Both domestic and international transport law is based on some kind of compromise between the interests of carriers and their customers. This compromise on the one hand appoint strict liability rules based on the principle of risk on the other limitations on the compensation. These restrictions are not only limits the amounts of compensation, but also specific rules, often significantly different from the basic rules of civil law.
Phe right movement
The basis of a directive on procedures for determining the amount of compensation for damage in shipment in domestic can be found in art. 788 § 1 k.c. forming, that compensation for loss, loss or damage shall not exceed the normal value of the consignment, unless the damage resulted from willful misconduct or gross negligence. This rule is essential, although in a few cases it will be applied directly, as the Civil Code governing the contract of carriage explicitly refer to the practice for the transportation of a horse - Other categories of transport to be governed by przewozowemu. However, this does not diminish the importance of this provision, which can also be used to modify the amount of compensation calculated on the basis of transport law, if it significantly exceeds the normal value of the shipment. The concept of the normal value of the consignment has not been defined in the Act, but the doctrine is assumed, it is the market value defined as the price, for which good data can be acquired by any entity without making special efforts.
Described the instantiation rules are rules for determining the amount of compensation as provided by the transport. Art. 80 paragraph. 1 pr. wire. introduces a hierarchy of ways rather formalistic, which can be used to determine the amount of compensation. The use of the method of standing lower in the hierarchy is therefore only possible, If it is impossible to use the method with a higher priority.
According to art. 80 paragraph. 1 Item 1 pr. wire. the basic criterion, on which to determine the compensation is the price indicated in the statement of the supplier or vendor. It should be noted, that - as clearly shows the a / rules - it is not true quite commonly repeated argument, that compensation in transport law generally does not include lost profits and is limited to actual loss. Account of the seller usually covers just because m.in. profit of retailer, because commercial activity is the sale of goods to other entities at a price higher than their purchase price by the seller. In light of that provision so the seller may claim compensation not only for the actual loss - which is the amount, which gave, to buy goods of the consignment (or need to re-purchase), but the amount of, after which he decided to sell it.
It should be emphasized, that the carrier, paying compensation, is related to the amount of bill, even if the resulting price exceeds the market price. Only in the case, it is a blatant overstatement, it is possible to attempt to modify the amount of compensation on the basis of the already mentioned general rule, that compensation should not exceed the normal value of the consignment.
Consequently, also in a situation, when the price described in the bill is significantly lower than market prices, It is the binding basis for determining compensation. This is particularly the sale of promotional materials or goods, the price of which results from the broader relationship between the parties (np. between related parties and sales of mobile phones for a low price in exchange for fixed charges for telecommunications services). The binding nature of the price resulting from the calculation of mean, that even, if the claimant proves, that the actual value of the shipment was significantly higher, compensation is limited to the amount indicated in the statement.
In the event that the price contained in the bill include indirect taxes (podatek VAT, excise tax) principle described above may suffer modifications due to entitlement to a refund. This issue will describe in detail in a subsequent article.
It should also be noted, that some commentators are of the opinion, that art. 80 paragraph. 1 Item 1 pr. wire. refers only to the account attached to the consignment, the content of which was the carrier known, ground necessary to enable the carrier to calculate the risk performance of the carriage. So far, however, this concept was not confirmed in the jurisprudence.
In the absence of compensation account shall be determined based on the list at the date of postage for the carriage (art. 80 paragraph. 1 Item 2), and if there is also such a price list according to the things of the same genus and species of the place and time they give (art. 80 paragraph. 1 Item 3). In the latter case it is possible to use any evidence to demonstrate the value of goods of the same genus and species.
While the above two methods do not raise specific controversy, in so much greater doubt arise in regard to art. 80 paragraph. 2 which is, that, if unable to determine the amount of compensation on the basis of three criteria described above, This sets the height of the appraiser. The doctrine in question is the, or appraiser may be appointed by agreement of the parties at any time, or only in situations where there are no accounts and pricing, and establish the value of goods of the same genus and species poses undue hardship or without the participation of experts is impossible. The literal interpretation of the provision leads to this second position, although we can not deny the rationality of the arguments of commentators claiming, prohibit the parties find it difficult to take concerted action in order to clearly resolve the dispute through joint appointment of appraisers fixing the amount of damages.
