The inspiration to write this entry was my argument about the nature of the transport law (ius ius cogens czy dispositivum) with known attorney in the transport industry. Beata Janicka during the seminar. Liability rules shipper and the carrier the Insurance Meeting Point.
In practice, often have been cases (especially in the case of courier), when the contract of carriage limit for compensation for damage in shipment or a delay in the delivery shall be fixed at the level of deviating from the provisions of traffic rights or the right of an international convention. Still the question remains valid, or contractual limitations are acceptable carrier's liability in relation to statutory regulation.
International transport
In the case of international travel poses no special response to the problems. Each of the Convention relating to the liability of carriers (CMR Convention in relation to carriage by road, The COTIF in relation to rail, The Montreal Convention and Warsaw Convention for air) the one hand, the limits of compensation (art. 23 paragraph. 3 CMR, art. 30 CIM - Annex B to COTIF, art. 21-22 Montreal Convention i art. 22 Warsaw Convention), the other is, that any provisions which are contrary to the provisions of the Convention are invalid (art. 41 CMR, art. 5 CIM - Annex B to COTIF, art. 26 i 49 Montreal Convention, art. 22 i 32 Warsaw Convention).
National transport
The situation is somewhat different with regard to national transport. Transportation Law, contains the art. 80 limit of compensation due for damage in shipment, However, in the absence of a provision prohibiting the contract otherwise. So it is possible discretion in this area, and the parties may modify the statutory regulations? The general opinion of experts in transport law so the question must be answered in the negative. In the literature on transport law clearly dominates the view, that traffic laws are in the vast majority of mandatory. Different view, in practice, not in major scientific publications. It is emphasized, transport law that the provisions represent a compromise between the interests of carriers and their customers, which should not be violated due to a stronger negotiating position of either party (the best proof of the danger are those applied by international courier). Also indicate, that if the traffic laws could be changed at all would be unnecessary to existing regulations in the Civil Code. It is also noted, such a nature that the Polish legislation is an expression of global trends, as evidenced by entries in the various international conventions.
The Supreme Court has so far directly on the subject did not express, although in some rulings confirmed the mandatory nature of the various transport law. You should also remember, that judgment of the Supreme Court of 25 January 2007 r. ref. Act V CSK 420/06 sometimes cited as a basis for modifying the provisions of the transport law, is clearly, that such modification is possible only within the limits set by Article. 3531 k.c. Modifying such it can not oppose the mandatory rules, which - as noted above - includes most of the transport law.
It should be noted, that the absolute nature of the transport law also draws attention to the President of the Office of Competition and Consumers whether in consumer guide for transport services, whether in report on the Functioning of courier companies.
Also in Register of Prohibited Clauses decisions by the Court of Competition and Consumer Protection found a number of provisions limiting the amount of compensation paid by carriers in relation to the statutory regulations. The clauses are forbidden for transport, however, subject to a different entry.
So, be careful, when assessing the scope of liability of the carrier guided primarily by law, and not the contractual provisions.
Years ago, I struggled with the art 51 paragraph. 1 transport law (Total notorious case). This recipe fantastic favors carrier. Wg SN:
Arising from Article. 51 paragraph. 1 Act 1984 r. – Transportation Law on the consignee to pay shipping charges to the carrier transport is even, had concluded from the contractual relationship between the sender and the recipient of the consignment was due, that the carriage is only charged to the sender.
Nightmare.
Fact, especially since customers have no idea, what they are threatened by the very reception of the consignment. All worried, but I can reassure customers – Most carriers do not know, claim that they enjoy equally to recipients. And by the way what was the fight with this provision?
Maybe this is not the topic, but I want to raise the issue of liability of the carrier and freight forwarder under insurance OCP and OCS. I regret, that I was not allowed to participate in the March training of mec. Janicka, I know they were in these matters, and probably everything is clear and obvious, but for me not to the end. Namely, many insurance companies in their T & C contain provisions to exclude liability of the insurer in case of damage caused intentionally or with gross negligence by a person, for which the policyholder is responsible, acting on his behalf, under the authority of or on behalf of.
