III CKN 23-98

Supreme Court – Civil Chamber of the 1998-11-17, III CKN 23/98

Opubl: Jurisprudence of the Supreme Court Civil Chamber years 1999, No. 4, Item. 85, st. 92

Argument:

Carrier exemption to the circumstances listed in Article. 17 paragraph. 2 Convention on the Contract for the International Carriage Road (CMR) – (Dz.U. No. 49, Item. 238 they zm.) can be classified as robbery accomplished using a weapon or threat of its use.

---

Composition of the:

Chairman: Judge SN H. Heat
Judges of the Supreme Court: B. Czech, The. Ostrich (Rapporteur)

Sentence:

The Supreme Court after the diagnosis on 17 November 1998 r. At the hearing the case filed by Adam W. against Miroslaw S. for payment, as a result of the defendant's appeal from the judgment of the Court of Appeal of Białystok 14 October 1997 r. ref. act (…) set aside the impugned judgment and remanded the case back to the Court of Appeals in Bialystok, leaving that court decision on costs cassation proceedings.

Grounds:

Court of Appeal judgment of Białystok 4 October 1997 r. in a case brought by Adam W., leading trading company, dismissed the appeal of the defendant Miroslaw S., leading transport company, the judgment of the Regional Economic Court in Białystok, ordering the defendant to pay the plaintiff 50.075,31 zł with interest and costs of the process.

The basis for this decision was the determination, the defendant as the carrier has undertaken to the plaintiff – broadcasters to transport furniture from the Polish Republic to Moscow to the specified address of the recipient. Parties have fulfilled the international car shipping bill. Common ground between them is, that the carrier did not deliver the goods recipient, and the recipient does not pay the sender.

Court of appeal, sharing the findings and assessments made in the first instance, said, that the liability of the defendant is at the basis of the Convention on the Contract for the International Carriage Road (CMR) of 1956 r. (Dz.U. 1962 r. No. 49, Item. 238 they zm.), and the defendant against the obligation resulting from Article. 18 paragraph. 1 Convention failed to demonstrate the existence of circumstances exemption, provided for in Article. 17 paragraph. 2. In particular, the, referring to the certification made by the defendant Board of Internal Affairs Northern District Administrative m. Moscow's criminal proceedings conducted in connection with the theft by unidentified persons shipment is the subject matter, The Court of Appeal expressed the view, that the carrier is liable to the sender on the basis of risk and is not released even in the event of theft (Shipment) taking on the form of armed robbery.

The defendant's appeal as the basis of quoted: violation of Article. 11 KPC dismissing the defendant's application to stay the proceedings and prevent the plaintiff to prove, that the plaintiff is liable for damage, and a violation of Article. 381 KPC by its improper use, and refusal to take evidence on appeal, and a violation of substantive law by not complying with Article. 471 § 1 KC i art. 7 paragraph. 1 oraz Article. 17 paragraph. 2 Convention on the Contract for the International Carriage Road (CMR).

The Supreme Court weighed the, The following:

Outside the scope of the discussion must remain new facts cited in the appeal, in which the applicant seeks to show, that the plaintiff issued a bill of lading with the address, under which the recipient does not exist, and after zatelefonowaniu by the driver according to the instructions of the plaintiff under the number indicated by the, came bandits, who stole the goods.

Wrong was established in the second base of cassation violation of Article. 11 KPC. This provision applies to the binding force of the judgment of conviction in a criminal case, and it is undisputed, that at the time of adjudication by a court of the second instance verdict, having an impact on the findings in this case, it did not fall.

Unjustified first base is also a breach of Article seeing cassation. 7 paragraph. 1 Convention, because it is not based on the facts established by a court, but not yet proven the defendant's statements to send the goods by the plaintiff in a non-existent address.

However, accuracy can not be denied the charge of violation of Article. 381 KPC. This provision ensures the smooth functioning of civil proceedings, in which the active duty and the welfare of the factual allegations and the burden to present evidence. Therefore, if the withdrawal before the court of first instance to request a hearing as a witness carrier, the driver was the result of negligence, may be regarded as justified by the adverse effects of the load it procedural. However, deciding for evidence of the second instance court already had a copy of the notification of the commission of the offense, lodged at the local Prosecutor's Office, in which the defendant's attorney also says the action taken in order to establish the circumstances of absconding with the goods. Given the distance and the usual difficulties in dealing with law enforcement authorities in a foreign country, could not be excluded, that the evidence from the testimony of this witness took objectively more power, and therefore the desirability of his conduct was the result of not only rejects a plea, overrun by the defendant recklessly, lack of legitimacy of the passive.

Nor can we agree with the interpretation of Article cited. 17 paragraph. 2 Convention. Relevant is the observation of the court of second instance, that causes the release of the carrier's liability for improper performance of the contract is subject to the provisions of Convention CMR is regulated differently than in the act of 15 November 1984 r. – Transport Law (t.j. Dz.U. of 1995 r. No. 119, Item. 575 they zm.). In Convention because, dependent causes beyond the parties to the contract, provides for the exemption of the carrier in the event of circumstances, which the carrier could not avoid and the consequences of which could not prevent, and they do not necessarily have the character of force majeure. A list of these circumstances can not be closed, and if they are not mentioned in the Convention, please refer to the general rules of performance. Among these is the obligation to exercise due diligence, taking into account the, in relation to the matter in question, the professional nature of. These obligations require the driver definitely use caution while driving and parking, while leaving the vehicle, choosing places to relax or night, when dealing with third parties, in the choice of means of transport and the use of closures, itd. There is, however, in the light of Article. 355 KC grounds to charge carrier transport in the international automotive absolute duty to prevent the effects of robbery with the threat or use of weapons, because such a task would be impossible, and his liability would be based not on the principle of risk, but it was the absolute, which is an exception to civil relations.

From these reasons, the decision made on the basis of a different interpretation of Article. 17 paragraph. 2 Convention can not stand. That is why the Supreme Court under Article. 393[13] § 1 KPC has ruled as the ruling.