Geneva Convention on the Contract for the International Carriage of Goods by Road (CDR). Conventions and rules for international road transport International transport agreements

On the signing of the Convention on the Treaty of International

Preamble

Contracting parties,

Recognizing the desirability of introducing uniformity into the terms of the contract for the international carriage of goods and, in particular, into the conditions concerning the documents required for such carriage and the responsibility of the transporter,

Agreed on the following:

Chapter I
Scope of the Convention

Article 1

1. This Convention shall apply to any contract for the carriage of goods by road for reward by motor vehicle where the place specified in the contract of taking over the goods and the place provided for delivery of the goods are located in the territory of two different countries, of which at least one is a Party to the Convention. . The application of the Convention does not depend on the domicile and nationality of the contracting parties.

2. For the purposes of this Convention, "motor vehicle" shall mean motor vehicles, motor vehicles with semi-trailers, trailers and semi-trailers as defined in article 4 of the Convention on road traffic dated September 19, 1949.

3. This Convention shall also apply when the carriage covered by its scope is carried out by States or governmental agencies or organizations.

4. This Convention shall not apply:

a) to carriage carried out in accordance with international postal conventions;

b) to the transportation of the dead;

c) to the transportation of furnishings and furniture when moving.

5. The Contracting Parties shall prohibit the modification of this Convention by private agreements concluded between two or more Contracting Parties, except for the abolition and application to their frontier traffic or the permission for the use, in traffic exclusively within their territory, of waybills establishing the title to the goods.

Article 2

1. Where, for a part of the mileage, a motor vehicle containing goods is transported by sea, rail, inland waterway or air transport without reloading, except as may arise in the application of this Convention, this Convention shall still apply to the entire transport. However, since it has been proven that the loss of goods, damage to them or delay in delivery, which occurred during transportation by a mode of transport other than road transport, was not caused by an act or omission of a road carrier, but was caused by a fact that could only take place during transportation, carried out by non-road transport, the liability of a road transporter is not determined by this Convention, but by those provisions that would determine the liability of any non-road transporter in a contract for the carriage of goods concluded between him and the consignor, in accordance with the mandatory provisions of the law relating to the carriage of goods by any mode of transport other than road . However, in the absence of such provisions, the liability of the road carrier is determined by this Convention.

2. In the event that a road transporter performs transportation by another type of transport at the same time, his liability is determined in the same way as if his function as a road transporter and the function of a transporter performing transportation by another type of transport than road transport were performed by two different persons. .

Chapter II
Persons for whom the transporter is responsible

Article 3

1. In the application of this Convention, the transporter shall be liable, as for his own acts and omissions, for the acts and omissions of his agents and all other persons whose services he uses for the performance of the carriage when those agents or persons are performing the duties assigned to them.

Chapter III
Conclusion and execution of the contract of carriage

Article 4

The contract of carriage is established by the consignment note. The absence, incorrectness or loss of the consignment note does not affect the existence or the validity of the contract of carriage, to which the provisions of this Convention also apply.

Article 5

1. The waybill is drawn up in three original copies, signed by the sender and the carrier, and these signatures can be printed or replaced by the stamps of the sender and the carrier, if this is allowed by the legislation of the country in which the waybill is drawn up. The first copy of the waybill is transferred to the sender, the second accompanies the cargo, and the third is kept by the conveyor.

2. In the event that the goods to be transported must be loaded on different vehicles or when the matter concerns different types of goods or different consignments of goods, the consignor or transporter has the right to require the drawing up of as many waybills as he must use vehicles or how many different goods are to be transported. or consignments.

Article 6

1. The invoice must contain:

a) the place and date of its compilation;

b) sender's name and address;

c) the name and address of the transporter;

d) the place and date of acceptance of the goods for carriage, and designated place his surrender;

f) the name and address of the recipient;

f) the accepted designation of the nature of the goods and the manner in which they are packed and, in the case of the carriage of dangerous goods, their commonly recognized designation;

g) the number of packages, their special markings and numbers;

h) the gross weight of the cargo or the amount of cargo expressed in other units of measurement;

i) costs associated with transportation (carriage charges, additional costs, customs duties and fees, as well as other costs from the moment the contract is concluded until the delivery of the goods);

j) instructions required to complete customs formalities and others;

j) an indication that the carriage is carried out, notwithstanding any reservation, in accordance with the procedure established by this Convention.

2. If necessary, the consignment note must also contain the following indications:

a) prohibited overloads;

b) expenses that the sender accepts on his own account;

c) the amount of the payment imposed on the cargo, subject to reimbursement upon delivery of the cargo;

d) the declared value of the cargo and its additional value for the sender;

e) instructions from the sender to the transporter regarding cargo insurance;

f) the agreed time for the performance of the carriage;

g) list of documents handed over to the transporter.

3. The contracting parties may enter into the consignment note any other indication which they deem necessary.

Article 7

1. The sender is responsible for all costs of the transporter and damages caused to him due to inaccuracy or insufficiency:

a) the indications referred to in subparagraphs 1. b), d), e) , f), g) , h) and j) ;

c) any other indications or instructions given by the sender for the preparation of or for inclusion in the consignment note.

2. If, at the request of the consignor, the carrier enters into the consignment note the indications referred to in this article, it shall be recognized, unless otherwise proven, that he did so on behalf and at the expense of the consignor.

3. If the consignment note does not contain the indication provided for in paragraph, the transporter shall be liable for all expenses and for all losses that may be caused to the person entitled in respect of the goods as a result of such omission.

Article 8

1. When accepting the cargo, the carrier is obliged to check:

a) the accuracy of the indications made in the consignment note regarding the number of packages, as well as their markings and numbers;

b) the external condition of the cargo and its packaging.

2. If the transporter does not have sufficient opportunity to verify the correctness of the indications referred to in paragraph 1 (a) of this article, he must make justified reservations in the consignment note. He must also justify any reservations he may make regarding the external condition of the goods and their packaging. These clauses are not binding on the sender, unless the latter has expressly indicated on the consignment note that he accepts them.

3. The sender has the right to require the transporter to check the gross weight of the cargo or its quantity expressed in other units of measurement. It may also require verification of the contents of packages. The transporter may claim reimbursement of the costs associated with the inspection. The results of the mentioned checks are entered into the invoice.

Article 9

1. The waybill, unless proven otherwise, serves as evidence of the terms of the contract and a certificate of acceptance of the goods by the transporter.

2. If there are no clauses motivated by the transporter in the consignment note, there is a presumption that the goods and their packaging were outwardly in good condition at the time the goods were accepted by the transporter and that the number of packages, as well as their markings and numbers, corresponded to the instructions of the consignment note.

Article 10

The sender shall be liable to the carrier for damage and damage caused to persons, equipment or other goods, as well as for expenses caused by defective packaging of the goods, if, in the event of an external or known defect to the carrier at the time of acceptance of the goods, the carrier has not made appropriate reservations regarding this.

Article 11

1. Prior to handing over the goods, the sender is obliged to attach to the consignment note or submit to the transporter the necessary documents and provide all the information required for the performance of customs and other formalities.

2. Checking the correctness and completeness of these documents is not the responsibility of the transporter. The sender is liable to the transporter for any damage that may be caused by the absence, insufficiency or incorrectness of these documents and information, unless the transporter is at fault.

3. The transporter shall be liable on the same grounds as the commission agent for the consequences of the loss or misuse of the documents mentioned in the consignment note, attached to it or handed over to him; the amount of compensation due from him shall not, however, exceed that which would be payable in the event of loss of the goods.

Article 12

1. The sender has the right to dispose of the cargo, in particular, to demand from the transporter a break in the carriage, a change in the place provided for the delivery of the cargo, or the delivery of the cargo to a recipient other than that specified in the consignment note.

2. The sender loses this right from the moment when the second copy of the invoice is handed over to the recipient or when the latter exercises his rights under ; from now on, the transporter must follow the instructions of the consignee.

3. However, the right to dispose of the goods belongs to the consignee from the moment the consignment note is drawn up, if the consignor makes an indication in this sense in the consignment note.

4. If, exercising his right to dispose of the cargo, the recipient gives an order to hand over the cargo to another person, the latter is not entitled to appoint other recipients.

5. The exercise of the right to dispose of cargo is subject to the following provisions:

(a) the sender or, in the case referred to in this article, the recipient who wishes to exercise this right, must present the first copy of the bill of lading, in which new instructions given to the transporter must be entered, and also reimburse the transporter for the costs and damage caused by the implementation of these instructions;

b) the execution of these instructions must be possible at the time they are received by the person who is to carry them out; it must not disrupt the course of the normal operation of the transporter's enterprise and not cause damage to senders or recipients of other goods;

(c) The instructions referred to must in no case result in the breaking down of loads.

6. If the transporter is unable to carry out the instructions he has received due to the provisions referred to in paragraph 5 b), the transporter must immediately inform the person to whom the instructions were given.

7. A transporter who fails to comply with the instructions given to him under the conditions referred to in this article, or who obeys such instructions without requiring the presentation of the first copy of the consignment note, shall be liable to the party entitled under the contract for the damage thus caused.

Article 13

1. Upon the arrival of the cargo at the place provided for its delivery, the recipient has the right to demand that the second copy of the consignment note be handed over to him and the cargo be handed over to him, and they will be issued an appropriate receipt of acceptance. If the loss of cargo is established or if the cargo has not arrived after the expiration of the period provided for in , the recipient may demand satisfaction from the transporter on his own behalf, referring to the rights secured to him by the contract of carriage.

2. The recipient, exercising the rights granted to him in accordance with paragraph 1 of this article, is obliged to pay off the debt obligations that have arisen on the basis of the invoice. In the event of a dispute on this matter, the carrier is obliged to hand over the goods only if the buyer pays a deposit.

Article 14

1. If, for any reason, the fulfillment of the contract on the terms of the consignment note is or becomes impossible before the arrival of the goods at the place provided for its delivery, the transporter is obliged to request instructions from the person entitled to dispose of the goods in accordance with

2. If, however, circumstances permit the carriage to be carried out under conditions other than those stipulated in the consignment note, and if the carrier has not been able to obtain instructions in good time from the person entitled to dispose of the goods in accordance with , the carrier must take the measures that seem to him most appropriate in the interests of the best performance of the carriage.

Article 15

1. If, after the arrival of the goods at the destination, there are obstacles to its delivery, the transporter must request instructions from the sender. If the recipient refuses to accept the goods, the sender has the right to dispose of the goods without presenting the first copy of the invoice.

2. The recipient, even if he refused to accept the goods, may at any time demand its delivery, as long as the transporter has not received instructions to the contrary from the sender.

3. If the impediment to the delivery of the goods arises after the consignee, in accordance with the right conferred on him, has given the order to hand over the goods to some other person, then, with respect to the provisions of paragraphs 1 and 2, the consignee shall take the place of the sender, and that other person shall take the place of the consignee. .

Article 16

1. The transporter shall be entitled to reimbursement of expenses caused by the request for instructions or the execution of instructions received, insofar as these expenses are not the result of his own fault.

Article 50

In addition to the notifications referred to in , the Secretary General of the United Nations notifies the countries referred to in Article 42 .

IN WITNESS WHEREOF, the undersigned, being duly authorized thereto, have signed this Convention.

/signatures/

Protocol
on the signing of the Convention on the Contract for the International Carriage of Goods (CMR)
(Geneva, 19 May 1956)

At the time of signing the Convention on the Contract for International Carriage by Road, the undersigned, duly authorized, have agreed to make the following declarations and explanations:

1. This Convention does not apply to carriage between the United Kingdom of Great Britain and Northern Ireland and the Republic of Ireland.

The undersigned undertake to agree on the conclusion of conventions on the contract for the carriage of furnishings and furniture during removals and the combined transport contract.

In witness whereof the undersigned, being duly authorized thereto, have signed this Protocol.

Done at Geneva in a single copy, this nineteenth day of May, one thousand nine hundred and fifty-six, in English and French and both texts are equally authentic.

