In practice, the transport is widespread, the next bill of lading issued with the release of the consignment is a contract of carriage between the shipper and the carrier. It happens, between these documents that there are discrepancies, this raises the question, which of them should be given priority.
How to conclude a contract of carriage?
Neither the transport law, ani codex cywilny do not regulate the form, and what should be concluded contract of carriage of goods. Similarly silent on the CMR Convention. In practice, contracts often take the form of transport document, although it is difficult to talk about writing – usually comes to the conclusion through the exchange of faxes or emails. Often the evidence of use has a record contract negotiation fought with IM exchanges available within the transport. Usually, however, reproduce the conditions of the Agreement between the parties is not a problem, and agreements in oral form, np. by phone, are among the few exceptions to the rule.
What is the bill of lading?
Transportation law much wider comment on the bill of lading and the role of, it plays in the transport. According to art. 38 pr. wire. sender is required to issue a bill of lading including a number of m.in. the sender, carrier, recipient and shipping. However, unlike was the original version the transport law, issuing a bill of lading is not a current condition of the contract of carriage - It is possible, therefore, the implementation of transport at all without a consignment note. Of course, the situation, in which, despite the conclusion of a valid contract of carriage do not put up the bill of lading should be avoided.
The doctrine emphasizes the, that the bill fulfills a number of different functions. One of them is a function of evidence. According to art. 47 paragraph. 3 pr. wire. Evidence of a contract of carriage of a consignment note, which can also be electronic transmission, computer printout or other document containing the information specified in art. 38 pr. wire. Do not, however, the wording of this provision inferred, that the bill is the only evidence of the contract and its contents. In the judgment of 26.01.2006 r. ref. V CSK 59/05 The Supreme Court emphasized, that art. 47 paragraph. 3 can not constitute a basis for determining the content of a particular contract of carriage or the assessment made in the specific arrangements.
Similar regulations on the bill of lading contains the CMR Convention. According to art. 4 Convention waybill is evidence of the contract of carriage. Even here, however, emphasized, that lack, irregularity or loss of the bill of lading does not affect the existence or validity of the contract of carriage, which shall remain subject to the provisions of the Convention. Contract for the carriage of goods by road as well as the contract of carriage concluded on the basis of Polish transport law has the character of consensual and non-formal, and issuing the bill of lading is only part of its implementation, not a precondition for the agreement.
Evidentiary function waybill CMR Convention is regulated by the stronger way than in the transport law. Art. 9 CMR as it introduces a legal presumption, according to which in the absence of proof to the contrary waybill is evidence of the contract, terms of the agreement and receipt of goods by the carrier. Also in this case, however, the presumption applies only if, if there is no other evidence to conclude an agreement.
The agreement usually more important than the bill of lading
What this means in practice? This means that, that bill is, in principle secondary importance from the standpoint of the parties and determine the terms and conditions of carriage. In every case,, when there is other evidence, which result in terms of the contract of carriage, contents of the bill of lading will not matter.
There are only two exceptions to this rule, which, in practice, however, are found very rarely. The first is the possibility of inclusion in the bill of lading declaration of value of the consignment in accordance with art. 40 paragraph. 1 pr. wire., if the value of the shipment is not clear from the account or the price for. In the event of damage to the goods shall be, that the value of the product was consistent with the declaration, and the holder does not need to prove that height. In this case, the key is to enter the declaration of value to the bill of lading - the same findings contained in the contract of carriage is not enough.
The second case concerns the possibility of inclusion in the bill of lading declaration of value of the consignment or a special interest in delivery in accordance with art. 24 i 26 CMR. In this case, entitled - unlike in the Polish transport law - still has to prove the damage, but the compensation limits are raised to the amounts declared. And in this situation is crucial provision in the bill of lading, and contractual provisions without such a provision would not lead to the desired effect.
Wrong practice of insurance companies
In view of the above positions must arouse astonishment that, that in general terms of civil liability insurance of road many insurance companies are provisions excluding liability insurance for damage caused during transport undocumented Waybill, that contains the data of the insured. In a situation where - as pointed out above - bill has a purely supporting role in determining the parties and the conditions of the contract of carriage, requirement, that every carriage was evidenced by the bill of lading containing the data of the insured, it is not justified. The liability of the carrier and therefore the insurance may be insufficient to set on the basis of other documents than the bill of lading.
