ticket was taken, having made the necessary mark on it at the ticket office of the station (station). Finally, the passenger has the right to cancel the contract before the start of transportation or during the journey. Refusal can be forced (illness, flight delay, etc.) or voluntary. In case of forced refusal, the passenger will be refunded the money for the unused ticket in whole or in part. The consequences of voluntary refusal depend on the time of refusal. The part of the fare returned to the passenger is inversely proportional to the amount of time remaining before the departure of the vehicle. It is defined in transport charters and codes.

If the contract is terminated during the journey, the passenger will be refunded the fare for the untraveled distance. In all cases of return of travel documents, the passenger is charged the established fee. Thus, if you are late for a train within 3 hours, and due to illness or an accident - within 3 days from the departure of the train for which the ticket was purchased, the passenger has the right to renew, subject to additional payment of the cost of a sleeping place (reserved seat), travel documents for another train or get the fare back minus the cost of a reserved seat (Article 92 of TUZD).

The carrier is obliged to deliver the passenger to the destination within the time limits specified by transport legislation. These terms are fixed in the vehicle (flight) schedules approved by the carrier. The carrier is responsible for the delay in the departure of the passenger, as well as for the delay in the arrival of the vehicle carrying the passenger at the destination (with the exception of transportation in urban and suburban services). The carrier's liability arises if he is at fault and consists of paying a penalty (fine) in the amount established by the transport charter or code (Article 795 of the Civil Code). The carrier’s fault for such delay is presumed: he is liable unless he proves that the delay or delay occurred due to force majeure, elimination of a vehicle malfunction that threatens the life or health of a citizen, or other circumstances beyond the control of the carrier. In addition, if a passenger refuses transportation due to a delay in the departure of the vehicle, the carrier returns the carriage fee to the passenger.

The carrier's liability for causing harm to the life and health of a passenger is determined not by the rules on the contract of carriage, but by the rules of tort law (Chapter 59 of the Civil Code). In this case, the carrier is responsible for causing harm to the life and health of a passenger (including a stowaway), acting as the owner of a source of increased danger (Article 1079 of the Civil Code). The rules on non-contractual liability of the owner of a source of increased danger are more stringent. In addition, the law or the contract of carriage may provide for increased liability of the carrier (Article 800 of the Civil Code).

Baggage transportation. Baggage is items and other material assets that are sent by a passenger for personal household purposes for a fee on the basis of the passenger’s travel document (ticket) and are transported along with it in a baggage car (Article 2 of the Law on Federal Railway Transport) or in other baggage space. Under the contract for the carriage of baggage, the carrier undertakes to deliver the baggage entrusted to him by the passenger to the specified destination and hand it over to the person authorized to receive the baggage, and the passenger undertakes to pay the established fee for the carriage of baggage (Article 786 of the Civil Code). The contract for the carriage of baggage is reciprocal, but unlike the contract for the carriage of a passenger, it is always real since it is considered concluded at the moment the baggage is handed over for transportation. Like the contract for the carriage of passengers, the contract for the carriage of baggage by public transport is public, and consumer rights protection legislation applies to relations associated with such transportation.

The obligation to transport baggage for a transport organization arises from the passenger carriage contract, but it is formalized by an additional agreement to it. Therefore, baggage is accepted for transportation only upon presentation of a travel ticket. It can be returned both at the point of departure and on the way (by rail and some other modes of transport). Termination of the baggage carriage agreement is permissible before the expiration of the passenger carriage agreement and does not affect the validity of the latter. Just as the contract for the carriage of a passenger is personal in nature, the contract for the carriage of baggage is concluded only with the person who has the right of passage using the ticket presented when checking in the baggage.

The transportation of baggage is formalized by issuing a baggage receipt to the passenger (clause 2 of Article 786 of the Civil Code), according to which the baggage is subsequently issued, and a mark (stamp, etc.) is placed on the travel ticket. Unlike a cargo waybill, a baggage receipt is usually a bearer document, so the right to claim the baggage belongs to each holder of the receipt. Only such things and objects are usually accepted for carriage as baggage, which, due to their size, packaging and properties, can be easily loaded and placed in the luggage compartment of a vehicle and will not cause harm to the latter, as well as to the luggage of other passengers. Some items (for example, explosive, dangerous, flammable, etc. substances) are not accepted for carriage as baggage at all. The carrier has the right to require the baggage to be opened to check its contents. If items prohibited for transportation are found in luggage, the owner of the luggage pays a fine in the prescribed amount, and in some cases was brought to other liability (administrative and criminal).

Payment for the transportation of baggage is collected at the time it is accepted for transportation at established rates or by agreement of the parties. Some modes of transport, such as air transport, have baggage allowances without additional charges. Carriage of baggage in excess of these limits is carried out for a fee according to the tariff. Baggage may be checked in for transportation with a declared value. In this case an additional fee will apply.

Baggage is transported, as a rule, on the same train (on the same ship, plane) in which the passenger is traveling. If such dispatch is not possible, the baggage must be sent by the nearest train (flight) to the appropriate destination. At the passenger's request, luggage can be sent along a different route or on a different train (flight). The delivery time for baggage is calculated by the travel time of the transport by which it was sent to the destination and must comply general requirements Art. 792 Civil Code. At the destination, baggage is handed over to the bearer of the baggage receipt. However, the passenger has the right to demand baggage collection at any intermediate point (station, port, airport) along the route. If the baggage receipt is lost, the baggage will be released provided that the person claiming the baggage provides sufficient evidence of his right to receive it. In this case, the baggage is issued according to the act.

Baggage arriving at your destination is stored free of charge for 24 hours, starting from 00:00 on the day following the day of arrival. For subsequent storage time, a fee will be charged according to the tariff. Baggage not claimed within 30 days is subject to sale. The bearer of the baggage receipt has the right to receive the proceeds from the sale of baggage minus the amounts due to the carrier.

If baggage does not arrive at its destination within the established time frame, the passenger has the right to consider the baggage lost and demand compensation for its value. The carrier bears financial responsibility for the safety of baggage accepted for transportation unless he proves that the loss, shortage or damage to the baggage was not his fault. The conditions and scope of the carrier's liability in this case are determined according to rules similar to liability for failure to preserve cargo (Article 796 of the Civil Code). For delay in baggage delivery, the carrier pays a fine in the prescribed amount (Article 165 of the Ukrainian Railways, Article 138 of the UAT, etc.). If, due to a delay in delivery, luggage is damaged, its value is reimbursed regardless of the payment of a late fee.

5. Solving a legal problem

When concluding an annual contract for the transportation of goods by road, disagreements arose regarding the terms of the contract between the motor transport company and the shipper.

The motor transport company included the following conditions in the project:

1. The shipper is responsible for all consequences of improper loading of cargo, including damage to vehicles and safety of transportation. The shipper does not agree with this condition, since according to the rules for transporting goods, they are loaded onto a vehicle under the supervision of the driver of the vehicle company.

2. A motor transport enterprise is exempt from liability for failure to supply vehicles if, by decision of the competent authorities, the vehicles will be involved in the performance of government tasks. The consignor pointed out the illegality of this condition.

In turn, the shipper insisted on including the following conditions in the contract:

1. The motor transport company compensates the shipper for losses caused by delay in delivery of goods to the recipient.

2. The shipper is not responsible for failure to present the cargo if he warns the motor transport company 2 hours before the delivery of the means of transport.

The auto company objected to these conditions.

Solution:

1. The motor transport company unlawfully objected to this point, because according to Art. 138 of the Charter of Automobile Transport of the Russian Federation (UAT RF), a motor transport enterprise is obliged to compensate the shipper for losses caused by delay in delivery of goods to the recipient.

2. The auto company’s objections to the second paragraph of the draft are legitimate, because according to Art. 103 of the UAT of the Russian Federation, the shipper is liable in the form of a fine for failure to present the cargo, and the shipper is also obliged to notify the motor transport company 24 hours in advance of the day of acceptance of cargo and its payment.

6. Conclusion.

Transport obligations are one of the most important types of economic obligations, thanks to which the connection between industry and agriculture, industry and trade, industry and society.

The parties to transport obligations are transport organizations-carriers, the consignor and the consignee. The contract for the carriage of goods (passengers and luggage) of state and public organizations is concluded on the basis of a plan that is binding on both parties. Thus, the contract for the carriage of goods, passengers and luggage is planned. Both the carrier, the consignor, and the consignee have rights and bear responsibility, therefore, the contract of carriage is bilateral. The contract for the carriage of goods (passengers) is real, since it is considered concluded from the moment the goods are handed over to the transport organization and the mark on the transportation document made by the carrier.

At this stage, contractual obligations are regulated both by the Civil Code and other regulations, some of which were adopted in the USSR. But the whole problem lies in the imperfection of our legislative framework. It is no secret that sometimes contractual obligations are simply not fulfilled for one reason or another. In such cases, although liability is provided on paper, it does not occur, since there is no strict adherence to the law. In almost all cases, it can be circumvented, and this, in turn, entails a violation of established economic ties between suppliers and consumers of a particular product, non-compliance with the rules for transporting goods, etc.

I believe that before talking about one of the types of transportation contracts, it is simply necessary to regulate the law in that part that concerns specifically the punishment for failure to fulfill obligations under the contract.

The contract for the carriage of goods is intended to provide strictly regulated rules for the carriage of goods; therefore, its strict implementation is required. The shipper and consignee must approach the fulfillment of transportation obligations with full responsibility. And our law should not create obstacles in this, as sometimes happens (which forces people to bypass it), but, on the contrary, help in every possible way and ensure fair administrative punishment (penalty, etc.) in cases where this is necessary.

Bibliography:

1. Civil Code of the Russian Federation.

Lecture 26. Transport obligations.

The study of this topic must begin with an understanding of the concept and role of transport and the emergence of the obligation to transport. Transport forms an independent sphere of economic activity, living according to special rules. The role of transport is to provide specific services aimed at moving goods or people in space. Transport activity is not accompanied by the creation of new things (objects of the material world). Its value lies in the economic effect that is created as a result of the movement of cargo, passengers and luggage to the agreed location. Therefore, transportation relations arise when there is a need for the territorial movement of objects or people using vehicles. Typically, two entities take part in them: the transport organization (the owner of the vehicle) and the person interested in transportation. Being regulated by the rules of law, these relations take the form of legal obligations.

Thus, transport are called obligations for the transportation of goods, passengers and luggage, as well as other obligations for the provision of transport services related to transportation, or aimed at moving goods in another way.

In modern society, there are several completely independent types of transport. Their division is due to the difference in vehicles that are used to move cargo and passengers (aircraft or sea vessel, train), as well as the different natural environment of their operation (for example, river and sea transport).

The Russian transport system includes: railway, river(inland water), nautical, automotive And air transport. In addition, there is also a special type of transport - pipeline.

As a general rule, the transportation of goods, passengers and luggage is carried out on the basis of a contract of carriage. Concluding a contract for the carriage of goods requires the presence of organizational prerequisites . They are embodied in reciprocal actions of the parties to the transportation obligation: the carrier must provide serviceable vehicles for loading, and the shipper must present the cargo for transportation.

The prerequisites for concluding a freight transportation contract today can take on legal forms: a) applications(orders) for railway, river, road and air transport; b) contracts for the organization of transportation(annual, navigation, etc.) on any type of transport; V) administrative 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 itself .

Agreement cargo transportation concluded by the transport organization and the shipper (cargo owner). If, after delivery to the destination, the cargo must be handed over to the sender himself, then the circle of participants in the transportation obligation is limited to this.

Agreement cargo transportation is defined as an agreement by virtue of which the carrier undertakes to deliver the cargo entrusted to him by the sender to the destination and deliver it to the person authorized to receive the goods (recipient), and the sender undertakes to pay the established fee for the carriage of goods.

Freight transportation contract – mutual And compensated. It is considered concluded only after the transfer of the goods to the carrier and, therefore, is classified as real contracts Only in maritime transport, the contract of carriage, called the contract of affreightment or charter, is consensual.

A contract for the carriage of goods is always concluded in writing, and often in compliance with the mandatory details established by law.

To conclude a contract it is used single document system. Filling out and issuing such a document has important evidentiary value. Depending on the type of document used to formalize transportation, the following are distinguished:

a) system overhead, used on almost all types of transport;

b) system bill of lading;

c) system charter, usually used in maritime transport.

In some cases, systems can be combined.

Freight contracts are subdivided:

1) by type of transport for contracts of rail, road, inland waterway, sea and air transportation.

2) by territorial basis they are divided into domestic and international.

3) depending on the number of transport organizations, involved in cargo transportation, transportation contracts in local, direct and direct mixed traffic are distinguished.

Subjects obligations are primarily the carrier and the shipper. Shippers of goods can be any subjects of civil law. On the contrary, the carrier can only be a commercial organization or individual entrepreneur authorized to carry out freight transportation by law or on the basis of a license. Those persons who, although they have a license for transport activities, carry out the movement of goods for their own needs, are not carriers.

Item contract of carriage – 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, and often loading and unloading. Each of these actions, taken separately, resembles the subject of other civil contracts.

Thus, the provision of services for the transportation of cargo, as well as the performance of loading and unloading operations, brings the contract of carriage closer to contracts for contracting and paid services. Since the transportation means during the loading period are actually used in the interests of the clientele, there is a similarity between transportation and a rental agreement.

Term in a carriage obligation, this is the period of time during which the cargo must be delivered to its destination.

Content contracts for the carriage of goods constitute the rights and obligations of the parties. Loading and unloading of cargo is 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. Responsibilities for loading and unloading are distributed among the participants in the carriage obligation depending on the place of loading. Transport organizations independently carry out loading and unloading in public areas. In other places (warehouses, berths, etc.), loading and unloading operations are carried out by the sender and the recipient, respectively, at their expense. The transport organization can undertake this work under special agreements with the clientele. Auxiliary materials or special devices necessary for loading and unloading are provided by the shipper, unless otherwise established by the transportation rules or agreement of the parties.

Payment of freight charges (maritime freight) and other payments is the most important responsibility of the shipper. Its size is established by agreement of the parties, unless otherwise provided by transport legislation. This exception is made in relation to public transport, where the freight charge takes the form of a fixed tariff, approved in the manner established by transport charters and the Civil Code of the Russian Federation. The size of this tariff is determined by federal executive bodies and governing bodies of the constituent entities of the Russian Federation.

Freight charges must usually be paid by the shipper upon entering into the contract of carriage.

Cargo delivery – primary responsibility of the carrier. Its execution requires not only compliance with the delivery deadline, 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 measures depending on him 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. A storage fee is charged if the cargo is delivered before the time it is accepted for transportation. After the cargo arrives at its destination, it is stored free of charge for the time established by the rules or agreement of the parties, and then for a fee.

Organizational prerequisites for concluding a freight transportation contract. Transportation of goods is always preceded by agreement on the basic conditions of transportation (timing and number of vehicles required for transportation, as well as the volume and nature of the goods transported). The main objective of such coordination is the most rational and economical use of transportation facilities that meets market demands. During the period when administrative principles prevailed in the regulation of the economy, the overwhelming majority of transportation was planned centrally. That is why sections on transportation planning were included in all transport charters and codes. At present, transportation planning, as a rule, is of a technical and economic rather than an administrative and legal nature.

According to the general rule enshrined in Art. 784 of the Civil Code, the 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 reciprocal actions of the parties to the carriage obligation: the carrier must provide serviceable vehicles for loading, and the shipper must present the cargo for transportation(Article 791 of the Civil Code). The prerequisites for concluding a freight transportation contract today can take on 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; V) administrative 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 transportation needs. In railway and river transport, ten-day applications are especially distinguished (Article 18 of TUZD), and for export transportation - semi-monthly applications. Submitting an application initiates the process of transporting goods, but is not considered an offer in the contract of carriage.

Contract on organization of transportation is in accordance with the procedure established by Art. 798 Civil Code. This form of relationship between the carrier and the cargo owner is used for systematic transportation of goods on a long-term basis. The essence of this agreement is that the carrier, within a specified time frame, accepts, and the cargo owner, presents for transportation cargo in a specified volume. By its nature, it is not a contract of carriage, it is consensual, mutual in nature and is aimed at ensuring the systematic shipment of goods. Agreements on the organization of transportation received different names in transport charters and codes (annual agreement - on road transport, navigation agreement - on inland waterways, etc.). The essential terms of the contract are the volumes and terms of provision of vehicles and presentation of goods for transportation, the procedure for settlements between the parties, etc.

Carrying out the actions specified in Art. 791 of the Civil Code, occurs in the manner established by transport legislation. The carrier is obliged submit vehicles in quantity, agreed with the shipper, as stipulated term and in a certain place. In established cases and in agreement with the sender, it is allowed to supply means of transportation in greater quantities than indicated in the application (in order of condensation). The deadlines for the supply of transportation means (tonnage) are determined by agreement of the parties or in accordance with regulations. The conditions and procedure for supplying vehicles (on access roads or berths owned by the shipper, or on public tracks and berths) are established by special rules that apply to individual types of transport. Thus, in railway transport, the procedure for supplying cars to access tracks is determined by an agreement for the operation of access roads or an agreement for the supply and removal of cars, taking into account the size of the average daily loading or unloading. The delivery of wagons for loading by the shipper on public tracks is carried out upon prior notification or at certain time intervals. The initially established time for delivery of transportation means 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 sender. In air transport, for example, it will be the location of an airfield (airport) or a specially equipped runway. In road transport, the technical capabilities of which make it possible to deliver vehicles directly to the client’s warehouses, the place of delivery is usually the shipper’s warehouse or another point specified in the order (contract). When transporting by rail and water transport, the means of transport are delivered to stations (piers, moorings), to ports, both public and those owned by the senders.

