Supreme Court – Civil Chamber of the 2003-09-03, II CKN 415/01
Opubl: Jurisprudence of the Supreme Court Civil Chamber years 2004, No. 10, Item. 163, st. 81
Argument:
In light of Article. 4 i 9 paragraph. 1 Convention on the Contract of International Carriage of Goods by Road (CMR) (Appendix to No. 49 Dz.U. of 1962 r., Item. 238; sprost. Dz.U. of 1995 r. No. 69, Item. 352), person not a party to a contract of carriage can not be regarded as the sender only for this reason, that was identified as the consignor in the consignment.
Grounds:
Judgment of 12.6.2001 r. The Court of Appeal dismissed the appeal in Lodz, the plaintiffs, N.S.A.V. – Company siedzibą z w H., the judgment of the District (Economic Court) of Lodz 11.8.2000 r., dismissing the claim for payment of the amount 188.023,24 German marks, with interest, directed against a limited liability company under the name “O.I.T.L.” based in N.S.
Relevant facts adopted by the Court of Appeal as a basis for decision were as follows.
On 25.4.1995 r. “S.S.” Ltd. – Central and Eastern Europe z siedzibą w W. – referring to the order number B V 15 – company commissioned ” B.” w S. Road transport 20 tonnes of chewing gum on 9.5.1995 r. from the warehouse F.e.M. w C. in France to the company “I.L.” in Russia.
On 8.5.1995 r. the defendant company “O.I.T.L.” w N.S. received a fax from “N.S.” F GmbH N., Instructing cargo from chewing gum composition of the FEM. w C. to Moscow, which was based on the order number B V 15. The dispatcher told defendant to call the carriage driver to Joseph B., who stayed in France, pointing to a place of loading and delivery of the consignment. Józef B. went to the address indicated, where it has been loaded 1675 cartons of chewing gum and 23 cartons of advertising materials, then on 10.5.1995 r. He was awarded the CMR consignment note bearing the number 107447. In the letter, indicated as the sender F.e.M. based in C., as a recipient: “I.L.” w M., and as a carrier company “O.I.T.L.” w N.S., except that in this category “signature and stamp of the sender” revealed the company “D.” z M.- L.-V.; did not indicate the recipient's phone number. On the way to M. Józef B. stopped at the headquarters of the defendant, where he took a copy of the order is. Dotarciu do some M. Józef B. stopped in the parking lot, where on 21.5.1995 r. came to him an unknown man, who said, that is waiting for the shipment of chewing gum from France and was a passport and a card printed with your “J.”. Recognizing the, that this man is a representative of the recipient, Józef B. appointed him the next day, to carry the consignment to the destination. On 22.5.1995 r. at. 6 morning a man arrived at the parking lot known by Joseph B. the previous day in the company of another man, and then all went together to the Customs Office. Józef B. invoice sent to men they met, waybill and TIR in order to arrange the necessary formalities. After about two hours the men returned, and together with Joseph B. went to the building, in which the discharge, then one of the men drew previously received documents, bearing the seals of the Customs Office and the consignee. Recognizing the, documents that there is confirmation of the contract of carriage, Józef B. returned to the Polish. As it turned out, company “I.L.” w M. received no gum, the consignment delivered by Joseph B. persons recognized by him as representatives of the recipient was stolen. Conducted by the Russian authorities investigating the theft were dismissed against undetected delinquents.
On 23.5.1995 r. company “G.I.S.” W M GmbH. notified by fax company “N.S.” N f GmbH. a stolen shipment, and on 31.5.1995 r. damage reported to the insurance company “N.S.A.Y. – Society”, filii w M. In the notification, the sender identified as part of FEM. w C., as a recipient “I.L.” w M., and as the perpetrator of the damage the company “N.S.” N f GmbH. Owner of stolen chewing gum, “S.S.” Ltd. – Central and Eastern Europę, received from his insurer “N.C.” AG w W. damages in the amount 114.055,07 U.S. dollars. After the payment of compensation to the insurance company “N.C.” AG asked the Court of Munich or indemnity against the company “G.I.S.” M. f GmbH, arguing, that “S.S.” Ltd. – Central and Eastern Europę w W. Transport commissioned a chewing gum company “B.” w S., which in January 1996 r. was subjected to insolvency proceedings. On 20.6.1997 r. the parties entered into in this case the court settlement, by which “G.I.S.” W M GmbH. agreed to pay “N.C.” AG w W. amount 91.244,06 U.S. dollars with interest and costs of the process. On 30.4.1996 r. “N.S.” N f GmbH. broke all claims arising from the contract of carriage of chewing gum for the plaintiff, and on 2.7.1996 r. done the same company “G.I.S.” W M GmbH. Earlier, on 16.4.1996 r., liquidator of the company “B.” w S. made an assignment of claims arising under the contract of carriage for “N.S.” N f GmbH.
