Методические указания Специальность 190701: «Организация перевозок и управление на транспорте (водном)» Новосибирск 2009 (стр. 14 из 20)

Mixed-carrier transportation

The expression mixed-carrier transportation refers to situations in which goods are carried to their final destination by two or more means of transport, such as road and sea or rail, sea, and air. There are at least two possibilities. The successive carriers may have no common juridical link, as when the shipper has contracted with each carrier independently or when the shipper has contracted with a forwarding agent. In these cases, each carrier is subject to his own regime and has his own rights and duties toward the shipper or forwarding agent. A second possibility is that the successive carriers may be bound by a common juridical link toward the shipper or owner of the g(x>ds by virtue of directly applicable legal or contractual provisions or by virtue of the fact that the goods travel under a single document of transport, as a through bill of lading. In these cases, municipal laws in civil-law jurisdictions tend toward the irreconcilable aims of subjecting each carrier to his own regime and, at the same time, holding all carriers solidarity liable. In domestic carriage in common-law jurisdictions, the liability of each carrier is ordinarily determined by application of the rules governing carriage by two or more carriers.

Mixed-carrier transportation in international commerce under a through bill of lading or similar document has been dealt with in international conventions. A through bill of lading covers carriage of goods by two or more successive carriers or by two or more means of transport. It is issued by the first carrier and constitutes a single title to the goods. Under a purely maritime through bill of lading, successive carriers are equally bound, unless the contrary has been stipulated. Solutions differ, however, when carriage is effected by two or more means of transport. Under the Berne Railroad Conventions for the carriage of goods, carriage by rail and sea may be subject to the rules governing railroad carriage at the option of

the contracting states, unless reservation has been made by them for application of certain rules of maritime law to the portion of sea carriage. Since these conventions may be entirely inapplicable to the portion of sea carriage, interested carriers and international organizations have concluded agreements for a uniform, legal regime of rail and sea carriage. In fact, accords have been concluded among United States and Canadian railway and ocean-shipping companies for application of the rules of the Brussels Convention of 1924 to goods carried under through bills of lading by rail and sea. The rules of the Warsaw Convention for carriage of goods by air apply always to the portion of air carriage and to that portion only, but the International Air Transport Association and the International Union of Railways have concluded agreements for carriage by rail and air under a single document. Only the Geneva Convention of 1956 has undertaken to establish rules applicable to all means of transport under a single document. The convention provides, however, that, if damage has been incurred in a portion of the journey other than road carriage, the carrier shall be subject to his proper law. This convention may conflict with the Berne Conventions and does conflict with the Warsaw Convention to the extent that carriage by air is subjected to the Brussels rather than the Warsaw Convention.

In the Western world, the transport of goods is divided between public and private enterprise. The basis of the legal relationship between a carrier and his customer is the same whether the carrier is a public corporation, a local authority, or a private corporation or individual. The law of carriage of goods governs the rights and duties of the shipper, carrier, and consignee.

National and international regulation

In all legal systems the law of carriage has been influenced by the idea that carriers enjoy a factual monopoly. The services that a customer may demand and the remuneration that a carrier may exact are generally regulated by legislation or administrative regulations. The growth of competition among carriers and means of transport in the Western world has led to a reduction in the scope of municipal legislation in a number of countries, but international conventions and administrative regulations have proliferated. The right to carry on a transport business is still everywhere regulated through elaborate licensing systems and the operations of transport are subject to continuous supervision and control by appropriate agencies. The legal relation between the carrier and his customer is affected by this intervention of the public authorities, and public as well as private laws form the body of the law of carriage.

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Roads, railways, and inland waterways

Since the 19th century legislation has been enacted in most countries to safeguard the public interest in the movement of goods by road, railway, and inland waterway. In the United States a decisive step toward regulation of transportation was taken with the Act to Regulate Commerce of 1887. This act was made applicable to all common carriers by railroads engaged in interstate or foreign commerce and to common carriers transporting goods in part by railroad and in part by inland water when both were used under a common control, management, or arrangement for a continuous carriage. The act created the Interstate Commerce Commission, which today has wide powers to hear complaints against carriers concerning alleged violations of law, to investigate matters in dispute, to order carriers to cease and desist from unlawful practices, and to determine the amount of damages suffered as a result of violations. The commission also possesses rate-making power.

