I, that the topic was already discussed in the entry Who can assert claims of the contract of carriage of goods, but recently I came upon a decision of the Regional Court in Szczecin on 14.12.2012 r. ref. akt VIII Ga 385/12 moving this issue, that I found, that deserves a comment. Counting on a short note immediately warn – This will be a long time 🙂
The dispute
The reason for the reported case occurred against the defendants for payment of charges for carriage performed by him. The defendants filed to dismiss, indicating, that the claim does not exist, because there was a set-off claims for transportable defendants claim for damages resulting from damage to the shipment at the time of transport by the plaintiff. For a variety of topics appeared m.in. demonstrate the extent of the damage issue and the amount of, and cause it to be by a person authorized, However, from the point of view of this post was the most significant dispute as to, whether the defendants broadcasters who were entitled to bring an action for damages in the carriage of the plaintiff. The reason indicated for, in the absence of regulations in the Convention to claim legitimacy, law shall apply to transport, which in this case indicated, that it was entitled only to the recipient, rather than the sender or the defendants.
The decision of the court of first instance
The District Court in Szczecin plaintiff did not agree with the arguments of legitimacy and recognized, the absence of a clear settlement of this issue in the CMR Convention, should apply the general principles of liability, that is, a claim that the victim may, and no doubt the defendants have suffered damage as a result of damage to the shipment, because they have suffered the cost of the damage. The court relied on the judgment of the Court of Appeal in Warsaw of 12.11.1996 r. (ref. Akt I ACR 673/96), which was presented just such a position.
The appeal of the plaintiff
On appeal, plaintiff specifically outlined his objections to the decision of the first instance, the legitimacy of raising, that the judgments of the Supreme Court of 03.09.2003 r. (ref. Akt II CKN 415/01) and of 03.09.2003 r. (ref. Current IV CK 264/02) clearly stated, that in the absence of a determination of the person entitled to the CMR Convention, it is necessary to tap into transport law, which follows directly from Article. 1 paragraph. 3 pr. wire. Transport Law and in art shows. 75 paragraph. 3 Item 2 lit. b, that claims for shipment damage sender or recipient is entitled according to, which one has the right to dispose of the delivery. The Supreme Court pointed out at the same time, that the, Who has the right to dispose of the goods on the basis of the CMR Convention is Article. 12, according to which the right is the sender, unless a second copy of the list of lading was delivered to the consignee or, that the recipient has exercised the right provided for in Article. 13 paragraph. 1 CMR, or asked the carrier to deliver the goods or bill of lading, Then it goes right to the recipient. Since in the common ground was, the customer received the shipment, sender or the defendant is not entitled to have any rights against the carrier for damage in transit.
Judgment of the court of second instance
The District Court in Szczecin in the split described above does not charge for card appeal, ground as follows:
The District Court correctly observes, and the defendant, the CMR Convention and Transportation Law does not create a stand-alone law, which comprehensively regulates all matters of dispute. None of these regulations (or CMR Convention or the Law Transportation Law) do not include the general principles adopted in the Polish civil law for damage. Thus, in the case of incomplete regulations specific provisions apply for both the contract and tort, which means, claim for damages that may occur victim, and those who are affected in this case, no doubt the defendants remained L. B. i M. B., who have suffered the cost of the damaged cargo carried by the plaintiff, because they were ordered to pay the contractor for the defective goods. If the defendant denied the legitimacy of the claim for damages on general principles that they would have been completely deprived of the right to an effective remedy. The court of second instance in its entirety agrees with the, that neither the CMR Convention or the Law Transportation Law does not contain exemptions from the provisions of the Civil Code. Not disputed the fact, provisions for liabilities that are not inconsistent with the provisions of the CMR Convention or the Law on Transport. Thus, in the absence of clear grounds for redress specific provisions undoubtedly please refer to the regulatory provisions on the general obligations. In particular, if the injured person - as in this case-would be deprived of their right to seek damages. Otherwise, the existing loophole would give carriers the right to avoid liability for each time, the recipient of the effects of defective goods charge the consignor of the goods and the carrier does not. In this situation, it is obvious, general principles of liability that must be applied each time, if they do not exclude the special provisions. So reason as the carrier was responsible for the proper performance of the contract in relation to the defendants, and this responsibility was the nature of contract, which justifies the legitimacy of the defendants to recover damages from the plaintiff.
Critical appraisal of the judgment
Frankly, that when, I read these words, I thought, requires that such a justification of critical voices. However, as the voice of the judgments of the District Courts tend to not publish, I decided to use my blog space.
