Complete loss of cargo by the Carrier. What to do?
So, first, let's model a typical situation in specific events and dates.
So, suppose that from the statement of claim it follows:
On April 15, 2014, a transportation contract was concluded between the Customer (hereinafter referred to as the Plaintiff in the case) and the Carrier (hereinafter referred to as the Defendant in the case). For each individual load, a transport order is issued containing the essential conditions of transportation and signatures of the parties.
According to the Application Agreement dated July 01, 2015 and the waybills signed by the driver, the Defendant accepted from the shipper for transportation cargo addressed to 2 consignees in the regions of the Russian Federation. The Application Agreement for road transportation indicated a specific driver who should come to pick up the cargo, as well as the vehicle on which the transportation would be carried out. The application agreement stipulates that the delivery period for the cargo expires on 07/05/2015. However, the cargo was not issued to any consignee.
Since the period of delay in delivery of the cargo exceeded the time limits established by Article 14 of the Charter of Road Transport, the Customer has reason to believe that the Carrier has completely lost the cargo.
So, a typical situation has been modeled, now let’s formulate the Claimant’s position
Legal basis for the Claimant’s position: drawing up a report on the loss of cargo
In accordance with paragraph 1 of Article 785 of the Civil Code of the Russian Federation (hereinafter referred to as the “Civil Code of the Russian Federation”), under a contract for the carriage of goods, the carrier undertakes to deliver the cargo entrusted to him by the sender to the destination and hand it over to the person authorized to receive the goods (recipient), and the sender undertakes to pay for carriage of goods at a fixed fee.
In accordance with Part 1 of Article 14 of the Federal Law of November 8, 2007 No. 259-FZ “Charter of Road Transport and Urban Ground Electric Transport” (hereinafter referred to as the “Charter of Road Transport”), carriers are obliged to deliver goods within the time limits established by the contract transportation of goods, and if the specified terms in the contract for the carriage of goods are not established, within the terms established by the rules for the transportation of goods. According to Part 3 of Article 14 of the Charter of Road Transport, unless otherwise established by the contract for the carriage of goods, the consignor and consignee have the right to consider the cargo lost and demand compensation for damages for the lost cargo if it was not issued to the consignee at his request within thirty days from the day the cargo had to be delivered to the consignee.
In accordance with the established Rules for the transportation of goods by road (Approved by Decree of the Government of the Russian Federation of April 15, 2011 No. 272) the procedure for drawing up reports and filing claims, the Plaintiff must call the Defendant to draw up a Report on the loss of cargo, which must be confirmed by telegrams and repeated telegrams.
If the Defendant does not appear (and most likely he will) at the appointed time to draw up a Loss of Cargo Report. According to clause 80 of the Rules for the transportation of goods by road (Approved by Decree of the Government of the Russian Federation of April 15, 2011 No. 272): “In case of evasion by carriers, charterers, shippers, consignees and charterers from drawing up an act, the relevant party has the right to draw up an act without the participation of the evading party , having previously notified her in writing about the drawing up of the act...”
As a result of the Carrier's evasion from drawing up the Report, the said document is drawn up by the Claimant unilaterally.
Non-payment claim
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The most common and effective way to resolve a dispute, as well as a very significant argument in the subsequent consideration of the case in court, is to send the counterparty a correctly drafted claim. Until 1995, the procedure for organizing and conducting claims work was carried out in accordance with the Regulations on the procedure for resolving disputes, approved by Decree of the Government of the Russian Federation of June 24, 1992 No. 3116-1. However, by Federal Law No. 71-FZ of 05.05.1995 “On the implementation of the Arbitration Procedural Code of the Russian Federation” this Resolution was canceled and no new normative act was adopted. The claim procedure for pre-trial settlement of disputes may be provided for by law or by a civil law agreement.
1. Direction of the claim provided for by law. Current legislation establishes a mandatory claims procedure for the consideration of disputes only in a limited number of cases. Thus, the procedure for filing claims against the carrier is provided for in Art. 797 of the Civil Code of the Russian Federation, Charter of Railway Transport of the Russian Federation, Air Code of the Russian Federation, Code of Inland Water Transport of the Russian Federation, Code of Merchant Shipping of the Russian Federation, Charter of Road Transport and Urban Ground Electric Transport Art. 39. The need to file a claim against the freight forwarder is provided for in Art. 12 of the Federal Law of June 30, 2003 No. 87-FZ “On transport and forwarding activities.” Compliance with the pre-trial procedure for resolving disputes is not directly provided for in all cases by federal law. The law may contain a reference rule, according to which a claim or other pre-trial procedure for resolving a particular category of disputes is regulated by a by-law.
