The relationship between the carriers participating in the performance of international rail freight.
In the carriage of goods, the carrier may assume liability in principle compared with the other contractor, for improper performance or non-contractual obligations. The carrier's deed, violating the obligation agreement, brings the contractor harm, consignor or consignee of the goods leads to its contractual liability, as the basis of repairing the damage caused. In the field of liability set not including the failure by the carrier of obligations which were undertaken by other contracts, at different transport, even if it has connections. Thus, the carrier hire, at the request of the cosignatory person for a tarpaulin to protect the cargo transported in bulk wagons is regarded as a standalone contract. It is therefore a lease of goods. If the sheet, was not god quality, left the rain to run into it, witch caused degradation of the load, conditions and the effects of liability are resolved independently of proper transport, witch in terms of displacement, was carried out without any flaw, so without the carrier's liability, as such, can be employed in any way.
2. General conditions of coaching responsibility
The general premise of contractual liability is the legal act bilaterally, therefore the pre-existing contract non-occurrence of the damage caused by the obligation assumed (Eliescu, 1979, pp. 63-66). The contract of carriage may confer contractual liability classification if it meets three requirements simultaneously. First it must be legally valid. The grounds that appeal to annul, retroactively canceling, removing the contractual nature of the liability arising in the amount of time was being performed. Secondly, because contractual liability is required, pursuant to the convention, to establish direct legal relationship between the injured and the author of the injury (a relationship between the carrier on the one hand, and the sender or the recipient in question, on the other part). Finally, there is the responsibility necessary to have contractual nature of the damage resulting from total or partial failure of an obligation arising from the legal document, which binds oneself injured by the author of the damage.
The general conditions of contractual liability are the same common law, namely: a) committed an act detrimental to the debtor (carrier); b) correlative damage suffered by the creditor (sender or recipient), c) the causal link between the harmful act and injury; d) guilty of causing damage by his action.
3. Active subject of legal action
In cargo, the shipper may have standing to bring the recipient that their rights assign. The action against the carrier is one who, legitimately possess transport document. Judicial proceedings for refund of amounts paid under a contract of carriage belong to those who made it. Active subject of legal action is the sender until the recipient withdraws the waybill, or connects their merchandise supports his rights under art. 17 paragraph 3 of the CIM (the right to request delivery of the goods and delivery consignment note), or according to art. 18 paragraph 3 (right to dispose of the goods).
4. Passive subject of legal action
The rule is that the passive subject of legal action is the carrier. In the case of successive carriers, the active subject is entitled to choose between the first carrier (who took possession of the goods), the last carrier (who delivered or had to deliver the goods) and the carrier who performed the transportation during which product-giving rise to legal action. In all cases the CIM Uniform Rules are applicable, the liability of the carrier can be employed only under the conditions and limits set by these rules. Also, the carrier's liability, damages should be held in accordance with article 42, namely by preparing a report which should be referred, in accordance with the nature of the damage, the condition of the cargo, its weight and, if possible, significant damage, the cause and time of its occurrence. Lack of finding damages according to the procedure in 42 lead to the extinction of the right to legal action.
5. Redress for loss or damage to goods
A carrier who has paid compensation for total or partial loss or damage to goods in the uniform rules shall be entitled to recourse against the carriers who participated in such transportation: 1) carrier caused the damage is solely responsible for this; 2) if damage was caused by several carriers, each responsible for the damage he has caused a distinction is possible if the compensation is divided between them; 3) if you cannot prove which of the carriers has caused damage or is the rate at which carriers have contributed to its production, the compensation shall be borne by all carriers in proportion to the renumeration received transport. Carrier proves that the damage caused, however, will not participate in the distribution of compensation.
6. Redress for failure to perform the contract of carriage
The provisions on recourse in the event of loss or damage to goods shall apply in case of compensation paid for exceeding the performance of the contract of carriage. If damage was caused by several rail carriers, the compensation shall be apportioned among them in proportion to those lines during transport.
Deadlines for implementation of the contract of carriage shall be divided as follows: a) when two carriers have participated in the transport: Shipping time is divided equally; transmission time is divided in proportion to the distances of charging kilometer. b) when three or more participating carriers to transport: Shipping time is divided equally between teaching and rail track destination; transmission time is divided between all the carriers: third equally; remaining two-thirds proportion of charging kilometer distances.
This extension to the carrier by a rail carrier has the right to assign this. The time between the delivery of goods by the carrier and the start time of shipment which carrier is assigned exclusively to teach merchandise. Dividing the period as stated above was not taken into consideration only if the total period of performance of the contract of carriage was observed.