In accordance with Art. 791 of the Civil Code, the carrier is obliged to submit to the shipper serviceable vehicles in a condition suitable for transportation corresponding cargo. The serviceability and suitability of transportation means must be technical and commercial and ensure the safety of the cargo during transportation. The vehicle is supplied cleared of cargo residues and debris or washed and disinfected, etc. In this case, the sender of the cargo has the right refuse submitted vehicles that are not suitable for transporting the relevant cargo. On the contrary, checking the commercial suitability of the vehicle is the responsibility of the sender, who, unlike the carrier, has better knowledge of the properties of a particular cargo. For sea transportation, the seaworthiness of the vessel is of great importance (Article 124 of the Code of Labor Code), which also includes both technical (suitability of the vessel for navigation in general) and its commercial characteristics (suitability for transporting a certain cargo under specific conditions).

The carrier's obligation to deliver the vehicle corresponds to the sender's obligation present the cargo for transportation. Conditions for handing over cargo for transportation vary general, which must be fulfilled in all cases, regardless of the specifics of the cargo, and special, which are used when transporting goods with special properties. General terms concern quantities And names cargo, definitions his weights, tare(packaging), markings And value declarations. Special - installed for goods, the transportation of which requires compliance with special measures and conditions of their transportation. Thus, when transporting many types of cargo, it is necessary to provide a certificate of their quality, and when transporting animals and birds - quarantine (veterinary) documents.

Quantity And genus cargo that is subject to delivery for transportation are determined by the application, the contract for the organization of transportation or the contract of transportation itself. Replacing one cargo with another is permitted with the consent of the carrier. The cargo presented for transportation must be correctly named. Goods requiring protection from loss, deterioration or damage must be presented in in serviceable containers, meeting the 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 cargo. At the discretion of the sender, the cargo may be delivered for transportation with declared value. The use of the latter makes it easier to prove the value of the cargo in case of its loss or damage. One of the conditions ensuring the safety and individualization of cargo during transportation is its marking, those. applying certain inscriptions and symbols to the cargo to determine the ownership of the cargo, its characteristics, compliance with safety precautions (for example, “top”, “glass”, “do not tilt”), etc.

Cargo weight can be determined by: a) weighing (air and often other modes of transport); b) a stencil on each piece of cargo; c) according to the standard when transporting goods packed in containers of standard capacity; d) by calculation method (for example, by measurement or by the draft of the vessel);

e) conditionally (animals, cars, etc.). The method for determining weight is indicated in the transport documents. Unless otherwise provided by law or contract, the weight of the cargo is determined by the person loading it.

By performing these actions, the parties enter into a contractual relationship.

Contract for the carriage of goods and its conclusion. The contract is concluded by the transport organization and the shipper (cargo owner). If, after delivery to the destination, the cargo must be handed over to the sender himself, then the circle of participants in the transportation obligation is limited to this. Most often, however, a third party is indicated as the consignee, who is the sender’s counterparty under the contract (purchase and sale, etc.). He must be given the cargo at the destination.

Contract of carriage of goods defined as an agreement by virtue of which the carrier undertakes to deliver the cargo entrusted to him by the sender to the destination and hand it over to the person authorized to receive the cargo (recipient), and the sender undertakes to pay an established fee for the carriage of goods(Article 785 of the Civil Code).

It follows from the definition that a freight transportation contract is mutual And compensated. It is considered concluded only after the transfer of the goods to the carrier and, therefore, refers to number of real contracts Only in maritime transport, the contract of carriage, called the contract of affreightment or charter (see § 3), is consensual. The contract for the carriage of goods is strictly formal contract It is always in writing, and often in compliance with the mandatory details established by law.

As a rule, the contract for the carriage of goods is public character (Article 789.426 of the Civil Code, Article 20 of the Law on Federal Railway Transport). However, in order to recognize a freight transportation contract as public, a number of conditions must be met. Firstly, the carrier must be a specialized commercial organization carrying out transportation public transport. Secondly, in accordance with transport legislation or a license, this organization must be endowed with the functions of a public carrier, obliged to carry out transportation at the request of anyone who applies. Thirdly, this organization must be included in a special list of persons obliged to carry out transportation by public transport, which is subject to mandatory publication.

To conclude a contract it is used single document system, provided for in paragraph 2 of Art. 785 GK. Filling out and issuing such a document has important evidentiary value. Depending on the type of document used to formalize transportation, the following are distinguished: a) system overhead, used on almost all types of transport; b) system bill of lading and c) system charter, usually used in maritime transport. In some cases, systems can be combined.

The procedure for concluding a contract of carriage depends on its nature. The conclusion of a real contract coincides with 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 the general manner provided for civil contracts.

Freight transport contracts are divided by type of transport into railway, road, inland waterway, sea and air transport contracts. Based on territoriality, they are divided into domestic and international. Depending on the number of transport organizations involved in the transportation of goods, contracts of carriage are distinguished in local, direct And direct mixed message. Local is 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 types of transport are involved, carrying out transportation under a single document drawn up for the entire route (for example, transportation of cargo from St. Petersburg to Volgograd with transshipment by the transport itself in Moscow from railway to water transport) . The procedure for carrying out 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 enter into agreements with each other on the organization of work to ensure the transportation of goods (nodal agreements, contracts for centralized delivery and export of goods, etc.) in the manner established by transport legislation (Article 799 of the Civil Code). If the cargo travels from St. Petersburg to Moscow using a railway consignment note, 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 ordinary mixed transportation (co-transportation). It includes two contracts of transportation - by rail and by water.

Elements of cargo transportation obligations. Subjects of the obligation are primarily the carrier and the shipper. Shippers of goods can be any subjects of civil law. On the contrary, the carrier can only be a commercial organization or an individual entrepreneur entitled to carry out freight transportation by law or on the basis of a license. Those persons who, although they have a license for transport activities, carry out the movement of goods for their own needs, are not carriers.

The contract is usually concluded with the transport organization at the point of departure of the goods. If transportation is carried out within the scope of activity of the transport organization that has entered into the contract, then it is the subject of the contract on the side of the carrier. In case of direct transportation by one type of transport or direct multimodal transportation, an obligatory legal relationship arises with a plurality of co-carriers. Each of them, accepting cargo from the previous organization, fulfills its obligation to transport the cargo on the corresponding section of the movement, arising from the agreement 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 others participating in the fulfillment of the obligation to transport persons as their representative. Representation in this case is based on 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 a consignment note, which indicates the route and transshipment points. Finally, in certain cases, the sole carrier is the combined transport operator. Then there is no plurality of persons on the side of the carrier.

Item contract of carriage - 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, and often loading and unloading. Each of these actions, taken separately, resembles the subject of other civil contracts. Thus, the provision of services for the transportation of cargo, as well as the performance of loading and unloading operations, brings the contract of carriage closer to contracts for contracting and paid services. Since the transportation means during the loading period are actually used in the interests of the clientele, there is a similarity between transportation and a rental agreement. The carrier's obligation to ensure the storage of cargo indicates the presence of elements characteristic of storage. The delivery of cargo by a transport organization to the recipient at the direction of the sender resembles the action of an attorney (agent) under a mandate (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 its accompanying aspects. This purpose in the contract of carriage is the transportation and delivery of goods to their destinations. Performing all of the above actions is only a condition for the proper fulfillment of this obligation by the transport organization. It is precisely this that determines the identification 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 cargo must be delivered to its destination. In accordance with Art. 792 of the Civil Code, the carrier is obliged to deliver the cargo to the destination within the time limits determined by 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 usually accepted terms (terms that are reasonable to require from a diligent carrier, taking into account specific circumstances - Article 152 of the KTM). For direct multimodal transport, delivery times are determined by the totality of terms calculated on the basis of the rules in force for the relevant modes of transport. The delivery period is met if at the destination the cargo is unloaded by the carrier’s means or the wagons (vessels) are submitted for unloading by the recipient’s means before the expiration of the established (agreed) delivery period. At the same time, special circumstances that caused a delay in delivery of goods are also taken into account. For example, the delay in delivery of goods traveling in direct mixed rail-water communication and remaining in ports or piers after the closure of navigation is not considered a delay in delivery.

Content contracts for the carriage of goods constitute the rights and obligations of the parties. Loading and unloading cargo 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 participants in the carriage obligation depending on the place of loading. Transport organizations independently carry out loading and unloading in public areas. In other places (warehouses, berths, etc.), loading and unloading operations are performed by the sender and the recipient, respectively, at their expense. The transport organization can undertake this work under special agreements with the clientele. Auxiliary materials or special devices necessary for loading and unloading are provided by the shipper, unless otherwise established by the transportation rules or agreement of the parties. The transport organization is usually not responsible for the failure of the cargo if its loss (damage, spoilage) occurred due to circumstances related to the loading actions of the sender. Only during sea transportation is the carrier responsible for the correct placement, securing and separation of cargo on the ship in all cases.

Loading and unloading carried out by the forces and means of the sender (recipient) of the cargo must be carried out within the period stipulated by the contract, unless such terms are established by transport charters, codes and rules issued in accordance with them (clause 3 of Article 791 of the Civil Code). Most of the current transport acts and rules establish standard unloading periods. In maritime transport, the duration of loading and unloading periods, called lay time (stage), is determined by agreement of the parties, and even more often by the terms accepted in the relevant ports (Article 130 of the Labor Code). The parties may establish an additional waiting period for the vessel during cargo operations - counter-stay time (counter-stay time). For the vessel's demurrage during this period, a special fee is established - demurrage (Article 132 of the Code of Labor Code). If cargo operations are not completed even during the delay time, the carrier may send the ship sailing, even though the loading of the ship has not been completed. At the same time, he retains the right to full remuneration (Article 136 of the Labor Code).

Cargo delivery - primary responsibility of the carrier. Its execution requires not only compliance with the delivery deadline, 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 measures depending on him 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. A storage fee is charged if the cargo is delivered before the time it is accepted for transportation. After the cargo arrives at its destination, it is stored free of charge for the time established by the rules or agreement of the parties, and then for a fee.

Performing transactions for issuance and acceptance cargo completes the execution of the contract of carriage. The cargo arriving at the recipient's address must be accepted by the recipient, and, in appropriate cases, also removed from the station (port, pier). Such an obligation lies with the consignee even when the cargo that he did not order 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 cargo only under the condition that the quality of the cargo due to spoilage or damage has changed so much that the possibility of its full or partial use is excluded (Article 42 TUZD, Article 96 UVVT, Article 111 VK, Article 72 UAT) .

Receipt of the cargo must be properly formalized, which is covered by the concept clearance of documents or redemption of cargo and is certified accordingly on the invoice (bill of lading). To fulfill this obligation, the recipient must be notified of the arrival of the cargo in the manner and within the time limits established for the relevant mode of transport. Only during road transport, which ensures delivery of cargo directly to the recipient’s warehouse, is there not always a need to notify the latter of the arrival of the cargo. 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 transportation means. In cases provided for by law, the recipient has the right to demand verification of the quantity, weight and condition of the arrived cargo. 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 act, and entries in shipping documents.

The consignee is obliged to accept (remove) the cargo within the established time frame. If this condition is violated, he must pay a fee for storing the cargo, which can be increased several times if there is his fault (Article 43 TUZD, Article 98 UVVT). In addition, the delay of the creditor-receiver in this case relieves the carrier of responsibility for damage to the cargo caused by its untimely acceptance. After the expiration of the established storage periods, the cargo as unclaimed is subject to sale in the prescribed manner. Undocumented cargo is also subject to sale, i.e. cargo that arrived without accompanying documents.

The concept of transportation and other transport obligations. By virtue of the obligation of carriage, the carrier undertakes to deliver the cargo or passenger to the specified destination, and the sender of the cargo (baggage), passenger or other person undertakes to pay remuneration for the specified transport services (pay freight charges).

In pre-revolutionary Russian law, the contract of carriage was also designated as a freight contract. G.F. Shershenevich defined that “a contract of carriage or freight is represented by an agreement by virtue of which one party, the carrier, undertakes, for a fee, to deliver things accepted by it from the other party, the sender, by land or by water, using its own means of transportation, to a designated place, where it is handed over to a specific person, the recipient." The term “freight” has been preserved in the text of modern regulations when regulating the so-called charter agreement (Article 787 of the Civil Code), which has become a unique development of the contractual structure of transportation. In addition, the term “freight” is used by the legislator to refer to freight charges (for example, clause 1 of article 115 of the KTM).

Transport obligations are the obligations for the transportation of goods, passengers and luggage, as well as other obligations for the provision of transport services related to transportation, or aimed at moving goods in another way. Thus, the concept of a transport obligation is broader than the concept of a transportation obligation. Among the transport obligations, along with transportation, one can note such as expedition, rental of a vehicle (this type of obligation is discussed in Chapter 35 of this textbook), towing, etc.

As noted in the literature, it is necessary to distinguish between the concepts of “cargo transportation” and “transportation”, since transportation seems to be a broader concept: “transportation is not only transportation, but also the movement of cargo by any means, for example, pumping oil, supplying gas through main pipelines. During transportation Only products move in this way: oil, gas."

Types of transportation agreement. There are various bases for classifying transportation contracts, in particular by type of transport and by the number of organizations involved in transportation. In addition, the legislator distinguishes between contracts for the carriage of goods (Article 785 of the Civil Code) and contracts for the carriage of passengers (Article 786 of the Civil Code). Finally, the legislator specifically highlights contracts for chartering (Article 787 of the Civil Code), transportation by public transport (Article 789 of the Civil Code), on the organization of transportation (Article 798 of the Civil Code), as well as agreements between transport organizations themselves (Article 799 of the Civil Code).

Contracts of carriage can be classified depending on the type of transport. The transport system of Russia includes railway, river (inland waterway), sea, road and air transport (thus, there are five types of transport in total. By type of transport, freight transportation is divided into contracts for rail, road, inland waterway, sea and air transportation. At the same time, according to G.F. Shershenevich, the maritime transportation agreement was first subjected to “normalization” “first by customary law, and then by the legislative authorities”; “with the development of the rail track, legislation turned their attention to railway transportation”; “later improvement of shipbuilding; technology aroused interest in communication along rivers and lakes." The road transport contract and the air transport contract received due regulatory support as a result of the development of road and air transport in the 20th century.

Based on territoriality, transportation is classified into domestic and international, as well as urban (within one settlement), suburban (beyond the boundaries of a settlement up to 50 km inclusive), and intercity (beyond 50 km). The significance of classification on a territorial basis lies in the fact that during urban and suburban transportation the recipient has the right to refuse to accept cargo that does not comply with the contract or is not provided for by the contract. During intercity transportation, as well as during centralized removal of goods from the station, the recipient of the goods is obliged to ensure its responsible storage.

Depending on the number of organizations involved in transportation, the legislator distinguishes between local transportation, direct transportation and direct multimodal transportation (see, for example, Article 2 of UZhT).

Local is transportation carried out by one transport organization within the territorial boundaries of its activities (for example, rail transportation from Kazan to Moscow along the Gorky Railway).

Direct transportation is called transportation in which several transport organizations of the same type of transport participate (for example, rail transportation from Kazan to St. Petersburg along the Gorkovskaya and then along the Oktyabrskaya Railway).

Direct mixed transportation is the transportation of goods, passengers and luggage, which involves at least two types of transport, when transportation is carried out under a single transportation document for the entire route. Important in the design of direct multimodal transportation is the ability to move cargo using one transportation document using various transport organizations, organizations of various types of transport (for example, transportation by river by rail, and then another car to the destination). Relationships between transport organizations during the transportation of goods, passengers and luggage different types transport under a single transport document, as well as the procedure for organizing these transportations are determined by agreements between organizations of the relevant modes of transport, concluded in accordance with the law on direct mixed (combined) transportation. A special law on direct mixed (combined) transport (Article 788 of the Civil Code) has not yet been adopted, however, the relevant norms are contained in separate regulations transport legislation (see, for example, Art. 68 UZhT). The legislator distinguishes between a contract for the carriage of goods (Article 785 of the Civil Code) and an agreement on the organization of transportation of goods (Article 798 of the Civil Code). The need for such a thing to exist long-term agreement, as an agreement on the organization of cargo transportation, is associated with the implementation of systematic transportation, when the carrier undertakes to accept within a specified time frame, and the cargo owner - to present cargo for transportation in a specified volume. An agreement on the organization of cargo transportation may have different names depending on the type of transport (annual for road transport, navigation for river transport, etc.), but the essence is to bind the parties to future transportation with a general obligation. The agreement on the organization of transportation may determine the forms of specification of obligations for the presentation of cargo and delivery of vehicles, the procedure for payment, etc. Here, in addition, only the total volume of cargo to be transported during the stipulated period may be determined and there may be measures of liability for failure to comply transportation of cargo in this volume as a whole based on the results of the period stipulated in the contract.

To organize relationships between various transport organizations, the legislator has provided for the possibility of concluding agreements between transport organizations (Article 799 of the Civil Code): between organizations of various types of transport, agreements can be concluded on the organization of work to ensure the transportation of goods (nodal agreements, contracts for the centralized delivery (export) of goods and etc.). The procedure for concluding such agreements between transport organizations is determined by transport charters and codes, other laws and other legal acts.

For the transportation of passengers, the legislator has provided for a special type of contract (Article 786 of the Civil Code). Under the contract for the carriage of a passenger, the carrier undertakes to transport the passenger to the destination, and if the passenger checks in the luggage, also to deliver the luggage to the destination and hand it over to the person authorized to receive the luggage; the passenger undertakes to pay the established fare, and when checking in baggage, also for the carriage of baggage.

In addition, the legislator allocates special kind contract of carriage - contract of affreightment (charter). Under a charter agreement (charter), one party (charterer) undertakes to provide the other party (charterer) for a fee with all or part of the capacity of one or more vehicles for one or more flights for the transportation of goods, passengers and luggage (Article 787 of the Civil Code). This agreement is a development of the provisions of the Civil Code on the contract for the carriage of goods (Article 785) and on the contract for the carriage of passengers (Article 786), however, it represents an independent contractual structure of transportation due to the characteristics of “providing all or part of the capacity of one or more vehicles” and "performing one or more flights." According to paragraph 2 of Art. 115 KTM, a contract for the carriage of goods by sea can be concluded: 1) with the condition that the entire ship, part of it or certain ship premises are provided for the carriage of goods by sea (charter); 2) without such a condition. The first option refers to the charter agreement, while the second option refers to all other contracts of carriage by sea. The Air Code identifies the charter agreement as a separate rule (Article 104) along with the rule devoted to the agreement for the carriage of cargo by air as a whole. In accordance with paragraph 3 of Art. 97 KVVT, under a ship charter agreement, one party (charterer) undertakes to provide the other party (charterer) for a specified fee for the performance of one or several voyages, certain premises of the ship.

