In every area of life exist certain issues, which sometimes overgrown causing myths, their general picture is far from reality. In the transport industry who are not very popular myth special support in the law is the belief, that the bill is absolutely the most important document in the activities of the carrier having primacy over the contract of carriage, and his vicious fill or not to fill causes disastrous. It should be made clear, the real importance of this document, and when you can do without it, and when it is essential to have.
- 1. Content of the contract of carriage
It is good to start with a basic truth. Waybill is not a contract of carriage. Of course, it should reflect the conditions, but in situations, when it deviates from the agreed content of the agreement, precedence as a rule, has a contract, and no bill of lading. The agreement is not necessarily a document signed by both parties. Often it will be a fax, mail, a conversation on IM or even a verbal call. Of course, in the latter case it may be a problem with proving the terms of the agreement, However, when it succeeds, oral communications will continue to take precedence over the provisions of the bill of lading.
Sometimes some confusion carriers in this respect may cause such law. art. 47 paragraph. 3 pr. wire. which is, that the bill of lading is evidence of the contract of carriage. It should be remembered, that it is not only acceptable proof of the content of the agreement, Thus, this provision will apply only, when there is no other evidence. In the CMR Convention, this principle has been expressed directly in art. 9 paragraph. 1 providing, that the bill is only evidence of the contract and its terms and conditions, the absence of evidence to the contrary.
Practice shows, that bills are regularly filled in accordance with the substance of the agreement. This applies especially to the sender indicating the person, which should be the contractor of the carrier, as soon as the sender of the letter is part of the shipper, in which the goods are loaded. In this regard, said even the Supreme Court, stating in its judgment of 3 September 2003 r., that, in accordance with the provisions of the CMR Convention on the person who is not a party to the contract of carriage shall be recognized as the sender only for this reason, that was identified as the consignor in the consignment. Therefore confirmed, that contract of carriage is more important than the bill of lading.
- 2. Order status when loading and unloading
More relevant bill of lading is the examination of the shipment at the loading and unloading, contrary to appearances, though in many cases you can do without it. The national transport, where the consignment to loading differs qualitatively or quantitatively from the contracted carrier is required to make a reservation, However, the regulations do not require to do so in the consignment. Typically reservations are made in this way, but if the carrier uses a different form of, This action will be effective, and the lack of provision in the bill of lading will not matter.
Slightly different look this issue in international transport, where objections during loading should be done in the consignment. None of these objections does not prejudge the possible liability of the carrier, but creates only a presumption, him that the shipment was delivered in good condition. This presumption may be rebutted, however,. Thus, if the carrier has other evidence such as. photographic documentation, testimony of witnesses or e-mail correspondence, there is no objection to the bill of lading did not prevent him from asserting his due.
Even more liberal rules apply to any deficiencies or damage to the shipment when unloading. Both the traffic laws and the CMR Convention show only reservations must be made by the recipient, not commanding at the same time, that these reservations were included in the bill of lading. Also in this case, the reservation may be made in any form,. Are invisible except when unloading delivery gaps in international transport, which should be submitted in writing to the carrier, but still do not have to be disclosed in the consignment.
3. Debts owed by consignment
One of the more favorable regulations for carriers in domestic and international regulations are the responsibility of providing for the payment of public debts imposed on consignment, in particular transportable. In the case of domestic transport for such liability bill is not needed. According to art. 51 paragraph. 1 pr. wire. the recipient is responsible for the carriage unconditionally, even if in general not aware, any amount that is not transportable carrier paid. The consignment note is not required in this case.
Otherwise regulated these issues in international. According to art. 13 paragraph. 2 CMR recipient is liable to the carrier for claims disclosed only in the consignment. No bill of lading or not placed on the duties imposed on the recipient of the consignment release from all liability in this respect.
4. Declaration of interest in the shipment and delivery
Without the bill of lading but you can not declare the value of the shipment or special interest in delivery. Art. 40 pr. wire. clearly indicates, that such declaration shall be entered in the consignment note. Formulate a similar requirement art. 24 i 26 CMR. Lack of appropriate endorsement on the bill of lading therefore makes, that the liability of the carrier is considered on its own merits, even if something else has been agreed in the contract of carriage. It is worth while to remember, declaration that the inclusion of a bill of lading shall be agreed with the carrier and try to smuggle such a declaration in a letter without first consulting a rule, be deemed to be ineffective.
5. Disposal of delivery
The specificity of the transport law includes the right of the person entitled to unilaterally change the contract of carriage, including the possibility to order the carrier to return the consignment to the place of origin, of delivery to another address or to another recipient. In practice, little use is made of these benefits due to the difficult conditions. These include m.in. the need for the issuing of the first copy to the bill of lading that identify the new instructions. This requirement applies to both domestic transport (art. 53 paragraph. 3 pr. wire.) and international (art. 12 paragraph. 5 CMR). With those provisions, therefore, results clearly, that without the consignment note delivery regulation during transport are not possible.
6. Insurance
Although not apparent from any provision of law or there is no rational justification, number of Polish insurance companies concluded their agreement liability insurance carrier indicates, that the insurance covered only those damages, which arose in the course of carriage performed under the bill of lading issued to the insured. This clause is extremely dangerous for carriers, who have such insurance, as well as for their customers. In practice, usually transports are carried out because sometimes using several subcontractors. Frequently, therefore, entered in the consignment note is only one of several carriers that occur throughout the transport process. Each of the other insurance carriers of this clause shall be liable to the charge of the undertaking and an excuse to refuse to pay compensation. Before such situations it is difficult to prevent, as the leading carrier often has no control over the, whose data will ultimately be included in the bill of lading, and it happens regularly, that appear in the actual carrier data only. On the other hand, often represents the actual carrier has already completed at this point and does not allow the consignment to supplement his letter about your data. Therefore, in the absence of the insurance bill of lading or incorrect filling may have dramatic consequences for the carrier.
Therefore best to avoid any insurance, that have such clauses in their contracts, regardless of other conditions offered by insurance. The sole purpose of this clause is to avoid accountability for the insurance, because the carrier does not depend on this yet, whether the data will be included in the bill of lading. The best proof of this is the increasingly common practice of insurance, which the decisions are increasingly refusing to pay compensation as the only reason for failure is indicated in the carrier's entry into the bill of lading.
Summary
Waybill is undoubtedly an important document of carriage, and if possible, keep the correct content. It must be remembered, that the activities of the carrier is primarily a contract of carriage, in many cases, it is possible also to assert their rights in the absence or the improper filling the bill of lading.
The text also appeared in the December issue of the journal TSL Biznes
Sir Paul – totally disagree with you. Bill of lading is the founding document and should be completed in accordance with the facts and unmową. Mr. foreign law Tracks – also consider whether there waybill as a document of the second rank? Well, some very seriously treat bill.
As a contract carrier is commissioned by the Hamburg and Frankfurt is a letter where it should go? The carrier enters into a SENDER or a party for the content of the bill of lading is responsible … SENDER (not all the data but the basic). So the sender in the order he wanted to Hamburg and then changed his mind and broadcaster pointed Frankfurt – his signature carrier agreed to Frankfurt.
Once again emphasize the agreement contains both the sender and the content of the letter corresponding to the sender – what's the problem? (I know but I would have to write the same article)
Lawyers to work well as the rules are unclear, and each attorney can sing their. This is what the Lord says about it, that the sender is often mistakenly given the shipper, I know the Lord is with you is clear – and so it comes to improving “przewalania on freight” by pseudo-forwarding. Since the shipper enters into a contract in his own name should appear on the bill of lading as the sender but because there is no customer could be confusing … and that the pseudo-forwarding does not want.
Only, it introduces a mess because the sender is a person entitled to dispose of the goods – and the darkness makes it easy to steal the whole truck of goods because the carrier should listen to offers broadcasters and anyone else here has sent the order and who else is in the list … .
Obfuscation and responsibilities rozmydlanie, probative function of the bill of lading, etc.. This decay law – “Sir Paul, May the Lord does not go that way”, that a classic quote.
🙂 I am very pleased with the comment of Mr. Andrzej Sikorski, I suppose because it will be the nucleus of an interesting discussion 🙂
How to Talk Talk, also throw in their 3 pennies 🙂
I agree with Mr. Andrzej Sikorski, that the bill is a very important document and should not detract from its importance. It is also, it should be completed in accordance with the contract and the facts. The question here arises: according to which the contract? Practice shows, sometimes to transport cargo from A to B is concluded several contracts of carriage (chain of subcontractors is sometimes a really long).
I therefore agree with the view put forward by Mr Paul. Letter CMR is the founding document, which is crucial in assessing the agreement. CMR Convention clearly indicates, CMR that the letter is proof of the contract, However, at no point did not mention that it is the only or the most important evidence. What is more, the English version of the CMR results (I understand how the language) letter that CMR is a de facto confirmation of the contract of carriage.
Therefore, in art. 4 clearly indicated, irregularities in the letter that CMR does not affect the validity of the contract itself. In my opinion this is such an anomaly. incorrect indication of the sender, quantities of goods or the place of delivery. Errors in the list of CMR (which is a confirmation of the contract before) are not so relevant for assessing liability if there is other evidence (such as transport orders, Negotiations e-mail or telephone as a last resort to determine).
In this example, the supply of various places so everything would depend on who, in fact, issued a letter CMR. If the sender would (within the meaning of “direct principal carrier”) This could be seen as the exercise by him of the right to dispose of the delivery. If, however, a letter issued shipper, not a broadcaster, it seems to me that the carrier would continue to be bound content of earlier findings.
Suggestion, pseudo-forwarding that knowingly lead to errors in identifying the sender to the list of CMR “przewalania on freight” is a sign of faith in Mr. Andrew's knowledge and skills shippers. In my experience, however,, that in most cases, business operators have no idea forwarding who is the sender, forwarder who is and who the carrier. They are not, in fact, also no influence on the content of the bill of lading, because neither the shipper nor the recipient are not their direct customers.
Sir Andrew, do not hide, I really appreciate that your great knowledge and experience in the field of transport law and always with attention to loading in your opinions. As for the described issue but we have different views, but perhaps this is a contradiction to some extent the apparent.
I am the last person, which says, that the bill is an important document – no doubt it is very important and everyone should be interested in this, was filled to the correct. But as rightly pointed out Kamil (with whom I had the pleasure to go to you 🙂 ) usually one bill includes a number of contracts of carriage. And in many cases, the letter from the nature of things can not correspond to the agreements. For what the situation, when I have a bill of lading from Italy to Russia, but the transport is carried out by several carriers, one of which is to deliver the goods to the warehouse in Poland, where the next carrier will be taken to Russia. Is if the carrier has a contract to transport from Italy to Polish, This is really important for him Waybill? Of course, technically speaking, should be issued a number of bills of lading – one for each contract of carriage, but in practice never is not done. Therefore, in the bill of lading as the shipper shipper usually occurs, I would have a problem with broadcasters, if there is a given number of transport (because each carrier over its subcontractor sender).
As for the apparent contradiction – action based on a contract carrier. But no one says, that this agreement can not be changed by agreement of both, as well as by single-load regulation subject to the conditions provided for by. For example, if you have a contract for the conveyance of 10 t ładunku, and after passing the place turns out to be, that is to carry 15 t, and the carrier accepts the goods, and this is included on the bill of lading, in this way, there is a change in implied contract of carriage. So there is a contradiction between the contract and the bill of lading. However, it is the sacred law of the carrier, in such a situation to refuse to carry, if the new conditions are not right. It is difficult to justify claims, if the sender of the letter typed data to transport it is more important than the earlier agreement. In this way, the sender would be able to force the carrier very adverse conditions. It seems to me, that for this there is no dispute and will comment on each of the carrier, who refuses to pick a different product than in the original contract. If they accept it – as mentioned – thus modifies the agreement and there is no contradiction problem. Therefore, when writing about the contract I do not mean the paper document, but the final shape of the agreement between the parties, a bill of lading as the most likely to be a reflection of this agreement.
