TRANSPORT AND LOGISTICS

Under a contract of carriage of goods the carrier undertakes to deliver the goods entrusted to it by the consignor to the destination and hand them over to the consignee, and the consignor undertakes to pay the carriage charge. Under a freight forwarding contract the forwarder, for a fee and at the client's expense, performs or arranges services connected with carriage, including concluding a contract of carriage in the client's name or in its own name. The practical difference: the carrier answers for the goods themselves, the forwarder for the arrangements. But if the forwarder proves that the breach was caused by improper performance of the contract of carriage, its liability to the client is determined by the same rules under which the carrier is liable to it.

Legal basisPara. 1 of Art. 689, para. 1 of Art. 708 and para. 2 of Art. 713 of the Civil Code of the RK (Special Part)

A contract of carriage of goods is documented by a transport waybill, a bill of lading, a goods and transport waybill or another document for the goods provided for by the legislative acts on transport. In road carriage the contract is evidenced by a goods and transport waybill in paper or electronic form. A freight forwarding contract is made in writing, and the client issues the forwarder a power of attorney where one is needed for it to perform its duties.

Legal basisPara. 2 of Art. 689 and Art. 709 of the Civil Code of the RK; para. 2 of Art. 30 of the Law of the RK on Road Transport

The carrier ensures the safety of the goods from the moment it accepts them for carriage until they are handed over to the consignee or a person authorised by the consignee. Throughout that period it is liable for loss, shortage or damage unless it proves that these occurred through no fault of its own. In other words the carrier's fault is presumed: it is for the carrier, not the cargo owner, to prove the absence of fault.

Legal basisParas. 1 and 2 of Art. 705 of the Civil Code of the RK; paras. 1 and 2 of Art. 51 of the Law of the RK on Road Transport

For loss or shortage the value of the goods lost or missing is compensated; for damage, the amount by which their value has fallen and, where the goods cannot be restored, their full value. If the goods were handed over with a declared value, compensation equals the declared value. The value is determined by the price stated in the seller's invoice or in the contract and, failing that, by the price usually charged in comparable circumstances for similar goods. In addition to the compensation the carrier refunds the carriage charge for the lost goods where it is not included in their value.

Legal basisPara. 3 of Art. 705 of the Civil Code of the RK; paras. 3 and 4 of Art. 51 of the Law of the RK on Road Transport

No. Agreements between transport organisations and passengers, consignors or consignees limiting or excluding the liability established by legislative acts are void. The only exception is where the possibility of such agreements in the carriage of goods is expressly provided for by the legislative acts on transport.

Legal basisPara. 2 of Art. 701 of the Civil Code of the RK

For breaching the delivery deadline the carrier pays the consignor or consignee a penalty of five per cent of the carriage charge for each twenty-four hours of delay, but no more than fifty per cent of the carriage charge. No penalty is payable if the carrier proves that the delay occurred through no fault of its own.

Legal basisArt. 52 of the Law of the RK on Road Transport

The carrier must deliver the goods to the destination within the period fixed by the legislative acts on transport and the rules of carriage adopted under them. Where no delivery period is fixed and the parties have not agreed one in the contract, delivery must be made within a reasonable time.

Legal basisArt. 698 of the Civil Code of the RK

For the detention of vehicles supplied for loading or unloading beyond the agreed times, the consignor or consignee, where the delay is their fault, pays the carrier the penalty provided for in the contract. If the parties have not agreed a penalty, the law sets one for each hour of detention as a percentage of the monthly calculation index, graded by carrying capacity: up to and including four tonnes — twelve per cent; over four and up to seven tonnes — thirteen per cent; over seven and up to ten tonnes — fourteen per cent, and so on up the scale.

Legal basisPara. 1 of Art. 46 of the Law of the RK on Road Transport

For failing to supply vehicles in the number provided for by the contract the carrier pays the consignor or consignee a penalty of ten monthly calculation indices for each instance of failure, unless the parties have agreed otherwise. Where the use of vehicles is paid for at a time-based tariff, the penalty is forty per cent of the cost of use based on the time stated in the contract.

