The general rule is a rule of civil law, that the content of contracts can be changed only if all parties to accept. From this principle, transport law, however, introduces a number of exceptions, what often becomes a cause of damage and hence the disputes arising between the parties
General Comments
The basic elements included in the contract of carriage includes m.in. determine the place, to which the shipment should be delivered and specify the recipient. These data are in fact the primary influence on the determination of the remuneration of the carrier with one hand and the opportunity to evaluate the proper execution of the contract of carriage (whether the carrier delivered the shipment to the person entitled) One of the hallmarks of a contract of carriage, however, from other contracts is the ability to unilaterally change the contents of the contract by an authorized person Also in the above mentioned range. Unfortunately, in many cases, the participants of transport processes are not aware of either of these possibilities, or the conditions or consequences of using them. It is worth to recall the relevant regulations.
National legislation
According to art. 53 paragraph. 1 pr. wire. sender may at any time terminate the contract of carriage or make changes to it. The implementation of these rights can be manifested in three forms:
– requiring repayment of the consignment at the place of origin,
– request for an shipment in a different place than the place indicated on the consignment
– request for an items to another person than the consignee indicated in the consignment
The disputed in the doctrine remains in this or withdrawal may be made only before shipment to the carrier (then request the return to the place of issue shall be treated as an amendment to the) or may occur at any stage of the transport.
Notwithstanding the above concerns return shipment to the place of issue to the carrier may require only the sender. It is worth recalling, that the sender is not always the entity that loading, because the role of the sender is a person fully, who arranges for transportation. Thus, the carrier having received such instructions from the shipper, should make sure that the shipper is acting on behalf of the sender according to his will.
Requests amendment to the contract of carriage in the place of delivery or the person entitled to the recipient of both the sender and recipient, unless the consignor has otherwise reserved in the consignment. The recipient does not, however, has the right to change the place of delivery after the receipt of the consignment to the destination. It is very important in this respect the provisions of art. 53 paragraph. 4 pr. wire. according to which the sender's permission to dispose of the consignment shall expire, if the recipient has introduced changes to the contract of carriage, adopted a bill or received a shipment. Therefore, the lack of reservations in the consignment prohibiting recipients exercise of the powers to amend the contract of carriage may deprive the sender affect the content of the agreement, if the customer exercises its powers.
A request to amend the contract should be made in a formalized manner by presenting a copy of the bill of lading received and the deposit of a written statement. The actual deprivation of right to dispose of the recipient so delivery may also occur through failure by the sender, a copy of his bill of lading. This mode is very important, because failure to produce the bill of lading to the carrier with an appropriate statement will, he is not obliged to comply with the request.
It is important to be aware of, the command that is associated with the duty of the carrier recovery resulting from an amendment to the contract of carriage by the sender or recipient, depending on, which one makes changes.
Refusal to execute the command
The powers described above, significantly favor a single party to a contract of carriage and may interfere with normal functioning of the transport companies. Fortunately for carriers in art. 54 pr. wire. legislature included situations, where there is no obligation to comply with the command changes the contract of carriage.
The first is unenforceability of command. This need not be impracticable, however, an objective. It is sufficient that the order was impossible to do by the carrier under the circumstances. This will in particular cases, if the carrier does not have the equipment necessary to deliver the consignment to an address (np. in difficult to access area) or when the command was transferred to the carrier so late, it is not possible at the time of delivery. Also indicate, impracticability that we have to deal also in the situation, when the command would require unreasonable expenditure of forces and means.
The second case allows the carrier to refuse to execute the command is situation, when the command would cause a disruption in service. At the same time these disturbances can affect both the use of the vehicle and the entire company. For this reason, carriers relatively easily can prove the occurrence of such grounds for refusal. Just by vehicle, which was to carry the consignment to a certain place, had already been planned for collection at the same time with the same or a nearby village, and the substitution of a replacement vehicle for the time it is not possible.
A relatively obvious reasons is the third carrier to allow failure to comply with the command. It is the situation, when execute it would violate applicable regulations. That refers to any kind of rules, which may be applicable in this case, in particular those governing the movement of vehicles on certain routes, regulating working time for drivers and how the carriage of certain categories of goods.
The last of the reasons for refusal includes cases, in which not been completed all requirements for issuing a command specified in the art. 53 pr. wire. particularly as to the form and the person empowered to issue.
Should you any of the above situations, a carrier wishes to exercise the right to refuse to execute the command, shall immediately inform the person issuing the command.
The liability of the carrier
The command, If there are no conditions described in art. 54 pr. wire., is the responsibility of the carrier. Violation of this could result in severe consequences to the carrier. According to the art. 70 pr. wire. carrier is liable for damages resulting from failure to perform or improper performance of the command changes the contract of carriage. It should be emphasized, iż to the carrier to show that both, that there were circumstances justifying refusal to execute the command, and that the carrier has informed the person authorized by the circumstances, and refuse to comply with the command. Only in this case because there is no commitment whatsoever to execute a command of the carrier, and thus there are no grounds to prosecute those responsible for violation of this commitment.
It is worth noting, that the construction of that provision makes the transport law, that the carrier's liability for failure to prompt changes in the contract of carriage is absolute and there is no evidence excluding the carrier's liability in this regard, in particular, will not be the premise of no fault of the carrier.
Compensation for failure to prompt changes in the contract of carriage may include various components, in particular damage to the goods resulting from such. as a result of excessive transportation of perishable foods, why they wanted to prevent, issuing the change order for reception. But according to the art. 84 pr. wire. damages in such case shall not exceed the amount of compensation payable in case of loss of the goods calculated on the basis art. 80 pr. wire. This limitation does not apply, if the damage resulted from the willful misconduct or gross negligence of the carrier.