Kamil rightly refers here to the Article. 4 i 9 CMR. The latter provision makes it clear, that the bill is only a proof of the contract of carriage and the terms and conditions, if there is no other evidence (in English prima facie evidence or presumption is obalalne). In the light of these provisions it is difficult to justify the theory, that the bill is more important than the contract of carriage.
As for the other spot in the contract to provide cargo and consignment, Here is just a change of the contract of carriage may be unilateral. Hence the change, in principle, be binding on the carrier. First of all, the carrier should then inform the shipper – though formally not apparent from any of the provisions – that there is a discrepancy between the contract and the letter, so you can avoid the many scams transport.
To sum up, each case must be individually recognize. Sometimes the difference between the order and the bill of lading will witness changes in the contract of carriage, and sometimes not. If such a change has not been (whether by agreement, whether by unilateral declaration), more important is the agreement between the parties.
And of course, I am also a, that Mr. Andrzej sparked debate 🙂
This sender is responsible for the information in the consignment! The shipper is not at all a party to the contract of carriage, and works on behalf of the sender and the sender is responsible only to the. It is important, that the letter was filled by someone other than the sender – and so the sender would suffer the consequences of incorrect or incomplete data.
I do not stick to the bill of lading is one of the ways to steal goods. Right to dispose of the goods and the carrier has SENDER listen to …. principal, forwarder ignoring what is in the bill of lading and they were taking goods to the thief. Attorneys then try to discredit the bill and try to convince the court, that the sender is not that what the bill of lading “sender” Only the one who gave the order but did not prevail over the letter, etc.. itd. – that's what I call the deterioration of law.
Waybill is also a function: information – what is the information for the police, customs and the recipient, who is entitled to submit a complaint to the przedwoźnika if the leaves are incorrect information?
The sender closes a contract with the carrier (forwarder may enter into a contract on your behalf then it is for the sender and the carrier should be in the 1 Consignment) and is responsible for the content of the bill of lading. Freight Forwarder Freight Forwarder is only for their principal for the carrier can only be the agent of the sender or the sender if it enters into a contract on your behalf – and then with all the consequences which will be the sender of the letter. Freight Forwarders mamyh wretched and hence a lot of confusion – shipper should provide the sender and to the loading shipping instructions and examples of filled documents – minutes. a properly completed and the bill of lading as the shipper improvises … in general a lot of the improvisation.
Konwnecja CMR is a well-written – stick to it.
Sir Paul – The Lord says this to the change of unloading Let a 'shipper’ but it does not follow the rules. Sir Paul, This can lead to a huge fuss because the shipper is not a party to the contract of carriage and the sender may have a commercial interest to the shipper did not know where the cargo will be discharged. The idea of such should be excluded. CMR Convention clearly indicates how the commodity has (upon presentation of a copy of the bill of lading with marked changes) – there is also a bypass?
I want to clarify one thing yet – there is always only one contract of carriage, and one letter to its implementation. By the way, you czasamni możena and conclude other contracts for the execution of the first … but the agreement must be pursued according to their content and expose as many letters as there are contracts. Of course, if there are many carriers you can use the principle of successive carriers but who today do unmie?
This time, I agree partly with Mr. Andrew. It does not matter whether the shipper is also the sender, or not. In accordance with Article. 47 paragraph. 2 pr. wire. the person issuing the load carrier is considered to be authorized to do all acts relating to the conclusion of the contract. So if such a person shall modify the contract of carriage within the meaning of the law, This should be regarded as an effective.
I can not but agree with the criticism of the, carriers that listen to their customers, instead of the first sender. The carrier is the principal broadcaster, because the sender is always a counterparty carrier. Not surprisingly the position of representatives of such carriers challenging the status of the broadcaster a person entered in the consignment note. However, as mentioned above, such a person is still able to be empowered to act on behalf of the principal carrier, and thus the command was successful (as long as other requirements are met).
As a function of the information – I agree. The consignment note must perform this function and the terms of the contract of carriage. The only question is which? As has already been said, because, each subcontractor to another contract of carriage, and each operator acts as a broadcaster for his subcontractors. I disclose in the standard list of all hard. And as far as the police and customs services to them and, if properly fill the bill of lading could be a problem. Because if – accordance with the principles – in the sender enters the recipient, who ordered the shipment of goods to your warehouse, that many police officers they became fools, because they believe that the sender, from which the goods are shipped.
I see Mr. Andrew, You wrote that, Before I finished my answer. Of course, a matter of informing the shipper is informal and serve to caution. I'm not saying, that is such an obligation under the rules, but it might be a good idea. I did not write it anywhere on how to bypass the rules to dispose of the goods described in the Convention, but it still remains to be determined, whether we are dealing with the sender.
And here I think the key point of dispute – I can not agree with the statement, that there is always one contract of carriage, and one letter to its implementation. So it should be in an ideal reality, but unfortunately it is not and you need to think about, how to cope in the current environment.
And as for successive carriers – I'm all for it, but this one would be better to change the rules, to change the practice because it is difficult to count. No doubt it helped much by all of the issues associated with our differences of views. Unfortunately, at the present time the institution of successive transport in Poland is dead, although in many countries it is otherwise (np. in England).
A note of optimism to enter in this discussion, I can tell, I'm in the process of developing a new model for a waybill, aiming to cope with difficulties, that we describe here. As soon as I'm done, of course, I will put it here in the hope of constructive criticism 🙂
@ Kruger legally
But what is it, Zbyszek? Because I still deem, that spamming 🙂
There is no answer so I consider spam.
Pan Kamil pisze:
“It is also, it should be completed in accordance with the contract and the facts. The question here arises: according to which the contract? Practice shows, sometimes to transport cargo from A to B is concluded several contracts of carriage (chain of subcontractors is sometimes a really long). ”
Well, probably not understand – contract is one and the bill reflects the agreement between the sender and the carrier – a to, that CARRIER, to perform the contract, contains other agreement does not affect the contents of the bill of lading by which we mean.. “Chain” is a completely separate issue between the carrier and its kontarhentem(i) and do not move to the agreement SENDER – CARRIER.
The other thing, the chains is a pathology which can and must be fought. As the carrier is not able to perform the carriage it shall not accept orders or podnajmie additional vehicle and not another carrier transportation commission and the even the next – this is sick. If you have already done so and the first carrier to another carrier transportation commission (instead sublet the vehicle) it comes to the rights and obligations of the sender and then should have a bill of lading adequate for this contract – but it does not affect the letter SENDER – CARRIER from which we.
“First hand” that is, the one who originally ordered the carriage does not have and can not have claims to subcontractors CARRIER because they are not, for the, party to the contract of carriage.
These carriers, who is sublets vehicles such as. DHL, Schenker, UPS include them with your insurance – and the bill of lading is DHL, Schenker, UPS. This can be done in accordance with the provisions of art and …
Welcome
I would like to ask p. In relation Patron of views on this issue when the insurer refuses to pay compensation to a carrier on account of an accident due to the fault of the carrier citing the lack of awb. Namely, in a place such as this carrier is registered driver employed at the carrier, and not the company itself przewoznicza – Insurance Taker.
Or in connection with this, such a refusal is justified? Is not this in some pososb interpretation by ubezpiecyciela abuse and attempt to avoid paying the compensation due? It is obvious and employee- the driver is employed by a company przewoznizej and there is no doubt as to. The only error in the opinion of the insurer who justifies the refusal to pay compensation applies to just the lack of przewozniczej wskaania in awb.
Podrawiam
Michael Sokolowski
Legal Advisor Trainee
I, question to the p. Patron and my answer probably will not like it … but waiting for a response p. Patron write their.
Well, the position of the insurance company is correct. In the box “carrier” is to be entered in the name and address of the carrier and not nazwsko driver and vehicle number because it's not the same thing. The driver works for the carrier which for some is not clear wcake, that this company is a carrier because it can only be a sub-contractor and the carrier can be completely someone else.
The General Conditions of Insurance is clearly stated, that the bill of lading to be issued on the carrier and the carrier is the name and address of the.
I, that this record like – wtedyt do not have to agree to such a record but if it is agreed that the challenge now? I've seen insurance, where T & C nazwsko allow the driver and the car number of the insured even if the name and address of the carrier is different (since then it has just subcontractor). I just need to keep this in mind before rather than after the event.
I am aware of, that lawyers will try to, in spite of all, fight for compensation – injury, it also did not realize gallantly customers what their responsibilities … and even contrary, underestimate the role of the bill of lading and is what is.
It's a shame, that carriers take freight up for a very high value and do not care about such matters as the cardinal waybill and do not read the T & Cs. Or in other areas such as. transport safety are equally inattentive?
Despite these observations, However, I wish to sincerely compensation paid (though I doubt whether the insurer will forgive) – because closer to me than the insurance carriers – But when I see how the training on the certificate of professional competence delegated wives and daughters are carriers, jak ci, but who came, can not wait to finish and move on truancy (despite, that paid for training) – I see a black future carriers but clearly lawyers … so they are pros.
@ Andrzej Sikorski
I will first speech on the bill of lading and the contract in the context of speech Kamila. I agree, that the bill of lading issued by the broadcaster should reflect the agreement between the consignor and the carrier, and another agreement should be associated with subsequent bills of lading.
As for the chain not really think it's pathology. The transport sector operates so many years and it's all over the world, So is now a norm rather than distortion. But actually it is difficult to recognize the phenomenon as positive, as she is on it and the sender, and the final carrier. First pay very high rates for the carriage of, the second goes for very low wages. However, it affects a very large fragmented industry – now each have wyleasingowanej carrier truck is already.
A co do DHL, Schenker and UPS are just in this case, they are usually in the role of freight forwarders and all cars, that run with the names of these companies are the most cars in the air, operating under permanent contracts with the shipper.
@ Michał S. and Andrzej Sikorski
The problem of insurance, who refuse to pay damages due to incorrect data on the consignment, is not new, but it was only with the advent of the crisis intensified greatly. Bets for now regularly refuse to pay solely because of shortcomings in the bill of lading – This argument had been invoked only further.
And here, in principle, I agree with Andrew Sikorski – driver data is not the data carrier, So they do not meet the provisions of the General Conditions. Personally skupiłbym therefore primarily on the question of same records Imprint. Sam is currently in a number of investigations trying to fight them, but as yet no decisions (obtain a payment order against the insurance company for a good cause does not mean anything because), which would allow the claim, that it is an effective way. I think because, that such records are extremely detrimental to the insured and is intended solely ago, to have an excuse to refuse to pay compensation. Typing or not the carrier bill of lading does not affect in any way after his responsibility, and thus the responsibility of the insurance. It's a bit, GTC was as if record, that the company is liable only, when the truck, which transported goods, is mounted cuckoo clock – It has no effect at all on the risk insurance, at the same time can be a basis for refusal. But keep in mind, time that the Supreme Court has already dealt with this type of case and reversed back to the judgment of the Court of Appeals, which held, that this provision does not matter. But I do not know, and eventually the case was settled.