7. The procedure for recovery action
Distribution of compensation between carriers is governed by article 50 of CIM-51. The object of damages is the amount paid by a national railway network for cargo loss or damage, or delay in performance of the contract. The quality of an applicant who has paid compensation carrier is required by sender or recipient. So the carrier status of the applicant, "solvens" that have a recourse action to recover from the other carrier rates in the total amount of damages, but provided that, "solvens" and he is not liable for damages (Paulin, 2005, 134). The quality of the defendant carrier may have caused damage as the only responsible. Most of the times but the damage is more guilt stemming from the railways, in this situation, namely the multiplicity of defendants, the damages being individualized, demand recourse against all networks simultaneously be brought to bear mistakes which damage proportionate to the damage that have caused (Ciobanu, 2000, 167). Demarcation of responsibilities is based railways of the injury, the contribution to the damage caused, it was determined via expert.
It can arise where there are several carriers but there is evidence of guilt of each and if you can not prove any damage was caused by the fault of one or more individualized transport. In this case recourse damage will spread among all carriers participating in transport. Distribution is proportional to the distances of charging kilometer. From kilometer distribution rule may be an exception, namely the extent to which one of the defendants to prove that damage was not relevant evidence in the territory of his country. In connection with this action for recovery, to indemnify the question is one of the carriers of the effects of insolvency of debtors. In this case, the amount to be paid by one of insolvent carriers, according to art. 60 of C.I.M. is to be paid by all other carriers participating in the shipment, but no longer take into account the mileage, but the criterion is the rate of taxation and accessories that they have received.
It should be noted that the debtor insolvent carrier can be invoked by the action for recovery only if it is found and certified by OCTIF. Otherwise it would be easy to invoke the impossibility of payment in exchange for exemption from that flow. The validity of the payment made by the carrier exercising recourse of action can not be disputed by the carrier against whom recourse is exercised if the compensation was determined by a judicial authority. The judge must decide by one and the same decision on all recourse before it. Carriers cannot use any pull action further setback.
8. Jurisdiction in actions for recovery
In the judicial power regarding resolving recourse are known several rules and some exceptions. As a general rule, the jurisdiction belongs to the jurisdiction of the defendant's seat, applying rule "actor sequitur forum rei." So, in principle, the action must be brought before the competent court having jurisdiction of the state railroad sued in court, which will have to pay compensation regression.
There are two exceptions to this rule: a) The first exception concerns the assumption of alternative power, i.e. where there are two or more defendants railroad. In this case, the plaintiff "solvens" who has paid compensation to the sender or recipient has the option, i.e., he can choose one of competent jurisdiction. However, he is obliged to summon to court all railways-payment. If there are two or more defendants, and plaintiff brought the action against only one of them at its headquarters and has asked the court concerned the introduction of others, the sanction may consist of revocation of right of recourse (Article 62 pct. 2 C.I.M.). b) The second exception concerns the voluntary extension of jurisdiction. According to regulations C.I.M. understanding between the railroad allowed on the trail, so that the applicant be able either to bring separate actions against each defendant, either call on all defendants to trial in a country other than that resulting from applying the general rule "actor sequitur forum rei."
9. Rules of procedure
Procedural matters in actions for recovery are covered by article 62 of CIM, as follows: a) The first part, as one generally covers defenses that the defendant may invoke the court setback, i.e. to prove absence of fault. In addition, the defendant may also challenge the legitimacy and amount of payment made by the applicant "solvens." For these reasons, the texts allow the defendant in particular, to challenge the legitimacy of the payment and amount. From this general rule there are exceptions, namely the challenge is excluded if the compensation was determined by a court decision in the relationship between rail "solvens," recourse applicant, and the person injured. In other words, the principle "res judicata"--res judicata prevail. b) The second aspect is to establish procedural rules, in principle, linkage of all claims of recourse obligation, if several defendants, and also prohibit the severance. Accordingly, the court must decide the case before a single decision in the application of several defendants; c) The final issue concerns the inadmissibility of regression subsequent procedural. Thus, the defendant in court was obliged, by regression, to pay a certain amount of money the plaintiff is not entitled subsequently to introduce, in turn, a request summons against the other railway networks.
Rail carrier's liability examined so far, is a liability based on fault and not an objective one. As long as the presumption of guilt has not been removed, is engaged mechanism carrier's liability in any form or degree of guilt. Each carrier is responsible for enforcement of the transport on the entire route up to delivery.
(1.) Ciobanu, T. I. (2000), Transport Law. Terestrial and Aerial Transport. Bucharest: Actami.
(2.) Eliescu, M. (1972), Civil Crime Liability. Bucharest: Academiei.
(3.) Orga-Dumitriu, Gina. (2008), Legal Liability of Commercial Contract of Carriage of Goods. Bucharest: C.H. Beck.
(4.) Paulin, Ch. (2005), Droit des transports. Paris: Litec.
*** International Convention on the Carriage of Goods by Rail (COTIF) Appendix B, Uniform Rules concerning the Contract of International Carriage of Goods by Rail.
Constantin Brancoveanu University, Pitesti
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|Publication:||Contemporary Readings in Law and Social Justice|
|Date:||Jan 1, 2012|
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