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Guaranteeing the carrier's claims: regulations in the Civil Code and special legislation.

The Civil Code (1) reserves an important part to the pledges intended to ensure the patrimonial obligations resulting from the contractual relationships between the participants in transport operations. The common framework of the pledges established in the Civil Code applies to, and completes, on the one hand, the pledges recognized to the carrier by the new general rule of the contract of carriage, (2) and, on the other hand, to the pledges granted by the special legislation, aimed at different ways of moving goods. Moreover, the general provisions covering all modes of transport, which are unitarily regulated by the Civil Code, shall apply unless the rules set out by the special laws or practices established between parties are harmed. (3)

In order to ensure the recovery of claims resulting from the movement of goods, traditionally, the carrier has the possibility to refuse to perform the obligation to deliver the goods at their destination until the recovery of travel expenses and of other ancillary expenses. This possibility, reflected in the refusal to deliver the transported goods, was explained by the carrier's capacity of precarious owner of the goods, on his tacit bond acknowledged by the sender, when rendering the goods for transportation. The carrier's privilege over the transported goods and the implicitly recognized lien have achieved a new vision in the Civil Code, i.e. this time the legislator expressly provides that, regarding the transported goods, the carrier enjoys the rights of a pledgee. (4)

By applying the general rules on bonds, (5) we can deduce, firstly, that the carrier has, in respect to the goods belonging to another person, the obligations of a trustee responsible for their mere administration, being bound to perform all the necessary and useful acts for the preservation of goods.

The obligation of conservation results from the way in which the carrier's liability is regulated for the qualitative and quantitative integrity of goods. If he cannot claim a liability exempting cause, the carrier will be required to cover the damage caused by the loss of or damage to goods. (6)

Regarding the carrier's rights, similarly to a pledge, he has the option to refuse to deliver the goods as long as the recipient fails to fulfill his obligations; in this case, he also may perform certain acts of disposal regarding the goods held by him.

The carrier's possibility to refuse to deliver the goods at their destination until the recovery of debts resulting from their material ownership is equivalent to recognizing the lien in his favor.

The Civil Code (7) expressly regulates the opportunity of the debtor of the liability to render the goods to refuse the restitution of goods as long as the creditor does not compensate him for the expenses necessary and useful that he made for those goods or for the damage that those goods caused him. (8)

In the field of transport, the lien had specific regulations, both in terms of land and maritime transport, in the Romanian Commercial Code. (9) Currently, the carrier's possibility to refuse to deliver the goods, as long as his claim resulting from the carriage is not achieved, is generally regulated in the Civil Code (art.1980 paragraph 1 of the Civil Code with the provisions of art.1978 paragraph 3). By applying the general provisions in the field, this right of the carrier qualifies as a special privilege (10) enjoyed by the carrier on the goods detained by him.

Also, this right is regulated in the special, internal and uniform legislation governing the different modes of transport.

The exercise of the lien on goods is justified by the sender's default to execute his main duty, i.e. to pay for the expenses incurred by carrying the goods. By the exception to the rule that the debtor of the duty to pay the transport fee and the other expenses related to the carriage of goods is the sender, by agreement between the parties or by the application of a specific provision, it is possible that this obligation is incumbent on the recipient. In this case, by applying those provisions, in principle, the carrier may refuse to deliver the transported goods until the recovery of the sums due. This is because the exercise of this right is limited to the situation where the recipient of the goods understands to provide a guarantee to the carrier.

Generally speaking, this limitation of the possibility to invoke and exercise the lien by the debtor of the obligation of restitution is governed by the provisions of art. 2499 paragraph 1 of the Civil Code according to which the "lien terminates if the person concerned shall record the amount claimed or provides a sufficient guarantee to the retentive."

In the field of transports, the sufficient guarantee provided to the carrier is equivalent to the payment of the amount recognized by the recipient of goods and to the record of the difference in a credit institution, until the clarification of misunderstandings (art.1980 of the Civil Code). Therefore, "if the recipient wants to take possession of goods during the dispute between him and the carrier over the latter's claims, he will have to pay in advance the amount that he recognizes to be due and to consign, at the same time, the difference to the amount claimed by the carrier." (11) An application of these general provisions is found in the special legislation relating to road transport. Thus, the carrier's lien, recognized by the provisions of Article 13 of the Convention on the Agreement for the International Carriage of Goods by Road, Geneva 1956 (CMR Convention (12)), materialized in the carrier's possibility of not delivering the goods, until the recovery of claims resulting from the consignment note, ceases if the recipient consigns a bail.