Legal basisParas. 1 and 2 of Art. 48 of the Law of the RK on Road Transport

Yes. The carrier must supply for loading serviceable vehicles in a condition fit for carrying the goods concerned, within the period set by the accepted order or the contract. The consignor may refuse vehicles supplied that are unfit for carrying those goods.

Legal basisPara. 1 of Art. 696 of the Civil Code of the RK

Yes. Before bringing a claim against a carrier arising out of the carriage of goods, a claim must first be submitted to it in the manner provided for by the legislative acts. The rule applies only to the carriage of goods — it does not extend to claims arising out of the carriage of passengers and baggage.

Legal basisParas. 1 and 3 of Art. 706 of the Civil Code of the RK

The limitation period for claims arising out of the carriage of goods is one year. This is a special shortened period: the general three-year period does not apply here. The rule does not extend to claims arising out of the carriage of passengers and baggage.

Legal basisParas. 2 and 3 of Art. 706 of the Civil Code of the RK

A forwarder may retain the goods only in connection with non-payment of the fee due to it for the forwarding services. The law gives the forwarder no other grounds for retention, so retaining goods against other debts of the client is unlawful.

Legal basisArt. 712 of the Civil Code of the RK

Either the client or the forwarder may withdraw from a freight forwarding contract on giving the other party reasonable notice. Where a party withdraws unilaterally, it compensates the other party for the losses caused by the termination.

Legal basisArt. 714 of the Civil Code of the RK

The Convention on the Contract for the International Carriage of Goods by Road applies to international road carriage where the place of taking over the goods and the place designated for delivery are in different countries, at least one of which is a party to the Convention. It lays down its own rules on the carrier's liability, limits of compensation, complaint deadlines and limitation periods, which in such carriage displace the general rules of national law.

Legal basisArt. 1 of the CMR Convention

The carrier is liable for the total or partial loss of the goods and for damage occurring between the time it takes over the goods and the time of delivery, and for delay in delivery. It is relieved of liability where the loss, damage or delay was caused by the wrongful act or neglect of the claimant, by instructions of the claimant given otherwise than as a result of a wrongful act or neglect by the carrier, by inherent vice of the goods, or by circumstances which the carrier could not avoid and the consequences of which it was unable to prevent. An important rule: the carrier may not rely on defects of the vehicle it uses, nor on the wrongful act or neglect of the person from whom it hired the vehicle or of that person's agents.

Legal basisParas. 1, 2 and 3 of Art. 17 of the CMR Convention

Compensation is calculated by reference to the value of the goods at the place and time at which they were accepted for carriage, based on the commodity exchange price or, failing that, the current market price or the normal value of goods of the same kind and quality. Compensation may not, however, exceed twenty-five francs per kilogram of gross weight short; a franc, as defined in the Convention itself, means a gold franc weighing ten thirty-first of a gramme of gold of millesimal fineness nine hundred. In addition, the carriage charges, customs duties and other charges incurred in respect of the carriage are refunded; no further damages are payable.

Legal basisParas. 1, 2, 3 and 4 of Art. 23 of the CMR Convention

In case of delay in delivery the carrier must pay compensation only if the claimant proves that damage resulted from the delay. The compensation may not exceed the carriage charges. In addition, delay gives rise to compensation only if a written reservation was sent to the carrier within twenty-one days from the time the goods were placed at the consignee's disposal.

Legal basisPara. 5 of Art. 23 and para. 3 of Art. 30 of the CMR Convention

Where the consignee has taken delivery without checking the condition of the goods in the carrier's presence, strict deadlines for reservations apply. For apparent loss or damage the reservation must be made no later than the time of taking delivery. For loss or damage not apparent from the outside, within seven days of delivery, excluding Sundays and other public holidays, and in writing. If no reservation is made, a presumption applies that the goods were received in the condition described in the consignment note until the contrary is proved.