As for downplaying the obligations – he always urge clients to carefully study the terms of use especially for those records. Except that the carrier is not always an influence. What in fact can help it, that the sender entered in the consignment note the actual carrier data, rather than contractual? Best just not to buy such insurance, insurance because all the write personally I find an example of an extremely unfavorable contract. By the way, I'm surprised, carriers that organizations were not able to get together and force the insurance companies to offer decent insurance, for example by boycotting such, that these records contain. Moreover, matures slowly in me thought, himself to organize a boycott of, but my driving force is small at the moment 🙂
Sir Paul –
to. 1/ Schenker and UPS do not work as “shippers” only as carriers, and although the use of sub-contractors are responsible for their actions and for himself – I refer to the Rules Schenker freight services.
The bill of lading is Schenker and his address. In the event of the insured person is Schenker damages and compensation paid to its OCP Schenker.
ad.2 / Writing in the bill of lading and insurance.
Well, it's not as obvious as you write and has its justification. The letter is intended to reflect the reality and prevent insurance fraud. If the carrier is “carrier” is this bill, name and address. Otherwise, it is easier to spoof the insurer for compensation for the transportation, another carrier that performed well enough not insured in case of damage to reaching an agreement with another carrier, which has such. theft and robbery clause, This example, which. not.
And why in the letter is to be the carrier X and Y to be insured, and he has a claim for compensation? As I said-it is possible that the list was the name and address of the X but the driver and the car number (as a subcontractor) Y and all clear.
Please keep in mind, that it is often about the hundreds of thousands of euros and no nonchalance could not be – same job can be easily predate a job + consignment and at least the carrier and the person entitled gives more (but not absolute) guarantees as to the facts. Insurance companies sometimes behave like leeches, but also can be right and require reasonable behavior – the more, that typing the name and address of the carrier, and it is a duty and not a figment of.
Sir Paul – there are so many absurdities in the TSL (np. Mediation record the carriage of goods), you do not have to force the other to look for.
@ Andrzej Sikorski
1) As for Schenker and UPS I had cases, which clearly acted as a forwarder, but actually – I see – There are also the carriers.
2) I never said, it is obvious 🙂 If it was, it would not be so many problems, and insurance companies have long zrezygnowałyby of these records. But on the merits do not agree. Writing in the General Conditions of the need to enter data into the bill of lading of the insured in no way insurance protects against fraud. The transport law and the presumption of CMR results, that the conditions described in the consignment correspond to reality. It is therefore presumed, that the carrier was the, whose data are included in the bill of lading. This carrier must therefore refute this presumption. And if there are documents, which allow you to rebut that presumption, there is no reason, that insurance did not pay compensation. And if the insurance company is concerned, that could lead to falsification of documents afterthought, This may well lead to counterfeit bill of lading, So the danger is the same.
Example of insurance fraud is indeed far-fetched. Do not happen because more situations, that one carrier was driving without insurance, and then a second try for compensation. Cases, however, are widespread, when the sender has signed a contract with the carrier X, Y podzlecił transport carrier's bill of lading and the carrier entered Y. For this is an agreement between both the sender and the carrier X and between the carrier and the carrier X Y. And here is the entry in the T & C is not required to do anything (except, of course, an excuse to refuse to pay).
In the first case of fraud could be easily verified fact. If you actually drove the carrier X (and is entered in the list), Y and the carrier was not at all out of the carriage, see it as a kind of insurance, there was one carrier? There is no contract between the shipper and the carrier Y, so this is eliminated. Carrier Y would therefore have to be alleged subcontractor. So you would have to predate the contract for the carriage and count on the false testimony of the alleged driver of the carrier Y. Except that it would be discovered by the data driver on the waybill, or even the testimony of witnesses. In the same way you can just fake letter carriage agreement, and even without the agreement of the recipient or sender.
Thank you very much for your answers.
Unfortunately, current documentation received in this type of case, and I'm wondering if it's worth the spores enter the court with the insurer if explicitly say insurance conditions, FIMA is that the carrier and not the driver.
Well, may be this type of error will cost you a great loss. Can actually worthwhile to focus on the same records GTC.
For several years I worked in a branch of the UPS, but niesttey not dealt with this kind of issues.
Regards
Michael Sokolowski
Now, an example of insurance fraud is a very real – while playing down this aspect is needed to substantiate the thesis, the entry in the list is not as important … . You can describe the mechanism of such a scam but I will not because it will come out, I give instructions instead of warnings.
A tack marginesie, Sir Paul, at the end of it, for the Lord fights? How to be a bill of lading, and it is neat to be filled and the end. What's the problem? Someone can carry goods with a value of 100 thousands of euro and can not see the bill of lading, what he did ensure? Any aberration.
We are happy to join the initiative propagujęcej correct procedure, filling of documents in accordance with the rules and regulations – while the relativized, “so, but …” itp. I think it is harmful. We do not have respect for the principles of, laws and regulations, reigns “no bo, abo …” undermining the conditions of the contract, which is signed, located in the mainstream.
Mr. Andrew, If the contract is extremely detrimental to one party – and so I – This should be undermined. Argument, that the agreement was signed by someone I have no critical, because the law provides for a number of accidents, flagrant violation of the interests of one party can be the basis for revocation of the recording. Court of Competition and Consumer Protection is inundated with such matters under the control of illegal clauses and a large part of which includes. Cases of abuse and non-compliance of the agreement with rules of social interaction are rare but do happen. What's more, I am deeply convinced, that no carrier have entered into an insurance contract with that record, if they only knew, that entry into the bill of lading is subject to the payment of compensation.
Why do I fight these records? Because they are just unfair. I am all for it, to carriers properly filled bills. But I do not agree on this, that a problem in this area, which, in most cases, for the proper execution of the contract carriage does not matter, have to pay a lack of insurance coverage and the need to cover the loss of several hundred thousand. It's a bit, support if they put people in jail for passing the red light. Of course it would be great, if everyone just walked on the green, but there must be some proportion of violations and sanctions. I am therefore a respect for the law but without the use of draconian penalties for relatively insignificant violations. Incorrect data carrier in the consignment does not usually constitute a threat to the interests of any of its counterparty.
Do not underestimate the issue of fraud, but it is not this that provision, the – It is used primarily when, when they are clear evidence, who was the carrier, entered in the consignment note is whether the subcontractor or principal carrier. I have seen many such cases and in each of them admitted insurance, there is no doubt that, who was the carrier. So never be argued, they fear, it's a scam. In case of refusal for alleged fraud is not never met. If any of the readers have a different experience, I'd love to read it.
I do not agree, Failure to bill of lading that is comparable to the load niedopilnowaniem – carrier role is to take care of the goods, a bill is just a technical issue, and its exposure incidentally belongs to the sender, and not to the carrier. What is more – as I wrote – carrier several times it is not possible to ensure that the, because the place is its subcontractor, who himself is part of the consignment note.
So, with extremely unjust contracts such as the fight. see record courier regulations, are not only unfair to the customer but in some respects even unworthy of transport law. There are other silly and unnecessary provisions in the law such as. see a record of “mediation of the carriage of goods” the Law on Road Transport.
Here, we agree, that of stupidity and injustice can and must fight.
Is correct and factually fill the bill of lading is one of the above categories? By me. Nay, I still see the need for that bill was an important and basic document, evidence of the contract of carriage. It must be remembered, that the order / contract and the customer sees only the contractor (should be the sender and the carrier but intentionally did not write) a bill of lading serves as evidence (has given the facts, often differ from those set forth in the order), passport (the availability of goods), instruction sheets (instructions should be included in the bill of lading so that the driver can be read just from the letter and not the job), Information (customs, police, ITD,) – is a document in circulation – differently than the same order. Reducing the rank of the bill of lading perceive as unjustified and adverse effects, so I made a polemic.
You say in “What's more - as I said - repeatedly carrier is not possible to ensure that the, because the place is its subcontractor, who himself is part of the bill of lading.” – and you know why he can not see? Because it's all so long as the quality of, improvisation – carrier often do not know “his” subcontractors and over there is nothing – “somehow it will”. As Pan, did not want to help them in this action. I see help information and pressed the correct procedure! I still do not see any problem to the bill of lading was a correct record: name and address of the carrier.
Weakening the role of the bill of lading, calling it “technical issue” I think it is wrong and harmful.
Pardoned on – We have different opinions, it is creative. When you deal with another injustice is eager to join … Now do not.
Hello,
Pursuant to an agreement in writing to the carrier was in the 7 days from the date of delivery and invoice customers provide two letters of CMR. Upon receipt of the consignment served one, and then 18 dostrczono on fv.
In the absence of the letter and irregularities in the issuing of the recipient refused to pay fv.
On the bill of lading does not indicate the cost of transporting.
Is the recipient of the consignment can effectively refuse to pay?
The carriage took place in Denmark to Polish – and, therefore, is Article 51 transport law?
Thanks in advance for your answer.
@ magi91
But the recipient of the carriage commissioned?
Sorry, but previously stated, the facts wrong. Yes it happens to be a layman in matters of road transport and the rules governing it
Once again,.
Parties concluded a contract of carriage of goods from Denmark to Polish. Under the agreement, subject to receipt of payment for the execution was to provide invoices and two letters CMR transport Orderer (not the recipient Shipping). In addition to the written agreement, the texture and set dokumntów be provided within 7 days in pain reduction of freight 15 %.
The carrier made a contract but provided the invoice and only one letter after przwozowy 17 days after execution of the contract.
Quest carriage refused to pay because of errors in submitted documents (errors in his name on fv and the lack of stamp CMR carrier) and due to the lack of a second bill of lading. Did he have a right to?
I do not know the exact agreement, but it seems, that the employer may require the correct invoice, although the issue can be resolved just by a simple note. Is incorrect but make the payment after receipt of the second copy of the bill of lading, because such a provision is in my opinion, contrary to the essence of the contract of carriage. No stamps or CMR carrier should not be the basis for refusing to pay wages.
Hello
plug in the comments in a different order than the very essence of the content of the bill of lading. I work as an archivist in the company, which deals with the logistics and we have millions of bills of lading from a few years, zatstanawiam how long they should be kept. I tried to find any record on this topic but I found nothing. Do you gentlemen can help me in this matter?
Regards
Patricia Wielgus
Archivist
ABCData S.A.
Hello.
Sir Paul.
Could you please answer the question below( applies to Art. 5 K CMR).
Is Count No. 1 Count in particular no 22 CMR can be filled manually ( CMR self)? without the stamp and signature of the sender of the original ?, For example, the loading of the driver fills CMR , at the sender because it has no load( is far). The case concerns the export of UK such as. for CZ and SK ( kraje unijne) Do I need to include photocopying CMR f-ry export , or GM ...?
Thank you for your possible answer.
.. The shipper is not party to the contract of carriage , so it can not appear in the graph No. 1 i 22 CMR , how to get out of such situations, when the case breaks for confirmation to export VAT refund.. ( CMR attached document must therefore be properly completed and “ostęplowany” zkwestionowały not it U.Skarbowego inspection services)???
Thank you for your answer, if you find a moment…
Regards.
@ Gregory
The item. 1 CMR enough data itself – signature need not be. The position 22 should be given to the sender and signature of the shipper acting on its behalf. However, since the shipper little could be persuaded to sign up for the data of another entity, I think the state is acceptable, when the item. 22 data and signature of the shipper. However, they should be in accordance with Item. 4 sheet. I think the fact that exports due to item. 3 i 4, where the place of loading and unloading are in different countries. Of course, you can also strengthen the argument invoice, but the bill also should be considered as evidence.
@ Patricia
In my opinion waybills can be eligible for documents, that confirm the performance of certain taxable services. Therefore, I believe, that they should be back up to the time limitation of tax liabilities arising out of the transaction or five years from the end of fiscal year. Specific provisions as to bills of lading, from what I know, not.
