Limitation of actions against the carrier

Limitation on national and international transport law stands out from the limitation relating to other civil law relations on the one hand very tight deadlines, the other special rules for the suspension of the period. What's more, individual acts regulating the right to transport these terms are significantly different from each other. Okay so systematized knowledge in this field.

The Civil Code

Although sometimes forgets about it, contract of carriage in its basic form is governed by the provisions of the Civil Code art. 774-793. The agreement described in the Code is, however, quite marginal and relate almost exclusively to transport a horse. This does not mean, that the provisions of the Code do not apply. By virtue of art. 90 transport law Civil Code is the appropriate use of the transportation law matters not (np. provisions of the consequences of the lack of objections to the shipment at the time of its adoption for the transport or the carrier's liability for valuables). This does not apply art. 793 k.c. relating to the limitation, which is, that the claim under the contract of carriage of goods shall expire after year from the date of delivery, and in case of total loss or late delivery - from, when it should have been delivered.

Transport Law

Somewhat different question of limitation is regulated by the transport law, which is used in all except for domestic air, maritime and equestrian. The basic limitation period provided for in art. 77 paragraph. 1 is every rok. Depending on the cause of action are different, however, the date of commencement of limitation periods. These are m.in. in case of loss of the goods – day, which could be considered eligible for a lost shipment, in case of loss, failure or delay in delivery - the day of issue in the case of shipping damage which could not be seen from the outside of the protocol on the determination of injury. After a much shorter period of time because only the two months limitation of claims for delay in the carriage, which did not cause damage to the consignment.

Short periods of limitation in some way compensates for the rule laid down in art. 77 paragraph. 4 pr. wire., according to which the statute of limitation suspended for a period from the date of the claim reply to the claim, and return the documents attached to the complaint, but not longer than the period provided for the settlement of a complaint or for 3 months (according to art. 75 paragraph. 2 pr. wire.). There is the doctrine of the view, that if you send a complaint via the maximum period 3 months should be extended by the time between sending the complaint, and its delivery to the carrier. In the only judgment in this matter issued by the Court of Appeal in Katowice on 11.04.1996 r. (ref. Akt I ACR 158/96) not shared, however this position.

CMR Convention

Limitation of actions against the carrier in the CMR Convention differs significantly from the provisions of the Polish transport law, Although the primary annual similarity suggests that the limitation period for both control. The main difference is already visible in the scope of the limitation periods prescribed in the Convention. The provision of Article. 32 paragraph. 1 Convention provides for, that are subject to annual limitations claim, which may arise out of carriage under the Convention. Literal wording of the provision indicates, that it is not only for claims resulting from the Convention, but of all claims, that may appear on the background of the transport, which is subject to the Convention. In a number of foreign judgments is therefore assumed, that the period prescribed in art. 32 paragraph. 1 Convention also includes a claim in tort (np. orzeczenie Commercial Court of Antwerp z 30.06.2000 r.) or on account of unjust enrichment (np. wyrok District Court for z dnia Ziviltrchtssachen Graz 05.04.2000 r.). Meanwhile, in the case of the Polish transport law is no doubt, It provided that the limitation period applies only to claims arising from the contract of carriage of traffic rights.

Otherwise regulates the commencement of the limitation period. In case of partial loss of the goods, damage or delay in delivery run begins on the date of shipment, in the event of total loss - from the thirtieth day after the expiry of the agreed delivery date (and when the date was not agreed by 60 days after taking over) while in all other cases from the end of the 3-month period from the date of the contract of carriage. This latter term refers particularly claims of carriers for payment of freightage.

The relatively short periods of limitation shall not apply to situations, when the claim is based on intent or gross negligence of the carrier - in this case the limitation period is three years. Extending the period of limitation may also occur upon a complaint by an authorized. According to the art. 32 paragraph. 3 Convention written claim shall suspend the limitation period until the day, the carrier rejects the claim in writing and return the documents attached to it. Because the provision does not state the maximum period of suspension, is assumed, that the suspension may be indefinite, and thus, even many years after the events it is possible to submit an effective claim. This position is confirmed by the judgment of the Supreme Court of 22.11.2007 r. ref. Akt III CSK 150/07.

Thus, while in the case of the CMR Convention allow for a substantial extension of the limitation period, so far its consequences are much more serious than in the national law. First of all, according to art. 32 paragraph. 4 limitation that the court has a duty to take account of the office, claim is barred because it can not be lifted by an authorized. Moreover, the claim is barred - unlike in the Polish law – can not be presented for the deduction or reported as an allegation.

The COTIF / CIM

Regulations relating to the limitation contained in Annex B to the Convention containing Uniform Rules COTIF Contract for International Carriage of Goods by Rail (CIM) are similar to those in the CMR Convention. In this case, there is no doubt, that the periods of limitation provided for in art. 48 CIM apply only to claims arising from the same contract of carriage. The basic limitation period is every rok, and its course starts on different dates, depending on the type of claim: from the thirtieth day after the date of delivery in case of total loss of the consignment, from the date of shipment in the event of partial loss, damage to, or exceed delivery date, and from the date the claim in all other cases. The term is, however, increased to two years m.in. in case of damage caused by an act or omission committed either with intent to cause damage, or recklessly and with knowledge that damage would probably result.

Suspension of limitation period according to the rules analogous to the CMR Convention - as a result of a written complaint authorized - and lasts until the day, where the carrier refused to recognize the written complaint and requested documents attached to it. Similar effects are also the existence of limitation - the inability to pursue the claim or complaint to make deductions or.

Air Conventions

Both conventions Airlines - Montreal (in art. 35) and Warsaw (in art 29) - Govern the limitation of actions against the carrier in the same way. This term is two years and runs from the date of arrival at destination or from the date, where the aircraft was scheduled to arrive, or of detention, transportation and the method of calculating the term is defined by the law of the court, seised. The effect of the expiry of that deadline is a lapse of the right to claim, at the court hearing the case must be considered from the office.

Concluding Remarks

In cases involving allegations of damage limitation in transport often appear. Often, however, does not take into account the fact, that the limitation periods especially in the international conventions can be significantly extended by making the complaint. Before raising the plea of ​​limitation it is so sure, that all conditions have been completed cessation of the suspension gear (in particular whether the requested documents submitted with the claim, what sometimes is forgotten). This way you can avoid basing strategy on the ground, which is doomed to failure.