§ 6. Customs of trade (Customs of trade) * (66)

§ 7. Judicial practice

Chapter II. "Transportation" legal relationship between the seller and the buyer of goods under an international contract for the sale of goods

§ 1. Components of an international contract for the sale of goods

§ 2. Distribution of functions, costs and risks between the seller and the buyer of goods

§ 3. The essence of the term "delivery of goods"

§ 4. Transfer of goods to the carrier for delivery to the recipient

Chapter III. Organizational forms of international merchant shipping § 1. Linear and tramp navigation

§ 2. Modern practice of maritime transport of goods

§ 3. Traditional and new types of contracts in merchant shipping

Chapter IV. Contract of carriage of goods by sea § 1. Evolution of the concepts of "carrier", "consignor", "consignee", "bill of lading holder" in merchant shipping

§ 2. The evolution of the concept of "carrier" in domestic law

§ 3. Russian legislation: definition of the concepts of the contract for the carriage of goods by sea, vessel, cargo, port of loading, port of unloading

§ 4. Conventional definitions of the concepts: "contract for the carriage of goods", "carrier", "shipper", "consignee", "holder"

§ 5. Types of contracts for the carriage of goods by sea

§ 6. General concept of the contract of transportation in the right of the capitalist states * (393)

Chapter V. The conclusion of the international contract of carriage of goods by sea § 1. The principle of freedom of contract * (434)

§ 2. Two stages of the conclusion of the contract

§ 3. Parties to an international contract for the carriage of goods

§ 4. Conclusion of a vessel charter agreement (charter)

§ 5. Conclusion of a contract for the carriage of goods by sea under a bill of lading

§ 6. Freight

§ 7. Issuance of a bill of lading

§ 8. Conventional definitions of the concept of issuing a transport document

§ 9. Letters of Guarantee when issuing a bill of lading with an incorrect date and when issuing a clean bill of lading

§ 10. Signature requirement. Alternative signature methods

§ 2. Conventional definitions of the concept of "cargo"

§ 3. Qualitative characteristics of the goods

§ 4. Quantitative characteristics of the goods

§ 5. Packaging of goods

§ 6. The position of banks regarding the description of the goods in the letter of credit

§ 2. Transport documents of the sea carrier

Part II. Fiat forwarding documents used in practice. Their characteristics § 1. Order for forwarding (fiata Forwarding Instruction - ffi)

§ 2. Shipper's Declaration for the Transport of Dangerous Goods - fiata sdt

§ 3. Forwarder's Certificate of Receipt - fiata fcr)

§ 4. Forwarding warehouse receipt (Forwarder's Warehouse Receipt - fiata fwr)

§ 5. Forwarder's Certificate of Transport - fct

§ 6. Negotiable fiata Multimodal Transport Bill of Landing - fbl

§ 7. Multimodal Transport Waybill (NonNegotiable fiata Multimodal Transport Waybill - fwb)

§ 8. General remarks for Fiat forwarding documents

Chapter VIII. Transport documents for the carriage of goods by sea with the properties of a security (documents of title)

§ 1. The concept of a document of title in foreign and Russian law

§ 2. Functions of title papers

§ 3. Conventional definitions of the concept of "transport document"

§ 4. The concepts of "transport document", "negotiable transport document", "non-negotiable transport document" in the wording uncitral

Chapter IX. Possession of a carrier by cargo § 1. The right of possession of a carrier by cargo * (909)

§ 2. Release of cargo at the port - place of destination

§ 3. Storage of cargo in the port. Cargo sale

Chapter X. Right of disposal of goods § 1. Right of disposal of the consignor

§ 2. Assignment (transfer) of the transport document

Chapter XI. Transport, insurance, commercial documents in the banking practice of international settlements

§ 1. Forms of international payments for the sale of goods

§ 2. The concept of "transport document" for banks

§ 3. Acceptability of the transport document for the bank. Scheme of operations related to the bill of lading under a letter of credit

§ 4. Verification of documents submitted to the bank

Chapter XII. Limits of liability of the carrier in international transport conventions on the carriage of goods § 1. Creation of a new unit of account - special drawing right (SDR) of the IMF

§ 2. Sea transportation

§ 3. Air transport

§ 4. Road transport

§ 5. Rail transport

§ 6. Multimodal transport

§ 7. Water transport

§ 8. Brief comparison of the limits of liability for loss of or damage to goods, expressed in spz

§ 9. Positions of cargo owners and carriers: unity and opposition of views

Chapter XIII. International legal regulation of the use of electronic documents in contractual relations

§ 1. International conventions on the carriage of goods

In the past, each mode of transport was independent of the others. If the goods were transported from the origin to the destination by several modes of transport, each section of the common route was considered as a separate stage of transportation. It was governed by its own legal regime. These legal regimes were established on the basis of national legislation, bilateral agreements relating to trade between two neighboring states, or multilateral agreements affecting a number of states.

Multilateral treaties are conditionally divided into two main groups. There are worldwide treaties covering two main modes of transport - sea and air. The number of parties to these treaties is so large that they establish transport document requirements for all international transport and for all practical purposes. Land transport is, by its nature, regional in scope. The only major multilateral international conventions on railway or road transport operate in Europe, and in the case of rail transport, they cover Asia and North Africa.

┌──────────┬───────────────────┬────────────┬──────────────┬────────────┐

│ View │ Name │ Date │ Who prepared │Geographically-│

│transport│ convention │ adoption/ │ │ cue coverage │

│ │ │ intro │ │ │

│ │ │ effect │ │ │

│ 1 │ 2 │ 3 │ 4 │ 5 │

├──────────┼───────────────────┼────────────┼──────────────┼────────────┤

│ │Convention about │1924/│marine │ │

│ │some rules o│g. │ │ │

│ │bill of lading with│ │ │ │

│ │amendments, │ │ │ │

│ │contributed │ │ │ │

│ │protocols of 1968│ │ │ │

│ │ and 1979 (The Hague│ │ │ │

│ │ rules) │ │ │ │

├──────────┼───────────────────┼────────────┼──────────────┼────────────┤

│ │Organizations │1978/│Organizations │ │

│ │United Nations│not yet│United │ │

│ │o maritime │entered│Nations by right│ │

│ │cargo transportation│force │international │ │

│ │(1978)│ │trade │ │

│ │(Hamburg │ │(UNCITRAL) │ │

│ │ rules) │ │ │ │

├──────────┼───────────────────┼────────────┼──────────────┼────────────┤

│ │ unification │ 1929 / │ technical │ │

│ │concerning │1933 │aviation │ │

│ │air transportation│ │experts- │ │

│ │ (Warsaw │ │ lawyers, │ │

│ │convention) │ │entered │ │

│ │ │ │to the composition│ │

│ │ │ │International │ │

│ │ │ │ organizations │ │

│ │ │ │ civil │ │

│ │ │ │aviation │ │

├──────────┼───────────────────┼────────────┼──────────────┼────────────┤

│ │ │1955/1│ │ │

│ │ │August 1963│ │ │

│ │ │g. │ │ │

├──────────┼───────────────────┼────────────┼──────────────┼────────────┤

│ │protocol N 4 │1975/│ │ │

│ │ │more │ │ │

│ │ │did not join│ │ │

│ │ │strength │ │ │

├──────────┼───────────────────┼────────────┼──────────────┼────────────┤

│horny │convention │1970 / 1│bureau │Northern │

│ │about railway │January 1975│international │Africa, │

│ │transportation of goods│g. │railroad- │Western │

│ │(CIM) │ │traffic│Asia │

│ │ │ │(Bern) │ │

├──────────┼───────────────────┼────────────┼──────────────┼────────────┤

│ │railway │1985 │international │Africa, │

│ │transportation (COTIF),│ │railway- │Western │

│ │adding "B"│ │traffic│Asia │

│ │(CIM) │ │(Bern) │ │

├──────────┼───────────────────┼────────────┼──────────────┼────────────┤

│horny │concerning │1951/│cooperation│Europe, │

│ │international │current │railways│Eastern │

│ │cargo message│text │ │Asia │

│ │on iron│joined│ │ │

│ │ │1966 │ │ │

├──────────┼───────────────────┼────────────┼──────────────┼────────────┤

│ │International │1961 │Europe │ │

│ │road transportation│ │ │ │

│ │cargo (CMR) │ │ │ │

├──────────┼───────────────────┼────────────┼──────────────┼────────────┤

│ │ Organizations │ / not yet │ Organizations │ │

│ │United Nations│joined│United │ │

│ │about international │strength │Nations by│ │

│ │mixed │ │trade and│ │

│ │cargo transportation │ │development │ │

│ │ │ │(UNCTAD) │ │

├──────────┼───────────────────┼────────────┼──────────────┼────────────┤

│final │Organizations │1991/│institute for│ │

│items │United Nations│not yet│unification │ │

│ │on responsibility │entered│private law│ │

│ │operators │force │ │ │

│ │ transport │ │ │ │

│ │terminals in│ │ │ │

│ │international │ │ │ │

│ │ trade │ │ │ │

├──────────┼───────────────────┼────────────┼──────────────┼────────────┤

│Internal│Draft Convention│Draft │International │Europe│

│water │about the contract │1973 │institute for││

│ │transportation of goods │ │unification │ │

│ │domestic │ │private │ │

│ │waterways (KDGV)│ │rights, │ │

│ │ │ │ Economic │ │

│ │ │ │commission for│ │

│ │ │ │ Europe │ │

├──────────┼───────────────────┼────────────┼──────────────┼────────────┤

│water │convention │/open │commission │ │

│ │about the contract│for │navigation by│ │

│ │transportation │signing from│Rhine, │ │

│ │waterways│g. by 21│commission, │ │

│ │(CMNI) │June 2002│European │ │

│ │ │ │economic │ │

│ │ │ │ UN Commission │ │

└──────────┴───────────────────┴────────────┴──────────────┴────────────┘

Sea transport. The Hamburg Rules should replace the Brussels Convention. Although the Hamburg Rules contain more precise provisions governing bills of lading and provide for the use of non-negotiable transport documents better than the Brussels Convention, they do not contain any fundamental changes in the law governing maritime freight transport documentation.

Air Transport. The Hague Protocol of 1955 amended Art. 8 of the Warsaw Convention - the amount of information required to be included in the document on air cargo transportation has been reduced. Since several countries have not ratified the Hague Protocol, any unified air cargo documents must be based on the requirements of the original Warsaw Convention, as well as the less extensive requirements of that protocol.

In Art. 8 of the Convention, as amended by the Hague Protocol, were, in turn, amended, albeit minor, by the Montreal Protocol No. 4 of 1975. Art. 5 of the Convention was amended by the Montreal Protocol. The purpose of the changes is to allow the use of electronic communication technology instead of paper documents on the carriage of goods by air.

Railway transport. COTIF 1980 replaced CIM 1970 for the carriage of goods by rail (and CIV 1970 for the carriage of passengers and luggage by rail) *(16) . CIM 1970, currently in force, is the eighth version of the original CIM, which entered into force in 1893. Unlike the previous versions of the CIM, which are separate conventions, the provisions of the CIM in COTIF 1980 are contained in an annex to the main convention.

The original text of the SMGS 1951 was similar to that of the CIM in structure and content. However, the differences between the two texts have become significant due to further revisions of each of the texts.

Several Eastern European countries are members of both CIM and SMGS. This greatly facilitated transit traffic between those states that were parties to only one or the other agreement. However, this did not prevent the emergence of differences between the texts of the two conventions.

Road transport. The CMR provides (art. 1) that its provisions apply to every contract for the carriage of goods by road for reward if the place of acceptance of the goods and the place of delivery of the goods are located in the territory of two different countries, of which at least one is a member of the CMR. In paragraph 1 of Art. 2 states that if a vehicle containing cargo is transported for a section of the journey by sea, rail, inland waterway or air and the cargo is not unloaded from this vehicle, the Convention shall apply unless it is proved that the loss of the cargo, its damage or delay in delivery occurring during carriage by another mode of transport was not caused by the act or omission of the road carrier.

mixed transport. The provisions of the Convention on Multimodal Transport of Goods are based on the provisions of the Hamburg Rules. At its 10th session in June 1982, the UNCTAD Committee on freight transport(proponent of the Multimodal Transport Convention) authorized the Secretary-General of UNCTAD to bring the Hamburg Rules to the attention of those Member States that have not yet become Parties and invite them to inform them as soon as possible of the advisability of its entry into force *(17) . International Chamber of Commerce publishes Uniform Rules for Multimodal Transport Documents *(18) . Although these rules were not binding, several organizations *(19) prepared proforma documents for multimodal transport, which were confirmed by ICC that these proformas comply with ICC rules. Based on past practice and on the basis of the Hague and Hague-Visby Rules, the Rules for UNCTAD/ITP Multimodal Transport Documents have been developed *(20) .

The acceptability of these documents is positively affected by their admissibility as transport documents Uniform Customs and Practice for Documentary Credits *(21) .

