DISPUTES RELATED TO THE CONCLUSION, MODIFICATION, OR TERMINATION OF AN AGREEMENT (TRANSACTION) AND FULFILLMENT OF CONTRACTUAL OBLIGATIONS UNDER THE CONTRACT OF CARRIAGE

     Cases of this category can be conditionally divided by the subject of the claim into the following types: - for claims of the carrier against the shipper for the recovery of penalties accrued for non-fulfillment of the cargo transportation plan; - on debt collection related to improper fulfillment of obligations under the contract of carriage; - recovery of damages related to improper fulfillment of obligations under the contract of carriage; - the collection of fees for the use of wagons.

             The plaintiff did not comply with the mandatory pre-trial dispute resolution procedure established by law for this category of cases, and the possibility of applying this procedure has not been lost. Moreover, the court of first instance considered a dispute beyond its jurisdiction in violation of the requirements of the CPC on exclusive jurisdiction.

             By the decision of the court of first instance dated 10/20/2014, the claim of VISM LLP against Kazakhstan Temir Zholy National Company JSC for the recovery of 296,003 tenge written off for idle wagons was satisfied.

By a decision of the appellate judicial board of the Karaganda Regional Court dated 02/19/2015, the court's decision was overturned, leaving the claim without consideration in accordance with part 1 of Article 249 of the CPC, because the plaintiff did not comply with the mandatory pre-trial dispute resolution procedure established by law for this category of cases and the possibility of applying this procedure has not been lost.

Thus, in accordance with paragraph 1 of Article 706 of the Civil Code, before filing a claim against the carrier arising from the carriage of goods, it is mandatory to file a claim against him in accordance with the procedure provided for by legislative acts. Moreover, the court of first instance considered a dispute beyond its jurisdiction in violation of the requirements of part 3 of Article 33 of the CPC on exclusive jurisdiction, by virtue of which claims against carriers arising from the transportation of goods, passengers and baggage are filed at the location of the permanent body of the transport organization, i.e., the plaintiff should have filed a claim with the relevant court. Astana at the location of the respondent carrier JSC National Company "Kazakhstan Temir Zholy".

The court shall terminate the proceedings in the case if the organization acting as a party to the case has been liquidated with the termination of its activities and the absence of legal successors.

             JSC "National Company "Kazakhstan Temir Zholy" filed a lawsuit against LLC "Mashresurs" to recover the amount of damage caused as a result of idle wagons in the amount of 32,607,276 tenge and the obligation to free the station tracks from unauthorized occupation of tank wagons.

According to subparagraph 6 of Article 247 of the CPC (as amended in 1999), the court terminates the proceedings if the organization acting as a party to the case is liquidated with the termination of its activities and the absence of legal successors.

From the unified state register of legal entities as of 04.11.2015, it follows that the Inspectorate of the Federal Tax Service for Taganrog, Rostov Region of the Russian Federation made an entry on the liquidation of LLC Mashresurs with the termination of its activities on 05/20/2014, there is no information about legal successors.

In this regard, by the ruling of the Specialized Interdistrict Economic Court of the Aktobe region dated December 15, 2015, the civil proceedings in the claim of JSC National Company Kazakhstan Temir Zholy to LLC Mashresurs for the recovery of the amount and the obligation to release the station tracks were terminated.

The Court of Appeal changed the basis for making an essentially correct decision - from the expiration of the statute of limitations to the lack of proof of claims.

In accordance with paragraph 2 of Article 706 of the Civil Code, the limitation period for claims arising from cargo transportation is set at one year. On this basis, the Ministry of Energy of the Pavlodar region refused to satisfy the claim against Bogatyr Trans LLP for damages.

By the decision of the appellate judicial Board of the Pavlodar Regional Court dated October 28, 2014, the said decision was changed, with the exclusion from the reasoning part of the decision of the indication of the need to dismiss the claim on grounds of missing the limitation period.

The Court of Appeal indicated the lack of proof of the claims as the reason for the refusal. When checking the appealed court decision in accordance with Article 345 of the CPC in full, it was established that the conclusion of the decision on the need to dismiss the claim was essentially correct, but the court incorrectly motivated this decision.

The Judicial Board indicated in its ruling that, on the grounds of the expiration of the limitation period, the claim should be refused if the claims are justified, i.e., subject to satisfaction if they are filed within the limitation period.

In this case, the court did not actually assess the evidence of the claims. At the same time, it follows from the case file that the arguments of the appeal on the evidence of the claim are untenable. It directly follows from clause 7.4.3 of the contract that the defendant is obliged to compensate the plaintiff's losses in the form of a fine for disrupting the transportation plan only if this happens due to the failure of the defendant's wagons due to the fault of the defendant himself. Neither the defendant's guilt nor the ownership of the wagons that were not submitted for loading were established.

