Case law has – contest with a prize surprise

52 Responses to Case law has – contest with a prize surprise

1. Kamil Krasuski says:

   27/04/2012 at 12:51

   Sir Paul,

   I was not on the lecture, So I understand that I can enter the contest? 🙂
2. Paweł Judek says:

   27/04/2012 at 13:08

   Panie Kamilu, the Lord is in our room, rather than Warsaw? If the Lord was not a lecture, I have no problem – Trust in the Lord, that will not do you ask colleagues for solutions 🙂
3. Andrew says:

   27/04/2012 at 13:38

   to 1
   Does the importer can claim damages from freight forwarder in full?
   YES

   OPWS not act. Valid if and only if, where both parties commit the agreement to comply with them.

   AD2
   How much compensation should be awarded?

   odp. 8500 euro: 10 SU spec interesu – 1500 eu transportable

   AD3
   I do not know 🙂
4. Paweł Judek says:

   27/04/2012 at 13:42

   @ Andrew

   Since the award is for first person, which will give the correct answer to all questions, I can say for now, that even this condition by anyone is not satisfied 🙂 detail I will refer to all of the proposals at the end of the competition.
5. beaters says:

   27/04/2012 at 14:47

   1. So
   2. 8.500€
   3. Not
6. Paul Budrewicz says:

   27/04/2012 at 14:50

   I do not take part in the competition (although I could, I am not a trainee of the lecture), because when I make a mistake, This will be a total lame, and so my answers may pass unnoticed. Why, therefore, solves the case law has? Because I love contests – was not to advertise on GL…

   (1) Full compensation – injury had no connection with the carriage, so there is no reason to apply the restrictions of Article. 794 i n. kc. Articles. 415 kc.
   Na marginesie, Apart from the question – employee will be responsible to the shipper or to the full height – art. 122 kp.

   (2) Compensation 11.500 euro, or transportable (art. 23 paragraph. 5 CMR) Limit awards next transportable (art. 23 paragraph. 6 CMR). Limit awards next transportable (art. 26 paragraph. 2 CMR). Damage was higher, So there is no problem if the damage exceeded the limit.

   (3) He had no reason. There was a reception – compensation should request the recipient (counterparty holenderski) from the carrier and the carrier could ask for payment to your insurer – art. 12 paragraph. 2 i art. 13 paragraph. 1 CMR. Any dispute with the insurer should have a place in the line of the recipient (buyer) – insurer carrier. The manufacturer had no transport activity, but his performance undue, to which the carrier was required only.

   PS. Paul – as you want, You may delete this post, if the answer will be good (Nobody can realize). Just let me know somehow, I knew. Well, you are better in these transport blocks (but now you cukruję…).
7. Paweł Judek says:

   27/04/2012 at 14:50

   @ Beaters

   I would ask for justification 🙂
8. Paweł Judek says:

   27/04/2012 at 14:57

   @ Paul Budrewicz

   Little explanation as to the third kazusu – write, that the carrier is not right, questioning the legitimacy of an insurance, but uzasadniłeś, But that is. I assume so, that you wanted to write, that the carrier is right, but I prefer to make sure.
9. Kamil Krasuski says:

   27/04/2012 at 14:58

   It seems to me, that even in the Warsaw 🙂 come to me some answers, but I will not be leaning so far. I will wait quietly for the next week, no one I can not collapse this time the prize.
10. Paul Budrewicz says:

    27/04/2012 at 15:03

    So, carrier's right – the insurer is not. I wrote from memory and stuck in my head, question concerns the claim that the insurer, not – ground of the carrier.
11. beaters says:

    27/04/2012 at 15:05

    1. The specified record is not in my opinion, the binding, because it is one-sided (there is no information about its acceptance by the importer)
    2. 10.000€ reservations – 1.500€
    3. The insurer has paid compensation of OC business, exemption applied to a transport activity. The manufacturer has not occurred in this case, as the carrier
12. Kamil Krasuski says:

    27/04/2012 at 15:06

    I see a lot of traffic, This, however, and I'll try:
    1. YES.
    2. 11 500 EUR
    3. Not – entitled to claim more than the insurer to pay compensation of torque. Like, that documented the entire payment chain charge carrier is incorrect.
13. Paweł Judek says:

    27/04/2012 at 15:12

    @ Kamil

    For the first kazusu would ask for a justification. And for the third kazusu willingly I would read a justification of this chain of payments, especially in the context of Paul's comment Budrewicz 🙂
14. Kamil Krasuski says:

    27/04/2012 at 15:27

    To 1. Let me now skip my personal opinion about OPWS. But it seems to me, not complied with the requirements on the use of standard contract. And after that, with intent causes the inability to limit damages.

