Last week I described the Polish regulations allow you to change the essential provisions of the contract of carriage by one party without the consent of the other. This time, the time for an international solution
Equivalent to the Polish regulations in the CMR Convention
CMR Convention art. 12 contains the equivalent of art. 53 Polish transport law allowing the unilateral variation of contract of carriage. The very design of the two provisions is similar, However, there are significant differences between them, which can lead to erroneous application. The basic difference is evident from the start rule art. 12 – it provides the possibility of disposal of goods by the sender, in particular, to ask the carrier to stop the carriage, changes in the place designated for delivery of the goods or delivery to the consignee other than those indicated in the consignment. Thus, while the Polish regulations define an exhaustive list of interference in the contract of carriage - the waiver, change the place of delivery and change of person the customer - so far CMR Convention provides only a catalog of examples of changes. It must therefore be, that the sender is also entitled to other than those specified in art. 12 modification of the contract of carriage dispose (np. at the time of delivery). In any case, but it will change the contract of carriage, and not cancel it (even if ordered to return the consignment to the loading).
Who can change the contract
Unlike the Polish transport law rule is, that only the sender has the right to dispose of the goods. Permission is granted recipient, If the reservation will be applicable Bill of Lading. Broadcaster loses the ability to change the contract of carriage upon to provide the recipient a copy of the bill of lading accompanying the shipment or consignment on arrival at destination and request its issuance by the recipient. At this point, the powers transferred to the recipient. Eligible customers in terms of changing the contract of carriage (as far as he is entitled) not differ from the rights of broadcasters, with one exception - if the customer ordered the delivery of the consignment to another person, This person may not appoint a receiver.
How do I make changes to the contract
The procedure for issuing commands to change the contract CMR is strictly formalized. The authorized carrier shall present the first copy of the bill of lading, which should be included in new instructions to the carrier. In the jurisprudence of foreign courts, however, admitted the situation, in which the parties have agreed, that the carrier will be required to execute the commands also change the itinerary without having to submit a bill of lading. Provide a copy of the letter will also need the, when the parties agreed to change the contract of carriage, so change was not the result of unilateral action by the person authorized.
Doubts emerged about the situation, in which the bill was not at all exposed. In such a case, in general it is possible to dispose of delivery by an authorized? In one of the German Supreme Court rulings were - contrary to a literal following provision - that such a change is permissible. In the absence of right to change the bill of lading may, however, carry only the sender.
These requirements do not apply to customer orders already issued some time after being provided with the second copy of the bill of lading. So they can be transmitted orally without appropriate endorsement on the bill of lading, though of course in such cases may have problems with proving the fact of issue of the.
Exclusion of the obligation to comply with the command
Just as in the Polish transport law CMR Convention contains a catalog of situations, where the carrier is not obliged to execute. However, they are formulated differently than in the Polish. Although the Polish regulation sets out the cases, where the carrier may refuse to make such changes. If the command is to disturb the operation of the carriers, the more similar cases CMR Convention formulated as additional conditions of issue of the possibility of such. If the command does not disturb the working of the carriers.
The difference is significant. In Polish law there was no doubt the transport, that the carrier had to prove, that the command was not possible under the circumstances. The CMR Convention appeared the dispute as to whether, who bears the burden of proving such a situation. Is that the carrier has to prove, that interfere with the operation of executing the company, or issuing the command should show, that its implementation will not affect operation? From a rational point of view of proof should be borne by the carrier rather, because only he has access to information identifying such. businesses operating rules. The German Supreme Court in one of the cases, however, said, that since the possibility of execution of a command has been formulated as a condition of his release, the applicant should demonstrate this fact. However, you can have doubts about whether such an interpretation of a provision to disseminate.
Product exemption is similar to the Polish regulations. First of all, the command It should be possible to perform at, when the instructions reach the carrier. In this case, however, not only in the sense of possibility but also the actual legal. The Convention contains no separate grounds for refusal of execution of the instruction manual in the form of non-compliance with the law - such a situation therefore falls under the category of inability to enforce the command.
Following the instructions also should not interfere with the normal working of the carriers or prejudice the senders or consignees of other consignments. As indicated in the previous part of the article, This condition is relatively easy to raise the carrier - now very common carrier transportation for executing a specific location has yet been provided with transport order from this place or another nearby village. Execution of the contract award would change the inability to take another load arranged within. There is no doubt, in that case, the carrier has the right to refuse an instruction.
