Scientific publications on transport law does not have much, but just this spring, there were a few interesting items. The some I wrote, the other I write in the future 🙂 Some time ago I decided to throw his brick to the broader science of traffic rights, and my article entitled “The concept of the sender in the light of recent developments in transport” was published in addition to the scientific Counsel No. 134 in February 2013 r. and today I write about him a few words 🙂
In this article I try to deal with a fairly common mistake of confusing the sender shipper. His writing made me that, this time the error committed …legislator. Changing traffic right on 01.01.2012 r. legislator has introduced a highly unfortunate record in art. 55to ust 2 transport law which is, that the provisions of Article. 55to ust. 1 the responsibilities of the sender shall accordingly apply to other entities that outsource transportation, as if there were some entities that hire transport, that broadcasters are not.
In this article I am presenting the current views of doctrine and jurisprudence, that with few exceptions clearly indicate, that for the sender on the traffic to be considered any entity, which includes a contract of carriage with the carrier, and so is the person who arranges transport, and not podmiot, which makes the physical loading of the goods on the vehicle.
Also introduce a number of negative effects, that would have, if indeed the sender in transport law was understood as an entity who load, how could he suggest such a provision inserted into the transport law. These effects are particularly depriving the party ordering the transport of non-shipper while any power of transport law (provisions cover only the permissions sender), impose a number of obligations on a non-party to the contract (charging party goods very often there is no agreement with the carrier, transport and law provide for a number of obligations sender to the carrier) or limiting the defense of the carrier in case of fault of the party ordering transport (excludes the liability of the carrier m.in. Wine sender).
In conclusion, I consider, that the provision of Article. 55to ust. 2 transport law should be interpreted in this way,, that for shippers, customers and other people ordering transport constitutes a statutory superfluum (provision of unnecessary or repetitive content resulting from any rule), a for the sender continues to be regarded as any entity which commissions transport.
If you are interested, do not alienate much legal language, I invite you to read full article 🙂
On the subject of the amendment to this strange movement already wrote of his time in a newspaper article of:
http://prawo.rp.pl/artykul/784588-Jak-przedsiebiorcy-powinni-ustalac-wysokosc-przewoznego-w-2012-roku.html
As entrepreneurs should determine the amount of transportable in 2012 years
The carrier and the customer can no longer make the amount of transportable or from the weight and volume of cargo, or, in principle, the distance, to which the cargo is to be transported.
The recent revision of the rules will complicate life participants in the transport process. Although regulations designed to facilitate the functioning of Polish carriers in times of crisis, the effect can be quite the opposite.
In the Act 16 September 2011 to amend the Road Transport Act and other laws (Journal of Laws 244, Item. 1454), which entered into force 1 January 2012, was disturbing for transport provision. Now, the legislature has also introduced a new Article. 55and the Law 15 November 1984 Transport Law. The analysis of the new provisions is, that the legislature did not avoid the many mistakes, hinder the application of the new rules in practice.
First of all, extremely critical to evaluate the introduction of further regulations to the transport of administrative law, and even criminal law. This normative act is in fact a classic element of civil law and this should remain. That's what works for road transport law, that there were a place for administrative and criminal legislation governing complex rules for the road.
This is another example of deterioration of law. Now, to determine the participant's administrative responsibilities of the transport process, you need to analyze a lot of normative acts. To make matters worse acts are often inconsistent with each other. Also, the clarity of the rules leaves much to be desired.
Further prohibitions
The new provision of Article. 55and transport law introduced in five points more bans for broadcasters, forwarder, recipient or transport organizer.
They define the, that the sender is prohibited:
1) ordering the carrier cabotage not holding the appropriate permit for such transportation or performing cabotage contrary to the conditions of such transport;
2) commissioning shipment of goods by road vehicle without the required permit normative for such carriage;
3) determine the conditions of carriage of goods shipment, the implementation of which could result in violation of the rules defining the conditions for the operation of road, rules governing drivers' working conditions, traffic laws or regulations on public roads;
4) include in the bill of lading and other documents, data and information inconsistent with the facts;
5) conditionality of transportable mass or volume of shipment of goods - in the case of timber transport by road, Bulk cargo, or other bulk.
Not in the Act
In my view, these regulations should be included in the Law on Road Transport. Their introduction to the transport law it is not justified. Moreover, a careful reading of the new provisions is, that in paragraph 3 includes all the other points, so their introduction does not make much sense. Criticism should also be assessed the same technical editors of those provisions. For example, which would mean the concept of the bill of lading "and other documents"?
