Yesterday one of the readers of the e-mail correspondence asked an interesting question: whether the parties despite the transport within the country, road conditions can arrange transport order, that the issue of the transport regulations will regulate CMR, and not the law. The issue is so important, I thought that, answer that it is worth to share with other visitors blog.
What are the rules
In the absence of agreement between the parties the matter is clear. Transport Law in art. 1 indicates, that it applies to all contracts of carriage of passengers and goods with the exception of maritime transport, aviation and equestrian. Without a doubt, so all national transport operations are subject to przewozowemu.
In turn, art. 1 CMR a, that it applies to the carriage of, in which the place of loading and unloading are located in different countries, of which at least one must be a party to the Convention (and there is quite a lot of these countries, as shown on the attached map).
If there are no contracts, national transport CMR can not be used.
What both, the parties in the contract fits eg:
In the absence of agreement, the provisions of the CMR Convention.
This record should be considered in two variants.
Agreement for the use of the Convention
In the first variant, the provision could be seen as a choice of foreign law made under art. 3 paragraph. 1 Regulation of the European Parliament and of the Council (WE) no 593/2008 of 17 June 2008 r. on the law applicable to contractual obligations (Rome I).
The question, whether such a choice would be acceptable. In my view, no – subject selection may be because only the law of the other country, rather than provisions of an international convention, which is non-national law and not being able to comprehensively regulate the contract. Indirect indications point 13 the preamble to the / in Regulation, which says, that Regulation does not preclude the inclusion of the parties to the agreement – on a State body – provisions of law other than a national or an international convention. The content of this provision is, that the provisions of law other than national can only be included in the agreement, like any other contractual provisions.
Additionally, in accordance with art. 3 paragraph. 3 Regulation, if all the factual elements are located in a country other than that, whose law was chosen, choice of the parties can not prejudice the application of the law of that other country, which can not be derogated from by agreement.
This provision also confirms, that choice may only law of another country and not the Convention. Moreover, the selection can not be used to circumvent the mandatory provisions of national law, that, and so they are used, If in your country you will find all the elements of fact.
The parties can not therefore make an application of the CMR Convention to domestic carriage, and even if such an agreement was admissible, This would not preclude the application of the law of lading, which are mandatory.
The provisions of the Convention as part of the agreement
In the second variant, the said provision could be understood as the inclusion of all the provisions of the CMR Convention. In light of the abovementioned provisions of the Rome I Regulation such a construction would be perfectly acceptable. The Parties agree in this way, that the content of the agreement linking it includes not only the, What is clear from the text, but also the contents of all the provisions of the CMR Convention governing the rights and obligations of the parties.
But such a procedure would yield a result, by which the parties wanted – or application of the Convention rather than national law?
In the case of transport in the Polish definitely not. Polish transport law is in fact mandatory,, which means, that the provisions of the contract of carriage must be compatible with it. In any case, so, in which the provisions of the CMR Convention would differ from the transport law (np. within the limits of liability of the carrier), and so priority would be provision of transport law. In practice, then, and so the agreement would be subject to the law of lading, and the provisions of the CMR Convention would be in the marginal.
Otherwise it would be, case in which a record is used for transportation in the country, where the traffic right is not absolute. Then the provisions of the CMR Convention as incorporated into the contract regulating the rights and obligations of the parties.
In sum, for operations in the Polish always will take priority traffic right, and the CMR Convention may have only limited application.
Hi I wanted to find out about this issue, I received a letter from a company that is not quite that ordered goods to another carrier, without our consent that the recipient does not have in-store themselves ” during transport to move goods on the trailer, 2 Days waited until the goods will drive back and the customer did not pay for this service. He had to unload the goods , the repack and send a new SHIPPING obviously did not pay for it, only the costs of handling and ceded it to us. We sent a note obciżeniową and they posted it on the basis of the CMR defaulting loading is contrary to Article 23 paragraph 5 I oraz art 41 the Convention may submit to resell on loads and I will add that the loading and unloading was in Poland. Please Hint whether they are right ? and on what basis it is possible to recover a repackaging of goods
@ Gabir
As I understand, problem is the cost reload? With the convention just has nothing to do, and if the carriage was in the country and so it was not applicable.