It is worth noting, that disclose in the consignment of the main carrier is a common practice in transportation, in which the main carrier uses subcontractors. Usually in such cases is placed on the consignment note - though it must be admitted that the wrong - the subcontractor, which often appears on the loading site with its own pattern waybill. What's more, this problem does not go away, even in cases, where properly entered in the consignment note of parent. For then the insurance coverage shall not be a subcontractor (of course if you are insured in a plant that uses such clauses). This time it's data is missing in the consignment. Formally comply with the provisions of the situation, to expose the two packing lists - one under a contract of carriage between the consignor and the carrier main, and one in the main contract between the carrier and a subcontractor - in practice almost never occurs.
Entry in the general terms of insurance record, which in practice is irrelevant to the determination and extent of liability insurance, and yet in many cases could be the basis for denying insurance coverage, should be evaluated very negatively. You can even tempted to say, that such a clause is contrary to the essence of the insurance contract, and at least an impermissible contractual clause (for contracts with individuals engaged in economic activities). Without a doubt, it can also be a cause of numerous legal disputes concerning the validity of the refusal to pay compensation under the insurance contract.
It is therefore hoped, that insurance companies are using these records, verify the content developed by their insurance conditions, which will increase the confidence of the insured as to coverage possessed, while not adversely affecting the interests of insurance.
“You can even tempted to say, that such a clause is contrary to the essence of the insurance contract, and at least an impermissible contractual clause (for contracts with individuals engaged in economic activities)” – it is not very broad approach? After all, the consumer is an individual, but just making activities not associated with his trade or profession, unless something slept?
This time I was not wrong 🙂 Art. 805 by. 4 k.c. – Articles. 385(1)-385(3) shall apply mutatis mutandis, if the policyholder is a natural person contracting directly connected with his trade or profession.
What if the carrier has in any other place of unloading the consignment, and others in the contract? From what written above it appears that winnien stick to the agreement.
Here the matter is more complicated. Indeed, the priority is to contract, but the sender is authorized to make unilateral changes to contracts of carriage in the destination – I wrote about this here i here just by typing a new place in the consignment note. If such a change occurred, for the carrier binding is a new place. Generally, however, for the carrier, that the contract has other than the place of unloading the consignment, This situation should be a great beacon light. For it is very likely, that participates in the growing incidence of fraud procederze, in which a subcontractor to his subcontractors of parent points to a different address than the reception, which he received from the carrier after a major, to goods to appropriate.
But I have a different view – namely, that the bill takes precedence over the order. The contract of carriage includes Give and CARRIER – and for specific data on the consignment is liable just SENDER. So, the order gives the sender and then he shows such as. other conditions. Now, if the carrier will sign a letter that these conditions are somewhat recent and valid. It should be considered, that “commission” is a kind of contract and bill przedswstępną its concretization.
It does not matter, in practice, for example, a letter filled. shipper or the carrier itself – for its contents (not all but a large part) corresponds to the sender and he should ensure that there are adequate data.
Warmly welcome to my blog one of the best experts in transport law in the country 🙂
With all the respect which I cherish for your knowledge, I remain at his court sentence 🙂 Jurisprudence both published and it, with which I deal in the process of performing as a proxy, seems to confirm my argument. This is because even with its judgment in the Supreme Court. It is hard to argue with the content of art. 9 CMR, which assigns a critical letter przewozowemu only in cases, the absence of other evidence to conclude the agreement and its terms and conditions. Prior to the amendment of the transport law 1994 r. Real-world contract of carriage was a real, ie. to its conclusion it was necessary to print the bill of lading and then be able to agree, It determines that the contract terms. Currently, in my opinion there are no arguments for this position.
First, a contract entered into by mail or fax usually is a positive – its object is to carry, and not only in the future to conclude the contract of carriage.
