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A lifetime of innovation

Development of legal basis for transport and freight forwarding activities in the Russian Federation 05.04.2002

TransRussia-2002 publications 25.03.2002

Presentation by Valery Alisseitchik, President of the RF Freight Forwarders Association, at the international TransRussia-2002 Conference

At present legal base for the transport and freight forwarding activities in the Russian Federation practically doesnt exist. Chapter 41 of the Civil Code of the Russian Federation is related to the Agreement on Transport Forwarding and doesnt entirely define freight forwarding activity as such. It just defines framework of this activity and a fact of Its existence In the civil and legal practice.

Articles 801-805 of the Civil Code state main provisions of the Agreement on Transport Forwarding. At the same time It is worth noting That even the term "transport forwarding" doesnt correspond to the real situation, since the freight forwarder represents the interests of the cargo owner, but not (he interests of the transport provider, and therefore it would be legally correct to use the term "freight forwarding". The code states that according to the Agreement on Transport Forwarding one party (the forwarder) takes responsibility to carry out or arrange fulfillment of the services, determined by the agreement for freight forwarding and related to the cargo transportation, for the remuneration and at thee expense of the other party (The client - the shipper or the consignee).

As a rule (he main provision of the agreement on freight Forwarding Is the arrangement of cargo transportation by unimodal or interrmodal ways, that is by one or several types of transport. In this case the freight forwarder imposes upon himself wide range of responsibilities. Particularly, relating a cargo owner hi Is acting as the carrier by agreement and becomes the agent of the cargo owner In his relations with actual carriers, ware-holders, transshipment enterprises, customs and other participants of the transportation process. Towards all of them- he is acting as a principal. Responsibility of the freight forwarder is determined in the wrong way. Article 803 of the Civil Code sets the responsibility of the freight forwarder in accordance with the rules of chapter 25 of the Civil Code. This chapter deals with the responsibility for the property of that party to the agreement, which directly owns or commands the material valuables that were paid over to this party by the other party. What concerns the freight forwarder, he mainly arranges documents of transportation and in few cases receives goods for his own treatment. Therefore, for this reason the international practice imposes the limitation of the responsibility of the freight forwarder.

The national freight forwarding rules are widely and actively used in the world practice. The general terms of the freight forwarders activity, which are ruling in Russia most thoroughly, regulate relations of the freight forwarder with his partners. However, these general terms do not have the legal nature and have limited range of the use. Their ruling may be applied only to the members of the association provided that they agree to use them.

In 1996 FIATA has adopted a new model of standard freight forwarding terms, the association has worked out and agreed with Its members new general terms of freight forwarders activity and is going to put them shortly into effect.

The purpose of elaboration of this document Is to simplify procedure of arranging documents for the agreement of freight forwarding.

Use of the general terms in international practice allows contractors not to conclude separate agreements on freight forwarding, but make reference to these forwarding conditions when establishing general relations. They should agree only on financial issues (the rates, tariffs and remuneration).

One should keep in mind that under our conditions use of the general terms in such form is quite problematic, since the tax imposing agencies and the customs make demands to conclude an agreement on freight forwarding in written form for each deal.

At the same time in a number of cases use of these terms is obligatory. Particularly, it is conditioned by the fact that In order to use four freight forwarding documents of FIATA (forwarding instructions, warehouse receipt, forwarders certificate of receipt and forwarders certificate of transport) it is required to use the national freight forwarding terms. They are being printed on the back side of the abovementioned FIATA document and without them the documents arc not valid.

The general terms corn price basic notions of the agreements on freight forwarding, rights and responsibilities of the freight forwarder and the cargo owner, their liability. That is. That The freight forwarding terms mean the agreement on freight forwarding which doesnt regulate the financial relations between the freight forwarder and the cargo owner.

National freight forwarding terms have different legal status in various countries. In some countries the/ have the validity of the law and in the other countries freight forwarding terms are approved by governments. Then there are some countries including Russia, in which the freight forwarding terms are approved by the commercial and industrial chambers.

Approval of the general terms by the Government of Russia would legalise principles of the agreement on freight forwarding. At the same time it would help freight forwarders and cargo owners to simplify their relationship. In a way It Is the unification of the relations under the agreement.

Insufficiency of legal base for freight forwarders activity leads to unstable position of freight forwarding enterprises as well as to different interpretation of those legal acts, which had been already adopted. What concerns the notion of exportation of freight forwarding services it has not been settled either. In this connection, tax imposing agencies in various regions of the country interpret provisions of the Taxation code differently and, as a consequence, taxation of freight forwarding services has a subjective nature.

Freight Forwarders Association of Russian Federation has taken direct part in working out a federal law on freight forwarders activity. However, in our view, the project of this law comprises some provisions of transport regulations and doesnt entirely reflect activity of the freight forwarder. We hope that during of discussion of this project of the law in the legal bodies of the executive organs (and especially In those of the legislative ones) It will undergo necessary changes in favor of the real regulation of the freight forwarders activity. In spite of some shortcomings of this project its approval will play a significant role in acknowledging the freight forwarding activity as the Independent part of services sphere.

At present work Is under way on project of law "On the railway transport" and °Regulations of the railways" In which the Association is lading an active part. It was suggested to include into these projects the provisions determining the legal status of freight forwarders. It will allow to differentiate clearly the rights and the responsibilities of freight forwarders and carriers while arranging and carrying out cargo transportation by railways-Association takes part in the work on new customs code, the government project of which comprises provisions on relationship between customs and freight forwarders. In the new customs code status of (he freight forwarder will be equated to the status of the cargo owner.

One of the important projects of the legal base for the freight forwarders activity is the "Convention on organizing freight forwarding activity of CIS member states". This document is being worked out under the aegis of the Executive Committee of the Community of Independent States and will regulate activity of freight forwarders in member countries. This document unifies freight forwarding activity CIS countries and works out common approach to the activity of the freight forwarders of these countries. Elaboration of this Convention has just begun and we are looking forward to fruitful cooperation with Associations of freight forwarders of CIS countries in elaboration and further approval of this legal act.

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