Inspired by participating in a new seminar w ramach Insurance Meeting Point, subcontracted, this time dedicated to the freight forwarding and road transportation of cargo shipments, a discussion of one of the Review I decided to dedicate this post to the liability rules forwarder. This responsibility is far less restrictive than the carrier, and taking appropriate preventive measures forwarder is able to get well. For this purpose, but must follow the proper standards of conduct developed by case law. Practice shows, that for many shippers bar suspended the requirements are too high, which exposes the significant damage both their own, and insurance.
The principle responsibility of the carrier
Unlike the carriers freight forwarder liability is not strict liability. This means that, that, in determining the, or freight forwarder is obliged to pay a contractor for compensation for delayed or damaged shipment is vital to establish, or freight forwarder is to blame for causing damage. Where damage has been caused by improper performance of duties the shipper (np. pertaining to the issuance of bills of lading, loading and unloading or storage of goods in the warehouse) will apply the principle of responsibility that is usually art. 471 k.c. which is, that the debtor is liable for damages resulting from failure to perform or improper performance of obligations, unless it is not responsible for these events. Wine shipper is then supposed, but the shipper can demonstrate, that it does not assume, and thus released from its liability. Of course, not always be possible, because in most cases it is the shipper negligence will cause damage.
Wine in the selection
Differently shaped shipper liability for damages, have been caused by more shippers or carriers, Freight which is used in carrying out its task. According to art. 799 k.c. is also responsible for their actions, unless no fault in the choice. The Freight Forwarder is not dependent primarily on its degree of fault of either the carrier or freight forwarder for further, but on whether the shipper due care in selecting its subcontractors. So even if the damage resulted from gross negligence or willful misconduct of the carrier or freight forwarder for further (fraudulent contractors are unfortunately not in the transport industry nothing special), it does not mean automatic acceptance of the principal freight forwarder. Freighters can in fact choose their subcontractor carefully and in spite of falling victim to fraud. In this case, is able to evade the effects of its subcontractors.
It is therefore incorrect practice, which can sometimes be found in the activities of insurance, which by intent of the carrier hired by the shipper identify with gross negligence in selecting subcontractors shipper and for this reason refuse to pay compensation. The process of evaluating the merits of the request for compensation from the insurance liability for delivery shall take place in two stages. The first to be established, or freight forwarder in general is to blame the selection, because it determines the liability insurance. In the second check, Whether that, that the damage was caused intentionally entity acting on behalf of the shipper affect the existence of insurance - many insurance companies in their general terms of insurance excludes its liability for such damage.
In light of the above explanations, the more you can not take, the same as the guilt in choosing the shipper is the fact of injury in the commodity. The adoption of this interpretation sprawiałoby, that the provision art. 799 k.c. could never find the application - if the damage would not occur, there would be no need to show fault in the selection. Such a position also expressed the Supreme Court in its judgment of 25.09.2003 r. ref. Act V, CK 204/02, stating, that the mere fact of injury does not prove the liability of transport freight forwarder.
As shown in choosing to take blame?
Art design. 799 k.c. indicates, that in choosing a wine shipper or carrier is further alleged subcontractor and a freight forwarder in order to free himself from liability must prove that the fault can not be held. This task is not easy, especially in light of case law drawing of the tendency to a more rigorous treatment of the duties of proper forwarder selection. Certainly not enough the fact, that the shipper used the subject, who are busy with shipping activity or forwarding. This follows from the simple fact, that according to the art. 774 i 794 k.c. carrier or freight forwarder in the contracts of carriage and forwarding can only be subject, who is established in this area. Status of business professionals involved in the carriage or forwarding is not so any distinction, which may determine the choice of.
There is no doubt, that the responsibility of the shipper to verify, whether a potential carrier is authorized to execute an order, in particular whether it holds a license to operate a national or international. As more and more often there are cases of falsification of licenses, forwarder should take steps to verify the authenticity of the license. A similar verification should apply to other documents presented by a carrier such as a certificate of registration in the register of economic activities, copy of the National Court Register, REGON certificate etc.