    To 3. Generally to claim under the contract of carriage is to demonstrate the power needed. Every country is different is governed (np. Sender, Recipient, owner) but in principle this is simple kazusie. The sender has paid Recipients, TO – Broadcasters, therefore entitled to compensation over the ZU. Art. 17.1 CMR Convention clearly states the responsibility of the carrier, is not important who claims, important to demonstrate that it has the right to demand payment – and whether it is a fact of damages, or power of attorney is a secondary matter.
15. Paweł Judek says:

    27/04/2012 at 23:08

    So far none of the statements in my opinion is not fully correct, but of course this is just my opinion and after the announcement of the results may come into dispute 🙂
16. Kamil Krasuski says:

    28/04/2012 at 00:13

    There are unfortunately completely correct answers 🙂 I see Sir Paul, that seeks the Lord for the education system in Poland – to pass the test no longer need creativity, it is necessary to wybadanie what he meant laying the test and hit the key. With so eagerly wait for the announcement of results in order to continue the discussion 🙂
17. Paul Budrewicz says:

    28/04/2012 at 00:47

    Okay, but ask for clarification. Not a clue, because my answer will not be corrected (Decision as I like to take the time and had to abide), but the feedback. Are you finding, that no statement is not valid, is, any question that fell though not one correct answer, or that none of the people did not give a set of correct answers? Of course I do not mean to indicate a specific person and no reply.
18. Paweł Judek says:

    28/04/2012 at 00:49

    @ Kamil

    I'm not saying, there is only one correct answer – why ask for justification. I mean more of a convincing argument. For now no I do not fully convinced. Of course, this authoritative statement, but in the end this is the essence of this competition 🙂
19. Paweł Judek says:

    28/04/2012 at 00:56

    @ Paul Budrewicz

    My intention was to set, because the correct answers were even partial, of course, if one of kazusów far no reply to me does not appeal, but maybe it's my fault and content of this kazusu is clear-cut blades.
20. Paul Budrewicz says:

    28/04/2012 at 12:53

    I knew! I put on the least TLSowy case assignment, but do not respond, I mess up fun. Or throw a link to the GL example kazusu. in group “consultations between lawyers”? Can anyone else tempted to take part. Because I still participate in the contest I do not take 🙂
21. Tom says:

    29/04/2012 at 00:21

    To. 1 OPWS rather force between the parties pursuant to Article. 384 by. 2 KC. However, the responsibility which they incorporate dotyczy wyłącznie non-performance or improper performance of forwarding steps. As the, in my opinion, pracownik wyrządził szkodę “przy okazji” or “next” performance of the employee's duties and not during (tj. transport, loading, etc.), it is doubtful whether the shipper is responsible for any damage that happens, because the widely accepted interpretation of Article. 120 KP (art. 430 KC, moreover, also) excludes from the scope of their use damagesby the wayy okazji” no functional relation to the work entrusted to. So my advice is to take what the rest of the judge give ao the employee on the basis of 415 KC. “by the way” or “next” performance of the employee's duties and not during (tj. transport, loading, etc.), it is doubtful whether the shipper is responsible for any damage that happens, because the widely accepted interpretation of Article. 120 KP (art. 430 KC, moreover, also) excludes from the scope of their use damages “by the way” no functional relation to the work entrusted to. So my advice is to take what the rest of the judge give ao the employee on the basis of 415 KC.

    To. 2 11 500 euro. Transportable 1 500 euro (23 paragraph. 5 CMR) more 10 000 euro special interest (26 paragraph. 2 CMR).

    To. 3 Injury, They not quoted specific wording of the clause excluding liability insurer 🙂 If it concerns the transport business, This, of course, the producer did not have and the insurer is responsible to it for damages incurred during the business, even if it required the transport contract. Then, the insurer shall have standing to bring a carrier is not right. If a clause in the policy excluded liability for damages incurred during transportation, This provision of the insurer was not due and charge carrier is right, because the insurer can not rely on Article. 441 by. 3 KC. By the way should also be noted, Polish manufacturer that supplies to the Dutch contractor was providing due, DDU Incoterms because the division of responsibility between the seller / consignor (Polish company) and the customer / buyer (Business holenderska) looks like, that the seller is responsible for the transport and transfer of risk occurs with the release of the goods recipient / buyer.
22. Paweł Judek says:

    29/04/2012 at 00:54

    @ Tom

    Locus standi insurance can only be derived from the Polish manufacturer of standing. So I can ask for a justification, Why Polish producer have been entitled to claim against the carrier?
23. Tom says:

    29/04/2012 at 14:33

    No tak, I forgot and is thus not thought about the most irritating me once the issue of traffic rights. The problem probably does not have great practical significance (I think, and so claim most customers are directed to the carrier) and his dithering will attest to my humble experience in the field of transport law. And so the answer is rather well-known host of the blog. But allow me to analyze. In the few situations when I came into contact with the right transport, I asked myself whether Article. 75 paragraph. 3 Item 2 ppkt b) PrPrzew (referred to as: art. 75) the extent specified in Article. 65 PrPrzew off or complements the use of art. 474 KC. The facts of kazusu 3. partly a question – especially in the first variant – relates to relevant regulations of CMR, which would exist between the recipient and Polish Dutch carrier.