The lien may be exercised only when there is an indubitable liquid and due debt, in conjunction with the transport of goods under the carrier's retention. The lien cannot be exercised for previous claims; "the carrier has no right to delay the delivery of goods because he has other claims to the recipient." (13) This rule is laid down in the special regulation of shipping. In order to guarantee the payment of the freight, the Commercial Code, in art. 590, bestows on the shipping carrier a lien on goods. In maritime transport, the lien may be invoked against the person entitled to claim the goods, even if the transportation costs were not in his task. (14) In this respect, the jurisprudence has held that where "the shipper is obliged to pay for the freight, in the absence of a stipulation in this regard, in the shipping policy, the master of the ship is entitled to receive payment of the price from the recipient of goods." (15) The maritime carrier may exercise this right only for the obligations arising from shipment, based on concluded contracts and on their documents. Thus, the lien may not be exercised where the maritime carrier's claims concern facts and obligations arising outside the terms of the bill of lading, without any connection to the recipient's obligations. "The lien may not be exercised and used against any of the recipient's claims for the eventual demurrage at the port of loading the goods, as these obligations have been born previously and they are not related to the obligations of the recipient of goods." (16)

The special legislation on transport has several exceptions to this rule. Thus, in accordance with the provisions of Article 52 paragraph 8 Thesis I of the Regulation on the railway transport in Romania, (17) "the railway transport operator has a pledgee's rights over the transported goods for all the debts due to him for the transport and for the claims arising from previous transportation." Therefore, the special legislation recognizes the railway carrier's right to retain goods not only for the recovery of claims resulting from the transport, but also for claims arising from previous transports made for the same beneficiaries.

The exercise of the lien shall materialize in the denial to deliver the goods which are the object of this right, i.e. the retention of goods by the carrier. This applies generally to land transport, indicating that, in railway transports, goods can also be trusted to a third party that owns them in the name of the railway transport operator. (18) In maritime transport, although the law recognizes the maritime carrier's lien on the goods until the payment of the money due in connection to the carriage, it expressly provides that the material retention is carried out not by withholding the goods, but only their storage to a third party. In this respect, art. 590, Thesis II of the Commercial Code regulates the ship master's right to request the storage of goods in the "third hand until the payment of the freight." However, it is obvious that the main function of the lien, i.e. of a bond for the payment of freight, is also brought into effect in this situation.

The carrier who, by lack of reasonable diligence, delivered the goods without cashing or, at least, without claiming the record of the amounts owed by the recipient is sanctioned by the legislator. The carrier loses the right to sue for compensation against the sender and the other participants in the transport, and, at the same time, he is responsible for any money due to them (art. 1983 paragraph 1 of the Civil Code). An application of this general provision is provided in the field of shipping. The lien may be exercised only during or after a voyage in which those claims were born. If the owner of the ship has not exercised this right before or during the discharge of cargo, this right cannot be used in the next voyage, even if it were made with the same vessel and for the same charter. (19) Similarly, in railway transportation, this right "subsists as long as the goods are found in the possession of the railway transport operator or of a third party which holds it in his name" (Article 52 paragraph 8 of the Regulation for Romanian railway transportation).

The movement of goods to their destination may be assured by one or more carriers. In accordance with art. 2001of the Civil Code, in sequential or combined transport, (20) the last carrier represents the previous carriers with regard to the amounts they are entitled to. The capacity of their representative, which is recognized under the law, as well as the material fact of retention, explain the right of the last carrier to invoke this bond both for himself and in order to protect the interests of the other participants in the transport. If the last carrier does not exploit the possibilities, he loses his right to sue for compensation against the other participants in the transport, and he is responsible for the sums due to them by their recipient.

"The involuntary dispossession of goods does not extinguish the lien" (Article 2499, paragraph 2 Thesis I of the Civil Code). This general provision based on the idea of protecting the good faith of the debtor of the return liability finds its application in the transport activity. In this sense, by the exception to the rule that the lien may be exercised as long as the goods were not released, the carrier may exercise this right also after the delivery of goods within 24 hours if the goods are still in the possession of the recipient (art.1982 paragraph 2 of the Civil Code).

In all cases, however, the right of action remains unaltered (Article 1983, paragraph 2 of the Civil Code). An application of this general provision is laid down in road transportation. The road carrier does not lose his right to sue for compensation against the consignee if the goods were released without payment of the cash upon delivery, payment which should be claimed by the carrier under the contract of carriage (Article 21 of the CMR Convention).

Benefitting from the rights of a pledgee on the goods in his retention, implicitly, the carrier may perform certain acts of disposition. Thus, by applying the general provisions (21) relating to administration, it results that the carrier has the right to sell the goods or to saddle a real task when it is needed, in order to preserve its value, to pay the debts only with the authorization of the beneficiary or of the court. In the case of perishable goods, alienation is possible without this authorization. Provisions on the carrier's possibility of selling the goods are generally provided in art. 1972 of the Civil Code.

Selling goods is possible both when certain circumstances occur, preventing (22) the execution of the transport in predetermined conditions and when the carrier has completed the transport, but is unable to perform the obligation of delivering the goods. In any event, the carrier is obliged to seek instructions from the sender. If the latter does not meet the notification received, the carrier is able to keep the goods in his stores or he can store them at a third party. If storage is not possible and if the goods are perishable, he will proceed to their sale by public auction. (23) In all cases, after deducting the expenses incurred on transport, the difference is avail able to the person entitled to dispose of the goods. If the amount obtained is insufficient, the carrier will have a claim against the recipient for the spread (Article 1972, paragraph 2 of the Civil Code).

