Key Legal Problems and Civil Law Regulations of the Liability of the Air Carriers in Georgia

Transcription

1 Shorena Gabichvadze Key Legal Problems and Civil Law Regulations of the Liability of the Air Carriers in Georgia

2 Autor: Shorena Gabichvadze, Doctoral Student at Law Faculty of I. Djavakhishvili Tbilisi State University (Georgia), Assistant to the Professor at International Law and Management Georgian-British University and Head of HR and Organizational Provision Division of Tbilisi Main Office of Ministry of Internal Affairs of Georgia Stand der Arbeit: Oktober 2010 Herausgeber: Umsetzung: Zitiervorschlag: Referat Russland und weitere GUS-Staaten am Max-Planck-Institut für ausländisches und internationales Privatrecht, Mittelweg 187, Hamburg Dr. Eugenia Kurzynsky-Singer / Dr. Vladimir Primaczenko / Alexander Shmagin / Walter Grenz Gabichvadze, in: Beiträge und Informationen zum Recht im postsowjetischen Raum (),

3 Introduction. The importance of the research is determined by the role of the carrier-freighter in the freight contractual relationships, the importance of protection of its rights and obligations, and as the result of latter, the implication of the civil responsibility. The approach of the government to the establishment of Georgian civil aviation on an international market, and the following legislative issues also determine the significance of the research. It should be noted that the scholarly interest is rather limited in this regard and the given research is the first attempt of deep understanding of legal relationships, in terms of passenger (luggage) transportation and cargo freight. Legal Sources. Basic sources for the regulations of air carriage contractual relationships are the Civil Code of Georgia (hereinafter CC) of and the Air Code of Georgia (hereinafter AC) of , the normative acts passed in accordance with the abovementioned codes and the bilateral agreements concluded in the spheres of civic aviation with different countries. Georgia is also a part of the 1944 Chicago Convention on the International Civil Aviation 3 and the agreement on International Air Services Transit of December 7, It is not a part of the 1929 Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air, to its four additional protocols 5 and to the 1999 Montreal Convention for the Unification of Certain Rules for International Carriage by Air 6, however, deliberation on the high levels of the government is under way for the purpose of future accidence to the abovementioned treaties. The contract of carriage is envisaged in Chapter 12 of the Special Part (Contract Law), Book Three (Law of Obligations) of the CC 7 and the second part is dedicated to the civil liability of the carrier. AC Chapter 10 lays down the basic principles of the air carriage and the issues of the liability of the carrier are found in chapters 12 and 13. Creation of the special norms in form of bylaws in accordance with the abovementioned Codes is a desirable step, which would in detail regulate the cases of the transportation of the passenger (the carriage of the luggage in case of its 1 (Last update: 07/14/2010). 2 See the text of the Code at (Last update: 07/14/2010). 3 Ratification of Georgia on 21 st January (Last update: 07/14/2010). 4 Ratification of Georgia on 08 th October (Last update: 07/14/2010). 5 See the text of the Convention at (Last update: 07/14/2010). 6 See the text of the Convention at (Last update: 07/14/2010). 7 Chapter 12 Civil Code of Georgia, (Last update: 07/14/2010). 1

4 existence) and the carriage of the cargo, as it has been in Georgia before, however, those norms are no longer valid. The necessity of adoption of such norms is caused by the Art of the AC, which states that the civil liability of the carrier to the passengers, besides the rules of the code, are subject to the bylaws of the air transportation of the passengers, carriage of the luggage and cargo. It should be noted that the current language of the said article has to be amended due to the fact that it concerns only the transportation of the passengers, while the liability of the carrier is also established towards the luggage and the cargo, and the provision only refers to the luggage of the passenger. Contract is the basic legal mean for the regulation of the transportation services, which implies the legal relationships with regard to the transportation of the passenger (luggage in case of its existence) and the carriage of cargo (also mail delivery). The definition of the air carriage services is given in the works of the scholars and the pieces of legislature. The Civil Codes of Armenia 8, Kazakhstan 9 and of the Russian Federation 10 lay down the legal definitions for the carriage of the goods and the transportation of the passengers separately. Unlike those codes, CC of Georgia Art.668 unifies them and states that, under a contract of carriage, the carrier is obligated to transport freight or passengers to the place of destination for an agreed fee. Art. 980 CC of Moldova 11 regulates the issue similarly to the Georgian CC. Parallels can be drawn after the comparative legal analysis of the various definitions, they are based around one cornerstone. However, deriving from the specifics of the contracts of the transportation of the passengers or the carriage of the goods, as well as from the legislative point of view, it would be reasonable to change the wording of Art. 668 of CC of Georgia and include in it the separate legal definitions for the contracts of the transportation of the passengers and the carriage of the goods. Carrier Freighter as the Party of the Contract. Despite of the abundance of the scholarly opinions regarding the issue, the counterparts of the air carriage contracts in case of the transportation of the passenger or the cargo freight are considered the Sender and the Carrier, 8 Art. 854 et seq. Civil Code of the Republic of Armenia (Last update: 07/14/2010). 9 Art. 688 et seq. Civil Code of the Republic of Kazakhstan (Last Update: 07/14/2010). 10 Art. 784 et seq. Civil Code of the Russian Federation (Last update: 07/14/2010). 11 Civil Code of the Republic of Moldova, Monitorul Oficial P. Moldova N 82-86/661 оt (Last Update: 07/14/2010). 2