I ask the question how the recipient should zchować consignment of goods (As for the shipment of the reagents used for the diagnosis of) when the document by the carrier przedsatwionym (unless the bill of lading) unknown what kind of, amount of delivered goods. Przewozowgo the letter was not also included in a VAT invoice. As in this case, should the recipient. Recipient on the waybill posted endorsement “no documents” and sent the information to the Sender. Is the recipient should stop the shipment delivered, whether the content should zprawdzić. Thank you in advance for your prompt reply. Regards Anne
@ Anne
The best solution would be to check the contents of the protocol in the presence of the driver package. As a matter of concern, however, rather sender – Only the recipient acknowledges receipt shipment, and the sender will have a problem with showing, specifically what it was.
Hello
Is the Customer may, in accordance with the signed contract of carriage make the payment transportable from disclosure in the consignment in the freight amount 20 CMR and the name of the carrier in the 16 /17 CMR.
Is the Customer ( Shipping ) can rely on Konwnecję CMR using such records in orders for carriers and withhold payment for carriage made.
Regards
@ Freighter
It depends on how the contract is structured, but at first glance, such a provision seems doubtful.
Records of contract:
IMPORTANT: The CMR in box 16/17 MUST BE: trucking company name
The CMR in box 20 Enter the amount of freight …………….
2. Invoice indicating the number of our orders,together with the original and confirmed 1 pc. CMR neutral stocked: in a legible date, legible signature and stamp recipients cargo, number of completed fields 16/17 and 20 in accordance with the accepted order + 1 pc. all the documents accompanying the consignment, must be issued in a month, in which the discharge occurred no later than 7 days of unloading and delivered within 10 days from the date of discharge. Otherwise, the Contractor shall pay the Employer penalty of 50% freight and invoice due date will be extended to 90 days. PAYMENT DEADLINE is counted from the date of receipt of invoice PROPERLY SET PROPERLY COMPLETED AND DOCUMENTS.
3. Conditions of carriage governed by the CMR Convention.
@ Freighter
I'd have to see the whole contract. Please contact us by email.
Hello
I have a technical pytanko
forwarding arrange transportation from address A to address B
the CMR the address discharge C and the documents address the GM unloading D
in the case of such discrepancies addresses that document is binding in the event of a dispute regarding the delay in the delivery of?
the driver went to unload by CMR but there he was sent to the address of the General Meeting which resulted in being late
thank you in advance for your explanation
I greet
I understand, answer that in a moment Mr. Paul but I allow myself to speak.
Well, the answer is art. 17 paragraph. 2 Referring to Article. 7 CMR.
A humanly: the carrier is not responsible for any delay in delivery if the cause of the injury is conduct by a person authorized and further: consignor is responsible for all costs and damages for the inaccuracy or inadequacy of data on the consignment
Beautiful thank you, Regards
@ Gagatek
I agree here with Mr. Andrzej – broadcaster quite difficult for the situation here. Overall, I think the priority is to deal, but since the list was different address, it can be assumed, that there has been a change of destination, what the sender is authorized. What a contradiction in the list of matters in my opinion, the place of unloading, rather than the recipient's address.
Hello
I am a reader of your blog for a long time, I follow with interest the changes . However, it is a matter of, which I am not able to verify and it is in this issue, ie. bill of lading and the service request: namely the so-called neutralization documents "" neutralka "
An example of such transport
Customer Company "A"
Company "A" buys merchandise from 'B' in Norway, and sells “C” in Poland.
Version # 1. CMR is discharged where "B" is the sender ; the recipient is a "C"
To Company "C" is not found out where the goods are (that she did not buy it). Company "A" has such a neutralization CMR - that is to print the second CMR where the sender is part of a different address - hiding place of receipt
Version # 2. CMR is discharged where "B" is the sender; recipient of the "A"
To company "B" did not learn where he was going to merchandise and company "C" did not know where he came from merchandise, Company "A" has such a neutralization CMR - it is to write a new CMR where such; loading was (Here are the most frequent leads to another company and delivery to "C" – nieujawienie of pickup and delivery (to commercial secrecy)
In both cases, the order from "A" to the carrier is correct or reception of "B" and the delivery of the "C" - do not go for the documents, where a change occurs.
1. What documentation should have in this case? (CMR, Order original, The order data changes).
2. Is the information to the carrier (forwarder) customer "A" in the form of a written statement containing the content of what is going to turn in documents written instruction to change the place of supply will be sufficient ?
3. Is if the sender enters the address of the carrier - will be responsible for the shipping density ?
Neutralization of documents is something that, in practice, although there is often a lack of legal norms of the issue.
Thanks in advance for your reply.
@ Emilia
They should be documents, which shows clearly, that the data entered on the bill of lading in the place of supply will not have any meaning. As a matter anyway entity B, and so it should not be entered in the CMR as the sender, because the sender, which contracts the carriage is a. The bill of lading, you could type A as the sender, and simply ignore the place of loading. The entry of the carrier at the sender does not matter – and so assumes full responsibility for the condition of the consignment, and if there are no objections to the bill of lading shall be presumed, that this state has jurisdiction.
Hello,
I have a small casus,
I need a fresh and objective look at the issue,
let often bind to the subject of previous posts,
for any answers in advance thank you very much.
Regards.
Casus:
In the request, inform the principal transport “neutralization” documents (writing a new cmr, another place of loading)
In the absence of that neutralize introduces a penalty in the form of an invoice opposite of the freight.
Is such a procedure is in accordance with the law?
@ Ag2r2
The pewno Zgodne jest z literą, ale czy z duchem? Pewnie w zależności sie od sytuacji można by Kary takiej domagać zmiarkowania.
Rzeczywiście Czy Panie Pawle można skutecznie zawrzeć Taka umowę Aby listu przewozowego DANE z nie miały znaczenia?
You say in “They should be documents, which shows clearly, DANE Ze wpisane the przewozowym liście dostarczenia nie w zakresie miejsca miały żadnego znaczenia Beda.”
Można Czyli podawać w z liście przewozowym DANE niezgodne rzeczywistością …bo tak sie w umówili zleceniu? A tylko może wpisywać niektóre nieprawdziwe DANE? Sir Paul – własnie to nazywam psuciem prawa.
A siebie od dodam – “neutralizacja dokumentów” to działania niedopuszczalne in robią to firmy, who are unable to effectively and lawfully conceal from the buyer / consignee of the goods origin (for example,. buyer then he did not buy here). This can be done according to the law and not “neutralize” I just need to think.
Carrier, who agrees to such action (neutralization), when it comes to stealing the goods and the goods to an unauthorized person – runs the very serious consequences ao insurance can forget.
@ Andrzej Sikorski
Of course, I agree, it is better, reality that data and also consider, you can resort to other methods. On the other hand, often is the de facto neutralization of lading correction to the appropriate data, because they do not know the realization of the principles of proper performance. For example,: Polish importer of goods from the carrier transport commission, provided that the imported goods directly to the buyer of Polish foreign producer and requires neutralization of documents in this way,, that the sender is indicated Polish importer, which is in fact the correct operation (usually as the sender is entered incorrectly shipper). What to type in another place of loading, it really is better to just leave it blank. The effects of the neutralization in case of theft or release of an unauthorized person a lot depends on the situation and I, it does not in any case this will result in the loss of security.
Mr. patrons, I have a question to the argument set out in paragraph. 3 “Debts owed by consignment” – “Otherwise regulated these issues in international. W myśl art. 13 paragraph. 2 CMR recipient is liable to the carrier for claims disclosed only in the consignment. No bill of lading or not placed on the duties imposed on the goods exempt the recipient from any and all liability in this regard.” How did you derived from this statement, because in my opinion the art. 13 paragraph. 2 CMSR it does not follow. Do you have a judgment of the Court of, in such a way that art interpretowałby. 13 paragraph. 2 CMR or What would you recommend publication? But taking into account the provisions of Article. 1 paragraph. 3 transport law, international transport will not apply the provisions of transport law, in which case such. to accept the shipment by the consignee – the provision of Article. 51 paragraph. 1 transport law?
What is not clear from Article. 13 paragraph. 2 CMR? Because admit, I do not understand.
For me, the art. 13 paragraph. 2 CMR results, that the recipient, that requests goods or other bill of lading must pay “the amount due on the bill of lading”. My first question is to know whether “the amount of duty resulting from the bill of lading” is identical to the concept of “duties incumbent on consignment”? Taking this literally, one could argue, that it is a duty for the goods. Do you think that in a situation in which the customer receives the goods do not have to pay przwoźnikowi “duties imposed on the goods” if they were not included in the consignment?
@ Joanna
The consignment note shall be entered only duty imposed on a consignment, but the idea behind is not the same, that the amount of the bill of lading is a narrower concept – duties imposed on the goods need not be included in the letter. I can not agree with the statement, that the concept of duty imposed on the goods or claims arising out of the bill of lading even understood literally, can be treated as payment for goods – This claim, to be borne by the consignment, rather than its purchase price.
And as for questions – if the duty is not clear in the bill of lading, recipient is not required to pay anything to the carrier, but this applies only to international transport. In this issue of domestic transport is governed by Article. 51 pr. wire. and does not require the recipient to odprwiedzialności entry in the bill of lading. I could not be applied to international transport regulations based on Article. 1 paragraph. 3 pr. wire., CMR because this issue is governed by Article. 13 paragraph. 2. Adjusts the contrast, but if regulates, the transportation law does not apply. This was confirmed in one of the judgments of the Court of Appeal in Poznan.
Thank you for the explanation. I found also the judgment of the Court of Appeal in Poznan on which you write – Case 13.09.2012 r., ref. Akt I ACA 599/12
@ Joanna
Exactly the. In this case, it is indeed made an appeal in cassation, so probably taken a decision in the Supreme Court. I assume, that upholds verdict, especially as well as his latest book by Krzysztof Wesolowski – the largest specialist CMR in the country – expressed the same view.
Hello, I wanted to ask for clarification:
@ Gregory
The item. 1 CMR enough data itself - not to be signed. The position 22 should be given to the sender and signature of the shipper acting on its behalf. However, since the shipper little could be persuaded to sign up for the data of another entity, I think the state is acceptable, when the item. 22 data and signature of the shipper. However, they should be in accordance with Item. 4 sheet. I think the fact that exports due to item. 3 i 4, where the place of loading and unloading are in different countries. Of course, you can also strengthen the argument invoice, but the bill also should be considered as evidence.
So in the 1 may be different than the data 22? How to explain, and when we got here and enter the SENDER. And the question 2, As for VAT. If we are dealing with the receipt of the FCA by the A (np. the FR) from company B ( the UK) that's if I'm not mistaken it as the shipper say, fill waybill typing in the box 1 i 22 RECIPIENT INFORMATION, which in fact is the sender, załudnku place in the 4 the UK, while there is no information about the, that company B is SELLER (As for the name of the entity to deduct VAT) . In such a situation, CMR has a value of any applicable 0% VAT rate? Does the 22 You can insert an additional stamp of B with the reference type: Seller / Sellers etc? Do something just for the U.S.??
Ladies and Gentlemen,
I go back to the sender transmission ” Original letter CMR” as is sometimes the case in the transport orders. I wonder if shipping may require the carrier to the original as Article. 5 CMR is, that the carrier shall retain the original. So transportable conditioning payment of the original provision should be invalid under Article 41. It would be so much convenient for transport, that allowed to send a copy of the letter by email, which, combined with the ability to send invoices thus significantly accelerate workflow.