In terms of legitimacy in the CMR Convention is a variety of views, So do not say, that my position is the only right. Justification of the judgment, however, contains so many difficult-to-defend claims, I can not consider it to be correct, especially since – What is most disappointing and it raises my reservations – complete silence, it ignores the claims raised in the appeal and relied on their support of the Supreme Court. Therefore I will try to turn refer to the specific allegations contained in the judgment.
What is the Convention
There is no doubt, that the Convention does not explicitly define the concept of a person authorized. For this reason, in the jurisprudence of foreign courts and the local doctrine formulated a number of theories as to, who is the beneficial owner. First of all, it should answer the question, whether the, who is the beneficial owner, decides on its own Convention (even in the absence of a clear provision should be the only standard wyinterpretować) or if the Convention is silent on the subject, critical to the national legislation applicable to the contract. You can be in this respect different views and it would take too much space to discuss each of them and their supporting arguments. It should however be aware of, that the selection of each of them carries a certain consequences. I have a feeling, the awareness that in this case, the court lacked.
National law, but also?
The District Court in Szczecin, described the judgment took the view, that the Convention itself does not define the, who is the beneficial owner and does not constitute in this respect autonomous legal order. Consequently, therefore, should take, find that the application of national law. There is then a question – what provisions? Civil Code or transport law? Generally accepted rule of interpretation is the principle of lex special derogat legi generali. There should therefore be no doubt, that the main piece of legislation relating to the contract of carriage is the transport law, that, pursuant to Article. 1 paragraph. 1, shall apply to the carriage of goods made by authorized carriers. What's more art. 1 paragraph. 3 pr. wire. is directly, traffic laws that also apply to international transport not covered by international agreements. In this situation,, If an issue is not regulated in the CMR Convention, including the use of transport law.
Traffic right off the general principles
This thesis resulting from the two judgments of the Supreme Court cited – it seems – The District Court in Szczecin has not challenged. Formulated and the unacceptable view, that neither the CMR Convention, or do not contain the traffic right off the general principles adopted in the Polish civil law for damage. The whole idea for both CMR and transport law is based on a far-reaching modification of the general principles of liability from liability rules (the principle of risk rather than the principle of guilt), by special exclusions and the presumption, to the compensation limits and specific rules for their determination. It is therefore clear, that if traffic laws provide for different rules on claims from the carrier to the general rules of liability, Only use the first. Indeed, this follows directly from Article. 90 pr. wire. forming, that the Civil Code shall apply only in cases not covered by the Act.
In this context, a lot of concerns raised further claim court, that is not disputed, provisions for liabilities that are not inconsistent with the provisions of the CMR Convention or transport law. These contradictions can in fact be found in almost every provision of transport law and the CMR Convention, because that is the raison d'être of these regulations.
Formal legitimacy, no material
Court, continuing his discourse, states, that in the case of incomplete regulations specific provisions apply for both the contract and tort, which means, claim for damages that may occur victim. This view is based on a false premise, that traffic laws do not provide for the comprehensive regulation, Who has the right to seek redress from the contract of carriage of goods. Meanwhile, traffic right in Article. 75 paragraph. 3 Item 2 clearly and comprehensively sets, who can claim from the carrier's contract of carriage claims. This provision applies to two types of claims – making the claim, or part thereof, and all other. So there is no any claim against the carrier under the contract of carriage of goods, which would not be covered by the regulation of the provision. This means that, that the law excludes freight carrier investigation of claims of the contract of carriage of goods on a different basis than that provided in the above provision. It is therefore irrelevant position of the District Court in Szczecin, that in the case of damage in transit a claim for damages may occur on the general principles of the victim. Pass traffic laws do not make because of the fact of injury, but only the right to dispose of delivery, So a purely formal.
The alleged victim denies rights gap
One of the arguments put forward by the court in support of his position is the claim, in the absence of recognition of the legitimacy of the defendants to claim from the carrier, they would have been deprived of the right to an effective remedy, when they were charged for the damaged goods by the purchaser. Such a loophole would give the carriers the right to avoid liability for each time, the recipient of the effects of defective goods charge the consignor of the goods, and no carrier.
First argument is completely detached from the law and could serve as a call for de legeferenda, not a justification for a decision. The provision of Article. 75 paragraph. 3 Item 2 lit. b is in fact unequivocally and clearly indicates, that in this case entitled to claim he was the recipient, and not the sender. The court should therefore not ignore the existence of this provision in the legal system because, believes that the solution adopted by the legislature as unfair. In case of doubt as to the compliance of the norms of the Constitution, because the court could inquire to the Constitutional Court, But what he did not.
