of October 24, 2012 No. 9
About some questions of hearing of cases arising from agreements of motor transportation of loads and transport expedition
Plenum of Supreme Economic Court of the Republic of Belarus for the purpose of ensuring the correct and uniform application by economic courts of the legislation by hearing of cases, the loads arising from agreements of motor transportation and transport expedition, being guided by Articles 74, 75 Codes of the Republic of Belarus about judicial system and the status of judges, decides to make the following explanations.
1. Judicial protection of the rights and legitimate interests of persons participating in the cases arising from agreements of motor transportation of loads and transport expedition is guaranteed by part two of Article 13 and part one of article 60 of the Constitution of the Republic of Belarus.
Owing to part one of article 8 of the Constitution of the Republic of Belarus the Republic of Belarus recognizes priority of the conventional principles of international law and provides compliance to them of the civil legislation.
2. Legal regulation of agreements of motor transportation of loads is provided, in particular, by the Convention on the Contract for the International Carriage of Goods by Road (KDPG) accepted in Geneva on May 19, 1956 taking into account the Protocol accepted in Geneva on July 5, 1978 (further - the Convention), Chapter 40 of the Civil code of the Republic of Belarus (further - group of companies), the Law of the Republic of Belarus of August 14, 2007 "About road transport and motor transportations" (The national register of legal acts of the Republic of Belarus, 2007, No. 199, 2/1375; 2010, No. 17, 2/1661) (further the Motor carrier act and motor transportations), the Rules of motor transportations of loads approved by the resolution of Council of Ministers of the Republic of Belarus of June 30, 2008 No. 970 "About approval of Rules of motor transportations of loads" (The national register of legal acts of the Republic of Belarus, 2008, No. 173, 5/27990; No. 304, 5/28956; 2011, No. 11, 5/33160; No. 25, 5/33371; No. 44, 5/33659; No. 48, 5/33669) (further - Rules of motor transportations of loads).
3. In case of application of regulatory legal acts in the field of motor transportation of loads it is necessary to consider the sphere of their application, action in time, in space and around persons, to be guided by the terms and their determinations accepted for the purposes of these regulatory legal acts.
4. In Item 4 of article 1 of the Convention, article 2 of the Motor carrier act and motor transportations the relations to which their action does not extend are determined.
5. The convention is applied on the cases arising from agreements of motor transportation of loads for remuneration in cases when the acceptances specified in the agreement the place to cargo hauling and the place provided for delivery of load are in the territory of two different countries from which, at least, one is participating in the Convention (Item 1 of article 1 of the Convention).
6. Agreement parties of the international motor transportation of loads, falling under operation of the Convention, the sender and carrier are; participant of such agreement is also the receiver. Such agreement is established by delivery note (the international commodity-transport superimposed CMR). Requirements to content of delivery note (the international commodity-transport superimposed CMR) are stipulated in Article 6 Conventions. Absence, abnormality or loss of delivery note do not affect neither existence, nor validity of the transportation agreement to which and in this case resolutions of the Convention (article 4 of the Convention) are applied.
For clarification of amount of the rights and obligations of the sender, carrier, the consignee economic courts should give assessment to content of delivery note (the international commodity-transport superimposed CMR) (including to specifying of the amount of transportation payment (the subitem i of Item 1 of article 6 of the Convention), availability of the instructions this to carrier, other instructions and clauses), to other data specified in the documents relating to this transportation.
7. In case of enforcement of a convention it is necessary to consider that:
by the general rule, the stipulated in Clause 41 Convention, is recognized not valid any condition in the agreement which directly or indirectly allows departure from resolutions of the Convention. Invalidity of such condition does not attract invalidity of other conditions containing in the agreement;
according to the clause containing in article 41 of the Convention concerning provisions of article 40 of the Convention in transit made consistently by several carriers, carriers have the right to establish under the mutual agreement of contract clause, departing from the provisions containing in articles 37 and 38 of the Convention.
8. In case of application of Chapter 40 of the Civil Code it is necessary to consider that its rules are applied to motor transportations of loads so far as other is not provided by legal acts. At the same time condition of carriages can be determined both by acts of the legislation, and the agreement of the parties (Item 2 of Article 738 of group of companies).
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