The defendant received the news of the theft of shipments on 23.5.1995 r. from “N.S.” N f GmbH. Indicated in the CMR consignment company “D.” z M. not respond to the letter requesting a representative plaintiff to determine its role in the transport of the consignment. This company has provided services to “S.S.” Ltd. – Central and Eastern Europę w W. forwarding and customs matters.
In assessing the legal set of facts, Court of Appeals concluded, that in accordance with the provisions of Article. 4 i 9 Convention on the Contract of International Carriage of Goods by Road (CMR) done at Geneva on 19.5.1956 r. (Annex to OJ. of 1962 r. No. 49, Item. 238 – further: “CMR Convention”), civil law that governs contractual liability of the carrier, waybill is evidence of the contract of carriage under terms of the Convention, and proof of receipt of goods by the carrier. Goods should be delivered to the consignee by the carrier indicated on the consignment. If the loss of the goods, recipient – as follows from Article. 13 CMR – may on its own behalf to assert claims against the carrier under the contract of carriage. This regulation does not mean, that only the recipient of the consignment is legitimized to claim against the carrier, because according to Article. 27 § 1 Item 2 Act of 12.11.1965 r. – Private international law (Dz.U. No. 46, Item. 290 – further: “p.p.m.”), the obligations of the contract of carriage, in the absence of other parties', the law of the State, which at the time the contract is established carrier. As in the case under the law has not been chosen, and the defendant being the carrier was established in Poland, application is the provision of Article. 1 paragraph. 3 Act of 15.11.1984 r. – Transport Law (Dz.U. No. 53, Item. 272 they zm. – further: “Pr.przew.”), according to which the provisions of this Act shall apply to international transport, If an international agreement provides otherwise. According to the Article. 75 paragraph. 3 Item 2 lit. b Pr.przew., claim against the carrier for loss, loss of or damage to the shipment and have the sender or receiver, depending on the, which of them have the right to dispose of the consignment. The provisions of Article. 12 i 13 CMR, governing the right to dispose of delivery, be, according to the Court of Appeals, conclude, that both the recipient, and the sender can claim in this case, the claims against the carrier for the loss of the consignment, each in his own name, regardless of the, if it works in their own interest, or in the interest of another person.
The Court of Appeal for accurate position of the Court of First Instance, that the carriage of chewing gum was performed under a single contract of carriage, that the defendant was the only carrier, and the only recipient of the company “I.L.” in Moscow and that – According to the bill of lading – sends the consignment was the company “F.e.M.” based in C., the first freight forwarder – company “D.” z M.- L.-V., because “nothing other than the plaintiff has not proved.” Also considered for the correct evaluation of the Court of Appeals of the District Court, according to which the plaintiff did not prove, it has acquired the right to assert claims of the contract of carriage from the sender “F.e.M.” z C. or from the first delivery, or company “D.” z M., did not show the transition from the power company “D.” the company “G.I.S.”, “N.S.” or “B.”. As a consequence,. Court of Appeals concluded, that agrees, recipient, that the plaintiff does not have standing to bring this case.
The appeal against the judgment of the Court of Appeal complainant – relying on two grounds provided for in Article. 393[1] KPC – requested to set aside and refer the case back to. In the context of the first indicated the violation of the provisions of Article. 75 paragraph. 3 Item 2 lit. b Pr.przew. in conjunction with. 27 § 1 Item 2 p.p.m. by erroneous assessment, that the sender of the consignment covered by the CMR Waybill No. 107447 was not “N.S.” F GmbH N., art. 4 i 9 CMR Convention by adopting, that the only evidence of the contract of carriage of a consignment note, transport and not granted the defendant's behalf by the company “N.S.” w N., and by adopting, that sends the consignment was the home of the constituent “F.e.M.” w C., which was erroneously indicated in the consignment as the sender, oraz § 67 Act of 30.5.1908 r. a contract of insurance (Dz. Set the FRG III 7632 – 1) in conjunction with. 27 § 1 Item 2 p.p.m. by omitting the confluence of the claim, which resulted not only from Article. 17 CMR, but also to § 67 of the Act on the contract of insurance. The second basis for the objection set of relevant findings of the Court of Appeal with the content of the collected material.