Inland waterways. The first draft of the CGD was prepared by UNIDROIT in 1952. The draft had 40 articles (Doc. W/Trans/SC3/14 = W/Trans/WP33/13, ECE, Genf.). UNIDROIT then completely revised the version of the draft CFE. The Board of Governors reported at its 61st session in April 1982 that some progress had been made in resolving the differences of opinion among the Rhine States regarding the exemption of the carrier from liability for navigational errors. For a long time there was no consensus among the Rhine states on the need to maintain this provision. *(22) . Rhine carriers practiced two options for deciding the amount of the carrier's liability *(23) . It is not clear if a final agreement has been reached *(24) .

The Budapest Convention on the Contract for the Carriage of Goods by Inland Waterways is intended to replace the CGD draft. It will be necessary to correct the provisions of the Bratislava agreements of shipping companies of the Danube countries.

The Bratislava Agreements apply to restrict navigation on the Danube River. The predecessor of these agreements was the Production Society of Danube Shipping Companies (Betriebsgemeinschaft), which existed from 1926 to May 1945. In 1942, five river shipping companies were its participants - two German, one Austrian, as well as Hungarian and Slovak *(25) .

The first step towards the creation of the Bratislava agreements was taken in 1953. The final formalization took place in September 1955. The participants were the shipping companies of the Danube countries - the USSR, Hungary, NRB, Czechoslovakia, SRR, SFRY, Austria and the FRG. The Bratislava Agreements, as amended in those years, accumulated the commercial experience of the Danube Shipping Company Production Company. They also used the draft convention on the contract for the carriage of goods by inland routes, the conditions of standard bills of lading, including those used on the Rhine *(26) .

In the early 80s. 20th century the initiative group of shipping companies actively worked on the preparation of a new draft of the Bratislava agreements *(27) . The long-term experience of cooperation between shipping companies within the framework of the Bratislava agreements was used, and in the field of cargo transportation - the experience of merchant shipping. The work was a success *(28) . On September 23, 1989, the "Agreement on General Conditions for the Carriage of Goods in International Traffic on the Danube River" (Appendix 3) was signed, which entered into force on January 1, 1990. In 1989, the Agreement had 10 participants, as of 1 January 1994 - 14 *(29) .

The contractual relations of the participants in the Bratislava Agreements are governed by the following documents.

1. Agreement on cooperation between the Danube shipping companies - participants in the Bratislava agreements.

Attachments to the contract.

1.1. Rules for organizing and holding conferences of directors of the Danube shipping companies of the Bratislava agreements.

1.2. Classification of questions of the conference of directors of the Danube shipping companies.

1.3. Regulations on the resolution of disputes between the Danube shipping companies - participants in the Bratislava agreements.

2. Agreement on general conditions for the carriage of goods in international traffic along the river. Danube.

Appendices to the Agreement:

Danube General Average Rules 1990

3. Agreement on International Freight Danube Tariffs (MGDT).

4. Agreement on mutual towing and assistance to ships in case of accidents.

5. Agreement on the mutual agency of ships in the Danube ports.

6. Agreement on the transportation of large-tonnage containers in international traffic along the river. Danube.

7. Agreement on the mutual repair of ships of the Danube shipping companies.

8. Proforma agreements:

8.1. Agreement on the acceptance, delivery, maintenance and protection of unmanned vessels in the ports of loading / unloading.

8.2. Agreement on the mutual bunkering of ships of the Danube shipping companies in the Danube ports.

8.3. Agreement for tally service.

Soviet specialists defined the legal nature of the Bratislava agreements in different ways: "agreement between shipping companies", "international treaty", "intergovernmental agreements", "conventions on international law", "agreements of an interdepartmental nature", "inter-institutional international agreement", up to the curious " charter party".

UNCITRAL and UNIDROIT, stating that the Bratislava agreements, like the SMGS, "are not an interstate convention" *(30) , considered them on the same level as the SMGS, which belongs to the group of international transport agreements of an interdepartmental nature.

The provisions of the Bratislava Agreements operate on the Danube as the main source of law governing property issues that arise in the practice of the shipping companies of the Danube countries. The norms of the KTM of the USSR were applied on the Danube only in limited cases and only under the conditions specified in Art. 11 KTM, and the USSR UVVT was not applied to the relations under consideration at all.

Scope of the Agreement on general conditions for the carriage of goods in international traffic along the river. The Danube applies to the carriage of goods in international traffic between the Danube ports of loading and unloading (Article 3). It applies to carriage performed by a party to the Bratislava Agreements, whether or not a particular contract of carriage refers to them. Conversely, other interested parties can use the rules of the Agreements either by including them in the text of the agreement, or by referring to them in the agreement. Thus, when transporting goods under a charter from the ports of Morocco to the port of Budapest, the Bratislava agreements appeared as one of the conditions of the charter, with the help of which a Hungarian charterer and a Soviet charterer carried cargo on the river section of its transportation (MAK N 52/1977 case). The legality of such a step was not called into question when resolving the dispute between the forwarding organizations of the USSR and Czechoslovakia (Arbitration practice. Part 5. Decisions of the Foreign Trade Arbitration Commission 1966-1968. M., 1975. P. 30).

End point operators. The preliminary draft of the convention was approved by the UNIDROIT warehousing group at its 3rd session in October 1981. In April 1982 it informed the 61st session of the UNIDROIT Governing Council that certain objections to the draft had been raised by some operators final points who considered this convention as an infringement on their specific rights *(31) . The Governing Council requested the secretariat to ensure that the draft rules were widely publicized so that criticisms could be discussed openly in order to resolve misunderstandings and take into account legitimate interests *(32) .

A review of international conventions on the carriage of goods indicates that the international regime for the carriage of goods can be established by a convention and a multilateral agreement between the states concerned. The best means of ensuring the application of a uniform system of regime for the carriage of goods is an international convention. However, experience with the Multimodal Transport Convention and the Hamburg Rules shows that the approach based on international conventions has not been entirely effective in recent years.

There are different opinions about this. According to some experts, the more detailed the draft convention and the wider the circle of states seeking to reach an agreement, the less likely it is to successfully complete negotiations on an international convention. Conventions are regarded as a less flexible legal instrument. It is difficult to make changes and adjustments in accordance with new, changing circumstances. It is easier to reach agreements on an international instrument at the regional level than at the world level. Opponents argue that regional development of regimes in this area will further exacerbate the uncertainty and most likely will not lead to the creation of a uniform and predictable system for the implementation of maritime transport of goods on a global scale.

The UNCTAD/ITC Rules entered into force in January 1992. As model contractual rules, they cover all modes of transport. The adoption of model contractual rules is faster than the adoption and entry into force of a convention. However, one clear disadvantage of model contractual rules, as opposed to conventions, is that rules do not have the status of binding legal norms, which reduces the likelihood of achieving a uniform approach. In addition, such rules may conflict with the mandatory provisions of individual transport conventions.

23.08.2013 7.89 Mb Lazarev L.V. Legal positions of the Constitutional Court of Russia. - JSC Publishing House Gorodets; Formula of law, 2003

The world is becoming more transparent. States open their borders to others, trade relations are being established. This gives a strong impetus to the rapid development of such an area as international cargo transportation. Many cars are trying to make money on this transport companies. Therefore, it became necessary to regulate the behavior of all players. This is how conventions and basic rules for international road transport arose.

Features of international cargo transportation

International transportation, unlike domestic, has a number of features affecting such areas:

• organization of road communication;
• crossing the border of states;
• technical assistance to vehicles arriving from another country.

Safety is one of the main factors and requirements put forward to the carrier. To ensure the fulfillment of this condition, transport routes that meet international standards are used, unified traffic rules are established, road signs and signals are brought to a single form. Violation international rules road transport of goods is severely punished, especially in terms of road safety standards.

Regulatory documents

The features listed above are stipulated in a number of international acts. They are conditionally divided into five groups.

Installing car communications

Agreements are usually concluded between the governments of countries (Russia has concluded more than 35 agreements). Here motorways, their legal regime are stipulated, routes are established, the procedure for issuing permits, distribution of cargo transportation volumes in equal shares, specifications used transport, technical control procedure.

Bilateral agreements establish the principle of the licensing system, according to which the competent authority issues an admission for one round trip with a loaded or empty vehicle. Exceptions are also mentioned under which certain rules may be violated. In particular, this applies to the transportation of the deceased, transport, animals, property and other circumstances.

Organization of regular lines between states

We are talking about special agreements between governments and individual organizations that determine regular automobile lines that are allowed to be used for the delivery of goods. These documents define routes, introduce a schedule for carriers, stipulate the amount of the fee, duties and responsibilities of the signatories.

The issue of the functioning of regular transport lines is so important that individual European states have concluded a special agreement between themselves, which is abbreviated as AGTC, or AGTC.

Use of motor transport routes, requirements for the vehicle and the driver

The third group of documents is, first of all, the 1968 Convention on Road Traffic. It unifies the rules of conduct on the road, introduces requirements for cars and other vehicles used in this type of cargo transportation, registration numbers. Part of the document is devoted to the topic of driver training and compliance. Samples of driver's licenses are introduced and the reasons for their cancellation due to various violations are described.

Another important document is the 1978 Convention on road signs and signals, which leads them to a single general view. The text provides their detailed characteristics, description, locations and compliance procedures.

Cargo transportation

The groups of documents referred to above are only an addition to the 1961 Convention on the Contract for the International Carriage of Goods by Road, as well as two agreements:

• on international road transport of goods, or CMR (1969);
• on the international transportation of perishable products and special vehicles intended for these purposes (1976).

CMR (CMR)

As mentioned above, the 1969 Convention on the Carriage of Goods by Road is one of the main sources of regulation. Its adoption was initiated by the Inland Transport Committee of the UN European Commission. Russia has been participating in the treaty since 1983 as the legal successor of the USSR, which joined the KDPD (another name for the document) in 1983.

The Convention in the field of international road transport applies if the place of delivery or acceptance is in the country that is the area of ​​validity of the document. The terms of the contract that are not regulated by the provisions of the Convention shall be interpreted in accordance with the norms of the legislation of the country of one of the signatories.

The document has an imperative character and is obligatory for execution by the parties that signed it. All provisions of the contract for the carriage of goods that are contrary to these rules are considered invalid.

The main requirements of the CMR relate to the registration and acceptance of cargo, the timing of its delivery, issuance, liability, the procedure and conditions for filing claims and lawsuits.

Invoice CMR

According to an international agreement, when transporting goods to international destinations invoice is issued. It does not replace the contract, but certifies the fact of its conclusion.

The document must include requisites:

• date and place of drawing up the contract of carriage;
• for an individual entrepreneur - full name, for a company - the name, as well as the addresses of persons or organizations that send, receive and transport cargo;
• place of receipt and delivery of the shipment, date of receipt;
• marking, type of packaging, if hazardous products are transported - the presence of an appropriate sign;
• the number of packages, marking, if there are several - then the number of each;
• the exact quantity transported, usually the mass with packaging (gross weight) is used;
• payments made;
• instructions that are necessary to comply with customs formalities;
• a note that the carriage will take place regardless of the provisions of the Convention.

Sometimes the document contains other information. To additional information indicated in the invoice include:

• a note about the prohibition of overload;
• payments made by the sender and those that must be paid upon delivery of the item;
• the cost of goods, the amount of interest in delivery;
• insurance requirements and instructions (provided by the carrier), etc.

The FMC consignment note is signed by the sender and the carrier. It is issued in triplicate, which remain with the sender and the carrier, the consignee.

International documents for cargo transportation

When crossing the border, other acts are drawn up.

Declaration EX-1

This document accompanies export products manufactured in the EU and exported outside the Commonwealth. Declaration EX-1 allows you to avoid paying local VAT. It is issued by the seller of the goods or the buyer during expert customs clearance before the export of the goods. For the buyer, the document can be issued by a freight forwarder or a representative of a freight forwarding company. The export declaration is canceled when crossing the border of the European Union. The document is issued in electronic form on a pan-European server.

Declaration T1

Unlike the previous one, the T1 declaration accompanies goods produced outside of Europe. If the goods are imported by cars, they are cleared at customs warehouses. Responsibility for this procedure are borne by authorized representatives of the supplier or carrier.

TIR system

This system was introduced in order to simplify the border crossing for trucking companies during the transit of goods. Another function is to make transparent the rules for international transportation of goods by road, according to which the customs of different countries work. The system operates in more than 50 countries of the world, more than 4 thousand carriers are guided by it.

According to the TIR system, transport companies and individual entrepreneurs engaged in road transport comply with the following rules:

• transported goods are sealed, access to them is excluded;
• carry a TIR carnet (English name - Carnet TIR).