In this respect, there are special provisions. The road carrier (24) is entitled to sell the goods if the execution of the contract under the pre-established conditions of the consignment note is or becomes impossible, if the sender does not transmit instructions in reasonable time. Moreover, the road carrier is entitled not to expect instructions if the perishable nature of the goods or their condition justifies their sale or when the costs for storing them are disproportionate in relation to their value. Similarly, the railway carrier may proceed to sell the goods in the event of an impediment to their transport or delivery. (25) In shipping, if the recipient of the loaded goods refuses to receive them, the master of the ship may be authorized under the law to sell the necessary amount for the recovery of the freight due, the difference being recorded to the recipient. (26)

Adina Laura PANDELE

adinapandele@yahoo.com

Ovidius University, Constantza

NOTES

(1.) The New Civil Code was adopted by Law no. 287/2009 of the Civil Code, published in the Official Gazette no. 511 of 24 July 2009. New provisions have been implemented by Law no. 71/2011, published in the Official Gazette no. 409 of 10 June 2011, and entered into force on 1 October 2011.

(2.) The contract of carriage is regulated in Title IX "Various Special Contracts," Chapter VIII "The Contract of Carriage", art. 1955-2008 of the Civil Code.

(3.) See in this respect the provisions of paragraph 1 art.1958 of the Civil Code.

(4.) According to art.1982 paragraph 1 of the Civil Code, "To guarantee its claims arising from the contract of carriage, the carrier shall enjoy, regarding the goods carried, the rights of a pledgee as long as he holds that good."

(5.) The rights and obligations of the pledgee are assimilated to those of a trustee of other person's goods, responsible for their mere administration, being applicable in accordance with the provisions of art.795-799, of the Civil Code.

(6.) See art.1984 of the Civil Code in conjunction with art. 1959 of the Civil Code.

(7.) The Civil Code of 1864 does not expressly regulate the lien, stating only certain applications in various special fields.

(8.) Generally, the lien is regulated in articles 2495-2499 of the Civil Code.

(9.) The Romanian Commercial Code of 1887 was partially repealed. In terms of transport, there are still in force the provisions on shipping contained in Book II of "On maritime trade and navigation," which shall be repealed upon the entry into force of the Maritime Code (art.230 letter c of Law 71/2011).

(10.) In accordance with art.2339 letter b of the Civil Code, the claim of the person who exercises the lien is privileged regarding the goods on which the lien is exercised, as long as this right subsists.

(11.) Cassation III, Decision no. 1476/1935 in A. Dumitriu, (2009), Codul comercial (The Commercial Code). Bucharest: C.H. Beck Publishing House, 100.

(12.) According to Article 77, paragraph 1 of G.D. no.27/2011 on road transport, published in the Official Gazette no. 625/2011, the contract of road carriage in national traffic is concluded and executed in accordance with the provisions of the CMR Convention, to which Romania adhered by the Decree no.451/1972, published in the Official Gazette no. 145 of 6 December 1972, with its subsequent amendments.

(13.) Apel Milano 27.02.1891 in M.A.Dumitrescu, Codul de comerciu adnotat cu jurisprudenfa pana la zi (The Commercial Code, annotated with updated jurisprudence), vol. II, Bucharest: Cugetarea, 369.

(14.) See TO this regard, A.Cristea, (2001), Drept maritim (Maritime Law), Bucharest: ALL BECK, 2001, 118.

(15.) Cassation 8.01.1886, in M. A. Dumitrescu, op.cit., 370

(16.) Constanta Court of Appeals. Civil Decision no. 5/25.09.1995. File no. 11/MF/1995 in *** (1998), Buletinul jurisprudentei maritime (The Maritime Jurisprudence Bulletin), no.1/1998, Constanta: Ex Ponto, 153.

(17.) The Regulation on railway transportation in Romania, approved by G.O. no.7/2005 published in the Official Gazette no. 101/2005, republished, with subsequent amendments.

(18.) Article 52 paragraph 8 Thesis II of the Regulation on railway transportation in Romania.

(19.) M. Voicu and C. Teodoru (2000), "Contract de navlosire. Abaterea navei de la ruta. Embargou. Raspunderea armatorului (Charter Party. The Ship's Deviation from its Route. Embargo. The Ship Owner's Liability)," Revista romana de Drept maritim [The Romanian Maritime Law Journal), no. 1: 72.

(20.) According to art. 1957 of the Civil Code, "Carriage can be performed by one or more carriers; in the latter case, it can be successive or in combination (1). Successive carriage is performed by two or more successive carriers using the same mode of transport and combined carriage is that carriages where successive carriers use different transport modes (2)."

(21.) Art. 799 of the Civil Code.

(22.) Transport impediments are those circumstances that do not allow the execution of the transport on the pre-established route.

(23.) See art. 1971, 1972 si 1981 in conjunction with art.1726 of the Civil Code.

(24.) Art.16 of the CMR Convention.

(25.) Art. 58, 59 of the Rules of rail transport in Romania.

(26.) 589 of the Commercial Code.
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Author:Pandele, Adina Laura
Publication:Contemporary Readings in Law and Social Justice
Article Type:Report
Geographic Code:4EXRO
Date:Jul 1, 2012
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