Debt collection under carriage and transport expedition contracts
Legal services (legal assistance) for representation in court for the collection of debts under contracts for transportation and transport expedition
In case of non-fulfillment or improper fulfillment of transportation obligations, the parties shall bear liability established by the Civil Code of the Russian Federation, transport charters and other laws, as well as by agreement of the parties.
The norms of the Civil Code of the Russian Federation establish that the carrier is liable for the failure to preserve the cargo or baggage that occurred after it was accepted for transportation and before it was released to the consignee, a person authorized by him, unless he proves that the loss, shortage or damage (spoilage) of the cargo or baggage occurred as a result of circumstances that the carrier could not prevent and the elimination of which did not depend on him.
In addition, according to Art. 7 of the Federal Law of June 30, 2003 No. 87-FZ “On Forwarding Activities”, the forwarder is liable to the client in the form of compensation for real damage for the loss, shortage or damage (spoilage) of the cargo after it is accepted by the forwarder and before the delivery of the cargo to the recipient specified in contract of a transport expedition, or a person authorized by him, unless he proves that the loss, shortage or damage to the cargo occurred due to circumstances that the forwarder could not prevent due to circumstances beyond his control.
At the same time, under a transport expedition agreement, the claims of the consignor or consignee for compensation for the cost of lost or damaged cargo can be presented both to the forwarder and the carrier, regardless of who exactly is responsible for the damage and / or loss of cargo.
When considering disputes arising from contracts for a transport expedition, it is necessary to define clearly the terms of reference of the forwarder in order to determine the degree of responsibility of the forwarder for their improper performance.
In addition to claims for compensation for the cost of damaged or lost cargo, the consignor or consignee has the right to submit claims for compensation for incurred losses (Article 15 of the Civil Code of the Russian Federation) and payment of a penalty. If a penalty is established for non-fulfillment or improper fulfillment of an obligation, the losses shall be reimbursed to the extent not covered by the penalty.
At the same time, proving losses in the form of lost profits is extremely difficult and, in practice, courts are more often limited to satisfying claims for compensation for real damage. In addition, according to judicial practice, the amount of the recovered penalty is often reduced by the courts in accordance with Art. 333 of the Civil Code of the Russian Federation.
As part of the resolution of disputes arising from contracts of carriage and / or forwarding, it is important to clearly distinguish the moment when responsibility for the goods passes to the forwarder and / or carrier, as well as to establish a procedure for checking the shortcomings of the delivered goods by the consignee. The vagueness of contractual terms can significantly complicate proving the validity of filing claims for the recovery of the cost of lost or damaged cargo, penalties and damages under contracts of carriage and transport expedition.
Compliance with the claim procedure for this category of disputes is mandatory for subsequent appeal to the court. Ignoring or refusing to satisfy the received claim by the carrier or freight forwarder, as well as avoiding receiving it, will not be an obstacle to going to court.
Disputes on the recovery of the cost of lost or damaged cargo, penalties and losses under contracts of carriage and forwarding, arising from economic legal relations, are subject to consideration by arbitration courts. Disputes involving individuals, not related to their entrepreneurial activities, are considered by courts of general jurisdiction.