2. Claim procedure provided for in a civil contract. As a rule, such a procedure is prescribed in the section of the contract containing possible cases of disagreements and ways to resolve them. The following most common cases of filing claims can be identified: • claims arising from violation of the terms of the supply contract (short delivery, shortage, inadequate quality, non-payment or late payment for the delivered goods); • claims arising from the contract of carriage; • claims for settlements for work performed, services rendered, property rental; Experts have different opinions about how clearly and in detail the procedure for pre-trial dispute resolution should be prescribed. In practice, the following clauses are found in contracts: “in case of non-fulfillment or improper fulfillment of the contract, the parties apply conciliation procedures”, “before going to court, the parties are obliged to contact the counterparty”, “disputes are resolved by agreement between the parties”, etc. However, in these cases, when a dispute comes to court, the courts find it difficult to decide whether the parties entered into an agreement on the claim procedure and whether such a procedure was followed. In this regard, the contract must establish a clear procedure for the actions that the counterparty must perform before going to court (time limits for filing and considering a claim, documents to be submitted with the claim, etc.). Claim form. The requirements presented in the claim must be clearly formulated and justified. The claim should indicate: • the name of the organization to which the claim is addressed; • the name of your organization indicating the exact postal address, other means of communication (telephone, fax, etc.), and payment details; • claim number and date; • documents (with details) on which the relationship of the parties to the contract (addressees of the claim) is based: for example, a supply agreement, goods and delivery notes, other obligations; • references to specific terms of obligations (the clauses of the agreement should be indicated here), the violation of which caused the filing of a claim; • the applicant's requirements (they must be stated clearly in a fairly strict, but at the same time polite form). The claim can also warn of subsequent recourse to court if the claim is not satisfied or is not considered in the prescribed manner or on time; • legal norms in accordance with which the claimant substantiates his claims; • the amount of claims with calculation (a large-scale calculation of claims can be drawn up as an appendix to the claim); • a list of attached documents substantiating the claim (or a reference must be made that the addressee has all the documents for consideration of the claim, in which case the specified documents should be listed). It is recommended to limit the text of the claim itself to 1.5-2 pages of clear typewritten text. The claim is signed by the head of the organization making the claim (individual entrepreneur) or a person authorized by him. Often the claim is sent by fax. However, as a result of using this method of filing a claim, there will be no evidence of its presentation to the counterparty. It is advisable to send the claim by registered or certified mail, or hand it in against signature. But even when sending a claim by registered mail, there remains a risk that an unscrupulous counterparty will claim that the letter contained blank sheets. In this regard, the most reliable options are to send a claim by a valuable letter with a detailed list of the attachments or against receipt. When sending a claim by letter, for greater efficiency, you can fax a copy of the claim, the postal receipt and a list of the attachment to the counterparty. The person making the claim must have a copy of the claim and documents confirming its sending: a receipt for sending a registered letter, a valuable letter (with acknowledgment of receipt), a postal notification, a note from the organization (entrepreneur) about receipt of the claim materials with the incoming number, date, seal (stamp), signature of an official on another copy of the claim. The above actions will allow you to avoid additional disputes regarding the fact and date of filing a claim and will confirm the seriousness of your approach to protecting your rights. Please note that if the mandatory procedure for filing a claim is established by law or contract, the claim can be filed only after the plaintiff complies with the claim procedure for resolving the dispute. It should be borne in mind that in cases where the contract establishes a claim procedure for resolving disputes only for certain requirements, then if all other requirements are violated, a statement of claim can be immediately filed. What happens if a claim is filed without first filing a claim? In this situation, the dispute is not considered by the arbitration court, and the statement of claim is left without consideration (clause 5 of article 4 and clause 2 of article 148 of the Arbitration Procedure Code of the Russian Federation). In addition, regardless of the results of the consideration of the case by the court, all legal costs can be attributed to a person who abuses his procedural rights or fails to fulfill his procedural duties (clause 1 of Article 111 of the Arbitration Procedure Code of the Russian Federation). For example, this is possible if the deadline for sending a response to a submitted claim is violated or the claim is left unanswered.
CLAIM
To the head ____ “________________________” (full name, name of organization) Address: tel/f: from ________________________ (name of your organization indicating the exact postal address, other means of communication (telephone, fax, etc.)
