In yesterday (19.12.2011 r.) Republic of Appendix Good Company published an article by me Fri. “Diet broke traffic right”. Full text available here and below. I cordially invite you to read 🙂
On 16 September 2011 r. Diet, accepting the amendments of the Senate, finally passed Law amending the law on road transport and other laws (Dz.U. No. 244, Item. 1454). Unfortunately, the amendment passed is another example of careless law. The legislature is not the first time seems to be a law without analyzing the introduced solutions in terms of constitutionality and legality of the European, and without regard for consistency with the provisions already in force.
Goal, as always, was a noble
The bill is described in the parliamentary database as introducing changes aimed at removing barriers to the transport activities, better use of the Road Transport Inspection, enhance the preventive and restitution imposed on carriers sanctions while minimizing their repressive. Unfortunately, implementing this objective is far from perfect. This is seen especially in this part of the amendment, which amended the Act of 15 November 1984 r. - Transport Law. It changed only three rules, but if two of them committed serious errors. There is no doubt only the new text of Article. 36 paragraph. 1 Item 2 Law, in the catalog of things which are excluded from carriage of such, the carriage of which would breach the rules defining the conditions for the operation of road, rules governing drivers' working conditions, traffic laws or regulations on public roads.
Responsibilities of the cargo
Worse followed legislators plan to add paragraph. 2 do art. 43 transport law. Under new paragraph sender, recipient or other entity engaged in cargo operations is required to perform them in a way that a consignment of goods in accordance with road traffic regulations and provisions on public roads, in particular, does not cause traffic safety hazards, exceeding the maximum permissible weight of vehicles or exceeding the permissible axle loads.
The first objection raised by the fact, that the new provision will apply only to road transport. Meanwhile, transportation law is universal and applies equally to rail and inland waterway. Since the duty of the proper loading of the transaction will be levied only on the participants of road, conversely it can be concluded, that such an obligation does not apply to participants in other modes of transport, transport. Meanwhile, legislators should depend, that in every branch of transport way of loading did not cause safety hazards. Provision should therefore be an, that the actions of the cargo must be constructed to transport the consignment of goods in accordance with the rules of the modes of transport, not refer only to the rules of the road transport.
The second objection is more serious in nature. In formulating the text of Article. 43 paragraph. 2 pr. wire. legislature apparently forgot, że art. 43 is a private law standards and regulates the distribution of responsibilities between the parties to the contract of carriage. Parties are the carrier and shipper, and the reception of the consignment may accede to the recipient. On the basis of the contract of carriage, therefore, can not occur any other entity responsible for carrying cargo operations, hence the unnecessary use of the phrase. 43 paragraph. 2 idea of ​​another entity performing work load, especially in the light of Article. 72 pr. wire. liability for damages resulting from the improper performance of loading operations may still rest solely on the sender, and not to any other entity invented by the legislature. By the way, surprising the recipient must also incorporate the directory of the persons mentioned in Article. 43 paragraph. 2. Since the rule applies to cargo operations to ensure safe transport, is obvious, that it refers only to the loading, which for obvious reasons, the recipient does not participate. Art. 43 paragraph. 2 so the recipient never not applicable. For these reasons, the recipients of a new provision specifying the legislature should instead use the formula of the total and direct it to those responsible for implementing the steps of loading.
The new prohibitions to the sender and not just
Definitely the least struck the provision inserted by Parliament into law is designed art movement. 55a, which introduces a number of restrictions for sender m.in. ordering the carrier cabotage not holding the appropriate permit for such transportation or performing cabotage contrary to the conditions of such transport, placed in the bill of lading and other documents, data and information inconsistent with the facts and the conditionality of freightage from the weight or volume of cargo shipments - by road timber, Bulk cargo, or other bulk. The prohibitions apply to the freight forwarder is duly, the recipient, transport organizer, or other party ordering the transport. Responsibility for violation of this provision specify the provisions of the Road Transport Act.
The first concern relates to the provision in the same location of the transport law. In practice, four out of five prohibitions apply only to road transport, So much better idea would be to add such a provision to the Road Transport Act.
Responsibilities for all, penalties for selected
The only prohibition on all modes of transport - the prohibition of placing in the bill of lading and other documents, data and information inconsistent with the facts - is in turn largely unnecessary, indirectly as follows already from Article. 72 paragraph. 2 pr. wire. (better idea was to extend the terms of Article. 72 paragraph. 2 for other modes of transport). The introduction of this ban can thereby put the legislature on the plea of ​​unconstitutionality of the new regulation. As mentioned, liability for violation of this prohibition established by law on road transport. In practice, therefore, despite the fact that the obligation imposed on broadcasters in all modes of transport, responsibility for its violation will be invoked only from senders road transport. It is difficult to rationally explain this variation to, what needs to be questionable in light of Article. 32 Constitution. In this context, even more amazing to wake need amendments to the Road Transport adopted the same amendment. Penalty in the amount of 8.000 zł provided in this sacrifice to be inconsistent with the facts to fill the bill of lading or other documents ... but only in relation to the international road haulage and cabotage. It is impossible to understand, why the vicious fill the bill of lading in the carriage is to be punished internationally, and in the national carriage no longer. Even more incriminating objections must raise the same offense in relation to cabotage but not in relation to national transport. It turns out, Foreigners effecting carriage on Polish territory will be subject to stricter liability than their Polish counterparts pursuing the same order. In this case there is more a breach of European law is the foundation of the principle of free movement of services. His way of penalty 8.000 zł for any errors in the consignment (even in the person of the sender, which occurs very often, because there is part of the shipper, and not the sender) regardless of the importance of the recording and the degree of guilt also raises serious constitutional questions, not to mention the dubious rationale of this approach especially towards the stated purpose of reducing the repressive laws on road transport.
It instructs the sender transport
Equally serious allegations, we should mentioned regulations, according to which the broadcaster bans in force shall apply to the freight forwarder, the recipient, transport organizer, or other party ordering the transport. This provision suggests, that any of these entities may contract carriage, not appearing at the same time as the sender. Meanwhile, in the doctrine and case law there is no doubt, that entity commissioning the transport sender is always. So, if you will arrange carriage shipper to the carrier, relations with the carrier will act as the sender. Regulacja art. 55to ust. 2 is not only unnecessary - as in relation to any party ordering the transport will apply paragraph. 1 - But even harmful, it may lead to doubts about, Who is in the contract as the sender and the erroneous indication of the sender entities, whose share in the carriage was limited to the cargo (or shippers).
Concluding Remarks
At the moment the law was signed by the President and published. New regulations have come into force at the beginning of the new year. It is hoped, that described deficiencies are remedied in the future.
