With intent and gross negligence of the carrier part. 1

The carrier's liability for damage in shipment and delays in transportation both in domestic and international is subject to various limitations to both the rules as to the amount of. One way to avoid these restrictions by the victim is a reference to the guilt of willful or gross negligence of the carrier.

The principle of risk

The carrier's liability arising from the contract of carriage based on the principle of risk. For this reason, the carrier may be forced to pay damages, even if they complied with the utmost diligence in the performance of its obligations. This constitutes a significant facilitating the investigation of claims by the injured person, which in many cases would not be able to demonstrate improper payment from the carrier, as it has no knowledge of how goods were transported. The more stringent test of liability of the carrier are largely compensated by the catalog of exceptions, favorable to the carrier's presumptions and limits the amount of compensation. With this regulation the interests of both parties to the contract of carriage are protected to a similar extent, and the mandatory nature of most of the norms of transport law makes, that the economically stronger party to the contract can not impose conditions affecting the balance resulting from the law.

When the carrier is at fault

Regulation, in which the carrier is the same regardless of the level of diligence in the performance of obligations, but the effect would be demotivating. Carriers would not have to depend on high quality services, because in each case to the same principles. For this reason, it is understandable, that both the national laws and international provisions were introduced, which brand improper performance of the carrier. They also protect against the use of a person authorized by the carriers limits of liability under the rules in situations, such a privilege when the carrier's conduct does not deserve.

National legislation

The provisions of law relating to transport willful misconduct or gross negligence boil down to one rule - art. 86 which is, that provided in the Act limits the amount of compensation shall not apply, if the injury resulted from willful misconduct or gross negligence of the carrier. What does this mean in practice? The holder does not have to then determine the amount of compensation based on a well-defined elements (price resulting from the account, value of the goods of the same type, etc.), and compensation for damage other than the consignment will be limited to twice the amount of transportable. You return to the general rules for determining compensation described in art. 361 § 2 k.c.

It is worth noting, that the effect described above will occur only where it is shown by an authorized, that the damage resulted from the willful misconduct or gross negligence of the carrier. The victim must then not only to prove, that the carrier has been guilty of gross negligence, but also, that's what caused the damage behavior. For example, these other laws will not apply, when the merchandise is damaged in an accident during transport operations carried out by a drunk driver, if the accident was caused by another person, a drunken driver had no effect on the existence and extent of damage.

Intentionally or grossly negligently

Contrary to appearances, examples of damages caused by the carriers are not uncommon. Regularly there are cases of theft by fraudulent goods transport companies, that after loading the value of the goods vanish into the air. It should be noted, that If a subcontractor has committed a theft at the end of the chain of subcontractors, deliberate the guilt can be attributed to all carriers of the chain. According to the art. 5 pr. wire. carrier, which assigns the transport of other carriers, is responsible for their actions and for their own. It may therefore be, that the entity, who perform due diligence request, will ultimately be saddled with the necessity of full compensation, as its subcontractor (subcontractor or its subcontractors) proved to be dishonest.

But while the mind of carrier operations are not usually a special problem to interpret, o tyle much more difficult to define gross negligence in the performance of the contract of carriage. How to determine the accuracy for, to which the carrier is obliged to? It is necessary to refer to the Civil Code and art. 355 § 2 which is, that due diligence of the debtor in the course of his business activity shall be determined taking into account the professional nature of this activity. They say in brief from the carrier as a professional, you can expect a higher level of care than the average person. In one of the judgments of the Supreme Court stated, that the essence of economic activity is a requirement to have integrated the necessary expertise, includes not only a purely formal qualifications, but also the experience of professional practice and established standards for customary.

Carelessness may be manifested in two forms. The first offender is aware of this, that their behavior could harm, but falsely believed, This will avoid the damage (np. driver, who sees that the tilt is damaged, but assumes, that it will not rain, so goods do not become wet). The second person did not know, that can harm, although it should have the awareness (np. driver, who drives a vehicle over high, no awareness, that he should check his altitude before entering the tunnel).

But is grossly careless?

These guidelines allow the conclusion, when the carrier has not complied with due diligence. However, more difficult to draw the line between "normal" gross negligence and niestarannością. Disputes in the literature was conducted, whether such a limit should be determined based on the mental attitude of the offender, or having regard to objective factors such as universal precautionary principle. Eventually won the latter concept. It is generally assumed so, with the latter that we are dealing in a situation breach the most elementary rules of conduct, you would expect from the carrier, and which are obvious to any reasonable person. Occasionally, gross negligence is defined as a lack of diligence, would be expected of people at witted. For example, in one of the judgments was, that belong to that category will be a case of arbitrary changes to the agreed itinerary and that the loss of contact with the driver, making it impossible to determine his whereabouts.

Lack of extensive case law and statutory definition, however, make, that rarely assess behavior as gross negligence, the carrier will be able to be unambiguous. There is always a risk, that what one court will be considered a simple carelessness, another may be treated more rigorously. The same is true with insurance, which in its general conditions of liability insurance carriers often disclaim, where damage was caused by gross negligence of the carrier. But it seems, that until the base case will not be extended to a number of specific examples considered gross negligence by the Supreme Court, it will be difficult for uniformity in this area.