Today another part of the entry of the recovery of claims between carriers, this time on differences in the way of recovery of claims against the subcontractors, and carriers of successive, and the limitation of actions.
Claims against other carriers back of successive
As a rule, the actual responsibility for damage in shipment delays or rise only bears one of the carriers participating in transportation (most often it is the last carrier, or subcontractor successive). In many cases, therefore come to the situation, in which the carrier bearing the responsibility of the person entitled to will want to assert claims against the actual perpetrator. About this, how it can do so above all because, whether we are dealing with the subcontractor or the successive carrier.
In the case of successive carriers by air carrier liability is joint and several, So claims between carriers are recourse and may be claimed only after the payment of compensation to the person entitled. This means that, that even a final court judgment against one carrier does not entitle him to seek recourse from the other carrier - it is necessary to pay debts to the person entitled.
On what basis are accountable to their carriers gradually? In art. 6 paragraph. 3 pr. wire. is the, that applies only recourse against the carrier bears the responsibility for the circumstances, of which the damage resulted (so not to all other carriers jointly and severally responsible). Only when it is impossible to determine the circumstances, responsibility of all the carriers according to the amount of transportable. Again, however, in the latter case, the liability carrier may be released, which proves, that the injury was not in the performance of the transport.
In a similar way regulates the mutual relations of successive carriers in CMR. According to art. 37 lit a full responsibility for damage to other carriers shall be borne by the carrier, which caused the damage. If the damage caused by several carriers, everyone should pay according to his share of responsibility. If it is impossible to determine the responsibilities, carriers responsible for the damage responsible in proportion to their remuneration for the carriage. The same proportion shall be the liability of carriers of successive, If you can not fix, which of the carriers should be considered responsible for the damage. The Convention provides for the additional solution is not often seen. W myśl art. 38 if one of the successive carriers is insolvent, part of the compensation, which falls on him, and has not been paid by him, divided between the other carriers in proportion to their salary.
Claims back to subcontractors
Much less complicated it seems the claims from subcontractors. In this case, the main carrier bearing the responsibility of the person entitled to have the right to demand payment of damages from its subcontractor regardless of whether he caused the damage, or did any of the following sub. From the perspective of parent because of its subcontractor bears full responsibility for all subsequent subcontracting for their own actions (according to art. 5 pr. wire. i art. 3 CMR). Its subcontractor, in turn, will have the right to pursue its claims against its subcontractors, etc..
This design however, is not clear and it is a very major character. The question arises - when the leading carrier may make claims against the subcontractor? Only after the payment of compensation to the person entitled? Or do you have the timing, occurs when the holder of a claim to the carrier? In the case of joint and several liability is no doubt, it must first pay your bills, that recourse may be sought from other carriers. Claims against contractors are not of recourse under joint and several liability.
The doctrine of the transport law does not give an unambiguous answer to this question: because there are opposing positions. Personally, I am of the opinion, that there is no reason to adopt, that to recover damages from the subcontractor must first pay compensation to the person entitled. There is no doubt, in civil law that the injury is the very fact of increasing the liabilities of the injured person. Compensation can be claimed, therefore, already on the ground, that as a result of the perpetrator, the victim was ordered to pay a specified amount to another entity. The claim for damages against the party causing the damage arises now had the time of commitment on the side of the victim, and not only at the time of payment. For these reasons, the main carrier may assert claims against the subcontractor regardless of, or paid compensation to the person entitled.
Limitation of actions between carriers
In discussing the liability of carriers to other carriers, not to mention the difference in regulation of the principles of limitation for claims between them. According to art. 78 paragraph. 1 pr. wire. vested claim against the carrier to other carriers (both contracted and successive carriers) shall expire after 6 months of, the carrier to repair the damage, or from the, in which the action were brought against him. The latter provision is extremely important, because it usually means the limitation of claims against the other carrier before they have been declared, the carrier's court judgment. For this reason it is best in these situations just in case make zawezwania to compromise, to interrupt the limitation period.
Otherwise addressed the issue in the CMR Convention. Art. 39 paragraph. 4 a, that the limitation period for claims between carriers callback runs from the judicial decision fixing the amount of damages or the actual date of payment of compensation, If there is no such ruling. Here, too, but there is some doubt, whether the provision of Article. 39 paragraph. 4 applies only to claims between carriers sukcesywnymi (to suggest the location of provision) or between all carriers (suggest how the content). As a precaution, therefore, in the case of sub-contractors take a general term or obligation under Article. 39 paragraph. 4 depending on, which is shorter.
In both cases, both on the CMR Convention and transport law, the limitation period may be extended in case of complaint.
