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Методические указания Специальность 190701: «Организация перевозок и управление на транспорте (водном)» Новосибирск 2009 (стр. 12 из 20)

2. As in the case of large claims in non-marine insurance average
adjusters, i.e. assessors, are called in to examine damage and estimate
compensation. In a c.i.f. transaction, the exports transfer their right to
compensation, as the importer holds the bill of lading. In f.o.b. and c.&f.
transactions importers hold the insurance policy as they arrange their own
insurance.


5. Найдите в тексте причастия, определите их форму и функцию в
предложении.

6. Найдите в тексте Infinitive, определите форму и функцию
инфинитива.

7. Составьте аннотацию к тексту в письменном виде.

8. Прочитайте текст и письменно составьте аннотацию

Коносамент

Коносамент (от франц. connaissement) документ, содержащий условия договора морской перевозки. Наиболее распространён во внешней торговле. Выдаётся перевозчиком отправителю после приёма груза к перевозке, служит доказательством приёма груза и удостоверяет факт заключения договора. Коносамент является товарораспорядительным документом, предоставляющим его держателю право распоряжения грузом. Коносаменты могут быть: именными, в них указывается определённый получатель, передача их осуществляется при помощи передаточной надписи индоссамента или в иной форме с соблюдением правил, установленных для передачи долгового требования: ордерными (выдаются «приказу» отправителя или получателя), передача их также осуществляется посредством передаточной надписи; на предъявителя (передаётся посредством фактического вручения новому держателю коносамента). В СССР порядок составления коносамента и его необходимые реквизиты были установлены Кодексом торгового мореплавания РФ.

ЧАСТЬ 7. ТЕКСТЫ ДЛЯ ЧТЕНИЯ И ПЕРЕВОДА 4 КУРС

CARRIAGE OF GOODS

Carriage of goods in law is the transportation of goods by land, sea, or air. The relevant law governs the rights, responsibilities, liabilities, and immunities of the carrier and of the persons employing the services of the carrier.

Historical development

Until the development of railroads, the most prominent mode of transport was by water. Overland transportation of goods was relatively slow, costly, and perilous. For this reason, the law governing carriage of goods by sea developed much earlier than that governing inland



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transportation. The preclassical Greek city-states had well-developed laws dealing with the carriage of goods by sea, along with specialized commercial courts to settle disputes among carriers, shippers, and consignees. The sea laws of the island of Rhodes achieved such prominence that a part of them was carried, many centuries later, into the legislation of Justinian. In Roman law the contract of carriage did not achieve the status of a distinct contractual form; jurisconsults (legal advisers) dealt with it in the framework of the contractual forms known to them, such as deposit and hire of services or of goods. There was special regulation only insofar as the responsibility of the carrier was concerned: shipowners (nautae). along with innkeepers and stable keepers, were liable without fault for destruction of or damage to the goods of passengers. Nevertheless, they could be relieved of responsibility by proving that the loss was attributable to irresistible force.

In English common law the principles applying to the relationship between the carrier and his customers go back to a time when neither railways nor canals existed. Whether influenced by Roman law or derived quite independently, early English decisions imposed on carriers the obligation not only to carry goods but to carry them safely and to deliver them in good condition to the owner or his agent. The carrier was always liable for the loss of the goods and also liable for any damage to the goods, unless he could prove that the loss or damage had resulted from an excepted cause. This duty of the carrier to deliver the goods safely was considered to exist without regard to obligations arising under any contract between the parties. It was imposed upon him by the law because he had been put in possession of another's goods. In legal language, this meant that the carrier was considered to be a bailee, who, in certain circumstances, was liable to the bailor if he failed to deliver the goods intact. This law of bailment developed in England long before the law of contract. The contractual element of bailment was not stressed until after the 17th century. Today, in common-law countries, the rights and liabilities of shippers consignees, and carriers are in the large majority of cases based on a contract of carriage, whether express or tacit. The mere fact that, in the ordinary course of his business, a carrier accepts goods for carriage and delivery implies the making of a contract of carriage. The right of the carrier to claim the freight depends on this contract, and this contract is also the foundation of his duty to carry the goods safely to their destination. But there remain vestiges of bailment in the law of carriage of goods. Thus, the owner of the goods, though not a party to the contract of carriage between the shipper and the carrier, may sue the carrier for loss of or damage to his goods


