Under the contract of carriage the carrier shall be obliged for the agreed reward to deliver cargo or passengers to the point of destination. Cargoes, passengers and baggages shall be transported on the basis of the contract of carriage.

The basic principles of carriages contract in legal system arise form established custom and rules and are fundamental to all areas of transporting or carriage in practice.

Reference is made to these principles in drafting and interpreting the provisions of any legal agreement in this area such as a carriage, carriage of passengers, carriage of goods, cargo etc. The principles of contract law will determine whether and at what point a binding agreement has been made between the parties concerned.

Formation of carriage contract requires the presence of four essential elements:

Offer – the contract must contain the basic terms of the agreement and be capable of acceptance without further negotiation. This does not mean that the initial communication between parties will in itself constitute an offer.

Acceptance – there must be an unqualified agreement to proceed on the basis set out in the offer and it must be communicated to the offeror – the person making the offer – in order to be effective. If the offeree – the person receiving the offer – states that he or she accepts the offer subject to contract, that is, some variation of the terms, then no contract is formed. This would be a qualified acceptance, which constitutes a counter offer.

Issues may arise as to whether the acceptance has been communicated. Two rules determine this:

The reception rules applies to instantaneous forms of communications, for example telephone calls. The contract is said to be formed when the acceptance is received by the offer.

The postal acceptance rule, where there is a delay between the communication being sent and received, for example by post, the contract. The contract is formed when the acceptance is sent by the offeree. To avoid uncertainty, the offeror may specify the method and timing of acceptance. Agreement on essential terms, for example price and delivery, must be certain and not vague. Consideration – for a contract to be enforceable something of value must be given, for example a price, even it is of nominal value 5 manat. Intention – it assumed that contracting parties intend to create legal relations, particularly commercial circumstances. This is, however, a rebuttal presumption – an assumption that can be contradicted – if there is contrary evidence.

A binding contract must be:

In the form required by the law:

Between parties with the capacity to contract – that is, legally capable to contract.

It may be:

Enforceable in the event that one of the contracting parties fails to perform the contract.

Made in writing: or, Made orally:

Implied from conduct, that is, by the behavior of the contracting parties.

However, the law does require that some agreements are made in writing. This is usually because registration is required for the agreement to be effective and the relevant registry requires a written agreement. Examples of agreements to be made in writing include:

Contracts for the transporting of goods, passengers, cargoes: and, Contracts of guaranties; and, Contracts for transfer of equipment,

A simple carriage requires consideration – the price in exchange for a promise to do something – and become effective on execution, generally when it is signed. In contrast, a contract by deed doesn’t require consideration. A deed has different formal execution requirements depending on the contrasting parties. The conditions of the carriage of cargoes, passengers and baggage by particular transport vehicles, and also the liability of the parties for this transportation shall be determined by the agreement of the parties, unless otherwise stipulated by Civil Code of Turkmenistan, transport charters and codes, other laws and rules issued in conformity with them. Payment for carriage, fixed by the agreement of the parties, shall be collected for the transportation of cargoes, passengers and baggage, unless otherwise stipulated by the law orother legal acts. Payment for the carriage of cargoes, passengers and baggage by public transport shall be estimated on the basis of the rates, approved in the order, established by transport charters and codes. Works and services, performed or rendered by the carrier at the request of the cargo owner and not specified by rates, shall be paid by the agreement of the parties. The carrier shall have the right to withhold the cargo and baggage, given to him for carriage, as security for the payments for carriage due to him (The creditor, in whose custody is the thing, subject to the transfer to the debtor or to the person, named by the debtor, shall have the right, in case the debtor fails to discharge in time the obligation on the payment for this thing or on the compensation to the creditor of the expenses and of the other losses he has borne in connection with it, to retain it until the corresponding obligation is discharged. By way of the thing’s retention may also be secured the claims, which, while not being connected with the payment for the thing or with the compensation of the expenses and of the other losses, have nevertheless arisen from the obligation, whose parties are acting as businessmen. The creditor may retain the thing in his custody, despite the fact that after this thing has passed into the creditor’s possession, the rights to it have been acquired by the third person. The rules of the present Article shall be applied, unless otherwise stipulated by the contract. and The claims of the creditor, who is retaining the thing, shall be satisfied from its cost in the volume and in the order, stipulated for the satisfaction of the claims, secured against by the pledge.), unless otherwise stipulated by the law, other legal acts, the contract of carriage or unless the contrary follows from the substance of the obligation. In cases where the laws or other legal acts have introduced preferences for the payment for the carriage of cargoes, passengers and baggage, the expenses incurred in this connection shall be reimbursed by the transport organisation from the resources of the appropriate budget.

Proposals:

It is advised to consider following international conventions in forming carriage contracts as given in example above between civil entities which is not conflicting with Turkmenistan’s legislature for avoiding disputable cases: Convention for the Unification of Certain rules relating to International Carriage by air, signed at Warsaw on 12 October 1929,  The Customs Convention on International Transport of Goods under the Cover of TIR Carnets (TIR Convention), of 1975, International Convention on the Harmonization of Frontier Controls of Goods, of 1982, The European Agreement concerning the International Carriage of Dangerous Goods by Road (ADR), 1957, Convention on the Contract for the International Carriage of Goods by Road (CMR), of 1956.

1. Gurbanguly Berdimuhamedow: “Ösüşiň täze belentliklerine tarap” saýlanan eserler. Tom: 1,2,3,4,5,6,7,8,9,10,11,12,13 Aşgabat 2008ý, 2009ý, 2010ý, 2011ý, 2012ý, 2013ý, 2014ý, 2015ý, 2016ý, 2017ý, 2018ý, 2019, 2020ý.
2. Türkmenistanyň Konstitusiýasy. Aşgabat 2020ý
3. Türkmenistanyň Raýat Kodeksi. Aşgabat 2014ý
4. “Türkmenistanyň Döwlet serhedi hakynda” Türkmenistanyň kanuny. Aşgabat 2013ý
5. “Kiçi we orta telekeçiligi döwlet tarapyndan goldamak hakynda” Türkmenistanyň kanuny. Aşgabat TDNG 2009ý
6. Convention for the Unification of Certain rules relating to International Carriage by air, signed at Warsaw on 12 October 1929
7. The Customs Convention on International Transport of Goods under the Cover of TIR Carnets (TIR Convention), of 1975
8. International Convention on the Harmonization of Frontier Controls of Goods, of 1982,
9. The European Agreement concerning the International Carriage of Dangerous Goods by Road(ADR), 1957.
10. Convention on the Contract for the International Carriage of Goods by Road (CMR), of 1956.

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