There are many situations, which can be treated either as a breach of contract binding site and the emerging tort liability for damages. Such cases are of particular relevance to the damage usually associated with the transport of motor vehicles. A very important issue is therefore the question of admissibility of the victim selection, if he wants to pursue their claims under the contract of carriage or under the provisions of tort.
Tort liability of the carrier ...
In relation to carriage by road and rail - which are performed almost exclusively by motor vehicles - regularly comes to the situation, which can be qualified as unlawful acts. Art. 436 k.c. constitutes the, that the autonomous vehicle owner is liable for damages to vehicle traffic, unless the damage was caused by force majeure, exclusive fault of the victim or a third party, for which no responsibility. Moreover, the transport companies are usually regarded as the company put in motion by the forces of nature, which raises the identical liability for damage caused by the movement of business art. 435 k.c. Thus, damage to the shipment in transit, in many cases will be both a tort - a detriment associated with the movement of the vehicle or the company - as well as breach of an obligation under the contract of carriage.
The question therefore arises, whether in relation to transport damage may be relied on rules of tort?
The basic rule in Polish law relating to the intersection of contract and tort claims are art. 443 k.c. According to its content in the case, when an act is both a tort and breach of an obligation, it is possible to investigate the claims of each of these titles, unless the content of the obligation entails another. At first glance, therefore no basis, to exclude overlapping of contractual and tort claims for damages in transport of goods.
Also traffic laws do not give a clear negative answer to the question posed above. Transportation Law - unlike the rules governing air transportation - not explicitly exclude the use other than as described in the law system of liability. On the contrary - at first glance, the content art. 90 pr. wire. which is, that in cases not provided for in the Act and the regulations issued in its execution and the specific provisions, the provisions of the Civil Code, would seem to allow the investigation to the carrier claims based on tort.
Also, the doctrine is far from unanimous. Some authors claim admits the existence of the intersection, some are strongly opposed to it. In my view, more arguments in favor of the latter view, at least for the application of tort rules for transport damage with extreme caution.
Highly questionable ...
First of all, pay attention to the consequences of release carrier liability tort regime.
Firstly This would significantly facilitate the investigation of claims against the carrier and makes his defense against charges of victim. The principle of the carrier's liability for damage to the consignment on the basis of transport law and the rules of tort is, Although, the same - the liability is based on the risk - but in the Civil Code are much narrower grounds excluding the carrier's liability. Moreover, the transport law operates a number of presumptions favorable to carrier, which also allows him to avoid liability for damage in shipment. This projection could not be used in the process of tort.
Secondly uległby change the period of limitation claims for shipping damage. Instead of one-year deadline under Article. 77 pr. wire. have applied a 3-year period specified in art. 4421 k.c.
Thirdly increased number of operators have been, to which the carrier is liable for damage in transport. The transport was almost exclusively a sender or recipient (depending on the situation). On the basis of the Civil Code of the claims could occur also owner of the damaged goods.
Fourth restriction would be lifted as to the amount of compensation specified in the transport law, because the rules of tort, such restrictions do not provide.
Even a cursory analysis of the major (but not all) effects of release of liability in tort of the carrier must lead to the conclusion, that In practice, this would lead to a complete denial of detailed regulation of traffic rights which are a compromise between the interests of the carrier and its contractor. These provisions in a large proportion of cases would be completely unnecessary, it would be much more favorable to the victim support their claims of tort law.
Moreover, a detailed analysis of art. 90 pr. wire. also leads to the conclusion, that the application for claims against the carrier's liability in tort is highly doubtful. Appropriate use of the Civil Code is in fact possible only in cases not covered by the transport law. Meanwhile transport law regulates in a comprehensive manner the carrier of liability for damage caused in transport, hence no need for recourse in this regard to the Civil Code.
CMR Convention
A lot of this issue is clearly regulated in the CMR Convention. According to art. 28 Convention where the law allows the investigation of claims against the carrier under a different title than a contract, carrier may use the provisions of the Convention, which exclude his liability of which fix or limit the compensation due. In this case, there is therefore no doubt, that even in cases where a victim of the regime for liability in tort, Basic provisions of the Convention shall apply, and the carrier will be left without protection, that these provisions provide. This provision applies in particular to the period of limitation, Although courts in some countries (Austria, Germany) this principle are derived rather from art. 32 Convention, arguing, that it contained a limitation period applies to all claims arising out of carriage under the Convention, and not only to claims arising from the same contract of carriage.
The doctrine in question is only, or art. 28 Convention also includes those provisions of the Convention, which relate to the burden of proof – because they are not directly included in this provision. The prevailing view, that the burden of proof belongs to the circumstances of limiting liability, and therefore should also apply in the event of a claim under a different title than the contract of carriage.
Concluding Remarks
However, described the issue firmly in the theory of law is of great practical importance. Adoption of the admissibility of the application to traffic injury tort regime on the one hand greatly increases the scope of the liability of carriers, the other affects the extent of insurance coverage, sometimes leading to liability insurance for damage, that the assumption had to be covered by insurance (np. in the case of tort liability insurance company).