Legal basisParas. 1 and 2 of Art. 30 of the CMR Convention

The right of action is time-barred after one year. In the case of wilful misconduct or equivalent default the period is three years. Time runs: for partial loss, damage or delay, from the date of delivery; for total loss, from the thirtieth day after the expiry of the agreed time limit or, where none was agreed, from the sixtieth day after the carrier took over the goods; in all other cases, on the expiry of three months from the conclusion of the contract. A written claim suspends the running of time until the day the carrier rejects it in writing and returns the documents attached to it.

Legal basisParas. 1 and 2 of Art. 32 of the CMR Convention

The consignment note is, unless the contrary is proved, evidence of the terms of the contract and of the carrier's taking over of the goods. Absent reasoned reservations by the carrier in the note, it is presumed that the goods and their packaging appeared to be in good condition when the carrier took them over and that the number of packages, their marks and numbers corresponded with the statements in the note. Reservations recorded on acceptance are therefore the carrier's main safeguard.

Legal basisParas. 1 and 2 of Art. 9 of the CMR Convention

The note states the place and date of its making; the name and address of the sender; the name and address of the carrier; the place and date of taking over the goods and the place designated for delivery; the name and address of the consignee; the description of the nature of the goods and the method of packing and, for dangerous goods, their generally recognised description; the number of packages, their special marks and numbers; the gross weight or quantity otherwise expressed; the charges relating to the carriage; the instructions required for customs formalities; and a statement that the carriage is subject to the Convention. Where necessary it also includes a prohibition on transhipment, the declared value of the goods and instructions as to insurance.

Legal basisParas. 1 and 2 of Art. 6 of the CMR Convention

The sender is liable to the carrier for damage to persons, equipment or other goods, and for any expenses due to defective packing of the goods, unless the defect was apparent or known to the carrier at the time it took over the goods and it made no reservations concerning it. The sender must also attach to the consignment note the documents required and supply the information needed for customs formalities; checking their accuracy and adequacy is not the carrier's duty, and the sender is liable for damage resulting from their absence, inadequacy or irregularity.

Legal basisArt. 10 and paras. 1 and 2 of Art. 11 of the CMR Convention

The right to make a claim belongs to the consignor and the consignee; assignment of the right of claim is not permitted. A claim is made with supporting reasons and a statement of the amount sought, on paper or, where the participants in the carriage have so agreed, electronically. The consignor makes the claim to the contracting carrier, and the consignee to the carrier that delivered the goods.

Legal basis§§ 1 and 2 of Art. 46 of SMGS

An action may be brought only after a claim has been made and only against the carrier to which it was made. The right to make a claim and to bring an action arises: for compensation for shortage, damage and for exceeding the delivery period — from the day the goods are delivered to the consignee; for compensation for loss of the goods — on the expiry of thirty days after the delivery period ends; for the refund of overcharged carriage payments — from the day they were paid; on other grounds — from the day the circumstances giving rise to the claim occurred.

Legal basis§§ 1 and 2 of Art. 47 of SMGS

Actions against the carrier must be brought: for exceeding the delivery period — within two months; on all other grounds — within nine months. Time runs from the moment the right of action arises, and the first day is not counted. A claim drawn up in accordance with SMGS suspends the running of these periods.

Legal basis§§ 1, 2 and 3 of Art. 48 of SMGS

The carrier is liable for damage in the event of destruction, loss or damage to cargo only on condition that the event took place during the carriage by air. It is not liable if it proves that the damage resulted from an inherent defect, quality or vice of the cargo; defective packing performed by someone other than the carrier, its servants or agents; an act of war or armed conflict; or an act of public authority carried out in connection with the entry, exit or transit of the cargo. Carriage by air covers the period during which the cargo is in the carrier's charge.

