Liquidated damages for delay in the CMR Convention – Polish court judgment

As I have repeatedly written, too easy to hit the Polish judicature in matters of the CMR Convention. Courtesy of mec. Radoslaw Matys from Olsztyn I present today were made a few months ago, the judgment of the District Court in Olsztyn on a very important and controversial issue – contractual penalties for delays in international road transport.

Facts

In the described case the plaintiff was the contracting carrier, who took the two entities commissioned to transport consignments from Polish to Russia. Both consignments were to be carried to the same city, but to two different customs agencies. Reason entrusted the execution of the order to its subcontractors. The reasons unexplained until the end of the first customs agency vehicle has been stopped for some time due to the alleged transport of contraband in one of the shipments. This resulted in a delay in the delivery of both cargo. As a result of the delay reason has been charged by the defendant penalty, and also paid the penalty of the second carriage of the customer as well as additional compensation for the contractor due to prolonged turnaround time.

A claim for compensation and damages

Plaintiff to the defendant's claim for payment of remuneration for the carriage – which was paid by the defendant as a result of the deduction of liquidated damages for delay – as well as compensation for the additional costs incurred by the plaintiff in the form of a penalty for the second payer and extra pay subcontractors. Reason to justify their request by the fact, that the defendant is the consignment was detained in customs agency as containing contraband, therefore the defendant is liable for a delay.

The decision of the court of first instance

The District Court in Olsztyn, in the judgment of 12.12.2011 r. ref. V GC 318/11 dismissed in its entirety, stating, that the plaintiff has not demonstrated, that the circumstances exempting it from liability for delay, therefore can not charge for the fact that the defendant. Simultaneously Commenting on the allegation of the complainant, that the provisions of the contract of carriage of contractual penalties for delays were incompatible with the CMR Convention and therefore invalid, the court stated, that the penalty for the delay is not the burden of proof shifts to the victim, So it does not violate Article. 41 CMR. For this reason, the court adopted, that the plaintiff's burden penalty was justified, and thus was effectively offset the penalty of the plaintiff's claim for payment of wages.

Judgment of the court of appeal

The judgment of the court of first instance has been challenged in part on a claim for payment of remuneration. On appeal the judgment was accused of violation of Articles. 23 paragraph. 5 oraz Article. 41 CMR, and Articles. 483 k.c. Indicated, that since the penalty makes, that the creditor is not required to prove the amount of damages – what should be done in accordance with Article. 23 paragraph. 5 Convention – As a result, there is the burden of proof shifts to the other side. Cited the decision by the French and German jurisprudence, including the judgment of the Oberlandesgericht in Munich on 25.07.1986 r. (3 You 2577/85), which states, that “accordance with Article. 41 paragraph. 1 CMR is null and void any clause, which directly or indirectly derogate from the provisions of this Convention. Therefore, there can be no doubt, also claim that the penalty in case of late delivery of the goods is invalid”.

The District Court in Olsztyn, in the judgment of 03.04.2012 r. ref. Current V Ga 20/12 upheld the appeal in its entirety, sharing the arguments presented in the. Said, that CMR Convention does not provide for any sanctions for the mere fact of the transport delay, and the possibility of claims for delay is determined in accordance with Article. 23 paragraph. 5 Convention on proof of damages by the injured. Also emphasized, that the provisions of the Convention are mostly mandatory. For this reason, contractual penalty provision could not replace the demonstration by the defendant damage delays resulting from, and if the defendant has not proved, had no right to deduct. The appellate court therefore changed in the contested part of the judgment and ordered the defendant to pay the plaintiff compensation for carriage.

The decision is very important to practice. Still in contracts for carriage governed by the CMR Convention meets regularly records of contractual penalties for delays. Often too, these records are respected by the courts, if a party does not raise the appropriate charges. Well then, that the verdict, which may be invoked.

PS. Congratulations to Mr. Patron win and I'm glad, I could have this little help 🙂