TIR Carnet accompanies the cargo between the customs of the countries. It contains a sender and a recipient. The document is drawn up by authorized bodies (for example, in the Russian Federation - ASMAP).

Outwardly, the document is a notebook with a dark yellow cover, inside there is a manifesto, paired vouchers (they are confiscated during customs clearance), and a protocol. Each such notebook has an individual number, which is a combination of letters and numbers.

The validity of the document is limited. The end date is stamped on the cover. To get a TIR notebook, you must have an international transport permit and a vehicle permit card.

Features of competition in international road transport

In international freight transport, the level of competition is quite high. So, according to some data, the number of players from Asia and Europe reaches a thousand only in the country.

common tool competition regulation is a licensing system. According to it, transport operators who have received the appropriate permits, or “permits”, gain access to the market. Such systems operate in most countries of the world. The conditions and procedure for issuing permits are regulated by intergovernmental agreements.

Every responsible and aspiring road carrier must know the documents, conventions on road freight transport. This will help to avoid errors in work and deliver goods to the recipient without hindrance, as well as earn advantages over their competitors.

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2. International conventions on international transport

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Transportation facilities, transport networks and terminal complexes used in the international transportation of goods and passengers are characterized by high capital intensity of facilities and, in many cases, low return on assets (capital return). In view of this, the transport business belongs to the category of the most risky for private capital.

States interested in expanding the activities of their national transport enterprises in international communications have always sought to international cooperation in order to develop uniform (unified) conditions for the transportation of goods and passengers, as well as to harmonize legal norms related to the regime for the location of transportation facilities and their personnel within the jurisdiction of the contracting parties and on many other issues. As a result of these efforts, a significant number of international agreements on certain types transport, called "transport conventions". In some cases, multilateral agreements on international transportation are concluded at the level of transport enterprises of different countries.

Most international transport conventions have provisions relating to the contract for the carriage of goods and passengers in the relevant international traffic. According to the agreement, one party - transport organization(carrier) - assumes the obligation to deliver the cargo or passenger to the specified destination, and the other party - the cargo owner (passenger) - undertakes to pay the carriage fee to the carrier. The remaining terms of the contract of carriage supplement, concretize and decipher the above obligations.

Transport conventions define the basic details, and in some cases the form of transport documents that must be used in international transportation. The most common are two types of transport documents: waybill (for rail, air and road communications) and bill of lading (for sea and river communications).

Characteristics of modes of transport used in international transportation:

Railway transport

Railways are the most cost-effective mode of transport for the transportation of wagon loads in bulk of coal, ore, sand, agricultural and forest products - to long distance. Recently, railroads have begun to increase the number of services to meet the specifications of customers. New equipment was created for more efficient cargo handling certain categories of goods, platforms for the transport of car trailers (travel piggyback), began to provide services in transit, such as redirection of goods already shipped to another destination directly on the route and processing of goods during transportation.

Water transport

The cost of transporting bulky non-perishable goods by water does not high cost such as sand, coal, grain, oil, metal ores is very small. On the other hand, water transport is the slowest and is often affected by the weather.

Automobile transport

Freight transport is constantly increasing its share in transportation. This type of transportation is extremely flexible in terms of routes and schedules. Trucks are able to transport goods "from door to door", saving the sender from the need for unnecessary transportation. Trucks are a cost-effective mode of transport for transporting high-value goods over short distances. In many cases, road transport rates are competitively comparable to those of railroads, but trucks usually provide a more responsive service.

Pipeline transport

Pipelines are a specific means of transporting oil, coal and chemical products from their places of origin to markets. Transportation of petroleum products through oil pipelines is cheaper than by rail, but somewhat more expensive than by water. Most pipelines are used by owners to transport their own products.

Air Transport

This type of transport is becoming increasingly important. Although air freight rates are much higher than rail or road rates, air transportation proves to be ideal when speed is of the essence and/or when it is necessary to reach distant markets. Among the most frequently transported goods by air are perishable products (such as fresh fish, fresh flowers) and low-volume, high-value items (such as appliances, jewelry). Firms are convinced that the use of air transport can reduce the required level of inventory, reduce the number of warehouses, and reduce packaging costs.

Selecting the type of transport

When choosing a means of delivery for a particular product, shippers take into account up to six factors. Table __ gives a brief Comparative characteristics different modes of transport in terms of these factors. So, if the sender is interested in speed, then the main choice is between air and road transport. If the goal is minimum costs, a choice is made between water and pipeline transport. Most of the benefits seem to be associated with the use of road transport, which explains the increase in its share in the volume of traffic.

Assessment of modes of transport according to the criteria of large senders

Thanks to containerization, shippers are increasingly resorting to the simultaneous use of two or more modes of transport. Containerization is the loading of goods into crates or trailers that are easy to transport from one mode of transport to another. Rail piggyback is transportation using rail and road transport, ship piggyback is transportation using water and road transport, "rail-ship" is transportation using water and rail transport, "air highway" is transportation using air and road transport. Any mixed mode of transportation provides the sender with certain benefits. For example, a rail-mounted piggyback is less expensive than a pure road transport and at the same time provides flexibility and convenience.

International maritime communications

The main international agreement that defines the relationship between the parties to the contract of carriage by sea and legal status bill of lading is the Brussels Convention for the Unification of Certain Rules on Bills of Lading of 1924 (The Hague Rules). The Brussels Protocol of 1968 made some changes to this convention. Currently, more than 70 states participate in the Brussels Convention. The main attention in the Hague Rules is given to the issue of the responsibility of the sea carrier for the cargo.

Taking into account the criticism of a number of provisions of the Brussels Convention of 1924 by cargo owners of different countries, especially developing ones, in 1978 the UN Convention on the Carriage of Goods by Sea, known as the Hamburg Rules, was adopted. Although the new convention has not yet entered into force, it nevertheless has a significant impact on the practice of international maritime transport.

Maritime transport of passengers and baggage until recently was regulated by the International Convention for the Unification of Certain Rules Relating to the Carriage of Passengers by Sea of ​​1961. In 1987, a new convention on the carriage by sea of ​​passengers, their luggage, vehicles and hand luggage (the Athens Convention) came into force.

International river communications

A set of issues related to the organization of international transportation along the Danube River is regulated by the Bratislava Agreements concluded by the river shipping companies of the Danube countries. The participants of the first of them - the Agreement on General Conditions for the Transportation of Goods on the Danube River in 1955 were the shipping companies of Bulgaria, Hungary, Romania, the USSR and Czechoslovakia. In 1966, river shipping companies of Yugoslavia joined this agreement, and in 1968 - Austria and Germany. The next step was the conclusion in 1978 by these shipping companies of the International Agreement on General Conditions for the Transport of Containers on the Danube River. In 1979, the same shipping companies entered into an agreement on international freight rates.

International air services

Among the international agreements on air transport is the convention for the unification of certain rules relating to international air transport, signed in Warsaw in 1929 and supplemented subsequently by protocols: The Hague of 1955, Guatemala of 1971 and Montreal of 1975. Most countries of the world participate in it.

The Warsaw Convention applies to scheduled air services. The legal basis of the agreement on air transportation in non-scheduled (charter) services is the provisions of the Guadalajara Convention on the Unification of Certain Rules Relating to International Carriage by Air of 1961.

International rail connections

The most universal multilateral agreements on international railway communications are the Berne Conventions on the Carriage of Goods (abbreviated as CIM) and on the Carriage of Passengers (IPC), originally concluded at the end of the last 17th century between several European countries. Subsequently, they were revised many times. Currently, there is a single Convention on Rail Transportation, as amended in 1980 (COTIF), containing the combined text of the Berne Conventions. The majority of European and a number of Asian and African countries are members of the Berne Conventions.

International road connections

This type of traffic is governed by the Convention on the Contract for the International Carriage of Goods by Road (CMR) and the European Agreement concerning the International Carriage of Dangerous Goods by Road (ADR), which entered into force in 1961 and 1968 respectively. Most of the countries are parties to these agreements.

In order to simplify customs procedures in international road communications of European countries in 1959, the Customs Convention on the International Carriage of Goods with the Application of an International Road Transport Carnet (TIR, TIR Convention) was concluded. In 1975, its new edition was adopted.

International mixed messages

In the 1970s, within the framework of several international organizations, a draft agreement on a direct multimodal transport agreement was being developed. As a result, in 1980 the UN Convention on International Multimodal Transport of Goods was adopted.

Organization of international transportation

The main provisions that determine the organization and conditions for the carriage of goods and passengers in international traffic are contained in transport conventions and international agreements. The issues of legal regulation of transportation are also the content of many bilateral agreements concluded at the interstate level or between transport representatives of the two countries. Finally, these issues are often regulated by the domestic transport legislation of individual countries. But the lack of international regulation of the transportation of goods and passengers does not prevent carriers and cargo owners (passengers) from entering into relations regarding international transportation.

Maritime transport can rightly be considered the most versatile mode of transport, specialized in servicing international trade. Here the main legal institutions were born and developed. organizational forms international transportation of goods and passengers.

The development of the system of legal relations between the participants in the transportation process on other modes of transport took place under the greater or lesser influence of the international practice of maritime merchant shipping. Therefore, when studying the issues of organizing transportation in international communications, it is advisable to pay special attention to this practice.

In international shipping, two forms of transportation organization have developed - linear (regular) and tramp (irregular).

International liner shipping. International liner communications are organized by maritime carriers in stable geographic areas of international trade in finished industrial products, semi-finished products, foodstuffs and other goods. International lines connect the main world economic centers (Western Europe, North America and the Far East) and these centers with other regions. A feature of liner shipping is the fastening of ships on this direction and their regular calls to certain ports according to a pre-announced schedule. Transportation is paid by consignors at the rates of the tariff established by carriers. Linear tariffs are stable over a long period of time.

The volume of services provided by sea liner carriers to shippers and consignees is much larger than in tramp shipping. Typically, sea liner carriers assume the obligation to pay the cost of loading goods at the port of departure and unloading at the port of destination. Additional costs of shipowners related to the specifics of liner conditions are reimbursed in the liner shipping tariffs. A specific interpretation of the liner conditions of carriage is given in the pro forma of the liner bills of lading.

International liner transportation is formalized by a bill of lading issued by the sea carrier to the consignor at the time the cargo is transferred to the carrier. By its legal nature, a bill of lading is evidence of acceptance by the carrier of the goods named in it. In addition, it confirms the existence of a contract of carriage between the carrier and the consignor. Finally, the bill of lading gives the shipper and other person named on it the right to dispose of the cargo and demand its release at the port of destination against the provision of this document. Thus, the bill of lading is a document of title. In recent years, the practice of international liner transportation has begun to include another transport document, the sea waybill, instead of the bill of lading. This document, which is not a document of title, speeds up the procedure for the delivery of goods at the port of destination.

International tramp shipping. Unlike liner shipping, ships in tramp shipping are operated on an irregular basis. They are not assigned to certain destinations, but move freely from one section of the freight market to another, depending on the demand for tonnage and the supply of cargo. The price of transportation and other commercial conditions are established for each flight or several flights on the basis of an agreement.

The contract of carriage by sea (ship chartering contract) in tramp shipping is concluded between the sea carrier (charterer) and the consignor or consignee (charterer), has the form of a charter. In most cases, this contract is concluded with the help of an intermediary or a freight broker.

Any charter contains a number of mandatory conditions relating to the ship, cargo, freight, the procedure for paying for stevedore work, dispatch, demurrage.

In international tramp shipping, the carrier usually issues a bill of lading which, among other things, governs the relationship between the carrier and the consignee, who is not the charterer.

It should be noted that in international practice, no legal act (convention, agreement) has been created to regulate issues related to the content or form of the charter. The main source of law in relation to charters is the national legislation of the respective countries.

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Article-by-article commentary on the Convention on the Contract for the International Carriage of Goods (CMR)

SCOPE OF THE CONVENTION»> Chapter I. Scope of the Convention

Cm. text Convention on the Contract for the International Carriage of Goods by Road (CMR). Geneva May 19, 1956 .

Article 2

The Convention on the Contract for the International Carriage of Goods by Road (CMR), hereinafter referred to as the Convention, is the basic, fundamental norm of private international road transport law. It regulates the generally accepted rules, customs and habits that have developed in world practice regarding the contract of carriage. The Convention establishes the procedures used by the parties to the contract for the international carriage of goods by road in terms of its conclusion, execution, termination, and also establishes the liability of the carrier for non-performance or improper performance of the terms of the contract.

