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The Convention on the Agreement on the International Carriage of Goods by Road dated 19.05.1956, which entered into force for Ukraine on 17.05.2007 (hereinafter – the Convention) is an international agreement ratified by Ukraine and designed to regulate relations that arise in the process of moving goods by road transport, when the place of acceptance of the cargo for transportation and the place are specified in the contract, intended for delivery are located in two different countries, at least one of which is a contracting country. The Convention defines the standard conditions of the contract of international carriage of goods by road, in particular, the documents that are used in this case, the procedure for their provision by the responsible party. This contract defines the rights and obligations of the participants of transportation, which are the sender, the carrier and the recipient.
Pursuant to the provisions of Article 19 of the Law of Ukraine “On International Treaties of Ukraine” and Article 11 of the Economic Procedure Code of Ukraine, international agreements, the binding consent of which has been given by the Verkhovna Rada of Ukraine, are part of national legislation and are subject to preferential application over domestic law.< /p>
According to Art. 4 – 6 of the Convention, the contract of carriage is confirmed by drawing up a waybill (CMR) in three original copies, signed by the sender and the carrier. The CMR must contain all essential data regarding the transportation, such as information about the parties to the transportation, information about the cargo, features of its packaging, transportation, and the need for insurance. The waybill includes information about payments related to transportation (freight charges, additional payments, customs duties, as well as other payments charged from the moment of conclusion of the contract to the delivery of the cargo). In the event that the cargo requires additional instructions for customs formalities, the CMR must include relevant instructions. The waybill may contain other information or statements (instructions) of the parties for the proper execution of cargo transportation.
Article 8 of the Convention defines the main duties of the carrier, which include checking the accuracy of the entries made in the CMR regarding the number of cargo spaces, as well as their marking and numbering of spaces; checking the external condition of the cargo and its packaging. In the event that the carrier did not have the opportunity to carry out the appropriate inspection, he is obliged to make a corresponding note in the waybill to this effect. If the carrier has reasonable reservations during the inspection, he notes this in the bill of lading.
The carrier should approach the implementation of the above rights and obligations carefully and conscientiously. Because, as judicial practice shows, ignoring them leads to the carrier being held liable in cases where this could have been avoided by paying special attention to checking the cargo and stating its reservations about it. For example, in case No. 907/746/17, the Supreme Court twice issued resolutions on 13.08.2018 and 21.02.2020, by which the case was returned for a new consideration. In the end, by the decision of the local commercial court, damages were collected from the carrier for the partial loss of the cargo, which occurred due to the carrier’s failure to take actions to prevent circumstances that could cause damage to the cargo, failure to take all possible measures to properly carry out the transportation.
For example, if the packaging of the cargo was damaged during loading, but the waybill does not contain a note from the carrier, then the latter will be responsible for compensating the cost of the lost (damaged) cargo upon its receipt.
According to Article 11 of the Convention, the consignor is obliged to provide documents and information to the carrier for the purposes of customs and other formalities, which must be completed before the delivery of the cargo. The carrier is not obliged to verify the accuracy and adequacy of these documents and information. In the event of a stoppage in transportation due to insufficient documents for customs procedures, the sender will be responsible to the carrier for any damages caused by this circumstance, with the exception of cases of illegal actions or negligence of the carrier.
Recovery of damages and fees for road transport due to insufficient documents for the performance of certain stages in transportation from the point of departure
Lawyer Oleksii Fedkov specializes in systemic legal protection of businesses and citizens taking into account all internal and external risks, offers clients the most effective way of protection and guarantees legal assistance at the highest level.
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