Last week we released the first part of the article on the principles of carrier liability for damage caused intentionally or by gross negligence devoted to national legislation. Today, international regulations will be discussed.
CMR Convention
Severe the carrier's liability for damages arising from willful misconduct is not a distinctive feature of the Polish transport law. Also in the CMR Convention introduced this kind of records. In accordance with Article. 29 paragraph. 1 Convention, a carrier has no right to use any of the provisions of the Convention excluding or limiting his liability or przerzucających the burden of proof, if the damage was caused by willful negligence of the carrier or its, which, according to the law of the place of a court case is considered as equivalent to willful misconduct. Similar rules apply in the relations between the carrier and its employees or subcontractors, if those entities have committed a willful or negligent.
Is it only intentional fault? Court decides the law
Relied on the wording of Article. 29 CMR Convention on the surface is clear and understandable, in practice caused and still causes many problems, whose explicit solution is unlikely to be expected. While the evil intention, which in the Polish legal doctrine may be translated into willful guilt, should always form the basis for lifting the limits of liability of the carrier, whereas in the case of negligence, not in every situation it will take for the carrier as much adverse consequences. This is determined by national law and not to the contract of carriage - Which would seem understandable - but the law of the place of examination of the case.
Taking into account, that according to Article. 31 Convention, in many cases the parties will have the opportunity to select one of several courts having jurisdiction to hear the case in different countries, may be, that the actual liability of the carrier will depend on the, matter how the court will recognize. This is all the more important, that the national regulations in the individual pages of the CMR Convention countries do not have a similar approach to negligence synonymous with bad intent.
For cases handled by the Polish court would apply Article. 86 pr. wire. which equates the responsibility for the guilt of willful and gross negligence of the carrier. Thus, in a Polish court would be sufficient to prove gross negligence, to abolish the limitation of liability arising from the CMR Convention. For a similar result could be expected in the proceedings before the German courts, Austrian and Swiss. But in the English court, Belgian and Dutch results would probably be different - in local law gross negligence is not equated with intentional fault.
In practice, therefore, the choice of the court to which the matter should be directed to examine national provisions relating to the negligence of the carrier. It may be, that even the choice of a foreign court - which no doubt is associated with significant disadvantages - will be very important for the size of the carrier's liability. Choice of court rule applies to both sides. The injured party may bring an action for payment for, carrier and an action to establish, bears no liability or its liability is limited to a certain amount.
Extensive case law
These arrangements bring the state of considerable uncertainty about the size of the carrier's liability. Besides the obvious situations such as. most cases of stolen goods may be subject to dispute, depending on, to which the court will issue. Fortunately, much more than in the case of the Polish transport law is the basis of extensive case law of the foreign, which allows you to figure out what are the trends in national courts in assessing the degree of fault of the carrier. For example, a fairly common fault is treated as equivalent to willful misconduct cases where the driver being aware of the value of transported goods, it does not protect adequately against such theft. to park in a dangerous place. In a similar way the courts approach the damage caused during an accident caused by driver under the influence of alcohol or knowingly violate the rules on working time. A more prudent to treat the damage caused by improper loading of the goods. As a rule, the carrier mistakes in this area is not treated as guilty equivalent to willful misconduct, but even here there is a judgment declaring such increased liability of the carrier. if he was aware, that the product is mistakenly loaded with a high probability will be destroyed, and yet it has taken on this issue no action.
A large number of decisions is certainly a valuable clue in particular cases, However, the evaluative nature of the regulation makes, that the analysis of each case must be made separately.
Rules of evidence
Just as in the Polish law in the CMR Convention the beneficiary is required to prove willful fault of the carrier or the equivalent to willful misconduct. To achieve the effect of abolishing the exclusions and limitations of liability must also prove, that the damage was a result of the behavior of the carrier. Demonstration of the carrier itself is not sufficient, if the damage could arise from other circumstances.
This task is not easy, taking into account, rule that the holder does not know about it, How did the transportation and under what circumstances did the injury. This applies in particular cases, loss of the goods transported and stored in different places by the carrier who has an extensive fleet and depot network (how big courier companies), in which case without the aid of a carrier, in principle, it is not possible to determine, when and where the shipment was lost. For this reason, in the case law of some countries (Germany, Austria) formed on the side of the carrier required to make a clarification as to the course of transportation (Statement of obligation) in a situation, the other party provides a plausible explanation, that the injury might result from willful misconduct or default synonymous with bad intent. This rule is not widespread in other countries, However, it bears note because of the very large transport contract concluded between the Polish and German partners and the associated potential risk of bleeding before a German court.
The consequences of poor design and negligence
The demonstration by the owner, that the damage resulted from the willful negligence of the carrier or synonymous with bad intent is for the carrier much more negative impact than under the Polish transport law. First of all is to be discontinued - not existing in Polish law - Quota limit of liability estimated carrier 8,33 SDR Sat kg. For certain types of goods such as. electronics makes the exclusion limit of liability, The potential damages could rise even several dozen (the recent notorious case was lost by an international courier weighing server 12 kg and worth tens of thousands of euros). Full compensation should also be the victim for the delay in transport in normal circumstances limited to jednokrotności transportable.
Less important is the abolition of benefit to the allegations concerning the causes of the carrier of the damage, because in case of application. 29 CMR is entitled to demonstrate, that the damage resulted from the specific behavior of the carrier.
It is important that the extending the period of limitation, that in such cases is 3 years years instead of the standard. It should be noted, that there is no similar regulations in Polish law, which is also in the case of gross negligence of the carrier force-year period of limitation.
Concluding Remarks
Recognition of gross negligence or willful misconduct of the carrier is often the only way to obtain full compensation for the damage caused in transit. This is not an easy task, a carrier usually has a huge arsenal of defensive measures. But there are international case law tends to a more rigorous approach to transport, So the victims are not at a disadvantage.