The Convention was developed under the auspices and within the framework of the Inland Transport Committee of the European Economic Commission United Nations. Its original text is published by the United Nations in French and English as a separate publication under NNE/EE/253, E/ECE/TRANS/480. Among transport workers, the Convention is better known under the acronym CMR (Convention%20%20relative%20au%20contrat%20de%20transport%20international%20de%20marchandises%20par%20route%0A,%20%20Convention%20%20on%20the%20contract%20for%20the%20international%20carriage%20of%20goods%20by%20road%0A).%0A%0A

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Chapter I. SCOPE OF THE CONVENTION

Article 1

P.1 The scope of the Convention is international road transport in cases where the contractual relationship for the carriage of goods provides that the goods must leave the territory of one country and be transported to the territory of another.

The “must” condition implies the intention of the parties to the cargo transactions. However, the possible crossing of a state frontier does not always classify the competence of the Convention in respect of any treaty of international road transport cargo. See the comment to paragraph 5 of this article.

The provisions of the Convention are also applied in cases where the goods transported by means of transport and issued according to the waybill in accordance with the contract of carriage did not actually leave the country of departure, but were, for example, removed from export or demanded by the sender for return before crossing the state border.

The Convention provides for the compensability of the contract for the international carriage of goods by road. Payment for carrier services as one of essential conditions of the contract must be formally declared in the contract of carriage and in the waybill and actually produced in accordance with the procedures and within the terms agreed by the parties to the contract. The form of remuneration for services under the contract for the carriage of goods and the procedure for settlements between the parties to the contract of carriage are not defined by the Convention.

The Convention does not apply in cases where the sender and the carrier are the same person (legal or natural), since the same person cannot conclude a contract of carriage with himself. The waybill in these cases will not have legal force (since there is no contract of carriage) and is not formally obligatory, but is drawn up according to the urgent requirements of the customs authorities to maintain statistical records of international transportation of goods.

The carrier and the recipient may be the same person, provided that it follows from the contract of carriage that the carrier's services will be paid (in one form or another) by the sender with the appropriate notes on the consignment note and actually confirmed by the relevant documents.

The convention has so-called open character. For the application of its provisions, it is sufficient that at least one of the two places - the acceptance of goods for carriage or intended for its delivery - is located in two different countries, of which at least one was a party to the Convention. This feature of the jurisdiction of the Convention has practical application only in cases where disputes arise between the parties under the contract of carriage or in connection with it. Any of the parties to the contract - the sender, the carrier, the recipient - can only apply to the appropriate court of the countries party to the Convention in accordance with the provisions of Articles 31 and 33, regardless of whether or not they have the nationality of a country party to the Convention.

However, any court or arbitration of a country not party to the Convention will not accept a claim from any party to the contract of carriage (regardless of their nationality), as it will not be competent to resolve the dispute in accordance with the provisions of the Convention, unless otherwise specified in the contract and is not contrary to Articles 31 and 33 of the Convention. See comments on these articles.

The terms of the contract of carriage, not determined by the Convention, are governed by the norms of that national legislation, the agreement on the application of which was reached by the parties to the contract for the international carriage of goods. Otherwise, disputes under the terms of the contract of carriage that do not fall under the jurisdiction of the Convention are resolved on the basis of conflict of law rules under the laws of the country of the court considering the case.

P.2. The 1949 Convention on Road Traffic was amended and supplemented by the following international normative acts: the European Agreement of September 16, 1950, the Convention on Road Traffic of November 8, 1968 and the European Agreement of May 1, 1971. To specify the concept of "vehicle", one should use the definitions of the latest in terms of the adoption of these international treaties.

The possibility of using a particular vehicle is also determined by the provisions of bilateral intergovernmental agreements on international road transport.

P.4. A list of goods is declared, for the carriage of which the provisions of the Convention do not apply. The specified list of categories of goods is in fact significantly expanded by various bilateral, as well as multilateral intergovernmental agreements on international road transport. According to the agreements, the Convention does not apply when goods of a non-commercial nature are registered for transportation in international road transport for their use by their owners (senders and recipients in the same person) on the territory of a foreign state with a mandatory subsequent return to the country of departure. Such goods include: vehicles, animals and equipment for sporting events; exhibits and equipment for exhibitions and fairs; theatrical scenery and props; musical instruments; equipment for film and photography, radio and television broadcasts; damaged vehicles; spare parts for their direct replacement on faulty vehicles and others.

It should be noted that the classification of fair and exhibition cargo as non-commercial does not exclude the possibility of their subsequent sale (donation, and sometimes sale) in the country of destination.

P.5. The imperative nature of the Convention is declared in relation to the application of its provisions to the conditions of international road transport of goods. The parties to the Convention agreed to use its provisions without changes, exceptions or additions. See commentary on article 41.

The intergovernmental agreements on international road transport mentioned above (Article 1, paragraphs 3, 4) do not affect the provisions of the Convention, but regulate only such relations between the countries-participants of the Convention that are not defined by it. The agreements define the fundamental provisions concerning: highways open for use in international traffic; driving licenses and registration documents for vehicles; licensing system for transportation; third party liability insurance; the level of taxes and fees, including road fees, and the procedure for their collection; procedures for border, customs, sanitary, veterinary and other types of control; settlements and payments; sanctions for violation by carriers of the terms of agreements, etc. Most of the agreements being signed are unified in form and close in content.

The possibility of applying the provisions of the Convention for transportation between points of departure and destination located on the territory of the same country in transit through the territory of another (other) country (countries) is determined by the relevant agreements of the parties concerned. Such agreements may recognize both the jurisdiction of this Convention and the regulation of carriage by national law within each country through whose territory such carriage takes place.

Similar agreements are concluded by neighboring states for the implementation of international road transport as part of the implementation of border trade procedures between them. International transportation of goods between points of departure and destination located within the limits established by agreement of the parties of the border zones are governed by simplified rules developed on the basis of the provisions of the Convention.

A waybill for international carriage of goods drawn up in accordance with the provisions of the Convention is not a negotiable transport document. It is not subject to endorsement and cannot be used to transfer ownership of the goods being transported. However, the Convention does not exclude the possibility of using (in addition to the consignment note) other documents, as a rule, of a title to goods, by which ownership of goods can be transferred within the country of destination. Such documents have no legal force for the carrier, as they do not apply to the contract for the international carriage of goods by road. Additional documents of title are required for the actual recipients of the goods, if in the process of forwarding the goods such documents were endorsed in their favor. See commentary on article 12.

Article 2

P.1. If the goods are not transshipped from the means of transport before they arrive at their destination, then the provisions of this Convention shall apply to such international carriage by road, notwithstanding that part of the contractual route is carried by the means of transport itself as goods on other modes of transport. This means that a motor vehicle with the cargo in it is the object of a contract of carriage, for which the road carrier is the sender and recipient in one person, and the company of another type of transport acts as the carrier.

In the absence of fault of the international road carrier, its liability in such cases for damage, damage, total or partial loss of cargo, as well as for delay in delivery is determined to the sender or recipient of the cargo itself according to the same rules and regulations, according to which the carrier is responsible to the road carrier another type of transport. In the event of such a situation, the road carrier must compensate the damage to the person entitled under the contract of international road transport in the amount provided for by the imperative normative act another type of transport. After that, the road carrier has the right, on the basis of its contractual relationship with the carrier of another mode of transport, to demand from the latter the return of the amounts paid by way of recourse.

The burden of proving that the road carrier is not at fault to the party entitled under the contract and substantiating the amount of payments in accordance with the norms of imperative law for other modes of transport lies with the road carrier.

P.2. The possibility of transporting cargo on any part of the route by another (non-road) mode of transport must be reflected in the contract for international road transport. At the same time, the carrier delivering cargo on different (by means of transport) sections of combined transportation (with a mandatory road section) may be one and the same legal entity. Then the responsibility of such a carrier for the non-safety of the cargo or the violation of the delivery time that occurred precisely on the non-automobile part of the route is determined in accordance with the imperative norms of the law on the contract for the carriage of goods by another mode of transport.

The main international legal acts of private transport law on other modes of transport are:

1. On maritime transport— The Brussels Convention for the Unification of Certain Rules Concerning Bills of Lading, 1924, as amended by the 1968 Protocol, and the 1978 United Nations Convention on the Carriage of Goods by Sea. These conventions are sometimes referred to as the Hague-Visby Rules and the Hamburg Rules, respectively.

2. On rail transport - the International Berne Freight Conventions (last edition 1985), referred to by their full French abbreviation CIM-COTIF, and the Agreement on International Railway Freight Traffic (SMGS) (last edition 1998).

3. On air transport— Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air, 1929, as amended by the 1955 Hague Protocol.

4. For multimodal transport of goods, the United Nations Convention on Multimodal Transport of Goods, 1980, Geneva, and the UNCTAD-ICC Rules for Multimodal Transport Documents, 1992, Geneva. The Convention, which has not yet entered into force, and the Rules are optional rules. Therefore, each of them regulates the terms of the multimodal transport contract only if the parties to the contract have recognized it as appropriate. In practice, the Rules are most often applied.

If the procedure for calculating compensation and the amounts payable are other than those specified in this Convention, the carrier shall have the burden of proving that the damage, deterioration or loss of the goods, as well as the violation of the delivery time, occurred on that part of the route, on which the road carrier was not actually such, but was a carrier of another mode of transport. In such an agreement (and in the waybill) for international road transport, the route of transportation and the possibility of using other modes of transport (while maintaining the integrity of the vehicle) or a clause that the carrier has the right to choose the method of delivery of goods at its discretion, based on the principles of reasonableness and good faith .

Chapter II. PERSONS FOR WHOM THE CARRIER IS RESPONSIBLE

Article 3

Unless otherwise provided in the contract of carriage, the carrier has the right, for the purpose of its proper execution, to involve any legal or individuals. The carrier is fully liable for the acts and omissions of its agents, forwarders, and employees as for its own, unless it proves that such guilty persons and or employees acted beyond the limits of their duties or outside the area, determined by the treaty transportation. See commentary on article 29.

Chapter III. CONCLUSION AND PERFORMANCE OF THE CONTRACT OF CARRIAGE

Article 4

The waybill is not a contract of carriage, but only confirms the fact of its existence.

Any international road transportation is formalized by an agreement, according to which the carrier undertakes to deliver the goods to the specified place and time for a specified fee, and the cargo owner undertakes to provide the goods and pay for transportation services. The contract of carriage must be in writing. The parties to the contract are: the carrier on the one hand and the sender or recipient on the other.

Formally, the party to the contract of carriage is the sender. But sometimes it is specifically stipulated that the functions and duties of the sender are performed by the recipient of the goods. In the latter case, the contract of carriage must clearly indicate that it is the consignee who is the person entitled under the contract and has the right to dispose of the goods.

The Convention contains the concept of "sender", investing in it both legal and functional content: the sender is a party to the contract for the international carriage of goods and therefore the only person entitled for the carrier under the contract until the moment the goods are transferred to the recipient and the sender is the person transferring the goods to the carrier. See commentary to article 12, paragraph 3.

The contract of carriage is drawn up, as a rule, in two forms - a jointly signed document and an unconditional acceptance of a firm offer.

A contract of carriage in the form of a jointly signed document is usually drawn up when the parties intend to establish long-term relationships related to the carriage of goods in international road traffic. Such an agreement is most often referred to as a blanket agreement or “General agreement”, in which the parties try to stipulate all possible aspects of relations with each other related to the organization and implementation of transportation, as well as issues of responsibility of the parties under the terms of the contract for the international carriage of goods not named in the Convention.

The contract of carriage in the form of an unconditional acceptance of a firm offer is drawn up in cases of initial or episodic contacts between the parties. The contract is considered concluded when a specific targeted offer (offer) of one of the parties is fully accepted (accepted) by the other. Written form contract means in this case, among other things, telex, fax and other registered forms of transmission and reception of messages.

The most important for any contract of carriage is the subject of the agreement, in which its parties clearly express their intention to fulfill all the agreed conditions.

The Convention does not regulate all possible aspects of the relationship between the parties to the contract of international road transport of goods. For example, there are no provisions on the principles of organization of transportation, the terms for submitting and satisfying requests for transportation, the level of applicable rates and tariffs, the forms and terms of settlements between the parties, the terms for submitting, loading and unloading vehicles, customs clearance cargo and vehicles and others.

In the "General Agreement" these and other issues can be agreed upon by the parties and are governed by the norm of national civil law chosen by the parties to the agreement. In the agreement in the form of "Offer-acceptance" issues that are not related to the jurisdiction of the Convention are resolved on the basis of the conflict of law rules of the applicable law.