It is easy to see that a charter agreement is similar to a vehicle rental agreement with the lessor providing management and technical operation, provided for in Art. 632 Civil Code. But, as G.F. noted. Shershenevich, “the sender is not given independent use of the hired things, as is the case with a property lease agreement in his pure form"In addition, as a qualifying feature of a charter agreement, which helps to distinguish it from a lease agreement, there is an indication in Article 787 of the Civil Code of the purpose of the agreement - the performance of one or more voyages. The legislator himself considers these agreements as independent legal structures. An example is KVVT, which talks about the charter of a vessel in Chapter XIII, namely in Article 97, and about the lease of a vessel in Articles 60-65 of Chapter X.

Legal nature of the contract of carriage. Transportation obligations should be distinguished from contractual obligations, storage and assignment obligations, as well as from property rental (lease) obligations. In Russian civil law, a contract of carriage has been considered for quite a long time as a type of contract. G.F. Shershenevich, assessing the legal structure of the contract of carriage, noted that “our legislation, without paying special attention to this contract, recognizes it only as a contract.”

In pre-revolutionary Russian law, a comparison was made between a transportation contract and a personal hire contract. The contract of carriage has similarities with the design of a storage contract (storage of goods), as well as an assignment (the carrier acts on behalf and at the expense of the shipper). The similarities between transportation and rental agreements were discussed above. The contract of carriage has common features with an agreement for the provision of paid services (Chapter 39 of the Civil Code).

The contract of carriage, enshrined in Chapter. 40 of the Civil Code, is currently considered as an independent agreement that does not allow its confusion with other agreements that are similar in legal structure.

Sources of legal regulation. Fundamental provisions on transportation obligations are contained in Chapter. 40 GK. Only 17 articles are devoted to transportation, mainly focused on transportation by land transport.

Detailed regulation of transportation by all modes of transport in accordance with Art. 784 of the Civil Code is carried out by transport charters and codes and rules issued in accordance with them. Transport legislation has gone through a rather complex development path in recent decades. Many of the acts passed in recent years lasted a short time, failing to meet rapidly changing economic needs. An example is the Transport Charter of Railways dated January 8, 1998, which became invalid as a result of the adoption of a new Charter in 2003.

Currently, the system of charters and codes in the field of contract of carriage consists of: Code of Inland Water Transport of the Russian Federation of March 7, 2001 (KVVT); Code of Merchant Shipping of the Russian Federation of April 30, 1999 (KTM); Charter of road transport and urban ground electric transport of November 8, 2007 (UAT); Air Code of the Russian Federation of February 19, 1997 (VK); Charter of railway transport of the Russian Federation of January 10, 2003 (UZhT).

Transportation relations are regulated by a large number of federal laws adopted in recent years. An example is the Federal Law of January 10, 2003 “On Railway Transport of the Russian Federation”. Among the novelties of this Law is the refusal to recognize all railway transport in Russia as a natural monopoly and more detailed regulation of certain types of railway transportation. The relevant consumer protection legislation applies to the carriage of passengers and luggage. In addition, the scope of transport and forwarding activities is regulated by the Federal Law of June 30, 2003 “On Transport and Forwarding Activities”. The area of systematic (business) transportation of goods and passengers is subject to regulation Federal Law dated August 8, 2001 “On licensing of certain types of activities.”

Transportation activities are also regulated by a number of international legal acts. Among them, a special place is occupied by the Convention on the Treaty international transportation cargo dated May 19, 1956. In addition, the Russian Federation is a party to the Agreement on International Freight Transport by Rail dated November 1, 1951. At the international level, there is also the United Nations Convention on the Carriage of Goods by Sea (Hamburg, March 1, 1978), which , however, does not apply to the Russian Federation.

Obligation to transport goods

Concept and characteristics of a contract for the carriage of goods. According to paragraph 1 of Art. 784 of the Civil Code, transportation of goods, passengers and luggage 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 Civil Code. Under a contract for the carriage of goods, the carrier undertakes to deliver the cargo entrusted to him by the sender to the destination and deliver it to the person authorized to receive the goods (recipient), and the sender undertakes to pay the established fee for the carriage of goods. In separate transport charters and codes, similar definitions are given for the contract for the carriage of goods and the contract for the carriage of passengers and luggage (see, for example, Article 103 of the VK; Article 82 of the UZhT, etc.).

The contract for the carriage of goods is bilaterally binding, compensated, and real. The bilaterally binding nature of the contract presupposes 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 sender’s obligation 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 a contract of carriage means “previously transferred cargo”, which emphasizes the traditionally real sign of a contract for the carriage of goods. Meanwhile, in water and air transport, the contract for the carriage of goods, concluded in the form of freight (charter), belongs to the category of consensual. In maritime transport, the contract of carriage (freight agreement, 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 role of the carrier must be played by a public transport organization, endowed with the function of a public carrier. Transportation carried out by a commercial organization is recognized as transportation by public transport if it follows from the law or other legal acts that this organization is obliged to transport goods, passengers and luggage at the request of any citizen or legal entity. Moreover, this organization must 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 shipper and/or consignee, on the one hand, and the carrier, on the other) regarding the corresponding movement of goods. At the same time, the appropriate movement of goods implies compliance with regulatory and contractual requirements regarding the timing and quality of delivery of goods, as well as their proper acceptance.

The parties to the contract for the carriage of goods are the shipper and the carrier. The shipper is the person on whose behalf the cargo is delivered for transportation. Modern legislation understands the shipper as an individual or legal entity who, under the contract of carriage, acts on his own behalf or on behalf of the owner of the cargo and who is indicated in the transportation document (Article 2 UZhT, Article 2 UAT). It is with the sender that the carrier enters into a contract for the carriage of goods, and a corresponding obligation for transportation arises between the sender and the carrier.

The carrier, as defined by G.F. Shershenevich, is the person who assumes the responsibility to deliver with his means of transportation and hand over the cargo entrusted to him for its intended purpose. A carrier (railway, shipping company, air transport operator) can only be a commercial organization or individual entrepreneur, entitled to carry out freight transportation by law or on the basis of a license. Moreover, all transportation, with the exception of automobile transportation, is subject to mandatory licensing (Clause 1, Article 17 of the Federal Law on Licensing of Certain Types of Activities). However, the movement of goods for one’s own needs does not fall within the definition of transportation activities. In all modes of transport, except railway, carriers can also be private individuals.

Due to the specific nature 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, who enter into an agreement for the carriage of goods, the recipient (consignee) is also included among its subjects (but not parties). The parties proceed from the tacit consent of the consignee to the terms of the contract, which, according to a number of authors, does not correspond to the basic principles of civil law. In Russian legal science, the prevailing opinion is that the transportation of cargo is carried out on the basis of an agreement in favor of a third party, and the recipient of the cargo is a third party in such an agreement. It should be noted that, in some contradiction to the design of the contract in favor of a third party, the recipient of the cargo also acquires certain obligations to the carrier (Articles 792, 796 of the Civil Code; paragraph 2 of Article 103 of the Civil Code; Article 111, Articles 72, 73 and others KVVT; part 2 of article 17 UAT, etc.).

In all contractual relationships of a continuing nature, an element such as term is of great importance. Therefore, the period is often determined as essential condition. This is the case, for example, with a work contract, in which the legislator provides for special requirements for determining in the contract the initial and final dates for the completion of work (Article 708 of the Civil Code), recognizing the final date as essential.

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 carrier’s obligation to deliver cargo to the destination within the time limits determined in the manner prescribed by transport charters and codes, and in the absence of such terms, within a reasonable time.

According to Art. 152 of the Labor Code, which is devoted to the procedure for establishing the time limit and determining the route for the transportation of goods, the carrier is obliged to deliver the goods on time and on the route established by agreement of the parties, in the absence of an agreement - within the time period that is reasonable to require from a diligent carrier, taking into account the specific circumstances, and on the usual route.

Article 33 of the UZhT determines that carriers are obliged to deliver goods to their destination and on 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. Shippers, consignees and carriers may provide in contracts for a different delivery period for goods.

The calculation of the delivery time for goods begins at 24 o'clock on the day the goods are accepted for transportation. The date of acceptance of goods for transportation and the estimated expiration date of the delivery of goods, determined on the basis of the rules for transporting goods by rail or on the basis of an agreement of the parties, is indicated by the carrier in the railway consignment note and receipts issued to shippers for the acceptance 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 goods, the carrier ensured the unloading of goods at the destination railway station or wagons, containers with goods were delivered for unloading to consignees or owners railway tracks non-public use for consignees. Cargoes are also considered delivered on time if they arrive at the destination railway station before the expiration of the delivery period specified in the railway transport bill of lading and the cargo acceptance receipt and if the subsequent delay in the delivery of wagons and containers with such cargo for unloading occurred due to the fact that the unloading front is busy due to reasons depending on the consignee, payment for the transportation of goods and other payments due to the carrier have not been paid, or due to other reasons depending on the consignee, about which a general form report is drawn up.

The contract of carriage is of a paid nature. The price of the contract of carriage is formed by the carriage charge (freight). The amount of the carriage charge 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 fee here is determined on the basis of tariffs (clause 2 of Article 790 of the Civil Code).

The Civil Code does not contain special requirements on the form of the contract of carriage, which requires 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 corresponding carriage of goods. So, paragraph 1 of Art. 117 KTM obliges the parties to a contract for the carriage of goods by sea to draw it up in writing. A contract for the carriage of goods may be concluded on the basis of:

applications (orders) for railway, river, road and air transport;
contracts on the organization of transportation (annual, navigation, etc.) on any type of transport.

So, according to Art. 11 UZhT for transportation of goods by rail, the shipper submits to the carrier a duly executed and required quantity copies of the application for the carriage of goods. Such an application is submitted by the shipper indicating the number of wagons and tons, destination railway stations and other information provided for by the rules for the transportation of goods by rail. In the application, the shipper must indicate the validity period of the application, but not more than 45 days. In this case, applications are submitted no less than 10 days before the start of cargo transportation in direct railway traffic and no less than 15 days before the start of cargo transportation in direct international traffic and indirect international traffic and in direct and indirect mixed traffic, as well as if the destinations ports are indicated.

In road transport, the conclusion of a contract for the carriage of goods is confirmed by a consignment note (Part 1, Article 8 of the UAT 2007). In this case, a contract for the carriage of goods by road can be concluded through the carrier’s acceptance of an order for execution, and if there is an agreement on the organization of cargo transportation, an application from the shipper (Part 5 of Article 8 of the UAT).

KVVT clearly indicates the application as the basis for the subsequent conclusion of an agreement for the carriage of goods, without forgetting to emphasize the role of the agreement on the organization of transportation. In accordance with paragraph. 1 clause 1 art. 66 KVVT "cargo transportation is carried out on the basis of contracts for the carriage of goods in accordance with the applications of shippers and agreements on the organization of cargo transportation, 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 to the sender of the goods of a transport bill of lading (a bill of lading or other document for the cargo provided for by the relevant transport charter or code).

In transportation relations, the principle of a single document (or a single document system) is applied, as follows from paragraph 2 of Art. 785. The system is distinguished:

waybill used on all types of transport (see Article 25 UZhT; Article 105 VK; Article 143 KTM; Article 8 UAT; clause 2 Article 67 KVVT);
bill of lading (Article 142 et seq. KTM) and
charter (clause 2 of article 117 of the Code of the Russian Federation).

The procedure for issuing transport documents is defined in detail in the transportation rules for the corresponding type of transport, and in railway, air and road transport, a single form of basic transport documents is used for this transport. In water transport, shipping companies use their own proforma bills of lading. According to Art. 25 of the UZhT, when presenting cargo for transportation, the shipper must present to the carrier for each shipment of cargo a railway bill of lading 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. In this case, the specified railway consignment note and the receipt issued on its basis by the carrier to the shipper confirming the conclusion of the contract for the carriage of goods.

The carrier bears the following responsibilities. If the contract of carriage is consensual in nature, the carrier must ensure timely and proper delivery of the vehicle (Article 791 of the Civil Code; Articles 69, 73 KVVT; Articles 124, 128 KTM; Article 9 UAT). Accordingly, the shipper has the right to demand that the carrier fulfill this obligation. So, according to Art. 128 KTM, when transporting cargo under a charter, the carrier is obliged to deliver the vessel within the period stipulated by the charter; Moreover, in case of failure to deliver the vessel within the stipulated period, the charterer has the right to refuse 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 that the vessel is technically seaworthy, to properly equip the vessel, to staff it with a crew and to supply it with everything necessary, as well as to bring the holds and other premises of the vessel in which cargo is transported, in a condition that ensures proper reception, transportation and safety of cargo.

Next, the carrier must deliver the cargo to its destination. This responsibility includes 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 delivery time of goods is determined in accordance with regulations. Delivery times for goods are calculated based on the most rational routes, unless otherwise provided by the contract of carriage.

Moreover, the cargo must be delivered safely (Article 150 KTM; Article 25 UZhT; Article 15 UAT). The carrier bears this responsibility from the moment the cargo is accepted for transportation until it is released 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 transported goods (for example, you cannot transport spraying cargo at high speed on open rolling stock); implement special measures to ensure the safety of cargo (for example, protect cargo from theft).

Finally, upon arrival of the cargo at its destination, the carrier must notify the consignee about the fact of delivery (Article 79 KVVT; Article 111 VK) or about the delay in delivery (Part 2 of Article 14 UAT). Fulfillment by the carrier of this obligation predetermines the occurrence of the obligation of the consignee indicated in the transportation documents to dispose of the cargo (accept and remove the cargo).

The shipper, in turn, bears the following responsibilities. In the consensual contract of carriage, he undertakes to provide the cargo for transportation within the prescribed period, as well as to ensure compliance with loading deadlines (Article 69 KVVT; Articles 10, 11 UAT; Article 130 KTM). Further, the shipper is obliged to pay for the transportation of goods (Article 790 of the Civil Code; Article 75 of the Civil Code; Article 30 of the UZhT). Payment for transportation is made by the sender, as a rule, before the goods are delivered for transportation. Final settlements are made between the carrier and shipper at destination. According to Art. 163 KTM all payments due to the carrier are paid by the sender or charterer; in cases provided for by the agreement between the shipper or charterer and the carrier, and when data on this is included in the bill of lading, transfer of payments to the recipient is allowed.

The carrier has the right to retain the cargo in case of failure to fulfill the specified obligation to pay for transportation (Article 359-360 of the Civil Code; clause 8 of Article 79 of the KVVT; Article 35 of the UZhT; Article 160 of the KTM).

The responsibilities of the consignee are established by transport charters and codes, but, as noted in the literature, they do not follow from Art. 430 and paragraph 3 of Art. 308 of the Civil Code, as in their time, did not follow from Art. 167 of the Civil Code of the RSFSR 1964. This is a “tribute to many years of practice.” In this case, the main responsibilities of the consignee are accepting the cargo and removing it from the station (port) (Articles 11, 15 UAT; Articles 111, 112 VK; Article 160 KTM; Articles 67, 79 KVVT; Articles 21, 35 UZhT) .

Property liability in transportation obligations. Property liability in the obligation to transport goods is based on the general principles of liability enshrined in Chapter. 25 GK. At the same time, it has significant specifics compared to liability for violation of other civil obligations. This specificity is manifested in the conditions, form, volume and procedure for implementing liability measures.

First of all, due to the real nature of the contract of carriage, a distinction is made between the so-called pre-contractual liability for the obligation of carriage and liability for violation of the contract of carriage itself. In the first case, the corresponding 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 transportation of goods (but not passengers/luggage) by transport charters and codes. However, the parties have the right to establish in the contract liability for violation of obligations to transport goods when it is not provided for by law, as well as to increase the liability established by law (Article 123 of the Civil Code).

Liability for violation of the obligation to fulfill submitted and satisfied orders (applications) for the transportation of goods is established exclusively by law (clause 1 of Article 794 of the Civil Code). The current transport charters and codes establish the responsibility of the carrier and shipper 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 of a penalty by the carrier in the form of a fine or penalty, also the possibility of recovery by the shipper (charterer) from the carrier (charterer) of damages caused “in the manner established by the legislation of the Russian Federation” (Part 4 of Article 34 of the UAT).

For violation of loading deadlines, a fine is provided (Article 43 UZhT, Article 35 UAT).

In case of delay in 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 freight charge. Collection of a fine (penalty) is possible if the carrier is at fault, but his fault for the delay is assumed. The carrier pays a fine in the amount of 10 to 90% of the carriage charge (for air transport - up to 50%), depending on the length of the delay.

The extent of the carrier's liability for unsafe cargo is limited by law. Unlike other civil 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 transportation of goods is compensated by the carrier:

in case of loss or shortage of cargo - in the amount of the cost of the lost or missing cargo;
in case of damage (damage) to 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 delivered for transportation with a declaration of its value - in the amount of the declared value of the cargo.

At the same time, the carrier bears responsibility for failure to preserve the cargo only if it is his 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. Clause 1 of Art. 796 of the Civil Code does not contain any mention of the carrier’s fault as a condition of his liability, however, it is generally accepted 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.”

Transport charters and codes contain a list of circumstances, proving the presence of any of which the carrier is exempt from liability for improper (unsafe) transportation (Article 95 UZhT; Article 118 KVVT; clause 5 Article 34 UAT). So, in Art. 118 KVVT mentions such circumstances as the presence of restrictions or prohibitions on the movement of vessels for the period of validity of such restrictions or prohibitions; saving lives or property on water; the presence of incorrect actions and instructions of the shipper or sender of the towed object if such actions and instructions are proven; the presence of hidden defects in packaging, cargo or its properties; the established difference in cargo weight is within the norms natural loss, reduction of humidity and discrepancies in the readings of weighing instruments, as well as differences in the mass of cargo accepted for transportation based on the mass determined by the shipper 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 waybill, etc.