    1) Jeżeli art. 75 excludes the application of Article. 474 KC, the one hand, as a rule closed the road to claim the sales contract between the contracting parties on the other carrier is not responsible to the seller, but only to the buyer / consignee. Of course, nothing precludes, that in both of these relationships (seller-buyer, seller-carrier) accept the parties have the responsibility to a greater extent. And that certainly happened in the seller-buyer relationship by concluding an agreement on terms DDU Incoterms. Then answer the question of locus standi of the Polish manufacturer (Seller) depends on the provisions of the contract between him and the carrier. If not provided in the carrier's liability to the Polish manufacturer, manufacturer has no locus standi and therefore, also having no insurance.

    2) With the assumption, że art. 75 completes the application of Article. 474 KC, page of the contract of sale (buyer / consignee) or may assert claims against the seller under Article. 474 in conjunction. z art. 471 KC or to the carrier pursuant. 75. Then the source of the carrier's liability to the Polish manufacturer, and thus a source of standing to bring this second, Articles will. 471 KC, if the contract did not disable it.

    At the end of such comments yet. Me more like the second design. I am aware, however, in practice, took the first option, and my preference is rather de legeferenda, the more so as a single one suggest a strong case that is above all the principle of lex speciali derogat legi generali, rather “firm” wording of Article. 75 or, in the context of sales contracts, Article list. 544 by. 1 KC and Articles. 548 KC. Of course, those provisions of the Central Committee are not relevant to the assessment kazusu 3. not only because, that the contractors are from two different countries and does not need to apply Polish law, but above all because, that convention modified responsibilities between them. Conversely, those provisions (or similar provisions of another law applicable to the) are helpful in determining what are the “Defaults settings” provided by law. I would not like it, to refer to Article. 474 KC testified that, assume that, that between a Dutch company and a Polish manufacturer of Polish law in force. I meant more about the relationship between the principle expressed in Article. 474, and perhaps that is present in most of the contract and the rules of liability applicable in the regulation of traffic, is it the law of lading or CMR.
24. Andrzej Sikorski says:

    29/04/2012 at 18:21

    Zabierm not vote for p. Kamil gave a full and according to me the correct answer. His comment is also correct and nothing more. In fact, the correct answer for a total judgment in the final judgment and the case will go to court is probably due to some controversy and the amount of claims. Only then who will remember about the contest? Regards.
25. Tom says:

    29/04/2012 at 19:14

    @ Andrew Sikorski

    As for the comment p. Kamila Krasuski on Article. 17 CMR, However, this Convention, like the Polish Transport Law, speaks of the persons authorized to dispose of goods and Articles. 12 determines who the beneficial owner is. CMR provisions for compensation are not as strong as art. 75 Transport law, However, this can be inferred from the wording of, that the carrier is responsible to the person entitled to dispose of the meaning of the Convention. Because, in my opinion, if the consignor / seller was not a qualified person within the meaning of. 12 CMR, may be a problem with his status as an active. So rather reckless statement is, it is essential that no one who claims.
26. Kamil Krasuski says:

    30/04/2012 at 12:54

    @ Tom

    Frivolous citations can be no whole sentences. After reading my comments can be seen, that was used a shorthand, clearly indicating the, roszczącym that may be only entity having the power: “is not important who claims, important to demonstrate that it has the right to demand payment”.

    I understand, that the company refuses you permission to repair the damage Recipients? In the case if the recipient is given a mandate to pursue such claims. law firm, It also had no locus standi to? (at the end of office in any case would have the power to dispose of the consignment)
27. Paul Budrewicz says:

    30/04/2012 at 13:10

    Not, you can not hide, that the firm does not have its legitimacy – because it is already the case with attorney, that there is someone else's claims, and that the principal must have legitimacy.

    Fact, repair the damage that the sender, does not change this, that bound to comply with such requests was owed to the carrier. The recipient had the locus standi, and the carrier – passive. Paying compensation for damage in transport, his performance broadcaster within the meaning of undue. 410 § 2 kc.

