Supporting the client in receiving compensation
Recently, the lawyers of Patriot.Legal Law Firm have defended the rights of an international carrier in litigation with Ukrainian counterpart.
Our client, an international carrier company, which front office is located in Belarus, had signed a “contract for rendering services in transportation of cargoes in international road traffic” with the Ukrainian company, which is also engaged in transportation and freight forwarding. The Ukrainian company in the framework of the contract had provided transportation services for our clients, but cars that were the subject of transportation have been delivered to the customer with damages, which have become the subject of a lawsuit. Of course, the inspection certificates of transported vehicles have been compiled and the Ukrainian company (the Defendant) has not relinquished presence of damages. The representative of the Defendant (a forwarding driver) had signed vehicles inspection certificates that means he had agreed that cargo had damages which had occurred in the course of providing his transport expedition services. Our client, (the Plaintiff), has sent to the Defendant a lot of compensation claims and the Defendant allegedly admitted those claims that means he didn’t deny them, but replied with explanation that due to the difficult economic situation in Ukraine he would pay the money for sure, but later. Therefore, the Plaintiff had not resorted to a judicial recovery and waited until the dispute would be settled in pre-trial order, but the Plaintiff didn’t take into account the limitation period. It should be noted that according to Part 1 of Article 53 of the Law of Ukraine “On Road Transport”, arrangement of international passenger and cargo transportation shall be carried out in accordance with the International Treaties of Ukraine on international road transport, which is the Convention on the Contract for the International Carriage of Goods by Road (CMR) of May 19, 1956 (hereinafter referred to as the Convention), which was ratified by Ukraine by the Law on Ukraine “On Accession to Convention on the Contract for the International Carriage of Goods by Road” of August 1, 2006. The parties to the contract had agreed that their relations would be based on the provisions of the Convention and the Customs Convention on the international transport of goods under carnet TIR. Clauses 1, 2 of Article 32 of the Convention provide for that the limitation period for claims arising from carriage to which the Convention extends is set at one year. Therefore, the Defendant had deliberately stalled for time, palmed off our client with promises, and the limitation period had been expiring.
But Patriot.Legal Law Firm team of lawyers have worked out a legal reasoning, which has led to the settlement of the dispute by entering into a settlement agreement at the stage of proceedings and full reimbursement of damages by the Defendant. The legal reasoning of the Plaintiff was based on the fact that the contract between the parties by their legal nature was the contract of freight forwarding, and according to Article 929 of the Civil Law Code of Ukraine one Party (freight forwarder) under the freight forwarding contract shall perform or arrange for the performance of certain contractual expedition services related to shipping for a fee and at the expense of the other party (the client). So, the dispute between the parties had arisen not directly from freight forwarding contract, but from legal relations on provision of services for arrangement and ensuring the transport of goods (freight forwarding activities), that is under the service contract associated with the transport of goods (as evidenced by the terms and conditions of the Contract, acts of services provision under specified contract and regulations of Art. 929 of the Civil Code of Ukraine, therefore, to these disputed legal relations the general 3 years limitation period shall be applied, established by Article 257 of the Civil Code of Ukraine. In justifying this position we have applied relevant references to the decision of the Commercial Court of Kyiv of July 7, 2016, on case No. 910/5732/16; the rulings of the Supreme Economic Court of Ukraine of April 30, 2013, on case No. 5023/4505/12, of April 29, 2014 on case No. 916/1383/13 and of December 3, 2014 on case No. 910/10933/14. In addition, it has been pointed out and proved that the Plaintiff has constantly worked to restore his rights, infringed by the Defendant as a result of improper fulfillment of his obligations, and therefore the violated right of the Plaintiff in any event is a right, protected by the requirements of Part 5 of Article 267 of the Civil Code of Ukraine, as evidenced by jurisprudence, inter alia: the rulings of the Supreme Economic Court of Ukraine of May 7, 2014 on case No. 10/52-05, of September 30, 2014 on case No. 915/2328/13, of October 28, 2014 on case No. 910/8900/14, of December 9, 2014 in case No. 910/11127/14, of April 14, 2015, on case No. 924/648/13.
Managing partner, attorney at law