Compensation for damage in shipment and delays in transport are the basic types of consequences faced by carriers due to the improper performance of the contract of carriage. This type of damage dominates also in liquidation proceedings conducted by insurance. Often, however, the carrier shall be obliged to pay the other charges connected with an, which can often exceed the value of the compensation for damage in shipment
Related regulations
Both Polish transport law as well as the CMR Convention and Annex B to the Convention contains a provision codified COTIF Contract for International Carriage of Goods by Rail (CIM) There are similar arrangements for the return of the carrier transport costs due to damage in shipment. According to art. 82 transport law in addition to compensation for damage in shipment carrier is obliged to pay carriage charges and other costs associated with transportation package as a whole in the event of loss of the goods or the relevant part in the event of loss or damage. Similarly, in accordance art. 23 paragraph. 4 CMR in addition to damages, the carriage, Customs duties and other expenses incurred in connection with the carriage of goods in full in case of total loss and the proportion in the event of partial loss. A similar adjustment is art. 30 § 4 CIM representing, that the carrier is obliged to pay carriage charges, duties and other amounts, paid in connection with the carriage of the lost goods, excluding excise duties on goods carried by the procedure of excise duty suspension. This last claim is the only serious difference between the wording of the provisions described, although - as will be explained below - also in the case of transport law and the CMR Convention, such reservation may be derived from them by interpretation.
Return transportable
The above provisions leave no doubt, that the carrier is obliged to return transportable in whole or in part depending on the extent of the damage in shipment. This does not mean, that there is no legal aspects of this phrase, to be discussed. First and foremost issue is the nature of the claim for reimbursement of transportable - whether it is based on the provisions of unjust enrichment, or is it a typical claim for damages. This issue can often be important not only because of different regulations relating to these two institutions of civil, but also because of the possibility of covering claims by the insurance. Personally, I agree with the concept of undue benefits - as the basis for payment of freightage is the realization of shipping transportation services at a specified value to the destination, and as a result of loss of or damage to the shipment intended purpose of the provision has not been achieved, carriage should be regarded as unfair within the meaning of the provision. 410 k.c.
Another issue which may be questionable is the, transportable or be refunded in a net or gross amount. It will depend on VAT regulations in your country. On the basis of Polish law appears to, that the carrier must make an adjustment invoice, and thus the carriage must be returned in the amount including VAT.
Customs, indirect taxes
Larger disputes relate to the repayment of customs duties and indirect taxes on goods chargeable. It is generally accepted because, that this phrase should not include those of public debt, that affect the value of the consignment at the time and place of its consignment for carriage. Such costs should be included because the amount of compensation for the load. In specific cases, however, disputes arise, whether a tax affects the value of the shipment. Unfortunately the law does not clarify the situation, which is often contradictory. Przykładowo w wyroku Court of Antwerp Bereop z 29.06.2009 r. ref. nude art 2002/AR/3012 na gruncie. 23 paragraph. 4 CMR was, iż VAT i akcyza, which are payable as a result of a failure to customs clearance of goods transported because they are stealing charges, which are linked with transport. Z w kolei wyroku Court of Cassation of France z 05.10.2010 r. ref. akt R.09-10.837 adopted the view, that since the time of production of the goods is liable for payment of indirect taxes, which is suspended until the placing on the market, Such taxes should be added to the initial value of the goods and do not constitute payments made in connection with transport.
As can be seen, it is difficult to predict, What will be the decision of the court in this case, especially taking into account the differences in interpretation of international transport conventions by courts in different countries. Meanwhile, to determine, whether we are dealing with charges related to transport, is crucial to determine the scope of the claims against the carrier. These fees are different than compensation for damage in shipment, and for delay are not subject to limits provided for in the law of lading or CMR and CIM. Thus, if the tax value will be added to the value of the consignment, total compensation can not exceed 8,33 SDR per kg in the case of the CMR Convention and 17 SDR per kg for the CIM. If you work as a charge in respect of the carriage will be refunded in full.
Of the three most clear in those rules seem to be governed by the CIM, which clearly show, that the fees do not include excise, which thus should be included in the value of the consignment.
Other costs
Even more questionable in doctrine and jurisprudence cause other costs associated with shipping. While there are no special dispute as to whether, they include m.in. insurance costs, loading or shipping, so far are great differences as to the costs incurred after the damage in shipment. The concept of cost of carriage is in fact interpreted broadly or narrowly. Some courts and commentators is of the, that is associated with carriage and any cost incurred due to improper performance of the carriage, others say, are merely the cost associated with the normal course of transportation, and the costs incurred due to improper execution of carriage shall be paid as compensation for damage in shipment or transport delay. Thus, depending on the view of the recoverable costs are included in the costs of legal services related to the investigation of claims, the cost of transporting the damaged goods to another recipient, storage costs for damaged goods, rescue or expertise related to the establishment of the state. It is interesting to also note the position of the German courts, which are a compromise in the descriptions of the views - they take, that described above, the cost can be counted as fees related to transportation if they are reducing damage or delay. On the other hand are the views, that in this case these costs directly affect the amount of compensation for damage in shipment.