Start with stairs, when the shipper or the carrier chooses (often from the stock market or Trans Tomicom) carrier-subcontractor, which proves to be a fraud. Goods lost, transportation company like listed in the trade register, but the physical trace of her vain search for. Insurance companies often refuse the payment of compensation - referring to the intentional infliction of harm by a third party, and if it is doubtful, it can always point to the gross negligence of shipper / carrier. The wording of Article. 827 § 1 i 2 k.c. there is no point in discussing, but the interpretation of the concepts of intent and gross negligence in the performance of insurance companies - the most so! With astonishment I accept the position of some brokers, in such situations who advise clients, "humble" before an insurance, because if the carrier was a crook, This customer certainly acted negligently. All I propose to, a discussion of the degree of negligence - or flagrant, or maybe just the usual. A due diligence is certainly in keeping the client was not ...
I do not think so, subcontractors that deception itself automatically determines the lack of due diligence, intent or gross negligence in the injury, as a shipper / carrier is responsible. It is, after the issue of assessment of the facts of the case. Meanwhile, all in one breath refer to the "unfortunate" the decision of the Court of Appeal in Bialystok I ACa 49/06 - The Crown's argument in the hands of insurance companies. Meanwhile, you can not accept the thesis that decision in isolation from the facts, which in the case was unique, a serious breach of duty of care legislation. Had to take a point of view of insurance companies, is the basis of this judgment, any insurance coverage for the selected carrier, which turns out to be a fraud, does not exist. The same situation exists for the assessment of guilt in the selection of the forwarder. You can venture to say, that can not be (as interpreted by the concepts of professional body care, guilty of negligence in the selection and) use the Internet freight exchange (and yet forwarders / carriers back to it as a last resort) as, which in case of loss of the goods, justify actions, as careful. In short: use of exchange = negligence, lack of diligence, Wine in the selection.
Some light on these issues the Supreme Court ruling threw CSK V 149/09. But still not clear what should be the standard of care shipper / carrier, to use subcontractors from the stock market was not in itself a violation of the rules giving insurance protection. Courts will always fix it unless its discretion (in this case, despite a fairly thorough checks to the carrier from the stock market they have been deemed insufficient). When it comes to the deliberate action of other people that causes the damage, Here it is not a simple matter. In my opinion, you can still take the responsibility of shipper / carrier from liability for the willful act of the carrier-cheater, but only for a willful act of a company employee no longer (because there is no element of direct control).
This subject will of course be, topics to choose from but there is a lot, and lack of time does not allow to deal with all at once 🙂 Now so only briefly, I see this issue. In the first Polish transport insurance market has generally poor quality products as, I am surprised that sometimes, Why buy such insurance carriers. The market is in fact an insurance company specializing in this type of insurance and with a quite reasonable conditions, but because its coverage is the cheapest, Everyone buys the competition, which give often only illusory protection.
A co do Meritum. I, the need to distinguish between two issues: shipper liability based on fault in the selection of the contractor and the liability to the insurance for damage caused intentionally or by gross negligence. The basis for the analysis of the validity of claims on insurance companies to assess, even if the insured is liable for damage. And at this stage is tested, or freight forwarder due care in selecting. Only if this test comes out negative, should be investigated, or carrier (for which in this case the shipper is responsible) guilty of gross negligence or willful, which excludes liability insurance. At this second stage, no longer has any meaning, how careful were the actions forwarder – since he is responsible for the actions of the carrier, it only counts, how to assess the effect of this particular carrier. If we have to deal with the carrier impostor, should be treated as damage caused intentionally, regardless of care delivery in this area.
As for the selection of the freight exchange – is relevant only for shippers. From the perspective of the carrier's liability does not matter what due diligence in selecting subcontractors complied, and so it is responsible for his actions as for their own. So even if the carrier complied with the utmost care in selecting contractors, if the subcontractor was a crook, carrier to bear the main responsibility, as if he intentionally caused injury.
And as for the measure of care. The fact that we all benefit from the exchanges in my opinion not a sufficient argument in favor of the, that is limited to checking the documents contained in the stock market is sufficient. There must be a high probability, that the carrier is selected from the stock market will not harm. So first you need to verify all the documents in terms of life experience – if the company is newly established, maybe not entrust her precious commodity and given it to check less valuable cargo. Data transport license can be checked, as Company. What I believe to be insured, that it is not necessary (after all, in case of fraud, and so nothing out of it does not get), but the lack of a policy should be to cast doubt. I think all carriers are actually acting insurance policy, So the, that it does not have to be carefully checked.