Secondly, with the assumption, that the contract of carriage is an initiatory, and only bill defines its terms, would come to the conclusion, that we can not conclude a contract of carriage without a waybill, which contradicts even the wording of Article. 4 CMR.
Thirdly, if the order was shipping only character's preliminary, could not assert any claims in practice because of its failure to (the car did not substitutes for loading)
Fourth, why the sender would be entitled to change individual elements of the contract before? Transport Law and CMR Convention gives the right to do, but only in certain circumstances and in a certain range.
Fifthly, if we accept this assumption wychodziłoby, that a very large part of the bills of lading would change party to the contract of carriage. After all, the norm is, that the sender is entered shipper, and not the, who ordered the carriage (if it is not the same shipper).
While the full consensus, that the responsibility for the accuracy of the letter borne by the consignor regardless of, who fills it. The issue of the bill of lading is not the act of concluding a contract but part of its implementation. So far, nor in any of the comments, nor in any of the judgments have not met with the position, which is questioned by.
It will be “beautifully vary”. Terms and Conditions, in principle, may be amended by agreement of the parties. So if the order were busy place of destination in Hamburg consignment entered Madrid, and in this line following signatures sender and the carrier then I think, that the contract is for Madrid.
Also from a practical point of view, a letter should preferably be essential. The order is routed to the carrier-entrepreneur, This sets the conditions for knowing his driver, which is capable of the task (qualifications, appropriate vehicle) and informs him via SMS to podstawił to a specific place of loading. At the loading site SENDER bill gives the driver and the driver accepts the goods – goes further in accordance with a letter (a letter should be in accordance with the order). Kierwoca does not send e-mail or boss does not dictate the content of the letter to verify the data – for the accuracy of the data corresponds to the SENDER.
We continue – The control functions and information of the consignment note: Information for the payee to whom the goods, under what conditions, etc.. – it must be true because when the recipient can collect the goods (and even in transport law should) assert the same claim under the contract of carriage – and these conditions are (should be) in a letter.
A control policji, ITD and customs? In the letter, in fact one and the second?
It must be remembered, that after the amendment of the law on road transport for the administration of the consignment data inconsistent with the facts threatens a fine of up to 8000 zł.
Ma Pan rację, that letters are often (I will add, that too often) incorrectly listed: shipper instead of the sender, place of unloading, instead of the recipient, subcontractor instead of the carrier, etc.. but this does not justify in any way!
To, that “all” (in any case a large number of) exceed the speed in built up areas this is not an argument, that the restriction to 50 km / h does not apply.
Insurance companies need to properly bill of lading was issued to the insured – otherwise it would lead to even more damages than the current scams. In addition, it must be remembered, that if the transport is performed by a subcontractor as a rule there is no insurance for the main carrier – unless, They at Mon tzw. sub clause of which many carriers forgets or does not know, etc. itp.
Full line of argument probably would take probably more space than the article, concerned … I think for all parties to the agreement (i I w interesie) bill should be (and according to me is) core document and evidence of contract of carriage.
I think I actually did not come to an agreement 🙂
I do not deny, situations that are sometimes, the bill of lading is evidence of changes in the contract of carriage – corresponds to the bill of lading contained the contract of carriage, and there is no contradiction between them. This article is about the situation while, when the bill is inconsistent with the contract, and such cases also take place. Just in case entered in the consignment note any other place of reception this problem does not occur, because either it is agreed upon, and thus the contract changes, or decide only the sender and then we have a unilateral change of contract of carriage.
What to conclude by drivers – That's why contracts are directed to carriers and not the drivers, that drivers are not authorized generally to enter into contracts of carriage on behalf of the entrepreneur. If I was commissioned to carry the 1000 euro, and in the consignment sender writes, that freight is 500 Euro, a driver is signed, This will have to deal with the change the contract of carriage? Even in situations, If the driver has no right to such agreements contain? That will be served by entering into contracts prior to the adoption of the goods, so the driver can concentrate on important things that is examining the condition of the cargo and entering of any objections to the bill of lading.
