The transportation law - interferences and particular features in regard to other law branches

• Author: Stanciu Cristina
• Position: Ph. D. Lecturer
• Pages: 263-279

THE TRANSPORTATION LAW – INTERFERENCES AND PARTICULAR

FEATURES IN REGARD TO OTHER LAW BRANCHES

Ph. D. Lecturer Cristina Stanciu

Abstract : The forming of transportation law as a distinct law branch took time, as it

followed the economical essor and, implicitly, the one of the transportation means. Though it is,

among juridical branches, a ranch of its own, the transportation law presents a lot of correlations

with other law branches. When its juridical norms happen to have lacunae, common law comes to

fill in these gaps.

Key words :The transportation law, law branches

Preliminaries. The forming of transportation law as a distinct law branch took time, as it

followed the economical essor and, implicitly, the one of the transportation means. Though it is,

among juridical branches, a ranch of its own, the transportation law presents a lot of correlations

with other law branches. When its juridical norms happen to have lacunae, common law comes to

fill in these gaps.

On the place held by transportation law into the law' system, the doctrine mentions two

opinions: a theory which considers transportation law as a subordinated branch of trading law;

another one which sees transportation law as a distinct law branch

1

. As far as we are concerned, we

do join the second opinion, viewing transportation law as a distinct branch, while trading law has

upon it the function of common law.

A first step in sustaining the autonomy of this branch of law is to precise what object does it

rule. For transportation law, this is necessary because, generally when the constitution of a law

branch is foreseen, its would-be ruled object is seen as the fundamental criterion able to separate it

from other existing law branches and to establish into the law system the sphere of the juridical

relationships ruled by the respective law branch. For a branch of law, in the process of delimiting it

from the others, and implicitly of forming it, a series of criteria are taken into account: the method

of ruling, the subjects' quality, the norms' character, the specific sanctions, the principles

2

; but most

of the doctrine simultaneously admits that the fundamental element of separation, in regard to the

above mentioned criteria, which are thought as auxiliaries to the formation of law branches, is the

object that the respective branch rules

3

. "The essential problem which has to be analysed is the one

of the criteria upon which relies the distinction to be made among branches and their distinct

evolution as separate rule' systems which sprung from the global juridical system"

4

.

The specialized literature

5

defined the branch of law as the aggregate of the juridical norms

which rule the social relationships from a domain of social life, relying upon a specific method of

ruling and upon some common principles. For a law branch, its juridical ruled object is constituted

by the social relationships that are ruled through a norm of law, and which own features that are

specific to the respective law branch.

The juridical object ruled by the transportation law is, so, constituted by the social

relationships which are ruled by it: the ones which generate the transportation activities or the

transportation itself; in other words, the social relationships which express themselves" which

1

Gh. Piperea, Dreptul transporturilor, Editura All Beck, Buc ureşti, 2003, p. 9.

2

Gh. Beleiu, Drept civil român. Introducere în dreptul civil român. Subiectele dreptului civil, Casa de Editură şi Presă

Şansa, Bucureşti, 1992, p. 33.

3

I. Dogaru, Drept civil român, Editura Europa, Craiova, 1996, p. 29-30.

4

I. Dogaru, D. C. Dănişor, Gh. Dănişor, Teoria generală a dreptului, E ditura C. H. Beck, Bucureşti, 2006, p. 231.

5

N. Popa, Teoria generală a dreptului, T.U.B., 1992, p. 154; see also J. Renauld, Cours d'encyclopedie du droit,

litography, Louvain, 1966, p. 108; "a frame of law rules meant t o rule a specific domain of social relations".

materialize, through the transportation activity

6

. As the object of transportation law, the activity of

transportation could defined as: the activity supposing the displacement into space of some persons

or be goods, with the help of a transportation mean and through the use of a transportation way. So,

transportation supposes a series of elements: displacement into space; persons or goods that

constitute the object of this displacement, the use of a vehicle (transportation mean, the realisation

of this displacement upon a transportation way

7

.

