Judging by the names of companies operating in the transport and widespread use of so-called. forwarding orders could be considered, that the freight forwarding business in Poland is very popular. Unfortunately, as a rule turns out to be, only that many actors considered shippers, without having them actually. In the event of damage to the goods to such persons threatened a number of serious consequences. So let's take a look at the fundamental differences between the contract of carriage and freight contract, which will, where appropriate, to make the proper classification of.
Agreement Name
The basic principle in assessing the nature of the contract is to realize, that the type of legal relationship is not determined by its name, but the content. For this reason, the names of the shipping contract, the order - which happens regularly in the transport industry - in any way prejudge, that we are dealing with the contract shipping. In many cases, the contract is so named because the ordinary contract of carriage. More rarely, there are times when the reverse, where the agreement is called a contract of carriage or transport order eventually turns out to be forwarding a contract.
The actual execution
Contrary to the opinion often encountered the fact, that the operator does not own transportation, but this task is entrusted to another person, does not matter to the certification of the agreement. According to art. 5 transport law, art. 3 CMR or art. 27 CIM it is permissible to use the services of sub carriers. Thus, entering into the contract provisions, that the carriage can be performed by subcontractors, and even to determine directly, that will actually transport entity other than the contracting party, does not affect the nature of the contract - giving the performance of the carriage to a third party is possible because both the forwarding contract and the contract of carriage. In such cases, there is a distinction between so-called. contracting carrier or entity, which contains the sender of the contract of carriage, and the actual carrier, which includes a contract of carriage with a carrier contract. Practice shows, that between the main carrier (which has an agreement with the sender) and sometimes the actual carrier is still several agents, who subcontract the carriage to the next sub-contractor. This applies in particular international road transport.
Waybill
Decisive for the distinction between the forwarding contract from the contract of carriage is not the content of the bill of lading documenting transportation. Appointed by the number of contracting argument, that if their data have not been placed on the consignment, therefore play the role of freight forwarder, is widely rejected, and the doctrine, and in numerous court decisions. Although the detailed bill plays an important role in the implementation of the contract of carriage, and moreover there is a presumption, that the data herein reflect the actual relations pages (resulting m.in. of art. 9 CMR), in practice, its importance to determine the conditions of the contract is the only auxiliary. The consignment can only be based on the situation, if there is no other evidence to determine the contracting parties and individual provisions defining the rules, on which the carriage is to be made. So if an agreement made in writing, e-mail correspondence, subscribe for instant messaging and transport markets due, that the carriage was commissioned to a specific entity, will be deemed a contracting carrier, even if the data are not placed on the consignment, for the most part is simply the actual carrier (which often have even printed their own bill of lading with your details printed in place of the determination of the carrier).
Subject of the contract
So what's the main difference between the contract of carriage, freight forwarding and contract? In both types of agreements is another object of the contract, although this difference can sometimes be quite subtle. The contract of carriage the carrier shall be obliged to transport persons or goods in the contract and the duty of forwarding Freight Forwarder organizing transport expressed in the sending or receipt of goods, or make other services related with transport. Frequently the subject of customer expectations is not it, that transportation will be organized, but that the consignment will be transported from one place to another. Thus, the vast majority of so-called. forwarding orders is in fact the nature of contracts of carriage. That view is confirmed in the jurisprudence of the Supreme Court, which in the judgment of 06.10.2004 r. ref. Akt I CK 199/04 said, assumed that if a, the question is just about the carriage of goods, and no action konkludentne not indicate the existence of additional clauses covering services related to transportation, an agreement concluded by the acceptance of the offer is strictly a contract of carriage, and is not a forwarding.
How then should sound records of the forwarding contract, that no questions have been raised as to its nature? First of all, the agreement should clearly state the, that its scope is wider than the carriage - it is, it being specified in detail. Since the basic duties of shipper must contract of carriage on behalf of the sender or to the sender, but in his own name forwarder, in a contract worth forwarding to indicate even, which of these ways the parties have chosen - the contract of carriage, such construction does not occur. In the case of adoption, that the contract of carriage is concluded in his own name forwarder, should be made for transfer to the sender's rights from the contract of carriage - or will it shortly after the contract of carriage, or for damage forwarder is obliged to assert claims on behalf of their own, and then transfer to the sender the amount recovered from the carrier. The existence of this kind in the contract provisions - characteristic of the forwarding contract - should effectively solve the problem of its classification.