Secondly, contrary to the court of the Polish legal system of the rights of consignor of the goods in the event of damage to the consignment is consistent, and potential problems in their claims can often be solely the result of mistakes made by the same victims. Control codes sales contract presupposes Article. 548 in conjunction. z art. 544 k.c., the risk of damage to goods in transit rests with the buyer, if the item was given to carry professional carrier. Thus, in the case of damage to the goods right to the customer has the right to seek redress from the carrier, and is free from the law of the sender. On the other hand, if the parties by agreement changed the statutory allocation of risk damage to goods in transport, should also take care of it, by the powers vested in the person of the carrier actually injured as a result of damage in transit (np. by way of assignment of rights under the contract of carriage). There also would be no obstacle, satisfied by the sender to the recipient of its powers transferred to the carrier.
For these reasons, it is difficult to recognize the existing regulation of addictive transport law right to claim the right to dispose of the delivery for depriving anyone the right to compensation.
The correct decision?
Notwithstanding the above criticism is not excluded, that the outcome of the legitimacy of the court was ultimately correct. In support was in fact mentioned, that the defendants are engaged in the operation of domestic and foreign. It is therefore possible to, ordered that the carriage of the plaintiff was in fact conferring transport contractors, that the defendant had previously been commissioned. In this case, all claims should be directed customers to the carrier which is the main defendants, the plaintiff's claims against the defendants would only. You can, however,, that in this case the defendants were forwarder, who, as the broadcaster ordered carriage of the plaintiff, What sprawiałoby, that the plaintiff's claims against should be submitted only by the recipient. I am not able to unequivocally denounce this issue, judgment because there is no justification in this regard are insufficient data.
Concluding Remarks
In summary – in my opinion, in the grounds of the judgment should be found to be much more thorough consideration of the issues particularly in the context of the plaintiff's case-law cited by the court. I realize at the same time, that the Polish legal system there is no rule of precedent, but if there are important decisions of the Supreme Court in the matter, and for that page refers to them in their arguments, court, taking a different stance, should justify, why do not accept the views expressed in the existing case law. In this ruling, unfortunately, the lack.
Of course, feel free to discuss. If someone has a different opinion on both the judgment and the same legitimacy to claim on the basis of the CMR Convention, willing to undertake a controversy in the comments 🙂
Sir Paul – I fully support your position and view, I have nothing to add except that, that the combination of thoughts he presented to the District Court in Szczecin little scary.
Thank you, Mr Andrew's comment. It is true, that raises some concerns about the omission of silence in support of the plaintiff's arguments. Unfortunately, sometimes these things happen. I always have the problem with the explanation of the customer, why we lost the case. Usually the conversation ends in a full surprise the customer asks: “This court so maybe do not respond to our complaints?”
If you took the time to dispel my doubts on the blog Algirdas Rudak (the entry of lost goods), I would be very grateful.
Sure – Unfortunately, I did not see the option there rss comments, So I have not noticed them before 🙂
After reading the entry without reading the grounds on which it appears, SO tried that rely on considerations “nature sÅ‚usznoÅ›ciowej” (SN marginally so many times makes). If the SO decided, that we should not be justified in the, ie that moved. confluence basis for liability and tort accept.
@ Adt
Tort in transport is a very slippery topic. I personally am opposed to the use of the concept of tort liability (in principle), firstly because it is art. 90 pr. wire., which allows the use of K.C. only in matters not, and transportation law comprehensively regulates the question of liability for damage in shipment. Second, the admission of tort liability regime would make transport, that all traffic right would lose meaning. Any damage in transportation could be because without any problems subsumed under Article. 435 i 436 k.c.
Hello!
Subject locus standi in the case of the CMR is like a river……. long, winding and the vortices:)
But the thing. I'm curious about your opinion in this respect: Shipments from China via the Netherlands to Polish – CMR is a broadcaster for the Dutch company (forwarding / transport), as the carrier has indicated Poland (HH sp. z o.o,), who got the order from the Polish transport shipping company. Goods was partially destroyed but was taken (I do not know whether the recipient has 2 CMR exam). In the Netherlands, was the transshipment of container on a set of.
Question: to whom should be the recipient of a claim and) in a situation in which the Polish remover was contracting carrier (I do not know because I have not seen his contract with the company from the Netherlands), b) assuming, Polish remover that was forwarder (which I think is unlikely). And the second question: as shown, Polish remover that was not a freight forwarder, since we do not have his contract with the firm of Holland and neither he nor the recipient does not submit its.