This list is not exhaustive, therefore the carrier has the right to prove other circumstances indicating the absence of his guilt.

It should be noted that in Civil Code There are no indications according to which transport charters and codes may provide for cases when proof of the carrier’s guilt in the failure to preserve the cargo rests with the cargo owner.

A predetermined distribution of the risk of losses should be distinguished from property liability for violation of a transportation obligation. True, it is currently used only in maritime law, which knows the concept of “accident”. An accident can be general or private. In case of general average, losses are caused in the interests of all participants in the transportation (Article 284 of the Labor Code). In this case, the 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. 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 private accident occurs. For example, excessive fuel consumption to overcome a headwind would be a private accident, since these expenses are not extraordinary, but are a consequence of ordinary dangers at sea. In this case, losses are attributed to the transportation participant who actually incurred them.

Procedural features of assigning responsibility to the parties to the contract for the carriage of goods. Procedural legislation establishes the principle of exclusive jurisdiction in cases involving 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.

In the event of a dispute between the parties to the contract for the carriage of goods, compliance with the procedure for filing a claim is required (Part 5, Article 4 of the Arbitration Procedure Code; Part 3, Article 30 of the Civil Procedure Code). This means that before filing a claim against the carrier, it is necessary 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 VK; Article 120 of the UZhT; Part 2 of Article 39 of the UAT; Article 403 of the KTM; Art. 161 KVVT). The exception to this is the provision of Art. 403 KTM, which provides that the obligation to make a claim remains in cabotage, i.e. during sea transportation between ports of the Russian Federation).

A claim should be understood as a written demand addressed to the carrier for payment of a fine or compensation for damages in connection with improper fulfillment of the transportation obligation. A claim from a contract for the carriage of goods is presented to the management of the destination station.

When filing a claim, it is necessary to submit a commercial act, which is a document certifying damage to the cargo, its shortage, and individual violations of the contract that arose during its execution.

The period for filing a claim is, as a rule, 6 months, for fines - 45 days (Article 123 UZhT; Article 126 VK).

The legislator obliges the carrier to respond to the claim of the shipper or consignee within 30 days (clause 2 of Article 797 of the Civil Code). In transport charters and codes, the specified period is specified. So, according to para. 1 tbsp. 124 UZhT, the carrier is obliged to consider the received claim and notify the applicant in writing about the results of its consideration within 30 days from the date of receipt of the claim. In accordance with paragraph 1 of Art. 128 VC, the carrier is obliged to consider it within 30 days from the date of receipt of the claim and notify the shipper or consignee in writing of the satisfaction or rejection of the claim.

If the claim is partially or completely rejected or if a response to the claim is not received within the appropriate period, the person making the claim has the right to file a claim.

The limitation period for claims from the contract for the carriage of goods is one year (clause 3 of Article 797 of the Civil Code; Article 408 of the KTM; clause 3 of Article 164 of the KVVT; Article 42 of the UAT). In this case, the limitation period begins to expire from the moment determined in transport charters and codes.

Obligation to transport passengers and luggage

The concept of a contract of passenger transportation. The general definition of the agreement for the carriage of passengers (agreement for passenger carriage) is contained in paragraph 1 of Art. 786 Civil Code. Under this agreement, the carrier undertakes to transport the passenger to the destination, and if the passenger checks in the baggage, also delivers the baggage to the destination and hands it over to the person authorized to receive the baggage; in turn, the passenger undertakes to pay the established fare, and when checking in the baggage, also for transportation luggage

Based on the way the designated agreement is characterized in the Civil Code, as well as in transport charters and codes, it must be assumed that the obligations for the transportation of passengers and the obligations for the transportation of baggage arise from one agreement. However, in legal science this is a controversial issue. On the one hand, it is considered that the provision of services for the delivery of baggage and its issuance occurs within the framework of the fulfillment of an optional obligation arising from a single contract for the carriage of passengers. On the other hand, the contract for the carriage of baggage is distinguished from the contract for the carriage of passengers.

In the legal literature, this agreement is considered an adhesion agreement (Article 428 of the Civil Code), and is also classified as a mutual, compensated, consensual agreement. However, in cases where the contract for the carriage of a passenger is distinguished from the contract for the carriage of baggage, the latter is recognized as real.

Contractual relations for passenger transportation are regulated by international regulatory legal acts with the participation of the Russian Federation, the Civil Code, transport charters and codes, other acts of transport legislation, and legislation on the protection of consumer rights. The possibility of applying the Law of the Russian Federation of February 7, 1992 “On the Protection of Consumer Rights” (as amended and supplemented) (hereinafter referred to as the Law on the Protection of Consumer Rights) and other acts of legislation on the protection of consumer rights to these relations is confirmed by:
firstly, the content of the preamble of the Law on the Protection of Consumer Rights, from which it follows that the legislation on the protection of consumer rights applies to legal relations with a special subject composition. Legal relations regarding passenger transportation have the necessary subject composition. On the one hand, they involve a passenger - a citizen who intends to order or purchase, or who orders, purchases or uses goods (work, services) exclusively for personal, family, household and other needs not related to the implementation. On the other hand, such legal relations are entered into by a carrier - an organization, regardless of its organizational and legal form, as well as an individual entrepreneur who provides services to consumers under a paid contract;
secondly, the content of the resolution of the Plenum of the Supreme Court of the Russian Federation of September 29, 1994 No. 7 “On the practice of courts considering cases on the protection of consumer rights.” In accordance with paragraph 1 of this resolution, relations regulated by legislation on the protection of consumer rights may arise, in particular, from contracts for the carriage of citizens, their luggage and cargo. According to paragraph 2 of the said resolution, in cases where certain types of civil legal relations with the participation of consumers, in addition to the norms of the Civil Code, are regulated by special laws of the Russian Federation (transportation, etc.), then the Law on Protection consumer rights can be applied to the extent that does not contradict the Civil Code and special laws.

Types of passenger transportation agreement. This agreement is classified into separate types for various reasons. First of all, the classification is carried out by type of transport. Accordingly, a contract for passenger transportation by road, air, inland waterway, sea and rail is distinguished. This division of contracts is due to the fact that for contracts of passenger transportation on various types of transport, the legislation establishes, to a certain extent, differentiated norms. Consequently, the legal significance of this classification is expressed in the fact that depending on the type of passenger transportation contract, the rules applicable to them are determined.

The specified contracts for passenger transportation by various modes of transport in accordance with current legislation can also be divided into some varieties. For example, a contract for passenger transportation by rail is divided into a contract for passenger transportation by a long-distance train and a contract for passenger transportation by a suburban train. Moreover, the content of these agreements differs to a certain extent. In particular, when traveling on a long-distance train, a passenger has the right to make a stop along the route with an extension of the validity of the travel document (ticket) for no more than 10 days, but when traveling on a commuter train, the passenger does not have such a right.

A charter agreement for consumer purposes, concluded in accordance with the Civil Code and acts of transport legislation, must be distinguished from the contract of passenger transportation itself. Thus, in road transport there are three types of transportation of passengers and luggage (Article 5 of the UAT): regular transportation; transportation according to orders; transportation by passenger taxis. If the first transportation is carried out within the framework of a public contract for the carriage of a passenger along a regular transportation route (Article 19 of the UAT), then the last two types of transportation are formalized by charter agreements (Articles 27, 31 of the UAT). In inland water transport, transportation of passengers and their luggage can be carried out under a vessel charter agreement (Clause 6, Article 95 of the KVVT).

One of the types of passenger transportation contracts is the contract for the carriage of passengers and luggage by public transport (Article 789 of the Civil Code). This agreement has the following main features:

special subject composition: the carrier is a commercial organization or an individual entrepreneur (the latter may be a party to this agreement by virtue of clause 3 of Article 23 of the Civil Code);
special content due to the fact that the contract is recognized as public (clause 2 of Article 789 of the Civil Code): a) the carrier is obliged to transport goods, passengers and luggage at the request of any citizen or legal entity; b) all the terms of this agreement, including the price (the amount of the freight charge), are, as a general rule, the same for all consumers (clause 2 of Article 426 of the Civil Code). However, the law and other legal acts allow the provision of benefits for individual categories consumers. These benefits, apparently, are not of an individual nature; they can only be provided to groups (categories) of consumers;
a special procedure for concluding: the carrier does not have the right to give preference to one passenger over another with regard to concluding this agreement, except in cases provided for by law and other legal acts. It is also not allowed for the carrier to refuse to enter into an agreement for the carriage of passengers and luggage by public transport if it is possible to provide the consumer with transportation services (clauses 1 and 3 of Article 426 of the Civil Code).

The contract for the carriage of passengers and baggage by public transport has its own varieties, distinguished depending on the types of transport and conditions of transportation. Thus, in road transport, regular transportation of passengers and luggage is carried out on the basis of a public contract for the carriage of passengers along the route of regular transportation, which relates to transportation by public transport (Article 19 of the UAT). In turn, such transportation on this transport is divided into transportation with boarding and disembarking passengers only at established stopping points along the route of regular transportation and transportation with boarding and disembarking passengers at any location not prohibited by the rules traffic location along the regular transportation route.

Elements of a contract of passenger carriage. The parties to this agreement are the passenger and the carrier. A passenger is an individual who orders by concluding a contract for passenger transportation transport service(activity of moving this individual and his luggage), or the person in whose favor this agreement was concluded, i.e. a person who does not order, but only uses the specified service. Specifics legal status passenger is that he has rights and bears responsibilities both as a passenger and as a consumer in accordance with consumer protection legislation. In addition to the passenger himself, other persons authorized to receive baggage may enter into legal relations regarding passenger transportation.

A carrier is a legal entity or individual entrepreneur who provides transport services to passengers for a fee. As in the case of a passenger, the carrier has two groups of rights and obligations - those provided for in transport legislation and in legislation on the protection of consumer rights.

In cases provided by law, the carrier must have an appropriate license. According to paragraph 1 of Art. 17 of the Federal Law of August 8, 2001 “On licensing of certain types of activities” (as amended and additionally) are subject to licensing for the transportation of passengers by sea, inland waterway, air, rail transport, as well as the transportation of passengers by road transport equipped for the transportation of more than eight person (except for the case if the specified activity is carried out to meet the own needs of a legal entity or individual entrepreneur).

From carriers, including for the purpose of ensuring the rights of their counterparties, primarily passengers, the legislation may require compliance with other formalities indicating the specifics legal status carriers. According to paragraph 2 of Art. 2 of the Federal Law of July 24, 1998 “On state control over the implementation of international road transport and on liability for violation of the procedure for their implementation” (as amended and additionally) Russian carriers are allowed to carry out international road transport of goods and passengers if they have a document certifying the admission of a Russian carrier to carry out international road transport (certificate of admission of a Russian carrier). In accordance with the Regulations on the admission of Russian carriers to international road transport, approved by Decree of the Government of the Russian Federation of October 16, 2001 N 730 (as amended and supplemented), in order to obtain this admission a number of conditions must be met, in particular the Russian carrier must have a sustainable financial position(ownership of property worth at least 300 thousand rubles when using only one vehicle engaged in international road transport, and at least 170 thousand rubles per additional vehicle).

Insurers can also enter into legal relations related to violations of the conditions of passenger transportation. For example, according to paragraph 3 of Art. 39 UAT the right to file claims against carriers in pre-trial procedure have, in particular, insurers who paid insurance compensation in connection with improper fulfillment by carriers of their obligations for the transportation of passengers and luggage.

The specificity of the form of a passenger transportation agreement is that usually this agreement is not drawn up in the form of a single document signed by the parties, but is concluded orally. Moreover, his conclusion in accordance with paragraph 2 of Art. 786 of the Civil Code is certified by a ticket, and the passenger’s baggage check-in is certified by a baggage receipt. The forms of the ticket and baggage receipt are established in the manner prescribed by transport charters and codes. This general rule of the Civil Code is detailed and supplemented in transport charters and codes. In particular, in road transport, when concluding a contract for the carriage of a passenger during regular transportation of passengers and luggage, the passenger's carriage of hand luggage for a fee is certified by a receipt for the carriage of hand luggage, and a cashier's receipt with the details of a ticket, baggage receipt, receipt for carriage of hand luggage indicated on it is equivalent accordingly to the ticket, baggage receipt, receipt for hand luggage (Article 20 of the UAT). The oral form of the contract for passenger transportation can be expressed in the commission an individual, concluding this agreement, certain implied actions (boarding a vehicle, etc.).

Charter agreements concluded on road transport for the transportation of passengers and luggage according to orders, as well as the transportation of passengers and luggage by passenger taxi, are concluded respectively in written and oral forms (Articles 27, 31 of the UAT).

The subject of the passenger transportation contract is the services provided by the carrier for moving the passenger, and in the case of baggage check-in, also the luggage. Similar services can be provided under charter agreements. For example, according to Art. 31 UAT, transportation of passengers and luggage by passenger taxi is carried out on the basis of a public charter agreement. The proximity of the subjects of contracts of carriage and charter allows the legislator to ensure the necessary unity of legal regulation of relations for the transportation of passengers and luggage on the basis of the actual contracts of passenger carriage and charter contracts. In particular, this unity is expressed in the rules on the liability of the carrier and the charterer (in road transport, in accordance with Article 42 of the UAT, a single shortened limitation period applies to both requirements from transportation contracts, and requirements from chartering contracts, etc.).

Contents of the passenger carriage agreement. The rights and obligations of passengers and carriers are determined by the Civil Code, acts of transport legislation and legislation on the protection of consumer rights. Along with the fundamental right - the right of travel and baggage - in accordance with paragraph 3 of Art. 786 of the Civil Code, a passenger also has the right to transport children with him free of charge or on other preferential terms; carry free hand luggage within established standards; hand in luggage for transportation for a fee according to the tariff. The content of these terms “baggage” and “hand luggage” is disclosed in transport regulations and codes. In accordance with Art. 2 UAT luggage is the passenger’s belongings accepted for transportation in the prescribed manner, and hand luggage is also the passenger’s belongings that the passenger carries with him in the vehicle and the safety of which during transportation is ensured by the passenger.

The main responsibility of the passenger is to pay the carriage charge (carriage fee). For the transportation of passengers and luggage, a carriage fee is charged, established as a general rule by agreement of the parties, unless otherwise provided by law or other legal acts (Article 790 of the Civil Code). However, fees for the transportation of passengers and luggage by public transport are determined on the basis of tariffs approved in the manner established by transport charters and codes.

The carrier can receive payment for transportation in full or in part not only directly from the contracting parties, but also from the corresponding budget (clause 5 of Article 790 of the Civil Code). Such receipt budget funds occurs in cases where, in accordance with the law or other legal acts, benefits or advantages are established for carriage charges for the transportation of passengers and baggage.

Reimbursement of these funds to the carrier is made from the budget of the public legal entity whose act established the designated benefits or advantages. The procedure for compensation is determined by budget legislation, which indicates the intersectoral nature of the regulation of relations regarding the receipt in this case by the carrier of payment for transportation.

The passenger bears other responsibilities in accordance with transport legislation and the contract of carriage. Thus, the passenger is obliged to keep the ticket, baggage receipt, receipt for hand luggage during the entire trip and present them at the first request of the persons exercising control (Article 20 of the UAT). In inland water transport, clause 2 of Art. 100 KVVT provides general duty passenger to comply with the rules for the use of ships and facilities located on the shore and intended to serve the transportation of passengers, approved by the federal executive body in the field of transport.

The main responsibility of the carrier is the delivery of passengers and baggage to their destination within the time limits determined in the manner prescribed by transport charters and codes, and in the absence of such time limits - within a reasonable time (Article 792 of the Civil Code). As part of the fulfillment of this obligation, the passenger and luggage must be delivered to their destination under the conditions provided for in transport legislation. Such conditions are expressed in other obligations of the carrier (and the corresponding rights of the passenger), which are established in transport legislation.

Thus, the carrier on inland water transport is obliged to provide the passenger with the seat on the ship indicated in the ticket or voucher (clause 1 of Article 99 of the Inland Water Transport Code). A similar obligation of the carrier exists for other types of transport. In particular, in railway transport, the carrier is obliged to provide the passenger with a seat on the train (Article 82 of the UZhT), and if it is impossible to provide the passenger with a seat in the carriage according to the travel document (ticket), the carrier is obliged to provide such a passenger, with his consent, with a seat in another carriage, including in a carriage of a higher category, without charging an additional fee. If a passenger is provided with his consent a seat, the cost of which is lower than the cost of the travel document (ticket) purchased by him, the difference in the fare is returned to the passenger (Article 84 of the UZhT).

In order to ensure the rights of passengers and the proper fulfillment of the above-mentioned main obligation of the carrier, transport legislation also establishes a special obligation to inform passengers. For example, in accordance with Art. 85 UZhT carrier provides the user of railway transport services free of charge with timely and reliable information about the time of departure and arrival of trains, the cost of travel for passengers and transportation of luggage, cargo luggage, operating hours of railway ticket offices, luggage storage rooms, the location of station premises, about the services provided to him, about the services provided to citizens certain categories of benefits. However, for the issuance of certificates in written form, as well as certificates not related to the provision of railway transport services, a fee is charged in the order defined by rules transportation of passengers, luggage, cargo luggage by rail. Designated information duty The carrier corresponds to the right of the passenger (consumer) to receive appropriate consumer information about transportation services and other related services, which is generally enshrined in Art. 8-12 of the Law on Protection of Consumer Rights.

Transport legislation provides for the possibility of implementing special legal procedures for amending and terminating passenger transportation contracts. For example, in inland water transport it is possible (Article 101 KVVT):
unilateral termination of the contract for the carriage of a passenger, in particular, in cases of impossibility of transporting a passenger to the port of destination due to force majeure, military action, prohibition by authorities or other reasons beyond the control of the carrier, detention of a ship based on a decision of the relevant executive authorities or attracting a ship for state needs and in some other situations;
in the same cases, a change in the contract for the carriage of a passenger at the initiative of the carrier in the form of delaying the departure of the ship, changing the transportation route or the place of disembarkation of the passenger.

