RESOLUTION OF THE PLENUM OF SUPREME ECONOMIC COURT OF THE REPUBLIC OF BELARUS

of April 26, 2005 No. 13

About single questions of practice of consideration of the disputes following from transportation agreements of loads

For the purpose of forming of uniform practice by economic courts of the Republic of Belarus (further - economic courts) on the disputes following from transportation agreements of loads and forwarding activities and also for the purpose of uniform application of the legislation regulating the specified legal relationship, the Plenum of Supreme Economic Court of the Republic of Belarus, being guided by articles 14-16 of the Law of the Republic of Belarus of December 9, 1998 "About economic courts in the Republic of Belarus" (Vedamastsi Natsyyanalnaga to descent of Respubliki Belarus, 1999, No. 2, the Art. 32),

DECIDES:

1. By hearing of cases on the disputes arising from transportation of goods, economic courts it is necessary to be guided by regulations of the international treaties ratified by the Republic of Belarus, Chapters 40 and 41 of the Civil code of the Republic of Belarus (further - group of companies), the Law of the Republic of Belarus of May 5, 1998 "About bases of transport activities" (Vedamastsi Natsyyanalnaga to descent of Respubliki Belarus, 1998, No. 20, the Art. 221), the Law of the Republic of Belarus of June 6, 2001 "About transportation of dangerous goods" (The national register of legal acts of the Republic of Belarus, 2001, No. 56, 2/775), the Law of the Republic of Belarus of July 21, 2001 "About road transport and motor transportations" (The national register of legal acts of the Republic of Belarus, 2001, No. 71, 2/793; 2002, No. 87, 2/883) (further - the Law), the Law of the Republic of Belarus of January 6, 1999 "About rail transport" (Vedamastsi Natsyyanalnaga to descent of Respubliki Belarus, 1999, Art. No. 5-6, 96), the Charter of rail transport public approved by the resolution of Council of Ministers of the Republic of Belarus of August 2, 1999 No. 1196 "About approval of the Charter of rail transport public" (The national register of legal acts of the Republic of Belarus, 1999, No. 67, 5/1506; 2002, No. 82, 5/10802) (further - the Charter), the Law of the Republic of Belarus of July 17, 2002 "About traffic" (The national register of legal acts of the Republic of Belarus, 2002, No. 85, 2/881), the Code of inland water transport of the Republic of Belarus (The national register of legal acts of the Republic of Belarus, 2002, No. 76, 2/867), the Air code of the Republic of Belarus (The national register of legal acts of the Republic of Belarus, 1999, No. 5, 2/15), the Maritime Code of the Republic of Belarus (The national register of legal acts of the Republic of Belarus, 1999, No. 90, 2/96), the Rules of motor transportations of loads approved by the resolution of the Ministry of Transport and Communications of the Republic of Belarus of July 1, 2002 No. 20 "About approval of Rules of motor transportations of loads" (The national register of legal acts of the Republic of Belarus, 2002, No. 102, 8/8480) (further - Rules), Aviation rules of transportation of passengers and baggage by the airlines of the Republic of Belarus approved by the resolution of the State committee on aircraft of the Republic of Belarus of November 27, 2000 No. 13 (The national register of legal acts of the Republic of Belarus, 2001, No. 8, 8/4542), the Rules of forwarding activities in the Republic of Belarus approved by the resolution of the Cabinet of Ministers of the Republic of Belarus of February 9, 1996 No. 86 "About approval of Rules of forwarding activities in the Republic of Belarus" (Collection of presidential decrees and resolutions of the Cabinet of Ministers of the Republic of Belarus, 1996, No. 5, Art. 115; National register of legal acts of the Republic of Belarus, 1999, No. 16, 5/312), and other acts of the legislation.

Economic courts need to mean that so far in the Republic of Belarus new rules of transportation of goods by railway transport and specifications of loading and fixture of loads therefore when implementing rail haulings the Rules of transportation of goods approved by the Ministry of Railways of the USSR in the part which is not contradicting the Civil Code and the Charter are effective are not accepted.

2. In case of application of the specified regulatory legal acts courts need to be guided by the terms and determinations, and also their action containing in them around of persons.

In particular, in Item 7 of Rules the term "customer" is understood as the consignor, the consignee, the operator of motor transportation (further - the freight forwarder).

The concept "operator of motor transportation" contains in article 1 of the Law according to which operator of motor transportation is the legal entity or the individual entrepreneur signing on its own behalf or on behalf of the customer of passenger or freight transportation agreements of motor transportations of loads, agreements on the organization of motor transportations, agreements of chartering and other agreements based on which transportation of goods is carried out.