    I note – This is my version. It may be, I have no reason.
28. Andrzej Sikorski says:

    30/04/2012 at 14:23

    In international transport (CMR Convention) not clearly written who is entitled to file claims, therefore be considered, that the complaint is made which has a legal interest. Not compare this to the Law of the movement because there is another rzowiązanie, more explicitly.
    At DDU seller bears the risk until delivery to the recipient (on the vehicle, not discharged) so if the merchandise arrived damaged, it hurt the equalizer Buyer Seller – It all happens outside the contract of carriage and is due to the sales contract. So there was no remedy szklody not due to any … . The sender has an interest in pursuing a claim and if satisfied broadcaster damage insurance (Cargo insurance must have been) This insurance company now has standing to file complaints to the carrier.
29. Paul Budrewicz says:

    30/04/2012 at 15:18

    But the seller has complied with the contract of sale – delivered to the buyer. However, the carrier for the damaged dowiózł, for which he is liable to the recipient upon receipt of delivery. The rules already stated the CMR.
30. Tom says:

    30/04/2012 at 18:44

    @ Andrew Sikorski

    I agree, that the CMR approach is less clear than that of the Polish przewozówki but you can argue whether it is in principle different. First Article. 12 sets, Who is entitled to dispose of the consignment. Potem Article. 14 expressly refers to Article. 12. Next Article. 16, 17, 18, 20, 23 i 27 speak only of the person entitled thereto, without reference to Article. 12. The wording of Article. 17 paragraph. 2 oraz Article. 23 paragraph. 5 i art. 27 suggest instead that the, that claims (the right to complain) have the person entitled as under art. 12 and not everyone, who has an interest. Of course, Polish producer (and his insurer) has an economic interest in bringing an action to the carrier but is it legal interest since they have no rights of the producer, that such action would protect (unless the contract between the manufacturer and the carrier otherwise)?
31. Tom says:

    30/04/2012 at 18:50

    @ Kamil Krasuski

    “I understand, that the company refuses you permission to repair the damage Recipients? In the case if the recipient is given a mandate to pursue such claims. law firm, It also had no locus standi to? (at the end of office in any case would have the power to dispose of the consignment)”

    But it is clear, that not every, Who will repair the damage done to me, will have recourse to the perpetrator of the harm. It must follow from the law or the contract between repairing and perpetrator. I was here trying to figure out whether the Polish producer shall have such a claim and, possibly, on what basis. Only when we find, we will talk about the legal interests of the Polish manufacturer.
32. Tom says:

    30/04/2012 at 18:59

    @ Paul Budrewicz

    I do not agree, that the compensation paid by the recipient Dutch Polish producer was not due. Since the Polish producer sold on terms DDU took upon himself the risk of transportation in which case the suit against the Dutch on the basis of 471 KC (or a similar provision of law applicable to the contract of sale).
33. Kamil Krasuski says:

    01/05/2012 at 00:27

    @ Tom

    And based on the Law – art. 509 kc.
34. Tom says:

    01/05/2012 at 01:01

    @ Kamil Krasuski

    Everyone here is needlessly puzzled over the problem and yet he was a transfer. What a pity, that there is no question about it in the content kazusu. This has saved us some effort to. Concluding minor złośliwostki on my part, it should be noted, Ze first, it is not known whether he was a transfer and secundo, must be answered as to evaluate the situation if the transfer was not. And I think here it goes now the hottest dispute 🙂
35. Paweł Judek says:

    01/05/2012 at 01:34

    Seeing more and more hot atmosphere, Now most of the competition issue rozstrzygnąłbym, but, as announced, I'll wait till Friday. Less and less because I believe, that will be convincing me to solve one of kazusów, but as I mentioned, fault probably insufficiently precise wording here kazusu. Referring to some statements, that have arisen:
    1. In the third kazusie there is no transfer, So the key is to ask, whether under the CMR Convention broadcaster was entitled to claim from the carrier.
    2. Is case law has invented, So things do not get to court, hence there will be answers given legally valid rulings 🙂
    3. Theory of entities entitled to claim the CMR Convention is plenty, but I assume, we think that everyone here is, as a matter rozstrzygnąłby Polish court – to him because trafiłaby rather a matter between the Polish and Polish insurance carrier.
36. Tom says:

    01/05/2012 at 19:05

    “Theory of entities entitled to claim the CMR Convention is plenty, but I assume, we think that everyone here is, as a matter rozstrzygnąłby Polish court - to him, because trafiłaby rather a matter between the Polish and Polish insurance carrier.”