The consequences of an erroneous assessment of the nature of the contract
The effect of classifying the agreement by the parties mistakenly called the forwarding contract as a contract of carriage is completely different regime of responsibility. Although the freight forwarder is responsible as a rule only limits the fault in the choice of the carrier (but he must prove lack of guilt in this regard), so much the carrier's liability is based on the principle of risk with few circumstances exempting the liability. Much more serious consequence is the rule, however, loss of insurance coverage. Many entrepreneurs consider themselves shippers is limited to only purchase liability insurance and freight forwarder does not have liability insurance carrier, that in such situations could be used. But even if they have adequate insurance, often they will not be able to use it. Considering himself a freight forwarder, care because it usually, that their data were not included in the consignment. Meanwhile, many insurance companies as a condition for the existence of insurance coverage (But let's add, not fully understood and justified) considers that the visibility of the insured in the consignment documenting transport, during which damage. Thus, when concluding contracts shippers should exercise caution, to avoid high losses in the future due to the necessity of payment of substantial damages his own property.
I wonder whether the rules presented in this paper are also applicable in cases of more complex. It happens, the shipper shall arrange to have the selected carrier of international carriage, which then "turns" in the shipper and give orders to another, the actual carrier, accepting the goods and bill. In the event of a loss of the goods carrier, broker argues, that granted him a shipment order is essentially a contract shipping. Indicates the art. 9.1 i 34 CMR, arguing, that if the goods are not accepted and handed him a bill of lading, This carrier is not and is not responsible for the carriage. Here too there is the issue to distinguish shipper to the carrier, determine what role the different actors. The problem boils down to answer the question, entity to which any claim must be addressed.
Nice to meet a friend from college on your own blog 🙂 system you described is quite often – the reasons described in the article, the broker must be treated as the contracting carrier. It lacks organization because the transport element, is just the same commitment for carriage. Contracting carrier can not defend the argument of art. 34 CMR Convention in several respects. The first is the doctrine and case law the concept of, subcontractor that the contracting carrier shall take the goods and the bill of lading, both in its own name as well as the contracting carrier, so if you are in such a system in general we accept the institution of successive carriers (I am so in principle opposes, because according to me is a classic subcontracting), contracting carrier will also be regarded as jointly and severally responsible. Secondly, if we accept, that there is no substitute carrier only gradual (for what, in principle, tell), we have a responsibility for its operation on the basis of Article. 3 CMR. Depending on the adopted concept of the person entitled may be paid either to both the contracting and actual carriers (if we admit the concept of successive carrier), or only to the contracting carrier (if we assume, that the actual carrier was only subcontractor contracting carrier). In any case, the contracting carrier is responsible. As for the successive carriers is in turn one of the toughest and most controversial topics in the CMR, So probably I'll ever write about him 🙂
I have a question what is the difference between organiacją transports on behalf of the consignor and in his own name?
The difference comes down to this, who is a party to the contract of carriage with the carrier. If the shipper shall have the carriage on its own behalf, he is a party to the contract of carriage, It acts as a broadcaster in the relationship with the carrier and the carrier is to issue an invoice. Freight Forwarder and issue your invoice, which already included the salary of the carrier. This happens in most cases.
In contrast,, when acting on behalf of the client – the party to the contract of carriage is the principal, a shipper signing a contract with the carrier, acts as agent for the principal. Then the invoice for the service of carriage is issued by the carrier directly to the payer. Forwarder issues a separate invoice for the forwarding service. This happens much less often, because shippers generally do not want to reveal a significant difference between his salary, and the amount, which ultimately receives the carrier 🙂
Hello. Recently I found this site and since then I have been following it with great interest. Unfortunately, not yet acquainted with all the articles and comments but I think, that it will soon catch up :). It is struggling with the problem how to distinguish the carrier to freight forwarder. My question concerns the issue of invoices by shippers. The International Transport, they often issue an invoice for transportation (freight) and apply a zero VAT rate. Is the issue of such invoice is already the basis for recognition as a carrier in the event of damage, and accountability for the transport company? I'm interested in the case when the contract was concluded correctly namely the contract of carriage is not forwarding. At the end of the forwarding contract includes giving or receiving the shipment and other transportation-related activities and not only the transport, the shipper should request payment for the service as a freight forwarding and shipping fees are not paid for the freight is not it? Besides, if the company KRS no entry that is a carrier or not it works contrary to the register? Can it issue the invoice, and if it is valid? Tired of quasi-forwarding with only a national license and OC shipper and the receiving transport orders (no shipping) on international transport and issuing invoices for transportation. Is there any possibility of dealing with them?
@ Mantikora
The vast majority of companies acting under the aegis of the forwarding works as truly as the carriers conventionally. It is essential to assess whether there is a freight forwarder is the content of his contract. If this is the usual transport order, or even shipping (name does not matter), which determines the time of loading, unloading and no clear route selection, that the subject of the contract is to organize transport, We usually deal with the ordinary contract of carriage, and the other party to that agreement is the carrier, and not the freight forwarder. However, if the contract contains a valid forwarding, it does not matter whether the freight forwarder freight invoice covering or only commission – it depends solely on the contents of the contract, which usually provides, that bear the cost of freight forwarder. Then we deal with the contract of carriage by the shipper's own account – shipper enters into a contract with the carrier and the cost includes the cost of its services. Forwarding contract, where the shipper takes only a commission, and the customer pays the same freight transport by road meets extremely rare. Freight Forwarder is not because they are often of interest in this, to show, Unless he took the carrier for carriage, because the amount is usually much lower than his salary. There is in this case, the relevance, what the company has entered in the National Court and even if they have the appropriate license and insurance. The nature of the contract does not depend on the, whether the entity was entitled to conclude such an agreement.