The Appeals board considered that conclusions could not be drawn from the evidence presented to the court: neither that there were discrepancies in the number of the defendant's wagons, which the defendant had undertaken to submit for transportation (in applications agreed by the parties, etc.) and had actually submitted; nor that the missing wagons had not arrived due to the defendant's fault.

The plaintiff in violation of the requirements of Articles 65-68 of the CPC (as amended dated 1999) did not provide the court with any reliable and relevant evidence of the circumstances essential to the dispute, such as the ownership of wagons that were not submitted for loading and the defendant's guilt in not submitting them.

Thus, the court of first instance, in substantiating the correct decision on the merits, allowed the lack of evidence of the circumstances relevant to the case established by it and incorrectly applied the substantive legislation.

In this regard, the court of appeal changed the basis for making an essentially correct decision - from the expiration of the limitation period to the lack of proof of the claims.

It should be noted that claims for debt collection for services provided are practically indisputable, since the payment procedure is regulated by the contract, an invoice is issued for each client's request, and an act of services rendered is signed, which is sufficient evidence of the volume and cost of services rendered. As a rule, a reconciliation report is signed between the parties, by which the client agrees with the amount of the debt. In these cases, the parties come to an amicable agreement, or the cases are considered in a simplified procedure with satisfaction of the claims.

So, in two cases considered by the Council of Economic and Social Council of the Pavlodar region, on the claim of IP Anisenkov V.V. to Standard-1 LLP and on the claim of IP Lubensky to Standard-1 LLP for debt collection and penalties under contracts for the provision of transport services by road, decisions were made in simplified proceedings to satisfy the claim.

In the case of the claim of Ekibastuz Trans LLP against Kazakhcement LLP for debt collection and penalties under contracts for the provision of railway wagons for the transportation of cement, a decision was also made in a simplified procedure to satisfy the claim. In 2 cases: the claim of IP Vorobyov A.M. to IP Elenchuk, and the claim of IP Lebedev S.V. to IP Elenchuk for debt collection and penalties under contracts for the provision of services for the transportation of goods on international and national road transport, disputes were resolved through the conclusion and approval by the court of amicable agreements.

Penalties imposed by JSC "National Company Kazakhstan Temir Zholy" for non-fulfillment of transportation plans are collected from the recipient, who regressingly collects the losses incurred from the wagon operator who did not ensure timely delivery and cleaning of wagons. The current judicial practice in the analyzed category of cases does not have any ambiguities, and law enforcement in such disputes is stable.

Payment for the use of wagons

Article 10 of the Law of the Republic of Kazakhstan "On Transport" establishes that free (contractual) tariffs are established for the transportation of goods, passengers, baggage and services related to transportation, including multimodal transportation (except for the cases provided for in part four of Article 9 of this Law), ensuring the activities of carriers and transport enterprises.

Regulated tariffs (uniform within the state) may be established for certain types of transport services as a means of implementing the state's social policy or as a means of overcoming monopolistic activities in the field of transport in accordance with the procedure established by the legislation of the Republic of Kazakhstan.

In accordance with subparagraph 1 of paragraph 1 of Article 49 of the Law of the Republic of Kazakhstan "On Railway Transport" dated December 8, 2001 No. 266, payment for the use of wagons and containers is made to the carrier, and if there is a corresponding agreement, to the owner of wagons and containers by the shipper, consignee, or branch owner: for the entire time spent with the shippers, consignees, and branch owners of wagons., containers, including the time set by the rules of transportation for loading (unloading) and shunting operations.

According to the judges of the East Kazakhstan Regional Court, as stated in the analysis of judicial practice, the fee for the use of wagons that do not belong to the carrier is actually a separate type of fee, not identical to the fee for the use of wagons, which is also provided for by the legislation of the Republic of Kazakhstan as an additional service of a natural monopoly entity in railway transport, simply under a different name. In fact, this means paying for the use of the shipper for loading and unloading the carrier's main railway networks to accommodate wagons that do not belong to the carrier.

In support of this conclusion, the East Kazakhstan Regional Court refers to article 4 of the Law of the Republic of Kazakhstan "On Natural Monopolies and Regulated Markets", according to which the services of the mainline railway networks, with the exception of the services of the mainline railway network, for the transportation of goods in containers and the transportation of empty containers, belong to the spheres of natural monopolies in the Republic of Kazakhstan.

Paragraphs 40, 41 of the Law "On Railway Transport" define that the mainline railway network is a system of interconnected main and station tracks, as well as power supply, heat supply, water supply, alarm systems, communications, devices, equipment, buildings, structures, railway stations and other facilities technologically necessary for their operation., providing international and intra-republican railway services.