    If one assumes, that CMR does not decide who are entitled to claim unequivocally, alternatively you can take advantage of traffic rights on the basis of Article. 1 paragraph. 3 this Act, I have not found a provision of the Convention, which precluded application of national legislation. At that time, and so to that described in the contract of carriage kazusie would apply Article. 75 Transport law. Of course, the condition, that the Polish manufacturer and the carrier is not in the contract wyłączyliby application of Polish law and refused to give the contract (and more specifically those aspects, which are not regulated by the CMR) some other law applicable.

    But I broniłbym position, that the solution adopted in the CMR, although expressed less clearly than in the transport law, no different from that of przewozówki just and there is no need to reach for the Polish Law. Claims based on CMR is the person entitled, who is the beneficial owner decides to Article. 12. Otherwise, if the claim is entitled to receive the sender and receiver regardless of the circumstances, the drafters of the Convention which conferred on the recipient the right to pursue claims under Article. 13 paragraph. 1 zd. 2 CMR? In my opinion, This exception to the general rule, claims that there is a person entitled is determined on the basis of Article. 12 CMR.
37. Paul Budrewicz says:

    07/05/2012 at 11:01

    I co…? Advertising break is over, Pora na final.
38. Paweł Judek says:

    07/05/2012 at 11:06

    I spent a long weekend on the move so you do not have time to sit down, but today I'll try to write back.
39. Kaja says:

    07/05/2012 at 22:16

    I know that time is up, but no reply yet so I'll try
    1. not
    2. 1000
    3. so
40. CDS - George Różyk says:

    07/05/2012 at 23:39

    The forces on the intentions. Carefully read all the answers and reasons and decided to enter the competition, if the prize is a ticket to the final of EURO 2012 in Kiev, what it does not take place due to the boycott 🙂

    To. 1. YES

    Grounds
    In accordance with § 7.2. OPWS 2010 "Forwarding Contract shall be deemed concluded upon receipt by the forwarding service delivery, if its provisions, together with the preceding orders and binding effect at the time of submission of tender freight forwarder, provide all the relevant provisions of the forwarding contract. In another case, a contract forwarding occurs when the arrangements between the parties to all material terms of this agreement. ".
    This quite clearly indicates, when it comes to contract with shipping - is a moment of receipt by the forwarding service delivery. In kazusie is mentioned on the confirmation sent by the shipper after the order is received and not offer delivery service (cited in the record establishing OPWS) provided by the orders received. Thus, confirmation sent after the contract has no legal force and records contained therein are not binding on the principal.
    This is confirmed by the second sentence, which clearly indicates, that even if we apply new "another chance", contract is entered upon the arrangements between the parties, and the content does not appear kazusu, that the client accepts the confirmation - I think, we accept the tacit acceptance on the basis of acceptance, but such a reservation does not indicate a case assignment.

    Further records OPWS 2010 do not give a forwarding agent to make his objections contained in the confirmation sent to the client for services after the contract of freight forwarding in accordance with § 7.2. OPWS 2010.

    Ps.
    If the shippers came the legal consequences from the use of similar records, quickly lose the opportunity to receive any orders. And winning is not necessarily the case in the courts.

    To. 2.
    1.500 euro on the basis of Article. 23.5 CMR + 10.000 euro on the basis of Article. 23.6 CMR in conjunction with. 26.1 i 2 CMR

    Grounds:
    Art. 26.2 CMR clearly demonstrates, that "If a declaration of special interest in delivery, may be required regardless of the compensation provided in the articles 23, 24 i 25 additional compensation equal to the damage, which has been proven, up to the amount declared. ".

    Since the matter, regardless.

    To. 3. YES

    "Upper limit of the perpetrator against the insurer in the process of regression, it is, what would be required to provide direct victim on the basis of civil law " (Judgment of the Supreme Court of 25 February 2004 r., ref. Akt II CK 34/03, published)

    But while the judgment of the Court of Appeal in Warsaw of 6 mark 2008 years (ref. Akt VI ACA 1139/07, published) - "Pursuant to Article. 828 § 1 k.c. the date of payment of compensation by the insurer of the policyholder claim against a third party responsible for the damage under the law goes to the insurer to the amount of compensation paid, If the parties have agreed otherwise. The claim of the policyholder to the perpetrator goes to the insurer by the fact of payment, the premises of the acquisition are: perpetrator liability and compensation insurance.

