EXPLANATIONS OF PRESIDIUM OF THE SUPREME ECONOMIC COURT OF UKRAINE

of May 29, 2002 No. 04-5/601

About some questions of practice of the dispute resolution which arise on transportation of goods by the railroad

List of amending documents

The relations connected with activities of transport, including railway are regulated by the Law of Ukraine "About transport", other acts of the legislation of Ukraine.

The main legal, economic and organizational basis of activities of rail transport public is determined by the Law of Ukraine "About rail transport".

The questions connected with the conclusion and agreement performance of transportation, including by rail are regulated by Articles 908-928 of the Civil code of Ukraine (further - the Civil Code of Ukraine), articles 306-315 of the Economic code of Ukraine (further - HK of Ukraine).

According to Articles 908 of Civil Code of Ukraine, 306 XK Ukraine general terms of transportation of goods are determined by these codes, other laws, transport codes (charters), other regulatory legal acts and rules which are published in accordance with the established procedure.

According to Articles 908 of Civil Code of Ukraine, 307 XK Ukraine conditions of transportation of goods by separate modes of transport, and also responsibility of the parties are determined by these transportations by transport codes, transport charters and other regulatory legal acts and rules.

The charter of the railroads of Ukraine (further - the Charter) according to article 3 of the Law of Ukraine "About rail transport", is approved by the resolution of the Cabinet of Ministers of Ukraine of 06.04.98 No. 457, with the subsequent changes and additions made by resolutions of the Cabinet of Ministers of Ukraine of 11.10.2002 No. 1510 and of 25.12.2002 No. 1973).

Article 5 of the Charter to the Ministry of transport of Ukraine (further Ministry of Transport of Ukraine, Mintranssvyaz of Ukraine) assigns approval of Rules of transportation of goods, Specifications of loading and fixture of loads, and also other regulating documents.

Before their approval in full in resolution of disputes the corresponding regulations of USSR in part which does not contradict the Charter, for example, Specifications of loading and fixture of loads (Ministry of Railways of the USSR, 1990) shall be applied according to the Resolution of the Verkhovna Rada of Ukraine of 12.09.91 "About procedure for temporary action in the territory of Ukraine of separate acts of the legislation of USSR".

Regulating documents which determine procedure and conditions of transportations, uses of rail media of safety to movement are obligatory for all legal entities and physical persons in the territory of Ukraine.

Therefore in resolution of disputes which arise on transportation of goods by the railroad economic courts need to be guided:

- The law of Ukraine "About transport";

- The law of Ukraine "About rail transport";

- Articles 908-928 of Civil Code of Ukraine, articles 306-315 HK of Ukraine;

- Charter;

- Rules of planning of transportation of goods; Rules of execution of carriage documents;

Rules of calculation of delivery dates of loads;

Instructions for use cars and containers; Storage precautions of loads; Rules of issue of loads;

Rules of pereadresovyvaniye of loads;

Rules of realization of loads;

Rules of calculations for transportation of goods;

Rules of servicing of railroad side tracks;

Rules of transportation of goods with declared value;

Rules of transportation of goods by pile and embankment;

Rules of transportation of goods in cars of open type;

Rules of transportation of goods which freeze together;

Rules of transportation of goods by the sender's routes;

Rules of transportation of goods accompanied by conductors of senders (receivers);

Rules of perishable traffics;

Rules of transportation of animals, bird and other loads which are subject to the state veterinary health control;

Rules of transportation of goods which are subject to phytosanitary control;

Rules of transportation of goods in transport packets;

Rules of transportation of goods in universal containers;

Rules of transportation of goods in special and specialized containers of senders and receivers;

Rules of transportation of goods by small departures;

Rules of transportation of goods by rail lines of narrow way; Rules of transportation of goods in the direct mixed railway water communication;

Rules of creation of acts;

The rules of the statement and consideration of claims approved by the order of Ministry of Transport of Ukraine of 21.11.2000 No. 644 (with subsequent changes and amendments), Rules of transportation of liquid cargoes (part two of Rules of the transportation of goods approved by the order of Ministry of Transport of 18.04.2003 No. 299);

Rules of registration and operation of own goods wagons approved by the order of Mintranssvyaz of Ukraine of 28.09.2004 No. 856;

- Collection of cargo rates railway transport of Ukraine

- Tariff management No. 1, the approved order of Ministry of Transport of Ukraine of 15.11.99 No. 551 (further - the Tariff management No. 1);

- The rules of transportation of dangerous goods approved 05.04.96 at the fifteenth meeting of Council of rail transport of gosudarstvuchastnik of the CIS;

- other regulating documents approved by Ministry of Transport (Mintranssvyaz) of Ukraine in accordance with the established procedure.

