Loading & Delivery Control
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QANAQ provides loading and delivery specification services for shippers, consignees, carriers, insurance companies, and port authorities in foreign trade and transportation transactions. Additionally, it also conducts audits to verify compliance with the agreed-upon specifications and legal regulations.
The issue of damage pertains to determining which party should bear the financial loss resulting from the impossibility of fulfilling the sales contract due to the sold item being destroyed or deteriorating, i.e., decreasing in value during the period from the formation to the performance of the contract, without being attributable to any of the contract parties.
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Upon examining various legal systems, it is observed that there are fundamentally three different solutions adopted for the problem of damage, which concern who the damage belongs to and how it is transferred.
The problem of damage can be resolved through three different approaches, which vary depending on when the damage passes from the seller to the buyer. In the first approach, the damage is attributed to the buyer from the moment the damage contract is validly established between the parties. The second approach involves the seller being responsible for the damage during the period from the establishment of the contract until the transfer of possession or delivery of the sold item to the buyer. Here, the damage passes to the buyer upon the transfer of possession or delivery of the sold item. Finally, in the third approach, the seller bears the responsibility for the damage until the transfer of ownership, after which it is transferred to the buyer along with the ownership.
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Ensuring that loading and delivery conditions are in compliance with the contract is crucial in import and export transactions. It is well-known that many disputes between the parties arise after this stage of inspection.
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International delivery terms can be added by the parties in their contracts, or they can create their own specific delivery terms. In either case, proving that the delivery has been carried out in accordance with the parties' agreement is important.
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The examination of loading conditions is significant for ship operators and logistics companies, and it is also known that conflicts related to loading conditions may arise between ship operators and port authorities.
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The charterparty commences when the vessel arrives at the loading/unloading port. Furthermore, a notice of readiness should also be provided at the loading/unloading port to initiate the charterparty. The notice of readiness signifies that the vessel has arrived and is prepared for loading/unloading. To commence the charterparty, the vessel must have docked at the designated location (quay) as stated in the charterparty.
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The calculation of laytime and demurrage is particularly important for ship operators, insurance companies, port operators, and buyers.
The responsibility for demurrage and dispatch times is a crucial issue in maritime transportation in foreign ports. Demurrage time refers to the time that a vessel is required to wait for loading/unloading at the loading/unloading port. The carrier must wait at the location for this time without requesting any fee. Once the demurrage time has ended, the dispatch time, which will be charged a fee, will be entered. Demurrage fees are charged for the extra time spent waiting after the demurrage time.
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In developing countries, road transportation is more widely used in domestic transportation. In foreign trade, we observe that if the country has access to the sea, the use of sea transportation increases.
The problems faced by transportation companies in international transportation services include human resources issues, customs issues, lack of authorization certificates, administrative and monetary fines, and price competition.
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Using multiple transportation modes in international transportation services increases transportation risks and makes the organization more complex for the companies providing such services.
Proving that they have fulfilled their obligations in accordance with the contract and specifications and minimizing their liability for any damages that may arise during loading and unloading is important for the party responsible, not only in developed countries but also in countries where port and customs services are not fully developed.
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It is crucial to protect the evidence that needs to be preserved according to the law while inspecting if loading and delivery are carried out in compliance with the contract. Failure to do so may result in the parties being unable to exercise their rights to evidence properly, leading to an increase in damages and an unjust burden in the event of a dispute.
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Debt-related damage refers, in a narrow sense, to a danger or risk expressed in terms of damage problems.
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The legislators in Swiss, German, English, and French legal systems have opted for terms such as "gefahr, risque, risk" that signify danger or risk instead of the concept of "damage" (schaden, dommage, damage).
Swiss law provides that if the debtor is released from their debt due to an impossibility arising from a reason that cannot be attributed to the debtor before the performance of the debt, the creditor is also not obliged to fulfill their obligation in a reciprocal contract that creates mutual obligations.
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In terms of the transfer of damages, French law has adopted the third solution and has tied the transfer of damages to the transfer of ownership of the sold item to the buyer.
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It is foreseen that in sales of goods where the sold item is not considered as a whole but is sold by counting, measuring, or weighing, the transfer of damage will occur at the moment when the item is counted, measured, or weighed, and not at the time of delivery.
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According to Section 20 of the Sale of Goods Act that governs the sale of goods, English law resolves the problem of the transfer of damage based on the moment of transfer of ownership to the buyer.
Section IV of the CISG (United Nations Convention on Contracts for the International Sale of Goods) regulates the issue of transfer of damage in Articles 66-70.
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If obtaining an export license is required, the responsibility for obtaining the license falls under the seller's delivery obligations. Therefore, if the license is not obtained, the seller will be held responsible for this situation under Article 66 of the CISG.
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It is stated that in Article 412 of the Austrian Commercial Code, the freight forwarder is granted similar rights to represent the seller and to deliver the sold item to the carrier on behalf of the seller.