Resolution of the Higher Commercial Court of Ukraine, dated February 08, 2017, case No. 911/2032/16. Available at http://www.reyestr.court.gov.ua/Review/64620853

Having satisfied the action the court of first instance proceeded from the fact that the cargo handed over for the transportation had not been delivered to the destination and had been partially lost. Therefore, the defendant, who at the request of the plaintiff had organized this transportation according to the freight forwarding contract, must in accordance with Articles 22, 623, 934 of the Ukrainian Civil Code, and Article 224 of the Ukrainian Commercial Code cover losses of the plaintiff caused in the course of the transportation of the cargo, in the amount of the actual value of the lost (missing) cargo.

The court of first instance came to the right conclusion that the defendant’s attempts to shift responsibility onto the carrier were groundless, because in accordance with part 2 of Article 932 of the Ukrainian Civil Code and Article 14 of the Ukrainian Law “On Freight Forwarding Services” a freight forwarder shall be responsible in the same way as for freight forwarder’s own activities for activities and negligence of third parties involved into carrying out a freight forwarding contract.

Resolution of the Higher Commercial Court of Ukraine, dated November 30, 2016, case No. 914/312/16. Available at http://www.reyestr.court.gov.ua/Review/63189723

In accordance with Article 924 of the Ukrainian Civil Code the carrier shall be liable for safekeeping cargo, luggage, and mail items from the moment of their acceptance for transportation until the moment of their delivery to the consignee, unless the carrier proves that loss, shortage, spoilage or damage to the cargo, luggage, and mail items occurred due to circumstances which the carrier could not prevent and elimination of which did not depend on the carrier.

The carrier is liable for the loss, shortage, spoilage or damage to the cargo, luggage, and mail items in the amount of actual damage, unless the carrier proves that this was not due to the carrier’s fault.

The said norm establishes the common for all kinds of transportation principle of carrier’s fault for loss, shortage, spoilage, and damage to cargo. The carrier is liable only in cases when the carrier is guilty. The burden of proving that the carrier is not guilty lies on the carrier.

Hence, the liability of the carrier is based on the principle of fault and, as a rule, the presumption of the fault of the obliged party should be applied. The carrier will be liable unless the carrier proves that loss, spoilage, and damage to cargo occurred due to circumstances which the carrier could not prevent and elimination of which did not depend on the carrier, in particular due to the fault of the shipper; specific natural properties of the cargo being transported; packaging defects, which could not have been revealed by an external inspection at the time of acceptance of the cargo for transportation, and due to other factors specified by law.

Damage to a cargo is a physical change of its properties (mechanical failures, defects, breakage). Cargo shortage is the situation when the cargo quantity delivered to a consignee is less than the quantity declared for the transportation. The carrier is responsible for keeping cargo safe during the period of its transportation.

Thus, the legislator imposes on the carrier the obligation to prove facts excluding carrier’s liability for not keeping cargo safe. The carrier is exempted from liability for not keeping cargo safe if loss, shortage, spoilage or damage were caused by force majeure. Loss, shortage, spoilage or damage to cargo, if not caused by force majeure, do not exempt the carrier from liability for failing to keep the cargo safe.

© Yuriy Karlash, English translation, 2017

© Yuriy Karlash, compilation, 2017