CLAIM No. dated ____________________ 20___
Based on application agreement No. ________ dated __________ 20___. We provided you with road transport services for the delivery of cargo from ____________ to _________________. Loading ________20__, unloading _________20__. The cargo is delivered, the service is provided, confirmation of this is the original TTN with stamps of the consignor and consignee. There are no complaints about the quality of the service. The originals of the TTN, an invoice for the amount of __________ rubles and a certificate of services performed for No._____ dated _______20__ were sent by mail and received by your party on ________20___, confirmation of this is a postal notification. Based on clause ____ of the application agreement, your party is obliged to pay for services after receiving the originals of the TTN after _______ banking days (that is, __________ 20___) As of ________________ 2009. Your payment has not been made. Failure to meet payment deadlines disrupts the normal rhythm of business activity and causes us losses, and your actions constitute illegal use of someone else’s money. Based on the above, I propose that you voluntarily repay the debt in the amount of _______________ rubles within ____ (____) banking days after receiving this letter (before _______________ 20____). Otherwise, we will be forced to: 1) charge penalties in the amount of 0.5% of the payment amount for each day of delay until the day of repayment. 2) file a claim in the arbitration court and recover money in accordance with the legal procedure established by law. If the case is considered by the court, court costs, including state payments. fees, representation expenses for carrying out enforcement actions (lawyer), as well as payment of other legal costs will be borne by you. We explain to you that in accordance with the provisions of Chapter 25 and in particular Art. 393 of the Civil Code of the Russian Federation, you are held liable for violation of obligations under the contract. Interest will be calculated in accordance with Art. Part 1 395 Art. Group of Companies Manager ___________ Full name____________________ ______________________ (signature)
Legal basis for the Claimant’s position: determining the amount of damage
According to clause 6.4 of the Agreement, the Carrier bears financial responsibility for the complete loss of cargo within the limits established by the Civil Code of the Russian Federation and the Charter of Road Transport.
By virtue of paragraph 1 of Article 796 of the Civil Code of the Russian Federation, the Carrier is liable for failure to preserve the cargo unless it proves that the loss, shortage or damage (spoilage) of cargo or luggage occurred due to circumstances that the Carrier could not prevent and the elimination of which did not depend on it. Damage caused during the transportation of cargo or luggage is compensated by the carrier in the event of loss or shortage of cargo in the amount of the cost of the lost cargo. In accordance with Part 5 of Article 34 of the Road Transport Charter, the carrier is responsible for the safety of the cargo from the moment it is accepted for transportation until it is handed over to the consignee. The carrier compensates for damage caused during the transportation of cargo in the amount of its cost (clause 1 of part 7 of article 34 of the Charter of Road Transport).
Within the meaning of these rules, the carrier is liable regardless of the presence or absence of his guilt in violating the carriage obligation.
Damage caused to the Customer (Plaintiff) by the loss of cargo is certified by waybills, and, if available, by a Debt Restructuring Agreement, which is usually concluded with the owner of the cargo at the time of loss, i.e., with the consignee or consignor or the insurance company that paid the insurance compensation for an insured event: loss of cargo.
At the same time, having concluded the Debt Restructuring Agreement on February 10, 2015 and starting to make payments on it, the Plaintiff incurred real expenses in connection with the violation of his rights. Thus, both at the time of filing the claim and at the time of filing the claim in court, the Plaintiff had the right to demand compensation from the Defendant for damages within the value of the cargo.
Thus, the Customer (Plaintiff) has legal grounds to demand compensation for losses from the Carrier (Defendant).
Example of a claim under a contract of carriage
Perelet LLC,
address: 628416, Khanty-Mansi Autonomous Okrug, Surgut,
st. Yuzhnaya, 18, of. 201
from Voroshilov Anton Alexandrovich,
address: 192393, St. Petersburg,
st. Anosova, 71-15
Claim under the contract of carriage
On September 18, 2021, with the help of your company, I made an air flight from Surgut to St. Petersburg on flight P725. The fact of concluding a contract of carriage in accordance with Part 2 of Art. 786 of the Civil Code of the Russian Federation is confirmed by an electronic ticket (number 274687986765), date of purchase 08/10/2016. According to the Carrier’s terms, the ticket price included the transportation of my luggage, the weight of which, according to the baggage receipt, was 15 kg. (luggage tag 72773).
Upon arrival at Pulkovo airport, I discovered that the checked luggage was damaged, namely: the plastic frame of the suitcase was bent, the upholstery of the suitcase was torn in the lower right corner, and the right wheel was missing. As a result of the deformation of the suitcase, it was impossible to open it. This fact was duly recorded directly at the airport by representatives of your company, which is confirmed by a commercial act dated September 19, 2016.
In accordance with Art. 796 Civil Code of the Russian Federation, art. 118 of the Air Code of the Russian Federation, the carrier is responsible for the unsafety of baggage after it is accepted for transportation and before it is handed over to the passenger. Art. 103 of the Air Code of the Russian Federation, which regulates air transportation, establishes that air transportation includes free transportation of goods within the allowed baggage allowance.
In accordance with Art. 796 Civil Code of the Russian Federation, art. 119 of the Air Code of the Russian Federation, in the event of damage to luggage and if it is impossible to restore it, the carrier is liable in the amount of the cost of such luggage (property). Since I did not save the receipt for the purchase of the suitcase, the amount of compensation should be determined based on the average price for the purchase of such a product in my place of residence (the average price of a similar product is 7,500 rubles).