The Supreme Court weighed the, The following:
Placed on appeal the objection significant findings the Court of Appeal with the content of the collected material is removed from the assessment of the Supreme Court, as the basis for further appeal as provided in Article. 393[1] Item 2 KPC, in which it is permissible to challenge the correctness of factual findings, was not derived by the applicant. The Supreme Court has repeatedly emphasized in its judgments, for the sake of form of appeal, based on the grounds set out in Article. 393[1] Item 2 KPC, it is necessary that, which rules of conduct have been violated, what is infringement arises, and what could affect the outcome of the case (zob. the Supreme Court of 11.3.1997 r., III CKN 13/97, OSNC 1997, no 8, Item. 114, or on 2.4.1997 r., II CKN 98/96, OSNC 1997, no 10, Item. 144). The cassation appeal plaintiff does not satisfy the requirements set, therefore need to adopt, it does not contain the basis of Article. 393[1] Item 2 This means that KPC, that raised in the complaint alleging infringement of substantive law must be assessed against the background of the facts adopted by the Court of Appeal as a basis for judgment (zob. art. 393[11] § 2 oraz Article. 393[15] KPC).
The Court of Appeals aptly noted, that the provisions of the CMR Convention does not define in an exhaustive, who is entitled to claim damages against the carrier. With her art. 13 paragraph. 1 only result, that if the loss of the goods or if goods have not arrived after the deadline provided for in article 19, the recipient may assert in its own name against the carrier any rights arising under the contract of carriage. This regulation does not exclude delve into national legislation governing the contract of carriage, and specifically the provisions of the Act of 15.11.1984 r. – Transport Law, subsidiary that are applicable to international transport, If an international agreement provides otherwise, and the – as in the case under – have no choice (zob. art. 1 paragraph. 3 Pr.przew. in conjunction with. 27 § 1 Item 2 p.p.m.).
In accordance with Article. 75 paragraph. 3 Item 2 lit. b Pr.przew., claims against the carrier for loss, loss or damage mail sender or recipient is entitled according to the, which of them have the right to dispose of the consignment. About this, Who has the right to dispose of the consignment (“commodity” – under the provisions of the CMR Convention) Article resolved. 12 CMR, according to which the right is the sender, unless a second copy of the bill of lading was delivered to the consignee or the consignee exercises his right under Article. 13 paragraph. 1, that is demanded from the carrier issue a receipt of the consignment note and the goods on arrival at destination; henceforth have the right to dispose of the delivery only to the receiver.
The Court of Appeals correctly assessed, that in the case under the right to dispose of the consignment entitled sender, since there was no issue of the recipient the second copy of the bill of lading. The recipient could also require the carrier to deliver the second copy of the bill of lading and the goods, if the shipment was released to unauthorized persons. The set of facts is not clear but, by CMR waybill number 107447 contained a reference to authorizing the recipient to dispose of the shipment from the time the consignment note (zob. art. 12 paragraph. 3 CMR). As a consequence,. The Court of Appeal correctly adopted, that in the case under the person entitled to claim damages against the carrier sends the consignment.
Due to the multiplicity of actors, which – according to the established facts – undertake activities related to the process of transportation, on the question of locus standi of the complainant became necessary to correctly identify the legal status of these entities, a strict assessment, which one was the sender of the consignment covered by the CMR Waybill No. 107447. Considering the composition of the sender “F.e.M.” w C., The Court of Appeals directed the – as is apparent from the grounds of the judgment – content of the consignment note and the, that “nothing other than the plaintiff has not proved”. The above argument points to the need to consider the importance of, under the Convention which has waybill CMR.
