Who can assert claims of the contract of carriage of goods

From time to time I get a chance to analyze the validity of claims directed to the insurance from the insurance carrier's liability (OCP) after a total liquidation. Not always reading act is a testament to the professionalism szkodowych claim adjusters. The main task in assessing the validity of claims submitted should be an analysis, whether the claimant is entitled to its recovery. The practice of action of many insurance companies, however, shows, that this issue is often overlooked in the course of the liquidation. Similarly, the carriers themselves are progressing well, for which compensation claims are formulated. Often this results in a payment of compensation, which to applicants with requests do not belong.

General principles of liability and transportation law

The rule in civil law is, that the compensation claim is the person, who has suffered damage as a result of specific circumstances. In the case of claims based on the contract is usually a person who is party to a contract with the debtor. Transport Law, although it is part of the civil law, introduced far-reaching exceptions to this rule. Substantive legitimacy of the injured person was replaced here the formal legitimacy of the person indicated in the regulations as a qualifying. This means that, that the claim may be requested by the person, which in fact has suffered no damage, provided, that belongs to a class of persons authorized by law. It does not follow, however,, that applying for compensation for damage in shipment is not required to prove damages - the fact of injury and the amount still must be demonstrated by an authorized. The holder does not need to prove the, that the damage in his property. Consequently, the above rule in the reverse situation, when the claim is the victim, but that is not indicated in the regulations as being eligible, Such a claim should not be satisfied.

A national

In the Polish transport law under art. 75 paragraph. 3 Item 2 lit b entitled to claim compensation for damage in shipment is the sender or recipient, depending on, which of them has the right to dispose of the consignment. According to art. 53 pr.przew. such a right in the course of transportation as a rule, have the sender (unless he has a copy of the bill of lading the consignee), However, it passes to the recipient m.in. upon the acceptance by the bill of lading or receipt of delivery. In most cases, so claims the contract of carriage shall be entitled to the recipient, and not the sender. The most commonly reported injury concern for damage to or destruction of the consignment, when the recipient of that fact in the accepted Bill of Lading. And in case of loss of shipment usually entitled to claim will be the sender, or if the shipment, or bill of lading are not issued to the recipient.

International regulations

In a similar way to formulate the legitimacy of claims settled in the international conventions relating to rail freight. W art. 44 § 1 Annex B to COTIF containing the Uniform Rules concerning the Contract of International Carriage of Goods by Rail (CIM) provided, that in principle the right to seek transfer from the sender to the recipient with the adoption of the bill of lading or receipt of delivery by the latter. In addition, however, art. 17 § 3 indicated, the customer may lodge claims with the contract of carriage in case of loss of the consignment.

Poses far more problems to determine the person entitled to the CMR Convention regulating international road transport of goods. In addition to the statement in art. 13 paragraph. 1, that in case of loss of the consignment the consignee may claim rights to this title, CMR Convention does not specify a person entitled to claim. This treatment resulted in a rash of true doctrine and case law of member states of the Convention on the theory, who has the right to assert claims under the Convention of the contracts of carriage. The authorized persons are mentioned so m.in. entities having the right to dispose of delivery, actually injured, party to the contract of carriage or a person designated by national law. There is no doubt, that such a great number of theories about the fundamental issues, which is to determine the legitimacy to claim, does not facilitate the actions of both parties to the transport contract and insurance.

Fortunately, in the case of proceedings before the Polish courts seem to, that the issue was finally resolved in two decisions of the Supreme Court: of 3 September 2003 r. ref. act II CKN 415/01 and of 5 December 2003 r. ref. act IV CK 264/02. In both decisions, the Supreme Court held, that the absence of a definition of the person entitled to the CMR Convention refer to the Polish transport law, which involves the right to claim the right to dispose of the consignment. Because the CMR Convention shall in art. 12, who has the rights to dispose of the consignment, should be, This is a provision that determines the category of persons entitled to claim. According to its content as a rule, authority to dispose of delivery are entitled to the sender until the recipient to forward the second copy of the bill of lading (accompanying the consignment) or require the recipient to issue him with shipment. After the transfer of rights bill of lading recipient so the recipient passes. This means that, that also in the case of international road transport in most cases damage in shipment will be eligible recipient, and not the sender.

Subcontractors

It is worth to make a reservation, that these considerations apply to the relationship between the parties to the contract of carriage and the carrier is often referred to as the primary contracting carrier. Different as the issue of claims against the subcontractors of parent ie. the actual carrier. As a subcontractor acting on behalf of parent is not bound by any relationship or the sender, neither with the recipient, only entity, which may make against the subcontractor carrier, who ordered the transportation subcontractor (appearing to him as the sender). Such rights are not entitled to the sender and receiver, who can direct his claim against the carrier main.

The practice of conduct

Although the legitimacy of the applicant the damage is as important to estimate the carrier's liability, in insurance liquidation proceedings often focus on the last element. Meanwhile, a significant percentage of cases with claims of unauthorized persons are. This is because such a claim against the carrier directs the operator, who has with him a contract of carriage or the sender, are not always who is also the recipient (if an entity has such a consignment to your address appears in the dual role of the sender and receiver). As indicated above the, In most cases, the right to claim the recipient is entitled, and not the sender. Often, therefore, comes to pay compensation to an unauthorized person. This payment must be assessed under the provisions of unjust enrichment, and usually give birth will be required for reimbursement to the person, which has received such a benefit. A more serious consequence could be the need to re-payment of compensation by the insurance in case, when the next claim occurs the person entitled.

In light of the foregoing analysis of the validity of claims for damage in shipment should start with an assessment of the legitimacy of the claimant. It should be remembered, that the lack of permission from the contract of carriage will not always be identified with unfounded claims. In many cases, such claims can be justified because of another title, in particular under the provisions of tort. But then examined whether the claims will be based on other criteria. But this is a topic in a separate entry.