Since the time the 1887 act was adopted, new forms of transport have arisen, and older ones have been improved. The Interstate Commerce Commission now has jurisdiction over railroads, pipelines, motor carriers, and certain carriers by water. Other federal agencies that have been charged with regulation of transportation are the Civil Aeronautics Board and the Federal Maritime Commission.

In England the Carriers Act of 1830 was the first legislative intervention in the field of carriage of goods. The act originally applied to all common carriers by land, including both road and railway carriage. The Railways Act of 1921, however, made special provisions with regard to the railways, and the Transport Act of 1962 enacted that the Railways Board shall not be regarded as a common carrier. Consequently, carriage by railways is now regulated by the contract between the Railway Board and the shipper or other contracting party, as laid down in the Book of the Rules of British Railways. The Carriers Act has never been applicable to private carriers and to common carriers by sea or by inland waterway. If part of the carriage is by sea or inland water and part by road, the act applies to the land part only.

For many decades the law governing the international carriage of goods by railway has been codified in a number of international conventions. These are frequently referred to as the Berne Conventions. The first international convention concerning the carriage of goods by rail was concluded in Berne in 1890 and came into operation in 1893; after World War I it was replaced by a new convention concluded in 1924, which was again amended by a convention signed in Rome in 1933. This in turn was

replaced after World War II by the Berne Convention of 1952. A new convention was signed in Berne in 1961 and came into operation in 1965. The conventions apply whenever goods have been consigned under a through consignment note for carriage over the territories of at least two of the contracting states and on certain specified lines. They regulate mostly the form and conditions of the contract of carriage; its performance, including delivery and payment of the charges; its modifications; the liability of the carrier for delay, loss, or damage; and the enforcement of the contract by actions. Further, the conventions establish the obligation of the railways to carry goods and the rights and obligations of the various railway authorities of the contracting states. Most contracting states have incorporated into their municipal laws rules similar to those of the conventions for the regulation of the domestic carriage of goods by railway. The Treaty of Rome of March 25, 1957, which created the European Economic Community, contains a number of provisions concerning matters of transport. Members of the Community are specifically bound to develop a common policy in matters of transport. The provisions of the treaty have been largely implemented by a number of international agreements. Since all members of the Common Market are members of the Berne Conventions, the mandate for uniformity of rules governing carriage of goods has been largely achieved as to carriage by railway.

Sea carriage

Until the emergence of modern national states, the law governing maritime commerce had been largely uniform in the Western world. In the 18th and 19th centuries, however, legislative enactments and judicial decisions in pursuit of narrowly conceived national interests gradually displaced in various countries the venerable and uniform law of the sea and gave rise to sharp conflicts of laws. The movement of goods from country to country was thus hampered at a time when advancing technology and the spreading Industrial Revolution were about to lead to an expansion of maritime commerce on a world scale. Beginning with the last decades of the 19th century, it has become increasingly apparent that these conflicts of laws might be overcome by means of international conventions. The law of merchant shipping was quite naturally one of the first branches of private law to attract attention for possible international regulation.

The movement for uniformity culminated in the signing in 1924 of the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading. The convention was merely intended to unify certain rules of law relating to bills of lading and only with regard to

damages occurring to hull cargo other than live animals. All bills of lading covered by the convention are subject to certain standard clauses defining the risks assumed by the carrier, which are absolute and cannot be altered by contrary agreement, and the immunities the carrier can enjoy, unless the parties agree otherwise. In general, clauses relieving the carrier from liability for negligence in loading, handling, stowing, keeping, carrying, and discharging the goods or that diminish his obligation to furnish a seaworthy vessel are declared null and void. The carrier, however, is relieved from liability for negligence in navigation or in the management of the vessel and from the absolute warranty of seaworthiness. The convention was originally intended to apply to all bills of lading issued in any one of the contracting states.