The last case of exclusion of the duty to execute the command is situation, in which its implementation would result in splitting. There is dispute whether this means, that the instructions may be issued only for full truck shipments, but rather should take the position, it is also acceptable in the situation, when the carriage consisting of several parcels, which exhibited different packing lists. In this case the statement may be issued only in respect of the entire consignment covered by a single transport.
If due to circumstances described above, the carrier can not execute the received instructions, it shall immediately notify the person, from which instructions are derived.
The person issuing the request to change the contract of carriage has to reckon with need to cover all costs and damages, involved with the implementation of instructions. It is, that this also includes the lost profit of the carrier.
Compensation for damages
Failure by the carrier to the command was issued to it or execute it without request submission of copy of the consignment note the liability arises the resultant damage. That damage may include damage to the cargo (np. where non-command led to its decay). Differently than in the case of other damage in shipment Convention does not provide here the upper limit of compensation. It is a pity, therefore, should be compensated in full amount.
The above liability is absolute and there are no circumstances, which can be disabled, in particular, it depends on the existence of fault of the carrier.
Concluding Remarks
Existing regulations allow entities commissioning the carriage of a large flexibility and allow considerable control over the transportation. Are a threat to the interests of carriers, hindering accurate business plan. Product exemptions obligation to execute the instructions, however, is wide enough, that operators can avoid the negative consequences of carrying out orders. For this it is necessary but knowledge of the applicable legal regulations, so it is not, however, still the best.
Hello,
I have a question , which in practice means “The first carrier to provide a copy of the bill of lading, “? The Convention was written in the year 1956.- then a phone. cell was not. A bit difficult to imagine that today remover, sought from such. Wawy to London from the driver to pass the amended bill. Particularly, that the dominant form of contract is transport order, and not the bill.
And the second question whether the convention says something , that in order to change the route , must first determine the carrier pay for the extra kilometers?(I assume a case of just such a case) Does the carrier may make a diversion on ensuring greater remuneration?
For Re. Thanks in advance:)
Sorry for the delay in response, but little work I recently collapsed – thieves in the transport of goods do not sleep, and insurance companies are not eager to pay compensation :/
I do not deny – problem exists. The rules are not adapted to current realities of communication. But keep in mind, that the driver is not always at the same time the carrier. Thus it is possible for example. changes, on the first copy of the bill of lading and delivery of such. in the form of a scan, or fax to the carrier. This then is a clear mark on the, that there was a change. I, that such construction is permitted, because it eliminates the significant risk, dispose of the goods that an unauthorized person. If you provide instructions by telephone may arise a problem of showing, whether such a command was issued – hence the carrier's responsibility for complying with the instructions without requesting the first copy of the bill of lading.
And what to pay – compliance with the command is the responsibility of the carrier, therefore does not require its approval. Hence it is not necessary to agree additional compensation. The person issuing the command, however, is obliged under the Convention to pay such remuneration – determine its course may cause problems, but the proportional increase based on a longer time or the mileage should be acknowledged in court if a dispute.
Sir Paul , but it can stick to rules , dictate that if you change placed on the consignment will not make much sense. After all mail sent to the headquarters of the carrier may also be evidence of the disposal issue,and the evidence comes.
NP: the carrier accepts the contract in the form of transport order, the order is a record that the carrier should have regular contact with the driver or the driver has a phone. cellular(today is as usual). Therefore is available by sending an email to the establishment of the carrier or fax(without a copy of the bill of lading), will also be confirmed that the issue dyspozycji.Zwłaszcza shipping company did not immediately get a copy of the bill of lading, and the client will call a change to the carrier. The shipper is also not need to be customer-shipper, a separate company operating the warehouse(if it is in their hands will be a letter , This is a copy doproszenie may take some time). The transport company has, after all contact with its own driver. I think that the behavior of the chain of correspondence should be enough to make a change was bound . Thanks to this issue ,that the instruction will be issued by an unauthorized person will be eliminated, and perhaps this is what the creator of the CMR.
I totally agree with the arguments, that it should be, but whether it will be dealt with by the courts? You may have doubts. The provision is unambiguous and makes present the bill of lading. Perhaps this is a big limitation in terms of practical, but unfortunately the law is not always compatible with the practice. In deciding whether to apply for such orders, So take a risk, that the court will have a different slant. Worse case in the jurisprudence of this type do not appear to Polish, so it is difficult to predict, what position will the court.
Hello,
Does the carrier may terminate the contract of carriage ( transport order ) before loading the goods if the: the customer does not cars for loading awizował, merchandise was not ready, and wait for loading, would result in the breach of a prior agreement with another client ? Thank you in advance for your answer.
