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Har reklamationsfrågan inom sjötransporträtt samt vägtransporträtt kommit att utvecklas till en transporträttslig chimär?

Olsson, Carin (2008)
Department of Law
Abstract
The rules of law regarding complaints have frequently been addressed in law debates and have in addition been overviewed for a long time. Within the laws of carriage, the law of carriage and the law of the sea, the rules of complaint remain separated from general rules of complaint. Within the rules of the Swedish law of carriage (vägtransportlagen) as well as the Swedish maritime law (sjölagen), the rules of complaint involve uncommonly short time limits. These short time limits do not only concern complaint prescribed by law, but also contractual complaint, since many complaint related issues are adjusted in contracts. If there is visible damage on the goods the complaint should be made immediately when the goods arrive or when they are... (More)
The rules of law regarding complaints have frequently been addressed in law debates and have in addition been overviewed for a long time. Within the laws of carriage, the law of carriage and the law of the sea, the rules of complaint remain separated from general rules of complaint. Within the rules of the Swedish law of carriage (vägtransportlagen) as well as the Swedish maritime law (sjölagen), the rules of complaint involve uncommonly short time limits. These short time limits do not only concern complaint prescribed by law, but also contractual complaint, since many complaint related issues are adjusted in contracts. If there is visible damage on the goods the complaint should be made immediately when the goods arrive or when they are being received by the recipient. If the damage is concealed, the complaint should be presented within three days (carriage by sea) or seven days (carriage by road) from the time the goods have arrived or have been received by the recipient. When it comes to neglected complaint, the courts have presented vague conclusions regarding what should qualify as a valid complaint, regarding the time limit. In some cases the courts have used discretionary decisions based upon reasonability, approving a certain complaint even though it has not been made within the correct time limit. The main issue has been what should happen when a complaint is neglected or when it is not produced within the correct time limit. What sort of approach have the courts taken to the different sanctions that go with a neglected complaint? Evidently, it has been sanctioned differently in different rules of law, and has also changed over time. Within vägtransportlagen, influenced by The CMR Convention, neglected complaint has been heavily sanctioned with the loss of right to complain altogether. Within The CMR Convention, neglected complaint has been sanctioned differently depending on what type of damage it concerns. Neglected complaint concerning visible damage, and damage revealed upon inspection by the freight forwarder and the recipient, has been sanctioned with the loss of the right to complain. If the damage in question has not been visible, the sanction regarding neglected complaint has consisted in a shift in the burden of evidence. Within maritime law, presumed liability is stipulated when a complaint is neglected and in those cases the goods are presumed to have been received in the agreed condition. A major problem reflected in this paper is the courts' failure in maintaining a consistant, clear line in its decisions, when it comes to questions concerning complaint. The courts do not keep a concerted approach, neither regarding the rules of law, nor case law&semic even though case law in this area has an important and unquestionable position. There are significant needs for reform when it comes to the rules of complaint, within the rules of carriage. In conclusion, one could argue that these rules could loose their value, should the needs for appropriate reform be ignored. (Less)
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author
Olsson, Carin
supervisor
organization
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
Transporträtt
language
Swedish
id
1560940
date added to LUP
2010-03-08 15:55:27
date last changed
2010-03-08 15:55:27
@misc{1560940,
  abstract     = {The rules of law regarding complaints have frequently been addressed in law debates and have in addition been overviewed for a long time. Within the laws of carriage, the law of carriage and the law of the sea, the rules of complaint remain separated from general rules of complaint. Within the rules of the Swedish law of carriage (vägtransportlagen) as well as the Swedish maritime law (sjölagen), the rules of complaint involve uncommonly short time limits. These short time limits do not only concern complaint prescribed by law, but also contractual complaint, since many complaint related issues are adjusted in contracts. If there is visible damage on the goods the complaint should be made immediately when the goods arrive or when they are being received by the recipient. If the damage is concealed, the complaint should be presented within three days (carriage by sea) or seven days (carriage by road) from the time the goods have arrived or have been received by the recipient. When it comes to neglected complaint, the courts have presented vague conclusions regarding what should qualify as a valid complaint, regarding the time limit. In some cases the courts have used discretionary decisions based upon reasonability, approving a certain complaint even though it has not been made within the correct time limit. The main issue has been what should happen when a complaint is neglected or when it is not produced within the correct time limit. What sort of approach have the courts taken to the different sanctions that go with a neglected complaint? Evidently, it has been sanctioned differently in different rules of law, and has also changed over time. Within vägtransportlagen, influenced by The CMR Convention, neglected complaint has been heavily sanctioned with the loss of right to complain altogether. Within The CMR Convention, neglected complaint has been sanctioned differently depending on what type of damage it concerns. Neglected complaint concerning visible damage, and damage revealed upon inspection by the freight forwarder and the recipient, has been sanctioned with the loss of the right to complain. If the damage in question has not been visible, the sanction regarding neglected complaint has consisted in a shift in the burden of evidence. Within maritime law, presumed liability is stipulated when a complaint is neglected and in those cases the goods are presumed to have been received in the agreed condition. A major problem reflected in this paper is the courts' failure in maintaining a consistant, clear line in its decisions, when it comes to questions concerning complaint. The courts do not keep a concerted approach, neither regarding the rules of law, nor case law&semic even though case law in this area has an important and unquestionable position. There are significant needs for reform when it comes to the rules of complaint, within the rules of carriage. In conclusion, one could argue that these rules could loose their value, should the needs for appropriate reform be ignored.},
  author       = {Olsson, Carin},
  keyword      = {Transporträtt},
  language     = {swe},
  note         = {Student Paper},
  title        = {Har reklamationsfrågan inom sjötransporträtt samt vägtransporträtt kommit att utvecklas till en transporträttslig chimär?},
  year         = {2008},
}