The term "other documents" can cover so many different documents, that it is impossible to determine, about which specific documents it was the legislature. You can only guess, that the author had in mind the provisions of the documents related to the process of transportation, np. customs documentation, Receipts, loading lists, transport orders. It would be expected, that the penal provisions are drafted in a way that presents no problem,.
Art. 55to ust. 3 contains a reference to the Road Transport Act on the principles of liability for breach of the prohibitions referred to. What is interesting, however,, The provisions of the Act only provides for fines for violation of Section 1, 2 i 4. , który penalizowałby naruszenie zakazów określonych w pkt 3 i 5. It must therefore ask, what is the point in implementing the provisions, the violation of which does not, in practice, relevant to the legal effects?, which penalizowałby violation of the prohibitions referred to in points 3 i 5. It must therefore ask, what is the point in implementing the provisions, the violation of which does not, in practice, relevant to the legal effects?
How much for a violation
The new table in the annex to the Road Transport Act include a description of violations and the amount of fines for various actions:
• Carriage commissioned a foreign entity not holding the required permit cabotage - a fine 10 k. zł;
• order the carriage of goods vehicles normative entity not holding the required permit - a fine 8 k. zł;
• include in the bill of lading and other documents, data and information inconsistent with the facts - a fine 8 k. zł.
Most attention should be paid to the last point of the list of new bans. However, Article. 55to ust. 1 Item 5 prohibits the sender or the forwarder addiction of transportable mass or volume of shipment of goods - in the case of timber transport by road, Bulk cargo, or other bulk.
That is quite a revolution in the transport market, and so on 1 January 2012 you can not determine the transportable depending on the weight or volume of cargo for transportation of timber, Bulk cargo and other bulk cargo.
In support of draft amendments to the indicated, that the new prohibitions to make an impact, in which "constitutes the financially weakest carrier transportation and logistics chain is forced by these entities for violations of the law". In my opinion, that statement is completely at the introduction of the ban described.
First of all, this provision introduces a completely new concept of the offense, which has not been at all penalizes, and is to be prohibited by law. The carrier could not, therefore, be at all physically forced into the breach, if that prohibition did not apply at all.
In addition to Article. 26 Act on the working time of drivers due, the terms of remuneration of drivers can not provide remuneration, the amount of which depends on the number of miles driven or the amount of goods carried, if their use could be detrimental to road safety or encourage violations of the provisions of Regulation (WE) no 561/2006.
Commented Robert Walczak, solicitor
If the carrier and the customer can no longer make the amount of transportable or from the weight and volume of cargo, or, in principle, the distance, to which the cargo is to be transported, The question, So how do the parties have to determine the remuneration payable to the carrier? Is the new provision that, it is unacceptable that the transportable variety depending on transport 1 tons of cargo and 20 ton? Do not know the answer to this question, and the clear wording of the results, that's what has to be.
Criticism should also be assessed the same technical editors provision. It is not known because, What is meant by "other bulk". This term has not been defined anywhere, which would be expected to carry out further criminal laws. By definition, colloquial and predictive results, the case of goods transported without packaging (Bulk). It therefore seems, that would fall under this concept also, eg. fruits and vegetables.
I can not find the reasons for the diversity of situations, when transported in bulk sugar (then do not pick up a carriage depends on the weight or volume of the goods) and when the sugar is transported in packets (then it is no longer allowed). Notably, that the documentation of the parliamentary work there is no word about the prohibition referred to in paragraph 5.
In support of the bill specifically deals with the first four points, but mysteriously disappeared altogether description of the fifth. It is worth noting, that the new rules come into force 1 January 2012 r.
This meant a very short application period, amounting to little more than a month. What in this situation have to do sender, shippers and carriers, who have already negotiated (often by tendering) conditions for the provision of transport services and signed the relevant agreement for the entire year 2012? The question remains unanswered, because the amendment does not contain any transitional provisions.
@ Robert
Dear Counselor, I remember your article and completely agree with him. He also wrote about m.in. in the entry Diet broke traffic right and in the entry Citizen, take a well alone Unfortunately, unclear regulations created, which will probably for a long time raise difficulties of interpretation. The only consolation is the, that the legislature actually forgot to add to the Road Transport Act penalties for making arrangements for the remuneration of volume or mass. On the other hand, can occur voices, that such an agreement as contrary to the law is null and void. I have a problem, when such. during the execution of such a contract comes to damage in shipment. Is the carrier is liable under the laws of the transport, if you do not have a valid contract of carriage? Can pursuant to the provisions of torts? Of course, the legislature of such questions not asked…