The transportation law represents the aggregate of regulations concerning the professional

activity organized by carters, with adequate vehicles, in order to displace, on the ground of contracts

and under legal conditions, persons and/or goods

8

.

Transportation law is an autonomous, distinct law branch, with a special legal frame but, for

certain aspects of its juridical institutions, as it lacks norms of its own, it does complete its possible

lacunae from the common law simultaneously interacting with disciplines which, through their

contents, are kindred to it. So, the doctrine has stated that transportation law does interact with

9

:

trading law, civil law, administrative law and penal law, with the civil procedure's law and with the

penal procedure's law, with the international privacy's law with the international public law and

even with constitutional law.

Transportation law and trading law. Trading law does constitute the common law in

regard to transportation law

10

. The trading Code contains a detailed regulation of the terrestrial

objects' transportation contract, namely arts. 413-441 of Title XII. It tackles, in this respect, with a

vast network of themes: the appropriate contents of the transportation document, the carter's

liability, the guaranty required by the carter for the payment of the transportation's price, the

destinatary's rights, the cumulative transportations. The Trading Code has also regulated the

maritime contract for goods and voyagers, under the name of hiring contract, in arts. 557-600. Art.

3 item 13 of the Trading Code also justifies the qualification of the transportation activity as an

objective trading act. The article counts among the facts considered as "trading" by the law the

transportation enterprises, for persons or things, on water or on dry ground.

The Romanian Trading Code does not define the concept of trading act. Yet, the doctrine of

trading law does provide a general definition for it. The Trading Code only enumerates the juridical

acts and operations which it states as trading acts, from a perspective which is rather pertaining to

economy than juridical. Suiting the doctrine

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, the trading acts or, more largely speaking, the

trading deeds, are the juridical acts, the juridical facts and the economical operations through

which are realized the production of merchandise, the execution of works or the carrying out

6

Not all displacements into space do constitute the object of the transportation activity. So, the transportation for

personal interests, the transportation of oil, wa ter or gases through pipelines, the transportation of electrical power

supply could n ot form the object of a trading tra nsportation contract. In these situations, the transportation contract. In

these situations, the transportation is realized through devices of one's own, an d, as the specific operations of

transportation ar e not re alized, the transportation activity is not justified. Are not seen as transportation activities, as

well, the new t echnologies of displacing some merchan dises through pipelines, due to a flux of water or air. The mail's

transportation, the transmissions of phone, flex, radio and T.V. broad ca sts, telegraphy, are not included to the object of

transportation law. The post transportation submitted to some special conditions (special regulations, issued from

special conventions) is in the same situations, since these regulations state that we are not in the presence of a

transportation activity.

7

Ghe. Piperea, Dreptul transporturilor, Editura All Beck, Bucureşti, 2003, p. 3.

8

O. Căpăţână, Gh. Stancu, Dreptul transporturilor. Partea generală, Editura Lumina Lex, Bucureşti, p. 10.

9

Transpor tation law also presents connections with environment's law. So, in the domain of transportation there are

arguments about an insufficient attention paid to the en vironment. Yet, at the E.U. level, a series of actions have been

taken, relate d to transportati on and environme nt: the Directi ve of December, 19-th, 1984, which limits the weight of

trucks, the Directive of February 17-th, 1975, which supports the emer gence of a multi-modes system of transp ortation,

etc.. See, to this purpose: A. Duşcă, P. Drăghici, Dreptul inte rn şi comunitar al mediului, Editura Universitaria, Craiova,

2003, p. 297.

10

The c ommon law is t he branch of law which provides the adequate norm, when a branch of law should not contain

norms of its own, able to rule a certain aspect of a juridical r elationship. See, to this purpose: I. Dogaru, S. Cercel, Drept

civil. Partea generală, Editura C. H. Beck, Bucureşti, 200 7, p. 15-16.

11

S. D. Cărpenaru, Drept comercial român, Editura All Beck , Bucureşti, 2002, p. 31.