Liability for violation of the contract of passenger transportation. The civil liability of the parties for violation of transportation obligations is determined by the Civil Code, transport charters and codes, as well as the agreement of the parties (Article 793 of the Civil Code). At the same time, agreements between the carrier and other participants in transport obligations, including passengers, are not always recognized by law. Such agreements are considered invalid if their subject is the limitation or elimination of the carrier's statutory liability. Moreover, if in relation to the transportation of goods, an exception to the said rule on the invalidity of such agreements consists of cases when the possibility of such agreements is provided for by transport charters and codes (clause 2 of Article 793 of the Civil Code), then for the transportation of passengers and baggage such exceptions have not been established. Consequently, agreements to limit or eliminate the carrier’s statutory liability in the obligations of the passenger transportation contract are unacceptable. On the other hand, in a situation where the carrier and passenger make other agreements on liability (with a different content), for example, on increasing the amount of liability of the carrier, then they must be considered valid. This conclusion is confirmed, for example, by the content of Art. 123 VK, according to which the carrier has the right to enter into agreements with participants in legal relations regarding air transportation, including passengers, to increase the limits of its liability compared to the limits established by the Air Code or international treaties of the Russian Federation.

The main forms of liability of the parties in case of violation of the contract of passenger transportation are the collection of penalties (fines, penalties), partial or full compensation for losses to the injured party, and some others. A special feature is the possibility of applying such a measure of liability as compensation for moral damage. This liability applies in the event of moral harm being caused to a passenger by violation of his rights on the basis of Art. 15 of the Law on Protection of Consumer Rights. At the same time, the legislation does not exclude, and practice allows, the filing of claims only for compensation to passengers for moral damage caused.

Firstly, the carrier is responsible for causing harm to the life or health of the passenger (Article 800 of the Civil Code). In this case, the carrier’s liability for harm caused to the life or health of the passenger arises according to the rules of Chapter. 59 of the Civil Code on obligations due to damage, unless the law or the contract of carriage provides for increased liability of the carrier. In this case, liability, as a rule, occurs under the provisions of Art. 1079 of the Civil Code on liability for harm caused by activities that create an increased danger to others, in particular, the carrier is liable regardless of guilt. Determination of the amount of damage subject to compensation, as well as persons entitled to receive compensation, is made according to the rules of § 2 of Chapter. 59 of the Civil Code (compensation for harm caused to the life and health of a citizen).

The legal literature does not exclude the possibility of the carrier being liable for causing harm to the life and health of a passenger due to general rules tortious liability, i.e. according to Art. 1064 of the Civil Code in the presence of the carrier’s fault. This approach seems justified, in particular for the air transportation of passengers, which, according to Art. 117 VK includes the period from the moment the passenger of the aircraft undergoes pre-flight inspection for boarding the aircraft and until the moment when the passenger of the aircraft, under the supervision of authorized persons of the carrier, left the airfield. As you can see, during the period legally considered air transportation, harm to the life and health of a passenger while he is on the ground can be caused by circumstances that may not be associated with sources of increased danger.

In order to protect the rights of passengers and other persons who are in certain family legal relationships with passengers (parents, children, etc.), transport legislation may establish the amount of compensation in fixed amounts. For example, according to clause 1.1 of Art. 117 of the Civil Code, the carrier is obliged to ensure payment of compensation for damage caused during the air transportation of the life of an aircraft passenger to citizens entitled to compensation for damage in the event of the death of the breadwinner in accordance with civil law, in the absence of such citizens - parents, spouse, children of the deceased passenger aircraft, and in the event of the death of an aircraft passenger who did not have independent income - to citizens who were dependent on him in the amount of 2 million rubles. The said compensation is distributed among citizens entitled to receive it in proportion to the number of such citizens.

To implement the obligation of carriers to compensate for harm caused to the life and health of passengers, including paying such compensation and compensating for other harm, legislation usually provides for the use of such an instrument as compulsory civil liability insurance of the carrier. In particular, Art. 133 of the VC provides the basic rules for compulsory insurance of civil liability of the carrier to the passenger of the aircraft. Thus, if harm is caused to life, if the compulsory insurance contract does not provide for a higher amount of compensation for harm, the amount of insurance payment under the compulsory insurance contract when performing domestic air transportation in relation to one aircraft passenger is 2 million rubles. plus the necessary funeral expenses amounting to no more than 25 thousand rubles.

Secondly, the carrier is responsible for the delay in the passenger’s departure (Article 795 of the Civil Code). For delay in departure of a vehicle carrying a passenger or delay in arrival of such a vehicle at its destination, the carrier shall pay the passenger a fine in the amount established by the relevant transport charter or code. For example, according to Art. 120 VK for delay in delivery of a passenger, baggage or cargo to the destination, the carrier pays a fine in the amount of 25% of the minimum wage established by federal law for each hour of delay, but not more than 50% of the carriage charge. In accordance with Art. 110 UZhT for a delay in the departure of a train or for a train being late to the destination railway station, the carrier pays the passenger a fine in the amount of 3% of the fare for each hour of delay, but not more than in the amount of the fare.

The carrier is not responsible for such violations (delay or delay of the vehicle):

for transportation in urban and suburban traffic;
if he proves that the delay or tardiness occurred due to force majeure, the elimination of a vehicle malfunction that threatens the life and health of passengers, or other circumstances beyond the control of the carrier.

In addition to paying a fine if a passenger refuses transportation due to a delay in the departure of the vehicle, the carrier is also obliged to return the carriage fee to the passenger in full.

Thirdly, the carrier is responsible for unsafe luggage (Article 796 of the Civil Code). In this case, the carrier is responsible for the period from the moment the baggage is accepted for transportation and until it is released to the person authorized to receive the baggage. The carrier's liability in this case is:
a) in the form of compensation for damage caused, which is limited to the amount of damages established by law. In particular, according to paragraph 2 of Art. 796 of the Civil Code, damage caused by the loss of baggage during transportation is compensated by the carrier in the case of declaring the value of the baggage in the amount of the declared value of the baggage;
b) in the form of a refund of the carriage charge for the transportation of baggage, which comes along with the first form of liability.

To release the carrier from liability for unsafe luggage, he must prove that the loss, shortage or damage (spoilage) of luggage occurred as a result of circumstances that the carrier could not prevent and the elimination of which did not depend on him (clause 1 of Article 796 of the Civil Code). The rules of the Civil Code on the grounds for exemption from liability are developed and specified in acts of transport legislation (Article 118 KVVT, etc.).

The passenger may also be held liable for violating the contract of passenger transportation. For example, according to paragraph 9 of Art. 35 of the UAT for sending items, the carriage of which is prohibited as part of baggage, as part of baggage checked in for transportation, the passenger pays the carrier a fine in the amount of ten times the carriage charge for the carriage of baggage.

As in the case of liability arising from a contract for the carriage of goods, the procedure for applying liability in connection with violation of the conditions of carriage of passengers and baggage usually consists of three stages:

documentary recording of the grounds for liability (in cases provided for by law);
compliance with the claims procedure for resolving disputes;
filing a claim in the appropriate court.

As part of the first stage, transport legislation in a number of cases provides for the need for special documentary evidence of those circumstances that are the basis for the liability of participants in passenger transportation obligations. So, in Art. 119 of the UZhT it is established that such circumstances are certified by commercial acts, acts of general form and other acts. In particular, a commercial act is drawn up to certify damage (damage) to baggage and possible causes of such damage; detection of luggage without transportation documents. By their significance, these documents are evidence. However, in accordance with paragraph 4 of Art. 796 of the Civil Code, documents on the reasons for unsafe luggage (commercial act, general form act, etc.), drawn up by the carrier unilaterally, are subject in the event of a dispute to be assessed by the court along with other documents certifying circumstances that may serve as the basis for liability of the carrier, sender or the recipient of the cargo or luggage. Thus, the carrier’s documents certifying the grounds of liability, the need for preparation of which is provided for in transport legislation, do not have priority over other evidence in the court case.

However, not all circumstances that are the basis for the liability of participants in passenger transportation obligations require special documentation. In particular, according to Art. 121 UZhT and clause 71 of the above Rules for the provision of services for the transportation of passengers by rail, as well as cargo, luggage and cargo luggage for personal, family, household and other needs not related to the implementation entrepreneurial activity, in case of delay in departure or delay of the train, only travel documents (tickets) are attached to the claim, which confirm the content of the claim.

The essence of the second stage is to comply with the rule on mandatory or voluntary claims procedure for resolving disputes regarding passenger transportation. In relation to the claims procedure for resolving disputes in passenger transportation relations, the legislator generally proceeds from two different approaches:

firstly, a mandatory claim settlement procedure is established for a number of disputes, i.e. for their specific part. For example, this procedure is established in Art. 161 KVVT regarding the presentation of claims against the carrier. In addition, according to Art. 194 of the Code of the Russian Federation, the passenger is obliged to send a written statement to the carrier about the loss or damage of luggage only in the cases specified here, and in other situations, the claim procedure for the carriage of passengers and luggage by sea does not apply. Usually, for the claims of the carrier itself against the passenger, as well as for claims for compensation for damage to the life and health of the passenger, the claim procedure in question is not established;
secondly, for individual situations Only the right to make a claim is formalized normatively, but not the obligation, which, in essence, is equivalent to a voluntary claim procedure. According to Art. 121 UZhT, before a claim is filed against the carrier arising in connection with the transportation of passengers and baggage, a claim may be filed against the carrier. However, the legislator does not always consistently follow this approach in UZhT: in Art. 125 UZhT the right to bring claims against baggage carriers arising in connection with transportation, in particular, in any case, is associated with compliance with the claims procedure. The right to file a claim is established for contracts for the carriage of passengers by road in accordance with paragraph 1 of Art. 39 UAT.

The claim procedure for a mandatory or voluntary dispute resolution procedure usually consists of two stages: filing and filing a claim, its consideration within the time limits established in transport legislation, and sending a response to the claimant.

For the first stage, transport legislation determines who can file a claim and within what time frame, and how it is processed. In particular, for passenger transportation by road, the right to file claims against carriers in a pre-trial manner are persons who have entered into transportation contracts and insurers who have paid insurance compensation in connection with the carriers’ violation of their obligations for the transportation of passengers and luggage, and claims can be filed within limitation period (Article 39 of the UAT). With regard to the specified period for filing claims in relations regarding passenger transportation, it is necessary to take into account the instructions given in paragraph 5 of the resolution of the Plenum Supreme Court RF dated September 29, 1994 No. 7 “On the practice of courts considering cases on the protection of consumer rights”, according to which the expiration of the pre-trial period established by law for a citizen to file a claim is not a basis for refusal of judicial protection, since this contradicts Art. 46 of the Constitution of the Russian Federation and the Law on the Protection of Consumer Rights.

At the second stage, the carrier considers the claim within the period determined by transport legislation and sends an appropriate response to the claimant. For example, according to Art. 40 of the UAT, the carrier is obliged to consider the claims presented to him and notify the applicant in writing about the results of their consideration within 30 days from the date of receipt of the claim. If the carrier partially satisfies or rejects the applicant's claim, the notification must indicate the basis for making such a decision in accordance with the UAT. In this case, the documents submitted along with the claim are returned to the applicant.

At the third stage of the procedure for applying liability in connection with violation of the conditions of transportation of passengers and baggage, a claim is filed in the appropriate court. In relation to this stage, transport legislation usually answers two questions - who can bring a claim and in what case, what is the statute of limitations. Thus, for the transportation of passengers and luggage by road, it is established that when claims are made in the manner established by the UAT 2007, claims against carriers arising in connection with the transportation of passengers and luggage can be brought in cases of complete or partial refusal of the carriers to satisfy the claims or in cases of failure to receive responses to claims from carriers within 30 days from the date they received the relevant claims (Article 41 of the UAT).

The limitation periods in legal relations regarding passenger transportation are usually shortened. For example, for the transportation of passengers and luggage by road, the period is one year (Article 42 of the UAT).

In addition to the application of civil liability measures in legal relations related to passenger transportation, the parties may also use other methods of protecting civil rights. For example, if the carrier unreasonably refuses to enter into an agreement for the carriage of passengers and luggage by public transport, the passenger has the right to go to court with a demand to be forced to conclude an agreement (clause 3 of Article 426, clause 4 of Article 445 of the Civil Code). The passenger can also file a claim here for damages (clause 4 of Article 445 of the Civil Code).

Along with this, the fulfillment of the passenger’s obligation to pay for baggage and other payments for transportation is ensured by the carrier’s retention of the baggage transferred to him for transportation in order to secure the carriage charge and other payments for transportation due to him (clause 4 of Article 790 of the Civil Code). The specified right of the carrier, subject to the rules of Art. 359, 360 of the Civil Code on retention, exists unless otherwise established by law, other legal acts, contract of carriage or follows from the essence of the obligation.

Towing obligation

The concept of towing and towing agreement. For the purpose of determining a towing agreement, it is necessary to establish the content of the term “towing” as used in the current legislation.

Firstly, the term "towing" indicates the corresponding technical activities, a special procedure, the content of which is the movement of a towed object by a towing vehicle.

In the specified value, towing is one of the elements transport process. This conclusion is confirmed by the content of transport legislation, in particular Art. 3 KVVT, according to which activities related to the use of vessels on inland waterways for towing ships and other floating objects belong to the category “shipping” (transport process on inland water transport). In this understanding (as an element of the transport process), towing can be carried out both in unviolated legal relations (towing rafts, etc.), and as a result of committing an offense in transport as a kind of one of the restorative consequences (towing a damaged vehicle).

Towing is a relatively independent element of the transport process, along with the transportation of goods, passengers and luggage. The relationship between towing and transportation, which is important for understanding the essence of the towing agreement, is due, on the one hand, to the fact that these are elements of the transport process, vehicles are involved, these are certain procedures. On the other hand, shipping and towing vary depending on the property. If the object of the transportation process is cargo, passengers and luggage, then the towed object is an object of the material world (vehicle, raft, etc.) capable of moving under the influence of the towing vehicle.

Secondly, the term “towing” is used by the legislator in relation to the towing agreement, to indicate its essence, i.e. to characterize contractual relations within the relevant part of the transport process. This expresses the commonality of the indicated meanings of the term “towing”. Thus, it turns out that towing is usually part of the transport process of moving another vehicle or other towed object by one vehicle, which is formalized by a towing agreement.

The definition of this agreement is contained in some current acts of transport legislation. So, according to Art. 88 KVVT, in accordance with the towing agreement, one party (tugboat) undertakes to promptly and safely tow a ship, raft or other floating object (towed object) to the port of destination in compliance with the towing conditions and hand it over to the recipient specified in the consignment note, and the other party ( the sender) undertakes to present the towed object for towing and pay for it. A similar definition of a towing agreement is given in Art. 225 KTM: under a towing agreement, the owner of one vessel undertakes, for a fee, to tow another vessel or other floating object over a certain distance (sea towing) or to perform maneuvers in the port waters, including for entering a vessel or other floating object into the port or removing them from port (port towing).

An analysis of the above definitions of a towing agreement allows us to conclude that it: refers to the types of agreements under which paid services are provided, which in this case form part of the transport process; is a paid agreement: under this agreement, towing is carried out for a fee; is in the nature of a mutual agreement; at the time of conclusion it is a consensual agreement.

A towing agreement can be divided into types according to at least two criteria - according to the type of transport on which towing is used, and also depending on the essence of the towing process. On the first basis, the types of towing defined in transport legislation usually include river (regulated by KVVT) and sea towing (regulated by KTM). Hence, according to the current legislation, there are two types of towing agreements - a river towing agreement and a sea towing agreement. On the second basis, based on the above-mentioned Art. 88 KVVT and Art. 225 KTM in the legal literature on transport law rightly points out two types of towing - towing a towed (floating) object to a certain distance and towing to perform a maneuver. Accordingly, there are two types of towing agreement.

The towing agreement is an independent agreement that provides an independent part of the transport process. Due to the characteristics of the subject - towing services - this agreement is usually distinguished from related transportation agreements, vehicle rental agreements, as well as from contract-type agreements.

Along with the towing agreement, the legislation also allows for the conclusion of an organizational agreement related to towing processes. Such an agreement is concluded in accordance with clause 5 of Art. 88 KVVT if it is necessary to carry out systematic towings and is called an agreement on the organization of towings. This agreement determines the conditions for organizing towing, which, within the framework open list listed in paragraph 5 of Art. 88 kVVT. At the same time, the conditions for organizing towings directly indicated in this norm - the responsibility of the parties, the volume and timing of towings, the conditions for presenting towed objects for towing, carrying out towings, paying for towings and settlements for them - should be considered essential terms of the agreement on organizing towings. This conclusion follows from the content of paragraph 1 of Art. 432 of the Civil Code - the specified conditions are named in the law as conditions necessary for contracts on the organization of towing.

The emergence of an obligation for towing under the contractual scheme “any previous agreement - a towing agreement” may be associated with the execution not only of an agreement on the organization of towing, but also other agreements, in particular a maritime brokerage agreement, under which the intermediary (marine broker) undertakes on behalf of and at the expense of the principal, provide intermediary services in concluding contracts for the sale and purchase of ships, charter agreements and contracts for towing ships, as well as marine insurance contracts (Article 240 of the KTM).

In addition, within the framework of the indicated scheme, the emergence of towing obligations may also be due to the execution of mixed contracts. Thus, the emergence of towing obligations may occur as part of the execution of a concession agreement in relation to sea and river vessels, mixed (river-sea) navigation vessels, vessels engaged in icebreaker assistance, hydrographic, scientific research activities, ferry crossings, floating and dry docks . As follows from clause 1 of the Model Concession Agreement, approved. Decree of the Government of the Russian Federation dated December 5, 2006 N 746 “On approval of a standard concession agreement in relation to sea and river vessels, mixed (river-sea) navigation vessels, vessels engaged in icebreaker assistance, hydrographic, scientific research activities, ferry crossings, floating and dry docks,” this agreement is of a mixed nature (Article 421 of the Civil Code), combining elements of contracts for the creation and (or) reconstruction of ships and other floating objects, contracts of transportation, towing and others.