As for the fight with such companies – the only way to not include contracts with them. Entering into an agreement with the quasi-forwarder may end up with dull, as it turns out, that insurance will not cover the damage caused, if a contract was not a contract of carriage, freight forwarding contract.
So the issue of naming the invoice we have resolved 🙂 – full freedom. I still doubt if it contains the freight forwarder contract and determine that it contains a contract carrier on your behalf. On one of the training, I heard, that regardless of what contract include shipping (I mean, of course, indifferent to the issue of whose name will be entered into a contract with the carrier) I require the shipper to disclose the rates for the carriage (I was given, that in this case should refer to the article 740 k.c). I can and even should, because if the shipper does not pay the carrier for the service it can be returned to me after the due payment even though I no longer regulate the payment of the freight forwarder. While this approach fits me to a contract of carriage by the Freight Forwarder in my name that's not too much to the contract on behalf of the shipper. And what is your relationship to this approach?
I doubt whether Article. 740 kc is a sufficient basis to require disclosure of the amount of freight forwarder – report on the activities need not include disclosure of the costs, If the contract is clear, that all costs are on the shipper. I therefore, that such an obligation must arise from the contract and the best to legitimize a contractual penalty, otherwise none of this is not apparent. And as for the payment of freightage – It occurs only in certain cases, if the principal is also the recipient of a transport is a national.
Thank you for expressing his views.
And how do you have to transport orders? What if in the case, damage caused by the carrier and want to take advantage of the insurance, insurance company that covers up the forwarder should take no forwarding order a transport order? Is transport order is equally forwarding order?
The name has no special meaning – what counts is what the contract. And usually there is a contract to transport from A to B, without mentioning the organization of transport. The vast majority of transport orders is therefore orders the transport. As for the insurance – are generally two types of insurance: OCS (shipper liability) i OCP (carrier's liability). If the shipper has purchased the OCS and take an order for transport and when it comes to injury, insurance refuses to pay compensation, arguing, OCS that insurance covers only the responsibility of forwarding contract, and not a contract of carriage.
So I understand, that the best solution would be to have insurance, shipping company, both OCS and OCP?
The best solution would be to, if the shipping company had a decent draft agreements, which would guarantee, that the agreement is a forwarding contract. But if this is not possible, significantly better to have both OCP and OCS. However we think about the choice of OCP insurance, because most available in the market such records, that make, they are useless in most situations, you need.
Sir Paul, The Lord is kind of last resort, namely, we conclude that the purchase of OCP used without the carrier's license, some does not make sense. I came to the conclusion that it would have been licensed as an international transport, but without the contracting carrier fleet. And I'll tell you frankly that the GITD can not learn anything in this topic because no one answers there phone. Thus, if a license is on par forwarding contracting carrier license, and if not, where you can get any information which documents should be submitted. Already thank you very much.
With these licenses, unfortunately, is the problem, I literally speaking, contracting carrier activity does not fall into any category. On the one hand it contains a contract of carriage, so you can take, that it operates shipping, which requires a license. Only that the license requires a vehicle data, and depends on the number of vehicles or the amount of financial security, which should demonstrate the carrier. From this point of view seems more sensible to use a license for brokering only that act as the contracting carrier is not arranging contracts only their own conclusion. Perhaps the best solution would be to apply for a passport carrier, and if confirmed GITD, that such license does not need, will be run on existing. You just need to check whether your insurance OCP does not contain a condition, that provided liability company is to have a license by the carrier.
Very, thank you very much. Informationally find a broker who extends the OCS of the contractual liability of the carrier without having any license. It's just a matter verify the exact scope of the OC.
But once again thank you very much
It is true – Good broker of transportation is the key. Personally, I would not advise most insurance companies on the market for OCP insurance – Only a few of the acceptable conditions, which do not introduce to the general conditions of records has no effect on insurance risk and only for avoiding the payment of compensation (as a requirement to enter data carrier to the bill of lading).
Very interested me in your blog!. Here I found the answer to many questions. Currently working on a solution to the following problem: Signature X (CMR as a carrier in position. 16), performed international transport, where in the country, on the basis of a document called "forwarding order" to "carriage of goods by car", sent the trailer and its cargo to Y. This document contains only the date and the place of loading and unloading, agreed freight and payment terms, and information - "car covered by third party liability insurance carrier". When making the order had an accident which resulted in the destruction and pollution load. Who in this situation is responsible for the load, the damage caused contamination – Company X czy Y, if the only evidence of the transfer of cargo was this “forwarding order”, that sounds like a simple contract of carriage? Please kindly help
In addition to the above, I will add, it is important for me in terms of determining the debtor to remove this contamination.