Mr. patrons,
ask for help in dealing with certain issues. As for international transport – I apply for CMR Convention. Has not received a salary and wants to sue, but:
1. Who knows – if Company X, who contracted transport (it is not the sender), whether the sender (s company).
2. do not know whether you need to send a request for payment and wait 3 months – Polish law does not transport or?
Please help, for which thank you in advance. Case keep me awake at night :/ Head of thought, I'm a lawyer, and I just finish college 😉
@ Ola
Person, who contracted transport, is always a sender, even if not physically load the goods on the vehicle. Therefore, the client should always sue (the sender), and not podmiot, who has a physical load (but sometimes, of course, it will be one person). In international transport there is no need to wait 3 months of the request for payment.
I have a question about query Ola
If the commissioning company refuses to pay, whether to send the call to the shipper of the goods or unloader, can be any of the Company is the owner of the goods?
If so, how does this apply to shipments to domestic and international?
Thank you! Thank you! Thank you! Firstly, I could finally fall asleep 😀 Second, Your blog is a wealth of information!
Regards,
the.
Dear Counselor,
I have a question referring to the Lord's answer to the question Ola. You say in, that international transport not need to wait 3 months of the request for payment (the possibility of making a case in court). My doubts on this issue raises the problem of the scope of the Polish Law on transport for the carriage of which is the provision of an international agreement concluded between Polish companies. As is well known art. 1 paragraph 3 This Act provides, that its provisions shall apply to international carriage if an international agreement provides otherwise. In practice, this mainly concerns CMR. At a general level, all clear, however, when it comes to detail are born wparagraphliwości, to understand this “otherwise provided”. Whether it's just a different adjustment in the range – other provisions governing the scope, or the lack of regulation – No regulations on the matter, and thus the absence of specific requirements. Example: Polish regulations allow the carrier to submit the case to the court only after an unsuccessful call to the person liable. CMR Convention does not impose such an obligation, but in the sense, that do not regulate the issue of the admissibility of the courts in matters of the contract of carriage. Do we have to deal with “otherwise lawmaking”, by CMR or the lack of regulation of certain issues, hence the necessity for Polish transport law arising from Article. 1 paragraph. 3 transport law?
Thank you in advance for your answer and best regards.
Mariusz
@ Gabir
If the commissioning company refuses to pay, you do not have to look at the shipper – He no responsibility for payment shall not be held. However, you can try at the other end – domestic transport is responsible for carriage on the basis of Article. 51 pr. wire. In international transport receiver or equivalent, but only for the claims included in the bill of lading pursuant to Article. 13 paragraph. 2 CMR – However, this happens very rarely, as usual in the consignment note any charges are not included in.
@ Ola
Please very 🙂
@ Mariusz
I agree, that this issue can be no doubt. Personally, I am of the opinion, providing that the Convention complaint procedure, but extending them only for claims against the carrier, settled the issue of complaints at all, and thus tapping into Polish law of the need for such a procedure is not appropriate. In matters, I lead, ever the term in international transport is not suggested and still no court took the contrary view. The other thing, that the courts in many cases do not pay attention also to breach the 3-month period for domestic transport – unless this provision is not adopted 🙂 Otherwise, I look at the issue of the suspension of the limitation period as a result of a request for payment – I, that also call for the international carriage of such effect is achieved, because here you can rely on Article. 32 paragraph. 3 CMR, which simply refers to national, but in one of my cases the court took a contrary view, and the application for a declaration that the judgment of the law, the Supreme Court did not accept the diagnosis, Recognizing the, that the interpretation of the court was correct.
Thank you for your answer and best regards.
Thank you for popodwiedzi and still want to find out about these entries, Art. 51. 1. By accepting the consignment and bill of lading recipient agrees to pay the charges imposed on consignment.