It's only the fast. For sure this subject will come back, because the problems are commonly. No more than two weeks ago came to me just this kind of thing.
I understand, that you think will be difficult to defend claims forwarder, that there was no fault in the choice of the carrier, which proved to be a fraud? Even the padding acts to care 200 % nothing can? So it looks like, that fraud is equivalent to the carrier's fault in selecting the side of shipper. To humor, że art. 827 § 2 k.c. was to open the door to extend the liability of insurers, and in practice, work out the exact opposite.
Analyzing the case law available to come to the conclusion, that rebut the presumption of guilt in the choice of delivery side is almost impossible. Particularly, the carrier has been selected by the stock exchange website.
Take for example the facts set out in the judgment V CSK 149/09: Freight carrier works with Tomicom, but not limited to security and verification provided by the stock exchange website. Therefore, the carrier asks for documents, which then verifies. Conduct a telephone interview with the carrier and verify the reliability of contact with another company, execute orders for which. The Court finds, But these were insufficient steps to assess the reliability of the carrier. The Court points out in this “shipper guilt of not having care in the selection”. But I fear, that even the observance of additional steps, mentioned by the Court of Appeal judgment the insurer will not convince, that the fault is not in the selection. Insurers are unlikely to investigate acts of care shippers - if there is damage as a result of fraud carrier, for them right away it means guilt in choosing. Do not deal with the rating in two stages, but go directly to the base off their liability for damage.
And by the way I ask for my priv'a bearing on the TU is the only "normal" conditions.
So as I wrote – when choosing wine, carrier and fraud are two different issues, not rule out the possibility of defending claims forwarder. Self deception is not able to show off so no fault condition, that this was the first deception after an impeccable execution of a number of orders. If the shipper in this case due care, would be entitled to rely on the absence of guilt in the selection. Selection by the stock exchange website, without doubt, difficult task, but in my opinion it does not preclude. If the company is in the stock market for a long time, completed a number of orders, Freight contacted other contractors, license verified shipping, registration documents, learned about the vehicle fleet, office, etc.. I, wiemw practice difficult to achieve – in practice difficult to achieve. But not impossible. I, shipper that the contractor is entitled to expect, remover that will lead to something more than the price of the stock market and check the reliability of the transport carrier.
What the Supreme Court ruling – actually quite far-reaching claims court and in my opinion, difficult to defend in terms of sense of the forwarding contract. It comes because the situation, that the shipper is responsible for the carrier as a subcontractor.
And as for the insurance operations – is true, plants that normally rely on the exemption immediately, but on the other hand, it is hardly surprising, because that would facilitate their work, since regardless of fault in the selection result is the same – no grounds for compensation, either because of lack of fault in the selection, either because of the exclusion in terms of use.
So if we prove, that we are in the circumstances of actual freight forwarder, rather than the contracting carrier, then udowodnimi, that the carrier chosen carefully, but he committed a willful fraud (So in choosing a wine shipper was), This insurance protection we do not have the – because they are off in terms of use? But as we shall show, however,, that in the same case, there was no fault in the selection, This, in turn, there's no basis for claims from the insurance, because there was no failure or faulty performance of um. forwarding. So there are no grounds for damage claim, and the principal should go with the claim directly to przezwoźnika-fraud and leave a forwarding agent alone (he directs the claim to the wrong entity)?
Adoption of the position: “Ok, But I am also a contracting carrier, not only the freight forwarder, Finally the principal entered me in the consignment note under the item. 16”, from what you say, a shot in the knee, because – as the carrier – nothing can save us from the consequences of willful misconduct of the subcontractor and the establishment does not always correspond (GTC is the exclusion of).
I think, that it is possible to adopt the structure, where the shipper is true for the fault in the choice of not responding, for intentional or not, but if the client can not successfully claim compensation from the perpetrator, This, however, are violated essentialia negotii forwarding and as a result there are grounds for the claim of the oc?