    However, in the judgment of the Court of Appeal in Warsaw of 5 August 2010 r., (ref. Akt VI Ca 65/10, published) We read:
    "This provision (art. 828 § 1 k.c. - Editor. JR) addresses situations, where the occurrence of insured event is both a legal event that causes not only the insurer's liability insurance, but also the responsibility of another entity in respect of his liability for damage to insured property. The victim then has two claims for compensation for the same damage: the insurer and the third party liability to pay. Insurer, which satisfied the insurance claim, is, however, entitled to seek recourse through reimbursement of compensation payments from the responsible person civilian. The essence of this regression is to change the creditor's contractual relationship between the injured person and the person responsible for the damage through the entrance in place of the victim's insurer, and then implement the right of recourse. Right of recourse of the insurer is therefore the derivative, dependent on the existence of an undertaking, under which it can be done. "

    Convinces me more on the position of SN II CK 34/03 and not because, it is the Supreme Court, but because, that is in the right. Anyway, after reading the other judgments, in each we find confirmation of the thesis from the judgment of the Supreme Court.

    I read the above comments about the right to claim or for standing as well as down to earth and quite nieprawniczy reason, obligation to pay compensation does not derive only from the, if anyone considers us as a debtor. In a few hooks kazusie, inter alia:

    • "The repair costs will amount to approximately. 20.000 Euro "- the amount of damage so it is not proven, therefore, in what amount the carrier would have to fulfill their commitment, although in principle its liability is not disputed.
    • relied on conditions DDU, clearly show, when the transfer of risk, but ... the result kazusu (although not directly), the seller that the buyer paid for the goods and the goods are accepted - the risk was therefore transferred to the buyer.
    • the apparent kazusu, the seller to the buyer paid the compensation in the H. 20.000 Euro, but the damage was not proven by the buyer, Thus if the seller paid the buyer's claim proven, whether the payment was commercial sowing the gesture.
    • indicates a case assignment, that the seller had liability insurance business - mention of excluding liability of the policyholder as a carrier not matter and it does not matter, for carriage by a carrier was working, external.
    • case assignment does not indicate, I had the scope for third party insurance business owned by the seller - are products on the market OC business, limiting the scope of consumption only to tort liability, and in this case, the contractual liability would
    • case assignment does not indicate, or payment of compensation by the seller consumption was justified, if only because of the above. - No doubt, not prove to the buyer's damages (repair costs - said to be about), consumption should not pay compensation and there is a presumption, it also paid through the competence of the commercial (a rare, but the practice).

    Thus, I agree with the proposition contained in the judgment of the Supreme Court of 25 February 2004 r., ref. Akt II CK 34/03, published and my answer is yes - a case assignment does not indicate what was the justification in response to a lawsuit, but in sum all, wywiódłbym himself as above.

    Ps.
    Knowing Paul, not quite agree with me, but it is not the first time. Anyway, as someone already pointed out, and what I always say, in court anything can happen.
    And let the losers do not worry – Paul does the court of appeal, and can instatncji 🙂
41. Paweł Judek says:

    08/05/2012 at 03:05

    It is time for the competition. First of all I would like to emphasize, not assumed, there is only one set of correct answers, and depending on the assumed compelling argument for going even considered quite distinct proposals. Do not usurp the rights to the final settlement, which of the conflicting concepts and interpretation of the rules is correct – my only advantage in this respect, the participants of the competition is that, I was the organizer and someone must have the last word 🙂 certainly willing to take part in the discussion on the concept, I will explain that in a moment, and I will try to defend their, and maybe even change them, but it will not affect already on the results of the competition 🙂

    And now to the point:

    The case of no 1

    There was relatively little controversy. Personally, I think, that the shipper would have no right to rely on the limitation of liability. First really has not been satisfied in this case the conditions of relying on standard contractual – not served on him the other side, not to mention its acceptance. Secondly – As correctly pointed out Mr. Kamil – compensation for damage caused intentionally can not be contractually limited (art. 473 by. 2 k.c.)

    I admit at the same time, the point of view that Mr. Tom shipper or exclusion of liability for damage caused while performing work duties has been treated by me as the correct answer. Personally, I do not share this view – the responsibility of the shipper was one of the care delivery, destroyed it and the employee in the course of the care that is in my opinion the performance of their duties. Otherwise, you would come to the conclusion, that the employer is never liable for damage caused intentionally, causing no harm it is not part of an employee's tasks, so any damage would be caused by the way and not in the performance of the employee's duties. This view, however, is interesting and possible to defend in court, I pass away this kind of response.

    The case of no 2

    I you – as I mentioned, probably my fault – I have experienced a reply, with a clear conscience that I would consider normal 🙂 There was a lot of answers, that the recipient could claim damages in the amount of 11.500 Euro means of transportable + special interest in the contractual. Constructing a case assignment accepted, that special interests have been entered into the contract and it seemed to me, that it has been described in kazusie. After re-reading I found kazusu, that perhaps was not sufficiently clearly stated, that this amount was entered into the contract. Because the kazusie nothing about it, that amount was entered in the consignment note, which is a requirement of Article. 26 paragraph. 1 CMR, special interest of the contractual claim was ineffective, a carrier's liability was limited to jednokrotności transportable.