The right of withdrawal applies only to the sender. In the event of cancellation of the contract of carriage by the carrier will apply the Civil Code which generally will be possible only after giving notice under the pain of withdrawal or without notice if the other party knew, that the order must be completed within a specified time due to another job. It should be remembered, that the traffic rules in orders is expected to set the time to stop, can not always be possible to derogate.
Hello,
I have a question about waiting for the loading of goods , there are no overlapping rules for issuing good, that the driver did not wait 2 hours or 1 0 hours, make a rule or contracts for the rapid release of goods. For loading opżnienie nastęnym have a problem with your order , how to get out of this situation.
There are no rules, that would define the obligations of the parties on this issue and decided the contract. In most contracts, I have seen, were records of such. 24 or 48 h the loading and unloading, which turn off the possibility of imposing fees on this account. If the time of loading is restricted to, and the contract anything about it does not say, You can ask the client to bring the loading time even under the pain of withdrawal. Even if the contract does not odstąpimy, we have the right to claim costs associated with delayed loading of such. the loss of another order.
Hello,
I have a question about a shipper instructs us to pick-up load. Whether as a contractor when waiting to be loaded, which is delayed , Having determined the driver's working time 13 h, the mistake of loading, or waiting in line, we can seek compensation for the host job .
Regards
As I mentioned above – I, that it is possible, but depends on the terms of the contract.
Hello, what if the hours of loading and unloading is strictly defined, very often bear listing “FIX”, and in general terms there is an entry 24 hours free of charge, also included are penalties for not substituted within the car or unloading within, in which case? Would such entries are not mutually exclusive?
Usually, unfortunately, such entries shall be construed adversely to the carrier and mean, that if the carrier is late for loading, must pay the penalty, but if the shipper will not be ready for loading the goods at a specified time, to 24 h awaiting loading are not paid. Unfortunately this is the norm in transportation orders, So let's read them carefully and try to negotiate such issues. This is important in particular for transport cold store, when I turned 24 the unit may affect the cost of transport, that no one carrier will not return.
Hello, I have a question about how to treat the issuing certificate of days off , considering that the lead tractor sidłowym is co-owner. Is a co-owner also must include the certificate of days off ? As it should be considered?
The law on working time of drivers talking about issuing certificates to drivers employed. But the obligation to issue certificates also applies to non-employed drivers, who provide services to entrepreneurs and for entrepreneurs personally engaged in transport. Co-owner. which itself drives the vehicle, So too should have a certificate.
Hello,
I have a question regarding the issue invoices to the CMR. How do I invoice without excluding the date of issue of CMR, Foreign driver's one-time import , and then there is confusion about the origin invoice number, I simply like to give numbers to the CMR.
Do not fully understand, what's the problem. The CMR documents are the date of loading and can be used at the date of invoices. In addition, invoices must be issued according to the date of service, So the date of issue here is not decisive – more date of final performance of the carriage.
Hello
if the carrier accepts to comply with the notification transportation , plots the provision of free-of-charge parking hours and sent to the forwarding of the signed order and did not get any return information ,( that forwarding is not opposed to the deletion of this point of order) whether that allows to apply for reimbursement of the costs of delay in loading?
@ Gagatek
It all depends on, as they looked for in the tender documents signed order. Scenario, in which records of parking free of charge, does not apply, However, the most possible.
Hello,
I have a question about transportation namely when the driver can not be a bus driver, and when a trader can not make passenger transport, must provide to .
@ Justi1
What does that have to do with the unilateral change in the contract of carriage?
Hello, and please tell me , as is the case in August to a situation where order is not stamped and signed ?? On przykladzie: Podstawił car under Annex, it turned out that the date shown in the order grief is not possible , in the evening canceled the order , but this order was adopted without my signature and stamp. or in this case, forwarding can claim compensation ??
@ Magic
Firstly, these unilateral changes relate to changes imposed by the sender and not the carrier. Secondly, I do not know whether the order allowed the carrier to cancel. Of course, in case of delay in loading carrier is no chance, but must call the principal loading setting a reasonable time limit under the pain of withdrawal, and only then can terminate the contract. In this case however it is not inconceivable, forwarding the requests compensation.
How is the situation in which the carrier will not substitute the car on time. Can it be treated as a withdrawal and at what time of the agreed time.
@ Kaja
If nothing else results from a contract or by law (on the traffic on domestic transport is just such a provision in Article. 53 paragraph. 1), You can not withdraw from the contract without being summoned to fulfill the obligation under the pain of withdrawal.
