ABSTRACT
Transport activity is currently one of the most important types of entrepreneurial activity. In this connection, the issues of effective organization and functioning of the transport system are one of the leading directions of the activity of any state. In the process of transport activity, certain social relations are formed, the legal regulation of which is carried out with the help of a special set of norms, called transport law.
This article is devoted to study of the evolution of transport legislation in Russia and European countries. Appeal to the European experience of legal regulation of public relations from activities of transport and European legal doctrine is undoubtedly relevant to, as is known, comparative jurisprudence makes it necessary to look at other concepts from different angle and to reveal their real significance in national law.
Keywords: transport law, transport legislation, transport activities, legal regulation, transport code.
The term “transport law” appeared in Russian and European legal science at the end of the XIX century and is now so firmly entrenched in it that in itself it does not cause objections from the scientific community and is generally accepted. At the same time, the legal regulation of social relations that arise in the process of transport activity originated both in Russia and European countries much earlier, and began to develop gradually along with the emergence and development of certain modes of transport and the emergence of various social relations emerging in the process of their exploitation.
The oldest forms of transport were river and sea transport. That is why the legal regulation of public relations from the activities of transport began with the regulation of shipping and transportation of goods along waterways. Russia was located on the great sea route “from the Varangians to the Greeks”, as a result of which the river and sea navigation was actively used, as evidenced by the agreements of Russians with the Greeks under Prince Oleg and under Prince Igor (late 800s – early 900s. AD).
In general, at the stage of its inception, the legal regulation of public relations from transport activities developed on the basis of customs along with trade and customs law.
In the 14th-17th centuries, transport activities, along with the customs, began to be regulated by special norms that were of a transport nature, which were developed in the following areas: 1. the imposition of transport taxes; 2. the organization of nationwide routes of communication; 3. state-owned natural transport duties; 4. transportation of mail [1].
As noted in the legal literature, transport law in its modern sense was born in Russia only during the reign of Peter I. This can be explained by the fact that, even before the reign of Peter I, separate acts regulating various aspects of transport activity were adopted, only at the beginning of the XVIII century, the legal regulation of public relations from transport activities begins to acquire features with respect to a harmonious system of norms.
At this stage, water transport was a priority area, therefore it was not by chance that it was in the reign of Peter the Great that Russian maritime legislation began to develop actively, as evidenced by the July 20, 1720 edition of the Evers Charter, which detailed the relationship between ship-owner and shipper, set the time Load and unloading, distributed the costs of loading and unloading. In case of damage, the damage incurred by the eyewitness accounted for by the ship’s owner, and the loss for the goods was carried by the merchant. [2]
In contrast to the reign of Peter the Great, whose legislative regulation was carried out in strict imperative forms in all spheres of activity, the reign of Catherine II was marked by the liberalization of economic relations and the rise of the economy, including in the field of transport. The impetus for this was the manifesto issued in 1775, permitting the free establishment of any enterprises, which in turn stimulated the development of the transport system. It was from that time began the creation of a harmonious state system for maintaining roads and a network of state postal stations and post offices. Uniform rules of service were introduced, forms of travel documents – passports, roadside waybills for cargo.
The further development of shipbuilding and the complication of maritime trade relations led to the publication in 1781 of the Charter of the Merchant Shipping Company, which consisted of three parts, exemplified by the French maritime charter of 1681 Ordonnance de la marine.[3].
Industrial development in the XIX century brought to life new types of transport (railways, steam navigation) and led to the expansion of transport communications, which necessitated the adoption of special laws regulating the functioning of the transport industry.
A particularly significant event at this stage was the emergence of a regulatory framework for the operation of rail transport. The first documents regulating the activities of rail transport in Russia were the charter of the Tsarskoye Selo Railway, the first in Russia, adopted in 1837, and the charter of the Main Company of the Russian Railways, containing a plan for extensive railway construction in the country. As rightly noted in the scientific literature, each charter of the joint-stock company was considered as a separate legal act, signed personally by the tsar [4]. The General Charter of the Russian Railways of 1885 was the first special codified source of railway legislation and was of fundamental importance for the further development of the legal regulation of the activities of railway transport in Russia and the social relations that are developing in its process. Its peculiarity in comparison with the statutes adopted in the Soviet era was that it established uniform rules of transportation for both state and private railways.
As a result of the legislative work carried out in the 19th century, a well-developed and well-coordinated system of regulatory legal regulation of various social relations developing in the sphere of transport activity, which in its turn contributed to the establishment of Russian transport law at the turn of the 19th century, as well as the lasting fixing in science its term.