Article 5

P.1 The form of the consignment note (CMR Internationaler Frachtbrief) is not defined by the Convention. International Union Road Transport(IRU) developed a bill of lading form recommended for carriers, freight forwarders, operators and agents for processing and confirming contracts for the carriage of goods. However, each of the persons mentioned last has the right to develop and apply the most convenient form of the transportation document for him in accordance with the laws and regulations of his country. Any form of consignment note must contain the mandatory and additional details specified in Article 6 of the Convention.

A set of shipping documents (waybills) can consist of any number of copies, however, only the first three named in this article have the same legal force. The rest are copies. The number of copies of the consignment note is determined, as a rule, by the number of state borders crossed by the cargo, as well as by national customs procedures. The exact number of copies to be made out is indicated in bilateral intergovernmental agreements on international road transport.

P.2. If the contract provides for the transportation of a consignment of cargo in a volume (quantity) exceeding the capacity (carrying capacity) of the type of vehicle specified in the contract, then waybills should be issued as many vehicles as necessary to use to transport the entire cargo. The division of cargo for transportation on several vehicles with the issuance of an appropriate number of waybills may be requested by the sender or carrier in cases where cargo is presented for transportation that for any reason is incompatible for joint transportation (chemical, physical, biological and other properties of cargo), as well as at the request of the customs authorities.

Transportation of several consignments (consignments) in one vehicle is allowed only with full observance of the procedures in accordance with the TIR Convention (Customs Convention on the International Carriage of Goods using a TIR Carnet of November 14, 1975). The TIR Convention states that several consignments of goods can be transported in one vehicle, subject to the following conditions: the total number of Customs offices, which are the place of departure and destination of goods, should not exceed 4; all customs offices that are the place of departure of goods must be located in the same country; customs offices that are the destination of the goods must be located in no more than two countries; consignments of cargo must be placed in the vehicle in such a way that inspection of each of them is possible.

Article 6

P.1. The addresses indicated in subparagraphs a) - e) of the consignment note are important for determining the places for filing claims with the appropriate courts in accordance with paragraph 1 of Article 31 of the Convention. When importing goods, subparagraph d) indicates the name and address of the customs authority where the carrier must deliver the goods.

See commentary on article 11.

See commentary to article 7, paragraph 3.

P.2. The right of the sender to make such a reservation in the consignment note, as a rule, is explained by the reasons that prompted the sender to make such a statement. Usually, the prohibition of reloading to another vehicle is motivated by the state of the cargo, the specifics of its stowage and fastening, the impossibility of its slinging, the displaced center of mass of the cargo, and others. Such a clause is useful for the carrier, as it clarifies to him the nature and properties of the cargo, the actual state of the container and packaging, the consequences of manipulations with the cargo, and so on.

The payer of transport services (sender or recipient) is determined by the contract of carriage and, if necessary, indicated in the consignment note. The carrier prefers to build its own financial relations with the sender and receive the agreed freight charges before the start of the cargo transportation process. However, in practice, the payer (or payers) under the contract of carriage are not determined arbitrarily, but in accordance with the basic terms of delivery under which the contract for the sale of goods was concluded, the delivery of which was concluded this contract for the international carriage of goods.

The obligations of the parties to the contract of sale to bear certain transportation costs, that is, to fully or partially pay the carrier for carriage charges, are determined by the Rules for the Interpretation of International Trade Terms (Incoterms) of the corresponding year of publication according to the official documents of the International Chamber of Commerce. Most often, Incoterms are used in the editions of 1990 and 2000.

In accordance with these documents, the payment of international road transport services for the carriage of goods is carried out by the seller (sender) if the contract of sale is concluded on the basic terms of CPT (carriage paid to), CIP (carriage and insurance paid to), DDU (delivery duty free) and DDP (delivery duty paid).

The buyer (recipient) pays for the carriage in cases where the parties to the contract of sale have agreed to one of the following basic conditions: EXW (ex works) and FCA (free carrier).

An indication of the payments that the sender undertakes to pay is indicated in the contract of carriage and in the waybill in cases where the goods are delivered in accordance with sales contracts concluded on the basis of DAF (delivery at the frontier). In these cases, the seller (sender) undertakes to pay only a part of the stipulated carriage charges (usually up to the automobile border crossing named in the basic condition), and the carrier makes final payments for the entire carriage with the buyer (recipient) of the goods. In practice, this is extremely rare, as the carrier tries to build its financial relationship with one known and reliable payer. Most often, it is the sender or the person representing him, for example, the freight forwarder, less often the recipient.

The presence in the invoice and the value of such a payment indicator is determined by the presence and specific content of subparagraph b).

The value of the cargo declared by the sender has nothing to do with the practice of putting down the price of the goods on the invoice, which is used by the Russian customs authorities to determine the customs value imported goods for the purposes of collecting excises, taxes, duties and fees. The need to declare (declare) the value of the goods in the waybill arises when the actual (actual) value of the goods is higher than the maximum limit of the carrier's liability in cases of damage, damage, total or partial loss of the goods. See comments on Articles 23 and 24 of the Convention and on Article 2 of the Protocol of 5 July 1978 to the Convention.

Often, in order to maintain its authority and reputation, the carrier voluntarily declares to the cargo owner a waiver of his rights to use the limit of liability in the form of an indication of the actual (actual) value of the cargo on the consignment note without charging additional fees and charges for this service.

The actual meaning of the clause in the consignment note under this subparagraph lies elsewhere. The amount of special interest in delivery is indicated by the sender in the consignment note in cases where the amount of the carrier's full compensation for the lost or undelivered cargo is less than the previously known losses of the cargo owner. It is the amount of possible losses that is declared as an amount of special interest in delivery. If the cargo owner suffers losses only if the goods are not delivered to the destination later than a certain date (delay in the delivery of goods), then it is necessary to declare not the amount of special interest in delivery, but the amount of special interest in delivery within the period specifically agreed with the carrier. Such additional agreement must be confirmed by an appropriate note on the invoice. See commentary on article 26.

Instructions on the procedure and conditions for cargo insurance are given by the sender to the carrier in cases where, in accordance with the delivery basis specified in the sales contract, the seller is obliged or necessary to insure the goods (when using the basic conditions CIP, DDU, DDP). In addition, the carrier must agree that, in addition to his main obligations under the contract of carriage, he will also perform the functions of a freight forwarder. Such instructions shall include: the name of the beneficiary under the cargo insurance contract, one of the three conditions of cargo insurance for transport (A, B or C) in accordance with the Rules of the Institute of London Insurers, the amount of the declared sum insured, the maximum possible premium rate, restrictions on franchise clauses and abandonment, additionally announced risks to the insurer, names of firms of the most acceptable insurers. See the commentary to article 41, paragraph 2.

The Convention does not contain standards in accordance with which the time of delivery of goods should be calculated. Determining the delivery time in the contract and indicating it in the waybill is optional, however, the parties to the contract of carriage have the right to determine and fix this indicator. However, the delivery time specified in the consignment note does not impose any financial obligations on the carrier, unless they are specifically mentioned in the contract of carriage.

As a European custom, when calculating the delivery time, the following standards for the daily mileage of a vehicle are used: 600 km when transporting goods on expressways, 450 km on ordinary highways, 400 km on the roads of the countries of the Commonwealth of Independent States.

The sender may transfer to the carrier any documents that contain additional, in comparison with the waybill, information about the cargo, sender, recipient, customs, which are the place of departure and destination, and others. Usually, all or some of the shipping documents (invoice, shipping specification, invoice-specification, product quality certificate, product origin certificate, conformity certificate, packing list, quarantine certificate, veterinary certificate, sanitary certificate and others), customs documents (TIR Carnet, cargo customs declaration etc.), insurance policies, bank guarantees and others. The conditions for entering information on the documents provided to the carrier into the consignment note are determined by the provisions of Article 11.

P.3. Any data, conditions and reservations entered by the parties to the contract of carriage must correspond to the actual state of affairs; instructions to the carrier must be able to be actually executed. In any case, the data entered on the consignment note must not contradict the mandatory norms of the Convention and the norms of the applicable national law.

The consignment note may include, for example, the timing of the vehicle, its loading and unloading, the route, the names of forwarding and agency companies representing the parties to the contract of carriage, their contact numbers, and so on.

Article 7

P.1. The sender bears liability for the completeness and accuracy of any information specified in the consignment note, with the exception of: the date and place of the consignment note, the name of the carrier and his address, as well as the presence of a clause in the consignment note in accordance with subparagraph j) of paragraph 1 of Article 6. However, the carrier must prove that his losses are caused by the fault of the sender, who incorrectly or incompletely issued the invoice. For example, if the sender indicated inaccurately on the invoice the place intended for the delivery of the goods, then the carrier must prove both the amount of damage and the fact that the damage was caused precisely by the incorrect address of the recipient indicated on the invoice.

P.2. Instructing the sender to other persons (sales representative, freight forwarder, carrier's agent, etc.) to draw up an invoice does not release him from responsibility for the completeness and correctness of the document. The sender will be released from liability if he proves that he did not instruct any third parties (including the carrier) to draw up an invoice on his behalf or enter any information into it.

P.3. The Convention is the only generally recognized normative act regulating the terms of the contract for the carriage of goods in international road traffic. As a rule, all waybills confirming contracts of carriage are issued in accordance with the provisions of the Convention (as evidenced by the abbreviations "CMR" on the forms) and contain the clause of subparagraph j) of paragraph 1 of article 6. The jurisdiction of the Convention can be recognized in judicial order even in the absence of such a clause in the consignment note. If this leads to losses of the cargo owner (sender, recipient), then the carrier will be forced to compensate them in full without the right to apply exemptions and limitations of liability.

Article 8

P.1. If the carrier has not made any motivated reservations in the consignment note regarding the number of packages, their marking and numbering, as well as the external condition of the cargo and its packaging, there is a presumption that the information indicated by the sender, in accordance with the provisions of subparagraphs e) and p) of paragraph 1 of Article 6 are correct, and the cargo itself, at the time of its acceptance by the carrier, was in a commercially sound condition that complied with the conditions of transportation.

P.2. The validity of the carrier's reservations must be accepted in writing by the sender. Unilateral notes of the carrier in the consignment note such as "Accepted without counting the number of seats", "Not present during loading" and so on do not have probative value. On the other hand, the refusal of the consignor to admit the obvious inconsistencies discovered by the carrier according to the data verified by him in accordance with paragraph 1 of Article 8 of the Convention may lead to negative consequences up to termination of the contract of carriage due to the fault of the consignor.

The carrier may not fulfill his obligations in accordance with paragraph 1 of Article 8, if the cargo was transferred to him in a serviceable vehicle or container behind other people's serviceable seals (sender, forwarder, customs). In this case, the carrier is not responsible for the safety and condition of the cargo, but is only responsible for the proper condition of the vehicle or container and the integrity of seals and other security marks and devices.

P.3. The sender may require the carrier to check the mass (quantity) of the cargo, as well as the contents of the packages, so that subsequently the carrier cannot use the limitations of his liability. After performing these checks, the carrier will not be able to subsequently refer to the fact that he did not have reliable information about the mass, volume or quantity of the cargo he accepted, as well as that he did not know and could not know what kind of cargo was actually inside the declared places and what was his real condition at the time of the start of transportation. The results of the checks are recorded on the invoice and signed by the authorized representatives of the parties. The cost of inspection operations must be justified by the carrier and declared before the start of inspections.

Article 9

P.1. If the contract of carriage establishes the basic conditions for the relationship between its parties (the sender and the carrier), then each waybill not only confirms the existence of the contract, but also specifies each cargo flight. The term prima facie (at first glance) means that the consignment note will confirm the existence of a contract of carriage until proven otherwise.

In addition to the above function, the invoice performs another important function in commercial circulation. The international road carrier is not a party to the sale and purchase agreement, however, the waybill signed by him is one of the main bank documents. The fact of acceptance of the cargo by the carrier gives the consignment note the function of a document confirming the delivery of goods under sales contracts on the basic terms of FCA, CPT, CIP (according to Incoterms 2000). A clean invoice, that is, without the carrier's motivated reservations regarding the quantity, quality and condition of the cargo accepted by him, is submitted by the seller to the bank along with other necessary documents confirming the delivery of the goods on the conditions established in the international sales contract.