5 unless in cases where the sending and the receiving parties are not the same persons. In such case the receiving party is not participating in the contractual relations and is deemed as the third party to the contract, who is not in pre-contractual relationships with the sending party. At some point this could be considered as equal to the contract concluded with the third party, or the third party who is in pre-contractual relationship with the Sender (i.e.: contract on the sale of goods, contract on delivery). In any case the third party is entitled to different rights and obligations to the Sender and the carrier-freighter. Legislation of Georgia as well as of the other states (Russian Federation, Moldova), also the Montreal and Warsaw Conventions name the Carrier as the compulsory party to the contract of the carriage, which implies the civil liability besides the other rights and obligations which might derive from the contract. The CC of Georgia does not specify the definition of the carrier, however, the AC of Georgia defines in Art. 1 carrier as the Air Company - Exploiter of the Air vessel, which has under its possession a vessel under the right of ownership, lease or other means specified in the legislation and which conducts the flights according to the terms specified in the certificate. In the contractual relationships, transporter-carrier represents the subject possessing rights and obligations. Its rights and obligations derive from the international unified norms, current legislation (where the principle of the duly fulfillment of the contractual obligations is found) or the agreement. The law demands the obligation to be duly and honestly met. Accordingly, if the obligation is not met in such a manner, violation of the obligation is obviously taking place. It is directly related to the liability of the transporter-carrier. 12 Thus, the pre-condition for the responsibility of the transporter-carrier, non-fulfillment or undue fulfillment of the obligation undertaken by the latter might be demonstrated in a different manner. The legislation might define the list of such pre-conditions, but it is practically impossible to fully define them, due to which they are often satisfied with only the general definition. Legal understanding of one of the forms of the legal responsibility of the civil liability, despite its development over centuries is still the subject of the discussion among the scholars. M. Mosulishvili defines legal responsibility as part of the social responsibility and states that 12 Z. Chechelashvili, Law of the Contracts (Tbilisi 2008), p

6 responsibility is adhering to the demands of the social norms by the subject of the social relations and in case of their violations the acceptance of the personal or material liability by the violator. 13 Accordingly the author defines the legal responsibility as the obligation of the persons to adhere to the declarations of the legal norms and in case of their violation to accept the personal or material responsibility found in the legal norm or approved by the state. 14 The specific definition of the civil liability as found in the works of G. Khokhlova is the addition or change of the existing legal obligation with the new one, secured by the state enforcement to pay the specified amount of money as the compensation for the violation of the subjective (material or non-property) rights. 15 Herein derives that the civil liability has the function of compensation. Therefore party to the contract of the carriage, even acting in own interests, is forced before the entering into the contractual relationships to consider and analyze the future outcome of its actions, so that it avoids the consequences of the legal sanctions and only after that takes the decision to act lawfully and conclude the contract of carriage. It is my opinion that aforementioned will minimize the risks of the liability for the carrier as well as the practical legal problems deriving from the issue. Basis of the Liability of the Freighter-Carrier. The actions of the carrier can be defined as already conducted or to be carried out in the future. The liability is in connection with the outcome of those actions. Therefore, in the law of obligations, action and the outcome collectively are the basis for the liability. According to Z. Chechelashvili, in order for the party in breach to be liable for the damage sustained from the violation of the obligation, certain prerequisites are to be met, which jointly are the basis for the civil wrong. 16 The author considers such prerequisites to be the unlawfulness of the action, the causal connection between the action of the debtor and the outcome and lastly the occurrence of the damage. It is worth noting that the author does not mention the culpability as one of the prerequisites. Unlike Z. Chechelashvili, G. Mateev states that the special basis for the civil liability is the constitution of the civil offense, where he considers four elements unlawful action, caused damage, causal connection and culpability. 17 Here the author considered guilt as the necessary prerequisite for the responsibility. 13 M. Mosulishvili, Legal Responsibility (concepts and ideas) (Tbilisi 2002), p M. Mosulishvili, (Fn. 13), pp G. Khokhlova, Understanding of the Civil Liability, Actual Problems of the Civil Law, Collection of Essays, V.Vitrjianski ed., (Moscow 2002), p Z. Chechelashvili, (Fn. 12), p G. Khokhlova, (Fn. 15), p