Legal basisParas. 1, 2 and 3 of Art. 18 of the Montreal Convention

In the carriage of cargo the carrier's liability for destruction, loss, damage or delay is limited to seventeen special drawing rights per kilogram. The exception is where the consignor has made, at the time the package was handed over, a special declaration of interest in delivery and paid a supplementary sum if required: the carrier then pays a sum not exceeding the declared sum. Where part of the cargo is affected, only the total weight of the package or packages concerned is taken into account in determining the limit.

Legal basisParas. 3 and 4 of Art. 22 of the Montreal Convention

Receipt of the cargo by the consignee without complaint is prima facie evidence that it was delivered in good condition and in accordance with the document of carriage. In the case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage and no later than fourteen days from the date of receipt of the cargo, and in the case of delay no later than twenty-one days from the date the cargo was placed at their disposal. Every complaint must be made in writing.

Legal basisParas. 1, 2 and 3 of Art. 31 of the Montreal Convention

An action for damages must be brought, on pain of losing the right of action, within two years from the date of arrival at the destination, from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped. The method of calculating that period is determined by the law of the court seised of the case.

Legal basisArt. 35 of the Montreal Convention

For road carriage, the CMR Convention applies to every contract for the carriage of goods by road for reward where the place of taking over the goods and the place designated for delivery, as specified in the contract, are in two different countries, of which at least one is a party to the Convention. Its application does not depend on the parties' place of residence or nationality. For air carriage, the Montreal Convention applies to all international carriage for reward: carriage is international where the place of departure and the place of destination are in the territories of two States Parties, or in the territory of a single State Party if there is an agreed stopping place in another State — even one that is not a party to the Convention. A break in the carriage or a transhipment does not affect this.

Legal basisArt. 1 of the CMR Convention; paras. 1 and 2 of Art. 1 of the Montreal Convention

The law does not impose tracking on the forwarder as a separate duty — it arises only if the parties have written it into the contract. A freight forwarding contract may provide, as additional services, for checking the quantity and condition of the goods, loading and unloading them, storing them and other operations needed for delivery. The forwarder must tell the client of any defects it finds in the information received and, where that information is incomplete, request further details; until the information is provided it may decline to begin performance. Engaging third parties does not relieve the forwarder of liability to the client for performance of the contract. The practical conclusion: quality control and tracking must be written into the contract expressly, otherwise there is no basis on which to demand them.

Legal basisPara. 1 of Art. 708, paras. 2 and 3 of Art. 710 and para. 2 of Art. 711 of the Civil Code of the RK

The carrier is liable for damage to cargo only on condition that the event causing it took place during the carriage by air. Carriage by air covers the period during which the cargo is in the carrier's charge — so it begins not on take-off but from the moment the cargo is taken into the carrier's charge, including on the ground. Carriage by air does not extend to carriage by land, by sea or by inland waterway performed outside an airport. However, where such carriage is performed in the execution of a contract for carriage by air for the purpose of loading, delivery or transhipment, any damage is presumed, subject to proof to the contrary, to have resulted from an event that took place during the carriage by air. If the carrier, without the consignor's consent, substitutes another mode of transport for carriage by air, that carriage is deemed to be within the period of carriage by air.

Legal basisParas. 1, 3 and 4 of Art. 18 of the Montreal Convention

For the carriage of goods under customs seals and stamps, vehicles of international carriage must be constructed and equipped so as to meet the established requirements: to make access to the cargo compartments impossible without breaking the seals and stamps and without leaving visible traces. A vehicle's compliance with those requirements is confirmed by approval from the customs authorities. Note separately that the rules on the use of electronic navigation seals for carriage within the Eurasian Economic Union are laid down by a separate international agreement and the acts adopted under it, which are not among the documents used here, so that question requires verification against the current wording of that agreement.

Legal basisCode of the RK on Customs Regulation (provisions on the approval of vehicles for carriage under customs seals and stamps)