Mainline railway network services are services provided to carriers by a National Infrastructure Operator related to the use of the mainline railway network for the passage and movement of trains. By virtue of Article 7-1 of the Law of the Republic of Kazakhstan "On Natural Monopolies and Regulated Markets", state price regulation applies to goods (works, services) of subjects of regulated markets in the field of railway transport ... The authorized body approves the list of goods (works and services) of subjects of regulated markets to which state price regulation applies.

The Government of the Republic of Kazakhstan, on the proposal of the authorized body, establishes a range of products, goods and services for which state-regulated prices are applied on commodity markets not provided for in paragraph 1 of this Article.

Based on the above legal norms, the courts of East Kazakhstan region conclude that the state grants the carrier the right to independently determine free (contractual) tariffs related to transportation, but at the same time provides for restrictions in the form of price regulation for the services of the mainline railway network.

In this regard, the courts of East Kazakhstan region consider that the inclusion by the Government of the Republic of Kazakhstan in the product range of services for the provision of wagons supplied for loading and unloading will establish mandatory rules based on which the cost of services of a natural monopoly entity will be determined.

This will make it possible to verify the validity and economic feasibility, that is, the adequacy of the fee, which is not regulated by an agreement between the carrier and the shipper. Making appropriate proposals regarding the legal nature of fees for the use of wagons that do not belong to the carrier would help to understand the actual nature of the legal relations developing on the railway and, as a result, reduce the number of legal disputes.

The practice of considering these cases is still not uniform, despite the fact that it was formed taking into account the opinions of all the judicial authorities involved in the consideration of these cases.

In these cases, the circumstances essential for calculating the amounts indicated in the claims were not disputed - the number of inventory wagons submitted and the time they were on the access roads from the moment of submission to acceptance for transportation.

The right of the carrier to charge and collect payment for the use of wagons by the shipper, the recipient during the specified period of time, as for an independent service, was disputed.

The difficulty of considering these disputes lies in the fact that each of the parties bases its position on the formally correct interpretation and application of certain norms of the current substantive legislation, and the individual errors made by the parties do not affect the validity of the entire position.

The main circumstances to which the parties reasonably refer are the following rules of law and evidence.

Thus, the position of JSC National Company Kazakhstan Temir Zholy is motivated by the fact that shippers are required to pay for the use of inventory wagons submitted for loading – from the moment they are delivered to the access roads until the loaded wagons are accepted for transportation.

These requirements are based, among other things, on the following legal norms and evidence: - on subparagraph 1 of paragraph 1 of Article 49 of the Law of the Republic of Kazakhstan "On Railway Transport" that the fee for the use of wagons and containers is paid to the carrier, and if there is a corresponding contract, to the owner of wagons and containers by the shipper, the recipient, the branch owner.

That is, due to the absence of a contract, this provision obliges the shipper to make such a payment.;

- article 10 "On Transport in the Republic of Kazakhstan", according to which free (contractual) tariffs are established for services related to transportation, ensuring the activities of economic entities engaged in transport activities, since the carrier is not a monopolist for this service.;

- on the Tariff Guide (Price List) (Part 3) "Fees for the use of freight wagons and containers, fines and fees for additional operations related to transportation", approved by the order of JSC NC KTZ dated August 31, 2004 No. 440-C.

The carrier considered as proof of the conclusion of the contract for the use of wagons the fact that the defendant submitted applications for transportation and the fact of execution of these applications, confirmed by documents on the submission of wagons for loading and acceptance of these wagons for transportation.

By virtue of paragraph 3 of Article 152, paragraph 2 of Article 394 and paragraph 3 of Article 396 of the Civil Code, an exchange of documents allowing to establish the will of the parties is equivalent to a written transaction; the written form of the contract is considered to be fulfilled if the written proposal to conclude the contract is accepted by performing actions to fulfill the terms of the proposed contract.

In this case, in accordance with sub-paragraphs 1), 2) of paragraph 1 of Article 49 of the Law, the shipper knew that he was obliged to pay for the use of the wagons of the inventory fleet from the moment of loading until the start of transportation. Therefore, the submission of an application for the provision of wagons of an inventory fleet for loading is an offer to conclude such an agreement, and the acceptance of the application by the carrier and its execution are actions to fulfill the terms of the agreement.

Since the parties did not specify the price of the service, by virtue of paragraph 3 of Article 385 of the Civil Code, the contract must be executed at the price that is usually charged for similar services. In this case, such a price is the tariffs officially established by the Tariff Management of NC KTZ JSC, at which this service is provided to all customers.

The totality of these legal norms is indeed the legal basis for concluding contracts for the use of wagons and for setting tariffs by the carrier for the provision of this service, and the totality of the submitted written documents is reasonably regarded as evidence of the conclusion of such contracts. At the same time, the arguments of the shipper (in most cases, Bogatyr Komir LLP was the defendant) about the absence of grounds for paying for the delivery of wagons for loading, as an independent service, also comply with the norms of current (but not applicable by the carrier) legislation.