Based on the above, guided by art. 796 Civil Code of the Russian Federation, art. 118, 119 of the Criminal Code of the Russian Federation, I demand compensation for the damage caused to me by damage to my luggage in the manner prescribed by the legislation of the Russian Federation. Otherwise, I will be forced to go to court with a claim for damages, and, since I am a consumer, to demand compensation for moral damage and a fine.
Application:
- A copy of the itinerary receipt of the electronic ticket;
- Copy of boarding pass;
- A copy of the baggage tag;
- A copy of the commercial act;
- Photo of suitcase 2 pcs.
09/20/2016 Voroshilov A.A.
Legal basis for the Plaintiff’s position: fine for violating the terms of cargo transportation
In accordance with paragraph 11 of Art. 34 of the Road Transport Charter The carrier pays the consignee a fine for late delivery of cargo in the amount of nine percent of the freight charge for each day of delay, unless otherwise provided by the contract for the carriage of goods. The total amount of the fine for late delivery of cargo cannot exceed the amount of its carriage charge.
We propose to model a typical calculation of penalties, starting from the original dates.
The application agreement dated July 01, 2015 may establish a fine for being late for unloading, for example, in the amount of 2,000 rubles per day. The amount of the fine for being late for more than 2 days must be negotiated separately by the Parties. Since the Parties did not reach an agreement on the amount of the fine if the unloading is late for more than 2 days, the fine must be calculated in accordance with clause 11 of Art. 34 of the Motor Transport Charter.
The fine per day of delay is:
∑carriage fee/100% x 9% = 32,000 rub. / 100% x 9% = 2,880 rub. 00 k.
The period of delay allowed by the Carrier from 07/05/2015 to 12/01/2015 is 149 days.
Thus, the total amount of the fine accrued by the Customer as of December 1, 2015 is:
∑fine = Fine x ∑days of delay = 2,880 rub. 00 k. x 149 = 429,120 rub. 00 k.
Since the total amount of the fine cannot exceed the transportation fee established by the Application Agreement, a fine of 32,000 rubles is imposed for payment.
Legal basis for the Claimant’s position: compliance with the pre-trial procedure for resolving the dispute
In accordance with paragraph 2 of Art. 39 of the Charter of Road Transport and Urban Ground Electric Transport: “Before claims are brought against carriers arising from contracts for the carriage of goods, claims must be made against such persons.”
In accordance with clause 87 of the Rules for the transportation of goods by road (Approved by Decree of the Government of the Russian Federation of April 15, 2011 No. 272): “Claims are presented to carriers (freighters) at their location in writing within the limitation period established by Article 42 Federal Law".
The claim dated October 19, 2015 was sent to the Defendant to the addresses known to the Plaintiff and specified in the contract, which must strictly be confirmed by receipts from postal or courier organizations.
In accordance with paragraph 1 of Art. 40 of the Motor Transport Charter The carrier is obliged to consider the claims presented to him and notify the applicants in writing about the results of their consideration within thirty days from the date of receipt of the corresponding claim. In accordance with Art. 41 of the Motor Transport Charter, claims against carriers arising in connection with the transportation of goods may be brought in cases of failure to receive a response from the carriers to the claims within thirty days from the date of receipt of the relevant claims. To date, no response to the Plaintiff's claim has been received. Thus, the Claimant complied with the procedure for filing claims established by law.
Documentation of operations to obtain compensation from the carrier
The conclusion of a contract for the carriage of goods is confirmed by a waybill (bill of lading or other document for the cargo provided for by the relevant transport charter or code).
Before filing a claim against the carrier arising from the transportation of cargo, it is mandatory to present a claim to him in the manner prescribed by the relevant transport charter or code (clause 1 of Article 797 of the Civil Code of the Russian Federation).
In addition, if the cargo is damaged, a report is drawn up, which is attached to the claim presented to the carrier.
So, for example, if delivery was carried out by road, then in this case:
- The consignment note is drawn up by the shipper, unless otherwise provided by the contract for the carriage of goods (clauses 1, 2 of Article 785 of the Civil Code of the Russian Federation, clause 6 of the Rules for the carriage of goods by road, approved by Decree of the Government of the Russian Federation of April 15, 2011 N 272 (hereinafter referred to as the Rules for Transportation cargo by road)).
- The procedure for filing a claim is given in section. VII Rules for the carriage of goods by road.
- If the cargo is damaged, a report is drawn up, which is attached to the claim presented to the carrier (clause “c”, clause 79, clause “e”, clause 88 of the Rules for the carriage of goods by road). The procedure for drawing up an act and filing claims is given in section. VII Rules for the carriage of goods by road.