In this context, it is bizarre and unacceptable demand from the carrier 2 CMR original letter as art. 5 states that the carrier is only 1 original.
@ AnnaKm
The data in the field 1 i 22 should be equal, so that the most common to the field 22 nothing is no longer part, and only sticks stamp. Inevitably, if the sender is not the same shipper, There will stamp the shipper, which does not have stamps sender. Therefore, I see no problem in this, to the field 22 a stamp shippers. Seller's can also be additionally appear in the 3, or place of receipt of goods. So if we have a VAT invoice and bill of lading, where the place of loading is the place abroad, there should be no problem with VAT.
@ Kamil Pluta
In my opinion, art. 5 relates to the conduct of the bill of lading at the time of performing an. But does not prevent the, to the carrier at the end of the carriage passed the original bill of lading a contractor. As for the obligation to deliver and the original bills of lading, in many cases, in my opinion, these clauses are ineffective and contrary to the essence of the contract of carriage, if you make the payment of compensation from the delivery of the originals in case, when the carriage is undisputed. The request two originals can be justified only in the case, the carrier actually receives for himself two original documents, which rarely occurs. The issue of a bill of lading corresponding to the consignor and the carrier does not.
1. In the 22 to be the signature of the sender and not the data (name and address)! The sender may authorize the shipper or forwarder (Who wants to) to sign a letter. The print is written “Signature and stamp” but this joyful work of IMU and not the law. The Convention is written, that the signature stamp can be replaced or if the right to print the country of origin so permits – that is, as it allows REPLACES signature stamp rather than two mushrooms in the borscht.
2. There is no justification for the request to join the original invoice letter CMR. Evidence, carrier that performed the carriage of the carrier's invoice for transportation. However, if the customer insists I do not know how else to demonstrate intra-Community supply (and it can be demonstrated without the return of the letter) to arrange a return of a certified copy rather than the original – Three originals and clearly stated that for someone. The return of the certified document to the carrier must pay – see pricing Schenker, DHL, TNT is the amount of 10 do 18 zł. This freight transportation and for fun with papers supplement. How to pay it will consider whether the client actually needs these papers.
Is the bill of lading must be signed by the recipient and must be legible stamp nailed. Is it possible that require the carrier?
@ Kaja
There is no requirement that regard, but the carrier must demonstrate, that delivered the goods recipient. In the absence of a clear signature and stamp recipients may have a problem with it. Also do not preclude, to settle this issue in the contract of carriage.
I have this issue is governed by the order in such a way that the delivery of signed delivery documents clearly is a condition of payment for transport.
The carrier did not provide me the documents and issued the invoice I sent the information that will accept an invoice if I get documents(calling to fulfill the obligation) . The carrier gave me to court I threw my failure to execute the contract. The first instance court found that the record of my order is not valid under Article 58 kc. because : “the obligation to attach documents signed as instructed defendant to invoice … can certainly be regarded as difficult to implement …, carrier driver does not have any legal options, to force the consignee placed on consignment legible signature of the recipient”! The Court of Appeal in Katowice did not share this position, and states that such a provision is incompatible with “rules of social interaction” within the meaning of Article 5 kc and the appeal dismissed.
At the moment, just want to sign the insurance and the insurer requires me to require that the subcontractors and now I do not know how this issue in order to regulate.
@ Kaja
Honestly, I'm amazed by the rulings of the courts. I do not know because, which is difficult to achieve in such a requirement. As a matter yet with an illegible signature and the lack of stamps in general there is no evidence, that the order was executed. I see no contradiction with the law or the rules of social interaction. Otherwise it would be the issue of compliance with the nature of relationship, but it depends on the specific provision of the order. For if the same performance of an obligation is not disputed, suspension of payments could not be justified – I do not know if that was in this situation. But see no problem in contractual penalties for missing documents, especially if their insurance needs, and often the sender.
It is encouraging, that not only amazes me the logic of these courts.
Regarding the nature of the conflict with respect to the end of it I do not understand. Because I urge you to transport with the reference document is not a separate element – transport + confirmation document. So by my obligation is.
In contrast, according to the court are two separate things as if transportation could be done without documents. The court found, that transport took place on the grounds that there was no complaint about the loss of the goods, which according to me is not an argument because the client has specified period of time for filing such a complaint and it may be after the date on which I have to pay a smuggler.
@ Kaja
Much depends on the circumstances of the case. If the execution of transport is disputed, the issue of documents will be critical, because they prove the liability. However, if the parties to the dispute does not, that the transport was made, and in addition the principal itself has been paid for the carriage, demand documents from the subcontractor is not so clear.
Well judgments are justified. The proof of service is an invoice carrier (as proof of repair shoes is employed shoemaker). If, however,, for various reasons, we want to make such a carrier provided no other evidence of delivery should be an additional service to pay (see Schenker, TNT, others – fee for the return of documents) and if they do not make an appointment for delivery of a penalty. Will
Carriage is one thing, other documents back. Performed the carriage is to be paid.
@ Andrzej Sikorski
I agree, that the payment is for the carriage and not the delivery of documents. However, I would not go so far, proof that the liability of the carrier invoice is. After all, it only proves that, carrier that issued it, and be able to do both in a situation, when the carriage is performed properly and when he did not. Therefore, demand the bill of lading as proof of performance of the obligation in my opinion is justified. However, if the carrier is unable to prove other evidence, that the carriage is performed, expectation of payment is justified. They can, however, situations occur, when no documents will be risked failure to pay principal on the part of the client, So it is difficult for the general principle. Each case must be considered separately.
Mr. patrons, with previous answers on. conclude transport document archiving, and the storage period the carrier is 5 years. I'm interested in the casus- indicates whether the law in any way, whether the documents are to be stored in the original, or electronic form is permitted?
Does the law defines, that the carrier should collect delivery documents in paper form and have them share them on the written request of the service provider? Whether such arrangements (the form and retention period) are regulated by only a record of the agreement between the carrier and service provider?
Thanks in advance for your answer
Regards
Mr. Andrew, well I determine a separate price for a separate transport documents. The carrier sends documents not want to pay for transportation. Adopt an invoice for transport as proof of its execution, pay the carrier, then I get a complaint from a customer (transport has not been made or is improperly executed) In such a situation? In addition to trade throughout the invoices appear wz, evidence of publication and the like are not sufficient same invoice. I do not have another fully credible possibility to determine whether the shipment was properly made than by assessing the transport documents. I agree that the carrier can otherwise prove that the service, but not the same invoice. In my case there were other documents, and I also questioned the very fact of which the transport.
Pani Kaju – rules and regulations that govern the behavior of honest traders. The carrier is not entitled to issue an invoice for the carriage, if the carriage is not done. Conversely, if it is unfair not only to issue an invoice but also produce an waybill and what's the problem?
If you questioned the very fact that I understand the transport takes, that you also filed a complaint on the loss of the goods? So? Is the loss of the goods was a lawsuit?
It may not be so, I was not paying for carriage because you do not know whether the carriage performed while not you worried about the product itself … It comes, that you know, that the goods arrived, and therefore there is no complaint in this matter.
Mrs. Kajo – the easiest way is to do as I wrote. Were transported and the invoice is paid. For this set the price for the return of the documents, and the penalty for lack of return. It's a simple solution and acceptable to both parties – I think so.
Mr. Andrew. the problem boils down to is that I really do not know that this stuff arrived and relying on the knowledge the invoice is for me naive. Podrobienie cmr , data and stamp recipients is much more difficult and more dangerous than the invoice for transport unenforced.
As I wrote before the customer has the right to lodge a complaint to the 60 days – I decide on the payment to the carrier must typically take before.
Yes, I can toll the audience and require statements – Can you imagine the effect. Moreover, a disproportionate amount of work to be submitted by the rider to sign on delivery cmr.
The breakdown of transport services + documents gives the carrier the opportunity to meet with one without the other, on which I doubt that any client agreed, and it is not a matter of additional payment, Only the fact that these documents are needed.
In this case, do not I submitted a complaint because she did not get it from the customer, which in my opinion is not at all clear that the goods arrived (scenarios there may be different) I did not receive the payment for the transportation.
The solution that you propose, yes it would be for carriers and for me very beneficial but I have my doubts as to the possibility of its application.
By virtue of the contract of carriage, you can file a complaint within 12 months (why do you write 60 days?). Just as you pay the carrier for the carriage so the client should you pay – on the basis of invoices. Return of the document in the same way.
Pani Kaju – I usually cooperate with well-known carriers themselves (and that you also recommend) because if I did not trust them in life would not trust them with customer goods. And if I trust (because I know and I base) I propose a solution that is acceptable.
@ Wioleta
There is no obligation to make the documents of the service provider, a way to archive is free, if only allowed to show, that the action took place.
Lord Counselor;
Please help in a dispute with a client. S customer service unit providing objective of complaints posted on the waybill, in the content “2 tablets”. Meanwhile, the consignment was only one. Shipping Weight also indicates. The customer, however, insists on this, asking us why we have not written down the damage protocol for non-compliance. The consignment was not served with any other document, to certify the number of devices as 2. So please reply if you made a mistake when writing the protocol and not the information described in the content oblige the recipient to verify the, that is, whether this information constitutes any legal basis.
Thank you
Arek @
In accordance with the provisions of, if the carrier accepts the shipment without reservation presumed to, that the shipment was in accordance with the provision in the bill of lading. This presumption can be refuted, hence if the weight of the consignment can be determined, that she could not contain two tablets, it is reasonable to position, that sent only one tablet.
Although the question was to Mr. Attorney …
Transport Law:
Art. 66.
1. Carrier is not responsible for the loss of the consignment, the mass and number of units has not checked the registration of, if you provide it without a trace of violation, (…), unless the claimant proves, that the damage at the time of acceptance of your shipment until it is.
Hello.
Here was quoted sentence SA Poznań, and what do you think of the following decision
http://orzeczenia.ms.gov.pl/content/I$0020ACa$0020332$002f13$0020/154000000000503_I_ACa_000332_2013_Uz_2013-11-22_001
Thank you for the arch-interesting ruling. In Poland there is no principle of precedent and it does not mean, in other courts that will be the same but something is. In my judgment is wrong … a pity to talk – but that's all. On the other hand, even a well-, carrier who performed the carriage should be a beneficiary of the payment of carriage in the end is the recipient of the goods … .
@ adamlukass@o2.pl
Thank you very much for sending the decision. I am known for a long time. In my opinion it is wrong and is based on a misunderstanding of the concept of court “the second copy of the bill of lading”. The court in that case held, że art. 13 paragraph. 1 CMR refers to the situation, in addition to the adoption of the original bill of lading had demanded payment of the second copy of the letter, which of course is very rare. The court in its interpretation of the provision does not, however, drew attention to the wording of Article. 5 paragraph. 1 CMR, where we talk about the individual copies of the bill of lading: the first is the recipient, the second shall accompany the consignment, and the third is the carrier. W art. 13 paragraph. 1 CMR, this is the customer's request to issue a copy of the bill of lading accompanying the consignment, as is the practice in almost any situation. The norm is thus, że art. 13 paragraph. 1 CMR is applicable, and thus the Convention governs the liability of the recipient for carriage. The same view is expressed in its publications Krzysztof Wesolowski, as well as in practice, the entire German legal doctrine of law in a number of comments and case law.
By the way, it is worth noting, accept the assertion that, że art. 51 paragraph. 1 pr. wire. also applies to international transport would lead to a rather absurd conclusion, that if such. recipient in Spain was unlucky to pick up the goods from the carrier who drives Polish goods from Polish, liable for a carriage, Yet despite the fact that there is even a hint of a chance to know the stage of acceptance, that in Poland there is such regulation.
