Newsletter
MAJOR CHANGES IN CARRIER LIABILITY UNDER THE CIVIL CODE
A number of changes in the liability of carriers were among the amendments to the Civil Code announced on 21 April of this year, as outlined below:
The period for claims for damages from carriers of goods is shortened:
Previously, the right of claim is extinguished if not exercised within two years of the date of delivery, or of the date on which delivery should have been completed. The period is now changed to one year. However, the time limit of the claim against the carriers of passengers has not been changed.
The bill of lading should not be signed and issued until the consigned goods have been received:
The old code provided that the carrier should issue a bill of lading at the request of the consignor, but it did not specify that the carrier could refuse to issue the bill of lading until such time as he had received the consigned goods. The code's silence on this point has often given rise to disputes. The new code stipulates that the carrier should sign and issue a bill of lading at the request of the consignor after receipt of the goods. This provision should prove helpful in resolving disputes.
In the event a bill of lading is lost, stolen, or destroyed, a new, retroactive, bill of lading may be obtained on security prior to a judgment of exclusion:
In the past, when a bill of lading was lost, stolen, or destroyed, a re-assertion of rights could only be made subsequent to a public summons and a judgment of exclusion, since a bill of lading is a negotiable instrument. However, the process of applying for a public summons and obtaining a judgment of exclusion usually takes several months, to the considerable inconvenience of the holder of the bill of lading and the carrier. The new code provides that under any of the above three circumstances, the holder of the bill of lading may apply for issuance of a new bill of lading upon provision of commensurate security to the carrier once the public summons procedure has begun.
Article 105 of the Maritime Law stipulates that the provisions of Articles 627 to 630 of the Civil Code concerning bills of lading apply mutatis mutandis to the bills of lading mentioned in the Maritime Law. Since the new provision concerning issuance of a new bill of lading is contained in Article 629-1, it can be interpreted as applying mutatis mutandis, or at least applying by analogy, to maritime bills of lading. Hence, under certain conditions, a request may likewise be made for resistance of a maritime bill of lading that has been lost, stolen, or destroyed.
A provision is added that in cases where obstacles to delivery arise, the carrier may request instructions from the consignor; if the consignor fails to give such instructions promptly, the carrier may place the goods in storage at the consignor's expense.
The old code lacked this provision, and was entirely silent on how cases should be handled in which the consignor failed to give instructions, or in which delivery was impeded by events not caused by the carrier (for instance, local government controls on carriage). The new code should therefore assist in resolving related problems.
The liability of passenger carriers is increased:
Under the old code, carriers could cite force majeure as an excuse against liability for delay in the carriage of passengers. The new code stipulates, however, that carriers of passengers should bear liability for delay even in cases of force majeure. However, except as otherwise dictated by customary practice, their liability is limited to necessary additional expenses paid by the passengers on account of the delay.
The luggage collection period prior to auction is shortened:
The old code stipulated that luggage could only be sold by auction if the passenger had failed to collect it within six months. The new code provides that if the luggage has not been collected within one month, the carrier may notify the passenger to collect it by a certain deadline. Luggage still uncollected at the deadline may be sold by auction. If a passenger's whereabouts are uncertain, the luggage may be sold by auction directly without notification of the passenger. Luggage of a nature that will easily perish may be sold by auction 24 hours after its arrival.
The effective period for claims for damages from forwarding agents is shortened:
The period is reduced from two years under the old code to one year under the new code.
Creditors may claim compensation for damages to their right of personality caused by failure to perform obligations:
A new article stipulates that a debtor should make compensation for damages to a creditor's right of personality caused by the debtor's failure to perform his obligations. Since the right of personality encompasses honor and credit, carriers may in the future be required to make compensation not only for damages to property in the event that goods are damaged or delayed or passengers are injured during carriage, but also for damage to credit or honor. Whether the limitation for claims is two years or one year is a matter of dispute.
The above amendments will take effect on 5 May 2000; however, item 3 above is retroactive. Also, if as of 5 May 2000 more than 1 year remains in the limitation period for a claim for damages from a carrier of goods or forwarding agent as mentioned above, the period will be shortened to one year from the date of 5 May 2000.