Thanks in advance
Regards
@ Matt28
The recipient should occur against the contracting carrier, Polish remover if you have such a character. If Polish remover was in fact a freight forwarder – In the unlikely – should be brought against the carrier actual. The issue of evidence is indeed a problem, but not by way of demonstration, I was not forwarder, and that was the boatman. If it is, however, undisputed, that participated in the carriage, should rather be presumed transport, and that the other party would have to prove, entered into an agreement that forwarding.
Hello!
Mr. patrons, request for a hint –
below I have two pytanka to the Lord, but first description of the situation:
international transport:
H sender sent the goods to the consignee P. The recipient was a buyer.
Broadcaster staged carrier transport order. The carrier used a subcontractor, also exposing the transport order.
Replaced the damage during transportation – partial loss of goods. Damage was found at unloading, Q magazine.
After estimating the amount of damage, P issued proforma invoice sender H where specified the amount of damage.
I suspect that H decreased its invoice for the amount of P lost goods, then returned to the recourse to the carrier, which then abolished this damage to H with its OCP.
The TU OCP carrier, after the payment to H, went with recourse to the carrier-contractors
and now:
1) or in accordance with Chapter “the alleged gap”, In this situation, only P would be entitled to claim the contract of carriage? If yes, whether H, by the very fact of payment (Invoice correction) to P, acquired the rights from the contract of carriage and may claim, or not, and that H has acquired these rights would require a separate document (assignment of rights under the contract of carriage)?
2) or when you lift the subcontractor plea of ​​lack of standing to bring the insurer who has compensated for the unauthorized, Company H can then submit the assignment of rights under the contract of carriage? whether it will be too late to submit such an addition?
Thank you very much in advance for your help,
greetings,
godin
@ Godin
I understand, we're talking about international transport. On the basis of the CMR Convention – Polish adopting the view of the Supreme Court – legitimacy to claim from the carrier only be payable recipient, and not the sender. The only basis for, which potentially would see the justification for claims against the carrier H, can be found in art. 518 by. 1 Item 1 k.c. You can try to claim, that if H has paid the debt owed to the carrier, for which both the same suit, it went up in the rights of the satisfied creditor against the carrier. Never, however, in practice, this concept is not practiced – I always try to take care of the issue of legitimacy before filing – So I do not know, as the court would like zapatrywaÅ‚. You can just as easily say, that H pay your debt, and no carrier, Thus the institution of subrogation is not applicable.
There is also the fundamental question, or H in general was obliged to repair the damage – in the case of adoption of the concept of subrogation to the fact that the plaintiff must prove, to justify the continuity of the entitlements, that passed on him. In accordance with Article. 67 paragraph. 1 The Vienna Convention on Contracts for the International Sale of Goods, if the parties have expressly agreed in the contract, that the delivery of the goods will only be the moment of delivery to the buyer, is assumed, that the risk of damage passes to the buyer at the time of delivery to the carrier. If, therefore, in the process of reason has not provided a contract of sale H to P (a np. only invoice), should be, that did not show, The parties agreed to, that the issue will be in a certain place. In this case, even the concept of subrogation will not help, because it is unacceptable to pay without the consent of the carrier for its debt, if the sender is not responsible for it.
What to submit in the contract of assignment of receivables, I, it is the most acceptable – because the court issues a judgment as at the date of the award, so if at that date the plaintiff is entitled, action must be taken into account. Of course, there is the question, whether the assignment was not after the date of the claim limitation, because then it would not matter – if there are suddenly new documents, might want to consider an application for examination by a certified print the date and signature.
Personally, to avoid fixing the error, the plaintiff by assignment, I try to raise the defense of lack of legitimacy after the expiration of the period of limitation claims the recipient. It should be remembered, that unlike the now defunct commercial proceedings currently charges may be raised at any stage of the proceedings.
Hello!
thank you for such an extensive commentary!
However, I would like to find, if you can –
so as to apply 518 by. Item. 1 kc it seems, that the issue of mutual settlements between the H and P (and thus such. reduction of the missing goods invoice for P) does not affect the principle of compensation from the transport contract. As you rightly pointed out traffic right off in this respect kc. In addition, the H was not responsible for the debt of the carrier and we will rather not personally (condition of item 1)
As for the assignment, This principle you are right. Only I would like to draw attention, that the whole matter is present insurer, which has already paid compensation unauthorized entity (because I think that such an assumption can be done) and so the potential assignment agreement between P and H should be written before filing a claim to the insurer by H – or so you believed? The other thing, that the insurer refuses to give factual and legal compensation and tells you just pay a further carrier on the basis of a number of irrelevant documents.
