RESOLUTION OF THE PLENUM OF THE SUPREME ECONOMIC COURT OF THE REPUBLIC OF UZBEKISTAN

of January 5, 1994 No. 22

About practice of the dispute resolution, connected with shortage and spoil of fruit and vegetable products by deliveries and rail haulings

For the purpose of ensuring uniformity of court practice being guided by article 47 of the Law of the Republic of Uzbekistan "About courts", the Plenum of the Supreme Economic Court of the Republic of Uzbekistan,

DECIDES:

Explain according to the procedure of judicial interpretation that:

1. In case of the dispute resolution, connected with shortage and spoil of potatoes and fruit and vegetable products / further products / by deliveries and rail haulings to economic courts it is necessary to be guided by the Civil code of the Republic of Uzbekistan, the laws of the Republic of Uzbekistan "About the contractual legal base of activities of business entities", "About rail transport", "The charter of the railroads of the Republic of Uzbekistan", Rules of transportation of goods in the part which is not contradicting the legislation of the Republic of Uzbekistan, the corresponding standards and specifications.

Economic courts should check observance by the consignor, carrier and the consignee of statutory rules of shipment, transportation and issue, product acceptance by quantity and quality for the purpose of establishment guilty of shortage and spoil of products. It is necessary comprehensively, fully and objectively to research the facts of the case, to estimate the evidence produced by the parties according to the Economic Procedure Code of the Republic of Uzbekistan and to pass decisions taking into account all circumstances and case papers.

2. According to the Charter of the railroad of the Republic of Uzbekistan and Rules of transportation of goods the railroad shall deliver perishable loads, including potatoes and fruit and vegetable products, at the scheduled time, and in appropriate cases with observance of established procedure of ldosnabzheniye of rail reefers or the mode of servicing of cars with machine chilling or electric heating / the temperature mode/.

Therefore in case of the dispute resolution, connected with shortage and spoil of products, economic courts should check observance by the railroad of delivery dates and temperature condition, and in case of establishment of fault of the railroad in delay of delivery or in violation of temperature condition, to pass the decision taking into account in what degree it could influence formation of shortage or spoil of products.

If the receiver, in case of violation of the railroad of delivery dates or temperature condition, did not demand issue of load with check of its weight and condition and, in appropriate cases of creation of the commercial act, losses to be assigned to the supplier/sender / in that part in which responsibility could be conferred on the railroad.

If it is proved that both the railroad, and the consignor are guilty of shortage or spoil of products, the decision on dispute should be passed taking into account degree of fault of each of them.

3. In a number of standards and specifications it is provided that for determination of product quality shall it is made samplings/samples / in the course of unloading of products from the car. In this case time of the beginning and the termination of samplings/samples / shall match, as a rule, with time of the beginning and the end of unloading of products from the car. If samplings/samples / it is finished before the end of unloading of products, then in the act the procedure for samplings/samples / from part of the batch which remained in the car shall be described.

If the receiver skirted fixed terms of quality check of products, economic courts should check in what degree such violations could affect product quality, and taking into account it to pass decisions.

As review periods of product quality are estimated from the moment of giving of the car under unloading, the buyer/receiver / shall produce the evidence confirming time of giving of cars under unloadings/sheets of giving and cleaning of cars, instruction sheets of acceptance inspectors and other/.

4. In case of the dispute resolution economic courts should check whether the procedure for selection of products for selective check of its quality which is established by standards or specifications was observed. In case of violation of established procedure of selection / for example, it was selected test/sample / smaller, than it is provided, sizes / results of selective check cannot be extended to all received batch. In this case results of check extend only to those places, directly of which dredging for creation of average sample / test/, and in transit fruit and vegetable products наваломтолько on that product quantity which was selected as test/sample / was made.

If part of lot of products arrived to the receiver in the damaged container, and nature of damage of container demonstrates that such damage could affect product quality, it must be kept in mind that samplings/samples / for quality check of products shall is made separately from products which arrived in the damaged container and in operational container.

In case of the solution of question of observance by the receiver of established procedure of product acceptance on quality it is necessary to consider that in cases when in the act of not proper product quality the procedure for samplings/samples/, for example, the place and time of selection but only it is made a reference to the fact that tests/samples / were selected according to the standard, is not described by specifications, it does not deprive the act of evidentiary force if to contain in it data on the size selected test/sample/.

5. According to paragraph 12 of Rules of issue of loads the railroad issues potatoes, vegetables and melon cultures transported by pile with check of weight upon the demand of the consignee without restriction.

In case of the dispute resolution, connected with shortage of products to economic courts, it is necessary to consider that in cases when the consignee in case of operational transportation did not demand from the railroad of issue of the loads called above with check of weight, and product acceptance by quantity made after issue it the railroad according to the Instruction about procedure for product acceptance and goods by quantity about what the relevant statements confirming fault in shortage of the sender/supplier were drawn up/, such acts cannot be deprived of evidentiary force only on that basis that the receiver did not demand from the railroad of issue of load with check of weight.

In case of safe transportation and issue of load without check on the rail waybill putting down of mark according to Art. 65 of the Charter of the railroad of the Republic of Uzbekistan is obligatory. Lack of such mark in the rail waybill can form the basis for refusal in the recovery suit of damage of shortage.

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