Article 4 CMR is, the bill of lading is evidence of the contract of carriage; lack, irregularity or loss of the bill of lading does not affect the existence or the validity of the contract of carriage, which shall remain subject to the provisions of this Convention. Article 6 exchanging data, that should or may be contained in the consignment, a art. 9 clearly defined its role in evidence. It shows, in the absence of proof to the contrary, waybill is evidence of the contract, terms of the agreement and receipt of goods by the carrier.
The quoted normalization testify, that the bill is not a condition of carriage agreement, and its absence does not preclude treatment of the contract as a contract of carriage subject to the provisions of the CMR Convention. Thus, irregularities in the preparation of the bill of lading does not invalidate the contract of carriage does not preclude being treated as covered by the provisions of the Convention. One of the basic functions, that meets the CMR consignment note, function is evidence, But it reaches its full value only “in the absence of proof to the contrary”.
The applicant rightly criticized, that the Court of Appeal erred in holding CMR waybill number 107447 the sole evidence of the contract of carriage, and thus the identification of parties to this agreement, since the set of the facts revealed, that this letter contains contradictory information about the sender of the shipment and shipping the order came from another entity than the, which was indicated in the consignment as the sender.
CMR Convention does not contain the true definition of the sender, there is no doubt, The sender is the contractor of the carrier, or other – next to the carrier – party to the contract of carriage of goods. It need not be at the owner or holder of the broadcast spontaneous delivery; just, that is in relation to the specific title. When concluding a contract of carriage to the cargo owner may be assisted by other entities. If the owner uses the freight forwarder, which – concluding a contract of carriage – present to the carrier on its own behalf, contractor of the carrier, and thus a party to the contract of carriage, is a forwarder. In this case, forwarder becomes the subject of rights and obligations under the contract of carriage, thereby obtaining the status of the sender.
With the satisfaction of transport needs linked to a variety of activities (np. loading of goods on the means of transport, preparation of transport documents, sorting and labeling of goods, transport agreements, offer consignment for customs clearance, etc.), which – as in the case under – can be performed by different entities, which leads to the establishment of a number of legal relations between the participants of the transport process, and others. The penetration of the content of these complex legal relations, it was not necessary to resolve, which of the entities listed in the facts of this case should be assigned the status of the sender, contract of carriage has been concluded by the adoption because of the defendant's offer (order is) submitted to it by the company “N.S.” F GmbH N., which – how to think – was further forwarder. In this situation, the order was evidence of movement in the opposite meaning. 9 paragraph. 1 CMR, the basis for determining the second – next to the carrier – the contract of carriage, especially since the consignor in the consignment have been contradictory (identified as the sender: “F.e.M.” w C., while in the box “signature and stamp of the sender” – company “D.” w M.- L.-V.). As a result of the defendant's offer ( order is) Company “N.S.” N f GmbH. company has acquired the status of the other – next to the defendant – the contract of carriage, that is, the status of the sender. When different skills and taking, that the shipment was part of the sender “F.e.M.” w C., Court of Appeal did not take into account at all, that the combined entity will not have any contractual relationship with the defendant being the carrier. The position of lego Court was therefore a consequence of erroneous assumptions, that the only evidence of both the contract of carriage, and its content is the CMR consignment note.
On the basis of the CMR Convention the right to claim damages under the contract of carriage is independent of the title to the goods or the fact of the injury; it is to the person entitled, and the person so – As it was mentioned that one – is the sender of the case under. To assess the locus standi of the complainant is irrelevant in this situation raised in the grounds of the judgment issue, whether a party has acquired the right to claim from “F.e.M.” z C. or from the company “D.” z M. No matter it is also, whether the plaintiff has demonstrated the powers of the company's transition “D.” the company “G.I.S.” M. f GmbH, “N.S.” N f GmbH. i “B.” w S. Since the sender of the consignment, and thus the entity entitled to claim the contract of carriage, was the company “N.S.” F GmbH N., This is important in this respect, the assignment made by the company in favor of plaintiff on 30.4.1996 r.
The presented considerations, that raised by the applicant indicated in the infringement of the provisions of the CMR appeal was justified, become superfluous to the alleged infringement of relevance rating § 67 Act of 30.5.1908 r. a contract of insurance (Dz. Set the FRG III 7632 – 1).
On those grounds, the Supreme Court under Article. 393[13] § 1 KPC set aside the impugned judgment and referred the case to the Court of Appeal for reconsideration.