7 Other scholarly opinions note that the basis (general or specific) for the civil liability are the violations of the material, as well as the subjective personal non-property rights 18 and not the constitution of the civil offense. With regard to the said issue, the consideration that civil liability can be called upon even in the case when such rights are not violated is questionable. 19 I believe that, establishing the causal connection between the unlawful action of the carrier and the actual damage sustained by the party, must be one of the key factors in order to establish the liability of the carrier. Practicing such regulation should not create any practical difficulties since, in case of litigation, the court must investigate and establish all the circumstances that led to damage, in other words, what served for the basis of liability occurrence. The culpability of the party in breach is also seen in the process. Stemming out of the above mentioned, I think that the liability of the carrier should be established on the basis of the culpability culpability. Therefore in order to establish the liability of the carrier, the elements of the civil offense have to be met the action of the carrier, material damage (harm), cause-effect link between the actions of the carrier and the damage sustained. The guilt of the carrier has the form of intention or negligence. According to Z. Chechelashvili subjective forms of the guilt of the carriers are intention or negligence, however, in the context of the civil law the forms of the guilt of the carrier are not of relevance, as the carrier is liable for intentional offenses and negligence. 20 However, the difference in the forms of culpability is of relevance when discussing the agreement on avoidance of liability. Such types of agreements are prohibited under Art and Art. 697 CC of Georgia, which states that carrier may not resort to those rules of this Chapter that exclude or limit his liability or release him from the burden of proof, if the damage is caused through his fault. As to the definition of the intention, Georgian civil law legislation does not have one, however, as stated by Z. Chechelashvili according to the practice of the courts and the opinions of the scholars, intention covers the knowledge and the desire of the outcome and the understanding of the offense. 21 From the objective and subjective understanding of the responsibility, the principle of objective responsibility, gradually finds its way in the positive law. The 1982 law on the Civil Aviation 18 Ibid. 19 Ibid. 20 Z. Chechelashvili, (Fn. 12), pp Z. Chechelashvili, (Fn. 12), p

8 adopted by the British parliament 22 regulates the forms of responsibility when the aircraft crashes on the ground. The Roman principle of an individual guilt found its way in the contractual law of continental Europe (France, Germany) in 19 th century. Up to this day, as in the Georgian civil law legislation, the liability of the carrier is based on the culpability of the latter. According to Art. 793 CC of the Russian Federation the liability rests with the carrier. Art of the Georgian CC imperatively states that the exclusion of the liability has to be proved by the offender. In order to invoke the liability of the operator of the aircraft one must prove its guilt. Above mentioned are occasions when carrier bears responsibility. Force majeure or the damage sustained due to the unlawful actions of the aggrieved party is expelled. Similarly, AC of Georgia calls upon the responsibility of the carrier only if the guilt of the latter is duly established. The burden of proof lies on the carrier and unless it will demonstrate that all the necessary steps have been taken to avoid the damage or that such measures could not have been applied in the case, it is being presumed that the damage has been sustained due to the wrongful actions of the latter. From there on the discussion on invoking the liability of the carrier is possible. The CC of Moldova (Art. 988, 989, 1007) 23 also places the burden of proof on the carrier. International practice as demonstrated in the Warsaw Convention (Art. 20) 24 also uses the principle of culpability in order to invoke the liability of the carrier; it states that the air carrier may escape the responsibility in case the carrier or its authorized representative resorted to all the necessary measures to avoid the damage, or that such cases could not have been applied. With regards of the said issue Art CC of Moldova has an interesting approach when it introduces the principle of the partial guilt when the damage has been sustained due to the circumstances beyond the control of the carrier and partially due to the culpable actions of the carrier, the liability of the latter is measured proportionally to the damage incurred by the aggrieved party due to the culpable actions of the carrier. The burden of the proof here as well lies on the carrier. Demonstrated legal norm contains the principle of the proportional culpable liability, which, in my opinion, serves to establishing the objective truth and thus, it is desirable that this principle is incorporated in the Georgian legislation. 22 Aviation Security Act (Last Update: 07/14/2010). 23 Civil Code of the Republic of Moldova Warsaw Convention On Unification of Certain Rules Relating to International Carriage by Air. 6