The letter is not absolute – that is something to it enters, not cause, the fact that the condition is true. The shipper will not become a broadcaster, subcontractor does not become the primary carrier or carrier successive. By adopting the opposite assumption would come to the conclusion, that the subcontractor will be set as the main carrier in the consignment note suddenly comes to an agreement between it and the sender, although the original agreement was concluded between other persons.
As for the information and control functions – The consignment note must of course correspond to the deal. To this should be pursued and should be educated in this area. But I believe, however, that if such a conflict occurs, document defining the rights and obligations of the parties is primarily a contract of carriage, unless we manage to prove – which does not so easy – as a result of the consignment note there was a change of this agreement by mutual agreement of the parties.
As for punishing the wrong fill the bill of lading has already expressed its views in an article in the Republic – not only that the punishment is grossly disproportionate to the scale of the offense (you can not declare less than 8.000 zł – This schedule of charges after). In a matter of fact every time, the shipper will be set as the sender in the consignment, should be imposed a fine of 8.000 zł, because the completed letter is inconsistent with the facts. This provision is unconstitutional and incompatible with European law – shall be punished only international transport and cabotage, no longer a national, which violates the principle of equality before the law.
And as for the insurance policy – I, Writing to the general conditions that exclude liability insurance, if the policy is not listed in the bill of lading is grossly contrary to the interests of carriers and serves only as a convenient excuse for refusing to pay compensation. Subcontracting clauses are increasingly common, and most insurance market includes responsibility for the actions of subcontractors, and this provision makes the T & Cs, you always lose your insurance coverage – or the main carrier, or subcontractor and without any justification. After all, if there is no evidence to conclude the agreement, insurance will be able to manage the delivery note. In turn, if there are other evidence of the contract of carriage, why not take them into consideration? As for scams – as easily forged bill of lading as a contract of carriage, so this is not an argument for the use of such restrictions. Hopefully, once plants have to give up. For now, I can only do so much, that all customers do not recommend the use of plants, that have the type of records.
But of course no way to disagree, that in the interest of all the, bill to meet the contract of carriage. Although the full compliance with transport law probably never come. After all, who when he saw, that the subcontractor had two bills of lading – One documents the agreement between the consignor and the carrier between the primary and second primary carrier and the subcontractor. And, from a formal point of view, since there are two contracts of carriage, This should be two consignment notes.
I wanted to ask what do you think about the situation, when, in the case of permanent co-operation based on the contract, shipper and the carrier(contractual) not benefit at all from the bill of lading? I know these situations and I wonder if the issue is therefore at risk, except quoted by the Lord in several posts the risks associated with the insurer requires the bill of lading?
I, it is entirely possible and does not in any way to recognize a contract of carriage to be invalid. The consignment note shall be issued, but its absence does not affect the existence of liability. However, this is an undesirable situation especially from the point of view of the carrier. In the absence of the bill of lading is difficult to demonstrate to report any concerns about the state of charge, in the case of the CMR, moreover, they should be included in the bill of lading. No reservations will be the equivalent of taking, that the cargo was in good condition. Without a bill of lading can not also use some type of amenities package declaration of value or interest in delivery.
However, if the carrier or the sender does not want to use the elements, that must be entered in the consignment note, and any existing reservations about the condition of the cargo document in a different way, I can not imagine, that their cooperation is progressing normally without the use of bills of lading. Contrary to appearances on national routes is not until such a unique phenomenon – consignment warehouse documents often replace WZ.
Hello,
I would like to obtain information, or bringing an action against the carrier may be invoked and the CMR convention and transportation law (Can I write in the lawsuit, that the carrier is responsible for art 3 i art. 17 CMR, of the Central Committee and even the art. 65 transport law)? or perhaps in the case apply only on and off and the end of the CMR
Polish transport law would apply only to the extent not CMR Convention. Since the convention in detail the grounds and extent of liability for damage in transport, art. 65 pr. wire. not applicable.
🙂 very great thanks to the Lord for answers 🙂 I have one question as it is with the amount of compensation that can be given in a foreign currency? – according to changes 358 kc, whether it should be calculated in accordance with Article. 27 CMR – is an indication of the appropriate amount in dispute
The compensation may be claimed in foreign currency. The value of the dispute in accordance with Article. 126(1) by. 3 CCP is always determined in U.S. dollars.