@ Rosemary
In my view, the load will be responsible for company X, and for contamination firm Y. The first responsibility is a contract, and for damage to the environment tortious.
Hello
I have the following problem: Firma A, which deals with the transportation of wood(in the country) transport planning to deliver performance(of their principal) another transport company with its own fleet of B. Company B issues an invoice to A, This in turn invoices the customer(a higher amount). What form will take such action(Subcontracting, shipping, mediation, contract of carriage?). And if it is necessary, in this case, changing the number of PKD?
@ Honcia
This situation is a classic subcontract. So we have two contracts of carriage – one between the consignor and the carrier, the primary carrier and the second between the main and sub-contractor. I see no reason, Due to this change PKD.
Hello,
if I understand correctly that the sender of art. 7 CMR is both the principal to, and forwarder, but also the carrier, who has entered into a contract of carriage with a further carrier or subcontractor?
@ Dioniz
The sender is any person who enters into a contract of carriage. In one carriage, If it contains a lot of contracts of carriage, there is so many broadcasters, except that each broadcaster is only in relation to the carrier, which has entered into a contract of carriage.
Thank you very much, it's all a bit complicated, just enter in this field. At 2 first hours of the Central Committee and the decisions and comments, later in the CMR Convention and the case-law (sometimes contradictory) I realized, that's all I got confused and that the acquisition of any serious knowledge in the subject of transport and forwarding and – especially – application in practice, I will take a lot more time than I could have expected that the pessimistic assumptions, that safety always do…
Yours sincerely!
@ Dioniz
Please 🙂 very fact, in the initial phase of some specific regulations transport law might seem like black magic, but after about a recess in the vast majority of regulations are placed in a logical whole 🙂
Paul Panei,
This situation is similar to that described HONCIA with one change – both companies occupy sietransportem Medical (outpatient). Do you still have a contract of carriage? How long przedawniajasieroszczenia from as the service and invoice? year? And the second thing czyu between firms X and Y is necessary to conclude the contract of carriage?
@ Edith
W mojej ocenie w takim wypadku mamy do czynienia z umową o świadczenie usług transportu sanitarnego, która została odrębnie wskazana w ustawie o świadczeniach opieki zdrowotnej i takie roszczenia przedawniałyby się po 3 latach, ale pełnej jasności tutaj nie ma, gdyż rzeczywiście formalnie rzecz biorąc mogłoby to zostać potraktowane również jako umowa przewozu.
Hello,
Please help.
A transport company with its own means of transport to 3,5 DMC (without the required license) carrying cargoes for the principal. There are times when the load (do 3,5 DMC ) is more than a car company. Is Company A may use company B,C,D,It… As according to the law has to look? Contract of carriage / transport order? Could this be an agreement on every single transport (binding on the transportation time)? which must contain? conditions? And if Company A (without a license) can contribute to Company B (with license) like (subcontractor?) transport above 3,5 DMC?? Company A issues an invoice the customer and invoice Company B to A?? Who is responsible for the goods in the event of such. damage?? Company A or B? Whose data is to find the CMR document? Do NACE code (49.41.The transport of goods by road) sufficient? How did this all applies U.S.? Is just a company can not sell the cargo (have to use the subcontractor) only have to go through the forwarding of license?
@ Dolec
A bit a lot of questions in one comment, and I see, they relate to the whole of the company. Please contact us by email.
Welcome back! Sir Paul, I have a question about a special interest in delivery and the declaration of the value of goods. The results of the Convention, that both the first, and the latter should be included in the consignment. And when it is established only in the contract and bill of lading does not contain data about (Of course the bill of lading is not out of the question not to pay an additional fee), and the agreement provides for pay X for the carriage of not adding, whether in fact there was an effective declaration of value and / or a special interest in delivery? Or when the contract is salary X, but also saved, that X has Y for transportable, With the title of special interest in delivery and with the declaration for the goods – whether in this situation, the bill does not contain any mention of a special interest in delivery or the declaration of – there has been a declaration of interest in delivery or? Because I kind of bill of lading is the only evidence of the contract of carriage – but in the absence of other evidence, and we have an agreement and it is decisive principle, truth? Well, but the provisions of the Convention are clearly, that both of these values must be included in the consignment – and therefore, despite the inclusion in the contract payment on that account in the absence of any indication that the consignment was to such a declaration or not there? It's all a bit complicated in practice…
Yours sincerely,
Ps. I've never read of such interest other than travel blog.