9 As it has been noted above the 2 nd part of the 12 th chapter of Georgian CC 25 deals with the norms regulating the liability of the carrier. Art. 686 Concept, Content which is the first article of the mentioned part, deals with the liability of the carrier with regards to the cargo and the circumstances precluding the responsibility. As for the liability of the carrier with regards to the transportation of the passenger and the circumstances precluding responsibility, it is regulated by Art. 669, which is titled as responsibility of the carrier. The said article is not included in the 2 nd part of the 12 th chapter which represents the norms regulating the responsibility of the carrier. The problem of the drafting is at hand, which can be rectified by the new codification of the said text. The Code must have a separate part containing the legal norms establishing and specifying the responsibility; however, it has to be titled as the Liability of the Carrier-Transporter and should incorporate the norms dealing with the liability of the carrier towards the passenger and separately for the cargo. In such case, Art. 669 has to be amended due to the lack of legal interest. The problem of the drafting is found in Art CC of Georgia which specifies the principles for the liability of the carrier, specifically with regard to the partial or total loss of the freight. The wording of the article The carrier shall be liable for the partial or total loss of the freight and damage to it. uses and which should be changed to and/or for the purpose of connecting the two forms of liability. Theoretically as well as in practical use, it is possible that the freight may be partially or totally damaged or lost, and according to the interpretation of the said norm in order to invoke the responsibility of the carrier the total or partial loss and damage to the freight has to be at hand. AC of Georgia, 26 unlike the CC regulates the liability of the carrier for the international and internal transportation-carriage separately. The liability of the carrier for the international flights is defined according to the AC, international legal act and the international agreements concluded by Georgia with other states, while the responsibility for the internal transportation-carriage is defined according to the AC and other internal legal acts. The code does not dissociate the liability of the carrier to the passenger and the cargo in separate articles, which has to be implemented. Also, in order to systemize the legal norms governing the issue, the similar problems have to be eliminated. Legislation of the Russian Federation settles the liability of the carrier based upon the CC and on the legislation adopted in the sphere of transportation as well 25 Civil Code of Georgia. 26 Air Code of Georgia. 7

10 as ordinances and bylaws, which also define the circumstances precluding as well as establishing the responsibility. The obligations arising from the carriage of the goods are concerned by the general principles of the responsibility found in the civil legislation in as much as they are not covered by the corresponding acts adopted in the transportation field. The CC of Uzbekistan 27 (Art. 717) incorporates the general principles of the responsibility of the parties within the agreement based on the failure to comply with the terms of the contract or not performing it in due manner, which is regulated by the legislation of the state and by the terms of the contract, as for the international carriage, the norms of international law obligatory for the Uzbekistan are called upon. The position of the Armenian CC 28 is somewhat interesting as the general principles of the responsibility after the conclusion of the contract are defined by the contract itself- unless stated otherwise in the state legislation. The CC of Uzbekistan 29 (Art. 725) makes the carrier liable for the breach of the transportation contract with the passenger in case of harm to the health of the passenger, death or the late delivery to the point of destination. Liability arises also in both cases of breaching carriage cargo and/or luggage contract - partial or total damage or loss, no delivery or for the late delivery of the luggage/freight (Art. 721). The legislation obliges the carrier to use all necessary means not to invoke the circumstances establishing the responsibility; otherwise the carrier has the burden of proving the impossibility of taking such actions. Here as well the basic principle for the responsibility is the culpability of the carrier. The legislation places the burden of proof on the carrier, which, of course, serves its own interests. Similarly in the Georgian CC (Art. 687), unless the circumstances precluding responsibility are established, it is presumed that the damage, loss or late delivery of the freight occurred in the process of delivery. Unlike the legislation of Georgia, the Uzbek legislator took a more liberal approach, introducing the possibility for the circumstances for the responsibility to originate during the process of delivery. It created the basis for the legal debate on the culpability of the party. The Georgian legislator, however, declared that under the same conditions it will be 27 Civil Code of the Republic of Uzbekistan (Last Update: 07/14/2010). 28 Chapter 45 of Civil Code of the Republic of Armenia (Last Update: 07/14/2010). 29 Civil Code of the Republic of Uzbekistan. 8

11 presumed that the damage occurred due to the actions of the carrier; therefore the claim for the reimbursement of the damage will be taken against the carrier. The Georgian legislator has been too strict as the carrier is obliged to pay the compensation, which in case proving otherwise will be unfair and far from the objective truth. However, Georgian legislation avails the carrier the right to seek the recourse; still it is not reasonable to invoke the responsibility of the carrier when all the prerequisites of the civil offense (the problem of determination of the culpable person) are not met. French legislation 30 places accent on the final outcome in case of the loss and damage, however, the possibility of the drawbacks is permissible. Though, in case of the transportation of the passenger, the approach to the final outcome is still in place and the possibility of the drawbacks is excluded. British legislation has a different approach. 31 Carrier is obliged to take some measures in order to save the passengers, nevertheless the probability of occurring damage or casualty acceptable. Moreover, if established that damage or casualty occurred due to the act of god or accident, the carrier would avoid the responsibility. The differences between the French and English approaches show their attitude towards the persons and goods. German legislation 32 however invokes the responsibility of the carrier in all cases. Warsaw Convention 33 also includes the norms establishing the responsibility of the carrier in case of death or bodily harm to the passenger, loss, damage, destruction of the freight or the luggage, also in cases of late transportation of the passenger or the late delivery of the freight and cargo. The CC of the Russian Federation does not establish liability for the carrier for the late delivery of the cargo, however, Art. 795 places the responsibility on the carrier for the delay of the passenger or the delay of the aircraft. Therefore, while freighting the cargo via air transport these norms should be considered. The delay of the transportation of the passenger may be caused by separate events which occurred in different time periods and locations, however, the Warsaw Convention does not specify those occasions. The delay of the vessel contrary to the agreement is the basis for the liability of the carrier pursuant to the law or the contract according to the Art. 864 of the CC of Armenia 34, the liability for which can be avoided only in the cases of force 30 Contract Law, Casebooks on the Common Law of Europe, General Editors Hugh Beale, Hein Kotz, Arthur Hartkamp, Denis Tallon, (Oxford and Portland, Oregon 2002), p Ibid. 32 Ibid. 33 Fn Fn