Well, This will be the gold, but how do I calculate the value of ? – bo art. 27 paragraph. 2 CMR says that the conversion shall be at the rate of the day and place of payment of compensation… and how he wants in the lawsuit indicate the value is how I calculate it? CMR in the appendix talks about calculating the value of the goods according to the value of the goods… I only have a texture that's what I call an expert to calculate the value of I….
CMR Convention defines the rate for the payment of compensation. For the purposes of the WPS, you can safely assume NBP rate. And as to the value of goods – If the invoice is, give the value of the invoice.
so I understand, but can the rate of NBP is to be the date of filing the petition or the date on which the goods are left on the road ?
On the day of filing a suit.
Thank you very much for your help 🙂
I greet
And something very current.
I just know: fraudulent, as it turned out, forwarding gave the order to the carrier for the carriage of goods from Athens to Madrid …spent on site, loading cargo and the carrier bill of lading in which the destination was the Olsztyn. The carrier has signed a letter and went … to Lodz … Taraz is a case of loss of goods worth 300 k. zł.
I have serious doubts about the legitimacy of such claims against the carrier, but if the judgment awarding will willingly with him will read 🙂
I am also very curious of the judgment. Although in this case by entering something else in the bill changed conditions in accordance with what he described Mr. Paul. Question who sued him in this matter and on what basis he certainly is not forwarding that was a fraud.
I also have a question regarding the correct type carrier in the consignment note. From what I understand it is best that each agreement was a bill of lading. Ie, the shipper or the shipper fills in the name of the sender and is part of parent. I understand also that the second fills the shipper on behalf of parent and enter the sub-contractor, etc.. So in case of damage to be compensated with the policies of each carrier? Moreover, as the shipper to issue copies of thulium. Besides, no one wants to brag that it uses so many intermediaries.
It happens more often that I see in the bill of lading the name of your company but really I am shipper. I wonder what will happen as an accident occurs. Also, I wonder what would happen if I was the main carrier, and that there is injury. No one is authorized to enter in the letters of your company.
WELCOME
Transport took place on the FORWARDING ORDER FOR ITS HIGH consignment NOT ENTERED IN WHICH SUCCESSIVE CARRIERS- DRIVER IS ONLY NAME AND NUMBER OF CARS.
Have been stolen- REFUSES Insurance Company claiming, That the submitted document contained no data CONTRIBUTOR.
Unfortunately this is a fairly widespread attitude of the insurance. Please submit the e-mail, because the case is too complicated, to settle it in the comments.
The next question:). What when the consignee consignment from art51 rights. wire. undertake to pay freightage. (but it will not pay because it is insolvent) whether a claim against the client expires?
Liability of the recipient pursuant. 51 pr. wire. does not exclude the sender, which is still a party to the contract of carriage. Therefore, any customer obligations in this area do not preclude the claim from the sender.
Pani Kaju, You write, it is a freight forwarder can not control what is in the list przedwozowym? Well, in classical forwarding, which in the long drogówce no longer exists, should be so, after receiving the order should you conclude relevant agreements and … send shipping instructions to the loading along with the model bill of lading or the instruction was issued. This is and should be done forwarder. You would not be surprised, that is in the consignment as the carrier.
According to me the law is well structured – proof of consignment, etc.. combining only with additional breaks GOOD SOLUTION. I would urge you to respect the laws and the promotion of good morals, and everything will turn out OK.
How to understand the bill of lading void if there is no signature on the carrier and the consignor. Is a letter such as this can be. evidence in court?
First of all, I do not think, to the waybill was invalid. Polish law does not provide for transport, that the bill of lading must contain signatures of the parties. Such a requirement has indeed CMR Convention, but where the first list contains pages punches, it can be argued, it is acceptable, if national law provides for the requirement of the written form of the consignment note. Secondly, the lack of certain elements of the bill of lading does not prevent the use of this document as evidence in court.