Or again – when the contract between the carrier, which acts as a broadcaster over its subcontractors, contains provisions concerning the declaration of a special interest in delivery and the value of the goods, a bill of lading is issued by an entity acting as the sender with the carrier being a mediator – I think no matter whether it's the actual sender or the intermediary – and he is entered in the consignment note and it does not include data on any of the above statements, furthermore – often after bill of lading print driver actually commissioned this or any other broadcaster, whether it can be assumed, the bill of lading will be a number of documents, including an agreement concluded between the agent being the sender of the actual carrier? The bill of lading is not signed yet most effective, main broadcasters, therefore, whether it is general in nature alone in the bill of lading? Would not it be rightly considered, the bill of lading is in this case a number of documents, in this example, the contract, bill of lading and shipping order? No names yet, decisive, and almost as, why the contract can not be de facto bill of lading and bill of lading merely supplement (containing a detailed description of the consignment, number of units, Features, Numbers) and integral part of the relevant bill of lading which is actually the entire agreement? Is that about it wrong?
@ Dioniz
There is no entry in the consignment and the declaration of a special interest in delivery makes, that these two provisions are ineffective. Similarly, if not provided for no extra pay.
What to blog thank you very much for your kind words 🙂
@ Dioniz
That person, which is interested in the declaration of shipment or special interest in delivery should ensure, that the relevant data were included in the bill of lading. If they give advice where you enter the amount of goods, should not have a problem with entering the value. I can not therefore agree, that the agreement is a component of the bill of lading. Consignment is a separate document, whose form and content are fixed by.
In their requests for quotations always present amount of special interest in delivery, later followed in their transport orders and the value of this type a consignment note. However, in the light of the Lord's penultimate entry I'm not sure I follow correctly and understand it well. If the contract is not provided for separate remuneration for the inclusion of special interest is the amount of such entries, and it does not make sense? Always assumed myself, that if my query such special interest was indicated, I am getting from the carrier rate, which comprises not only a transportable, but also the cost of interest and therefore, if justified redress in this respect is the most reasonable. Can I stay with my current method of disposal or do I absolutely require the carrier to its rate divided into two amounts: carriage and pay for a special interest in delivery? I admit, I still meet, that carriers in the world simply do not know what it is that special interest in delivery .
My second question is related to the organization of international shipments of oversized. Most of my orders include just transport requiring special permits for transport. The agreement ever I type, that the organization of the relevant licenses lies with the carrier. In this case, too, I put myself, that operations to organizations such permission does not alter the nature of my contract (carriers often have permanent permit and do not have anything to organize) where the main emphasis put on the carriage of goods from A to B for a fee. Is my assumption is correct, and then it is a contract of carriage, or I have to deal with shipping contract?
so in terms of adding to my previous comment because zapomiałam to mention: if a special interest in the query was not specified but in the order has already been recognized and the carrier without reservations on the content of the agreement does not assume also accepts the risk of potential claims arising from the special interest in delivery?
I do not know if it's the right place to put questions, but I did not find this article.
I mean the financial requirements for obtaining a license either on the carrier or transport agent. In both cases, financial security is required. From what is secure and what it actually gives?
@ Margaret
Of course, the answer would require a clear analysis of the various documents, but the position of pre stanąłbym, that:
1) indication in the inquiry and order, that remuneration also includes a special interest in delivery of a certain amount, and then indicate that interest in the consignment, in my opinion, leads to meet the requirements of Article. 26 CMR. Demand, that amount would be strictly separated excessive formalism.
2) costs of obtaining authorizations for the transport of carrier aggravating convert the contract of carriage in agreement forwarding – These costs are similar in nature as motorway toll, they are part of the labor cost carrier
3) if the inquiry is different from the final order, binding order is final; the only danger is the possible introduction of carrier objection confusion
@ Kaja
It is assumed, that dealing with transport activities, companies may harm their customers, so it should have adequate financial security. In practice, however, often fiction, as the basis of security because it is often assumed a policy of limited use to the interests of the client..
Exactly, and if anyone is responsible for this fiction? Is it possible to investigate the claims of the City Hall for the bogus security company holding the license to which the collaboration caused the damage?
Welcome
in the first place I wanted to really congratulate blog, It is extremely helpful 🙂
and now my question is, of course, related to the subject.
In a situation where there is in the carriage of freight forwarder in CMR shall be entered in the box labeled Broadcaster.
Does this mean that in such a situation, there is a presumption, that we are dealing with freight forwarder.
Namely, I have a situation where the seller had commissioned the International Carriage of a large international company the freight – shipping (X), which in turn 2 of 4 segments served companies affiliated with it on 1 foreign carrier, a 1 performed the same section. Damage was reported by the Recipient. In two CMR is listed as the sender X, but its staff say, it's a mistake. Unfortunately, the order is very broad and includes only the date and place.
thank you in advance for a very prompt
I greet
@ Natalie
Thank you very much 🙂 my opinion, the entry of an entity as the sender does not create any presumption, that he is a freight forwarder. Both the shipper and the carrier containing the transport contract with subcontractors and then should appear as the sender of the consignment. Whether a person X was the sender determines the content of the agreement concluded with him by the seller. In most cases it will be a contract of carriage, rather than selling, but to determine that it is necessary to analyze the documents.
