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Samenvatting tranport law
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Samenvatting Transport lawIntroduction
Contract of carriage and sales in the supply chain
Contract of sales
A contract of sale is an agreement between a seller and a buyer. The seller agrees to deliver or sell
something to a buyer for a set price that the buyer has agreed to pay. With these contracts, the
transfer of ownership happens when the buyer pays and the seller delivers.
- Art. 18.1 Consumer rights Directive
o Risk only passes upon physical delivery
Webshop has risk for damage during delivery
Carriage of contract
Value chain with carrier and subcarriers
- A contract of carriage is a contract between a carrier of goods and the consignor, consignee.
o The consignor is the sender of goods (seller)
o The consignee is the receiver of the goods (buyer)
- A carrier is a company or a person legally entitled to transport goods by land, water, and air.
o Carrier A is the multimodal carrier and does nothing and is the principal (damage?
Carrier A targeted and compensate the subcarrier)
o Forwarders contract with a carrier or often multiple carriers to move the goods from
one country to another (travel agency). He is the middle man and the CoC is between
sender and carrier (damage? Forwarder targeted when late in organizing –
negligence like temperature instructions fault)
Carrier must also deliver goods in the condition he received them (good in-good out)
Incoterms
Incoterms specifies who is responsible for paying for and managing the shipment, insurance,
documentation, customs clearance, and other logistical activities.
EXW sales
- You buy it from factory
- Minimal obligation for seller (packing included unless other said)
DDP sales
- Delivery at your door step (Online retail – consumer sales art. 18.1)
FOB sales
- Delivery on board of the ship
- Seller don’t has to look for a carrier in foreign country
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,Damage during delivery
Buyer refuse to take delivery (notification of damage or late delivery) and claims this against the
seller.
- Claim: substitute goods/compensation (no defences)
Seller claims this against this the carrier
- Claim: compensation (wide list of defences and limited compensation)
Late delivery
Sales contract: “delivery at time X”
Relevant for critical products (seasonal products/decay products – verval)
- If delivery by carrier is at x +1 =+> buyer can refuse to take delivery
- How to shift risk to carrier?
o Determine time for delivery
o Define special interest in delivery
Damage
Applicable law
Fragmented unification: separate conventions for each mode of transport
- Forwarding agent subject to national law
- Only international transport (but national legislator often incorporates conventions)
- For damage/loss/delay/liability
Declaration value of the goods (Art. 24 – CMR)
- Against surcharge declare in consignment value exceeding the limit in Article 23.3
Cargo insurance
Buyer seller insurance carrier
- ICC cargo insurance A:
o All risk (no defences – except clauses 4, 5, 6 and 7)
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,Cargo claim
1. Preliminary question: who bears the risk under the sales contract?
2. Notification of damage (both relevant under CoS as under CoC)
3. Identify carrier (forwarding agent or carrier?)
4. Establish damage took place during period of responsibility carrier
5. Rebut excuses invoked by carrier
6. Establish recoverable loss
7. Establish compensation in full is due
Arguments in court
Carrier can bring defences on base of exoneration ground or fault of forwarding agent (negligence).
- Theft: force majeur (17.2- CMR)
- Damage during transport: defective packing by shipper (17.4 – CMR)
Unlimited liability in cases of wilful misconduct
- Intends to breach of duty
- Reckless without knowing breach of duty
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, Scope of application
Hierarchy sources of contract terms
You build a contract by composing different bricks of legislation and terms.
1. Mandatory provisions (applicable framework of law rules for contracting parties)
Protection of the weak consumer – not part of contract of carriage
1. International law
2. Supranational law (EU)
3. National law
2. Express terms (agreed between parties)
3. Terms incorporated (general conditions/sector conditions/soft law)
4. Default rules (supplement)
Parties in transport: SHIPPER or SELLER – CARRIER – BUYER
Clause is invalid when mandatory law says different
Transport law
Transport is no general unification, limited to specific contract and questions.
- Does the question fall within scope of application?
The judge decides if its in contract/convention or not.
- Carrier – contract of carriage (convention) or forward argent – freight forwarding contract
(national law)?
Problem with conventions is that national law is interpretated.
Vienna convention on the law of treaties is a convention on the interpretation off the convention.
- Art. 31: interpreted in good faith
Interpratation in practise:
1. What is a CoC and what is freight forwarding contract according to national law?
2. What did the parties agree?
3. If CoC: convention is applicable
Scope of application
Damage/loss or delay cargo
- Road transport
o CMR
o International and from/to MS; except in excluded cargo
- Rail transport
o COTIF-CIM
o International and between MS
- Air transport
o Montreal Convention
o International and between MS (not between Warsaw Convention)
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