Court practice in cases with Railway
17/01/2022
Legal Insight
Prepared by:
According to the Unified Register of Judgments in 2021 Сommercial Courts of Ukraine adopted about two hundred court decisions on claims of JSC «Ukrainian Railways» (hereinafter referred - «the Railway») to impose fines in accordance with the Article 118 of the Statute of the Railways of Ukraine (hereinafter referred - «the Statute»).
Thus, according to the Article 122 of the Statute a sender is liable for incorrectly indicated weight in the consignment note (or the number of pieces of cargo, its name, code, and address of the consignee) and could be fined in accordance with the Article 118 of the Statute. The Article 122 of the Statute determines the amount of the fine is five times the amount of the fare for the entire distance of transportation.
Disputes around the fines imposed based on incorrectly specified weight of cargo are common. From the first sight, the application of such a fine is logical in the field of cargo transportation.
Thus, according to the Article 122 of the Statute a sender is liable for incorrectly indicated weight in the consignment note (or the number of pieces of cargo, its name, code, and address of the consignee) and could be fined in accordance with the Article 118 of the Statute. The Article 122 of the Statute determines the amount of the fine is five times the amount of the fare for the entire distance of transportation.
Disputes around the fines imposed based on incorrectly specified weight of cargo are common. From the first sight, the application of such a fine is logical in the field of cargo transportation.
Associate
According to the Unified Register of Judgments in 2021 Сommercial Courts of Ukraine adopted about two hundred court decisions on claims of JSC «Ukrainian Railways» (hereinafter referred - «the Railway») to impose fines in accordance with the Article 118 of the Statute of the Railways of Ukraine (hereinafter referred - «the Statute»).
Thus, according to the Article 122 of the Statute a sender is liable for incorrectly indicated weight in the consignment note (or the number of pieces of cargo, its name, code, and address of the consignee) and could be fined in accordance with the Article 118 of the Statute. The Article 122 of the Statute determines the amount of the fine is five times the amount of the fare for the entire distance of transportation.
Disputes around the fines imposed based on incorrectly specified weight of cargo are common. From the first sight, the application of such a fine is logical in the field of cargo transportation.
Thus, according to the Article 122 of the Statute a sender is liable for incorrectly indicated weight in the consignment note (or the number of pieces of cargo, its name, code, and address of the consignee) and could be fined in accordance with the Article 118 of the Statute. The Article 122 of the Statute determines the amount of the fine is five times the amount of the fare for the entire distance of transportation.
Disputes around the fines imposed based on incorrectly specified weight of cargo are common. From the first sight, the application of such a fine is logical in the field of cargo transportation.
However, disputes are not so straight forward as they look like. It should be noted that the Statute defines the fact of discrepancies in the indicated weight of cargo but does not indicate what exactly the discrepancies are: excess or deficit of the actual weight of cargo specified in the consignment note. Therefore, even if the actual weight of cargo is less than the weight specified by the sender in documents the Railway has a right to demand payment of a fine according to the Article 122 of the Statute.
A vivid example is the case № 910/10942/21 where the claimant is the Railway and the defendant is Omela LLC. The claimant wanted to recover amount (a fine) of UAH 69 730, 00. During the consideration of the case, court found that the sender in the transport document indicated the weight of cargo as 22,200 kg. However, that in fact is more than was established during the control commission weighing.
A vivid example is the case № 910/10942/21 where the claimant is the Railway and the defendant is Omela LLC. The claimant wanted to recover amount (a fine) of UAH 69 730, 00. During the consideration of the case, court found that the sender in the transport document indicated the weight of cargo as 22,200 kg. However, that in fact is more than was established during the control commission weighing.
Therefore, the Commercial Court of Kyiv by its decision dated from 27.10.2021 imposed on the sender a fine in the amount of UAH 69,730.00. the formal ground for such a decision was incorrectly indicated weight of cargo in the consignment note.
The court practice shows that in most cases a judge will rule in favour of the Railway. However, there is still a good chance to win the case by a sender (relevant court practice already exists).
Lawyers of Nightingales Partners again protected the interests of the client in an identical dispute on the claim of JSC "Ukrainian Railways" for a fine of UAH 183,925.00. The Commercial Court of Kirovograd region by its decision refused to satisfy a claim of the Railway. Moreover, court ruled to recover legal costs from the claimant in favour of the defendant.
The defendant proved that when entering information into the transport document about the weight of cargo they were guided by the results of weighing conducted with the participation of a representative of the Railway (such a request could be sent to the Railway. As a result of the proceedings, court was on the side of the defendant and dismissed the claim).
Therefore, for a sender not to incur additional financial costs in the form of a fine it is recommended to use services of the Railway for weighing cars or the participation of a representative of the Railway in such weighing. In this way, a sender significantly increases chances of making a court decision in their favour.
The court practice shows that in most cases a judge will rule in favour of the Railway. However, there is still a good chance to win the case by a sender (relevant court practice already exists).
Lawyers of Nightingales Partners again protected the interests of the client in an identical dispute on the claim of JSC "Ukrainian Railways" for a fine of UAH 183,925.00. The Commercial Court of Kirovograd region by its decision refused to satisfy a claim of the Railway. Moreover, court ruled to recover legal costs from the claimant in favour of the defendant.
The defendant proved that when entering information into the transport document about the weight of cargo they were guided by the results of weighing conducted with the participation of a representative of the Railway (such a request could be sent to the Railway. As a result of the proceedings, court was on the side of the defendant and dismissed the claim).
Therefore, for a sender not to incur additional financial costs in the form of a fine it is recommended to use services of the Railway for weighing cars or the participation of a representative of the Railway in such weighing. In this way, a sender significantly increases chances of making a court decision in their favour.
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