If the wine selection was, Terms and Conditions and works for an insurance claim will not be. If there was fault in the selection, forwarder does not respond, and therefore the insurance. Remover, who wants to be treated as the contracting carrier, runs very contrary to their own interests. It should emphasize, that is the only freight forwarder. Even if it is added to the bill of lading, this is not the decisive factor. The key is the entire agreement between the client and forwarder – if the subject of an agreement not to carry, and its organization, there is a shipping contract. Of course, the freight forwarder can perform the contract as a carrier, but does not decide entry in the consignment, especially if it fills the sender. And as for the latter issue – is the person empowered to effectively enforcing their claims against the cheater is not relevant to the responsibilities of shipper – or bear the blame in the selection and then the corresponding, or not. Just keep in mind, that if it was shipping in its own name but on behalf of the client, Freight Forwarder is obliged to transfer to the principal claim of the contract of carriage. Otherwise responsible for the damage, which resulted from this – in this case, the inability to pursue the claim.
I would like to draw attention to one, quite an important issue, which may have significant impact on the outcome of the questions posed at the outset. Courier are moved under the Act – Postal Law. The concept of courier services include Communications Law, derogowana which was just by the currently applicable law – Postal Law. The laws govern the responsibility of the postal and pricing for an item in a different way than the law of lading and relevant Convention. In this situation, first of all to determine whether we are talking about quota restrictions to the movement of shipments executed under the laws of movement (in the CMR Convention, itp.) whether based on – postal law. Yet another issue is, that very often the rules of the transport undertaking shall contain provisions, that the core activities are both provisions of the Act – transportation law and the provisions of the Act – the right post and in case of problems (damage, loss of the consignment) difficult to determine, a statutory regime applied in this case.
Contrary to appearances, the distinction is not so difficult 🙂 postal parcels under the laws of the mail can only be delivered by Polish Post as a public operator. So courier companies operate under postal law only in cases where carrying correspondence. If you carry anything else, it comes to provisions of national and international transport law. And in this case is unacceptable will be any limits to the sum of the amount of compensation.
A long time since I looked in the Act – the right post and I could be wrong, but from what I remember the services reserved for the public or the Polish Post (of course, very simply, and with exceptions) relate to items of correspondence and such to 50 g. And we're not talking about postal parcels only on shipments. Parcel post is one of the categories of items.
Postal Law in practice distinguishes two types of shipments: postal parcels containing goods accepted for shipment by the public operator (art. 3 Item 13) and letter-post items – any non-delivery parcels (art. 3 Item 18). Hence the conclusion, that parcel post can take only the Polish Post. Thus, all the other items than the letter-post items ordered courier companies will apply the law of the transport. This position also accepts the OCCP in his report on the quality of delivery services: http://www.uokik.gov.pl/aktualnosci.php?news_id=563
Only, that such definitions do not exclude the, other entities under the laws of the mail can not accept items for consignment to move the sheets. Parcel post is defined by the, that they simply are things accepted by the public operator. While the right is the intention of seeking to protect the OCCP recipients so that when commissioning services already know exactly what in connection with the procurement of services have rights and responsibilities, This is not a basis in law. Moreover, such an interpretation is contrary to the whole idea of liberalization of postal services and EU directives, which led to changes in the law post. Additionally, if the postal service by non-public operator could not accept the movement of goods would lose all sense of breakdown of the services performed under the permit, based on the registration of operators and service, whose practice is not subject to any restrictions.
The following explanation of UKE for permission to provide postal services:
http://www.uke.gov.pl/uke/index.jsp?place=Lead24&news_cat_id=138&news_id=1410&layout=9&page=text
And just here lies the problem – legislator is inconsistent – when it comes to items of correspondence that the matter is simple because the law of the Postal, in terms of moving things is unfortunately a big problem because it is de facto company for the transportation determines under what rules adopted for the transport of the consignment – under the laws or postal traffic.
I agree, that there is no clear answer in the rules, but in my opinion, the interpretation adopted by the OCCP is the only sensible. There is no doubt, that the problem could possibly apply only to shipments to 2 kg – any heavier packages are not outside the scope of postal services. I do not agree with the statement while, that such an interpretation would render meaningless the division for services requiring and not requiring an authorization. All that remains is the whole range of business areas outside the service of things weighing less than 2 kg.
Hello,
I have a question dot. apply for payment from the recipient or sender of the goods on test. of this Article. 51 Law. Is the payment may also apply for shipping companies, the only transport?
@ lucky
Art. 51 paragraph. 1 applies only to contracts of carriage.
Thanks , I have recently been looking for information about this subject
for a long time and yours is the best I’ve
came upon so far. But, what about the bottom line?
Are you sure about the source?