Larger questionable, that is, to demonstrate the absence of fault in the selection, it is necessary, by the selected carrier had a valid policy of liability insurance carrier. In the judgment of 18.02.2004 r. ref. Act V, CK 227/03 The Supreme Court held, that the element of possession of liability insurance carrier for damages in transport should be important in assessing its financial condition, and thus the reputation and warranty performance of the contract of carriage. I agree, that this factor should be taken into account, but no reason to accept claims, No insurance policy that the selected carrier automatically determines the wine shipper in the selection. However, since the insurance policy ownership is the market standard, No such insurance should arouse extra vigilance forwarder. It is worth while to remember, liability of the carrier that the policy does not indemnify the contractor by the shipper injury resulting from the theft of goods by the carrier. No policy does not cover for the protection of criminal activity.
The duties of the freight forwarder should be part of the establishment, what is the carrier's experience in performing certain types of shipments, whether the transport will be conducted in person or by a subcontractor (in this case would establish data that subcontractor and its powers), what is the carrier's loss ratio to date, how it was disposed of previous damage (if there have been), contractors for which the carrier transports performed so far. If possible remover should contact these contractors in order to obtain an opinion on the carrier.
You should be going too far, however, considered the statements contained in the judgment of the Court of Appeal in Białystok of 28.03.2006 r. ref. Akt I ACA 49/06, that a glaring fault in the choice of forwarder determines m.in. fact, He demanded that they do not sign the list of vehicles provided by the carrier and the owner of a trucking company power of attorney for her husband, who took care of all matters related to the contract of carriage on its behalf.
Catalogue of activities, you would expect from a professional freight forwarder in the choice of the carrier, is not closed. Assessment of correct operation shipper will thus have to be carried out separately in each specific case. Neither the doctrine of, or in the case law developed since no one model of good practice forwarder. Inevitably, therefore it is necessary to work with common sense and professional experience, indicating, what circumstances should be examined by the Freight Forwarder, to minimize the possibility of damage to the goods. Please also note, according to the art. 355 § 2 k.c. due diligence in respect of their person of his business should be determined taking into account the professional nature of this activity. In a similar vein, the Supreme Court ruled in its judgment of 27.01.2004 r. ref. Akt II CK 389/02 stating, that due diligence within the meaning of art. 355 k.c. in conjunction. of art. 799 k.c. is maintained, it demonstrates, that certain services entrusted to the carrier transport, whose professionalism and quality of services raised confidence. The Supreme Court did not specify, as a result of what specific actions, such confidence shall be obtained, pointed out, however,, confidence that the shipper must be based on his knowledge of the services offered by the selected carrier.
Transport Exchange
The question arises, how these principles relate to the universal habit of finding carriers in the transportation markets, based on the price criterion, in many cases the 1-2 days prior to taking delivery? In my view, the mere fact of seeking carrier transport in the stock market does not determine the existence of guilt in choosing the shipper on the. Without a doubt, however, remover should not be limited to read the documents made available to the carrier under such exchange. Terms exchanges contain a clear provision, that exchanges are not responsible for the authenticity of such documents submitted by the carrier. The selection of the exchange offer of transport should therefore be accompanied by a standard verification of the reliability of the carrier described above. Of course, if the offer is submitted on the eve of the planned receipt of package, assess the reliability of a carrier based on those described in this article, the criteria may be impossible. Shippers, who are solely in order to obtain an order, decide on such measures, put themselves at significant risk of liability for damage to the goods. What is more, In many cases such behavior shipper may be considered gross negligence and off the insurance coverage of transactions by the Forwarder.
Transport Exchange is a great invention facilitate the work of shippers. Using them, but let's not forget the basic principles of safety. Even a few orders, which can be achieved by skipping the verification procedure, not worth it, if you're gonna pay for an unfair amount of the carrier often exceeding the value of all assets of shipper.
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