Thus, the shipper reasonably indicates that the carrier selectively applies the rules of law. It follows directly from the literal content of paragraph 1 of Article 49 of the Law "On Railway Transport" that an alternative is provided for when concluding a contract for the use of wagons: the owner of wagons or the carrier may conclude such a contract with both the shipper, the recipient, and the branch owner, while the legislation does not specify which of the listed possible parties to the contract his conclusion is mandatory.

Therefore, in order to identify the participant in the transportation process to whom the carriage service will be provided, it is necessary to express the will of both parties, which can only take place at the conclusion of the contract.

Consequently, the shipper's argument is valid with reference to the specified norm and to Article 380 of the Civil Code (freedom of contract) that without concluding a contract it is impossible to establish who (the shipper, the recipient or the branch owner) has such an obligation.

The shipper's argument also complies with the law that the application for transportation and acceptance of the wagon for loading are mandatory stages of the execution of the contract of carriage, established by the Rules for the Carriage of Goods by Rail and other regulatory documents, and therefore, documents on the commission of such actions cannot simultaneously be evidence of the conclusion of another contract, therefore these documents are not sufficient to conclude on the conclusion of another independent agreement - on the use of wagons. The most significant is the shipper's argument that, by virtue of Article 696 of the Civil Code, the carrier is obliged to submit to the sender of the cargo for loading within the time limit set by the accepted application (order), contract of carriage, serviceable vehicles in a condition suitable for transporting the relevant cargo (a similar provision is contained in Article 45 of the Law "On Railway Transport"). Accordingly, by virtue of these regulations, the delivery of wagons for loading (i.e., the period of use of wagons from the moment they are delivered to the access roads to acceptance for transportation) is an integral part of the transportation process.

In our opinion, the only way out of this situation can be to change one of the specified legislative norms - Article 696 of the Civil Code or Article 49 of the Law "On Railway Transport". We consider it most appropriate to bring special norms into line with the general norms of the Civil Code on the contract of carriage – Article 49 of the Law "On Railway Transport" (if necessary, and other, interrelated with it, norms of legislation on railway transport), supplementing it with paragraph 1-1 of the following content: "Shippers make payments for the time of using wagons in accordance with the conditions, stipulated by the contract of carriage;

consignees and branch owners – in accordance with the terms of the contracts for the provision of such services."

             Regulatory and legal framework

According to Article 3 of the Civil Code and paragraph 2 of Article 688 of the Civil Code, along with the norms of the Civil Code, legislative acts on transport, other legislative acts and rules issued in accordance with them are in force.

Thus, the principle is provided: general conditions of carriage are regulated by a set of regulatory acts that form a whole system of transport legislation.

It consists of:

a) the norms of civil legislation defining general issues of legal regulation of transport, regardless of the modes of transport, and

b) the norms of special transport legislation.

General legislation includes the norms of civil, administrative, financial, tax, and procedural law.

For example, the Civil Code establishes the liability of the parties for transportation, resolves issues of limitation, etc. According to paragraph 2 of Article 3 of the Civil Code, the norm of civil legislation contained in other laws must comply with the Civil Code.

Special transport legislation based on paragraph 2 of Article 3 of the Civil Code should not contradict civil law, in case of a conflict, the Civil Code takes precedence.

The system of transport legislation consists of:

1) legislative acts on transport;

2) other legislative acts;

3) Rules issued in accordance with legislative acts. The main regulatory legal acts regulating the legal relations of transportation participants are the Constitution of the Republic of Kazakhstan.,

The Civil Code of the Republic of Kazakhstan (general and special parts, hereinafter referred to as the Civil Code),

The Civil Procedure Code of the Republic of Kazakhstan (hereinafter – CPC),

The Law of the Republic of Kazakhstan "On Transport in the Republic of Kazakhstan", the Law "On Inland Waterway Transport",

The Law "On Motor Transport",

The Law "On Railway Transport",

The Law "On the Use of the Airspace of the Republic of Kazakhstan and Aviation Activities",

The Law "On Permits and Notifications",

The Law "On State Property",

The Law "On Consumer Rights Protection", the Convention on the Contract for the International Carriage of Goods (CMR) of 1956, ratified by Decree of the President of the Republic of Kazakhstan dated May 12, 1995.

No. 2271, other regulatory legal acts regulating certain issues of transportation, as well as regulatory rulings of the Supreme Court of the Republic of Kazakhstan clarifying the general provisions of civil proceedings (No. 21 of December 13, 2001 "On the preparation of civil cases for trial";

No. 2 of March 20, 2003 "On the application by courts of certain norms of civil procedure legislation"; No. 5 of July 11, 2003 "On Judicial Decision").

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