Is there a time limit to which you can apply for a payment to the consignee in law wire. and the CMR,
Thanks in advance for helpful hints and greet Gabriel
@ Gabir
Personally, I think, that such a claim against the recipient expires within one year from the date of maturity of the claims against the Customer, because it would be absurd if the recipient had to pay the carriage faster than on the contract of carriage, but I know the decision, which indicate, The annual limitation period shall be calculated from the date of delivery. The statute of limitations is, however, suspended for a period not exceeding 3 months from the date of request for payment to the date of receipt of the response from the recipient. Up so this term would be 15 months.
Searching for solutions, I came across your discussion. As a matter of law the EU the case is quite clear, so outside is difficult… My facts seems to be no solution without the knowledge of Norwegian law Norwegian 🙁 Well, commissioned the carriage Pole in Norway (so. cabotage). And he ordered the other Pole Pole, and the subsequent. Third Pole actually carrying Towart. However, the missing. It started an avalanche “damages”. I read, that the cabotage apply national law. Orders transporotwe between the Poles, of course, went in Poland, but if you can consider this as a separate contract without the knowledge of Norwegian law? Are claims between carriers should also be seen right here on the ground Norwegian? Please help
and my presence in this topic: Polish the two carriers had arranged to transport order, that will use the CMR? Done as I understand this assessment, can not be regarded as such a clause allowed for the choice of law.
🙂 most cordial congratulations, Let pociacha as much as lieth with his dad in the first months of life.
Dear Counselor,
at the beginning of the submission warm congratulations and wish you the same joy for Ignas and family!
I got to your question in reference to the beginning of your entry on the application of the CMR. “art. 1 CMR is, that it applies to the carriage of, in which the place of loading and unloading are located in different countries, of which at least one must be a party to the Convention”. So I understand, that if the country of loading or unloading country is a country, where the Convention CMR, that its provisions are applicable…? If so, a little bit it misses the, so far as I understood notation conventions. The exact wording, I find that talking about the application of the Convention “… if the place of acceptance of your shipment and the place provided for the delivery, (…) are in two different countries, least one of which is a contracting country”. As regards the loading and unloading, This case is clear. However, I understood completely different record of “contracting countries” – namely the countries of the principal and the contractor. This is important in a situation, If the client and the contractor are from countries other than those, after which the transport is performed 🙂 So if Germany Pole commissions such as transport from France to Belgium, I understood from this record, that none of these countries is not a country “Contracting” because countries “Contracting” Germany and Poland, which would, CMR that convention in this case is not applicable – or place of receipt or the place of delivery is not a country “Contracting”… It looks like, that my interpretation is totally wrong?
Best wishes and thank you for your answer
@ wither
Sprawa nie jest jednoznaczna. Ponieważ mamy tu element obcy w postaci miejsca wykonania zobowiązania, również umowy pomiędzy polskimi przewoźnikami należy przeanalizować pod kątek polskiego prawa prywatnego międzynarodowego (tak stanowi art. 1 p.p.m.). In accordance with Article. 28 tej ustawy do zobowiązań umownych stosuje się prawo właściwe wskazane przez rozporządzenie Rzym I. Te z kolei w art. 5 paragraph. 1 a, że do umowy przewozu towarów – o ile nie wybrano prawa innego państwa – stosuje się prawo właściwe dla miejsca zwykłego pobytu przewoźnika, while in the same country is a place of taking over of the goods, miejsce dostawy lub miejsce zwykłego pobytu nadawcy. Ponieważ nadawcą jest druga strona umowy przewozu, in the case of an agreement between the Polish carriers, both the sender (Instructing transport) and the carrier have their habitual residence in Poland, so in accordance with this provision, the law of Polish, and no Norwegian. However, Article. 5 paragraph. 3 regulation states, that if the circumstances of the case, that the contract is much more closely connected with a country other than those of Article. 5 paragraph. 1, the law of that State. In this case can thus arise doubt, whether the contract time is closely related to Norway, and thus whether the law does not apply Norwegian. Without examining documents in this topic is difficult to say.