Carrying out the legal regulation of public relations from transport activities, the pre-revolutionary legislator sought to build it on the basis of the adoption of complex codified acts. These acts affected by their legal regulation different in their legal nature of public relations, formed in the field of transport, and combined, along with civil law and the rules of other industry (administrative, land, etc.). The noted tendency will be maintained even with the further development of the legal regulation of public relations from transport activities in Russia, which will predetermine the generally complex nature of Russian transport law and transport legislation at the present stage.
In connection with the change of the system and many public upheavals that affected the entire territory of the former Russian Empire, during the Soviet period the regulatory base, primarily railway transport, was actively developed, expanded and processed. Already in 1920, three years after the October Revolution, the Decree of the Council of People’s Commissars of the RSFSR of August 16, 1920 adopted the General Charter of the Railways of the RSFSR, which replaced the General Charter of the Russian Railways of 1885, which operated for thirty-five years. Its norms were calculated for the transition period of Military Communism, fixed the lack of cash settlements with cargo owners, and two years later, in connection with the introduction of the New economic policy, the Decree of the Council of People’s Commissars of the RSFSR of June 12, 1922 adopted the new Statute of the Railways of the RSFSR, which reflected changes in the economic Policy of the country.
The first All-Union Charter of the railways of the USSR, approved by the USSR Council of People’s Commissars on May 24, 1927, reproduced without changing the norms of the previous Charter.
The refusal of contractual regulation of transportation in favor of their planning was enshrined in the following Charter of the USSR Railways, approved by the Council of the USSR Council of People’s Commissars on February 10, 1935, No. 232. This Charter enshrined the main duty of the railways – the implementation of the state plan for freight and passenger transportation with the least expenditure of funds. At the same time, if earlier responsibility was built for non-fulfillment of the contractual obligations of the railway to the cargo owner, then after the adoption of this charter – for non-fulfillment of the state transportation plan.
Along with the railway, the legal regulation of public relations in other areas of transport activity was also updated and developed. So, in the sphere of sea transport on May 30, 1921 the Sovnarkom of the RSFSR adopted the Decree on Maritime Transport. In the future, the legal regulation of social relations arising in the field of merchant shipping was carried out by the Code of Merchant Shipping of the USSR approved by the resolution of the Central Election Commission and the Council of People’s Commissars of the USSR on June 14, 1929, and the Code of Merchant Shipping of the USSR approved by the Decree of the Presidium of the Supreme Soviet of the USSR of September 17, 1968 and the Law USSR on December 13, 1968.
The development of legal regulation of relations from the activities of inland waterway transport also took place during the Soviet period in a number of stages. This was reflected in the Decree on transport operations on inland waterways adopted on 11 April 1921 adopted in order to regulate transport operations on inland waterways on the inland waterways and approved by the USSR Council of People’s Commissars on October 24, 1930 and the decision of the Council of Ministers of the USSR of October 15 1955 Statutes of Inland Water Transport of the USSR in 1930 and 1955.
In the Soviet period, the legal basis for civil aviation was established. Despite the fact that some legal norms governing flights of aircraft began to occur much earlier, at the dawn of aeronautics and were mostly prohibitive, only at the beginning of the XX century, in connection with the development of aeronautics and the advent of aviation, the idea of creating a harmonious system of air law, which could be fully realized by the middle of the XX century. This was reflected in the adoption of the Air Code of the USSR in 1932, approved by the resolution of the Central Executive Committee and the Council of People’s Commissars of the USSR No. 36/460 of April 27, 1932. Following the Air Code of the USSR in 1932, the USSR CEC and SNK decree No. 14/1713 of August 7, 1935, the decrees of the Presidium of the Supreme Soviet of the USSR of December 26, 1961 and of May 11, 1983 approved the Air Codes of the USSR in 1935, 1961 and 1983 respectively.
Legal regulation of the activities of road transport, in contrast to rail, sea and inland waterways, developed in a peculiar way. This manifests itself in the fact that until 1969 there was no codified act regulating public relations in road transport. Only in 1969 the Charter of motor transport of the RSFSR was adopted, which lasted until its abolition in connection with the adoption of the new Charter of Road Transport and Urban Ground Electric Transport in 2007.
