After a short summer break, it's time to catch up 🙂 In the coming weeks, so entries will appear slightly more often. Let me start by topic, which quite often scrolls in the event of a transport damage – claims between carriers. Due to the size of the text was divided into two entries. The second part will appear on the blog next week.
In much of the freight transport service is actually performed by an entity other than the, which received the original contract for the carriage. Chains of successive sub-contractors and carriers sometimes reach four or more entities. In the event of damage to the carriage of a rule a person entitled to claims from a single carrier - the main carrier. There is the question - on what basis such a carrier will be able to enforce their claims against the other carriers, who are actually responsible for the injury
Successive carrier and subcontractor
When the carrier threatens receive compensation for transport damage or if the compensation has already been paid, and the actual responsibility for the damage shall be borne by another carrier, examine the possibility of claims from another carrier should start by identifying the nature of all the carriers involved in the transport (In many cases, this analysis will be carried out by the insurance, who takes over after the payment of compensation claims against the actual perpetrator). In case, the, when in the transport process is one of several carriers, They can occur in two different roles: subcontractors or successive carriers. This distinction is very important both in terms of claims by both the holder and between the same carriers.
What is the difference between these categories? On the basis of Polish transport law under art. 5 carrier may delegate performance of the transport to other carriers on the entire space of the carriage or part thereof, however, is responsible for their actions and for their own. The equivalent provision in international transport is art. 3 CMR, according to which as the carrier is responsible for its own for all activities of its employees and other persons, by means of which performs the carriage. The interpretation of these provisions does not pose any special problems - this is a classic example of subcontracting, in which the main carrier enters into a contract of carriage with the subcontractor, which in turn may enter into another contract with another subcontractor, etc..
Much more difficult is the design of the so-called. subsequent or successive carriers. According to art. 6 paragraph. 1 pr. wire. transport can be performed by several carriers of the same or different modes of transport under a single contract of carriage, and a single transport document. In turn, according to art. 34 CMR If carriage is performed on the basis of a single contract by successive road carriers, each of them takes responsibility for the execution of the whole operation, the second carrier and each succeeding carrier is the acceptance of the goods and the bill of lading party to the contract under the conditions specified in the consignment. In this arrangement, each carrier has equal status and each of them bound by contract with the sender.
What determines, or in this case we are dealing with successive carrier or a subcontractor? Unfortunately there is no conclusive answer to this question, and discrepancies in the case law in each country make, it is one of the most difficult legal issues arising from the CMR Convention. Polish courts generally adopt the, that if there is no clear evidence, that the carrier, which received a contract for carriage on another carrier, and not from the sender, want to join the main contract of carriage, it is treated as a subcontractor. In many European countries such as. Great Britain there is the tendency to treat each of them, which performs the carriage based on the same bill of lading as the carrier of gradual.
Who is responsible to the person entitled
When it comes to injury, nature of the carrier determines, on what basis he is responsible to the person entitled. Where in the carriage, performed leading carrier and subcontractors, the victim may ask only for the main carrier (often referred to as the contracting carrier), but there is no any claims against the subcontractors. His situation is identical in this respect both on national and international transport law.
Otherwise things have happened, the carriers in the carriage performed successively. According to this already art. 6 paragraph. 1 pr. wire. responsibility of all such carriers for damage caused during transportation is joint and several. This means that, that the person entitled to bring an action to each of the individual, all together or some of them. The carrier therefore can not defend itself against these claims objection, that he was not actually responsible for the damage suffered, if the fault lies with the other carrier successive.
It looks slightly different issue in the case of transportation projects based on the CMR Convention. According to art. 36 Convention person entitled to have his claim only in relation to the first carrier, last carrier or the carrier, who performed the part of the transport, during which the event causing the loss, damage or delay. This is not the objections of the person entitled to claim or counterclaim carrier of such a person - then it can rely on the fact of damage in relation to each successive carrier, which makes a claim against it.