Hello, this question receives orders from shipping transport, current provisions and requirements regarding penalties shipping, deadlines, responsibility, etc.. are often incompatible with CMR. Question. If I sign a contract to which they are incompatible with the Convention points apply to me? Is the parent is the Convention and all the records in the order that is inconsistent despite her, that the order is signed are invalid. Is it better to type on order “Order adopted for implementation based solely on the CMR Convention” Is such a provision negates all “strange records in order” ?
The Parties entered into an agreement for the provision of transport services. Public
carrier, using its monopoly position in the market and
the fact that John, farmer, does not have its own means of transport, and the city, do
which comes to be produced by him, is
away 60 km from the village, reserved for himself the high
compensation for carriage, which seeks to break-even
production. Additionally, stipulated in the contract, it may unilaterally
change the terms of the agreement at any time. After a month, when she came
winter, said, that increased the cost and risk of carriage, in
therefore raise their wages by 25% . John does not agree to the new terms. which in this case can make John? please advice.
@ Miras
CMR Convention takes precedence over the contractual provisions. Any contractual provisions contrary to the Convention are invalid. No additional provision in this regard is not needed.
@ Lady
And what kind of transport, someone has a monopoly, because it is hard to believe, considering the competition in the transport industry?
This was just an example,without going into details and names please advise me if John can withdraw from the contract? or has the right not to agree to these terms? they have the right. thank you in advance
@ Lady
But the example must be based on the fact. If there is no monopoly situation, it does not have too much to discuss what. And if the monopoly is, then you need to determine in which modes of transport, which are governed by different rules.
This is a stick to the,that there is no monopoly. in this situation, what can be done? simply withdraw from the contract?
@ Lady
I do not know the contract, so I'm not able to tell, on what basis it can be solved.
I have a question about the matter “Mrs.”. Is a contract for the provision of transport services is a contract of carriage?
@ Janka
As a rule, it will be just the contract of carriage. Sometimes it may be a shipping contract.
“Mrs.” had to solve kazusu, you got to be done as homework, Please do not worry 🙂
For “Mrs.” and its case: will record the right to unilaterally change the terms of the contract (np. Prices, which is an essential condition of the contract) can certainly be considered “contrary to the principles of community life” and farmer John certainly can withdraw from the agreement.
Hello,
I received an order with shipping which is not covered by the time the parking free of charge.
A driver was waiting for loading unfortunately exactly 24 h .
Forwarding does not want anything to pay extra for parking,whether there any cmr convention provided for[is regulating this matter ?? I put the debit note? As so, the amount you ?
@ Iwonka
You can claim the payment of parking. But there are no regulations governing this issue. The amount should take into account the losses they have suffered as a result of stopping you – the cost of gasoline, loss of benefits associated with the failure of a different order, etc..
Hello, I have a question. Kierowca załadował towar, (pomijając 9 zmarnowanych godzin w oczekiwaniu na załadowanie) otrzymał CMR i wszystkie dokumenty.pojechał. W trakcie przewozu kierowca otrzymał informację , że rozładunek bedzie wcześniej (Saturday) 650 km bliżej niż adres rozładunku (wpisany w CMR) . Po planowanym rozładunku, według zlecenia i adresów na CMR kierowca miał załadować kolejny towar dla innego klienta. Do tego firma chciała nam obniżyć cene za fracht z powodu zrobienia mniejszej ilosci km.Pytanie, czy mogę domagać się 100% zapłaty za przewóz , który uwzględniał pierwotny adres rozładunku zawarty i w zleceniu i w CMR? po obniżeniu frachtu dotarcie do kolejnego miejsca załadunku zwiększy moje koszty, a odmowa kolejnego zlecenia to kolejne konsekwencje. czy mogę się odwołać do art.12 Konwencji CMR? Nie moge pozwolić sobie na przejazd na pusto 650 km(weeknd).What to do?
@ Mary
Nie ma żadnych podstaw do obniżenia frachtu. Skutkiem skorzystania z prawa do zmiany umowy przewozu może być jedynie zwiększenie frachtu a nie jego zmniejszenie. Te ostatnie może być wyłącznie wynikiem porozumienia stron, którego w tym wypadku nie było.
Hello
Otrzymalismy zlecenie na przewoz towaru w Niemczech od spedycji ze Slowacji.
W zleceniu daty i godziny za i rozladunku oraz cena.
Dodatkowo na dole zlecenia jakies informacje napisane w jezyku slowackim.
Meilowo potwierdziismy otrzymanie zlecenia wymieniajac w nim daty i godziny za i rozladunku i cene oraz dodalismy dopisek ,ze niczego wiecej z tego zlecenia nie potwierdzamy poniewaz informacje te sa napisane w niezrozumialym dla nas jezyku.