The current period of development of the legal regulation of public relations from the activities of transport and Russian transport law, respectively, is characterized by a comprehensive settlement of relations arising on sea, air, inland water, rail and road transport. The relations that are formed on all these types of transport are regulated by numerous international treaties, legal customs, normative legal acts, among which special transport statutes and codes containing the norms of civil, administrative, land, labor and other branches of law, and as a result complex. This is the Code of Merchant Shipping of the Russian Federation of April 30, 1999 No. 81-FZ [5], the Code of Inland Water Transport of the Russian Federation of April 7, 2001 No. 24-FZ [6], the Air Code of the Russian Federation of March 19, 1997 No. 60-FZ [7], the Charter of Railway Transport of the Russian Federation of 10 January 2003 No. 18-FZ [8] and the Charter of Road Transport and Urban Ground Electric Transport of November 8, 2007 No. 259-FZ.
For comparison and completeness of the research, let us say a few words about the development of the legal regulation of public relations from the activities of transport in a number of European countries, particularly in England and France. For the analysis in this article, England and France were chosen as states-representatives of different legal families in which all spheres of transport are developed.
Thus, an analysis of the content of sources of English law allows us to conclude that the social relations that arise in the process of transport activity in England are regulated in sufficient detail and comprehensively. Developing initially on the basis of customs, and then on the basis of judicial precedents, at present, the rules governing the operation of transport in England have received extensive consolidation in numerous consolidated acts, the active adoption of which began to be carried out from the middle of the XIX century and continues today.
The legal regulation of social relations arising in the field of transport in England is currently being implemented both through the adoption of general consolidated acts on transport: Transport Act 2000; Transport Act 1985; Transport Act 1968; Transport Act 1983; Transport Act 1985; Transport Act 1985 (Extension of Eligibility for Travel Concessions) Order 1986; Transport Act 1962; Transport Act 1980; Transport Act 1981, and by regulating the public relations that arise in the functioning of various modes of transport Road Traffic Act 1988; Road Traffic (Driver Licensing and Information Systems) Act 1989; Road Traffic Regulation Act 1984; Railways Act 1993; Civil Aviation Act 1982; Civil Aviation (Eurocontrol) Act 1983; Railways Act 1974; Railways Act 2005; Maritime Conventions Act 1911; Civil Aviation Act 2006.
So, for example, the Merchant Shipping Act 1995 is essentially analogous to the Code of Merchant Shipping of the Russian Federation of the Russian Federation and regulates a variety of social relations developing in the field of merchant shipping, such as the registration of British vessels, the requirements for the crew vessels, calculation of salaries to crew, duties to establish the ship’s seaworthiness, disciplinary offenses of the crew, safety and health of seamen’s work, requirements for fishing vessels and their crew, rescue operations, ship accidents, rendering Assistance to vessels in distress, recovery of sunken property, transportation of passengers and baggage, limitation of liability for maritime claims, prevention of pollution from ships, investigation of crimes and jurisdiction of ships.
A significant number of acts are devoted to the financial and organizational aspects of transport, as well as to its safe functioning and environmental regulation of transport activities (Aviation and Maritime Security Act 1990, Railways and Transport Safety Act 2003). Thus, for example: Transport Act 2000 addresses the issues of air traffic control and air navigation services, licensing of transport activities, fees for air transportation, organization of municipal transport and bus transportation, traffic conditions, reduction or restriction of environmental pollution, organization of rail transport, financing Inland waterway and sea transport, etc.
In addition, it is possible to identify and acts aimed at regulating contractual relations in transport. These include, Carriage of Goods by Sea Act 1992; Carriers Act 1830; Carriage by Air (Supplementary Provisions) Act 1962; Canal Carriers Act 1845; Carriage of Goods Act 1971.
As for the formation and development of the legal regulation of public relations in the sphere of transport in France, it should first of all be noted that it is based on the specifics of the Romano-German legal family, of which France is a vivid representative. In this regard, for France (unlike England) is very characteristic division of the right to public and private, as well as extensive codification (more than 60 codes).
Transport law in France developed initially on the basis of customs. The need for streamlining legal regulation that arose in the course of the development and complication of social relations led in the seventeenth century to the development of statutory law in France. In particular, the Ordonnance de la marine, already mentioned by us, was the first experience of rationing merchant shipping in a legislative way, combining the norms of private and administrative law. The structure of the Ordonnance de la marine is five books: 1. about the Admiralty; 2. on maritime and marine vessels; 3. on maritime contracts, such as hiring ships and people, insurance, accidents, wills of the deceased during the voyage; 4. about the port and coastal police; 5. on sea fishing.