This is how to assess the activities of such transport company
remover, Carrier?
Thank you very much for your answer
I have to say, that every time I examine the issue of carrier / I have many doubts remover
I wonder if beyond the analysis of an agreement with the seller is still a golden mean
I greet
@ Lucjan
I'm sorry, but I can not answer this question because it, that the company is a client of mine.
@ Natalie
In any case, make individual analysis. There is no other way. If in doubt, in my opinion, would rather go in the direction of transport.
Sir Paul… she do not know who to turn to this topic, since both the customer and the carrier refer to the order and cmr depending on what the more fit.
I am a freight forwarder – I do not own vehicles.
Commissioned transport in international traffic. Transport wywrotką (in the order record – the driver is responsible for the proper protection of goods. Carrier knew what carries) All indications are, that the driver did not protect goods during transport and goods zamókł.
Appears as the sender of my client – neutralization expected waybill. I, as a shipper does not appear in the bill of lading.
I received the order from the customer Transport – place of loading, the place of unloading and the data to be printed cmr.
In such a case for damages against the customer answer me or carrier. Let me also add, that the carrier feels responsible and wrote an appropriate statement.
Hello, I have a similar problem with what he asked “Dolec” above. The company provides a service shipping X to Y. Since the company X does not have sufficient rolling stock subcontract part of the services- company Z. Invoice for all services issues Company X for Y's. Who is responsible if the product is damaged / missing during shipment by a subcontractor Z ? I will add that the goods are drugs, although it may in this case does not matter..
I greet
@ Spedytorka
If you order from a client does not contain anything more than a place of loading, unloading and data to the FMC, It probably was a contract of carriage, rather than forwarding, which means, that you, as the contracting carrier shall be liable for its subcontractor.
@ outerb
If the job does not explicitly include the organization of transport but only on the same carriage, This is probably not the contract of carriage and freight forwarding, and thus the contractor is responsible for its subcontractor.
Welcome,
I make an inquiry in the following case. German company has commissioned me as a person carrying guns pubs. in which I have entered: transport services, transport cars from Austria to Germany. I commissioned this service a large transport company, which made transportation. I just went to the place of unloading to make sure everything OK. Because during transport the goods are damaged, a company which commissioned the insurer refused transport damages due to negligence of the carrier, I I demand a refund from the company that used to make for me transport. Hurt the I covered from their own resources – I paid ie arranging for me to transport German company. Cooperate with them for a long time and I wanted to not have problems. Now, the company transporting the car for me says, that I was a freight forwarder, and that the limitation period is 6 m-cy. How do I prove that I was not forwarder? According to me, I acted as principal (principal subcontractor). If I can win this case in the Court?
@ Wojtek
At first glance, there was Mr. forwarder, and the contracting carrier and in this case, the limitation period is one year, and with gross negligence or even three years. I do not know the case file, So hard for me to judge, what are the chances, but at first glance, a rather big.
hello. I would like to thank you for the quick and professional response to my question. Because in reality it is a contract of carriage, thanks to your opinion, he had become convinced, the full responsibility of the Carrier (that is a party to the contract) rather than its subcontractor.
Regards.
Hello. I have the following problem. I own a company that operates freight forwarding and transport. I am bound by a contract with a fixed subcontractor, which performs for me Transportation. The owner of the company is also a subcontractor hired me full-time. What is the problem. We took from another shipping company commissioned to transport goods from Germany to Polish. We used for the transport of means of transport registered in the same subcontractor and its stamps appear on the lists of the CMR. Transport was performed flawlessly as evidenced by shipping documents. We can not enforce payment for the service, because the company was in the order ordering a record that we can not outsource to third parties transportation. Is there a chance to enforce payment for the transportation? Mention that my company is authorized to operate freight forwarding and permanent cooperation agreement with the subcontractor. Thank you in advance for your answer.
@ Seba
It depends on the contractual provisions and the nature of the cooperation – seems to, that if the subcontractor is working exclusively for you, it can be argued, that it is difficult to speak of a third party.
Hello
Sir Paul would ask for advice. I run a shipping company not having any own car,always using the podwykonawców.Od 2011 I made for a company that had tens transportów.Firma knowledge from the beginning that I make for them on those services by subcontractors,cmr always document bore the stamp and the actual data przewoźników.Zawsze also for these transports zapłatę.Niestety recently received the company wanted us to pass on the blame for the damaged goods,However, we were able to prove the absence of fault of the carrier by a declaration that the goods mechanical unloader was damaged by the anger exhibited załadowcę.Firma 2 notes of the entire freight for shipments that commissioned the subcontractor (is the record of a penalty in their job). Is there a chance of winning the case,mention that according to what the Lord says these jobs were contract of carriage, and my company is present in this case, as the carrier umowny.Kara 10 000 PLN for something like this seems to be illogical….