Most maritime nations have ratified or adhered to the convention, and others, such as Greece and Indonesia, have enacted domestic legislation incorporating the rules agreed upon in Brussels. Some adhering nations, including Germany, Belgium, Turkey, and The Netherlands, have incorporated the rules of the convention into their commercial codes. Others, including the United States, Japan, Great Britain, and most members of the British Commonwealth, have enacted the rules in the form of special statutes known as Carriage of Goods by Sea Acts. Still others, including France, Italy, Egypt, and Switzerland, have given the convention itself the force of law and, in addition, have enacted domestic legislation modelled on the convention. The substantive standards governing bills of lading in maritime carriage have become largely uniform in most of the Western world.

Other international agreements

The international movement of goods may be regulated in certain countries by international agreements other than the Berne Conventions, the Brussels Convention on Limitation of Liability (1923), or the Warsaw Convention of 1929. During the Cold War, the countries of eastern Europe established a uniform regime for the movement of goods by railway that was comparable to that of the Berne Conventions.

Other agreements in the field include the Geneva Convention of 1956 for the carriage of goods by road. The convention became operative in 1961, and its original membership included France, Austria, Italy, The Netherlands, and Yugoslavia. It applies to international carriage of goods by road for reward with the exception of certain items, such as mail. Carriage is international if it involves two countries, one of which is a member of the convention. An original feature of the Geneva Convention is that it covers

mixed-carrier transportation. It applies for the whole journey, even if the road vehicle has been carried, without being unloaded, by another means of transport, unless there is proof that the damage occurred in a portion of the journey other than that of carriage by road.

A.N. Yiannopoulos

ЧАСТЬ 8 ПРИЛОЖЕНИЯ

ENGLUSH -RUSSIAN COMMENTARIES

A, a

Accept акцепт. Безусловное принятие предложения другой стороной, влекущее за собой правовые последствия, т.е. согласие заключить договор на предложенных условиях

Agency агентирование. Выполнение агентом определенных функций по обслуживанию судна по поручению принципала. Перечень функций определяется категорией агента линейный, форвар-динг и т.д. При агентировании судов в портах основные функции агента могут быть представлены следующими укрупненными группами:

- помощь при заходе судна в порт и выходе из порта, в том числе
получение информации и передача ее соответствующим лицам; заказ
лоцманов, буксиров; помощь в оформлении требующихся
формальностей;

- помощь в грузообработке заказ стивидоров и тальманов,
контроль за их работой, оформление документов но приему-сдаче груза;

- помощь в организации материально-технического снабжения,
включая получение топлива, воды, продуктов;

- выполнение услуг коммерческого характера урегулирование
претензий, оформление морского протеста, вызов сюрвейера, оплата и
оформление дисбурсментских расходов.

Статья чартера (по проформе " Дженкон" ). "Во всех случаях судовладельцы назначают своего брокера или агента как в порту погрузки, так и в порту выгрузки".

В,Ь

Bill of Lading- коносамент. С правовой точки зрения коносамент песет следующие функции: является документом, подтверждающим факт приема груза к перевозке (распиской перевозчика) и товарораспорядительным документом, олицетворяющим собой груз и дающим право владельцу коносамента распоряжаться этим грузом, т.е. в процессе перевозки продавать его, закладывать и т.д. Линейный коносамент, кроме того, имеет третью функцию является документом, подтверждающим факт наличия и содержания договора перевозки.

Коносамент составляется обычно в нескольких экземплярах; о числе выданных коносаментов делается отметка на каждом из них. При выдаче груза по одному из экземпляров остальные теряют силу.

Как правило, все формы коносамента имеют на оборотной стороне отпечатанные типографским способом стандартные условия перевозки, содержание которых у линейных и трамповых коносаментов имеет определенные отличия. Коносаменты классифицируются по: