To which court the expense of transport?

Transport industry is highly internationalized. On one hand, the transports are carried out regularly between different countries, on the other hand are not uncommon situations, when a single journey involving entities from several countries. This state of affairs makes, that in the event of damage in transport determine court seized of the matter is not obvious and requires little effort.

Transport within a single country

The least of problems makes the situation, if damage occurs during transport of the national. Parties to the agreement are typically Polish entities, So there is no doubt the jurisdiction of Polish courts. However, they may happen to accidents, when the goods entrusted to the national section of the foreign carrier. We then have to deal with so-called. cabotage transport. For such operations do not apply to international transport conventions, therefore no possibility of determining the jurisdiction of the court on the basis of not. In such situations it is necessary to determine the residency of the person, against which we intend to apply to the court.

If it's in the European Union, Regulation will apply (EU) no 44/2001 of 22.12.2000 r. on jurisdiction and recognition and enforcement of judgments in civil. The basic principle laid down in Article. 2 Regulation is the possibility of suing the defendant in the court of the State, in which he is domiciled. Fortunately for the plaintiff in the case of claims agreements - and therefore the contract of carriage - possible referral to the court of, where the contract was or was to be made (art. 5 Item 1).

When the defendant carrier's headquarters is located outside the European Union, it is necessary to appeal to the provisions of the Polish Code of Civil Procedure define the jurisdiction of the national. Again, the principle is to direct the case to the court of the defendant (art. 1103), but as described regulation for claims arising under the contract it is possible to refer the matter to the Polish court, if the obligation has been or would be made for the Polish (art. 1103⁷).

In practice, therefore, claims for cabotage operations taking place on Polish territory can be considered by the Polish courts.

Of course, both under Regulation 44/2001 and in accordance with the Polish Code of Civil Procedure can be determined in the agreement the parties, that the Polish court will have jurisdiction to hear the case. In this case, it is not possible to drive the case to the court in any other country.

Insurance cabotage

Most carriers use of third party liability insurance. Victims often driven so their claims directly to insurance. Such situations have been in Regulation No 44/2001 dealt with separately and in a way highly favorable to injured. In accordance with Article. 9-11 Regulation, it is possible to sue an insurance either before the court of, in which the plant is established, policyholder is established, insured or the beneficiary, and - in cases of liability insurance - before the court of, in which there was a harmful event, and also before the court, in which the original claim is pending against the insured.

Much more difficult is the situation as the plaintiff's insurance – accordance with Article. 12 Regulation can only sue in the courts of the State, in which the defendant is domiciled.

Similarly, favorable to the victim are the regulations of the Polish Code of Civil Procedure. W myśl art. 1103⁵ k.p.c. Cases from the ratio of insurance against the insurer Polish courts have jurisdiction, m.in. if the plaintiff is domiciled in Poland, in matters of civil liability insurance if the harmful event took place in Poland.

As can be seen also in the case of claims for cabotage in the Polish-led directly to the insurance, the matter may be submitted to the Polish courts.

It should be noted, that in contrast to the claims directed against the perpetrator, parties have no contractual freedom in shaping the court competent to hear the case against the insurance company. With regard to jurisdiction by the provisions of the Code of Civil Procedure in general is not permitted off the jurisdiction of Polish courts, in the case of jurisdiction based on Regulation No 44/2001 accordance with Article. 13 agreement on jurisdiction may be made only in very specific situations.

International transport

Otherwise regulated is a matter of compensation for damage caused during the international road haulage under the CMR Convention. The Convention contains provisions on the autonomous jurisdiction of the courts, and application to claims arising therefrom Regulation 44/2001 or the Polish Code of Civil Procedure is not allowed (although, unfortunately, the courts often erroneously based its jurisdiction is based on Regulation).

In accordance with Article. 31 paragraph. 1 Convention in all disputes, arising out of carriage under the Convention, plaintiff may bring the matter to the courts of the contracting countries, defined by the, and moreover, the courts country, in which the defendant is domiciled, headquarters, branch or agency, through which the contract of carriage or which the place of receipt of goods to the carrier or the place of delivery. Management of cases to other courts is not permitted under the Convention.