Hello Sir Paul,
reading the entries began to wonder whether the forwarding contract, which often are sent to our mailbox with the details of the order are important for the court in the case of claims where they bear no signature?
@ Gretel
Neither the shipping agreement, or the contract of carriage for its validity does not require a written form, so the signature is not required, to consider the agreement concluded. Signature only affects the effectiveness of the arbitration.
Good morning,
Sir Paul, mierzę się z takim problemem:
Firma X zleciła Nam (And) do wykonania usługę Transportową. Nie mogliśmy wykonać tego zobowiązania, więc przekazaliśmy wykonanie transportu innemu podmiotowi (The), który został wpisany w zleceniu transportowym jako przewoźnik faktyczny. My oczywiście figurujemy jako przewoźnik umowny. Na zleceniu transportowym pomiędzy nami a X widnieje kwota taka sama jak na zleceniu transportowym pomiędzy Nami a Z (czyli odstąpiliśmy zlecenie za tą samą cenę transportu). Jednakże mamy umowę o współpracy z Z, na mocy której za każdy transport, który Z wykona za Naszym pośrednictwem (czyli wtedy kiedy my nie możemy, bo nie mamy samochodów), Z płaci Nam 10% wartości zlecenia.
Za przewóz X rozlicza się z Nami, zaś my płacimy Z kwotę po odliczeniu 10% prowizji za pośrednictwo.
Czy w tej sytuacji, jesteśmy przewoźnikiem czy jednak już spedytorem? Excess, że przygotowanie dokumentacji również leżało po Naszej stronie, po stronie Z zaś sam przewóz. Czy pomimo treści umowy “Zlecenie transportowe” występowaliśmy de facto jako przewoźnik umowny czy jednak jako spedytor?
Bardzo proszę o możliwie jak najszybszą odpowiedź na pytanie. Thank you very much.
@ Olga
Are you contracting carrier. Rules on your billing Company Z does not have any influence on your relationship with X. If you commissioned the transport, you are a carrier.
Hello,
I'm in the process of working on starting the shipping company. For some time it bothers me the issue of adequate insurance, which protects our interests. Namely, as I mentioned earlier, It is a shipping company, not having their own, we have a license for road transport operations in the field of transport agent.
The question is whether having the above-mentioned license will be a good solution OCP insurance (whether it will be me actually issued with the company without cars)? Or perhaps a combination of OCP and OCS is the best solution? A can only OCS?
Thank you for any hint.
@ 4est
z mojego doświadczenia najlepszym rozwiązaniem jest OCS z klauzulą przewoźnika umownego pod warunkiem, że jest ona odpowiednio sformułowana. Samo OCS zdecydowanie odpada – zdecydowana większość zleceń będzie miała charakter umów przewozu a nie spedycji. Lepszym rozwiązaniem jest samo OCP, chociaż jeśli się trafi jakaś umowa spedycji, ono jej nie obejmie.
Sir Paul,
dziękuję bardzo za fachową wskazówkę.
Regards
Hello,moje pytanie brzmi:mam firmę transportową,która realizuje przewozy zlecane przez firmy spedycyjne.Otrzymałam zlecenie,However, it turned out,że nie jestem w stanie je wykonać.Czy jako przewożnik mogę wystawić zlecenie transportowe innemu przewożnikowi,czy muszę posiadać licencję spedycyjną?Excess,że takie sytuacje bywają sporadycznie.
@ Mariola
Each carrier, which is licensed to carry, It has the right to subcontract the carriage to another carrier without a license shipping.
Hello
A jak wygląda sytuacja odpowiedzialności za szkodę w stosunku do tzw. brokerów kurierskich czy tez pośredników. Example : Nadawca osoba fizyczna X, zleca firmie Y ( brokerowi) wykonanie przewozu paczki i dokonuje płatności za usługe na rzecz firmy Y. Firma Y na podstawie zawartej umowy, zleca wykonanie tej usługi, firmie przewozowej takiej jak np. DHL, UPS, DPD. Firma DHL,DPD,UPS odbiera przesyłkę z domu osoby X. W trakcie transportu przesyłka ulega uszkodzeniu. Question: od kogo odszkodowania ma domagać sie osoba X? czyli kto odpowiada za uszkodzenie przesyłki., firma Y dokonująca jedynie zlecenia czy też DPD,DHL….
I greet
Peter
@ Peter
To zależy jak jest sformułowana umowa z brokerem oraz od tego czy broker zawiera umowę z kurierem w imieniu własnym czy w imieniu klienta. W tym ostatnim wypadku klient sam może dochodzić roszczeń od kuriera. W tym pierwszym może to zrobić tylko broker i najczęściej to on odpowiada wobec klienta
Adoption and execution of road transport agency
the carriage of goods requires a proper license. A mediation or the carriage by rail requires a license? Ustawa właściwa dla drugiego z wymienionych rodzajów transportu nie wskazuje tego jednoznacznie.