3. In Item 3 of Rules types of transport to which action of Rules does not extend are established.

Are among such transportations:

transportations by vehicles of special purpose;

the motor transportations of loads which are carried out for the purpose of ensuring defense capability of law and order and liquidation of emergency situations;

the motor technological intraeconomic transportations which are carried out by legal entities and individual entrepreneurs for own needs;

the motor transportations which are carried out by citizens for personal needs using the vehicles belonging to them on the right of private property.

4. Economic courts should pay attention that if the consignor or the consignee at the same time is also carrier, then there is no transportation agreement (Article 739 of group of companies). In such cases acceptance of load by quantity and quality is made according to Regulations on goods acceptance by the quantity and quality approved by the resolution of the Cabinet of Ministers of the Republic of Belarus of April 26, 1996 No. 285 "About approval of the Regulations on goods acceptance by quantity and quality" (The bulletin of Supreme Economic Court of the Republic of Belarus, 1996, No. 5).

5. In case of permission of question of adoption of the action for declaration to consideration economic courts shall proceed from the requirements containing in Item 1 of Article 751 of group of companies owing to which before presentation to carrier of the claim following from cargo hauling presentation of the claim to it according to the procedure, stipulated by the legislation is obligatory. Therefore if proofs of the direction of the claim to carrier, then the action for declaration according to Article 162 of the Economic Procedure Code of the Republic of Belarus are not attached to materials of the action for declaration (further - HPK) is left without movement.

Economic courts need to consider that the Convention on the agreement of international delivery of loads (Geneva, on May 19, 1956) (further - KDPG) does not provide obligatory procedure for presentation of the claim to carrier. Such claims shall be taken cognizance without observance of pre-judicial claim procedure for dispute settlement.

Economic courts shall consider that article 6 HPK for the purpose of protection of the state and public concerns, interests of persons specified in part one of this Article the prosecutor, state bodies, local authorities and self-government and other bodies in the cases provided by legal acts without observance of pre-judicial (claim) procedure for dispute settlement have the right to the appeal to economic court.

Economic courts need to mean also that Item 1 of Article 751 of group of companies contains referential regulation only to procedure for presentation of the claim to carrier, stipulated by the legislation, but not to terms of its presentation.

Thus, presentation of the claim after the term established by the Charter or Rules is not obstacle to adoption of the action for declaration by economic court to consideration on the merits.

6. The procedure for presentation and terms of consideration of claims to carrier are settled respectively by Items 137-142 of the Charter and Items 122-130 of Rules.

Under agreements of international delivery of loads the procedure for presentation of claims is regulated by article 30 KDPG and Item 375 of Rules owing to which if in case of acceptance of load from carrier the receiver has claims concerning obviously expressed spoil, damage or cargo shortage, then he shall make immediately about it the corresponding clause in commodity-transport superimposed "CMR" (delivery note).

If shortage, spoil or cargo damage had losses imperceptible external or damages and were found by the consignee after acceptance of load from carrier, then the receiver having the right no later than 7 days from the date of acceptance of load excepting days off and holidays to make written complaint to carrier. In that case it is considered that the consignee received load not in such condition in which it was described in commodity-transport delivery note.

7. The term of limitation period according to the requirements following from the transportation agreement of load is established by Item 3 of Article 751 of group of companies in one year since the moment determined according to the legislation. This term of limitation period is applied both in claims to carrier, and in claims of carrier for the legal relationship following from the transportation agreement of loads. Therefore in case of calculation of initial stage of current of term of limitation period courts shall be guided by the paragraph 2 Items 144 of the Charter by which it is determined that claims are submitted to the relevant court in the location of the Belarusian railroad to which complaint, within one year from the date of approach of the event which formed the basis for presentation of the claim was made.

In case of motor transportations of loads according to Item 133 of Rules the term of limitation period is established in one year from the moment of receipt of the answer to the made complaint or non receipt from carrier of the answer within thirty days as it is stipulated in Item 132 Rules.

In case of calculation of term of limitation period according to the requirements following from transportation agreements to which action of KDPG extends economic courts shall be guided by Item 1 of article 32 KDPG which establishes year of limitation period. However in case of intentional wrongful acts or such improper execution of obligations which according to the law applied by the economic court considering case is equated to intentional wrongful acts - it is established in three years. The current of term of limitation period begins:

in case of partial loss of load, its damage or delay in delivery - from the date of delivery of load;

in case of loss of all load - from the thirtieth day after agreed time frame of delivery or if that was not approved, from the sixtieth day after acceptance of load by carrier to transportation;

in all other cases - after three-months term from the date of the conclusion of the transportation agreement.