Legal regulation of contractual relations on towing. Within the framework of this regulation we can distinguish:

regulatory legal regulation of these relations;
legal regulation of contractual relations for towing using customary rules, which is more typical for towing at sea.

The first type of regulation is carried out, firstly, by certain rules of international law. Relations related to towing are regulated in some international legal acts. Thus, the Convention on the International Regulations for Preventing Collisions at Sea (London, October 20, 1972) contains provisions on vessels engaged in towing and pushing (rule 24) - these are rules on the actions that the towed vessel and the towed object must perform.

Secondly, special regulation of contractual relations regarding towing is contained in the transport legislation of the Russian Federation. In addition to the transport legislation itself, contractual relations regarding towing are applied, in the absence of special provisions, and the general norms of the Civil Code on transactions, obligations, etc. This conclusion is confirmed by the content of the current legislation. This is indicated, in particular, by paragraph 2 of Art. 1 KTM, clause 9 art. 17 Federal Law of November 8, 2007 "On sea ports in the Russian Federation and on amendments to certain legislative acts of the Russian Federation." In accordance with the specified Federal Law, the rules established by the Civil Code and the Code of Labor Code apply to ship towing services.

Regulatory regulation of a towing agreement is presented only in those transport charters and codes that formally recognize towing as one of the main parts of the transport process. Therefore, the towing agreement is regulated by KTM and KVVT, but there are no rules about it in UZhT, VK and UAT. At the same time, towing may be regulated not as part of the transport process itself, but as an activity that supports the transport process. Thus, in air transport, aircraft towing is used as part of the movement process at airfields. The current legislation does not exclude the towing by an aircraft of another aircraft or any cargo (towing flights).

Despite the absence of rules on towing in UAT, towing relations also occur in road transport, as evidenced by the Road Traffic Rules of the Russian Federation and the Code of Administrative Offenses. However, towing in road transport is usually not of an organized (mass) nature, but is used only on a one-time basis (as part of the procedures for eliminating the consequences of a traffic accident). Therefore, here it is not one of the constituent elements of the transport process. Existing contractual relations regarding car towing are regulated by the general rules of the Civil Code on contracts.

In KVVT regulatory regulation contractual relations for towing are mainly imperative, and the gaps in it are eliminated primarily by applying the rules of Ch. XI KVVT on the contract for the carriage of goods on inland water transport, which determines clause 6 of Art. 88 kVVT. In turn, in the CTM the specified regulation is mainly dispositive, as indicated by Art. 226 KTM, providing that the rules established by Ch. XII KTM, dedicated to the towing agreement, are applied unless otherwise established by agreement of the parties.

Contractual relations for towing can also be formalized by relevant by-laws. For example, in inland water transport, towing relations are regulated by special towing rules, which are indicated by Art. 88 kVVT. These are the rules for towing ships, rafts and other floating objects, approved by the federal executive body in the field of transport. Also, in this type of transport, when towing rafts, special acts are applied - technical conditions for the formation and equipment of rafts, which are developed by raft manufacturers, agreed upon with the state river navigation inspection of the basin and approved by the basin state transport authority (clause 2 of Article 89 of the KVVT).

Elements of a towing agreement. The parties to the towing agreement concluding this agreement on inland water transport are the towing operator - the owner of the towing vessel (his representative), as well as the sender - the owner of the towed object or a person authorized by him. The shipper of the rafts has special responsibilities (Article 90 KVVT). In addition, the recipient of the towed object, who receives the towed object at the port of destination, participates in legal relations regarding towing (Article 93 KVVT).

The legislator pays significantly less attention to the parties to legal relations from a towing agreement in maritime transport compared to a towing agreement in inland water transport. From the contents of Ch. XII of the Code of Labor and Transport, the conclusion is that the parties to the towing agreement carried out on maritime transport are shipowners - the owners of the towed and towing vessel, as well as the owners of other floating objects.

In a towing agreement, there may be a plurality of persons both on the side of the towing company, for example this is possible with joint towing, and on the side of its client. The client of the towing company can be a citizen ordering towing services for needs not related to business activities (towing for consumer needs). In this case, in addition to the Civil Code and transport legislation, legislation on the protection of consumer rights will be applied to the relations of the parties to the towing agreement.

A towing agreement can also be concluded between Russian and foreign counterparties. However, for some foreign counterparties, the execution of this agreement in maritime transport may be limited. Limitation of the subject composition of contractual legal relations on towing may also be associated with the licensing of a particular towing activity established by current legislation. According to paragraph 6 of Art. 9 and paragraph 1 of Art. 17 of the Federal Law of August 8, 2001 “On licensing of certain types of activities”, the activity of towing by sea transport is subject to licensing (except for the case if this activity is carried out to meet the own needs of a legal entity or individual entrepreneur). Therefore, a person providing sea towing services to third parties must have the appropriate license.

The subject of the towing agreement is services for moving a towed object (usually a floating object) under the influence of a towing vehicle (towing services). These services are of a stage-by-stage nature, which affects the content and execution of the towing agreement.

Transport legislation establishes special requirements for the form of a towing agreement. These requirements are differentiated depending on the type of transport on which towing is used. For example, according to paragraph 1 of Art. 227 KTM, a sea towing contract is concluded in writing. At the same time, a port towing agreement can be concluded orally, and an agreement on assigning responsibilities for towing management to the captain of the towing vessel must be concluded in writing.

In inland water transport, the conclusion of a towing agreement is confirmed, and accordingly, towing relations are formalized (Article 88 KVVT):

waybill drawn up in accordance with towing rules;
a road manifest and a receipt for acceptance of the towed object for towing, which are issued on the basis of such a consignment note;
other documents specified in the towing rules.

Contents and execution of the towing agreement. The rights and obligations of the parties and other persons involved in the execution of the towing agreement are determined depending on the type of towing and are distributed according to the stages of the towing process (stages of execution of the towing agreement). To fulfill a contract for towing a towed (floating) object over a certain distance, the following stages (stages) of the towing process can be distinguished:

preparation by the sender of the towed object for towing;
presentation by the sender of the towed object for towing and its acceptance by the towing vehicle;
direct towing by the towing vehicle;
delivery by the tug of the towed object at the port of destination and its acceptance by the recipient.

Essentially, the same stages of contract execution can be identified in relation to the towing contract for performing a maneuver. However, in this case, these stages usually have specifics - they have a shorter overall time duration, the recipient and sender of the towed object coincide in one person, the first and second stages can essentially represent one stage. In other words, in terms of execution stages, the towing agreement for performing the maneuver is simpler. This, by the way, is evidenced by the above-mentioned features of its execution (the possibility of concluding a port towing agreement orally - Article 227 of the KTM).

Let us consider the content of a towing agreement using the example of a river towing agreement for a towed (floating) object over a certain distance, comparing it in some cases with the content of the corresponding towing agreement regulated by the KTM.

At the first stage, the sender is obliged to bring the towed object into a condition suitable for safe navigation (clause 1 of Article 89 of the KVVT). This condition is determined in accordance with the towing rules, technical conditions for the formation and equipment of rafts, as well as a towing agreement or an agreement on the organization of towing. A similar, although broader in content, rule is contained in the CTM. When preparing for towing at sea, not only the sender, but also both parties to the towing agreement are obliged to bring their ship or other floating object into a condition suitable for towing in advance (Article 228 of the Code of Labor Code).

In addition, at the first stage, the issue of staffing the towed object with a crew or guides must be resolved, which is determined by agreement of the parties, unless otherwise provided by the towing rules. It appears that, as long as the law does not preclude otherwise, the noted manning may be carried out by any party to the towing agreement. If the crew of the towed object has been completed, then the members of such crew are obliged to follow the orders of the captain of the towing vessel in terms of ensuring the safety of navigation, the safety of the towed object and take measures to prevent transport accidents with the towed object (clause 3 of Article 89 of the KVVT). Special duties ensuring the first stage of execution of the towing contract are established for the sender of the rafts, in particular this is the obligation to carry out the formation of the rafts, take them to the places of presentation for towing previously agreed upon with the towing company within the time limits specified in the calendar schedule agreed between the sender and the towing company or corresponding to the terms of the contract on the organization of towing (Article 90 KVVT).

At the second stage of the towing process, the towed object prepared by the sender is presented by the sender to the towing vehicle and is accepted by the latter. In this case, the towed object must be presented by its sender for inspection no later than 12 hours before the departure date (clause 1 of Article 91 of the KVVT), and the towing operator is obliged, before accepting the towed object, to inspect it, check the documents necessary for towing, equipment (rigging ) and equipment of the towed object, dimensions of the towed object, compliance of the towed object with navigation rules, and in relation to rafts - compliance of the raft technical specifications formation and equipment of rafts (clause 2 of article 91 KVVT). In accordance with Art. 91 KVVT, within the framework of the considered second stage, the following documents are drawn up:

a statement of defects and shortcomings (if any) that impede towing, and the time frame for their elimination;
certificate of readiness of the towed object for towing;
waybill for towing, issued on the basis of the previous act.

At the third stage of the towing process, during the direct implementation of river towing, the main responsibility of the towing operator is realized - to tow the floating object in a timely manner and ensuring the necessary safety. For towing at sea st. 228 KTM sets general rules that towing must be carried out with skill as circumstances require, without interruption or delay except as necessary, and in accordance with good seamanship, and a ship or other floating object that is under the control of the master of another ship or other floating object , must also take care for the safe navigation of the towing caravan.

The obligation for river towing at the third stage may be terminated (partially, for the future) on a special basis specified in Art. 94 kVVT. To do this, two legal facts must be present:
towed objects accepted after the deadline for the termination of the mandatory acceptance of towed objects for towing;
these objects could not be delivered to their destination or were delayed in transit.

In the case under consideration, the towed objects must be accepted by their senders for storage and placed for long-term storage, including in the winter season, at the place where traffic is stopped. Evidence of partial termination of the towing obligation for the future is the provision of Art. 94 KVVT that the freight charge for the untraveled distance is subject to return to the sender of the towed object, i.e., on the one hand, the towing process is no longer carried out (this service is no longer provided), the sender receives the towed object for storage, and on the other parties, a certain part of the carriage fee (towing fee) is returned. Thus, the parties are essentially brought to their original position as regards the unrealized towing.

As part of the fourth stage of the towing process under consideration, the tugboat delivers the towed object at the port of destination and its acceptance by the recipient. At this stage Art. 93 KVVT imposes a number of obligations on participants in relevant legal relations. Firstly, these are the information responsibilities of the towing operator and the recipient of the towed object. The tugboat must notify the recipient of the time of arrival of the towed object at the port of destination twice: 1) no later than 24 hours; 2) again 6 hours before the arrival of the towed object. In turn, the recipient of the towed object is obliged to indicate to the captain of the towing vessel the place of its staging and the place of reception. Secondly, the recipient is obliged to ensure the safe staging of the towed object. Thirdly, the tugboat, together with the recipient of the towed object, must inspect and assess the damage to the towed object, if it is delivered to the port of destination with signs of damage, and draw up an appropriate report.

In accordance with Art. 79 KVVT, applied here on the basis of the above reference norm of paragraph 6 of Art. 88 KVVT, confirmation of the delivery of the towed object to the recipient is his signature on the road manifest.

Liability for violation of the towing agreement. The above rule on the application of Ch. XI KVVT on the contract for the carriage of goods on inland water transport to relations for towing ships, rafts and other floating objects in the event that such relations are not regulated by special regulatory provisions of the KVVT on towing (clause 6 of Article 88 of the KVVT), leads to the conclusion that that civil liability for violation of a towing contract and the same liability for violation of a contract for the carriage of goods are in many ways similar. This is indicated by the content of Chapter. XV KVVT on the responsibility of the carrier, tugboat, consignor, consignee, sender and recipient of the towed object. At the same time, the similarity of liability for violations of the contract of carriage and towing is expressed in a certain coincidence of offenses, forms of liability, and grounds for exemptions from it.

In ch. XV KVVT established the responsibility of almost all participants in the towing process described above. The towing operator is responsible for failure to deliver vehicles (Article 115 KVVT); for failure to comply with the delivery deadlines for the towed object (Article 116 KVVT); for loss or damage to a towed object (Article 117 KVVT). The sender of the towed object is responsible for non-use of the supplied vehicles (Article 115 KVVT), for late payment for towing (clause 3 of Article 120 KVVT); for untimely transfer, unreliability or incompleteness of documents attached to the consignment note (clause 6 of article 120 of the Tax Code of the Russian Federation). The sender and recipient of the towed object are responsible for excess downtime of vessels (clause 2 of article 120 of the KVVT). Along with this, for damage to the vessel, the sender and recipient (the corresponding guilty party) are charged the cost of necessary repairs (clause 5 of Article 120 of the Civil Code of the Russian Federation).

As in the case of transportation, the circumstances that are the basis for the property liability of participants in the towing process during river towing in a number of situations are certified by commercial acts or acts of a general form drawn up by towing operators at the request of senders and recipients of towed objects (Article 160 KVVT). A commercial act is drawn up when issuing a towed object to certify certain circumstances expressly specified in Art. 160 KVVT, in particular to verify damage to the towed object. In other cases, acts of a general form are drawn up (clause 5 of Article 160 of the Civil Code of the Russian Federation).

The main forms of liability for violation of a river towing agreement are penalties (fine, penalties) and recovery of actual damage (part of it). As an exception, in cases provided for by law, the parties to towing obligations may become liable in the form of full compensation for losses caused.

The application of civil liability measures in legal relations on river towing, as well as in legal relations on transportation, is associated with compliance with the mandatory claim procedure for resolving disputes. This procedure is applied when making claims against the towing vehicle. At the same time, the legislation does not provide for a mandatory claim procedure if the towing operator himself addresses his demands to other participants in the towing process.

The specified procedure for resolving disputes is expressed in the fact that, in accordance with Art. 161 of the KVVT, before filing a claim against the towing company in connection with towing, it is mandatory to file a claim against it (at its location) with the attachment of the documents established by the specified article of the KVVT (documents confirming the applicant’s right to file a claim, etc.).

The claim procedure for resolving disputes related to towing, as well as a similar procedure for resolving disputes in connection with transportation, consists of two stages: filing and filing a claim; reviewing the claim and sending a response to it. As part of the first stage, the interested person (the victim of the offense) draws up a claim and the documents attached to it and submits it to the towing company. Claims against towing companies can be brought by certain persons (specific interested participants in the towing process) during special limitation periods, which are calculated according to special rules. For example, when resolving a dispute about damage to a towed object through a claim procedure:
The recipient of the towed object has the right to file a claim against the towing operator, subject to the submission of a transport bill of lading, a commercial act, and in the absence of a commercial act, a document on appealing the refusal to draw up a commercial act (Article 162 of the Civil Code of the Russian Federation);
the limitation period in this case is set at one year (Article 164 of the Civil Code of the Russian Federation);
The limitation periods are calculated in relation to compensation for damage to a towed object from the date of delivery of the towed object (Article 161 KVVT).

At the second stage, the towing company is obliged to consider the received claim and notify the applicant in writing about the results within 30 days from the date of receipt of the claim (Article 163 of the Civil Code of the Russian Federation). Claims against the towing company may be filed based on the results of consideration of the claim - in the event of a complete or partial refusal of the towing company to satisfy the claim or in the event of failure to receive a response from the towing company to the presented claim within 30 days (Article 164 of the Civil Code of the Russian Federation). Claims are brought by the same persons who have the right to file claims.

Exemption from civil liability in river towing obligations is carried out in cases expressly specified in the KVVT. Firstly, this occurs when the person held accountable fulfills the obligation to prove certain circumstances expressly specified in the law, under which the liability of this person does not occur, and which are in a direct causal connection with the offense. Secondly, exemption from liability occurs in other cases determined by the KVVT.

Liability for towing regulated by KTM has significant specifics compared to liability associated with river towing. The main features here are, firstly, a high degree of discretion in legal regulation, expressed in securing the possibility of making a number of agreements on liability, and secondly, the differentiation of liability for sea towing and port towing on a subjective basis. Since sea towing is carried out under the control of the captain of the towing vessel (clause 1 of Article 229 of the Code of Labor Code), the owner of the towing vessel bears responsibility for damage caused during sea towing to the towed vessel or other floating object or to the people or property on them, unless proves that the damage was not caused by his fault.

At the same time, the parties to a sea towage agreement may, by agreement in writing, assign the responsibility for managing sea towage to the captain of the towed vessel or other floating object. In this case, the owner of the towed vessel or other floating object, unless he proves that the damage was caused through no fault of his own, bears responsibility for damage caused to the towing vessel or the people or property on it during sea towing.

Liability for port towing is regulated in a similar way (Article 230 KTM). Due to the fact that port towing is carried out under the control of the captain of the towed vessel or other floating object, liability for damage caused during port towing to the towing vessel or to the people or property on it is borne by the owner of the towed vessel or other floating object, unless he proves that the damage was not caused by his fault. As in the previous situation, the parties to a port towing agreement may, by agreement in writing, assign the responsibility for managing port towing to the captain of the towing vessel. In this case, the owner of the towing vessel bears responsibility for damage caused during port towing to a towed vessel or other floating object or to people or property on it, unless he proves that the damage was caused through no fault of his own.

For any type of towing, the owner of the towing vessel is not responsible for damage caused during towing in ice conditions a towed vessel or other floating object or the people or property on them, unless it is proven that the damage was caused through his fault (Article 231 of the Code of the Russian Federation).

A one-year statute of limitations applies to claims arising from a towing agreement made in accordance with the KTM (Article 409 of the KTM).

In addition to the application of civil liability measures for violations of the towing agreement, it is also possible to use other methods of protecting civil rights. For example, they may be taking measures to reduce the harm caused, as well as restoring the situation that existed before the violation of the right (Article 12 of the Civil Code). So, according to the general rule of paragraph 1 of Art. 92 KVVT in the event of a transport accident with a towed object, the captain of the towing vessel, the consignor and the crew members of the towed object are obliged to jointly take measures to reduce the damage caused by such an incident and eliminate its consequences.

