Guaranteeing the Carrier's Claims: Regulations in the Civil Code and Special Legislation
Pandele, Adina Laura, Contemporary Readings in Law and Social Justice
ABSTRACT. Claims resulting from carrying goods are provided for by the new provisions of the Civil Code and by the special legislation governing various modes of transport. The Civil Code assimilates the carrier's cargo rights to a pledgee's rights, and, consequently, to those of a trustee responsible for the mere administration of the goods in his custody.
Keywords: contract of carriage, carrier, sender, recipient, debtor, creditor, pledgee, good, liens, special privilege, sale
The Civil Code1 reserves an important part to the pledges intended to ensure the patrimonial obligations resulting from the contractual relationships between the participants in transport operations. The common framework of the pledges established in the Civil Code applies to, and completes, on the one hand, the pledges recognized to the carrier by the new general rule of the contract of carriage,2 and, on the other hand, to the pledges granted by the special legislation, aimed at different ways of moving goods. Moreover, the general provisions covering all modes of transport, which are unitarily regulated by the Civil Code, shall apply unless the rules set out by the special laws or practices established between parties are harmed.3
In order to ensure the recovery of claims resulting from the movement of goods, traditionally, the carrier has the possibility to refuse to perform the obligation to deliver the goods at their destination until the recovery of travel expenses and of other ancillary expenses. This possibility, reflected in the refusal to deliver the transported goods, was explained by the carrier's capacity of precarious owner of the goods, on his tacit bond acknowledged by the sender, when rendering the goods for transportation. The carrier's privilege over the transported goods and the implicitly recognized lien have achieved a new vision in the Civil Code, i.e. this time the legislator expressly provides that, regarding the transported goods, the carrier enjoys the rights of a pledgee.4
By applying the general rules on bonds,5 we can deduce, firstly, that the carrier has, in respect to the goods belonging to another person, the obligations of a trustee responsible for their mere administration, being bound to perform all the necessary and useful acts for the preservation of goods.
The obligation of conservation results from the way in which the carrier's liability is regulated for the qualitative and quantitative integrity of goods. If he cannot claim a liability exempting cause, the carrier will be required to cover the damage caused by the loss of or damage to goods.6
Regarding the carrier's rights, similarly to a pledge, he has the option to refuse to deliver the goods as long as the recipient fails to fulfill his obligations; in this case, he also may perform certain acts of disposal regarding the goods held by him.
The carrier's possibility to refuse to deliver the goods at their destination until the recovery of debts resulting from their material ownership is equivalent to recognizing the lien in his favor.
The Civil Code7 expressly regulates the opportunity of the debtor of the liability to render the goods to refuse the restitution of goods as long as the creditor does not compensate him for the expenses necessary and useful that he made for those goods or for the damage that those goods caused him.8
In the field of transport, the lien had specific regulations, both in terms of land and maritime transport, in the Romanian Commercial Code.9 Currently, the carrier's possibility to refuse to deliver the goods, as long as his claim resulting from the carriage is not achieved, is generally regulated in the Civil Code (art. 1980 paragraph 1 of the Civil Code with the provisions of art. 1978 paragraph 3). By applying the general provisions in the field, this right of the carrier qualifies as a special privilege10 enjoyed by the carrier on the goods detained by him.
Also, this right is regulated in the special, internal and uniform legislation governing the different modes of transport. …