@ Andrzej Sikorski
I do not agree with the statement, that the recipient is liable for carriage, because he is the beneficiary of the carriage. Usually because the recipient has to pay the price for carriage of goods. Why would bear the responsibility for this, badly that the carrier selects its partners? If unpaid carriage is entered in the bill of lading, the situation is simple – the recipient is aware of the risk, and may refuse to accept a bill of lading, otherwise, should not bear responsibility.
Is not there are also “the problem” incorrect translation?
In the English version uses the word “shown” what should be explained except as “shown” the consignment, and in the Polish version is used the word “resulting”. Resulting not mean the entered cmr.
By the way I want to ask one more question – namely Article. 23 paragraph 1 of the Convention. I do not want to describe the case in detail because it is at the stage of an exchange of letters, that can end up in court. The provision is a jus cogens? But can be considered, that the recipient is not pregnant at such a far-reaching act as an obligation to seek care damaged things in the country of origin, when it depends on time and makes repairs on the basis of valuable “National”? I ask with the case law concerning the launching of oc claims handling vehicles.
@ adam
This is not a problem of incorrect translation (it corresponds to the French version), but misinterpretation. There is a difference in English and French: in the first question of the “charges shown to be due on the consignment note” and in the second of “the amount of receivables from the consignment note”. Since both texts are authentic, Articles should be used. 33 paragraph. 4 Vienna Convention on the Law of Treaties constituting, that in the, the comparison of the authentic texts discloses a difference of meaning, importance should be adopted, which, taking into account the object and purpose of the treaty best reconciles the two texts. In this case, the best reconciles the two texts adoption, that the claim must show the consignment, as a state within the scope of both terms in two different languages.
Co do art. 23 paragraph. 1 CMR – provision as the vast majority of the Convention is a jus cogens (have in principle only Articles. 37 i 38). I do not think, it was necessary to search for things in a different country. Z art. 25 paragraph. 1 (because this deals with the damage) is a broader problem – literally taught it requires a reduction in the value of things to explore, and not the cost of its repair. These values do not need to be the same. Personally, I support the position of Dorothy Ambrożuk, that in this respect should be a presumption of fact, that the reduction in value of the item is equal to the cost of repair, and possibly other party can demonstrate, that is not the case.
Regarding 23 section 1.
Recipient thing restored to its original state using parts purchased “close” and paid by the seller of the desired portion of the price – So there is no reduction in the value of the goods. Art. 25 paragraph. 1 in conjunction. of 23 paragraph. 1 i 2 indicate the price applicable at the place of receipt of goods for carriage. The problem is a drastic difference in the price we paid and the recipient of the place where the price determined in accordance with Article. 23. Currently, the recipient requests from the carrier to pay the price that he paid a price that is not a part of the country is loading.
@ adam
I believe we should determine what would be the total cost of repairs to retrive parts loading and on-site and select the value, which is lower.
Thank you for your help.
In the event of a dispute I raised, convention that sets specific rules for determining the value of the damage.
Hello,
Today at my shipping company became not nice situation…
The carrier called the shipper with information, that stands in the place of unloading ,but the staff did not want to unload the goods.
Warehouse workers referred to the Health and Safety Magazine,that they can not fall on the trailer.
The driver did not want to put the product of semi-trailers , demanded an additional fee for this ,,service” .
The question is whether there is in the article ,that the driver should issue a product to the edge of the semi-trailer??
Because unless ocp includes work on the trailer driver,
Thanks in advance for posting this situation,
I greet
@ Kamil-sped
Carrier has no obligation to take any action related to unloading it on a trailer or, or outside, unless otherwise stated in the contract of carriage. The only thing you should do, It started off by itself protect the goods. In this case, so the carrier has the right to refuse to issue goods from semi.
Thank you for your help
Hello!
I sent a parcel for delivery of the 475 zł,However, the bill of lading you operating at the point of shipping packages rozczytała not sum correctly and inscribed 47zł.
Therefore, the client paid only 47zł, after a call to the customer ,He promised in August that the rest of the missing amount dopłaci,However, after 2 weeks,did not complete the payment, after a phone call from the lady who works at this point shipments due to the fact that the client does not intend to pay the rest amount zaplłacił because the bill of lading.
I would add ,the price was determined by telephone and the client knows the cost is not 47zł 475zł.
In the archives left by Allegro for me also shows the package cost 475zł. The customer did not click Options ”buy it now” only shipping was agreed by phone.
Please let me know , it looks like from the point of law? Shipping Point packages or can make a mistake and is there any chance to return the missing amount , the original bill of lading spelled out by me is the amount of 475zł , but in this printed by Parcel Shipping Point appears sum 47zł.
Do I have any chance to recover money?
Thank you, Sandra
@ Sandra
In these circumstances, payment can be sought from both the buyer and the carrier.
Hello,
The carrier provided to Warsaw damaged goods transported from France. One palette has been set to the second. They were not in any way attached either to each other or to the trailer. Goods on the pallet weighed down 50 kg per pallet and above 500 causing wrinkling of the goods on the lower pallet. Upon delivery, damage report has been prepared in Polish, which was signed by the Driver. Information about the failure were not observed on any other document besides protocol. The carrier refuses to accept a complaint alleging, CMR that is the only important document in international transport and CMR if there is no annotation is a carrier can not be held responsible for damage to the shipment. Is he right? I can not find the rules clearly establishes or negative. If the carrier is not right, please indicate the document and paragraph which can be relied on in correspondence with him.
thank you,
I greet,
Cuba
The carrier is not right. There is no obligation to make an entry overt damage to the consignment note – Let the claimant indicates recipe. Is the principle of, This proves that the legal consequences that originates – see Article 6 k.c.
While Article. 30 CMR “says”, that overt damage should be reported upon receipt of the goods and reported as evidenced by the protocol signed by the carrier and consignee.
The case is much broader – because the absence of such notification will only “presumption”, that the product was in good condition …itd.
In sum: carrier, at least in this aspect,, not right.
In contrast, if the carrier is at all responsible for this damage specifically it's not such a foregone conclusion. If the cause of the injury is incorrect loading and distribution of goods on a vehicle made by the sender to the carrier release from liability under Article. 17 section 4
The situation is not so simple – must first establish the facts and then file a complaint or to the carrier (lack of attention in the consignment will not save it) or to the sender, that have caused injury to properly arranging merchandise (if the sender did not eg. same carrier)>
Hello.
Is the entry on the document CMR for damaged cargo can be treated as a statement of claim? And I have another question. Is the information to be sent via e-mail cargo damage corresponds to writing referred to in the CMR?
Thank you in advance and best regards
Marcin
A little run out of line because the portal and questions are to p. Paul – Please treat my response as “voice in the debate”.
1. The entry in the list of CMR is not in any case complaint – is at most submitting “reservations” to the number, quality, etc.. goods.
A complaint is a call to pay the calculated compensation for damage caused – so in simple.
Reservations must be made: overt damage – with the delivery of the goods, undisclosed injury – in writing within 7 days of the goods. In contrast, the complaint may be submitted for 12 months after the release of the goods.
What does it mean in writing … in different countries is treated differently in Poland is regulated by this Article. 78 k.c:
§ 1. To comply with the written form of legal action is sufficient submit personal signature on the document covering the content of the statement will. Sufficient to conclude an agreement covering the exchange of documents the contents of wills, each of which is signed by one party, or documents, each of which includes the contents of the declaration of will by either party and it is signed.
§ 2. Declaration of will made in electronic form bearing a secure electronic signature verified by a valid qualified certificate is equivalent to a declaration of intention filed in writing.
In sum, Practical advice because there are different opinions and cases (np. handwritten letter scanned and then what? Fax with handwritten? Lawyers interpret it differently) – I advise complaint post with acknowledgment of receipt or purchase an electronic signature (250 zł – pay off).
Thank you for this voice in the discussion.
However, the matter is more complex – transport as it happens ;-). Unfortunately, I have a difficult situation due to the timing because we are talking now about the past. Now just looking arguments in defense of the case before the limitation period because it received a letter from the contracting carrier, I reject the claim that because of this reason and for damage in transport was responsible carrier.
I just question whether the complaint is a call to compensation paid. Just because the application only and the scope of the damage is not sufficient? This was done promptly after the completion of transport by e-mail. Because the date of dispatch of the damage is not known to me was the amount of damage. I received the cost of only one year after the events of my client and they switched to another subcontractor. This is not charged to the carrier who is responsible for the damage complained only limitation with respect to my invoice. I have the only entry in the document sent by e-mail cmr and protocol of the damage. The customer was German so nobody fatyguje write letters and send them by mail to the Polish. I got an email, actual damage, deduction on payment made and I now boxes of successive carriers – because it does not match the address written
As for the complaint
You can try but you'd have to see a lawyer documents “in the real world” and evaluates whether there is a chance – Please've been here for p. Paul, He will do well.
Na marginesie – You only have a claim to the contracting carrier (the subcontractor does not have any contract with you).
There are many more aspects: np. if this was “gross negligence” This limitation is 3 years … . And in the future, please stipulate in their contracts “non-reciprocal money being” a German nor anyone else did not deduct the debts themselves.
@ Martin
Andrzej That is done entirely me, and I no longer have to write about 🙂 subscribes to all, what he wrote, and thank you for your part in the discussion and kind words.
If there is a protocol damage report, treated it as to raise objections as to the state of cargo. If signed it driver, is assumed, that its contents can not be disproven. But this is not a complaint, since this is a separate document formulates a claim victim, The damage protocol while only states facts.
As for the writing can be different directions – some courts consider, that the written form of the CMR Convention is an autonomous and does not need to use the Polish regulations on this form, others are more stringent. In your case, just e-mail notification of damage could be interpreted as a claim. In the jurisprudence of the foreign judgment can be found, that the complaint does not have to contain even the exact amount of the request, any clearly states, that the victim seeks redress.
I do not know exactly the case, but in your situation, if transport was also commissioned Mr., additionally you can think of, whether there is evidence for the use of successive carrier institution. Some authors and SN have some judgment in this regard strongly liberal opinion. In this case, the limitation period would run from the damages to the customer.
Hello and thank you very much for your interest and answer.
Just mention, am examining the issues of limitation in the context of the law of lading and possibly because transport Finals held in Poland. I see here only 2 capabilities. As you wrote -termin 6 months from the payment of damages -czyli (in this case, the compensation) or reference to the submission of objections (protocol – This print is from a system with drawings and photographs of the damage to the caption but I'm not sure whether it is the signature of the signatory carrier or driver) . Only the latter question essential – Is raise objections interrupt the limitation?
Gentlemen thank you very much for your help
@ Martin
The lodging of objections does not interrupt the limitation period, and the only complaint bringing it freezes for up to 3 months.
Hello,
In the article I read, Broadcaster is that the Principal. However, practice shows, that if the Principal shall commission an overseas transport is not present when loading so it can not make a signature in the box 22 CMR (signature and stamp of Broadcasters).
Practice shows, CMR fills the letter or the driver during loading or shipper, and the sender during this period is located in Poland.
Consequently, at the settlement of claims following some understatement because CMR bears the signature of Shippers and not Broadcasters, GTC and talk about duly completed CMR list.
@ Gregory
The consignment note shall be signed by the shipper, but it is assumed, it works in this case the name of the sender.
Hello,
which in the case when the product is sold to the customer A.
Recipient A sells goods directly to your customer call him
recipient B.
The broadcaster has data adrsowe obydwuch obdiorców.
