Polish courts do not coddle people interested in transportation law from a large number of published decisions. Therefore welcome any judgment, also derived from the lower court. Last press and portals reported on such a judgment by the District Court in Bialystok on 16.09.2011 r. responsibilities of different actors on the transportation process for damage to the goods shipped in a container. Sam Case (which justification I got) is not especially controversial, a thesis in it will not represent any breakthrough in the science of traffic rights. It is worth to be discussed, because the case has been heard by the court is a good example of a fairly common carrier errors committed before the damage occurred and at the stage of defense against the claims of the injured.
A typical transport, typical damage
The facts of the case in practice, nothing special did not stand out among thousands of cases of transport damages. Reason has an agreement with the shipper for the organization of the transport of goods (bale of material in a container) Chinese to Polish. Freight Forwarder acting on behalf of his principal ordered the carrier to the maritime transport of goods by road of Gdansk and the carrier transport of container from Gdansk to the destination. Goods arrived in Gdansk, container has been tested by an outside, who found no damage or broken seals, and road transport the shipment delivered to Bialystok, where customs examination was carried out. In the review turned out to be, that the container was damaged (10 cm hole in the ceiling), a portion of the goods with a value of approximately. 20.000 flooded zł. Flooded material not suitable for use.
The case in the court of first instance
Plaintiff asked the court against a carrier of both the marine (or so it seemed), forwarder and road haulier. All the defendants appealed the dismissal, though each defended differently. Forwarder claimed, that no fault in the choice. Pointed to the road transport, that has not signed any agreement with the affected, a carriage made on behalf of the shipper. In addition, he said, that at the time on the route Gdańsk - Bialystok there has been no incident, which would cause the cargo get wet. Maritime transport, in turn, said, that was the only agent of the proper carrier, whose information is disclosed in the bill of lading.
The court of first instance dismissed in its entirety against all defendants. In the case of delivery adopted, that it demonstrated, that is not at fault in the selection, chosen because of road, you're working for many years without any objection, and selected by the sea carrier is valued and respected in the industry. Court shared the position of the maritime transport, that It was the only real agent of the carrier and there is no passive standing on.
Dismissing the action against the carrier by road, the court stated, Nothing in particular that happened during the transport on the route Gdańsk - Białystok, and the court found it unlikely, that for the 4 days of carriage even when heavy rains have flooded to the extent, as occurred in this case. Because the court adopted, that the plaintiff has not demonstrated, that the damage occurred during carriage by road.
The judgment of the court of second instance
Judgment appeal plaintiff sued only in relation to road transport and freight forwarder. The District Court in Bialystok partly allowed the appeal and ordered the required amount of road transport. He pointed out in the grounds of, that the plaintiff was entitled as a recipient of request to the carrier due to the content art. 75 paragraph. 3 Item 2 lit b pr. wire. (I wrote about this in the entry "Who can assert claims of the contract of carriage of goods”). He also stressed, that since the road transport the shipment from the carrier took over the sea without reservation as to its condition, presumed to be in accordance with art. 781 § 2 k.c., that the shipment was in good condition. Therefore, the, If the road transport does not show anything else - and that was the case described - you have to accept, that the damage occurred during carriage by road.
The court also upheld the position of the court of first instance the responsibility of the shipper and found, ¿e ten not at fault in the selection, and therefore the plaintiff is not entitled to claim from him damages for defective goods.
Requests for carriers
What is moral is clear from the case described? First, if we have a chance be yourself thoroughly check the condition of containers in the Port. In this case, the carrier's judgment apparently entrusted to an external, which proved to be inaccurate. Of course, in many cases, time is running out, but it's worth your while (external examination of the container is not yet so much), often to avoid substantial liability. No verification of the container is the first mistake made by a carrier in this case.
The second seems to be much more serious and it is inadequate to defend against the claims of the injured. Not at all because does not say, that the carrier's active attitude in the matter would have ended the same way. The main problem in the proceedings was, at what stage of the damage occurred: by road or sea. Do not check the state of the container made, that there is a presumption of carrier liability, but the presumption may be rebutted, if the carrier proves, that the consignment was not in good condition at the time of acceptance for carriage. However, in this case - as is apparent from the grounds - the carrier has limited itself to challenging its legitimacy in the case and a statement, nothing wrong with that stretch of road in had happened.
Whether the carrier could win the case?
But the carrier had a chance to prove, that the damage was not on the road section? In my opinion it was possible, but require considerable initiative on the part of the defendant's evidence, which – as seems – run out. First of all, it could be shown in what particular places and at what time was the vehicle for all 4 days of carriage. This could serve to even the GPS receiver, which is already standard in road transport, but without it you would deal with. The next step could be download from the Institute of Meteorology and Water Management, the exact rainfall data in localities, in which he lived during the transport vehicle. Then he could be appointed proficient, which would define, whether the specific precipitation was possible to dip a large amount of material by 10 cm hole. What was even more possible appointment of an expert, which could determine the, whether the material is dipped sea water, which has a different composition than the rainwater. The demonstration of this fact would be conclusive for the case.
Of course, these considerations are based solely on the content of justification and without knowledge of the act can not determine the possibilities of defense zawyrokować carrier. But remember this example and if we come to harm, prepared according to the dispute with the victims.
Here you do not even need to be certified, if it turned, that the rainfall was slightly, or if the court in drag “an on-site” purpose of inspection of goods – if you slice it, but sediment of salt from sea water allows more perfectly to accept, we did not have to deal with rainfall and knowledge you do not need special here… 🙂
It is true, but unfortunately it went in the first carrier zaparte, and then, unfortunately, that's barring (Although the judgment, and so that such trials of additional evidence offered was not).
Not, and then stays on media notice a bizarre judgment 🙂
And for just a bit more work to…
The title should read as – “Carrier! Beware of transport activity”.
It is interesting because, how transport companies so long remained on the market, if anything they do not know about transport. You do not have a major event, otherwise deal with only a forwarding, or something else.
The damage, however, do not go to any, hence the great carelessness of certain carriers. Just assume, that they can just charge them with theft / dishonest contractor / accident, etc.. no hit. However, as it comes to something, turns out to be, they do not know how to defend, do not have good insurance, signed the contract of carriage was extremely unfavorable to them. So there is no other choice than to educate, educate and educate again. But you know this very well 🙂
This case is another example of, that choosing a lawyer representing the interests of the company should be checked, and has experience in the field of law.
Spotakałem the already repeatedly situations where lawyers / solicitors undertook on behalf of the “naively trusting” Customer take legal action based on the Civil Code and not to other aspects of, regulations, etc., at the same time absolutely no knowledge of the industry temetyki.
Congratulations articles on your website. Carriers should then read.
Thank you very much for your kind words. It seems to me, that in this case was less important than the knowledge of transport law relevant experience Process. But I do not know, or in this case, the defendant was represented by attorney general, so you can blame lack of awareness of the defendant's legal.