In civil-law countries, the contract of carriage first achieved distinct form in the early 19th century. The French Civil Code of 1804, following the Romanist tradition, still dealt with the contract of carriage as a species of the contract for the hire of services and further subjected carriers to the same obligations as depositaries; but the French Commercial Code of 1807 established a special legal regime for professional carriers, making the contract of carriage a distinct contractual form. Subsequent civil and commercial legislation in civil-law countries gave expression to the same idea. Today, in the civil-law world, the contract of carriage may be regarded as a variation of the contract for the hire of services, namely, a contract whereby one of the parties engages to do something for the other party in consideration of a price agreed upon between them. Specifically, the contract of carriage of goods may be defined as the contract whereby a professional carrier engages to carry goods in accordance with a determined mode of transport and within a reasonable time, with the understanding that the carriage of the goods is the principal object of the contract.

In France and in a great number of countries following the French system, a contract of carriage requires the presence of three indispensable elements: carriage, control of the operation by the carrier, and a professional carrier. If any of these elements is missing, the contract is one for the hire of services rather than a special contract of carriage. The classification of a contract as a contract of carriage involves significant legal consequences. Exculpatory clauses in a contract of carriage are ordinarily null and void; receipt of the goods by the consignee and payment of the freight without protest within a designated period of time exclude all actions against the carrier; actions that may be brought against the carrier are subject to a short period of limitation, that is, one year; the carrier has a privilege, which corresponds to a common-law lien, on the things carried for the payment of the freight; and, finally, either party to a contract of carriage may demand that experts determine the condition of the things carried or intended to be carried.

Characteristics of carriage Common-law common carrier

In English and American law, common carriers are distinguished from other carriers. A common carrier is one who holds himself out as being ready to carry goods for the public at large for hire or reward. In England carriers of goods by land that are not classified as common carriers are termed private carriers; carriers of goods by sea or by inland water that are not classified as common carriers may be public carriers, namely,



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professional carriers who do not hold themselves out as ready to serve the general public or persons who carry goods incidentally to their main business or for one consignor only. In the United States distinction is made among common carriers, contract carriers and private carriers. A person who engages to carry the goods of particular individuals rather than of the general public is a contract carrier; a person who carries his own goods is a private carrier. Both a common carrier and a contract carrier are engaged in transportation as a business. The basic difference between them is that a common carrier holds himself out to the general public to engage in transportation, whereas a contract carrier does not hold himself out to serve the general public. The exact boundary between common carriage and contract carriage is not always clear.

Л person may be a common carrier although he limits the kinds of goods that he is ready to carry, the mode of transport, or the route over which he is prepared to carry. He is a common carrier only to the extent that he holds himself out as ready to carry goods for the public. It is indispensable for the classification that he accepts reward for the carriage and that his principal undertaking is the carriage of goods. Ancillary carriage for purposes of warehousing does not make one a common carrier. Unless the law provides otherwise, a carrier may cease at any time to be a common carrier by giving notice that he is no longer ready to carry goods for the public at large.

The distinction between common carriers and carriers that are not classified as common carriers, such as private carriers or contract carriers, involves significant legal consequences in the light of both common law and legislation. Common carriers are everywhere subject to strict economic regulation. Thus, a common carrier is forbidden in the United States to charge unreasonably high rates or to engage in unjust discrimination, whereas a contract carrier may charge rates as high as he pleases and may discriminate among his customers, provided that none of his discriminatory rates in motor and domestic water transportation is unreasonably low. In both England and the United States, a common carrier must serve everyone who makes a lawful request for the services he offers but a private or contract carrier may select his customers; a common carrier is liable for any loss or damage to the goods during carriage, unless the damage or loss is attributable to certain excepted causes, whereas a contract carrier or private carrier is only liable for damage or loss through his negligence; contractual clauses relieving the carrier from liability may have different effects depending on the status of the carrier as common carrier or private carrier; and, finally, the common carrier has a common-law lien on the goods,


whereas other carriers may have none in the absence of contractual provision or may have a less extensive lien than that of the common carrier.

