As distinguished from the carrier, freight forwarder

Judging by the names of companies operating in the transport and widespread use of so-called. forwarding orders could be considered, that the freight forwarding business in Poland is very popular. Unfortunately, as a rule turns out to be, only that many actors considered shippers, without having them actually. In the event of damage to the goods to such persons threatened a number of serious consequences. So let's take a look at the fundamental differences between the contract of carriage and freight contract, which will, where appropriate, to make the proper classification of.

Agreement Name

The basic principle in assessing the nature of the contract is to realize, that the type of legal relationship is not determined by its name, but the content. For this reason, the names of the shipping contract, the order - which happens regularly in the transport industry - in any way prejudge, that we are dealing with the contract shipping. In many cases, the contract is so named because the ordinary contract of carriage. More rarely, there are times when the reverse, where the agreement is called a contract of carriage or transport order eventually turns out to be forwarding a contract.

The actual execution

Contrary to the opinion often encountered the fact, that the operator does not own transportation, but this task is entrusted to another person, does not matter to the certification of the agreement. According to art. 5 transport law, art. 3 CMR or art. 27 CIM it is permissible to use the services of sub carriers. Thus, entering into the contract provisions, that the carriage can be performed by subcontractors, and even to determine directly, that will actually transport entity other than the contracting party, does not affect the nature of the contract - giving the performance of the carriage to a third party is possible because both the forwarding contract and the contract of carriage. In such cases, there is a distinction between so-called. contracting carrier or entity, which contains the sender of the contract of carriage, and the actual carrier, which includes a contract of carriage with a carrier contract. Practice shows, that between the main carrier (which has an agreement with the sender) and sometimes the actual carrier is still several agents, who subcontract the carriage to the next sub-contractor. This applies in particular international road transport.

Waybill

Decisive for the distinction between the forwarding contract from the contract of carriage is not the content of the bill of lading documenting transportation. Appointed by the number of contracting argument, that if their data have not been placed on the consignment, therefore play the role of freight forwarder, is widely rejected, and the doctrine, and in numerous court decisions. Although the detailed bill plays an important role in the implementation of the contract of carriage, and moreover there is a presumption, that the data herein reflect the actual relations pages (resulting m.in. of art. 9 CMR), in practice, its importance to determine the conditions of the contract is the only auxiliary. The consignment can only be based on the situation, if there is no other evidence to determine the contracting parties and individual provisions defining the rules, on which the carriage is to be made. So if an agreement made in writing, e-mail correspondence, subscribe for instant messaging and transport markets due, that the carriage was commissioned to a specific entity, will be deemed a contracting carrier, even if the data are not placed on the consignment, for the most part is simply the actual carrier (which often have even printed their own bill of lading with your details printed in place of the determination of the carrier).

Subject of the contract

So what's the main difference between the contract of carriage, freight forwarding and contract? In both types of agreements is another object of the contract, although this difference can sometimes be quite subtle. The contract of carriage the carrier shall be obliged to transport persons or goods in the contract and the duty of forwarding Freight Forwarder organizing transport expressed in the sending or receipt of goods, or make other services related with transport. Frequently the subject of customer expectations is not it, that transportation will be organized, but that the consignment will be transported from one place to another. Thus, the vast majority of so-called. forwarding orders is in fact the nature of contracts of carriage. That view is confirmed in the jurisprudence of the Supreme Court, which in the judgment of 06.10.2004 r. ref. Akt I CK 199/04 said, assumed that if a, the question is just about the carriage of goods, and no action konkludentne not indicate the existence of additional clauses covering services related to transportation, an agreement concluded by the acceptance of the offer is strictly a contract of carriage, and is not a forwarding.

How then should sound records of the forwarding contract, that no questions have been raised as to its nature? First of all, the agreement should clearly state the, that its scope is wider than the carriage - it is, it being specified in detail. Since the basic duties of shipper must contract of carriage on behalf of the sender or to the sender, but in his own name forwarder, in a contract worth forwarding to indicate even, which of these ways the parties have chosen - the contract of carriage, such construction does not occur. In the case of adoption, that the contract of carriage is concluded in his own name forwarder, should be made for transfer to the sender's rights from the contract of carriage - or will it shortly after the contract of carriage, or for damage forwarder is obliged to assert claims on behalf of their own, and then transfer to the sender the amount recovered from the carrier. The existence of this kind in the contract provisions - characteristic of the forwarding contract - should effectively solve the problem of its classification.

The consequences of an erroneous assessment of the nature of the contract

The effect of classifying the agreement by the parties mistakenly called the forwarding contract as a contract of carriage is completely different regime of responsibility. Although the freight forwarder is responsible as a rule only limits the fault in the choice of the carrier (but he must prove lack of guilt in this regard), so much the carrier's liability is based on the principle of risk with few circumstances exempting the liability. Much more serious consequence is the rule, however, loss of insurance coverage. Many entrepreneurs consider themselves shippers is limited to only purchase liability insurance and freight forwarder does not have liability insurance carrier, that in such situations could be used. But even if they have adequate insurance, often they will not be able to use it. Considering himself a freight forwarder, care because it usually, that their data were not included in the consignment. Meanwhile, many insurance companies as a condition for the existence of insurance coverage (But let's add, not fully understood and justified) considers that the visibility of the insured in the consignment documenting transport, during which damage. Thus, when concluding contracts shippers should exercise caution, to avoid high losses in the future due to the necessity of payment of substantial damages his own property.