12 majeure, or by prohibition or limited possibility of the carriage of the goods towards some directions according to the law or in any other cases as specified by the legislation. Art. 865 of the same code places the obligation on the carrier to pay a fine to the passenger in case of the delay or for the delay of acceptance in the point of destination, unless the carrier will prove that the delay was caused by circumstances which the carrier had no control of. Legislator defines the delay as the holdup in the departure of the aircraft or the delay in the arrival at the airport of the final destination. In my opinion this concerns the late transportation of the passenger, which is the basis for the liability of the carrier. Whether the delay has been caused by the late departure or the arrival of the aircraft is of no relevance, as far as the delay is caused by the fault of the carrier. The Armenian legislator also introduces the principle of the culpable liability and the circumstances precluding it. Art. 18 part 1 of the Montreal Convention 35 places the liability on the carrier with regard to the cargo as well as for the partial or total loss or damage, also for the late delivery of the cargo. The convention retained the formulation of the 4 th protocol of 1975 Montreal Convention. The main specification for the basis of the liability is that the partial or total loss or/and damage to the cargo has to occur after the acceptance by the carrier of the freight and before the delivery to the authorized person. The CC of the Russian Federation places the liability on the carrier with regards of the cargo as well as for the partial or total loss or damage, also for the late delivery of the cargo from the point when it has been transferred to the carrier until the time it has been delivered to the authorized party, unless it will demonstrate that all measures have been applied in order to avoid damage or such actions could not have been taken (Art. 796). The same approach is taken by the Art. 866 of CC of Armenia 36. Even though the Georgian legislator does not amplify the existence of the fact of loss, damage or the late delivery of the cargo, it is logical that the liability placed on the basis of one of the above mentioned, implies the compensation for the relevant damages. The norm has to be amended in the way that the elements of the civil offense are fully shown. According to the Georgian CC 37 the responsibility of the carrier when delivering the cargo based on the above 35 Fn Fn Fn

13 mentioned may be invoked by the receiving party subject to the contract of carriage, in case it is the receiving party which demands the compensation (Art.681). One of the causes for placing the liability of the carrier according to the Georgian legislation is failure to adhere by the carrier to the instructions of the sender during the process of the carriage or the compliance without requesting the first copy of the bills of lading. The liability of the carrier may be invoked by the authorized person, however, the code does not specify who is the person, even if it is logical that authorized person is the sender or its representative, also receiving party as the third party to the contract in case if the receiving party has the lawful interest towards the proper fulfillment of the contract. The legal norm indicates that to invoke the responsibility on such basis, damage sustained by the unlawful actions has to be present. In some cases the responsibility of the carrier is determined by the terms of the contract with its counterpart and reflecting them in the bills of lading. Article of Georgian CC 38 obliges the carrier to check the number of pieces of the freight, the accuracy of the data contained in the bill of lading regarding the marks and identifying numbers of the freight; and the external condition of the freight and its packaging. According to the part 3 of the same article, the shipper may demand that the carrier inspect the weight of the freight or its otherwise indicated volume. He may also demand that the carrier inspects the content of the freight. The results of the inspection shall be indicated in the bill of lading. The terms of the carriage have to be included in the bills of lading, otherwise it is presumed, unless proved otherwise, that during the acceptance of the freight, the number of pieces of the freight, and the external condition of the freight and its packaging, as well as numbers of the freight were in conformity with the data contained in the bills of lading. Therefore in such cases the obligations and the risk of the liability of the carrier are of more significance than when freight is given for carriage without placing any obligation on the later. The burden of proof of its innocence with regard the freight to be transported is on the carrier thus availing itself to escape the responsibility, which can be easily shifted to the sender in case if the guilt of the latter is proved, for example by the improper package of the freight or by not providing the adequate information about the cargo. One more basis for the responsibility of the carrier has to be noted, which is the loss of the documents mentioned in the bills of lading or the failure to adhere to the said documents. 38 Ibid. 11