Civil-law public carrier

The concept of common carrier has no exact equivalent in civil-law systems. But, if one looks to substance rather than form or terminology, one may conclude that the concept of public carrier in civil-law systems is a functional equivalent of the concept of common carrier. A public carrier is a professional carrier of goods or passengers; he is distinguished from a private carrier who either carries his own goods exclusively or carries goods incidentally to his other business. Generally, the scope of private carriage is narrowly defined so that most carriage operations fall under the rubric of public carriage; this ensures maximum application of rules designed to safeguard the public interest in the carriage of goods. Public carriers, like common carriers in common-law countries, are subject to strict economic regulation and are under the supervision and control of administrative agencies. When a public carrier is also a professional merchant normally an individual or a private corporation, he assumes all the duties, obligations, and liabilities attaching to merchants under applicable commercial codes or special legislation. Like a common carrier, a public carrier must accept the goods lawfully delivered to him for carriage, either because he is held to a permanent offer made to the public or because he is under obligation to carry by virtue of public legislation or administrative regulations. Unlike common carriers, public carriers are not liable for loss or damage to the goods without fault; this difference is more apparent than real, because carriers in civil-law systems are presumed to be liable, unless they prove that the loss or damage occurred without their fault.

Duties and liabilities of carriage

Common carriers and public carriers are under duty to carry goods lawfully delivered to them for carriage. The duty to carry does not prevent carriers from refusing to transport goods that they do not purport to carry generally. Carriers may indeed restrict the commodities that they will carry. Further, everywhere, carriers may refuse to carry dangerous goods, improperly packed goods, and goods that they are unable to carry on account of size, legal prohibition, or lack of facilities.

Liability for safety of the goods

Everywhere, carriers incur a measure of liability for the safety of the goods. In common-law countries carriers are liable for any damage or for the loss of the goods that are in their possession as carriers, unless they



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prove that the damage or loss is attributable to certain excepted causes. The excepted causes at common law include acts of God, acts of enemies of the crown, fault of the shipper, inherent vices of the goods, and fraud of the shipper. In maritime carriage perils of the sea and particularly jettison are added to the list of excepted causes. All these terms have technical meanings. An act of God is an operation of natural forces so unexpected that no human foresight or skill may be reasonably expected to anticipate it. Acts of enemies of the crown are acts of enemy soldiers in time of war or acts of rebels against the crown in civil war; violent acts of strikers or rioters are not an excepted cause. Fault of the shipper as an excepted cause is any negligent act or omission that has caused damage or loss for example, faulty packing. Inherent vice is some default or defect latent in the thing itself, which, by its development, tends to the injury or destruction of the thing carried. Fraud of the shipper is an untrue statement as to the nature or value of the goods. And jettison in maritime transport is an intentional sacrifice of goods to preserve the safety of the ship and cargo.

When goods are damaged or lost as a result of an excepted cause, the carrier is still liable if he has contributed to the loss by his negligence or intentional misconduct. In this case, however, the burden of proof of the carrier's fault rests on the plaintiff.

In civil-law countries the carrier under a contract of carriage is ordinarily bound as a warrantor for any damage to or loss of the goods carried, unless he proves that the damage or loss has resulted from irresistible force (force majeure), the inherent vice of the goods, or from the fault of the shipper or of the consignee. This contractual liability of the carrier under the general law is frequently modified by special legislation or by international conventions. In addition to his contractual liability, the carrier may, of course, incur liabilities that arise without contract. The carrier's contractual liability is often termed an ""obligation of result," because the carrier, or a warrantor, is bound to make full restitution, unless he manages to exculpate himself in part or in whole.

Limitations of liability

In the absence of contrary legislation or decisions, carriers in common-law jurisdictions have been traditionally free to exclude or limit their liabilities by contract. In civil-law jurisdictions, as a rule, contractual clauses tending to limit liability for negligence or for willful misconduct have been considered null and void. Today, in most countries, municipal legislation and international conventions ordinarily limit the liability of certain carriers to a specified amount per weight, package, or unit of the

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