And as for the application of the CMR Convention under the provisions of an agreement between the Polish carriers. If appropriate to the Polish law, such a provision will be ineffective. If it would be right to Norwegian, should be reviewed, the Norwegian transport law is mandatory, or its provisions may be amended by agreement. In the latter case, should be adopted, that the parties have adopted all the provisions of the CMR, as the content of an agreement between themselves and on that basis decide, not covered by CMR posiłkując in Norwegian law.
Generally, interesting case 🙂
@ Agnes
I'm afraid, that Mrs. previous interpretation is incorrect. Countries Contracting is a term for all the countries which are parties to the CMR Convention. There is no doubt in my opinion, that if Germany commissioned Pole transport from France to Belgium, the CMR Convention will be applied, because both France and Belgium are the countries of the Contracting, that is party to the Convention CMR.
🙂 thank you very much, let me speak as e-mail to explain the matter 🙂
I greet
And if you can give me a hint what Mr. Counselor in such a case: two companies registered in Poland (Polish entrepreneurs) intend to enter into a contract for transportation services – one of the companies arrange transportation, and the other is committed to the provision of goods transport services. Goods will be shipped from Polish to French. Apply to contracts have provisions CMR. The parties also intend to in the contract and determine the choice of law , that the law governing the contract is governed by French law , and settle disputes is the local court. Is the choice of law ( in light of this, that the parties to the agreement are Polish entrepreneurs) correct?
By @
I, that such a rule is the most correct.
I have a question , I made the carriage after Germany for Polish companies from point A to point B driver wrote CMR and received confirmation you pick up the goods at the CMR , German company in which case no longer issued liferschajnu , the principal demands of the German documents . I wrote to the company Nenets , I received the answer that it is all right and CMR enough to receive consideration for carriage . Polish principal haunts me now that I made a court carriage within the country and not the CMR Liferschajnie , whether it is a big offense on my part . That have subscribed to mention Cabotage, greet and advice please
@ Chris
It does not matter, which has been proven way to make the carriage. If CMR results, that the goods have been received, and to do so in his letter confirms the recipient, remuneration should be paid.
Hello Mr. Counselor. I would like to ask you about the issue of the application of the Postal Law międzynardowym transport. As we know, the Postal Law in force in our country and in other countries that are parties to the CMR Convention has hardly (I have not heard). What rules should govern the transport:
1) The customer in Poland ordered the courier company delivery receipt , qualified as a postcard (max.20kg), from his partner from abroad (np. France). Klenta in France by issuing a consignment courier waybill signed by the local rules that the law does not provide for post. Of irregularities in the implementation of the following services. In such a case, if a complaint is made Polish client, during her examination should take into account the provision of services regulations in force in Poland or abroad, in which the Postal Law does not apply?
2)Shipment of the weight and dimensions of the postal item is sent from abroad to Polish on behalf of a foreign client and so Broadcaster French signed the waybill with the local rules of the provision of services. The recipient in Poland wants to advertise the service because of damage. A similar question as the point 1 – Rules of the provision of services which should be taken into account (liability arising from the Postal Law and the relevant Convention) ?
thank you in advance
@ Przemek
Two questions. Firstly, what is the subject of transport: correspondence or something else? Second, what is the nationality of the carrier?
The subject of the transport of the consignment is niedokumentowa (commodity). Transportation is divided into several stages:
1. From the sender receives the goods courier French, which delivers a package to the warehouse in FR.
2.It is then transported to the Polish at least two reloading (two different carriers),
3. the addressee is served by the Polish courier.
@ Przemek
And what is the question? And whether the agreement is signed by the sender on the episode?
The questions are included in each section. Generally I need advice provision should be used to determine the liability of the carrier (postal law or the relevant convention). The contract is concluded for the entire itinerary.
@ Przemek
If the subject of correspondence carriage was not and was not a public postal service operator in the form of an international package is used to be the appropriate convention. The only question is how, I do not know, what means the consignment is transported. If everything is done on the way, This will be the CMR Convention.
