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E-CMR as a basic condition on fulfillment of obligations under
agreement for international carriage of goods by road
Rano ISMAILOVA
1
University of World Economy and Diplomacy
ARTICLE INFO
ABSTRACT
Article history:
Received September 2020
Received in revised form
15 November 2020
Accepted 20 November 2020
Available online
15 December 2020
The article analyzes the main conditions for the fulfillment of
obligations under the contract for the international carriage of
goods by road. In addition, the article discusses the role and place
of the CMR as evidence of the conclusion of this type of contract,
as well as the consequences of the Republic of Uzbekistan joining
the e-CMR Additional Protocol and the introduction of this
innovation in the process of international transportation of
goods by road.
The article draws conclusions about the position of the
consignee in the contract for the carriage of goods, as well as his
responsibility under the contract for the international carriage of
goods by road, and it is also determined that the Contract for
international carriage serves as a legal basis for the financial
liability of the parties in case of non-fulfillment or improper
fulfillment of obligations.
2181-
1415/© 2020 in Sci
ence LLC.
This is an open access article under the Attribution 4.0 International
(CC BY 4.0) license (https://creativecommons.org/licenses/by/4.0/deed.ru)
Keywords:
Contract for the
international carriage of
goods by road
E-CMR
Liability
Improper performance.
Электронная накладная как основное условие об
исполнении обязательств по договору международной
перевозки грузов автомобильным транспортом
АННОТАЦИЯ
Ключевые слова:
Договор международной
перевозки грузов
автомобильным
транспортом
Электронная накладная
Ответственность
Основные условия об исполнении обязательств по
договору
международной
перевозки
грузов
автомобильным транспортом изучаются в анализируются в
статье. Кроме того, в статье рассмотрены роль и место
накладной как доказательства заключения данного вида
договора, а также последствия присоединения Республики
1
PhD student, University of World Economy and Diplomacy, Tashkent, Uzbekistan
E-mail:
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Ненадлежащее
исполнение.
Узбекистан к Дополнительному протоколу КДПГ об
электронной накладной и внедрения данного новшества в
процесс международной перевозки грузов автомобильным
транспортом.
В статье сделаны выводы о положении грузополучателя
в договоре перевозки грузов, а также его ответственности
по
договору
международной
перевозки
груза
автомобильным транспортом, а также определено, что
Договор международной перевозки служит правовой
основой имущественной ответственности сторон при
неисполнении
или
ненадлежащем
исполнении
обязательств.
INTRUDUCTION
The right of the parties to enter into a contractual relationship and to define the
terms of the contract is an integral part of personal freedom. As you know, citizens
(individuals) and legal entities acquire and exercise their civil rights by their own will and
in their interest. They are free to establish their rights and obligations on the basis of the
contract and to determine any terms of the contract that do not contradict the legislation
[1]. Like other freedoms, the freedom to enter into a contractual relationship is limited by
other rights and statutory interests of the state.
Accurate and complete implementation of the terms of the contract plays an
important role in the development of the state economy and improving the welfare of
society [2]. This article examines the terms of the contract on the fulfillment of obligations
for the international carriage of goods, in particular studies e-CMR as its main condition.
MATERIAL AND RESEARCH METHODS.
The article used the methods of cognition identified by legal science and tested in
practice. The work is based on the use of general scientific methods of dialectical,
historical, formal-logical, systemic and comparative analysis. While preparation oof data,
a number of special methods were used, including statistical, structural and functional,
modeling and forecasting methods.
RESULTS AND THEIR DISCUSSION.
Transportation of goods cannot be carried out without prior agreement, because
first of all, the contract is the legal basis for the liability between the carrier on the one
hand and the consignor on the other. The article pays attention to this, in particular, in the
Convention on the contract for the international carriage of goods by road.
Furthermore, the contract for international carriage serves as a legal basis for the
financial liability of the parties in case of non-fulfillment or improper fulfillment of
obligations related to the carriage. A feature of the legal regulation of transport relations
is that civil and special transport legislation draws the greatest attention to the main
contractor - the carrier, which is obvious, since the actual fulfillment of the obligation to
transport goods depends on him. The division of responsibility between the carrier, the
consignor and the consignee for non-preservation of goods and delay in their delivery can
take place at the stages of both the conclusion and execution of the carriage contract. The
grounds for the financial liability of the carrier's clientele could be the violations of the
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rules in force for a specific type of transport for the delivery of goods for transportation,
its packaging, timely receipt of goods at the destination, registration of shipping
documents, etc. [3].
The contract for the international carriage of goods is confirmed by a special
document. Transport conventions and agreements refer to them as a waybill, a carriage
document, anythning that keeps a record on the agreement of the upcoming
transportation.
Article 9 of the Customs Code of the Republic of Uzbekistan contains a rule indicating
that transport documents include a bill of lading, waybill or other document confirming
the existence of a contract for the carriage of goods and accompanying them during such
transportation [4].
An essential distinctive feature of transport documents confirming the conclusion
of a contract for the international carriage of goods is the enshrinement in the conventions
of the provision that their absence of transport documents, their incorrectness or loss does
not affect either the existence or the validity of the contract of carriage (Article 4 of the
Convention on the Contract for International carriage of goods by road (CMR) 1956 [5]).
In case of international carriage of goods, a set of additional documents required for
crossing the border is attached to the document confirming the contract of carriage. These
are documents presented to border, customs, sanitary and other official bodies performing
administrative functions. Such documents include, in particular, a permit to travel through
the territory of a foreign state, documents drawn up in accordance with customs
regulations (invoice, shipping and packing lists and other documents that are used in the
implementation of foreign trade and other activities to confirm transactions related to the
movement of goods across the customs border [6]), documents required for passing
sanitary and phytosanitary control and others. Mostly it is the consignor who prepares
such documents and the carrier resolves all issues related to border crossing.
The conclusion of a contract for the carriage of goods in world practice can be made
in the form of e-CMR or other documents considered by legislative acts, corresponding to
the mean of transport used while transportation. However, according to the legislation of
the Republic of Uzbekistan, only a written contract is the basis for the carriage of goods by
road. A waybill is considered as a single document for all participants in the transport
process, which is intended for writing off inventory items, accounting on the way of their
movement, posting, warehouse, operational and accounting, as well as for payments for
the transportation of goods and accounting for work performed [7]. For example, in the
Convention on the contract for the international carriage of goods by road, in Article 4 of
Chapter 3 it is noted that, the contract of carriage shall be confirmed by the making out of
a consignment note. The absence, irregularity or loss of the consignment note shall not
affect the existence or the validity of the contract of carriage which shall remain subject
the provisions of this Convention. [8]. At the same time, article 9 notes that the
consignment note shall be prima facie evidence of the making of the contract of carriage,
the conditions of the contract and the receipt of the goods by the carrier. If the consignment
note contains no specific reservations by the carrier, it shall be presumed, unless the
contrary is proved, that the goods and their packaging appeared to be in good condition
when the carrier took them over and that the number of packages, their marks and
numbers corresponded with the statements in the consignment note [9].
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The opinions of some foreign scientists also agree that the waybill is undoubtedly
proof of the conclusion of a contract of carriage, but in no case can be considered as the
contract itself. For example, Bramwell [10] noted that, in his opinion, the consignment note
is not a contract, it is a document reflecting the terms of delivery and transfer of goods,
thus it can be considered as an excellent proof of the terms of the contract, but not the
contract itself [11]. As noted by A.I. Khanov, an essential aspect of law enforcement
practice in relation to CMR norms is the interpretation of the role of correct filling of the
international consignment note. The international waybill is not a contract of carriage, but
indicates the existence of such a contract [12]. Supporting the point of view of the
abovementioned scientists, it should be noted that the invoice cannot be a contract, since
it has a strictly defined structure, while the terms of the contract are determined in
accordance with the parties.
With the development of digital technologies, the paper type of waybill began to be
gradually replaced by an electronic one. According to the Decree of the President of the
Republic of Uzbekistan No. PP-4842 of September 25, 2020 "On joining an international
treaty" [13] the invoice provided for in the CMR, as well as any request, declaration,
instruction, request, clause or other message related to the implementation of the contract
transportation, to which the CMR applies, can be executed using electronic means of
communication, while these documents must be signed with an electronic signature.
The International Road Transport Union identifies some of the key benefits to e-
CMR:
-
Lower costs, which means that handling costs can be up to three to four times less
expensive, faster administration with reduced data entry, no paper handling, no
fax/scan/letter exchanges, no paper archiving, etc. Faster invoicing and reduction of
delivery and reception discrepancies are also among advantages of e-CMR;
-
Greater transparency, namely data accuracy, control and monitoring of the
shipment, real-time access to the information and proof of pick-up and delivery.
Because of its digital nature, e-CMR can also be easily integrated with other services
used by transport companies, e.g. customs declaration or transport and fleet management
services. By moving to an electronic format, the three parties involved in each shipment
benefit from increased overall efficiency of logistics, resulting in increased economic
competitiveness. A final benefit, is greater road safety, as e-CMR can be linked to eCall, a
system for trucks that automatically dials emergency services in the event of a road traffic
accident [14].
The contract of carriage has a number of legal features related to the peculiarities of
the transport process. The rules on the carrier's liability for non-preservation of cargo are
unilaterally imperative.
One should consider that the carrier's liability for non-fulfillment or improper
fulfillment of the obligations assumed is limited, i.e. has an absolute or relative limit.
Although article 14 of the Civil Code of the Republic of Uzbekistan states that a person
whose right has been violated may demand full compensation for losses caused to him, if
the law or agreement does not provide for compensation for losses in a smaller amount. In
this case, losses are understood as expenses that a person whose right has been violated
has made or will have to make to restore the violated right, loss or damage to his property
(real damage), as well as lost income that this person would have received under normal
conditions of civil turnover, if his right had not been violated (loss of profits).
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Considering the provisions of the contract for the carriage of goods by road, it is
necessary to take into account the fact that the contract must include measures for non-
delivery, untimely delivery of vehicles, as well as for the supply of vehicles unsuitable for
the carriage of goods specified in the contract, as well as failure to present, untimely
presentation of cargo for transfer to the carrier. In addition, the issues of liability for the
consignor's failure to use the delivered vehicles for reasons other than being unsuitable
for transportation, as well as non-compliance with the established requirements and delay
in the dispatch of vehicles as a result of untimely packing, labeling and other preparatory
measures carried out by the consignor before the cargo is dispatched, are also important
and should be reflected in the contract. For these violations, the parties have the right to
provide for the payment of a fine, the payment of additional sums of money for the idle
time of vehicles and the delay in their dispatch, compensation for damages.
It is the unavoidability of liability that serves as a guarantor of compliance by the
parties with legislation and the terms of the contract. Proving the carrier's liability under
the contract for the carriage of goods by road is very ambiguous and complex, due to the
specifics of legal regulation in this area. This fact hinders the normal development of
economic legal relations between organizations and, accordingly, negatively affects the
commodity market [15]. The parties have the right to establish measures of liability for
other violations of the contract, and the more complete the list of measures of
responsibility, the more protected the parties will be, because this will help to avoid many
controversial points and, as a result, further legal costs.
The position of carriers engaged in road transportation today is very pecarious due
to the fact that they are not monopolists in their field, and therefore it is much easier for
cargo owners to insist on their conditions, including the amount of liability for improper
performance of the transportation contract. According to Art. 17 of the Convention "The
carrier shall be liable for the total or partial loss of the goods and for damage thereto
occurring between the time when he takes over the goods and the time of delivery, as well
as for any delay in delivery". Other types of violations, such as non-delivery, untimely
delivery of vehicles, are not specified in the Convention. However, "... Compensation shall
not, however, exceed 25 francs per kilogram of gross weight short. "Franc" means the gold
franc weighing 10/31 of a gramme and being of millesimal fineness 900" [16]. Damage
caused during the carriage of cargo or baggage in the event of its loss or shortage, shall be
compensated by the carrier in the amount of the value of the lost or missing cargo or
baggage. The comments to the Civil Code of the Republic of Uzbekistan note that the cost
of cargo is determined based on its price, which is established depending on the types of
transportation and transport according to the rules (methodology) approved by the
authorized state div and on the basis of the principles of the relevant international
conventions to which the Republic of Uzbekistan has joined [17].
As a result of a violation of obligations under the contract, the violator gets an
additional obligation. This is consistent with the system of obligations and is a significant
clarification of liability for violation of obligations, the fundamental provisions of the
agreement on the provision of services, and especially on transportation, as well as special
legislation, in particular the "Rules for the carriage of goods by road in the Republic of
Uzbekistan" [18]. Moreover, the Rules differentiate negative consequences depending on
the type and consequences of the violation.
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As you know, at the final stage of the execution of the contract of carriage, the
consignee has a considerable range of responsibilities that cannot and should not have a
third party in whose favor the contract is concluded. As Tychinin S.V., Peresypkin A.V.
noted "the modern design of the contract for the carriage of goods no longer meets the
needs of the time, the recognition of the consignee in the contract only as a third party is
not justified and not acceptable" [19]. Taking into account modern economic realities, we
believe that it is necessary to take a number of consistent steps towards reforming the
contract for the carriage of goods and determining the position of the consignee in the
contract for the carriage of goods.
CONCLUSION.
Studying the contract for the international carriage of goods by road the author
came to the following conclusions:
1. The contract of international carriage serves as a legal basis for the financial
liability of the parties in case of non-fulfillment or improper fulfillment of obligations.
2. The contract for the international carriage of goods is confirmed by a special
document, for transportation by road this document is a waybill.
3. The international waybill is not a contract of carriage, but it indicates the existence
of such a contract. The waybill cannot be a contract in essence, since it has a strictly defined
structure, while the terms of the contract are determined at the discretion of the parties.
4. The introduction of an electronic consignment note (e-CMR) in the Republic of
Uzbekistan will contribute to a significant reduction in costs, as well as an increase in
transparency and accuracy in transport of goods by road.
5. Determination of the position of the consignee in the contract for the carriage of
goods, as well as his responsibility under the contract for the international carriage of
goods should be at the center of legal science in this area.
References:
1.
Civil Code of the Republic of Uzbekistan. // [E-resource]. URL:
https://lex.uz/docs/111181 (Date of access 08/21/2020).
2.
Nizamov Zh.Z. Fulfillment of obligation in civil law. TDYUU. - 2012. P. 4.
3.
Sitdikova L.B .Legal regulation of relations for the provision of paid services: PhD.
- Kazan, 2012. p. 41.
4.
Customs Code of the Republic of Uzbekistan. // [E-resource]. URL:
https://lex.uz/docs/2876352 (Date of access 08/21/2020).
5.
Convention on the Contract for the International Carriage of Goods by Road
(CMR). Geneva, 19 May 1956. Entered into force for the Republic of Uzbekistan on
December 27, 1995 // [E-resource]. URL: https://lex.uz/docs/2661887 (Date of access
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Customs Code of the Republic of Uzbekistan. // [E-resource]. URL:
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7.
Rules for the carriage of goods by road in the Republic of Uzbekistan, approved
by the Resolution of the Cabinet of Ministers of the Republic of Uzbekistan No. 213 dated
01.08.2014.
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8.
Convention on the Contract for the International Carriage of Goods by Road
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See ibid.
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Atiyah. The Rise and Fall of freedom of contract 422 (1979) // supra note 22, at
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Debattista, Charles. “The Bill of Lading as the Contract of Carriage. A
Reassess
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The Modern Law Review, vol. 45, no. 6, 1982, pp. 652
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663. JSTOR, JSTOR, www.jstor.org/stable/1095356.
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Khanov A.I. On difficulties in interpreting the norms of the convention on the
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Resolution of the President of the Republic of Uzbekistan No. PP-4842 dated
September 25, 2020 "On joining an international treaty." National database of legislation,
September 26, 2020, No. 07/20/4842/1323
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Simple
and
effective:
we
present
e-CMR
electronic
waybills
https://www.iru.org/what-we-do/facilitating-trade-and-transit/e-cmr (Date of access:
25.11.2020).
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Klenkina O.V., Khoryakova E.S., Economics and management in social and
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No. 3. 2016. - Pp. 54-60
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access 07/22/2020).
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Commentary on the Civil Code of the Republic of Uzbekistan Volume 2. Ed.
Rakhmankulova H.R. and Asyanova Sh.M., T.: "SMI-ASIA", 2011. P. 636 (895).
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Rules for the carriage of goods by road in the Republic of Uzbekistan, approved
by the Resolution of the Cabinet of Ministers of the Republic of Uzbekistan No. 213 dated
01.08.2014 // Collected Legislation of the Republic of Uzbekistan, 2014, No. 32, art. 401.
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