These rules relate to the situation of the loss or loss of the consignment. In case of damage, according to art. 86 paragraph. 1 pr. wire. compensation shall be equal to the percentage decrease in the value of. In most cases, any compensation will be reimbursed to repair damage. However, the Application will control art. 86 paragraph. 2 pr. wire. which is, that the amount of compensation for damage shall not exceed the amount of compensation owed for the loss of the whole consignment, and if the damage occurred as a result of the reduction of the only parts of the load - the amount of compensation for the loss of that part of the consignment. It should be emphasized, that the regulation does not mean, that the compensation shall be granted only for that portion of the consignment, which has been damaged. It is possible because, that due to damage to the lower part of the consignment is another part, that without the defective part has no meaning for the person eligible.
The above-described limitations of damages will not however apply, if the damage resulted from the willful misconduct of the carrier or its gross negligence. Discussion of this rule, however, greatly exceed the scope of this article.
CMR Convention
Much less formalized are the rules for determining compensation for damage in przesyłach be transported under the CMR Convention.
General rule laid down in art. 23 paragraph. 1 is, that compensation for total or partial loss of goods shall be calculated according to the value of the acquisition time and place for carriage. Value is determined by stock price, in its absence - which is the rule - according to current market price, and if this also not be determined, according to the normal value of goods of the same kind and quality. Account issued by the seller so there is no such meaning as in transport law and represents only one of the measures under the discretion of the evidence. Moreover, in situations, the price indicated on the bill will not be the same as the price of the stock market, priority will be given this second. In the jurisprudence of foreign courts also highlights the, that the commodity price to determine the location and time of consignment to carry no matter the cost of manufacturing, but the price at which goods could be sold in the ordinary course without taking into account the special ties between the seller and buyer.
Unlike transport law rules of the Convention in addition to the criteria for determining the amounts of compensation has even reduce its height. According to art. 23 paragraph. 3 Convention as amended by the Protocol of 1978 r. (the doubts of its ratification by Poland mentioned in the entry "It is doubtful the changes in the CMR Convention") compensation may not exceed 8,33 SDR Sat 1 kg of gross weight short. Limit conversion into national currency shall be in accordance with art. 23 paragraph. 7 the date of judgment or any other date agreed by the parties (Polish translation of that article, unfortunately deviates from the original and speaks of the date of assessment instead of judgment). The described reduction is crucial, since in many cases in the carriage of goods are damaged by a small weight, but of significant value, which in the absence of qualified fault of the carrier causes, that the resulting compensation is only a fraction of damage actually suffered. An example can be case subject to recognition last year by the European Court of Justice (in Poland, often called the European Court of Justice ECJ in brief), which was missing in the transport server weighs several kilograms worth tens of thousands of euros (although in this case, the courts made just unlimited obligation to pay compensation due to gross negligence of the carrier).
Similarly to the transport law is entered in the Convention issue of compensation for damage to a. According to art. 25 paragraph. 1 principle is to pay compensation in the amount of, by which the decreased value of the goods. This amount can not exceed the amount, payable in the event of loss of the whole consignment, and if only part of the consignment has lost as a result of damage - the amount payable in the event of loss of, which has lost value.
Analogy of the transportation law can also be traced in the regulation provided for in art. 29 Convention forming, that the carrier may not use the provisions of the Convention, which limit or exclude his liability or pass on the burden of proof on the other side, if the damage was caused by willful misconduct or negligence, which according to the law of the court case detection is considered as equivalent to willful fault. The consequences of the qualified fault of the carrier so they are a little wider - not just to remove the limitation of liability, but also favorable to the carrier the burden of proof. It should be noted, that appeal to the law makes the court seised, that in different countries, the same behavior can be assessed differently, and act as a basis for acceptance of guilt qualified carrier in one country, in another country may not constitute a basis for exclusion of liability limits.
The above mentioned principles, both in transport law and CMR are mandatory, and agreement between the parties can not modify them. Compliance is therefore necessary for the proper determination of compensation for damage in shipment. It should also be noted, that the rules of compensation experience modification calculation in the case, when there is a declaration of value of goods by the sender. However, this requires a separate discussion in a subsequent article.
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