Mr. patrons, were postal services, ie. commodity packages weighing up to 20kg and the dimensions of which no less than 2000 mm and the sum of the length and the greatest circumference measured in a different direction than the length does not exceed 3000mm.
In both cases, we are dealing with import and advertise services clients both in Poland Unregistered (Addressees). The difference is that, that one service has been outsourced abroad in a branch of the carrier(by Consignor), while the other was commissioned in Poland (by Recipient). In both cases, the transport document shall be signed by the Consignor abroad while giving. In this document, the terms and conditions of carriage services in which there is no word on the Law of the mail (contractual France because it does not apply). Therefore, in my opinion, in the second case considered, the Sender to your order shipment suited to Polish, despite the fact that a complaint is made Polish recipient, we should deal with the matter on the basis of the rules or without regard to the foreign postal law only grained Convention. Can you confirm?
In contrast, it is doubtful higher first case when Recipient commissions in the Polish branch of the transport company receiving qualified as postal delivery. Also, the registration of the local is signed(French) However, the principal waybill theoretically acquainted with the rules that apply in Poland, which takes into account p.pocztowe. In which case it ?
@ Przemek
I'm still not convinced, if this were indeed the postal service. Generally when courier services (I assume, these come into play) The postal service is different from the subject of the transport service delivery. So I have no confidence, or in this case, even when the carriage was commissioned in Poland, Polish law is valid postal.
From the definition contained in the Law Post subject consignment qualify as “Post”.
@ Przemek
A provision in the law which post results, that the consignment should be treated as postal, and which do not?
Article 3 of the Law of the Postal Law of 23 November 2012 r.
14) parcel post - shipment recorded, non-delivery letter bill, of up to 20 000 g and dimensions:
a) none of which exceed 2000 mm or
b) which may not exceed 3000 mm for the sum of the length and the largest circumference measured in a direction other than
length;
@ Przemek
I know this recipe, but in my opinion it is not clear, that the shipment of this size should always be treated as a piece of mail. Can surely be transported by a carrier not on the basis of the right post, especially when there is no operator to deliver the package at the time of conclusion of the contract.
I also doubt that while the above definition we find the same law:
Courier - courier parcel letter bill being recorded or parcel post, supplementation, sorted,
transport and delivery in a manner that ensures total:
a) the perception of a postal item from the sender,
b) tracking of postal delivery from posting to delivery,
c) postal delivery guaranteed delivery date specified in the regulations to provide postal services
or in contracts for the provision of postal services,
d) postal delivery service directly into the hands of the recipient, or a person authorized to receive,
and) obtaining confirmation of receipt of postal delivery in writing or electronically;.
All of these conditions are complied with to the adopted, that such transport is governed by the Postal Law. Do you think that was right ?
@ Przemek
If all the above requirements, and the company receiving the order is at the same time postal operator, her responsibility is based on the post and almost does not matter what regulations apply to the entity, who collected the consignment, if the order was addressed to Polish companies.
Hello Mr. Maecenas…
We typically forwarding company and we want to sign a contract with the customer, which is a resident of the State of the Union. The contract is in the order carriers transporting cargo from another EU country (Sweden) to Polish, However, the client requires, to the original bills of lading were replaced other (so. neutralization), to the recipient of the goods did not learn, where the charge was brought. Thus, after unloading the carrier will have two list. 1. With loading, not confirmed at delivery, 2. With unloading, confirmed by the recipient, but not signed by the shipper. How does this compare to the current law derived from the CMR Convention. Whether such practices are allowed and what is entrusted with the responsibility for the goods and, if necessary. investigation of claims.
I'll be very grateful for your response, because these things happen to us more often….and which would be, for example, if the product came from. in Norway or in another country (outside the EU)? The.
@ Jo1202
Neutralization will have no bearing on the question of responsibility for the goods entrusted to and redress. However, it can be considered a false certification, and raise the issue with the tax office, and in the case of loss of the insurance company. So I advise against entering into such contracts, although it may be possible in court considered such records to be invalid as committing to the offense.