Kierowca dotarl na zaladunek i okazalo sie ,ze firma wysylajaca ladunek zamowila transport na godzine 2 w nocy a nie jak to bylo w zleceniu na godzine 22:00. Napisalismy meila do Spedycji ,ze istnieje taki to a taki problem i ,ze chetnie poczekamy na zaladunek ,jednak chcemy zeby firma zaplacila nam postojowe.(1 godzina darmowa nastepnie trzy godziny platne).Slowacka spedycja odmowila i napisala ,ze w zleceniu jest nspisane, from 24 godziny na zaladunku sa gratis.
Nie zgodzilidmy sie z tym mowiac ,ze nie potwierdzalismy takich informacji.Spedycja anulowala to zlecenie a wtedy my poprosilismy o zaplate 1/3 ceny calego frachtu z tytulu poniesionych kosztow dojazdu i braku mozliwosci otrzymania innych zlecen.
Niestety rowniez uslysxelismy ”not”. Also “remover” w pozniejszych rozmowach telefonicznych jak i w meilach ublizal nam i twietdzil, ze nic nie mozemy mu zrobic.Zawsze wszyscy stali tylko my chcemy za to pieniadze.Co mamy zrobic w tej sytuacji.Czy prawo stoi po nasxej stronie? Ewidentnie spedytor podal inne godziny zaladunku ,wylacznie po to , zeby sprzedac nam to zlecenie.Gdybysmy wiedzieli o pozniejszej godzinie zaladunku to bysmy szukali innego zlecenia.Spedytor wiedzial rowniez o tym ,zr msmy tez kilkanascie kilometrow dojazdu do zaladunku.Czy naprawde nic nie mozrmy z tym zrobic, jak twierdzi spedytor .,Czy jest jakies prawo na nieuczciwosc z ich strony.Ponadto idac tokiem rozumowania spedycji jezeli 24 godziny na za ladunku i 24 godziny na rozladunku sa bezplatne to rownie dobrze mozemy wozic ich towary gratis.Np.zaladunek w poniedialek o 12:00 towar nie gotowy ,czekac 24h.Zaladunek wtorek 12:00 wyjazd.Dojazd 12:00 sroda i czekac 24 godziny.Rozladunek 12:00 czwartek.4 dni z jednym zleceniem.Tylko otwierac firme transportowa.Nadmienie tylko, ze jezdzimy glownie dla spedycji niemieckich (ta slowacka wpadla ni ztad ni zowad) jak rowniez korzystamy z gield niemieckich (ten przypadek mial miejsce ns gieldzie polskiej) i obowiazuje tu taka zasada ,from 1 godzina postoju na za i rozladunku jest gratis natomiast ,kazda nastepna jest platna.Niektozy wymagaja jeszcze potwierdzenia u za lub wyladowcy czasu postoju.I nikt tu nie robi problemu.
Zatem z niecierpliwoscia czekam na odpowiedz.Pozdrawiam
@ Damian
I'm afraid, że w tym wypadku racja będzie po stronie nadawcy. Przewoźnik ma prawo dokonać zastrzeżeń co do treści zlecenia, ale jeśli zastrzeżenia te mają charakter istotny, uważa się je za nową ofertę. Jeśli więc nie otrzymali Państwo od nadawcy potwierdzenia, że akceptuje on Państwa ofertę, nie doszło do zawarcia umowy na Państwa warunkach. Jednocześnie w sytuacji gdy pojawili się Państwo na miejscu załadunku, is assumed, że zgodzili się Państwo z przesłaną do siebie ofertą. Zapisy po słowacku były więc wiążące, w tym zapis o 24 h na załadunek, który nie jest uważany za niezgodny z prawem.
I have this question. Co zrobić w sytuacji gdy dojeżdżamy na miejsce rozładunku i tam się okazuje że docelowy magazyn jest oddalony o kilkadziesiąt kilometrów. Zmiana miejsca rozładunku jest konsultowana ze spedycją zlecającą transport oraz zatwierdzona przez nadawcę. Problem natomiast pojawia się gdy zażądałem dodatkowej opłaty za dodatkowe kilometry. Spedycja zlecająca powiedziała że nic nie zapłaci bo im nadawca nic nie zapłaci. What to do in such a situation? W jaki sposób mogę zmusić spedycję do dodatkowej opłaty za dodatkowe kilometry. Czy mogę im odpowiedzieć że nie wydam towaru dopóki nie będzie dodatkowej opłaty?