AIRCRAFT PERFORMANCE - Fakulteta za pomorstvo in promet

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Transcript AIRCRAFT PERFORMANCE - Fakulteta za pomorstvo in promet

LOGISTICS CONTRACT
Doc. dr. Boris Jerman
Avtor
Naslov gradiva
Univerza v Ljubljani
Fakulteta za pomorstvo in prometb
1
Definition of logistics:
Logistics is management of the flow of goods, information and other resources
between the point of origin and the point of consumption in order to meet
the requirement of customers.
It involves the integration of: information, transportation, inventory,
warehousing, cargo handling, packaging
etc.
Today logistics is one of the most prospective business segments.
Avtor
Naslov gradiva
Univerza v Ljubljani
Fakulteta za pomorstvo in prometb
2
Reasons for legal regulation of logistics:
Temporary world production and consumption needs a very high elevate and
sophisticated level of performance of logistics; which can be performed only
by specialized person – logistics operator, who offers logistics services for the
market.
The consequence of offering logistics services for market:
is the creation of relationships between logistic operator and his customer what
requires legal support.
Avtor
Naslov gradiva
Univerza v Ljubljani
Fakulteta za pomorstvo in prometb
3
Definition of logistics contract:
Logistics contract is not easy to define. One of the main reasons is that the
logistics operators are performing a lot of services, which are primarily
regulated by other contracts:
•
•
•
•
contract for services,
warehousing contract,
transport contract,
freight forwarding contract.
Logistics contract is: a contract where one party (a logistics operator) regulates
the flows of goods and materials for the other party (a customer), who in
exchange has to pay a remuneration.
Avtor
Naslov gradiva
Univerza v Ljubljani
Fakulteta za pomorstvo in prometb
4
Legal nature of logistics contract
The main question in indentifying the legal nature of logistics’ contract is, if it
conserves its autonomous nature or it can be identified by the contracts which
services are performed by logistics operator.
The answer can be found in the function of the logistics contract, which is:
regulation of flows of goods from its origin to the consumer, with the aim of his
supply.
This function is not typical for no one contract which services are performed by
logistics operator.
Avtor
Naslov gradiva
Univerza v Ljubljani
Fakulteta za pomorstvo in prometb
5
From the function of logistics contract- the logistics contract is:
A complex contract; where all contracts which primarily regulate the services
performed by logistics operators lose their identity and are completely
subordinated to the logistics contract.
From that point of view the logistics contract has it own cause and subject.
Avtor
Naslov gradiva
Univerza v Ljubljani
Fakulteta za pomorstvo in prometb
6
Logistics contract: Contract of result or contract of diligence:
Logistics operator performs contract services wich are primarily regulated by contracts of
result (French: contract du résult) and services which are primarily regulated by contracts
of diligence (French: contract du moyen).
Logistics contract is a contract of result.
Logistics operator realizes his obligations when he successfully finishes performing all
services which he takes over with the logistics contract. Other characteristics which make
logistics contract a contract of result:
logistics operator is independent in performing logistics services (he does not receive the
instructions from his customer regarding the methods how to perform logistics contract),
he acts for his own account.
Avtor
Naslov gradiva
Univerza v Ljubljani
Fakulteta za pomorstvo in prometb
7
Base of the logistics operator liability:
In contracts which primarily regulate services, which are performed by logistics
operators, several types of liability can be met:
contract for services: fault liability,
transport contract: presumed fault liability,
freight forwarding contract: fault liability,
warehousing contract: strict liability.
The base of logistics operator's liability is in the most of logistics contracts fault
liability, which is uniform for all the period of performing the logistics contract.
Avtor
Naslov gradiva
Univerza v Ljubljani
Fakulteta za pomorstvo in prometb
8
Limitation of the logistics operator liability:
In the area of limitation of liability the situation is more complex as in the area of base of
liability.
Why?
Because of the network system of liability which means:
The logistics operator is liable for loss and damage of the goods according to the liability
regime which, mandatorily, governs the service on which the loss or damage has
occurred.
In the area of limitation of liability is very difficult to establish uniform system of liability,
especially in case the logistics operator avails of subcontractors who have higher
limitation of liability, in this case:
logistics operator is bound by higher limits of liability than his subcontractors, what
means that he takes over a part of risk on himself.
Avtor
Naslov gradiva
Univerza v Ljubljani
Fakulteta za pomorstvo in prometb
9
Is the exclusion of limitation rational?
The limitation of liability has a calculative significance for logistics operator:
he knows at every time the maximum extent of how much he should pay in case he
would be liable for damage.
This fact in logistics is very important in case of interruption of regulation of flows of
goods and materials performed by logistics operator.
In case of interruption of regulation of flows of goods and materials can be enormous
damage, if because of that act also a production is interrupted.
That damage can exceed many times the value of the goods and materials that are a part
of the regulation of the goods and materials.
Momentarily: the risks in performing the logistics are too high that a limitation of liability
of logistics provider could be excluded, it could negative influence on the economic
activity of logistics.
Avtor
Naslov gradiva
Univerza v Ljubljani
Fakulteta za pomorstvo in prometb
10
Third party in logistics:
The main rule of the common and civil law is that contract binds only their parties.
The question is?
May a third party (subcontractor of logistics operator) who is not a party to the logistics
contract avail the benefits of the logistics operator (defenses and limitations of liability of
the logistics operator).
In maritime sector appeared the Himalaya clause:
• which is a contractual or statutory provision expressed to be for benefit of third party
who is not a contract party. In this way he can avail of same defenses in limitations of
liability.
This is reality also in logistics sector, if the risks can be arranged proportionally among all
participators.
Avtor
Naslov gradiva
Univerza v Ljubljani
Fakulteta za pomorstvo in prometb
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