Hello Mr. Counselor,
First of all, I wanted to thank you for the effort and work that puts you in the running this blog. For me it is a treasure trove of knowledge, from which I can hardly get away 🙂
The entry is already quite old, However, in connection with the, which is currently examining for me the most current. I wonder namely the term of limitation for claims between successive carriers, In typical, or by using one of the carriers of the subcontractor. I agree, that in such a situation it is difficult to speak of successive carrier, a number of reasons of which the simplest does not seem to meet the requirements arising from the CMR (ie transport is performed on the basis of a single contract, and on the basis of several successive contracts, which may be very different from each other, does not occur in the strict sense to forward the letter CMR and goods between carriers). My doubts, however, raises P. interpretation, concerning the limitation of the action. It seems to me, the context of Article. 39 in the chapter on transport is not accidental successive. Carrier, who have carried out the transport contractors, from the point of view of that subcontractor is not a carrier, but the ordering / shipper. It is the only party, which binds him to the contractual relationship (for this reason, the recipient of your claim can only occur for “of parent”). Therefore, I, claims that the limitation of the carrier / ordering to its sender, should follow the general rules of art. 32 CMR.
I have another question, limitation on claims, namely, the statute of limitations claim for payment of the actual carrier for the carriage to the carrier / ordering.
Is the term is a term of art 32 CMR point. c) – other cases limitation ?
An interesting issue seems to be the opportunity to try to prove malicious intent deliberately not paying (despite calls) sender – This would extend the deadline for 3 years.
@ Bart R.
Thank you very much for your kind words 🙂 As for the successive carriers – do not hide, What ostatnio Moje poglądy zakresie uległy pewnej modyfikacji w w tym ze związku stwierdzeniem, What oryginalny teksten art. 34 CMR Lewis Ważne błędnie Česky Polski na przetłumaczony (sic!) as, który znacząco zmienia jego znaczenie. Swój udział miały Tez lektura najnowszej książki Krzysztof Wesołowskiego oraz krytyczna analyzes orzecznictwa Sądu Najwyższego w tym zakresie (CHOC ostatnie wydane orzeczenie odzwierciedla Moje obecne poglądy). I therefore, What przeciwstawianie podwykonawców przewoźnikom sukcesywnym nie jest trafnym zabiegiem, gdyż przewoźnicy sukcesywni są właśnie najczęściej podwykonawcami, którzy z mocy art. 34 CMR are successive carriers by acquiring the bill of lading and shipping.
As for the art and the. 39 I agree, that view may be controversial, and the position of the courts are divided here, although it seems to dominate the view attributed this provision only applies to the carriage of successive. Under this assumption, and the adoption, that in this case there is no transport of successive, actually reference should be made to Article. 32 CMR.
As to the claims for transportable – the period referred to in Article. 32 paragraph. 1 lit. c CMR
As for extending the deadline for 3 years – I do not see that option. Art. 32 paragraph. 1 evidently refers here to the art. 29 CMR, which relates to damage in shipment caused by willful misconduct or gross negligence.
Mr. patrons ,
I recommend reading the judgment:
Judgment of the Court of Appeal in Warsaw 2005-10-26, I ACa 431/06
Opubl: Jurisprudence of the Courts of Appeal years 2008, No. 8, Item. 27, st. 55
In view of the definition of the carrier in the CMR Convention next (Successive), there is no basis for a different product than those directly in the Convention, the adoption of the following carriers directory by assigning to them as subcontractors transport, by means of which the carrier takes its commitment. Subcontractor as referred to in Article. 3 CMR is therefore not "another carrier" within the meaning of Chapter VI of the Convention. On those grounds, the beginning of the limitation period for claims against the subcontractor will carry no art set. 39 CMR, but Article. 32 CMR.
@ Natalie
Thank you for the hint, but the sentence is known to me 🙂 At the moment it is difficult for unanimity on this issue (The Supreme Court in the years 80 these had a different opinion), and the basic problem is the dispute within the meaning of the transport of successive. Some representatives of the doctrine and the courts consider, that successive subcontracting and transport in the CMR Convention exclusive. Others are of the opinion, that these are not contradictory institutions. Hence my suggestion, precaution to always be guided by that date, which is shorter, because you can always hit the court, which will have a different view than we would like.
Hello Mr. Counselor,
I met recently with the view (in my opinion, erroneous), that in the case of international carriage (which applies the CMR Convention) limitation period for claims between carriers are recourse 6 months and is based on Article. 78 paragraph. 1 Transport law, rather than annual Article. 32 CMR. As justification indicated, that the Convention does not regulate claims to the subcontractor. Due to the content of Article. 32 Convention it is obvious to me, Instructing the carrier with respect to its subcontractor has an annual limitation period (even supposing, that this is not the carriage of successive). Is the use in such cases the limitation of art. 78 paragraph. 1 Transport law has some support in the case law?
@ Catherine
In my opinion, this misconception – However, the courts sometimes go in a direction. CMR Convention says nothing about the claims of recourse between carriers niesukcesywnymi, but with claims of the contract of carriage, a recourse claim is always such a claim, So should apply overall annual limitation period (or three).