Admissibility limits of liability of the carrier

The inspiration to write this entry was my argument about the nature of the transport law (ius ius cogens czy dispositivum) with known attorney in the transport industry. Beata Janicka during the seminar. Liability rules shipper and the carrier the Insurance Meeting Point.

In practice, often have been cases (especially in the case of courier), when the contract of carriage limit for compensation for damage in shipment or a delay in the delivery shall be fixed at the level of deviating from the provisions of traffic rights or the right of an international convention. Still the question remains valid, or contractual limitations are acceptable carrier's liability in relation to statutory regulation.

International transport

In the case of international travel poses no special response to the problems. Each of the Convention relating to the liability of carriers (CMR Convention in relation to carriage by road, The COTIF in relation to rail, The Montreal Convention and Warsaw Convention for air) the one hand, the limits of compensation (art. 23 paragraph. 3 CMR, art. 30 CIM - Annex B to COTIF, art. 21-22 Montreal Convention i art. 22 Warsaw Convention), the other is, that any provisions which are contrary to the provisions of the Convention are invalid (art. 41 CMR, art. 5 CIM - Annex B to COTIF, art. 26 i 49 Montreal Convention, art. 22 i 32 Warsaw Convention).

National transport

The situation is somewhat different with regard to national transport. Transportation Law, contains the art. 80 limit of compensation due for damage in shipment, However, in the absence of a provision prohibiting the contract otherwise. So it is possible discretion in this area, and the parties may modify the statutory regulations? The general opinion of experts in transport law so the question must be answered in the negative. In the literature on transport law clearly dominates the view, that traffic laws are in the vast majority of mandatory. Different view, in practice, not in major scientific publications. It is emphasized, transport law that the provisions represent a compromise between the interests of carriers and their customers, which should not be violated due to a stronger negotiating position of either party (the best proof of the danger are those applied by international courier). Also indicate, that if the traffic laws could be changed at all would be unnecessary to existing regulations in the Civil Code. It is also noted, such a nature that the Polish legislation is an expression of global trends, as evidenced by entries in the various international conventions.

The Supreme Court has so far directly on the subject did not express, although in some rulings confirmed the mandatory nature of the various transport law. You should also remember, that judgment of the Supreme Court of 25 January 2007 r. ref. Act V CSK 420/06 sometimes cited as a basis for modifying the provisions of the transport law, is clearly, that such modification is possible only within the limits set by Article. 353¹ k.c. Modifying such it can not oppose the mandatory rules, which - as noted above - includes most of the transport law.

It should be noted, that the absolute nature of the transport law also draws attention to the President of the Office of Competition and Consumers whether in consumer guide for transport services, whether in report on the Functioning of courier companies.

Also in Register of Prohibited Clauses decisions by the Court of Competition and Consumer Protection found a number of provisions limiting the amount of compensation paid by carriers in relation to the statutory regulations. The clauses are forbidden for transport, however, subject to a different entry.

So, be careful, when assessing the scope of liability of the carrier guided primarily by law, and not the contractual provisions.