Transportation of goods in the international message is performed according to agreements on railway international services. Such agreements are, in particular, the Agreement on the international railway freight traffic (further - SMGS) which is valid from November 1, 1951, and the Convention on the international rail haulings (further - KOTIF) which Ukraine joined according to the Law of Ukraine of 05.06.2003 No. 943-IV, the Agreement on direct railway ferry connection Ilyichevsk - Varna and Ilyichevsk - Sweat/Batumi, ratified by the Verkhovna Rada of Ukraine 16.03.2000.

1. Planning and organization transportation of goods

1.1. According to Articles 914 of Civil Code of Ukraine, 307 XK Ukraine, article 8 of the Law of Ukraine "About rail transport" and article 17 of the Charter transportation of goods by railway transport are organized on contractual bases. The form of the agreement on the organization of transportation of goods and carrying out calculations for transportations and the services provided by the railroad are established by Rules of calculations for transportation of goods (appendix No. 1 to Item 2.3 of the called Rules). In the agreement amounts, terms and conditions of provision of vehicles, procedure of payments for transportations and additional services, and also responsibility for violation of obligations are determined.

This agreement does not replace the contract for transportations of specific load and its availability does not exempt the party from obligation to sign the agreement on operation of railroad side tracks or on giving and fence of cars in the cases provided by the Charter.

Availability of the agreement on the organization of transportation of goods does not exempt the consignor from obligation to provide plans and shipping requests of loads according to the procedure and in the terms provided by Rules of planning of transportation of goods.

As the Agreement on the international railway freight traffic (SMGS) and the Convention on the international rail haulings (KOTIF) do not regulate procedure for planning of transportation of goods, conditions of planning of transportations of inward and export cargoes and responsibility on these transportations are settled by instructions of the transport legislation of Ukraine - the Charter of the railroads and Rules of planning of transportation of goods.

By Item 2.1 of the called Rules it is determined that monthly planning of transportation of goods in borders of Ukraine, for export to the third countries and CIS countries, to the Republic of Latvia, the Republic of Lithuania and the Republic of Estonia is performed based on orders of senders according to the procedure, established by these Rules.

Section 3 of Rules of planning of transportation of goods establishes procedure for planning of transportations of export, inward and transit cargoes according to which senders of export loads provide to the railroads of departure the orders for transportation of goods which are drawn up according to Item 2.2 of these Rules.

According to part six of article 179 HK of Ukraine subjects of housekeeping which provide consumers with services of rail transport shall sign agreements with all consumers of their services therefore the conclusion of the agreement on the organization of transportations is obligatory for the railroad. Rules of transportation of goods provide compulsory provisions of such agreements.

1.2. Railroad relations with other companies concerning procedure and service conditions of railroad side tracks, giving and fence of cars according to article 21 of the Law of Ukraine "About rail transport" and article 71 of the Charter are determined by the agreement. The procedure for development and form of such agreements is established by Rules of servicing of railroad side tracks (appendices 1 and 2 to Item 2. 1). The procedure for accomplishment of transshipment transactions on sidings of sea (river) ports is determined by the agreement which is signed by the railroad with port for form which is also established by the called Rules (appendix 3 to Item 2. 1). Therefore, railroad relations with partners shall be determined by the Charter, Rules of transportations and the relevant agreements.

Considering instructions of articles 181 HK of Ukraine and 10 Economic Procedure Codes of Ukraine (further - HPK) disputes over occasion of disagreements which arise during the conclusion of the relevant agreements, can be transferred to the decision of economic court.

In use of the relevant standards the economic court should take into account instructions of article 22 of the Law of Ukraine "About rail transport" and article 10 of the Law of Ukraine "About natural monopolies", and also parts six of article 179 HK of Ukraine according to which the railroads, if technically possible, have no right to refuse to the companies the conclusion of the specified agreements. Therefore in the presence of such refusal the company is not deprived of the right to the appeal to economic court with the claim for obliging the railroad to sign the relevant agreement.

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