What should be properly filled CMR?
Which the recipient powinen figure in the field 2?
@ Gretel
If the sender at the time of filling the bill of lading knows, that the goods are to be delivered to the B's and this is the ultimate recipient. that this data should be entered in the consignment note.
Seller and Buyer is a party to the contract of sale and the consignor and the carrier is a party to the contract of carriage. There is another place of receipt of goods to be transported (commonly referred to as a place of loading) and a place for his release (commonly referred to as the place of unloading). “Recipient” not a party to the contract of carriage but is entitled eg. to submit a complaint. Not to be confused with the Customer unloading – but it may not necessarily be the same place and person.
The sender knows exactly where and who to send the goods. The sender may be a buyer then gives instructions on how to fill the bill of lading.
If Gesti transport is on the side of the Seller, it sends out where to send accordance with the contract of sale – in the contract should be a clause where to send the goods because setting the price he had to know how much added to the price of goods for transport costs.
Hello,
thank you for this wonderful activity, I sincerely admire.
Can I ask you to provide me email updates for the insurance company, which should sign a liability of the carrier or forwarder.
Subject to the article suggests – about what should be sought clauses in contracts with insurers.
Hello,
thank you for this wonderful activity, I sincerely admire.
Can I ask you to provide me email updates for the insurance company, which should sign a liability of the carrier or forwarder.
about what should be sought clauses in contracts with insurers? – interesting topic
Good morning
Mrs. Aneto,
to be honest it's not a matter of an insurance broker and it really, which you arrange such insurance (based on their experience, knowledge, Operating losses).
Respecting, This blog that Mr. Paul – I will not be practiced samoreklamy.
Regards,
@ Anna Jastrzębska
Mr. James is right – counts more than an insurance broker, because it is able to offer more favorable conditions than is apparent from the T & Cs. Insurance Companies will surely be 🙂
Always great interest I read the Lord entries, as much help in organizing knowledge on international transport, and now curious to me polemic with Mr. A.Sikorskim (I thank him for the interesting lectures) about the importance of the bill of lading. I'm trying to figure out the problem of liability of the carrier in case, when he received a commission from the company N importation for her goods from abroad with Business With (ie the sender was to be also the recipient), and a bill of lading issued by the shipper With (specifying the CMR as a broadcaster) and pointed at it another destination – And. The shipper from the carrier delivered the goods after checking the registration number of the vehicle. The carrier did not pay attention to the entry in the CMR and performs carrier pursuant to the order, releasing goods company N, or his client at the agreed place (magazine carrier). The carrier could have imagined, that the product after the unloading of the means of transport N will eventually Y., and the differences between order and CMR are fairly common, but further transport was not covered by his order. Principal N confirmed the receipt of the goods at CMR and … Then comes the issue. With the shipper said after a few days, that the goods did not reach the recipient Y, which he has inscribed in the CMR and submitting a complaint to the carrier stated, he did not know the company N, and never with her not traded. At the N found, that the person, which contacted by telephone and personally carrier, and signed a transport order on company letterhead and its seal of N, it does not know (mobile phone, of course, that person no longer receives), while the driver data N and the accompanying person, who received the goods and confirmed that the seal N, the carrier does not know. Actual N confirmed, he never bought anything from Z. The whole thing looks so “scam”; What in this situation can expect to carrier? Is Z can claim compensation from, relying on entry to the CMR another recipient than resulted from job? What impact will be possible invalidity of the contract of carriage on the situation of this carrier?
I realize, that the case is complicated and probably would require rent a reliable lawyer, but for many carriers can be valuable general knowledge or – despite the lack of a formal requirement – not to pay the shipper from the carrier due to the fact, that will be delivered to another recipient than, which he has inscribed in the CMR, may give rise to liability for damages carrier. Thank you for any hint, and in particular for such, which will avoid in the future become victims of scammers. To, Mr. Sikorski writes about sticking to the strict rules, It is undoubtedly right, but life is life… Lord knows yet.
Regards.
@ Korespondent
Sprawa rzeczywiście jest kontrowersyjna i zależy od interpretacji pojęcia przewozów sukcesywnych. Według jednej koncepcji sam fakt przejęcia przesyłki i listu przewozowego powoduje przystąpienie do umowy przewozu na warunkach określonych w liście przewozowym. W takim wypadku należałoby uznać, że przewoźnik w tej sytuacji przystąpił do umowy z załadowcą i powinien był dostarczyć przesyłkę do rzeczywistego odbiorcy. To jednak niekoniecznie musi oznaczać odpowiedzialność za utratę przesyłki. I think because, że w tym wypadku firma N musiała w jakiś sposób otrzymać zlecenie na przewóz. Kto bowiem przekazałby załadowcy dane przewoźnika i numer rejestracyjny? Jeśli zatem firma N, była jakoś oficjalnie zaangażowana w transport, to jeśli dostarczono jej towar, nie można przewoźnikowi postawić zarzutu wydania towaru osobie nieuprawnionej.
Dodatkowo inna koncepcja stanowi, że o przewozie sukcesywnym może być mowa wyłącznie w sytuacji, gdy od samego początku zaangażowanych jest kilku przewoźników, co w praktyce się nie zdarza. W świetle tej koncepcji nie mamy tu przewozu sukcesywnego, a tym samym przewoźnik był zobowiązany do przewiezienia przesyłki w miejsce określone w umowie przewozu, a nie w liście przewozowym.
It looks like, że ktoś podszył się zarówno pod rzeczywiście istniejącą firmę N (nadawca i odbiorca), jak i pod firmę Y (odbiorcę wpisanego przez załadowcę do CMR), zamawiając (z odroczoną płatnością) u załadowcy Z towar jako Y i podając załadowcy numer samochodu i przewoźnika. Przewoźnik wykonał przewóz zgodnie z umową przewozu, tyle że nie była ona zawarta przez przedstawiciela rzeczywistej firmy N lecz przez oszusta.
Czy to coś zmienia w konkluzji, że przewoźnik był zobowiązany przewieźć przesyłkę do miejsca z umowy przewozu a nie z CMR? Oczywiście o przewozie sukcesywnym nie ma w tym przypadku mowy.
Dziękuję za zaangażowanie. Regards
Między bajki należy włożyć opowieść, że kierowca “not seen”, że miejsce przeznaczenia przesyłki jest inne niż w zleceniu – to po pierwsze.
Sugerujecie panowie, że przewoźnik może bezkarnie podpisać na załadunku list przewozowy na którym wskazany jest odbiorca i miejsce rozładunku a potem jechać w inne miejsce?
Kompletnie nie zgadzam się z tym poglądem – odsyłam do art.12.ust 5a:
5. Exercise of right of disposal shall be subject to the following conditions :
a. sender, albo w przypadku przewidzianym w ustępie 3 of this article, who wishes to exercise that right, the first copy of the bill of lading, which should be included in new instructions to the carrier, , and indemnify the carrier against all expenses and losses, involved with the execution of these instructions;
Czyli żeby zmienić miejsce załadunku należy mieć list przewozowy z miejsca załadunku z naniesionymi zmianami!!!
W prawie przewozowym, które stosujemy do przewozów międzynarodowych o ile umowa międzynarodowa nie stanowi inaczej:
Art. 47.
1. (deleted).
2. Person, which gives the carrier the shipment for carriage, considered to be authorized by the sender to perform all activities related to the contract of carriage
Co oznacza, that the person, która wydaje towar była uprawniona do wskazania odbiorcy i miejsca rozładunku i tego obowiązany jest trzymać się przewoźnik. Jak zmieniają miejsce rozładunku trzeba mieć pierwszy egzemplarz z naniesionymi zmianami – i nie ma zmiłuj się.
Inaczej przedstawiacie panowie patent na praktycznie bezkarną kradzież towaru.
Sprawa jest bardzo ciekawa i wymaga z pewnością głębszej analizy ale w skrócie tak to właśnie wygląda – inaczej “pewność obrotu gospodarczego” byłaby fikcją. Wg mnie przewoźnik powinien zapłacić za zaginiony towar.
A czy art.47 ust.2 Konwencji, który Pan cytuje, nie należy interpretować tak, że załadowca upoważniony jest tylko do wykonywania czynności faktycznych związanych z umową przewozu, a nie do zmiany treści umowy przewozu zawartej pomiędzy nadawcą (wskazującym siebie jako odbiorcę) i przewoźnikiem?
…nie bardzo zrozumiałem zdanie które pan napisał.
Generalnie nadawca uprawniony jest do “wszelkich czynności związanych z zawarciem umowy przewozu” a nie tylko jak pan pisze “faktycznych”, także do zmiany miejsca rozładunku czy wręcz odbiorcy – przecież do tego wystarczą zmiany właśnie na liście przewozowym (art.12).
Anyway, nie może być takiej sytuacji, że przewoźnik kwituje w miejscu wysyłki odbiór towaru na podstawie listu przewozowego, który ma spełniać role: dowodową, passport, information, instrukcyjną a potem robi faktycznie kompletnie co innego niż tam jest zapisane i nikogo o tym nie informuje a powinien (znowu art.12 Konwencji CMR)
Please keep in mind, że list przewozowy może być także ważnym dokumentem do płatności w akredytywie – jeżeli postanowimy, że przewoźnik jest związany wyłącznie zleceniem i może pokwitować list przewozowy z kompletnie innymi danymi bez żadnej odpowiedzialności to dochodzimy do absurdu.
…a co gdy towar w ciągu 30 dni nie dotrze do odbiorcy i odbiorca w imieniu własnym złoży reklamację z tytułu zaginięcia towaru? Przecież nadawca przesyła odbiorcy list przewozowy z miejsca nadania na dowód, że towar wysłał i wykonał dostawę np. przy warunkach sprzedaży CPT.
@ korespondent i Andrzej Sikorski
Po pierwsze ja bym miał poważne wątpliwości, whether Article. 47 pr. wire. ma zastosowanie w przewozach międzynarodowych. Po drugie wygląda na to, że w tym wypadku załadowca nie miał jakichkolwiek uprawnień wobec przewoźnika, gdyż na żadnym etapie nie był nadawcą, skoro nie zlecał żadnego przewozu. Jego rola ograniczała się zatem wyłącznie do załadunku, a przewoźnik nie miał obowiązku stosować się do jego instrukcji zawartych w liście przewozowym.
Nawet jednak gdyby przyjąć, że załadowca miał prawo działając w imieniu nadawcy zmienić pierwotne miejsce dostawy, to i tak – jeśli nie zlecał żadnego przewozu – nie ma żadnych roszczeń wobec przewoźnika, gdyż nie jest ani nadawcą, or recipient.
@ Andrzej Sikorski
Swoją drogą reprezentowałem pozwanego w identycznej sprawie. Powód zlecił przewóz firmie X z miejscowości pod Poznaniem do Małopolski, firma X zleciła firmie Y przewóz z miejsca załadunku do Poznania. Firma Y wykonała zlecenie zgodnie z umową, a nawet skontaktowała się z firmą X, dlaczego jest inna miejscowość na liście przewozowym. Firma X poinformowała, że w Poznaniu ma być przeładunek. Towar dojechał do Poznania, a firma X okazała się oszustem i zniknęła z towarem. Powód wystąpił przeciwko firmie Y o zapłatę. Sąd Apelacyjny w Poznaniu nie miał wątpliwości, że powód nie ma jakichkolwiek roszczeń wobec firmy Y, bo nie ma tu jakiegokolwiek stosunku prawnego, a nadto firma Y prawidłowo wykonała swoją umowę.