14 The law provides for the possibility of the shipping of the hazardous materials which are in the civil turnover, therefore Sender shall be obligated to furnish accurate information and a warning notice to the carrier when shipping the hazardous freight. The said obligation is found not only in Article 691 of the CC of Georgia 39, but also in the general principles on the laws of obligations. Article 318 of the same code provides for the obligation to furnish the information and states: The right to receive some information may arise from an obligation. Disclosure of the information shall be ensured within the time that it retains significance for determining the content of the obligation and the contracting party can disclose this information without impairing his rights. The recipient of the information shall reimburse the obligor for the expenses of the disclosure. The said norm makes it possible for the carrier to demand from the shipper the information on the cargo which has to be accepted in due time. Demand of such kind of information from the side of the shipper would facilitate the safe shipping and reduce the risk of liability. In case the shipper failed to fulfill such obligation, if the carrier was not aware of the danger associated with the hazardous freight, then he may at any time and at any place unload, destroy or neutralize the freight without any obligation to compensate for damages. Nowhere in the code is specified the basis, when the carrier is entitled to use such right. Realization of such right at any place and any time is not reasonable. I believe and theoretically it should be acceptable for some cases, the carrier asserting the fact under what particular circumstances it had to it unload, destroy or utilize the freight. In order for the carrier to justify its actions, it needs the proof of the real hazard posed by the shipped cargo. Therefore it would be preferable to specify the cases when the carrier may resort to such actions. Liability of the carrier may also be invoked in case of the failure to comply with obligation of choosing the third party according to the CC of Georgia (Art ). 40 Carrier may urgently in the cases of impossibility of shipping or failure to fulfill the agreement, unload the freight at the expense of the entitled person, and after such unloading the carriage shall be deemed completed. Following this, the carrier shall store the freight for the entitled person. He may entrust the storage of the freight to a third person, and in such case he shall be liable only for the due diligence in the selection of the third person. The selection of the third party is the obligation of 39 Civil Code of Georgia. 40 Civil Code of Georgia. 12

15 the carrier. Neither the CC nor the AC lay down the specifications of the third person or the criteria on the basis of which it is chosen. The selection of the third party has to be conducted on the case to case basis. Carrier must evaluate the environment in which it occurred together with the freight, the condition of the cargo, identify the necessary conditions for the cargo and select the third party based on all the listed above. The carrier must act with due diligence in the best interests of the shipper. In case if the damage is still sustained despite of all the necessary actions taken by the carrier, its responsibility should not be called upon. The responsibility of the carrier is connected to certain time frame, mainly, to the time of transportation of the passenger (luggage) or the shipping of the cargo. The carrier is liable only in the cases when the damage or loss occurred during the period of the shipping or delay in the shipping. Art. 688 CC of Georgia 41 defines what is regarded as delay - period of time for delivery of the freight shall be deemed to have been overrun if the freight is not delivered within the agreed period of time, or, in case no time was fixed, within an ordinary period of time required for transportation, having due regard to circumstances that relate to the determination of the time required for assembling parts of the freight when the freight is to be loaded in parts, or if a time period was not observed which a diligent carrier ought to have done. Same definition is given in Art. 862 of the CC of Armenia 42 which elaborates the time frames for the shipping of the cargo and the transportation of the passenger (luggage), failure in observing, is considered as the basis for the responsibility. In regards with the same issue Montreal Convention (Art. 19) 43 states that the late transportation-shipping of the passengers, cargo and luggage constitutes the basis for the liability of the carrier, only in cases when it will prove that the carrier, its agents and authorized representatives resorted to all the necessary actions to avoid damage, however despite that damage still occurred, or if it will demonstrate that the carrier, agents and its authorized representatives could not resort to any such actions. In regards with the loss of the cargo, CC of Georgia (Art. 689) 44 links the issue with the fixing additional time without providing the additional affidavits. The entitled person may deem the freight to be lost, even without presenting any additional proof thereof, if the freight is not 41 Ibid. 42 Civil Code of the Republic of Armenia Montreal Convention On Unification of Certain Rules for International Carriage by Air. 44 Civil Code of Georgia. 13