A very common mistake is to treat the jurisdiction of the court agreed by the parties in the contract as the exclusive. Meanwhile, according to the Convention Parties can agree to only an additional court - niewynikający of the provisions of the Convention - can not exclude the jurisdiction of the courts, which is appropriate in accordance with Article. 31 paragraph. 1 lit a lub b. So even if the parties agreed to the competent court, each party independently of this agreement may bring the matter such. the court of delivery of a consignment. By entering into a contract of carriage so you can not guard against this, that the other party will refer the case to court in another Member. Attempts to provisioning in the contract, that a particular court has exclusive jurisdiction to be ineffective, and sometimes harmful. In some judgments indicate, that such a provision is invalid, not only for, which excludes the jurisdiction of other courts, but invalid as a whole. Paradoxically, therefore, limit the jurisdiction of other courts, may lead to the exclusion of that court's jurisdiction, in which we care most.

About a proper recording contract should be taking care in particular, making the transport of carriers on routes between foreign countries, the other party to the contract is a foreign entity. In the absence of appropriate contractual provisions will not in fact able to direct the case to the Polish court, as both the defendant and the place of loading and unloading will be located outside Polish borders.

Claims between carriers

Treated differently in the CMR Convention between the jurisdiction in which such carriers sukcesywnymi, who perform transportation under the single contract and one bill of lading. In accordance with Article. 39 paragraph. 2 Convention, a carrier, which makes a contribution or indemnity after meeting the victim, should refer the matter to the court of, wherein at least one of the other carriers successive is domiciled, headquarters, branch or agency, through which the contract of carriage. For such a court can bring an action against all the successive carriers. In this case, the conclusion of a jurisdiction is not at all acceptable, and any contractual provisions in this respect are invalid.

It should be remembered, that described above relates only to claims between carriers sukcesywnymi, and does not apply in the case of claims against the subcontractors. Definitely more so (Transportation uniquely occur successively) you will need to apply the basic rules relating to jurisdiction in the CMR Convention.

Polish court but which?

Self determination, that the case falls within the jurisdiction of Polish courts, does not yet answer the question, to which the court should specifically address a lawsuit. It is worth to point out the distinction between the jurisdiction of the defining, which country the dispute is to be recognized, a feature that indicates, the court in the country has to recognize the case. In this regard, silent Regulation No. 44/2001 and the CMR Convention, leaving the decision entirely to the provisions of law applicable in this case, the Code of Civil Procedure.

In accordance with Article. 27 i 30 k.p.c. primary place of, which should be directed to the lawsuit, is court of a resident defendant. In the case of claims against foreign entities will not find such a basis, however, apply. Then you can use the commutative property referred to in Article. 34 k.p.c., according to which an action to establish the existence of the contract, its execution, termination or cancellation, and about compensation due to non-performance or improper performance of the contract may be brought before the court of its implementation. As a rule, you'll be able to refer the matter to the court of the place of delivery, in the case of claims for payment of freightage to the court office of the creditor (as a monetary obligation should be met at the headquarters of the creditor). Parties may also determine the competent court in a written agreement – in this case are to be regarded as exclusive jurisdiction to hear the case (within the jurisdiction).

In addition, for claims arising from insurance contracts in accordance with Article. 9 Insurance Activities Act action may be brought either by the general properties, or before court having jurisdiction in the place of residence of the policyholder, Insured, beneficiary or the beneficiary of the insurance contract.

Sometimes, however, a situation, in which none of the above described property will not apply (np. in case of damage in delivery occurring outside the Polish). Then, in accordance with Article. 45 k.p.c. competent court shall be appointed by the Supreme Court. As a rule, it will be a court having jurisdiction due to plaintiff's office.

It should be remembered, that under the current rules it is possible to refer the matter to any appropriate material and (district or county) court in Poland (If the Polish courts have jurisdiction) even if it is not appropriate in light of the above principles, and the court is obliged to recognize the case, unless the other party in the first steps of the process raises objection on lack of. Feel free to use this approach especially in cases, when the court would be appointed by the Supreme Court, it significantly shortens the procedure, and charges relating to the jurisdiction of the court (other than allegations of jurisdiction of Polish courts) are extremely rare raised by the respondent foreign entities.