The seller (sender) always shows interest in receiving exactly a clean invoice, regardless of the condition and quantity in which he transfers the goods to the carrier. The practice of so-called "guarantee letters of trust" is widely known and often used, in which the seller (sender) asks the carrier not to make any notes and reservations on the consignment note, regardless of the quantity, quality and condition of the cargo accepted by the latter.

If such a letter is accepted by the carrier, the seller undertakes to reimburse him for all costs associated with the issuance of such a “clean waybill”, namely: to reimburse the carrier for losses in the amount in which he paid the recipient (buyer) the cost of the obviously missing or damaged cargo and pay the carrier compensation for moral damage (harm) in a predetermined amount.

The practice of "guarantee letters of trust", which is a generally recognized international trade custom, has recently caused particular concern to the courts, due to the fact that it is a deliberate collusion between the seller and the carrier, directed against a third party - the buyer of the goods. If the carrier had not issued a clean invoice to the seller (sender), the seller would have been considered to have failed to fulfill its obligations under the international sales contract, would not have received payment for the goods and, possibly, would have paid the buyer the penalty amounts determined by such an agreement.

Usually, carriers agree to accept fiduciary guarantees only from those persons with whom they maintain a long-term business relationship, since if the seller fails to pay the carrier's monetary obligations under the letter, the latter cannot sue the judiciary on it (knowing collusion with the seller).

P.2. See comments on article 8, paragraph 3, and article 9, paragraph 1.

Article 10

If the carrier is financially liable for the goods, then the sender is liable to the carrier for damage that may be caused to the carrier or any other persons as a result of the transportation of goods both under contractual and non-contractual relations, that is, on the basis of a contract of carriage and norms applicable law.

The carrier may claim compensation for expenses and losses caused by the actions of the cargo owner due to improper packaging or packaging of the cargo, only in cases where he refers to packaging defects that he could not detect during an external visual inspection of the cargo.

For example, the carrier's losses were caused by damage to the car body due to the fact that the packages were not properly secured by the sender. In this case, it will be difficult for the carrier to prove the sender's fault, since the carrier had to evaluate the packaging defects and the quality of the fastening of packages during a visual inspection of the cargo at the time of its acceptance for transportation.

Article 11

P.1. As a rule, a bona fide carrier, interested in the proper performance of the contract without incurring additional costs and losses of its parties, informs the consignor of the content of this article of the Convention and informs him of the list required documents and information. See the commentary to subparagraph e) of paragraph 2 of Article 6.

P.2. The sender may ask the carrier to check the presence and completeness of the documents attached to the consignment note for compliance with their content generally accepted customs and norms of international and national law, under whose jurisdiction the implementation of the contract of carriage falls. Even if the carrier checked the attached shipping documents for the cargo and the parties signed the appropriate clause in the consignment note, the sender still remains liable to the carrier for possible losses of the latter (imperative rule).

Most often, the carrier's losses are caused by the fact that the content of customs, payment documents and various kinds of certificates does not allow the inspecting national authorities (border, customs, sanitary, veterinary and others) to pass the cargo across the state border. However, the sender has the right to prove that the carrier's losses are caused by the latter's own fault (for example, the carrier lost the document attached and recorded in the invoice).

P.3. The amount of compensation due from him should not, however, exceed that which would be payable in the event of loss of the goods.

The sender is interested in the complete list of the attached shipping documents being included in the consignment note, due to the carrier's mandatory liability for their loss and misuse. The specific amount of losses associated with this is proved by the cargo owner (in the claim of the sender or recipient) and is determined by the court or arbitration, but cannot exceed the amount of compensation as for the total loss of the cargo or its part in accordance with the provisions of Article 23 of the Convention. Moreover, the claimant must prove that the loss or misuse of documents actually meant for the cargo owner the loss of the cargo itself or the inability to use it. The burden of proving the proper use of the documents attached to the consignment note lies with the carrier.

Article 12

P.1. Initially, only the sender is a contractually entitled person for the carrier. The carrier is obliged to comply with any instructions of the sender within the limits, established by the agreement, and applicable international (including the Convention) and national law. Any indication of the sender must be realistically feasible at the place and time of its execution and must not cause damage to the parties to the contract of carriage and third parties. An additional indication of the performance of services not provided for by the contract is realized by the carrier for an additional fee, the amount of which is specifically agreed by the parties before the performance of the service.

The sender has the right to require the carrier to change the destination and (or) issue the goods to another recipient only in the country of destination of the goods.

P.2. The recipient may enter into a contract of carriage and exercise his rights to dispose of the goods in those cases when he accepts the goods or documents for the goods from the carrier (including the second copy of the consignment note). If the goods are wholly lost, or are deemed so in accordance with the provisions of Articles 19 and 20, the consignee, on an equal basis with the sender, may claim compensation from the carrier if it appears from the content of the documents submitted to the carrier that he is the owner of the goods or has at least the right to dispose of them.

The instructions received by the carrier from the recipient cannot go beyond the scope of the work and services provided for in the contract of carriage, but only must specify them.

P.3. The sender may transfer all of his rights as a contractually entitled person to the recipient by means of an appropriate clause in the consignment note. Such a clause in the consignment note, reflecting the right of only the recipient to dispose of the goods, corresponds to the transport conditions of the sales contracts concluded on the basis of EXW and FCA (according to Incoterms 2000), when the costs and risks of transporting the goods are borne by the buyer.

P.4. The terms "recipient" and "buyer" rarely refer to the same person. Most often, one person (buyer) buys goods and concludes an international sales contract, and another person (recipient) is the final consumer of such goods. In such cases, the contract of carriage indicates the buyer, who, exercising his right specified in this article of the Convention, instructs the carrier, after completing customs formalities, to hand over the goods to the direct recipient. Such an indication must be accompanied by the final payment for the carriage, taking into account the additional mileage and excess downtime of the vehicle. The final recipient of the goods is only obliged to accept the goods and cannot give any additional instructions to the carrier.

P.5. The invoice is not a document of title. With the help of an invoice, the seller (sender) cannot transfer ownership of the goods to the buyer (recipient), and he to any third party according to the transfer (assignment) inscription on the invoice. This means that the invoice cannot be endorsed. Therefore, a person wishing to exercise his rights to dispose of the goods must instruct the carrier regarding his further actions, in the (first) copy of the waybill, which carrier issued to the sender at the time of acceptance of the goods. Usually, the first copy of the waybill, after the transfer of bank payments for the goods to the seller under an international sales contract, is sent to the buyer, who, being the recipient, enters into it the appropriate instructions to the carrier. See commentary to article 9, paragraph 1.

When transporting several consignments in one vehicle, redirecting any of them should not increase the delivery time of others.

P.6. The carrier's refusal to comply with the instructions of the person entitled to dispose of the cargo (sender or recipient) must be motivated and documented.

P.7. If the carrier has not complied with the instructions of the person entitled under the contract within the limits of the duties previously assigned to the carrier, it is considered that he has improperly performed the contract of carriage.

The requirement to present the first copy of the waybill to the carrier makes sense only when the party entitled under the contract is the sender, and additional instructions to the carrier are given by the recipient. If the carrier follows the directions of the consignee without requiring the presentation of the first copy of the consignment note, he risks thereby causing damage to the sender and will be obliged to compensate him.

This can fully apply to customs operations with cargo. If, for example, the carrier did not receive any instructions from the sender, and then leaves the goods at the customs warehouse or terminal at the oral direction of the recipient, then it is the carrier, and not the customs authority, that is responsible for both the safety of the goods and for its delivery.

The carrier that has released the cargo to a third party will be liable to the sender or recipient in the same amount as for the total loss of the entire cargo. The delivery of the goods to the customs authority of the place of destination does not mean the fulfillment by the carrier of his obligations under the contract, if the recipient did not note the fact of acceptance of the goods on the consignment note or such customs authority was not indicated on the consignment note as the final destination.

Article 13

P.1. The right of the recipient is declared to enter into a contract of carriage and dispose of the cargo after he accepts the cargo from the carrier and signs the second copy of the invoice. If the cargo is not delivered to the recipient, this does not limit his right to enter into a contract of carriage and, on the basis of this right, to present appropriate claims and claims to the carrier. See comments on articles 19 and 20.

P.2. The carrier has the right to exercise its lien on the cargo and not release it to the recipient until the latter has fully settled with the carrier for all work and services under the executed contract of carriage. The amount of debt is determined not only by the payments originally indicated on the invoice, but also by the actual cost additional work and services performed by the carrier for the benefit of the party entitled under the contract.

Article 14

P.1. The main reasons why the execution of the contract on the conditions specified in the consignment note becomes impossible for the carrier, it is necessary to include a forced change in the route of transportation due to closure or restriction bandwidth roads and changing the delivery time of the cargo due to queues at border crossings and customs control points. In addition, for the carrier is important change the cost of services for the performance of the contract of carriage due to the increase in vehicle mileage and additionally collected fiscal payments in a foreign territory.

P.2. The carrier shall notify the entitled person of the possibility of executing the contract of carriage on any other terms by means of means of communication or operations fixing the request. The concept of "reasonable time" means the time during which the sender or recipient has the opportunity to decide on the situation and give a response to the carrier. Generally, "reasonable time" is limited to the end of the first business day following the day on which the carrier's notice could have been received by that person.

If the carrier nevertheless decides to execute the contract of carriage on terms different from those specified in the consignment note, he will subsequently be obliged to prove to the person entitled under the contract that his actions were reasonable, expedient and aimed at ensuring the interests this person. Only in this case, the carrier can claim reimbursement of its expenses in part uncovered by the amounts originally indicated in the waybill.

In order to exclude possible conflicts when drawing up a contract of carriage, the parties are advised to enter into it an appropriate clause on the basis of the provisions of this article of the Convention. It is possible, for example, to provide for an article in the contract regulating the procedure for informing the entitled person by the carrier about changes in the essential terms of the contract, the timing and procedure for obtaining response instructions, the possible actions of the carrier in case of non-receipt of instructions, and so on.

Article 15

P.1. The main obstacles to the delivery of cargo after the vehicle arrives at the destination are: the recipient's refusal to accept the cargo for any reason (including due to the recipient's inability or desire to clear the cargo), the absence of the recipient at the specified address, incorrect or inaccurate delivery address, etc. . The carrier must remember that it is the right, but not the obligation, of the recipient to accept the goods from him. The recipient has the right to refuse to accept the cargo, regardless of its condition, without explaining the reasons due to the fact that initially, before presenting evidence to the contrary, he is not a party to the contract of carriage.

When, after the carrier’s request about how he should dispose of the unclaimed consignee, the sender gave a definite answer, the carrier should act in accordance with the provisions of Article 12 (paragraphs 1, 5, 6, 7) of the Convention, but without requiring duplication of instructions in the first copy of the consignment note , which is optional in this case.

P.2. Until the carrier receives from the sender instructions that are opposite in content, the recipient retains the right to enter into a contract of carriage and accept the goods even if he previously refused it. If the sender instructs the carrier how he should further dispose of the goods, it is understood that the sender undertakes to reimburse the carrier for all costs associated with the proper implementation of the instructions given by him.

P.3. The carrier builds its relationship with the recipient as with the only person entitled under the contract of carriage according to the procedures provided for in paragraphs 1 and 2 of this article, in cases where the recipient, exercising his rights, instructed to hand over the goods to a “new” recipient, and the carrier at the same time there were obstacles.

Article 16

P.1. All amounts claimed for reimbursement of expenses must be substantiated and documented by the carrier.

P.2. If the carrier cannot deliver or hand over the goods to the recipient, then in the absence of instructions from the sender, he has the right to unload the goods. After that, the contract of carriage is considered fulfilled. As a rule, the place of unloading is most often a customs terminal or a warehouse, where uncleared cargo is deposited at its security value. A clean warehouse document (receipt, simple warehouse certificate, double warehouse certificate, warehouse receipt, etc.) accepted in the normal practice of such a customs terminal or warehouse will confirm the fulfillment by the carrier of his duties. The carrier is obliged to transfer the warehouse document to the person entitled under the contract after the latter has made all final payments for the work and services performed.

P.3. It is used in the practice of international road transport between the countries of the European Union (EU) due to the lack of customs clearance procedures for goods produced and consumed within the EU. When carrying out transportation to (from) the countries of the Commonwealth of Independent States, the provisions of this paragraph are practically inapplicable due to the fact that the ownership of the goods never passes to the carrier and, therefore, he cannot make customs formalities and payments on his own behalf.

The exception is cases when, in addition to performing its main functions, the carrier is the forwarder of the sender.

P.4. The procedure to be followed in the sale is determined by the laws or customs in force at the place of sale.