16 delivered to its destination within thirty days after the agreed time of delivery, or, if no such time was fixed, within sixty days after acceptance of the freight by the carrier. The entitled person, upon compensation for damages for the lost freight, may demand in writing for immediate notification if the lost freight is found within one year from the date he receives compensation for the damage. Within thirty days after receipt of such notice, the entitled person may demand delivery of the freight to him, after satisfaction of any claims arising out of the bill of lading, and on the condition the received compensation is returned, taking into account deduction for his expenses which arose at the time of the payment of compensation for his damage. If the demand is not asserted, or if there is no instruction because of the thirty-day period or if the freight is found after the lapse of one year from the date of compensation, then the carrier may dispose of the freight in accordance with the rules effective at the place where the freight was located. Same rule is found in CC of Moldova 45 (Art. 1011). Article 1007 of the same Code regulates the issues of responsibility of the carrier with regards of the freight. The liability of the carrier may be invoked in case the destruction of the cargo, complete or partial loss, also the delay in shipping. The other basis for invoking the responsibility is the violation of the other terms of the contract on carriage. Besides the basis for the responsibility the said article considers the dispositive norm, which provides for the possibility of the reduction of the amount of compensation for the damage, however, the third part of the article states that carrier is not entitled to possess or reduce liability differently than stated by law. Paragraph 82 of the Georgian AC 46 considers the norms different from the CC of Georgia in case of the collision of two or more air carriers in case of damage of the carrier as a basis of the property responsibility of the carrier-freighter in terms of the responsibility of the owners of the carriers. The level of culpability is of a paramount importance here. If the damage is caused due to only one party the damages are fully reimbursed by that party, but if damages are caused by two or more parties the responsibility is distributed between them in accordance with the level of culpability, if the above cannot be determined, than responsibility is distributed evenly. In the given situation the responsibility according to mixed culpability is obvious. The stringency of norm should be mentioned, since the legislator considered in it the obligation of the carrierfreighter of reimbursement of the damages, despite the fact that it might have no guilt in the 45 Civil Code of the Republic of Moldova. 46 Air Code of Georgia. 14

17 damages. The exception will be made, if in the mentioned cases the passenger will pass away, the severe damage will be caused to his/her health or the possession of the third party on the plane will be damaged. It also needs to be mentioned that the Code imperatively indicates the responsibility of the carrier-freighter, but allows as a regress possibility of argument with the guilty party and reimbursement of the damages. At the same time the Code generally determined and used the norms as a guideline while the collision of the aircrafts, also while assessing the reimbursement of damages caused to the third party by the aircraft in the air 47 guided by the norms. It repeats the full responsibility of the reimbursement by the freighter-carrier, for the determination of the volume, and at the same time it points out the Georgian legislation and international legislative norms in general. Thus the Georgian AC indicated one more basis of the property responsibility of the freighter-career. This is the responsibility against the third party, in case of damages caused to them by the air career from the air. This special norm is not considered by the CC of Georgia. For the comparison the interesting points are mentioned in paragraph 129 of the AC 48 of the Russian Federation, which regulates the issues of reimbursement of the damages arising from collision of two aircrafts or caused without colliding of one aircraft with another aircraft. In such cases the responsibility of the aircrafts is determined by its culpability. If the culpability of only one party is determined, the responsibility of the damages will be borne by it, but in case of two (or more) parties, the responsibility is distributed in accordance to the levels of culpability, in case culpability is impossible to determine, than the responsibility is distributed evenly. As we see, the issue is regulated similarly, but the Code of Russian Federation emphasizes the importance of the issue of determination of the correct culpability, stating that none of the owners of the aircrafts can be held guilty, if the opposite is not proved. If it is impossible to prove the culpability of the party, the legislator imperatively declares that the aircraft owners have no right to claim the reimbursement of the damages from each other. In my opinion the legislator defended the principals of fairness. I think that similar preciseness should be introduced in the Georgian legislation as well. As for the cases of death or impairment of the passenger s health or damages caused to the property on the aircraft belonging to the third party, on the same basis, according 47 According to paragraph 83 of the Air Code of Georgia, the aircraft is considered airborne from starting the engine before the take-off and shutting the engine after landing. 48 Air Code of Russian Federation, the article comments, (Moscow 2009), p , (Last Update: 07/14/2010). 15

18 to the above mentioned norms, the owner carries the responsibility in accordance with the regulations determined by the same Code, despite its culpability, but later this party is allowed, based on the determination of the culpability, by regress argue with the guilty subject. It can be mentioned that Georgian as well as Russian legislators protected the interests of the customers by priority, which in my opinion should be evaluated positively. Apart from being responsible for the damage of the goods, its loss or delay in delivery, the carrier-freighter is also responsible for the transportation of the passengers and their luggage, and it is considered as non-fulfillment or negligence of responsibilities taken. The responsibility here is also of a property character and is represented in reimbursement of the damages. According to the paragraph 669 of the Georgian CC 49, the carrier-freighter is responsible for the damages caused to the passengers, or for the damage or loss of their luggage. The Code does not specify what is implied under the damage to the passengers, but by the definitions of the related legal norms, the damage means death of the passenger or impairment of their health, which in particular cases can be evaluated according to its severity. In relation with the passengers, the results of the actions of the freighter-carrier should be linked to the death of the passengers or otherwise causing the damage to their health, and this action should take place in the area under the supervision of the airport or on board of an aircraft. In this part, paragraph 17 of the Montreal Convention 50 implies the same responsibilities on the freighter-carrier on the same basis, which is expressed in reimbursement of the passengers for the damages caused to them, but the action as a result of a cause, should have taken the place at the time of boarding of the carrier or during the disembarking operations. This paragraph of the Convention is not innovative and some people think that it is evaluated as a step back in relation with the Guatemala Report of The conference from the SGMW group project, excluded the sentence, according to which the freighter-carrier was released from the responsibility (or according to the relevant degree) in cases, if the death of the passenger or the damage to the passengers health was caused due to the passengers health condition. It seems that the Georgian legislator particularly stressed the responsibility to the passengers and specified in the paragraph 75, part 3 of the AC 51, that the responsibility of the freighters-carriers towards the passengers, 49 Civil Code of Georgia Montreal Convention On Unification of Certain Rules for International Carriage by Air. 51 Air Code of Georgia. 16

