201812.03
Responsibility of the carrier under the agreements on international carriage of goods

In this article we will talk about the liability of the carrier in international carriage of goods by road. Carriage, including international, of goods, is carried out primarily on the basis of the Contract for the carriage of goods, provisions in Chapter 32 of the Commercial Code of Ukraine, the Rules of carriage of goods by road in Ukraine and the Convention on the Contract for the International Carriage of Goods by Road. The carriage of goods is carried out on the basis of the contract for carriage of goods, a bilateral agreement between the carrier, the sender or the consignee, that regulates the scope, terms and conditions of carriage of goods, the rights, duties and liability for non-compliance. Liability of the parties is an essential condition of the Contract.
The Contracts of this type set an unconditional liability for loss, shortage, damage of the goods, since the legal norms of national and international law clearly state that: “The carrier shall be liable for the loss, shortage or damage of goods accepted for hauling unless proofs are presented confirming that this loss, shortage or damage have been caused without any default on his/her part (Article 314 of the Commercial Code of Ukraine)”.
Taking into account that the carriage of goods is carried out in international traffic, the main legal act, that regulates these relations is the Convention on the Contract for the International Carriage of Goods by Road, 19.05.1956, that was acceded by Ukraine on August 1, 2006. The provisions of the International Convention supersede the provisions of national law.
Under Article 3 of the said Convention the carrier shall be responsible for the acts of omissions of his agents and servants and of any other persons of whose services he makes use for the performance of the carriage, when such agents, servants or other persons are acting within the scope of their employment, as if such acts or omissions were his own; pursuant to Art. 17 of the Convention the carrier shall be liable for the total or partial loss of the goods and for damage thereto occurring between the time when he takes over the goods and the time of delivery, as well as for any delay in delivery; clause 2 of the same article states: “The carrier shall, however, be relieved of liability if the loss, damage or delay was caused by the wrongful act or neglect of the claimant, by the instructions of the claimant given otherwise than as the result of a wrongful act or neglect on the part of the carrier, by inherent vice of the goods or through circumstances which the carrier could not avoid and the consequences of which he was unable to prevent.”; Art. 18 of the Convention: “The burden of proving that loss, damage or delay was due to one of the specified in article 17, paragraph 2, shall rest upon the carrier.”
Thus, the general condition of the carrier’s liability for loss, deficiency or damage of the goods is the fault, the presence of which is presumed.
In this respect, the decision of the Supreme Commercial Court of Ukraine dated January 11, 2011 in case No. 20/81 is interesting, stating that – the current legislation stipulates along with the presumption of the carrier’s fault, the presumption of absence of the carrier’s fault. The essence of the presumption of absence of the carrier’s fault is that the carrier is liable for the non-preservation of the goods, if the claimant claims that the loss, shortage or damage of the goods resulted from the fault of the carrier. That is, the carrier is considered innocent until proved guilty by the sender or consignee.
The presumption of absence of the fault of the carrier by road takes place in cases when: a) the goods arrived in a roadworthy car (container) with the proper seals of the sender, and piece goods – with a proper protective marking, packer, seal of the sender or the manufacturer; b) shortage or damage occurred due to natural causes associated with the carriage of goods in an open rolling stock; c) the goods were transported with the assistance of the forwarder of the sender (consignee); d) the shortage of goods does not exceed the norm of losses natural causes.
The carrier is liable for the loss, shortage or damage of the goods taken over in the amount of actual damage. That is, the carrier is not obliged to reimburse the revenues that the consignee or the sender could actually receive under normal circumstances, if their rights were not violated (lost profits).
Thus, in the event of a dispute regarding loss / damage / lack of cargo, it is mandatory to establish the existence of the carrier’s fault. At the same time, for the application of such a measure of liability as indemnity, the presence of all elements of civil offense is required, such as: – unlawful conduct, action or inaction of the person; – harmful result of such behavior (losses); – causal connection between unlawful conduct and losses; – the fault of the offender. In the absence of at least one of the identified elements, civil liability does not occur.
That is, the burden of proof of the circumstances, referred to as grounds for claims and objections, lies on the party to contract for carriage of goods. The claimant has the right to prove that the loss or damage was not in fact connected, in whole or in part, with one of the risks referred to in Clause 17 Article 4 of the Convention on the Contract for the International Carriage of Goods by Road.

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