Polish General Forwarding 2010

In 2010 r. Polish Chamber of Shipping and Logistics has developed a next version (created in the previous 2002 r.) Polish General Forwarding – applicable standard contract with shipping contracts. As this pattern by shippers is becoming more common, should be consulted, especially that provided in the distribution of rights and obligations of the parties are far from the Codex regulations.

Polish General Forwarding 2010 count 31 coming paragraphs in the original version of 9 pages. They are available on the website of the Polish Chamber of Shipping and Logistics. The new version includes several changes OPWS compared with the text of 2002 r., and some of them relating to the liability of the Freight Forwarder is fundamental.

Scope OPWS 2010

The use of standard contracts by one party to a contract governed by Article. 384 k.c. which is, that They bind the other party, if they have been delivered to the other side of the pre-contractual. If the pattern is the use of the relations of the type customarily accepted, even if it involves, when the other side could easily find out about its content. § 2.1 OPWS trying to make a breach in the principle, imposing their applicability in all contracts forwarding, if at least one party is a member of Polish Chamber of Forwarding and Logistics.

Does such a provision, however, is effective? In my judgment it is in conflict with that provision of the Civil Code. After the first party has knowingly used a model, So you can not take, that the mere fact of belonging to a particular organization makes, that the pattern can be applied independently of her will. Secondly, can not be considered, that the use of the standard contract is customarily accepted in the conclusion of the forwarding contract, so I still need to be served on the other side of the text pattern, to bind.

Also raises doubts, whether it is sufficient to rely on the contents of the forwarding service to use OPWS, whether it is necessary to their physical delivery (which may be difficult, taking into account the vastness of the pattern). More arguments in favor of the latter view.

Co reguluje OPWS?

Condition discussed comprehensively defines the rights and obligations of the parties forwarding. Defines the various concepts, refers to the general duties of shipper, off their application forms, specifies the conditions for entering into and performance of the forwarding contract, in particular shipper liability for damage. The description in this place all the provisions OPWS would be pointless, Therefore, I will focus only on the most important issues especially concerning the limits of liability to the principal.

Conclusion and operation of the forwarding contract

Provisions relating to the contract do not differ specifically from the standard. Noteworthy, however, provisions of § 8.2.1, according to which the freight forwarder is not responsible for consequences of errors and misunderstanding resulting from orders received verbally or by telephone. So let's avoid the conclusion of the oral agreements with the freight forwarder, because in the event of a dispute, it may avoid liability, relying on the oral nature of the contract and the resulting confusion.

Terms of the contract substantially duplicate the customs of the market. In accordance with § 9.4 i 9.6 forwarder should check the received shipment, and to protect the Customer's rights in relation to third parties. It should be noted, that where the consignment is delivered to the warehouse, duty to inspect the consignment passes from the shipper to the warehouse operator.

The duties performed shipper should insure the shipment only in the cases received in this regard a clear order from the customer (§ 10.1).

Remuneration and expenses forwarder

Under the terms of OPWS forwarder must be paid for services rendered and reimbursement of expenses incurred by him (§ 12). Also emphasized, that the shipper should be paid to the costs of, which must bear such. downtime due to transport or penalty for delay in delivery package (§ 6.5). Outsourcers are unfavorable for the record § 17.2, instructing the client security and protection against claims relating to delivery to the existence of the freight forwarder as the consignor or consignee. It is hard not to notice, that this provision will also apply to situations, the claims made against the freight forwarder will result from the culpable actions (np. if you do not check the weight of the shipment, a carrier of this title will be charged administrative fines).

Exceptional care for remuneration OPWS shipper is also manifested in the rule, that occupation, damage, loss of the consignment, in whole or in part, no fault of the shipper, and also due to force majeure, forfeiture, or other act of authority for the consignment, not affect the claims of shipper to pay would (§ 14). First, the wording of the order seems to follow, that for loss due to confiscation or other wrongful act of power by the Freight Forwarder Freight Forwarder also will not lose the right to remuneration. Moreover, this will also take place, if the shipper chooses to carry the load alone and comes to the loss of the consignment by the Forwarder reason for fault, but for which the carrier is liable. In this respect, regulation seems to be contrary to Article. 23 paragraph. 4 CMR Convention and Article. 82 pr. wire., ordering the return transportable in the event of damage or loss of the goods.

Unprecedented level of security is also a freight forwarder, who, in accordance with § 25.1 entitled the right to stop shipments and documents until the settlement of claims forwarder. Since the order does not contain any restrictions on this field, should be considered, Stop that right there is also, if the maturity of claims shipper has not yet arrived, which significantly improves the situation shipper in relation to a statutory lien on the goods carrier.

Limitation of Liability

In light of the above provisions shall not be surprised, freight forwarder's liability is OPWS 2010 very significantly reduced. In accordance with § 22.1.1 forwarder is not responsible for insured items and dangerous goods, if not declared as such by the Freight Forwarder in the concluded contract. Meanwhile, according to Article. 801 § 3 k.c. such only in relation to consignments value is not applicable in the case of willful misconduct and gross negligence of shipper.

In accordance with § 22.1.3 forwarder is not liable for damage other than the actual loss (damnum emergens), while Article. 801 § 1 k.c. compensation is limited to the normal value of the consignment (which usually includes profit seller), even then, except as willful misconduct and gross negligence of shipper.

Even more dangerous to the interests of the principal is the exemption provided in § 22.1.5, which indicated, that forwarder is not liable for damage resulting from participation or lack of, with which the shipper is not in contractual relations. For if the shipper chooses to carry the load alone,, which imposes on him under law duties of the carrier, under this provision does not bear responsibility, eg. in a situation, if the damage resulted from an accident caused by another party traffic. On the basis of the law of lading and CMR carrier in this case, the responsibility to bear. It must therefore be, that such a provision in this respect is contrary to law and can not be applied.

Additionally, in accordance with § 23.1 shipper liability in any case limited to the amount 2 SDR Sat kg, but not more than 50.000 SDR for the event. This also applies to cases of gross negligence forwarder. Moreover, the value of SDR is determined by the exchange rate at the date of judgment, not - as in the conventions of transport - but the loss of, as a result of changes in the exchange can be very detrimental to the victim.

In accordance with § 4.3 OPWS above limitation shall also apply to the situation, in which the freight forwarder carries the load alone. His responsibilities as a carrier would therefore be significantly lower than that estimated from the traffic laws (without limitation on the amount), CMR (8,33 SDR to kg) whether the Convention and the Montreal Convention COTIF (17 SDR Sat kg). In this regard, the provision should be considered illegal and not binding.

Concluding Remarks

With the above basic rules OPWS clearly shows, it is the act of an extremely one-sided and favors only the interests of shippers, completely ignoring, or even substantially prejudice the interests of principals. Client should therefore seriously consider forwarding agreements with Actors handling OPWS 2010. Because they risk significantly, that you can not get any compensation from the shipper or would constitute a small fraction of the damage.