A unilateral change of contract of carriage parts. 2

Last week I described the Polish regulations allow you to change the essential provisions of the contract of carriage by one party without the consent of the other. This time, the time for an international solution

Equivalent to the Polish regulations in the CMR Convention

CMR Convention art. 12 contains the equivalent of art. 53 Polish transport law allowing the unilateral variation of contract of carriage. The very design of the two provisions is similar, However, there are significant differences between them, which can lead to erroneous application. The basic difference is evident from the start rule art. 12 – it provides the possibility of disposal of goods by the sender, in particular, to ask the carrier to stop the carriage, changes in the place designated for delivery of the goods or delivery to the consignee other than those indicated in the consignment. Thus, while the Polish regulations define an exhaustive list of interference in the contract of carriage - the waiver, change the place of delivery and change of person the customer - so far CMR Convention provides only a catalog of examples of changes. It must therefore be, that the sender is also entitled to other than those specified in art. 12 modification of the contract of carriage dispose (np. at the time of delivery). In any case, but it will change the contract of carriage, and not cancel it (even if ordered to return the consignment to the loading).

Who can change the contract

Unlike the Polish transport law rule is, that only the sender has the right to dispose of the goods. Permission is granted recipient, If the reservation will be applicable Bill of Lading. Broadcaster loses the ability to change the contract of carriage upon to provide the recipient a copy of the bill of lading accompanying the shipment or consignment on arrival at destination and request its issuance by the recipient. At this point, the powers transferred to the recipient. Eligible customers in terms of changing the contract of carriage (as far as he is entitled) not differ from the rights of broadcasters, with one exception - if the customer ordered the delivery of the consignment to another person, This person may not appoint a receiver.

How do I make changes to the contract

The procedure for issuing commands to change the contract CMR is strictly formalized. The authorized carrier shall present the first copy of the bill of lading, which should be included in new instructions to the carrier. In the jurisprudence of foreign courts, however, admitted the situation, in which the parties have agreed, that the carrier will be required to execute the commands also change the itinerary without having to submit a bill of lading. Provide a copy of the letter will also need the, when the parties agreed to change the contract of carriage, so change was not the result of unilateral action by the person authorized.

Doubts emerged about the situation, in which the bill was not at all exposed. In such a case, in general it is possible to dispose of delivery by an authorized? In one of the German Supreme Court rulings were - contrary to a literal following provision - that such a change is permissible. In the absence of right to change the bill of lading may, however, carry only the sender.

These requirements do not apply to customer orders already issued some time after being provided with the second copy of the bill of lading. So they can be transmitted orally without appropriate endorsement on the bill of lading, though of course in such cases may have problems with proving the fact of issue of the.

Exclusion of the obligation to comply with the command

Just as in the Polish transport law CMR Convention contains a catalog of situations, where the carrier is not obliged to execute. However, they are formulated differently than in the Polish. Although the Polish regulation sets out the cases, where the carrier may refuse to make such changes. If the command is to disturb the operation of the carriers, the more similar cases CMR Convention formulated as additional conditions of issue of the possibility of such. If the command does not disturb the working of the carriers.

The difference is significant. In Polish law there was no doubt the transport, that the carrier had to prove, that the command was not possible under the circumstances. The CMR Convention appeared the dispute as to whether, who bears the burden of proving such a situation. Is that the carrier has to prove, that interfere with the operation of executing the company, or issuing the command should show, that its implementation will not affect operation? From a rational point of view of proof should be borne by the carrier rather, because only he has access to information identifying such. businesses operating rules. The German Supreme Court in one of the cases, however, said, that since the possibility of execution of a command has been formulated as a condition of his release, the applicant should demonstrate this fact. However, you can have doubts about whether such an interpretation of a provision to disseminate.

Product exemption is similar to the Polish regulations. First of all, the command It should be possible to perform at, when the instructions reach the carrier. In this case, however, not only in the sense of possibility but also the actual legal. The Convention contains no separate grounds for refusal of execution of the instruction manual in the form of non-compliance with the law - such a situation therefore falls under the category of inability to enforce the command.

Following the instructions also should not interfere with the normal working of the carriers or prejudice the senders or consignees of other consignments. As indicated in the previous part of the article, This condition is relatively easy to raise the carrier - now very common carrier transportation for executing a specific location has yet been provided with transport order from this place or another nearby village. Execution of the contract award would change the inability to take another load arranged within. There is no doubt, in that case, the carrier has the right to refuse an instruction.

The last case of exclusion of the duty to execute the command is situation, in which its implementation would result in splitting. There is dispute whether this means, that the instructions may be issued only for full truck shipments, but rather should take the position, it is also acceptable in the situation, when the carriage consisting of several parcels, which exhibited different packing lists. In this case the statement may be issued only in respect of the entire consignment covered by a single transport.

If due to circumstances described above, the carrier can not execute the received instructions, it shall immediately notify the person, from which instructions are derived.

The person issuing the request to change the contract of carriage has to reckon with need to cover all costs and damages, involved with the implementation of instructions. It is, that this also includes the lost profit of the carrier.

Compensation for damages

Failure by the carrier to the command was issued to it or execute it without request submission of copy of the consignment note the liability arises the resultant damage. That damage may include damage to the cargo (np. where non-command led to its decay). Differently than in the case of other damage in shipment Convention does not provide here the upper limit of compensation. It is a pity, therefore, should be compensated in full amount.

The above liability is absolute and there are no circumstances, which can be disabled, in particular, it depends on the existence of fault of the carrier.

Concluding Remarks

Existing regulations allow entities commissioning the carriage of a large flexibility and allow considerable control over the transportation. Are a threat to the interests of carriers, hindering accurate business plan. Product exemptions obligation to execute the instructions, however, is wide enough, that operators can avoid the negative consequences of carrying out orders. For this it is necessary but knowledge of the applicable legal regulations, so it is not, however, still the best.