I realize, it's the third entry focused on changes in the CMR Convention (previous entries your i your), but since these changes occur once a 30 years, need to use the moment, while still on 🙂 (which is not entirely true, soon as another entry dedicated to a whole new change in CMR). The transition period after entry into force of new regulations (as to what I have, however, considerable doubt) brings forth some issues that require clarification.
A new way of calculating the limit of liability
The new wording art. 23 paragraph. 3 Convention leaves no doubt that, How to calculate the limit of liability of the carrier – It is 8,33 SDR per kg consignment missing. SDR conversion into national currency is the exchange rate at the date of the judgment or agreed by the parties. Establishing courses SDR poses no special problems – It is determined by the Polish National Bank, and the odds of each date are available on the NBP website.
To which event the new limits?
Hassle-free way of calculating the limits of liability no doubt represents a new quality in relation to the previous legal status – establishment, gold francs to be converted into local currency has always been problematic and in fact never found a good and widely accepted mode of action in this matter. Polish National Bank on a quarterly basis shall make such calculations, although they are not published. Resulting from the new rules for calculating warrant franc exchange rate appreciation in such a way, to the limit of liability calculated by gold as close as possible to the 8,33 SDR in the previous state was not the proper use of.
The new regulation is not without its drawbacks – In it the lack of transitional provisions, hence, in fact, it is not known, events to which it applies. Is crucial date of agreement, injury, take legal action, or maybe a ruling? To complicate matters, that under the same protocol amendments came into force in Poland on 21 February 2011 r. but the rules were published in the Official Gazette before the day 5 April 2011 r. So it can be problematic not only the criterion, it considers to be crucial, but also the same date that separates the old from the new legal status.
Personally, I am of the opinion, that – regardless of the allegations, that the entire regulation is unconstitutional because of the wrong mode of ratification – regulations published in the Official Gazette can not be considered valid until the publication. Thus, rather przyjmowałbym date 5 April 2011 r. as the beginning of the new rules.
I also, in the absence of transitional provisions to apply general principles of inter-temporal ordering the old rules apply to events, that took place before the entry into force of new regulations. Since the new rules apply to the calculation of limits of liability of the carrier for damage arising from the implementation of the contract of carriage, and these limits are part of this agreement, critical – in my opinion – will be the date the contract of carriage. The contracting party shall take into account the transport because the legal situation prevailing on the date of its conclusion, and no right to assume, that the carrier's liability for damage will be seen to be applicable on the contract terms. The adoption of any other criterion would lead to a kind “surprise” the contract of carriage control is not taken into account when concluding the contract. Lack of clear rules in the protocol, however, makes, that there is no guarantee, that the courts in individual cases will not be guided by a different way of reasoning.
Conclusion of the agreement during the transitional period may lead to a paradoxical situation, when the carrier received the request on the transport 4 April 2011 r. will correspond to the old rules, and its subcontractor, podzlecił who carry on 5 April 2011 r. already on the new. This case is not unusual. May already occur foundations compatibility problems and limits of liability of parent and sub-contractors, eg. when implementing leading carrier has entrusted the international carriage of certain contractors for the implementation of the national sections.
It's not the end use of gold franc
Unfortunately, the new rules do not make, that the gold franc go of the past. Of course there will be much less need to establish its value, but it will not disappear completely. The minutes did not proceed because a number of countries (complete list of countries Parties to the Protocol: here) – from the European Union is true only Bulgaria and Slovenia, but it is also quite popular directions of transport of Polish carriers such as Russia and Ukraine. Since, according to the rules of private international law in most cases, the law applicable to the contract of carriage is a law because of the seat carrier, in situations when Polish companies (np. carriers) commission will transport carriers from the eastern border, to such agreements will apply the Convention in the original version. In the case of damage during such operations still need to think about the calculation of the exchange rate franc. One can only hope, that in future all European countries join the Protocol 1978 r. – This will certainly make life all the participants of transport processes.