Mr. patrons,
Addressing the problem of. The company wants to provide goods transport services (by road) from Polish to several EU countries. Can provide their services only on the basis of the CMR?, without regard to transport law.
@ Wieslaw
CMR Convention will always have priority, and to the extent not covered by the Convention, the parties may choose the law applicable to the contract. If you do not choose, it will be the right set out in the Rome I Regulation.
Welcome
Counselor Lord made the carriage of goods in Germany from A to B, There were three unloading. I have conquered CMR-ki podstęplowane and signed as it should be, however, the German forwarding ziplined said they do not pay the freight as it allegedly did not receive in addition to the CMR Lieferschajnów. Do not want to pay a deposit 900 freight euro and the boss said to me with this charge ,little of this on the company in which he landed accidentally hurt a small post which made the damage to property as it turned out later that August germany valued at trifle 400 euro. Head did not pay me 6000 zł which Milema already earned him and fired me from work.
Do you have the right to do so, ie: I ordered the entire amount of the freight and for damage to mieniu.Bardzo please answer thank you in advance and best regards. Peter
@ Peter
I do not know details of the case, but usually lack lieferscheinów CMR with the existence of letters should not be a reason to refuse to pay for transportation. What to post this should cover insurance, and you shall be responsible for the possible increase in premiums. Remuneration should be paid to, unless it was not a contract of employment – then you could deduct, but only due to the amount of.
Welcome,
I have not found on a separate thread. Postal Law so let me ask the question in this place. My question concerns the category “parcel post” w rozumieniu Prawa Pocztowego.
Pytanie dotyczy samej definicji przesyłki pocztowej zawartek w Art.2 ppkt 14 Ustawy Prawo Pocztowe.
Czy wypełniając jeden z warunków zawartych w ppkt a) lub b) od razu należy traktowac przesyłkę jako pocztową ? Czy też należy definicję interpretować tak, że jeżeli jeden z warunków nie jest spełniony to paczka nie należy do kategorii “pocztowych” (np. Czy przesyłka o wymiarach 180cm x 50cm x 100cm i wadze 15kg będzie przesyłką pocztową ? ).
Ponadto czy ładunek składający się z 20 pakunków o wymiarach 40x40x40 cm i wadze pojedyńczej paczki 15kg będzie przesyłką pocztową ?
z góry dziękuję za odpowiedź
@ przemek
Wymogi opisane w prawie przewozowym muszą być spełnione łącznie. Taka interpretacja wynika z III dyrektywy pocztowej i regulacji Światowego Związku Pocztowego. Jeśli ładunek 20 pakunków będzie przewożony na podstawie jednej umowy, nie będzie to umowa oparta na podstawie prawa pocztowego.
Mr. patrons,
Nawiązując do powyższego chciałbym nakreślić sytuację:
Załadunek i rozładunek odbywa się na terenie polski, na liście przewozowym CMR w polu 1 oznaczony jest spedytor krajowy, który dokonuje fizycznego załadunku na zlecenie zagranicznego kontrahenta (on behalf of).
Zlecając transport powołujemy się na OPWS, Prawo transportowe i konwencję CMR (są wymienione z nazwy w zleceniu).
Czy jest możliwe wystawiania listu CMR dla transportu krajowego, mając w pamięci powyższe fakty czy dla tras krajowych powinien być wystawiony krajowy list przewozowy?
Sincerely yours,
Mateusz Dziechciarz
@ Matthew Dziechciarz
Wystawienie takiego listu jest dopuszczalne, natomiast nie wpłynie to w żaden sposób na prawo, które będzie w tym wypadku obowiązywać – będzie to prawo przewozowe, not a CMR Convention.
Good morning.
Mam pytanie do Pana mecenasa odnośnie listów przewozowych.
Czy w kabotażu niemieckim kontrahent (niemiecki) może w zleceniu zawrzeć, iż do wypłaty frachtu należy wysłać mu lieferschein oraz CMR?
Czy żądanie CMR w przewozie krajowym nie jest klauzulą niedozwoloną?
Z góry dziękuję za poradę.