    I thought at the same time admissible option, claim that the recipient will be full compensation from the carrier. The behavior of the carrier could be in fact characterized by the heavy fault. In practice, the carrier made the decision alone, to realize a single operation, and does not execute the second, did not notify the other party of the known will be late, has not made any attempts to reduce the damage even by hiring another vehicle or even to allow the other side to find another transport. Of course, I realize, that the issue is controversial, but given the rigorous approach to the carriers in some European countries, judgment zasądzający full compensation would not improbable. Therefore, the answer, that the recipient may request 15.000 Euro would also be included.

    However, since this probably caused the imprecise wording kazusu no valid – in my opinion – response, I thought, that view, that corresponds to the amount of carrier 11.500 Euro will be treated as the correct answer.

    The case of no 3

    I realize, that this was the most controversial case assignment in this case, the justification for the possibility of different responses. However, because the answer was zero-one, I could not accept, that both answers are correct. Personally, I am of the opinion, that in this case the insurance company, however, was legitimized to claim from the carrier, though for somewhat different reasons than they were quoted.

    As for the legitimacy of the claim against the carrier under the CMR Convention, I agree with Paul Budrewiczem, that the right to have the persons specified in Article. 12 i 13 CMR. I realize, that the case is highly controversial, and judgments of foreign courts based on the full spectrum of views and you can find some in support of any claim, but the Polish Supreme Court twice (Case 03.09.2003 r. ref. II CKN 415/01 and with 05.12.2003 ref. IV CK 264/02) said, in the absence of indication in the Convention of the person entitled, law shall apply to transport, which are, that the person entitled to claim a shipper or receiver, depending on, which of these persons have the right to dispose of the consignment. Should be set up by the Convention, Who is entitled to dispose of the shipment and that person has standing to seek redress from the carrier. In this case, the time of receipt by the consignee consignment consignor no longer be authorized to dispose of the consignment, and thus lost under the CMR Convention the right to claim from the carrier.

    And of course I am familiar with the decision of the Court of Appeal in Warsaw 12.11.1996 r. (ref. I ACr 673/96), who stated, that since the CMR Convention does not define a person authorized, determined by general principles of liability, that is, the claim may be requested by the person injured. But I believe, practices that are important for a Supreme Court, a judgment in Warsaw not met with the special support.

    Therefore I do not agree with Andrzej Sikorski and Kamil Krasuskim, just the fact that injuries or legal interest, to claim compensation under the CMR Convention. Although I find such arguments to be admissible, especially in the case law because it has many foreign devotees.

    But why – since I agree with the Paul and Mr. Tom Budrewicza (as understood in the course of the discussion eventually took the, he chooses the right to dispose of the consignment) – took the, that the defense of lack of legitimacy, however, was not the correct?

    Determined the conditions, under which the sale. If the formula adopted DDU (Delivered Duty Unpaid), the seller took on the risk of any damage during transportation. If such damage occurred, the seller was obliged to customers to repair the damage under the contract of sale. Its benefit to the recipient, so there was not due – and here I agree with Mr. Tom, and not with Paul Budrewiczem. In practice, therefore, customers were given two claims – one against the seller under a contract of sale and the second against the carrier for contracts of carriage. So we have here a classic responsibility in solidum. Doctrine and case law although generally quite cautious in the use of analogies, in the case of liability in solidum generally allow a regression between such debtors on the analogy of joint and several liability, especially when, as between debtors in solidum exists an internal relationship (in this case between the seller and the carrier, there was a contract of carriage. You could also try to argue, relying on the provisions on subrogation (art. 518 paragraph. 1 Item 1 k.c.), but in this case – I think – recourse to liability in solidum has a greater chance of success.

    winner 🙂

    Taking the above into consideration, only person, which in my opinion, given all the correct answers was Mr. Kamil Krasuski. I considered it a candidate Tom Lord, but his speech went more towards questioning the legitimacy of an insurance. Besides, Mr. Kamil's response, and so was given earlier.

    Congratulations 🙂

    No possibility of appeal 🙂

    According to George Różyka expected by the end I could not agree with his proposals for solutions. Especially to be without basis in the regulations to be considered his statement about the right of appeal of the competition 🙂

    Prize

    The prize in my opinion the best book on the subject of transport law, which appeared recently in Poland, which is the position taken by photographer Dorothea Ambrożuk Fri. Determination of compensation in the transport law for the carriage of parcels: http://www.profinfo.pl/ambrozuk-dorota/p,ustalenie-wysokosci-odszkodowania-w-prawie-przewozowym-w-odniesieniu-do-przewozu-przesylek,45685.html#40155686
    Mr. Kamil ask for contact and enter your address for shipping. Of course, if it is already in possession of this book, somehow agreed on the choice of replacement.