Concluding Remarks
In defining the scope of responsibility for the shipment transported, carrier and therefore insurance should take into account not only the value of the shipment and potential compensation for their loss or damage, but also other costs, since in many cases, these costs may constitute a very important part of total debt, which the carrier is obliged to pay. Unfortunately, no single line of cases makes, clear that their estimate is not possible.
For me, the issue of this Article. is essential to determine the amount of compensation (I mean the broad concept covering the entire loss suffered). Kwetsię additional costs (and therefore non-detriment in the commodity) regulates only the terse and oddly worded Article. Correct me if I'm wrong but if we consider, Zé do “other costs” powtsałych not we include the cost of the damage after the shipment but directly related to the damage, and thus such. the cost of return transportation of the goods damaged, the cost of transport of goods free of defects, etc., it properly, there is no other reason to seek reimbursement of such costs. We do not use because of the Civil Code, and compensation pr.przew. (art. 81) and such costs are not expected, clearly defining how to calculate damages.
By the way only, that it is impossible to understand the intent of the legislature. Suitable disguising this Article. (reducing damage only to the situation, and “other costs”) Exact receive
“In case of damage in addition to compensation for damage provided for in Article. 80 i 81 the carrier is required to pay other costs associated with the transport of the consignment – in the amount equal to a percentage reduction in value of the shipment due to damage.”
How does this “percentage reduction” the costs incurred after the damage? For example,: during transport of the damaged goods (terms of carriage it is understandable that I did not pay for the damaged part of the fixed proporcjonlanie), but in this connection had to organize uszkodzenim return transport of the associated costs. The cost of this tarnsportu I expected proportion? But it does not make sense.
Regards
karol
Editorial provision really is not clear, the Polish law on this issue, in practice there is no. You can try to refer to foreign case law on the basis of the CMR, where there is a similar provision. But there is also the cost of the concept is understood differently. As a rule, however, does not apply to the cost of the actions taken after the occurrence of the damage, and in fact non-existent legal basis, to cover such costs. Of course, in certain cases, such costs may be included in a proportional reduction in the value of the goods, but usually will not be able to get compensation for it. Therefore, this provision is used most often to lower the value of transportable, and reimbursement of taxes and duties paid. So you can not hide, that the interests of the victim suffers. Transport Law, however, is a compromise between the interests of the carrier and its partner. On the one hand, it is quite strict liability principle without fault, on the other hand, the compensation is limited – Polish law anyway, to a lesser extent than in the CMR Convention.
In conclusion the only way to get a full refund of shipping damage is to demonstrate willful misconduct or gross negligence of the carrier. In this case, no compensation limits do not apply. But this is usually a very difficult task.
Hello Mr. Counselor,
I have a question. I run self-employment in the transport of goods by road. Recently accepted the shipping order from a company in Polish (loading in Italy, unloading in Poland), However, at the last moment Customer canceled the order, Can I charge the Customer the costs incurred by me? (employee work, paliwo itp.)
Regards
@ Mark Carrier
If the contract does not provide for the possibility of withdrawal, the most you can claim expenses and lost profits.
I understand, że w przypadku kosztów powstałych z powodu opóźnienia w dostawie, nie można ich skutecznie dochodzić na podstawie konwencji CMR? Wskazywałby na to sposób redakcji art. 23 Convention (paragraph. 4 odsyła niejako do ustępu 3, to ust. 5 dot. opóźnienia jest niejako pozostawiony sam sobie). Czy w przypadku gdy z powodu opóźnienia powstały jakieś dodatkowe koszty, to nie można ich już w ogóle dochodzić i poszkodowanemu musi wystarczyć odszkodowanie za opóźnienie wynoszące co do zasady tyle co fracht?
@ Magda
W przypadku gdy w wyniku opóźnienia powstały dodatkowe koszty, Konwencja w ogóle nie rozróżnia, jaki charakter mają te koszty. W każdym wypadku ponosi za nie odpowiedzialność przewoźnik, ale do wysokości przewoźnego. Wyjątkiem jest gdy w wyniku opóźnienia dochodzi do szkody w przesyłce – taka szkoda jest naprawiana na ogólnych zasadach odpowiedzialności za szkodę w przesyłce.