Transport expedition

Concept and elements of a transport expedition contract. In accordance with paragraph. 1 clause 1 art. 801 of the Civil Code, under a transport expedition agreement, one party (the forwarder) undertakes, for a fee and at the expense of the other party (the client - the shipper or consignee), to perform or organize the performance of services specified in the expedition agreement related to the transportation of goods.

In para. 2 and 3 clauses 1 art. 801 of the Civil Code defines the basic and additional services that the freight forwarder undertakes to perform or organize under the transport expedition agreement. In particular, the main services include the duties of the forwarder to organize the transportation of goods by transport and along the route chosen by the forwarder or the client, the duty of the forwarder to conclude on behalf of the client or on his own behalf an agreement (agreements) for the carriage of goods, to ensure the sending and receipt of goods, as well as other duties, related to transportation. As additional services, the transport expedition contract may provide for the implementation of operations necessary for the delivery of cargo, such as obtaining documents required for export or import, performing customs and other formalities, checking the quantity and condition of cargo, loading and unloading it, paying duties, fees and others. expenses imposed on the client, storing the cargo, receiving it at the destination, as well as performing other operations and services, provided for by the agreement.

The stated definition of a transport expedition agreement allows us to highlight its main features. The transport expedition agreement is consensual, compensated and bilaterally binding. The parties to the transport expedition agreement are the forwarder and the client (the carrier itself can act as a forwarder). The subject of the contract is the performance or organization of the performance of services related to the transportation of goods, the list of which is not exhaustive. The agreement is concluded in writing (the client must give the forwarder a power of attorney if it is necessary to perform his duties) (Article 802 of the Civil Code).

In the legal literature, some of the indicated features of a transport expedition agreement are interpreted ambiguously. For example, it has been suggested that a transport expedition agreement can be either consensual, when the forwarder organizes the performance of forwarding services, or real, when he performs them with the cargo entrusted to him, when the forwarder is the carrier. Some authors note that regardless of how the forwarder undertakes to provide forwarding services to the client: directly perform these services on their own or only organize their implementation, corresponding obligations arise on the side of the forwarder by virtue of the very fact of signing an agreement with the client.

A transport expedition agreement combines transportation and forwarding actions, and also carries out legal procedures that are interconnected with the main obligation and entail civil legal consequences. The question of how a transport expedition contract is executed relates to legal procedures and does not affect the consensual nature of the contract itself.

A special feature of a transport expedition agreement is the well-known uncertainty of the subject of this agreement, since the Civil Code does not contain an exhaustive list of services for a transport expedition. Therefore, in order for a transport expedition contract to be considered concluded, the parties must agree (list in the contract) the services that the forwarder provides to the client. In any case, the provision of forwarding services is aimed at organizing the transportation process, designed to facilitate the fulfillment of the contract for the carriage of goods. Therefore, the subject of a transport expedition contract can be defined as a set of legal actions aimed at performing or organizing the performance of services related to the transportation of goods.

According to paragraph 3 of Art. 801 of the Civil Code, the conditions for fulfilling a transport expedition contract are determined by agreement of the parties, unless otherwise established by the law on transport and forwarding activities, other laws or other legal acts.

Currently, the regulation of relations related to the provision of freight forwarding services, along with the rules of Ch. 41 of the Civil Code is implemented by the Federal Law of June 30, 2003 “On Transport and Forwarding Activities” (hereinafter referred to as the Law on Transport and Forwarding Activities). This Law determines the procedure for carrying out transport and forwarding activities: the procedure for providing services for organizing the transportation of goods by any means of transport and issuing transportation documents, documents for customs purposes and other documents necessary for the transportation of goods.

Other laws and legal acts that formally regulate contractual relations for transport expeditions are transport charters and codes. At the same time, only the UZhT contains a rule dedicated to transport expeditions (Article 120). KVVT, KTM, VK and UAT do not provide for rules on transport expeditions.

The Law on Transport and Forwarding Activities also stipulates that the rules of transport and forwarding activities are approved by the Government of the Russian Federation. The rules of transport and forwarding activities determine: a list of forwarding documents (documents confirming the conclusion of a transport expedition agreement); requirements for the quality of forwarding services; procedure for providing forwarding services. In addition, the Rules for the centralized removal (delivery) of goods from railway stations located on the territory of the Russian Federation, carried out by freight forwarding enterprises, continue to apply. Ministry of Railways of Russia and the Ministry of Transport of Russia by letter dated May 14, 1993 N S-405u/AK-7/TsM-180. The provisions of these and other departmental regulations on transport expeditions can be changed and supplemented in the concluded expedition agreements.

Contents of the transport expedition agreement. The content of this agreement, as in any other case, constitutes the totality of the rights and obligations of the parties. In this case, the rights and obligations of the parties to the transport expedition agreement are established by civil law and the agreement of the participants in the expedition agreement themselves.

In Art. 804 of the Civil Code defines documents and other information provided to the forwarder. In particular, the client is obliged to provide the forwarder with documents and other information about the properties of the cargo, the conditions of its transportation, as well as other information necessary for the forwarder to fulfill the obligations provided for in the freight forwarding agreement. In turn, the forwarder is obliged to inform the client about any deficiencies found in the information received, and if the information is incomplete, request the necessary additional data from the client. If the client fails to provide the necessary information, the freight forwarder has the right not to begin performing the relevant duties until such information is provided.

In relations regarding a transport expedition, it is allowed for a third party to perform the duties of a freight forwarder; if it does not follow from the transport expedition agreement that the freight forwarder must fulfill his duties personally, the freight forwarder has the right to involve other persons in the performance of his duties. In this case, assigning the fulfillment of an obligation to a third party does not relieve the forwarder from responsibility to the client for the execution of the contract (Article 805 of the Civil Code).

According to Art. 806 of the Civil Code, any of the parties has the right to refuse to fulfill the transport expedition agreement by notifying the other party about this within a reasonable time. In case of unilateral refusal to fulfill the contract, the party declaring the refusal must compensate the other party for losses caused by termination of the contract.

A number of additional rights of the parties to the transport expedition agreement are specified in Chapter. 2 of the Law on Freight Forwarding Activities. According to Art. 3 of the said Federal Law, the freight forwarder is granted the following rights.

The forwarder has the right to deviate from the client’s instructions if this is necessary in the interests of the client and the forwarder, due to circumstances beyond his control, was unable to first request the client in the manner prescribed by the contract for his consent to such a deviation or receive a response to his request within 24 hours.

If the client’s instructions are inaccurate or incomplete or do not correspond to the transport forwarding agreement and the forwarder, due to circumstances beyond his control, was not able to clarify the client’s instructions, the forwarder provides forwarding services based on the interests of the client.

Unless otherwise provided by the transport expedition agreement, the forwarder has the right to choose or change the type of transport, the route of cargo transportation, the sequence of cargo transportation by various modes of transport, based on the interests of the client. In this case, the forwarder is obliged to immediately notify the client in the manner prescribed by the contract about the changes made by him.

The freight forwarder, if provided for in the freight forwarding agreement, has the right to retain the cargo at its disposal until payment of remuneration and reimbursement of expenses incurred in the interests of the client or until the client provides adequate security for the fulfillment of his obligations in terms of payment of remuneration and reimbursement of expenses incurred by him. In this case, the client also pays the costs associated with retaining the property. In these situations, the client is responsible for any damage to the cargo due to its retention by the forwarder.

The forwarder has the right not to begin to fulfill the duties stipulated by the freight forwarding agreement until the client provides the necessary documents, as well as information about the properties of the cargo, the conditions of its transportation and other information necessary for the forwarder to fulfill his duties. If incomplete information is provided, the forwarder is obliged to request the necessary additional data from the client in the manner prescribed by the transport expedition agreement.

The forwarder has the right to verify the accuracy of the necessary documents submitted by the client, as well as information about the properties of the cargo, the conditions of its transportation and other information necessary for the forwarder to fulfill the duties provided for in the freight forwarding agreement.

In turn, the client has the right:

choose the cargo route and mode of transport;
require the forwarder, if provided for in the transport expedition agreement, to provide information about the process of transporting the goods;
give instructions to the forwarder in accordance with the transport expedition agreement.

The duties of the forwarder in accordance with Art. 4 of the Law on Freight Forwarding Activities include:

provide services in accordance with the transport expedition agreement;
if there is no possibility of a preliminary request for deviation from the client’s instructions or if a response to such a request is not received by the forwarder within 24 hours, the forwarder is obliged to notify the client of the deviations made as soon as notification becomes possible, in the manner specified in the contract;
a forwarder providing services to a client for personal, family, household or other needs not related to the client’s business activities is obliged to provide, upon his request, information provided for by the legislation of the Russian Federation on the protection of consumer rights;
when accepting cargo, the forwarder is obliged to issue the client a forwarding document, as well as provide the client with the originals of the contracts concluded by the forwarder in accordance with the transport expedition agreement on behalf of the client on the basis of the power of attorney issued to him;
The forwarder does not have the right to conclude a cargo insurance contract on behalf of the client, unless this is expressly provided for in the transport expedition contract.

The client has an obligation to promptly provide the forwarder with complete, accurate and reliable information about the properties of the cargo, the conditions of its transportation and other information necessary for the forwarder to fulfill the duties stipulated by the freight forwarding agreement, and documents necessary for customs, sanitary control, and other types state control. In addition, the client, in the manner prescribed by the freight forwarding agreement, is obliged to pay the remuneration due to the forwarder, as well as reimburse the expenses incurred by him in the interests of the client (Article 5 of the Law on Freight Forwarding Activities).

Liability for violation of the transport expedition contract. Such liability arises according to the rules of the Civil Code, the Law on Transport and Forwarding Activities, in accordance with the terms of the concluded transport expedition agreement. According to Art. 11 of the Law on Transport Forwarding Activities, a transport expedition agreement may provide for a higher amount of liability of the forwarder compared to the amount of liability established by law or an international treaty of the Russian Federation. At the same time, an agreement to eliminate the freight forwarder’s property liability or reduce its amount established by law is void.

In accordance with Art. 803 of the Civil Code for non-fulfillment or improper fulfillment of obligations under the expedition agreement, the forwarder is liable on the grounds and in the amount determined in accordance with the rules of Chapter. 25 GK. Consequently, the forwarder is liable for violation of this agreement according to the general rules of civil law on liability for violation of obligations.

However, if the forwarder proves that the violation of the obligation is caused by improper execution of transportation contracts, the freight forwarder’s liability to the client is determined according to the same rules according to which the corresponding carrier is responsible to the freight forwarder. This rule applies only in those situations where, under the terms of the transport expedition agreement, the forwarder is obliged to conclude a transportation agreement on his own behalf, since only in this case can the carrier be held liable to the forwarder. In fact, the noted rule - “the responsibility of the forwarder is equal to the responsibility of the carrier” - means a certain improvement in the legal position of the forwarder, since in a number of cases, as shown above, the carrier bears only limited liability.

As for the client’s liability, the Civil Code contains only one general rule on his liability for violation of the information obligation in relation to the freight forwarder (clause 4 of Article 804). Thus, the client’s liability also arises according to the general rules on liability for violation of obligations.

The provisions of the Civil Code on liability for violation of a transport expedition contract are being developed and detailed special rules, provided for in Chapter. 3 of the Law on Freight Forwarding Activities. As follows from Art. 6 of the said Law, common ground liability is the failure or improper fulfillment by the client and the forwarder of their obligations under the freight forwarding agreement and the Law on Freight Forwarding Activities. For the forwarder, a special basis for liability may be a violation of an obligation caused by the carrier’s improper performance of the contract of carriage.

The main forms of liability of the parties for violation of the transport expedition agreement are compensation for losses (full or partial), collection of penalties, and return of remuneration by the forwarder. In particular, in the event of a unilateral refusal to fulfill the transport expedition agreement, the client or the forwarder compensates the counterparty for losses caused by termination of the agreement and pays a fine in the amount of 10% of the amount of costs incurred by the forwarder or the client (Clause 5, Article 6 of the Law on Freight Forwarding Activities) .

The forwarder is also liable to the client in the form of compensation for actual damage for loss, shortage or damage (spoilage) of the cargo after its acceptance by the forwarder and before the delivery of the cargo to the recipient specified in the transport expedition agreement, or to a person authorized by him, unless he proves that the loss, shortage or damage (damage) to the cargo occurred due to circumstances that the forwarder could not prevent and the elimination of which did not depend on him, in the following amounts:

for loss or shortage of cargo accepted by the forwarder for transportation with declared value - in the amount of the declared value or part of the declared value, proportional to the missing part of the cargo;
for loss or shortage of cargo accepted by the forwarder for transportation without declaring value - in the amount of the actual (documented) value of the cargo or its missing part;
for damage (damage) to cargo accepted by the forwarder for transportation with declared value - in the amount by which the declared value has decreased, and if it is impossible to restore the damaged cargo - in the amount of the declared value;
for damage (damage) to cargo accepted by the forwarder for transportation without declaring its value - in the amount by which the actual (documented) value of the cargo has decreased, and if it is impossible to restore the damaged cargo - in the amount of the actual (documented) value of the cargo (clause 1, Article 7 of the Law on Freight Forwarding Activities).

In this case, the actual value of the cargo is established based on the price specified in the contract or the seller’s invoice, and in its absence - based on the average price for a similar product that existed in the place where the cargo was to be delivered, on the day of voluntary satisfaction of such a demand or, if the demand was not voluntarily satisfied on the day the court decision was made. In turn, the cargo is considered lost if it has not been released after 30 days from the date of expiration of the delivery period, determined by agreement transport expedition, or, if such a period is not specified in the contract, within a reasonable period of time necessary for delivery of the cargo and calculated from the day the freight forwarder accepted the cargo for transportation. At the same time, cargo that was delivered but was not released to the recipient specified in the freight forwarding agreement or to a person authorized by him due to non-payment of the remuneration due to the forwarder is not considered lost if the forwarder promptly notified the client about the provision of forwarding services in the manner prescribed by the agreement transport expedition.

In situations where there is loss, shortage or damage (spoilage) of cargo, it is possible to apply such a sanction as a full or partial return by the client of the remuneration paid. According to paragraph 3 of Art. 7 of the Law on Freight Forwarding Activities, a freight forwarding contract may establish that, along with compensation for actual damage caused by loss, shortage or damage (spoilage) of cargo, the forwarder returns to the client the previously paid remuneration, if it is not included in the price of the cargo, in an amount proportional to the value of the lost, missing or damaged (spoiled) cargo.

Along with compensation for actual damage and the return to the client of the remuneration he paid to the forwarder in the above amounts established by Art. 7 of the Law on Freight Forwarding Activities, the freight forwarder is obliged to compensate the client for lost profits due to loss, shortage or damage (spoilage) of cargo that occurred through the fault of the freight forwarder.

In addition to losses caused by unilateral refusal to fulfill the contract, as well as loss, shortage or damage (spoilage) of cargo, the forwarder must compensate for losses caused by delay on his part. In accordance with Art. 8 of the Law on Freight Forwarding Activities, the freight forwarder compensates for losses caused to the client by violation of the deadline for fulfilling obligations under the transport forwarding agreement, unless otherwise provided by the specified agreement and the freight forwarder proves that the violation of the deadline occurred due to force majeure circumstances or due to the fault of the client. However, if the client under the transport forwarding agreement is a citizen-consumer, then in such a situation, in addition to full compensation for losses, the forwarder pays the client a penalty in the amount of 3%, but not more than 80% of the amount of remuneration due to the forwarder, unless it proves that the violation of the deadline occurred due to force majeure or the fault of the client.

The responsibility of a freight forwarder under a transport expedition agreement, the subject of which is forwarding services related to the transportation of goods in international traffic, has some specific features. It may be of a limited nature (clause 3 of Article 6 of the Law of Transport and Forwarding Activities). In connection with the provision of these forwarding services and the use of relevant forwarding documents in the provision of these services, the limit of the freight forwarder’s liability for failure to fulfill or improper fulfillment of the duties provided for in the freight forwarding agreement cannot exceed 666.67 units of account per package or other shipping unit, with the exception of the freight forwarder’s liability before the client-consumer (clause 2 of article 9 of the Law of transport and forwarding activities). In this case, the unit of account refers to the special drawing right unit defined by the International Monetary Fund (IMF). The value of the ruble in Special Drawing Right units is calculated in accordance with the valuation method applied by the IMF on the relevant date for its operations and transactions. In accordance with the value of the ruble in units of the special drawing right, the conversion into rubles is carried out on the date of the court decision or on the date established by agreement of the parties.

A special rule establishing the limitation of the forwarder’s liability for violation of obligations when providing specified forwarding services concerns the forwarder’s liability for loss, shortage or damage (spoilage) of cargo. Such liability cannot exceed two units of account per kilogram of the total weight of lost, missing or damaged (spoiled) cargo, if more high amount not reimbursed by the person for whom the forwarder is responsible (Clause 2, Article 7 of the Law on Freight Forwarding Activities).

At the same time, the specified rules on limiting the liability of the forwarder do not apply (clause 4 of Article 6 of the Law on Freight Forwarding Activities) if it is proven that the loss, shortage or damage (spoilage) of the cargo accepted for forwarding occurred as a result of the action or inaction of the forwarder himself committed intentionally or due to gross negligence.

A special rule has been established regarding the recovery of lost profits. When providing forwarding services related to the transportation of goods in international traffic, the indicated part of the losses is compensated in full, but not more than in the amount of liability established by the Law on Freight Forwarding Activities (clause 5 of Article 7).

According to Art. 10 of the Law on Freight Forwarding Activities (clause 4 of Article 804 of the Civil Code), the client is responsible for losses caused to the forwarder in connection with failure to fulfill the obligation to provide information. If it is proven that the client’s refusal to pay the expenses incurred by the freight forwarder in order to fulfill the obligations stipulated by the freight forwarding agreement is unfounded, the customer shall pay the freight forwarder, in addition to these expenses, a fine of 10% of the amount of these expenses. The client is responsible for late payment of remuneration to the freight forwarder and reimbursement of expenses incurred by him in the interests of the client in the form of payment of a penalty in the amount of one tenth of a percent of the remuneration to the freight forwarder and expenses incurred by him in the interests of the client for each day of delay, but not more than in the amount of the remuneration due to the freight forwarder and incurred to them in the interests of the client's expenses.