Sir Paul – nie pierwszy i pewnie nie ostatni kontrowersyjny wyrok sądu …although … trzeba by popatrzeć w dokumenty. Zlecenie było dla firmy X i jeżeli firma X była w liście przewozowym a nie Y …to ten wyrok ma pewne uzasadnienie…wtedy Y jest podwykonawcą a osoba uprawniona z tytułu umowy przewozu nie ma roszczeń do podwykonawcy (And) tylko do przewoźnika (X) tylko to zupełnie inna sytuacja niż ta o której piszemy.
Konwencja CMR nie reguluje wszystkich przypadków w przewozie drogowym towarów a art. 1 paragraph 3 Transport law “This Act applies to international transport, If an international agreement provides otherwise” – tak więc art.47 PrP ma tu zastosowanie bo nie ma w CMR odniesienia do takiej sytuacji.
Na koniec dodam (obiecuję że nie będzie już wpisów na ten temat):
The rule is, że przewoźnik międzynarodowy ma obowiązek wydać przyjętą do przewozu przesyłkę osobie wskazanej w liście przewozowym. List przewozowy pełni tu funkcję legitymacyjna, tj. określa kto jest uprawniony (legitymowany) do odbioru przewożonego towaru.
W praktyce istotne jest to że dotyczy to także sytuacji, gdy przewóz wykonywany jest
w ramach podwykonawstwa przewozu, tj, wówczas gdy przewoźnik, który zawarł umowę przewozu z jakimś innym podmiotem, zawiera odrębną umowę przewozu z przewoźnikiem-podwykonawcą, który realnie ten przewóz ów wykonuje. W takim wypadku w liście przewozowym jest wpisany zazwyczaj inny nadawca, niż podmiot zlecający przewóz podwykonawczy. Okoliczność ta nie ma znaczenia dla ważności i treści umowy przewozu zawartej pomiędzy przewoźnikiem pierwszym a podwykonawczym, ponieważ przewoźnik podwykonawczy faktycznie wykonujący przewóz zazwyczaj dysponuje dokumentem zlecenia (zwyczajowo określanym zleceniem spedycyjnym) na mocy którego jest w stanie udowodnić od kogo uzyskał zlecenie i kto jest względem niego nadawcą przesyłki i zobowiązanym np.
do zapłaty frachtu. O ile treść takiego zlecenia określa nadawcę przesyłki względem
carrier, o tyle treść zlecenia podwykonawczego jest nieskuteczna i niewiążąca dla
przewoźnika dokonującego przewozu w zakresie wskazywania innego odbiorcy niż
określona w liście przewozowym.
Paul Smoręda – solicitor
Artykuł opublikowany w dwumiesięczniku „Przewoźnik” nr (15) styczeń/luty 2011
…i ja się z tym zdaniem zgadzam. A.S.
@ Andrzej Sikorski
Szanuję mec. Smorędę i z wieloma jego poglądami się zgadzam, ale akurat w tym względzie nie bardzo widzę podstawę prawną dla takiego twierdzenia poza przypadkiem zastosowania art. 34 CMR. W prawie przewozowym zaś w ogóle brak byłoby przesłanek do takiego rozumowania. Transport Law (czy słusznie czy nie, to inna kwestia) odeszło jednak od modelu sprzed 1994 r., gdy umowa przewozu miała charakter realny, a list przewozowy był konieczny do zawarcia umowy. Obecnie jednak moc prawna listu przewozowego bardzo straciła na znaczeniu, a praktyka pokazuje, że coraz więcej przewozów krajowych jest wykonywanych w ogóle bez listu przewozowego tylko na podstawie innych dokumentów np. WZ.
I understand, that the carrier receives the goods on loading and sign the waybill …and then not going to the address indicated in the consignment (at the same signature confirmed) is only going where the order, so? A art. 47 paragraph 2 transport law?
If the Lord is right that we have a patent on impunity output of goods .
No coz, I stay in his own mind (and sentence mec. Smorędy), mandatory that the carrier has to go to the address in the consignment – unless, that, in accordance with art.53 (Transport Law) lub art. 12 (CMR Convention) there was a change in the contract of carriage which to designate another recipient or other place of unloading but in this case the person entitled is compulsory to present a bill of lading with the loading and apply the appropriate annotations.
So it is properly and only when using this mode, you can speak with certainty of economic.
Czy w takim przypadku, tj. dostarczenia towaru do miejsca wskazanego w liście przewozowym przez załadowcę, innego niż miejsce wskazane przez nadawcę w umowie zlecenia, przewoźnik może skutecznie żądać od nadawcy zapłaty? Ten przecież podniesie zarzut, że przewóz nie został wykonany zgodnie z umową. W praktyce jest jak pisze Pan Paweł – przewoźnicy kierują się zleceniem i jego zmianami przedstawionymi w różny sposób (phone, email), gdyż często sytuacja wymaga nagłych decyzji i rzadko daje się powiązać ze spełnieniem formalnego wymogu przedstawienia listu przewozowego z naniesionymi zmianami.
To nie jest “umowa zlecenia” only “contract of carriage”. Nadawca to osoba zawierająca umowę z przewoźnikiem. To właśnie Nadawca odpowiada za prawidłowe wystawienie listu przewozowego a art. 47 Pp wyraźnie stanowi, that “2. Person, which gives the carrier the shipment for carriage, considered to be authorized by the sender to perform all activities related to the contract of carriage. ”
Na załadunku podają miejsce wydania towaru i tam ma jechać przewoźnik bo to uzgodnione …a jeżeli nie jest …to jest to problem między nadawcą a załadowcą.
Art. 7 Konwencji CMR wyraźnie wskazuje, że za koszty i szkody jakie poniesie przewoźnik z powodu nieprawidłowości w liście przewozowym odpowiada Nadawca.
Akurat te sprawy są precyzyjnie i dobrze rozwiązane w przepisach – dobrze chronią przed kradzieżą towaru poprzez wydanie towaru osobie nieuprawnionej. A że to nie jest “wygodne” to inna sprawa.
In sum – Sender (principal) zawiera umowę na przewóz towaru z punktu A do B i to jego, Broadcasters, obowiązkiem jest spowodowanie prawidłowego wypełnienia listu przewozowego – i w czym tu problem? Jeżeli sam nie ładuje to obowiązkowo wysyła instrukcję wysyłkową do miejsca załadunku gdzie podaje dane przewoźnika, który obierze towar i dane do listu przewozowego. Jeżeli załadowca nie wykona prawidłowo instrukcji to odpowiada przed tym na rzecz którego wydaje towar i wypełnia list. Przewoźnik jedzie zgodnie z listem bo widać Nadawca rękami załadowcy zmienił miejsce rozładunku… . Nadawca nie może potem podnosić zarzutu, że przewoźnik pojechał nie tam gdzie była umowa!!! The other thing, że w uzasadnionym przypadku, przewoźnik może (wg mnie “can” ale nie musi) nie zgodzić się na jazdę pod inny adres a jeżeli już pojedzie to należy się jemu dodatkowe wynagrodzenie bo zmieniono warunki umowy.
Podkreślę, że przewoźnik nie ma obowiązku kontaktowania się ze zlecającym bo “osoba wydająca towar”: właśnie tego zlecającego/Nadawcę reprezentuje.
Please keep in mind, że kierowca nie zawsze zna treść całego zlecenia – jedzie pod załadunek tam gdzie szef kazał a na załadunku wystawią list przewozowy, który jest dla niego ostateczną wskazówką.
Wiem albo myślę, że wiem o co chodzi – pseudo spedytorzy (dla odróżnienia od profesjonalnej spedycji) nie znają języków i nie potrafią dać instrukcji wysyłkowych. Zamiast tego, to co powinno być podane załadowcy, zlecają przewoźnikowi (np. “kierowca ma pobrać świadectwo pochodzenia z pieczątką” …itp. a to nie kierowca ma “pobrać” a nadawca wręczyć …). Stąd bierze się też osławiona “neutralizacja dokumentów”. To jest nieprawidłowe działanie, żeby nie powiedzieć mocniej.
W czym widzicie problem? Przecież można działać zgodnie z przepisami Konwencji CMR i Prawa przewozowego – po co kombinować i chodzić na skróty? Wg mojej opinii przepisy są tutaj dobrze napisane i przemyślane – inaczej dajemy pole do oszustw i bardzo łatwej kradzieży towaru.
Zdrowych, Wesołych i Pogodnych Swiąt – Panu i Czytelnikom.
@ Andrzej Sikorski
Exactly the. The carrier must the content of the contract of carriage and no bill of lading. Art. 47 paragraph. 2 pr. wire. and is the first residue of the real nature of the contract of carriage – liquidated in 1994 r., and secondly to apply only in the case, when the contract has not been concluded. And in this case, a contract of carriage concluded earlier. Besides, each shipper, Asked about it, or by typing the address in the waybill, acted on behalf of the customer the actual carrier, strongly deny. This entry therefore never intended to alter the contract of carriage entered into by the contracting carrier. Hence, in the current legal status actual carrier has an obligation to comply with the terms of the contract.
Is it easier to commit fraud? Perhaps, but this is not the actual carrier is responsible for that. It's the shipper has entered into an agreement with a cheater and did not check his credibility. Why can the actual carrier has to rely on the words of the shipper, and not your contractor.
The solution would be to adopt similar regulations as in Article. 34 CMR, ale art. 6 pr. wire. now clearly differs from the structure, hence it can not be argued, that by adopting the bill of lading carrier accede to the initial agreement with the shipper. I have not seen the final judgment, who said to the contrary.
Completely with you I do not agree and probably already is.
If accept your point of view, this bill of lading would have been virtually meaningless, a “pewność obrotu gospodarczego” would be a myth. Features waybill …fairy tale?
“Besides, each shipper, Asked about it, or by typing the address in the waybill, acted on behalf of the customer the actual carrier, strongly deny” – it's what fills this letter, what reason? Pavlov reflex? No one asks, not authorized, nobody tells him no and prints? That's why the carrier assumes in general such a letter? And in general that the shipper is entitled to something? And as such it for what and on what basis?
You say in “Art. 47 paragraph. 2 pr. wire. and is the first residue of the real nature of the contract of carriage - liquidated in 1994 r., and secondly to apply only in the case, when the contract has not been concluded.” – on what basis do you draw such conclusions? So a person, which seems goods carrier is not authorized by the sender to perform all activities related to the conclusion of the contract of carriage? Sir Paul …if there was no agreement and it was not SENDER, which would authorize…BROADCASTER because this party to the contract!
Document drawn up by the Lord – signed by the two parties …and it does not matter delivery address? And other data are important if only this address? …and may have, only the selected data but it will depend on what and whom the lawyer will match?
Sir Paul – I have the impression, that leads you some business and more presents you view the interested parties than the point of view of an independent lawyer … and maybe I'm wrong, but just that I feel.
I'll say this – from the point of view of the carrier and fair sustain the important role of the sender of the consignment note and its features (probative, legitimisation, information) It is still a matter of important and beneficial for a clear definition of rights, duties and responsibilities of the parties …and here mec. Smoręda presented by me correct position.
@ Andrzej Sikorski
Such views I present years. And there are currently no such case and have not been driving at the time, when I wrote this entry. In the meantime, I had such a matter, where a court has confirmed my position. I have not seen a final judicial decision, which on the basis of transport law were to consider something else. If the Lord that has, willingly with him will read. A consignment of course is important, so that it is not more important than the contract of carriage. Following the Lord reasoning such consignment sprawiałby, that the contract is entirely invalid. What more do that which the driver is authorized to change the contract of carriage. Meanwhile, the driver usually has no such powers.