The nineteenth century was marked by the adoption of another well-known monument of European law – the Code of Commerce in 1807 (Code de commerce 1807), whose second book almost fully reproduced the Ordonnance de la marine rules, with one exception: since the norms of transport law were included in the Code de commerce, the legislator Was forced to exclude the norms of an administrative nature, with which the legislation of the seventeenth century was saturated. Currently, France has a new Commercial Code of 2000, adopted taking into account the applicable provisions of EU law and replacing the Code de commerce of 1807 that was in effect for almost two centuries. At the same time, it should be noted that the Commercial Code of 2000, unlike its predecessor, excluded from its membership rules on the regulation of social relations arising from commercial navigation. Moreover, despite the extensive codification, there is currently no single code in France regulating social relations arising from commercial navigation. These relations are regulated by a number of laws and decrees, as well as special codes that cover a narrow area of legal relations that arise in the process of carrying out transport activities. In particular, the following normative legal acts can be singled out: Law of France of June 18, 1966 No. 66-420 “On the Chartering Agreement and Sea Carriage”, as amended by Law No. 88-1091 of December 1, 1988; Law of France of January 3, 1967 No. 67-5 “On the status of ships and other sea-going floating assets”, as amended by the law of January 16, 2001, No. 2001-43; Law of January 3, 1969 No. 69-8 “On Ownership and Marine Sales”; Disciplinary and criminal code of the merchant fleet (Code disciplinaire et pénal de la marine marc
hande); Code of laws on seaports (Code des ports maritimes) and the Maritime Labor Code (Code du travail maritime).
Despite the fact that the legislator initially paid the most attention to the regulation of merchant shipping, other transport areas eventually also received consistent and comprehensive legal regulation. Thus, the public relations that develop in the field of air transport are regulated by the Code of Civil Aviation (Code de l’aviation civile). This code is essentially a normative legal act, combining the norms of public and private law (criminal, civil, administrative, labor, environmental, etc.), comprehensively regulating various social relations arising in the field of civil aviation. In particular, it contains provisions on aircraft and their registration, the movement of aircraft, airfields, contracts for the carriage of goods and passengers, the commander and crew of the aircraft, the peculiarities of their work and leisure, disciplinary offenses, investigation of accidents and incidents, operational restrictions with noise produced by aircraft.
A similar act exists in the field of inland waterway transport – the Code of Inland Water Transport (Code du domaine public fluvial et de la navigation intérieure). The traffic sphere is regulated by the Code of the road (Code de la route), as well as the French Road Code (Code de la voirie routière). The first fixes traffic rules and requirements for vehicles, the second characterizes the types of roads, their operation, construction and reconstruction.
Let us note that the legal regulation of public relations from the activities of transport in both England and France is based on the need to adopt acts harmonizing the norms of national transport law with the pan-European law in force in this field.
Thus, summarizing the above, we can draw the following conclusions.
- The legal regulation of social relations in the sphere of transport activity in Russia, England and France was born and began to develop gradually, initially on the basis of customs.
- With the development of legal regulation of relations from transport activities and the adoption of special acts on transport, by the end of the nineteenth century a fairly harmonious system of norms was formed, which stipulated the consolidation of the term “transport law”.
- Russian and European transport law has historically been formed as a set of norms of different branches of law that regulate a wide range of activities of different modes of transport. As it developed, it took into account the changes taking place in the country’s economy, and at the same time, from the stage to the stage of its development, more and more thoroughly and comprehensively regulated the diverse social relations that develop in the field of transport activity.
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- Shershenevich G.F. Course of commercial law. T3. Bills of exchange. The law of the sea. Moscow: “Statute”, 2003. P.182.
- Zakhvataev V.N. Commercial Code of France. Maritime ordinance of 1681. M .: “Walters klover”. 2008. P.496-561.
- Kovalchuk M.A. State-Legal Regulation of the Activity of Railway Transport in Russia (1836-1917). Khabarovsk: Publishing House of FENU, 2007. P.26.
- The Code of Merchant Shipping of the Russian Federation of April 30, 1999 No. 81-FZ // Rossiyskaya Gazeta. – No. 85-86. – 1999. – May 1-5.
- The Code of Inland Water Transport of the Russian Federation of April 7, 2001 No. 24-FZ // Collection of legislation of the Russian Federation. 2001. № 11. Art. 1001.
- The Air Code of the Russian Federation of March 19, 1997 No. 60-FZ // Collection of legislation of the Russian Federation. 1997. № 12. Art. 1383.
- The Charter of Railway Transport of the Russian Federation of January 10, 2003 No. 18-FZ // Collection of legislation of the Russian Federation. 2003. № 2. Art. 170.