Availability or lack of intentional wrongful acts in such cases is established by the economic court considering specific case.

8. Economic courts need also to mean that Item 2 of article 32 KDPG the fact of presentation of the claim (claim) in writing stops current of term of limitation period till that day when the carrier in writing rejected the claim and returned the documents attached to it.

However, considering that the term of consideration of the claim by carrier is not established by the Convention KDPG, in case of its calculation and respectively prolongation of term of limitation period it is necessary to be guided by the legislation of the Republic of Belarus regulating the matters as it is stipulated in Item 3 articles 32 KDPG.

9. Consignors, consignees and carrier bear responsibility according to the current legislation or the agreement for non-execution or improper execution of agreement obligations of transportation.

Agreements of agreement parties of transportation on restriction or elimination of the responsibility established by the legislation of the Republic of Belarus are invalid, except cases when the possibility of such agreement is stipulated by the legislation the Republic of Belarus.

10. The possibility of establishment by the parties of contractual responsibility is provided by Articles 747, of 748 groups of companies and Chapters 46-48 of Rules.

In transit loads contractual responsibility is not provided by railway transport public, except for the particular cases specified in Item 66 of the Charter.

11. The amount of transportation payment and responsibility of carrier for not giving or untimely giving of road transport for loading, for idle time of the vehicle under loading or unloading over the established time regulations, and also for idle time of the vehicle in the parking lot or transit, arisen because of the consignor (consignee), and in other cases is not settled by KDPG. With respect thereto the parties in the agreement of motor transportation have the right to establish their size.

By Item 2 of article 27 KDPG it is determined that when the data serving for charge of the amount which is subject to compensation are not expressed in currency of the state in which requirement about compensation is imposed, recalculation in this currency is made at current rate of day and month of payment of compensation. Thus, in case of international carriages of loads of the party in the transportation agreement has the right to establish responsibility in the form of penalty (penalties, penalty fee) in foreign currency as it is stipulated in Item the 26th resolutions of National Bank of the Republic of Belarus of April 30, 2004 No. 72 "About approval of Rules of carrying out currency transactions" (in edition of the resolution of December 27, 2004 No. 190).

12. Delivery of load to the receiver in destination is made in the same order in what the load was accepted from the consignor, - in the number of places, weight or amount.

In case of detection of damage of container or packaging, and also under other circumstances influencing safety of load, the receiver has the right to demand from the driver of opening of container or packaging in case of delivery of load.

13. Circumstances which can form the basis for property responsibility in case of motor transportations of loads are established by records (marks) in commodity-transport delivery notes, and in case of disagreements between agreement parties - acts of the established form according to appendices 5 and 8 to Rules.

As a rule, the driver shall have forms of acts. However if the driver refuses to issue to the customer the net form of the act, then it does not deprive of it the right to draw up the statement of any form, but with indication of the necessary data provided in the approved form of the form of the act.

14. In case of rail hauling - it is established by the commercial act or the act of general form constituted by railway stations.

In case of refusal the station commander or person replacing it in creation of the commercial act or registration it with abuse of regulations the consignee has the right before cargo exportation from the station, and when unloading on places of uncommon use - within 24 hours from the moment of check of load to submit about it the written application to the chief of department of the road directly or through the station commander. In case of filing of application through the station commander the receipt in acceptance of the claim with indication of the enclosed documents is issued to the consignee.

The chief of department of the road shall give the motivated answer to the arrived claim within a day on perishable loads and no later than three-day term on receipt of the statement in other cases.

15. By consideration of disputes on responsibility of transport organizations for failure to carry out or inadequate agreement performance on transportation of goods, including in case of loss, shortages or cargo damages, economic courts shall analyze and give proper assessment of observance by the parties in the transportation agreement of load of acceptance procedures of load existing on transport from the consignor, rules of issue of load to the receiver. Rules of transportation of goods by both automobile, and railway transport establish features of both transportation of separate types of loads, and their preparation for transportation, weighing, packaging, marking and issue to the consignee.

16. Economic courts should consider that the procedure for determination and application of cargo rates is stipulated in Clause 18 Laws and Item 7 of the Charter.

Declare invalid:

the resolution of the Plenum of Supreme Economic Court of the Republic of Belarus of November 21, 2002 No. 16 "About single questions of practice of consideration of the disputes following from transportation agreements of loads" (The national register of legal acts of the Republic of Belarus, 2003, No. 5, 6/351).

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