As in the case of transportation and towing, the application of liability in freight forwarding relations is associated with claims procedures. The claim procedure for resolving disputes for relations regarding transport expeditions is provided for in Art. 12 of the Law on Freight Forwarding Activities, according to which, before a claim is brought to the forwarder arising from a transport expedition agreement, it is mandatory to file a claim against him, with the exception of a claim brought by a client who is a citizen-consumer. Within the meaning of this norm, the mandatory claims procedure does not apply in situations where the freight forwarder himself makes claims to the client. However, in this case, a voluntary claims procedure provided for in the contract may apply.

The right to present a claim and claim to the forwarder is not only the client himself, but also the person authorized by him to file a claim and claim, the recipient of the cargo specified in the transport expedition agreement, as well as the insurer who has acquired the right of subrogation.

For claims arising from a transport expedition contract, a shortened statute of limitations has been established, which is one year (Article 13 of the Law on Transport Forwarding Activities).

The concept and characteristics of a contract for the carriage of goods. According to paragraph 1 of Art. 784 of the Civil Code, transportation of goods, passengers and luggage 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 Civil Code. Under a contract for the carriage of goods, the carrier undertakes to deliver the cargo entrusted to him by the sender to the destination and deliver it to the person authorized to receive the goods (recipient), and the sender undertakes to pay the established fee for the carriage of goods. Separate transport charters and codes provide similar definitions of a contract for the carriage of goods and a contract for the carriage of passengers and luggage (see, for example, Article 103 of the VK; Article 82 of UZhT, etc.) * (524).
The contract for the carriage of goods is bilaterally binding, compensated, and real. The bilaterally binding nature of the contract presupposes 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 sender’s obligation to pay the established fee for the carriage of goods.
A sign of reality deserves a little more detailed analysis. The term “entrusted cargo” in the legal definition of a contract of carriage means “previously transferred cargo”, which emphasizes the traditionally real sign of a contract for the carriage of goods. Meanwhile, in water and air transport, the contract for the carriage of goods, concluded in the form of freight (charter), belongs to the category of consensual. In maritime transport, the contract of carriage (freight agreement, 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 role of the carrier must be played by a public transport organization, endowed with the function of a public carrier. Transportation carried out by a commercial organization is recognized as transportation by public transport if it follows from the law or other legal acts that this organization is obliged to transport goods, passengers and luggage at the request of any citizen or legal entity. Moreover, this organization must 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 shipper 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 regarding the timing and quality of delivery of goods, as well as their proper acceptance.
The parties to the contract for the carriage of goods are the shipper and the carrier. The shipper is the person on whose behalf the cargo is delivered for transportation * (526). Modern legislation understands the shipper as an individual or legal entity who, under the contract of carriage, acts on his own behalf or on behalf of the owner of the cargo and who is indicated in the transportation document (Article 2 UZhT, Article 2 UAT). It is with the sender that the carrier enters into a contract for the carriage of goods, and a corresponding obligation for transportation arises between the sender and the carrier.
The carrier, as defined 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 for its intended purpose. A carrier (railroad, shipping company, air transport operator) can only be a commercial organization or individual entrepreneur entitled to carry out freight transportation by law or on the basis of a license. Moreover, all transportation, with the exception of automobile transportation, is subject to mandatory licensing (Clause 1, Article 17 of the Federal Law on Licensing of Certain Types of Activities * (528)). However, the movement of goods for one’s own needs does not fall within the definition of transportation activities. In all modes of transport, except railway, carriers can also be private individuals.
Due to the specific nature 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, who enter into an agreement for the carriage of goods, the recipient (consignee) * (529) is also included among its subjects (but not parties). The parties proceed from the tacit consent of the consignee 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 prevailing opinion is that the transportation of cargo is carried out on the basis of an agreement in favor of a third party, and the recipient of the cargo is a third party in such an agreement * (531). It should be noted that, in some contradiction to the design of the contract in favor of a third party, the recipient of the cargo also acquires certain obligations to the carrier (Articles 792, 796 of the Civil Code; paragraph 2 of Article 103 of the Civil Code; Article 111, Articles 72, 73 and others KVVT; part 2 of article 17 UAT, etc.).
In all contractual relationships of a continuing nature, an element such as term is of great importance. Therefore, the term is often determined as an essential condition. This is the case, for example, with a work contract, in which the legislator provides for special requirements for determining in the contract the initial and final dates for the completion of work (Article 708 of the Civil Code), recognizing the final date as essential.
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 carrier’s obligation to deliver cargo to the destination within the time limits determined in the manner prescribed by transport charters and codes, and in the absence of such terms, within a reasonable time * (532).
According to Art. 152 of the Labor Code, which is devoted to the procedure for establishing the time limit and determining the route for the transportation of goods, the carrier is obliged to deliver the goods on time and on the route established by agreement of the parties, in the absence of an agreement - within the time period that is reasonable to require from a diligent carrier, taking into account the specific circumstances, and on the usual route.
Article 33 of the UZhT determines that carriers are obliged to deliver goods to their destination and on time. At the same time, the law establishes that the terms of delivery of goods by rail and the rules for calculating such terms are approved by the federal body executive power in the field of railway transport in agreement with the federal executive body in the field of economics. Shippers, consignees and carriers may provide in contracts for a different delivery period for goods.
The calculation of the delivery time for goods begins at 24 o'clock on the day the goods are accepted for transportation. The date of acceptance of goods for transportation and the estimated expiration date of the delivery of goods, determined on the basis of the rules for transporting goods by rail or on the basis of an agreement of the parties, is indicated by the carrier in the railway consignment note and receipts issued to shippers for the acceptance of goods. Moreover, the goods are considered delivered on time if, before the expiration of the delivery period specified in the railway transport bill and receipt of goods, the carrier ensured the unloading of goods at the destination railway station or wagons, containers with goods were submitted for unloading to the consignees or owners of non-public railway tracks for the consignees. Cargoes are also considered delivered on time if they arrive at the destination railway station before the expiration of the delivery period specified in the railway transport bill of lading and the cargo acceptance receipt and if the subsequent delay in the delivery of wagons and containers with such cargo for unloading occurred due to the fact that the unloading front is busy due to reasons depending on the consignee, payment for the transportation of goods and other payments due to the carrier have not been paid, or due to other reasons depending on the consignee, about which a general form report is drawn up.
The contract of carriage is of a paid nature. The price of the contract of carriage is formed by the carriage charge (freight). The amount of the carriage charge 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 determined on the basis of tariffs (clause 2 of Article 790 of the Civil Code) * (533).
The Civil Code does not contain special requirements on the form of the contract of carriage, which requires reference to the general provisions of the Code on the form of transactions and contracts. However, transport charters and codes establish special requirements for the form of the contract for the corresponding carriage of goods. So, paragraph 1 of Art. 117 KTM obliges the parties to a contract for the 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) contracts on the organization of transportation (annual, navigation, etc.) on any type of transport.
So, according to Art. 11 of the UZhT, in order to carry out the transportation of goods by rail, the shipper submits to the carrier a properly completed application for the transportation of goods in the required number of copies. Such an application is submitted by the shipper indicating the number of wagons and tons, destination railway stations and other information provided for by the rules for the transportation of goods by rail. In the application, the shipper must indicate the validity period of the application, but not more than 45 days. In this case, applications are submitted no less than 10 days before the start of cargo transportation in direct railway traffic and no less than 15 days before the start of cargo transportation in direct international traffic and indirect international traffic and in direct and indirect mixed traffic, as well as if the destinations ports are indicated.
In road transport, the conclusion of a contract for the carriage of goods is confirmed by a consignment note (Part 1, Article 8 of the UAT 2007). In this case, a contract for the carriage of goods by road can be concluded through the carrier’s acceptance of an order for execution, and if there is an agreement on the organization of cargo transportation, an application from the shipper (Part 5 of Article 8 of the UAT).
KVVT clearly indicates the application as the basis for the subsequent conclusion of an agreement for the carriage of goods, without forgetting to emphasize the role of the agreement on the organization of transportation. In accordance with paragraph. 1 clause 1 art. 66 KVVT "cargo transportation is carried out on the basis of contracts for the carriage of goods in accordance with the applications of shippers and agreements on the organization of cargo transportation, 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 to the sender of the goods of a transport bill of lading (a bill of lading or other document for the cargo provided for by the relevant transport charter or code).
In transportation relations, the principle of a single document (or a single document system) is applied, as follows from paragraph 2 of Art. 785. The system is distinguished:
1) a consignment note used for all types of transport (see Article 25 UZhT; Article 105 VK; Article 143 KTM; Article 8 UAT; clause 2 Article 67 KVVT);
2) bill of lading (Article 142 et seq. KTM) and
3) charter (clause 2 of article 117 of the Code of the Russian Federation).
The procedure for issuing transport documents is defined in detail in the transportation rules for the corresponding type of transport, and in railway, air and road transport, a single form of basic transport documents is used for this transport. In water transport, shipping companies use their own proforma bills of lading. According to Art. 25 of the UZhT, when presenting cargo for transportation, the shipper must present to the carrier for each shipment of cargo a railway bill of lading 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. In this case, the specified railway consignment note and the receipt issued on its basis by the carrier to the shipper confirming the conclusion of the contract for the carriage of goods.
Contents of the contract for the carriage of goods. It is formed by the corresponding rights and obligations of the parties to the legal relationship.
The carrier bears the following responsibilities. If the contract of carriage is consensual in nature, the carrier must ensure timely and proper delivery of the vehicle (Article 791 of the Civil Code; Articles 69, 73 KVVT; Articles 124, 128 KTM; Article 9 UAT). Accordingly, the shipper has the right to demand that the carrier fulfill this obligation. So, according to Art. 128 KTM, when transporting cargo under a charter, the carrier is obliged to deliver the vessel within the period stipulated by the charter; Moreover, in case of failure to deliver the vessel within the stipulated period, the charterer has the right to refuse 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 that the vessel is technically seaworthy, to properly equip the vessel, to staff it with a crew and to supply it with everything necessary, as well as to bring the holds and other premises of the vessel in which cargo is transported, in a condition that ensures proper reception, transportation and safety of cargo.
Next, the carrier must deliver the cargo to its destination. This responsibility includes 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 delivery time of goods is determined in accordance with regulations. Delivery times for goods are calculated based on the most rational routes, unless otherwise provided by the contract of carriage.
Moreover, the cargo must be delivered safely (Article 150 KTM; Article 25 UZhT; Article 15 UAT). The carrier bears this responsibility from the moment the cargo is accepted for transportation until it is released 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 transported goods (for example, you cannot transport spraying cargo at high speed on open rolling stock); implement special measures to ensure the safety of cargo (for example, protect cargo from theft).
Finally, upon arrival of the cargo at its destination, the carrier must notify the consignee about the fact of delivery (Article 79 KVVT; Article 111 VK) or about the delay in delivery (Part 2 of Article 14 UAT). Fulfillment by the carrier of this obligation predetermines the occurrence of the obligation of the consignee indicated in the transportation documents to dispose of the cargo (accept and remove the cargo).
The shipper, in turn, bears the following responsibilities. In the consensual contract of carriage, he undertakes to provide the cargo for transportation within the prescribed period, as well as to ensure compliance with loading deadlines (Article 69 KVVT; Articles 10, 11 UAT; Article 130 KTM). Further, the shipper is obliged to pay for the transportation of goods (Article 790 of the Civil Code; Article 75 of the Civil Code; Article 30 of the UZhT). Payment for transportation is made by the sender, as a rule, before the goods are delivered for transportation. Final settlements are made between the carrier and shipper at destination. According to Art. 163 KTM all payments due to the carrier are paid by the sender or charterer; in cases stipulated by the agreement between the shipper or charterer and the carrier, and when information about this is included in the bill of lading, transfer of payments to the recipient is allowed * (535).
The carrier has the right to retain the cargo in case of failure to fulfill the specified obligation to pay for transportation (Article 359-360 of the Civil Code; clause 8 of Article 79 of the KVVT; Article 35 of UZhT; Article 160 of the KTM) * (536).
The responsibilities of the consignee are established by transport charters and codes, but, as noted in the literature, they do not follow from Art. 430 and paragraph 3 of Art. 308 of the Civil Code, as in their time, did not follow from Art. 167 Civil Code of the RSFSR 1964. This is a “tribute to many years of practice” * (537). In this case, the main responsibilities of the consignee are accepting the cargo and removing it from the station (port) (Articles 11, 15 UAT; Articles 111, 112 VK; Article 160 KTM; Articles 67, 79 KVVT; Articles 21, 35 UZhT) .
Property liability in transportation obligations. Property liability in the obligation to transport goods is based on the general principles of liability enshrined in Chapter. 25 GK. At the same time, it has significant specifics compared to liability for violation of other civil obligations. This specificity is manifested in the conditions, form, volume and procedure for implementing liability measures.
First of all, due to the real nature of the contract of carriage, a distinction is made between the so-called pre-contractual liability for the obligation of carriage and liability for violation of the contract of carriage itself. In the first case, the corresponding 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 transportation 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 to transport goods when it is not provided for by law, as well as to increase the liability established by law (Article 123 of the Civil Code).
Liability for violation of the obligation to fulfill submitted and satisfied orders (applications) for the transportation of goods is established exclusively by law (clause 1 of Article 794 of the Civil Code). The current transport charters and codes establish the responsibility of the carrier and shipper 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 of a penalty by the carrier in the form of a fine or penalty, also the possibility of recovery by the shipper (charterer) from the carrier (charterer) of damages caused “in the manner established by the legislation of the Russian Federation” (Part 4 of Article 34 of the UAT) * (539) .
For violation of loading deadlines, a fine is provided (Article 43 UZhT, Article 35 UAT) * (540).
In case of delay in 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 freight charge. Collection of a fine (penalty) is possible if the carrier is at fault, but his fault for the delay is assumed. The carrier pays a fine in the amount of 10 to 90% of the carriage charge (for air transport - up to 50%), depending on the length of the delay.
The extent of the carrier's liability for unsafe cargo is limited by law. Unlike other civil 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 transportation of goods is compensated by the carrier:
in case of loss or shortage of cargo - in the amount of the cost of the lost or missing cargo;
in case of damage (damage) to 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 delivered for transportation with a declaration of its value - in the amount of the declared value of the cargo.
At the same time, the carrier bears responsibility for failure to preserve the cargo only if it is his 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. Clause 1 of Art. 796 of the Civil Code does not contain any mention of the carrier’s fault as a condition of his liability, however, it is generally accepted 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).
Transport charters and codes contain a list of circumstances, proving the presence of any of which the carrier is exempt from liability for improper (unsafe) transportation (Article 95 UZhT; Article 118 KVVT; clause 5 Article 34 UAT). So, in Art. 118 KVVT mentions such circumstances as the presence of restrictions or prohibitions on the movement of vessels for the period of validity of such restrictions or prohibitions; saving lives or property on water; the presence of incorrect actions and instructions of the shipper or sender of the towed object if such actions and instructions are proven; the presence of hidden defects in packaging, cargo or its properties; the established difference in the weight of the cargo within the limits of the norms of natural loss, reduction of humidity and discrepancies in the norms in the readings of weighing instruments, as well as the difference in the mass of the cargo accepted for transportation based on the mass determined by the shipper 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 waybill, etc.
This list is not exhaustive, therefore the carrier has the right to prove other circumstances indicating the absence of his guilt.
It should be noted that in the Civil Code there are no instructions according to which transport charters and codes may provide for cases when proof of the carrier’s guilt in the failure to preserve the cargo rests with the cargo owner * (542).
A predetermined distribution of the risk of losses should be distinguished from property liability for violation of a transportation obligation. True, it is currently used only in maritime law, which knows the concept of “accident”. An accident can be general or private. In case of general average, losses are caused in the interests of all participants in the transportation (Article 284 of the Labor Code). In this case, the 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. 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 private accident occurs. For example, excessive fuel consumption to overcome a headwind would be a private accident, since these expenses are not extraordinary, but are a consequence of ordinary dangers at sea. In this case, losses are attributed to the transportation participant who actually incurred them.
Procedural features of assigning responsibility to the parties to the contract for the carriage of goods. Procedural legislation establishes the principle of exclusive jurisdiction in cases involving the transportation 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 filed in 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, compliance with the procedure for filing a claim is required (Part 5, Article 4 of the Arbitration Procedure Code; Part 3, Article 30 of the Civil Procedure Code). This means that before filing a claim against the carrier, it is necessary 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 VK; Article 120 of the UZhT; Part 2 of Article 39 of the UAT; Article 403 of the KTM; Art. 161 KVVT). The exception to this is the provision of Art. 403 KTM, which provides that the obligation to make a claim remains in cabotage, i.e. during sea transportation between ports of the Russian Federation).
A claim should be understood as a written demand addressed to the carrier for payment of a fine or compensation for damages in connection with improper fulfillment of the transportation 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, and individual violations of the contract that arose during its execution * (545).
The period for filing a claim is, as a rule, 6 months, for fines - 45 days (Article 123 UZhT; Article 126 VK) * (546).
The legislator obliges the carrier to respond to the claim of the shipper or consignee within 30 days (clause 2 of Article 797 of the Civil Code). In transport charters and codes, the specified period is specified. So, according to para. 1 tbsp. 124 UZhT, the carrier is obliged to consider the received claim and notify the applicant in writing about the results of its consideration within 30 days from the date of receipt of the claim. In accordance with paragraph 1 of Art. 128 VC, the carrier is obliged to consider it within 30 days from the date of receipt of the claim and notify the shipper or consignee in writing of the satisfaction or rejection of the claim.
If the claim is partially or completely rejected or if a response to the claim is not received within the appropriate period, the person making the claim has the right to file a claim.
The limitation period for claims from the contract for the carriage of goods is one year (clause 3 of Article 797 of the Civil Code; Article 408 of the KTM; clause 3 of Article 164 of the KVVT; Article 42 of the UAT). In this case, the limitation period begins to expire from the moment determined in transport charters and codes * (547).