Chapter IV. CARRIER'S LIABILITY

Article 17

P.1. « Golden Rule» imperative liability and presumption of guilt of any carrier of any mode of transport. The moment of acceptance of the goods is fixed by the date on the consignment note in accordance with subparagraph a) of paragraph 1 of Article 6. The moment of delivery of the goods is determined by the date on the consignment note, affixed in its second copy by the recipient upon receipt of the goods. The condition of the cargo at the time of acceptance for transportation and at the time of its delivery to the recipient is determined by:

The presence or absence of motivated reservations in the consignment note made by the carrier and the recipient, respectively;

The recognition of these reservations, respectively, by the sender and the carrier;

The content of the claim of the recipient, filed within the time limits, in accordance with the provisions of Article 30 of the Convention.

P.2. In case of total or partial loss, damage, damage to the cargo or delay in its delivery, the carrier is a priori guilty. The carrier may rebut the presumption of his guilt. The carrier will be released from liability if he proves the absence of his fault in relation to the subject of the claim for the following items:

1. The carrier may prove improper actions of the sender and / or recipient in cases where the loading, unloading, stowage and securing of cargo was carried out by the latter and caused damage, damage or loss of cargo. In addition, the carrier may refer to improper packaging and labeling of the cargo, to the fact that the cargo was incorrectly secured inside the container and packaging, and also to the fact that he accepted the vehicle or container with the cargo with someone else's seals.

2. Incorrect instructions given to the carrier, or the absence of such instructions, are considered to be omissions of the sender or recipient, the proof of which allows the carrier to exonerate himself from liability. However, the carrier must prove that it was this omission of the person entitled under the contract that caused the damage, damage or loss of the goods or delay in delivery.

3. The carrier is given the opportunity to prove that damage, deterioration or loss of cargo occurred due to the special natural properties of the cargo, that is, those that are inherent in the cargo by nature (spontaneous combustion, corrosion, insects, etc.).

4. The carrier will be released from liability if he proves that the commercial failure of the cargo or the violation of the delivery time occurred due to force majeure circumstances, that is, those that the carrier could not foresee and overcome. In relation to the contract of carriage, force majeure circumstances, as a rule, include fires, natural disasters, prohibition of export or import of transported goods, closure of state borders, border crossings, highways, banditry, all types of wars and destruction of goods by weapons of war, strikes, civil unrest, confiscation and liquidation actions of military and civil authorities, nuclear explosion and radiation contamination, as well as other circumstances beyond the reasonable control of the parties to the contract. In case of reference to force majeure, the carrier must submit an appropriate certificate from the Chamber of Commerce and Industry (CCI).

P.3. The carrier must always operate only a technically sound vehicle. In case of damage, deterioration, total or partial loss of cargo, as well as in case of violation of the terms of its delivery, the carrier cannot invoke the articles of the Convention that limit or exclude his liability, unless he proves that by the time the voyage began, the vehicle he was operating was in a technically sound condition .

P.4. Here is a list of specific risks, referring to which the carrier can be released from liability if he proves that at least one of these risks caused damage, damage or loss of cargo.

1. The right to choose a vehicle belongs to the sender. If he chose an open rolling stock, then he thereby exposes the cargo carried on it to natural hazards (precipitation, humidity, solar radiation, etc.). In the modern practice of international settlements under documentary letters of credit and collection, the presentation to the bank of a clean bill of lading for goods transported on an open vehicle is not a confirmation of the seller's fulfillment of his obligations under an international contract of sale, if such a method of delivery of goods was not agreed in advance between the seller, buyer and bank.

2. Lack of packaging for cargo, which, when transported without packaging, may be subject to damage or deterioration, should be qualified as improper actions of the consignor that do not ensure the safety of the cargo presented for transportation. The carrier may refer to defects in packaging that led to damage or damage to the goods, if these defects could not be detected during a visual inspection of the goods at the time of its acceptance for carriage.

3. The listed risks may be associated by the carrier with damage or deterioration of the cargo, attributing them to improper actions of the sender.

4. Those special natural properties of the cargo are listed, which the carrier can refer to, proving the absence of his fault in case of damage or damage to the cargo. Identification of special natural properties should be correlated with the delivery time of the cargo and the care of the cargo by the carrier in order to reduce the amount of damage. See the commentary to article 17, paragraph 2.

5. Insufficiency or insufficiency of marking or numbering of packages can be attributed to both actions and omissions of the consignor. It is very difficult for the carrier to invoke this limitation of his liability, since, in accordance with paragraph 1 of Article 8, he was obliged at the time of acceptance of the goods for carriage to check the marking and numbering of packages.

6. This refers to the death of animals for which the usual conditions of road transport are not natural for life and can cause death. The burden of proving the reasons for the death of animals lies with the carrier.

P.5. If the carrier cannot prove the complete absence of his fault and transfers only part of the damage to the sender or recipient, then the remaining part of the damage must be reimbursed by him.

Article 18

P.1. The a priori imperative fault of the carrier is declared for damage, damage or loss of cargo or delay in its delivery and the carrier's right to prove the opposite if he wishes to be released or limited in liability.

P.2. For the parties to the contract of carriage, there are four main principles of proving that the violation of carriage was not due to his fault.

First principle. The carrier is prima facie liable for loss of or damage to goods accepted for carriage in good condition but unloaded short or damaged. The evidence is rebuttable, that is, the carrier bears the burden of providing evidence rebutting the presumption.

Second principle. The parties are usually required to prove the circumstances of the case under consideration, information about which is available to them or could be available. The carrier bears the main burden of proof, since the goods were either in his direct possession or in the possession of his servants and agents. On the other hand, the sender knows how the goods were produced or assembled, what their special properties are, and how they were packaged. The sender controls the loading and has the burden of proving the condition of the goods at the time of loading. The recipient, accordingly, proves the condition of the cargo at the time of unloading.

Third principle. The burden of proof does not mean that all circumstances must be proven up to the point of absurdity, but rather the presentation of evidence within reasonable limits. Even the rebuttal of the presumption of liability requires nothing more than the presentation of some evidence to the contrary.

For example, the fact that 80% of the cargo was in good condition when unloaded is proof that all cargo was in good condition when loaded, as evidenced by the absence of clauses on the waybill when the cargo was received.

Fourth principle. The evidence of the side that hides the facts is questioned. As a rule, courts, as soon as concealment of facts, forgery or erasure of documents, etc., are discovered, cast doubt on the rest of the evidence.

According to the existing judicial and arbitration practice, the procedure for proving claims and claims, that is, claims for cargo, is almost identical in all countries of the world. An example proof procedure is as follows.

1. The plaintiff (sender or recipient) must consistently prove that:

1.1. Is the owner of the cargo and/or the person having the right to bring a claim.

1.2. The basis for filing a claim is a breach of contract or law.

1.3. The person who is being sued is the person responsible for the damage caused.

1.4. The loss or damage to the cargo occurred while it was at the disposal of the carrier. This is usually done by proving the condition of the goods at the time they were accepted by the carrier and their condition when unloaded.

1.5. The amount of loss or damage in physical terms (examination of the CCI).

1.6. The actual amount of loss or damage in monetary terms(examination of the CCI).

2. The carrier must prove:

2.1. The reason for the damage.

2.2. Showing due diligence to bring the vehicle into a technically sound condition by the time the flight starts.

2.3. The fact that he takes care of the cargo in order to reduce the amount of damage in the interests of the person entitled under the contract.

2.4. One of the causes of damage, exempting him from liability.

3. The parties present the circumstances and evidence relevant to the case and available to them.

P.3. The choice by the consignor of an open rolling stock for the transportation of cargo cannot be the only reason for the complete loss of one or more packages. To prove the absence of his fault, the carrier must refer to other related reasons, for example, incorrect packing and improper fastening of the cargo by the sender in the vehicle, force majeure, and more. See the commentary to article 17, paragraph 4.

P.4. The obligations of the carrier stipulated in the waybill and in the contract of carriage to use during transportation special equipment, the use of which prevents the manifestation of special natural properties of the cargo (corrosion, decay, shrinkage, etc.), deprive the carrier of the opportunity to invoke the exclusion or limitation of his liability, unless he proves that the type of such special equipment has been chosen or agreed upon with the sender, and that the equipment itself has been used and maintained properly.

P.5. In the event of the death of transported animals, the carrier will be released from liability only if he proves that he fully and exactly complied with all special instructions sender or recipient. The procedure for such proof is very complicated. Transportation of animals accompanied by a representative of the sender or recipient actually relieves the carrier of responsibility for the death of animals.

Article 19

The delivery time can be set in any way by the parties to the contract of carriage and indicated in the waybill. Usually, an agreed date is indicated, after which the contract provides for penalties to the carrier (usually, for each day of delay in delivery). See the commentary to subparagraph f) of paragraph 2 of Article 6.

The absence of an agreement between the parties on this issue, however, makes it possible to determine the deadline for the delivery of cargo for each specific flight. If the delivery time is not indicated on the consignment note, then in order to determine whether the carrier delivered the goods on time or not, it is necessary to establish what time should be recognized as reasonable for performing a specific transportation on a specific route in specific circumstances. For this, the shortest transportation distance, the daily mileage standard, the presence of queues at border crossings, the criminal situation on the delivery route, the repair and temporary closure of certain sections of roads, the waiting time for including a vehicle in a convoy, the impact of atmospheric phenomena on the condition of the road surface, etc. are taken into account. .

If the carrier, subject to the assumptions of the most adverse conditions, does not exceed the maximum time parameters for each phase of the route, then his actions will be recognized as reasonable. A bona fide carrier, in this context, should be considered one that can prove that he has made every effort to minimize the delivery time, fully following the instructions and instructions of the sender (recipient), observing international and national laws, procedures, rules and taking care of the cargo in interests of the person entitled under the contract.

Article 20

P.1. In order for the recipient not to miss the deadlines for filing a claim in full, that is, as for a completely lost (not delivered) cargo, he must know what specific delivery time is indicated on the invoice or when the cargo was accepted by the carrier. The recipient, in case of non-delivery of cargo to him, has the right to present claims to the carrier on the basis of paragraph 1 of Article 13 of the Convention and within the time limits specified by the parties to the contract or on the basis of the applicable law, if an agreement on this has not been established. The recipient must attach the first copy of the invoice to the claim. See commentary on article 30.

P.2. If the carrier paid compensation for the undelivered cargo as for completely lost, the recipient may reserve the right to dispose of it if the cargo is found within one year after the transfer by the carrier to the recipient Money for the cargo. An application confirming such a right must be accepted and recorded by the carrier, which imposes on him the obligation to notify the recipient of the found cargo.

P.3. The submission by the recipient to the carrier of an application for the possible return of the found cargo to him does not, however, impose on the first the obligation to accept the cargo, and does not require an explanation of the reasons for such a decision.

Having accepted the found cargo, the recipient must return to the carrier the amounts previously received from him. The recipient, as a rule, takes advantage of this opportunity when the contract of carriage stipulates significant penalties for each day of delay in delivery.

P.4. If the recipient has made the final decision to consider the cargo not delivered to him as completely lost, that is, he did not leave the carrier a statement about the possible return of the found cargo to him (See paragraph 2 of this article), and received an appropriate compensation for it, the carrier has the right to independently dispose of the subsequently found cargo.

Article 22

P.1. The procedure for concluding and executing the contract, as well as the regulation of the conditions for the carriage of dangerous goods in international road traffic are defined in the European Agreement on the International Carriage of Dangerous Goods by Road (ADR) of September 30, 1957, which entered into force on January 29, 1969.

If dangerous goods are transported on the basis of the terms of this Convention, then this imposes on the consignor additional responsibility for the completeness of the submission to the carrier of the documents and information reflected in the consignment note regarding the properties of the goods, the nature of the danger presented by it, the necessary precautions when handling such goods. To absolve itself of liability for damage, deterioration, total or partial loss of dangerous goods, it is enough for the carrier to prove the consignor's omissions when he provides instructions on the consignment note regarding the danger of the goods and the risks that may arise in the course of its international transportation.

P.2. Non-compliance by the consignor with the requirements of paragraph 1 of this article may lead to the destruction of the cargo with subsequent demands from the carrier to reimburse him for all expenses associated with the unloading of the dangerous cargo and its neutralization. In addition, the sender may be subject to claims for damages related to damage to the vehicle carrying the dangerous goods. Unless otherwise specified in the contract of carriage, the carrier may immediately bring a claim in the appropriate court or arbitration without going through the claim procedure for a preliminary dispute resolution.