    And now I'm waiting for an avalanche of comments, why the questions were biased, and the decision unfair competition 🙂
42. CDS - George Różyk says:

    08/05/2012 at 08:55

    Paul, such a judgment, Such an appeal. Otherwise, not all the judgments we can agree, and we agree, because … judgment, a judgment.
    Congratulations on winning Kamil, though perhaps with a ticket for EURO 2012 a peasant would be glad 🙂
43. Paul Budrewicz says:

    08/05/2012 at 10:58

    I congratulate the winner!

    But the worst is, despite all these objections is not attached to what.

    Yes, in kazusie 2 is indeed a contract, and no bill of lading, but the fact, this has been overlooked by the participants, show only my opinion of this, everyone focused on the merits. Means, to Tez jest meritum, but other 🙂 – no known, what I mean.
    And by the way – you, 'd beat before a Polish court action for damages in such a situation, referring to the issue of guilt, as it demonstrated the?

    And as for kazusu 3 I thought it long, how to defend its position, but in the end I gave up – DDU beat me.
44. Paweł Judek says:

    08/05/2012 at 11:20

    @ Paul

    The concept of gross negligence is to himself, that may be interpreted differently. You can hit the court, where a grossly negligent consider even fairly minor carelessness (known as the Court of Appeal judgment on liability in Bialystok forwarder), but you can at the, which will be much more liberal. In the example described really think, that the carrier acted wrong, it is not usually a big problem to find alternative transport – sometimes it's just more expensive but the damage costs, and so in this case would be less. If the carrier is arranged in a different transport or at least given a chance to its customer, I would sentence, that would have the right to demand these increased costs incurred by the previous contractor, from which the fault has not been for the timely receipt of goods. This fact in no way, however, translates it in relations with the sender of the second transport. Otherwise you would have to be, that the arguments – I did not pay you, because I did not pay and others do not have money, is justified, and yet it is quite clear, in any court that such an argument would not be included.
45. Paul Budrewicz says:

    08/05/2012 at 12:07

    Paul, I'm not questioning your position. I just wanted to know, how it looks in your practice, despite the younger age because you have probably experienced a greater. Fact, I asked that question too general.
46. Paweł Judek says:

    08/05/2012 at 13:20

    @ Paul

    Again this your modesty 🙂 not been driving this type of case and have not heard of this before a Polish court outcome. But I believe, that such action would not be without a chance. Much would depend on the level of argument presented by the parties.
47. Kamil Krasuski says:

    08/05/2012 at 19:35

    Sir Paul, in fact the questions were biased, However, whereas a fair outcome of the contest I will not bring any comments 😀

    But I am forced to ask for change award – details can overdub by e-mail.
48. Maciej Gotowicki says:

    10/05/2012 at 13:40

    Sir Paul,

    on the casus No. 1 This according to my experience this damage should be wound up with the OC agent, storekeeper, which has the OC for the storage. The Freight Forwarder may occur as “lawyer” client and manage it at the settlement of claims for the full amount. At sea and air frachtach applicable contract-forwarding,so do not even enter here grossly negligent shipper, when the insurer wants to raise that argument. Customer should refer to the claim agent and forwarder storekeeper should show receipts for storage. In addition, the customer should pay his salary for the forwarder forwarding service and close the case on this line.

    Is it a good interpretation? You are lawyers and I am forwarding a few years practitioner:)

    I am curious if my knowledge is well established:)

    Maciej Gotowicki
49. Paweł Judek says:

    10/05/2012 at 20:55

    Mr. Maciej, probably in most cases actually a consignment will be stored in a warehouse store operator and the agent can try to claim compensation from the oc. At that, however, assumed kazusie, that the store will be the same shipper – are, after all shippers, who have their own warehouses. Thus, in this case it would not have, agent to charge whatever the storer.
50. Maciej Gotowicki says:

    10/05/2012 at 23:12

    Good point my oversight.
51. Counter-Strike: Global Offensive Beta Sony Playstation 3 says:

    24/04/2014 at 03:07

    In the Advanced tab of the System Properties locate
    the Performance group and click on the “Setting”
    to reach “Performance Option. Another appeal CSDM has over gamers is the supposed realism of this multiplayer game. I need most of these creators to write strategy guides for every single online game now, lol.
52. Clavon Condo Showsuite says:

    15/07/2021 at 15:54

    I am interested

    My homepage Clavon Condo Showsuite