19 apart from this Code, is determined by the rules of the freight of the passengers, luggage and cargo. I think that the legislator should have used the same formulation for the cases of the cargo freight. Considering all this, I regard the part 2 of the paragraph 77 of the Georgian AC 52 unnecessary, which repeats the same statement The responsibility of the freighter-carrier is determined by the Georgian Legislation. Unlike the Georgian CC, the Georgian AC (Art. 78) considers as an additional basis for the responsibility of the freighter-carrier the partial or complete damage, loss or delays in delivery of the private belongings of the passenger and determines the same mode of responsibility as it is considered for the cargo. The responsibilities of the freighter-carrier in relation with the luggage are reviewed in the paragraph 989 of the CC 53 of Moldavia, where the loss or damage of the luggage is considered as a basis for responsibility. The Montreal Convention (Art. 17) 54 determines the basis of the responsibility in relation with the luggage. It emphasizes the segregation of the luggage as registered and not registered, and declares that the freighter-carrier carries the responsibility for destroying, damage or loss of the registered luggage, if the damages occurred on board of an aircraft or during the period when the registered luggage was under the supervision of the freighter-carrier. As for the responsibility for not registered luggage and the personal belongings of the passengers, according to the Convention the freighter-carrier is not responsible, if the damages are caused by the quality, flaws or defects of the luggage. It also does not carry the responsibility if the damages are not caused by its service employees or agents. At the same time the Convention indicates two more bases of the responsibility. First, acknowledgement of the loss of the luggage caused by the freighter-carrier, and second, delays of the delivery of the luggage for over 21 days after the delivery deadline, with the fault of the freighter-carrier. In both cases the Convention allows the passenger to use its rights in accordance to the freight agreement against the freighter-carrier. It can be mentioned that within the customs zone or safety zones of the airport the luggage is not under the supervision of the freighter-carrier. Thus it should not be held responsible for the damages caused in these zones. 52 Ibid. 53 Civil Code of the Republic of Moldova Montreal Convention On Unification of Certain Rules for International Carriage by Air. 17

20 In the CC of Moldavia (Art ) 55, in the relation to the luggage apart from the force majeure events the circumstances relieving the freighter-carrier from the responsibility are considered the following: defects of the passenger s items, or the culpability of the passengers. In relation with the circumstances relieving from the responsibility, the argued luggage belongs to the freightercarrier. The latter is not being held responsible for the loss of documents, money or other valuable items, except for the cases when the freighter was warned about the sort and value of the item, and it agreed to transport it. The freighter is not responsible for the luggage which is held by the passenger, except for the cases when the culpability of the freighter was proved. Limits of Liabilities of the Carriers-Freighters. As we can see from the studies of the basis of responsibilities of the freighter-carrier the main form of responsibility for noncompliance with the obligations or negligence is reimbursement of the damages. The type and the volume of the damages determine the volume of responsibility of the freighter-carrier. The above mentioned is reviewed in detail in paragraph 393 of the CC 56 of the Russian Federation. While determining the volume of the damages, the interests of the creditor need to be taken into the account, which existed in relation with the fulfillment of the obligations. Considering that Georgia has not joined Warsaw and Montreal Conventions, the responsibilities of the freighter-carrier is determined in accordance with the internal legislative norms. For instance the paragraph 78 of the Georgian AC 57 is an indicative norm, which states that the freighter-carrier is responsible for complete or partial loss, destroying or damage of cargo, luggage or private belongings of the passenger according to the rules determined by the Georgian legislation. Since such rule is not specified in the sub law acts, we should take the Georgian CC 58 as a guideline, which determines the general frames of responsibility of the freighter-carrier in case of loss or damage of the cargo. After the responsibility of the freighter arises in relation with the loss of the cargo, the value of the damage should be calculated in proportion of the value of the cargo lost or damaged. Determination of the value of the cargo is done in accordance with stock, or in case of its absence the market rates existing at that time, and in case none of the above exists the price is determined in comparison with the value of similar type cargo. In such cases expenses related to the transportation of cargo, taxes and other are subject to reimbursement, also proportionally to the partial or full loss of the 55 Civil Code of the Republic of Moldova. 56 Civil Code of Russian Federation. 57 Air Code of Georgia. 58 Civil Code of Georgia. 18