@ Ebi
W mojej ocenie nie ma podstaw do uznania, że działalność w zakresie pośrednictwa przy przewozie transportem kolejowym wymaga odpowiedniej licencji. Licencje są przewidziane wyłącznie dla podmiotów, które fizycznie wykonują przewozy kolejowe.
Good morning,
Czy firma bez licencji transportowej(wykonująca transport do 3,5 t) może podzlecać ładunki innej firmie transportowej?Jaka licencja w tym przypadku jest obligatoryjna??Jakie ewentualnie kary grożą za brak licencji a zlecanie ładunków innej firmie transportowej, czy jakiś organ w ogóle to kontroluje?
Thank you very much in advance for your answer
@ Łuki
It depends, czy takie podzlecanie ma charakter incydentalny, kiedy nie jest w stanie zrealizować samodzielnie zawartej umowy przewozu, czy też ma miejsce regularnie i jest to odrębna działalność gospodarcza. W tym drugim wypadku w świetle stanowiska organów ITD konieczna jest licencja na pośrednictwo.
Thank you, czy dla firmy posiadającej zezwolenie na wykonywanie transportu drogowego rzeczy sytuacja wygląda analogicznie?
@ Łuki
W mojej ocenie jeśli ktoś ma zezwolenie na wykonywanie zawodu przewoźnika drogowego, wiąże się to również z uprawnieniem do zlecania przewozów podwykonawcom.
Hello.
Wziąłem ładunek od spedycji zagranicznej na trasie międzynarodowej. Do przewozu były kartony z towarem. Powierzyłem transport polskiej spedycji a ta dalej przewoźnikowi. Jakiś czas po rozładunku okazało się że brakuje 100 kartonów o łącznej wartości 5tys euro;. Mam jakiś ‘dokumento di transporto’ z zaladunku na którym podpisał się kierowca z ilością 1000 cartons. Mam CMR z załadunku gdzie nie ma ilości kartonów. Mam też CMR z rozładunku gdzie jest wpisane 900 cartons. Czy jest szansa uniknąć obciążenia? Albo czy są podstawy żeby kwestionować ważność dokumentu innego niż CMR? Co w takiej sytuacji robic?
@ marek
At first glance, it seems, że nie ma podstaw do uniknięcia odpowiedzialności. Potwierdzenie ilości pobranego towaru nie musi się znajdować na liście przewozowym – wystarczy jakikolwiek dowód, który to opisuje. Skoro jest dowód, że pobrano 1000 cartons, a jednocześnie na rozładunku stwierdzono tylko 900 cartons, to przewoźnik odpowiada za brakujące 100 cartons.
Hello Sir Paul, na wstępie zaznaczę, że pański blog to prawdziwa kopalnia wiedzy dla takich zielonych laików jak ja. Wobec tego, że jest pan niewątpliwie fachowcem w swojej dziedzinie wiedzy chciałem zadać proste aczkolwiek ważne pytanie. Czy działając na rynku jako przewoźnik drogowy, posiadający licencję na transport międzynarodowy przy 2 pojazdach ciezarowych ( czyli mam zabezpieczenie na 14000 euro ) mogę legalnie przekazać zlecony mojej firmie przewóz ładunku innemu przewoźnikowi na danej trasie bez obawy, że podczas kontroli we firmie przez itd lub us, narażony będę na kary ze względu na pośrednictwo w przewozie ładunków bez “Licencji na wykonywanie transportu drogowego w zakresie pośrednictwa przy przewozie rzeczy” ( czyli również na zabezpieczenie na 50000 euro ) i zarabianie na tym procederze pieniędzy. Czyli Firma X zleca mi przewóz towaru za 350 euro, a ja go oddaje innemu przewoźnikowi za 250 and, czyli zarabiam 100 euro . Oczywiście umowa przewozu jest na mnie, jestem wpisany w CMR jako przewoźnik umowny, faktury na mnie. Na co dzień oczywiście prowadzę transport drogowy z użyciem mojego taboru i oddawanie ładunków ma charakter sporadyczny. Dziękuję za odpowiedź gdyż niegdzie nie mogę znaleźć konkretnej odpowiedzi na to pytanie.
@ Michał Marzec
Thank you very much for your kind words 🙂
In my opinion, having a license for transport includes the right to subcontract transportation subcontractors even if it is a regular. There are, however, in that respect different voices and some say, such that the carrier should have a license for both transport and brokering. In your case, however, this question does not exist – skoro takie sytuacje występują sporadycznie, nie można powiedzieć, by prowadził Pan działalność gospodarczą w zakresie pośrednictwa. Nie musi więc Pan posiadać licencji na pośrednictwo.