And if the insurer has paid compensation unauthorized entity, no as I understand it, there is no recourse to further carrier. Do you agree with this?
And to bring his action by P will be too late.
I will be grateful to dispel those doubts
greetings
godin
@ Godin
As I mentioned, concept of subrogation has drawbacks, but it seems the only, which could be applied. As for the assignment is an assignment I meant between the customer and the insurance company. Of course assignment with the current date of the recipient to the sender has no significance.
again many thanks for the hints and explanations
greetings
godin
Dear Counselor,
W pierwszej kolejności chciałem pogratulować dobrze napisanego artykułu pozwalającego na zapoznanie sie z problematyką legitymacji procesowej na gruncie konwencji CMR. Mam jednak pytanie odnośnie do jednego fragmentu Pana wypowiedzi. Otóż napisał pan, iż w sytuacji, gdy strona pozwana była spedytorem, nie przysługiwało jej prawo do potrącenia należności z tytułu uszkodzenia towaru (o ile dobrze rozumiem w drodze regresu) z należnością przewoźnika za dokonany przewóz. Czy wynika to z faktu, że spedytor traktowany jest jako nadawca? If yes, to z czego to wynika, skoro umowa spedycji jest zbliżona do umowy przewozu (a zatem spedytora można by traktować na tej podstawie jak przewoźnika głównego)? Z góry dziekuję za odpowiedź.
@ Piotr Gruszczyński
Spedytor jest nadawcą, bo zawiera z przewoźnikiem umowę przewozu. Jednocześnie nie pełni funkcji przewoźnika głównego, gdyż zawarł ze zleceniodawcą umowę spedycji. Ich pozycja jest podobna, ale nie taka sama, gdyż zakres odpowiedzialności jest znacząco różny. Ponieważ nie jest przewoźnikiem głównym, jego kontrahent nie jest podwykonawcą, ale pierwszym przewoźnikiem. Dlatego też spedytor nie może się z nim rozliczać na takiej zasadzie jak przewoźnik z podwykonawcą.
Mr. patrons,
very interesting discussion and reflection on this, which entity entitled to claim. I wonder Lord's view on the following facts in the context of the investigation of claims for damage suffered:
Producent żywności zleca współpracującej z nim firmie spedycyjnej (załóżmy na potrzeby tej dyskusji, że umowa wiążąca strony jest w istocie umową spedycji) zorganizowanie transportu międzynarodowego. Spedytor wynajmuje w tym celu firmę, która posługuje się podwykonawcą. Podwykonawca znika z towarem. Odbiorca po czasie koniecznym do uznania przesyłki za zaginioną występuje z roszczeniem przeciwko przewoźnikowi głównemu (umownemu) though, iż w świetle zawartej umowy sprzedaży zawartej z producentem nie miał obowiązku zapłaty za towar i tego nie zrobił- nie poniósł faktycznie szkody. W tym samym czasie producent żywności skutecznie dochodzi odszkodowania od spedytora (tu również załóżmy, że zasadnie). Spedytor jako nadawca, wobec faktu, wystąpienia przez odbiorcę z roszczeniami przeciwko przewoźnikowi, traci czynną legitymację do dochodzenia roszczenia przeciwko przewoźnikowi na gruncie CMR. Czy spedytor ma prawo żądania naprawienia poniesionej szkody, a jeżeli tak to od kogo?
Głowie się nad tym, fikcyjnym stanem faktycznym już od jakiegoś czasu, i nie znajduje tutaj rozwiązania, które dałoby się pogodzić ze znanymi mi poglądami doktryny i aktualną linią orzeczniczą. Ciekaw jestem Pańskiego zdania.
Regards.
@ Michael
Polskie sądy generalnie przyjmują zasadę, że legitymacja do dochodzenia roszczeń jest powiązana z prawem do rozporządzania przesyłką. Skoro przesyłka nie dotarła do odbiorcy, po stronie nadawcy wciąż istnieje stosowna legitymacja. Istotnie art. 13 paragraph. 1 CMR pozwala odbiorcy na dochodzenie roszczeń w takim wypadku, ale generalnie przyjmuje się, że jeśli z roszczeniami do przewoźnika wystąpią dwa podmioty uprawnione w myśl Konwencji CMR, za legitymowanego uważa się tego, kto rzeczywiście poniósł szkodę. W tym wypadku byłby to nadawca.