The carrier has entered into a contract of carriage with a shipper, Transport then entered into an agreement with the subcontractor (transport order). Subcontractor carriage made, although the goods are damaged. Carrier is the main subcontractor charged a debit note. The subcontractor was insured, damage reported to the Insurer. The insurer refused to pay for the bill of lading was not his company's data (Only the signature of the driver and vehicle Registration No). Can I sue the Insurer v. arguing, that the contract of carriage was made on the basis of the order of the transport and there is no more important bill?
GTC is:
1. Worth the liability insured Insurer, It held that under the provisions of the Law on Transport, for property damages caused during shipment between the adoption of the transport and release of destination, including for damage to property caused by theft.
2. The insurance may be covered by the Insurer, that meets the following criteria:
1) registered shipping operates in accordance with the
national laws relating to road transport,
2) consignments carried under the bill of lading, or if you do not
bill of lading issued on the basis of other transport document,
where the bill of lading or other transport document means
document issued in accordance with Law Transportation Law, containing
The following data:
a) the name and address of the consignor and consignee,
b) the name and address of the carrier,
c) destination of the consignment (the exact address),
d) place and date of shipment load,
and) determine the genus and species of transported goods, its weight, the number of pieces and
method of packaging and labeling.
Unfortunately this is a fairly typical attitude that insurance, and said record is about to serve ago. Currently I represent a number of entities, have decided to fight in court the record, but no decision has not been made. Personally, I think, that the chances are, But to get favorable judgments.
I'm interested in one thing, or if the loss of the goods, and the recipient (headquarters in Spain) - According to Article. 13 CMR - can occur on its own behalf to the carrier (headquarters in Spain) claims arising from a contract of carriage of goods from Polish to Spanish, This broadcaster based in Poland can not?
And if you can on what basis?
@ Jolanta
It is, że art. 13 paragraph. 1 not exclusive. Other claims by the Supreme Court may be brought on the basis provided for in the Polish transport law which is entitled the, Who has the right to dispose of the consignment. In accordance with Article. 12 CMR such person is entitled sender, until the time of delivery. So the sender can claim against the carrier.
Hello,
Whether, if the subcontractor (from the order of the transport) performed the carriage on the route from A (in Poland) to village B (in Poland), therefore, the transport took place on the territory of the Republic of Poland, wherein “all” transport and bill of lading was issued for the transport of the Republic of Poland – Portugal, This subcontractor is in such a situation a national company that road traffic is domestic or international carrier, the performing carrier? During the transport of the damage and the insurance company refuses to pay because the carrier had just taken out a liability insurance policy of road transport in domestic traffic.
Hello, I wanted to ask how often do you see a different error with whom I met :
forwarding the order inscribed 3 place of loading (these are the various cities and businesses) typical “zbiorówka” goods on going to Russia.
However, the bill of lading is only one sender (and it's completely different than those 3 company in which not charge).
Now shipping (crook) does not want to pay for the freight arguing that fact does not comply with the order, since there is no evidence of (in the form of bill of lading) the carrier took the item from the companies listed in the order. The case is in court.
@ Peter in
At first glance, insurance is not right, but usually the devil is in the details. It could in fact come here to use the institution of successive carrier – then the insurance company is correct position. In general, so it would be good to consult the, to say something more.
A proof of receipt by the recipient? But if he did not agree with the number of pallets waybill, the recipient would surely protest. If the letter is clear, This is also evidenced, that customers get the goods, the de facto oznacza, it has been received from shippers. So much at first sight. More probably impossible to say after reading the documents.
Thank you for your answer. Documents on the two: transport order from the freight forwarder and the CMR consignment note where it is entered in the carrier (subcontractor).
So I understand, that may occur to such absurdities, that the subcontractor doing the job on the basis of transport such as road transport. in Warsaw (from point A to B in Warsaw), must have taken out a policy of liability for international carriage, despite the fact, that the cars do not go out of the RP NEVER and OC to carry domestic traffic is not enough????
It is not impossible, but in fact rarely agree, So in your situation, rather there was no. But as I wrote, nothing more I can say without reading the documents. By the way, what the insurance company is the creative?
TUiR notifies S.A.
Please submit an appeal. If you will not take effect, please report – we will try to help.
Hello.
Very please poradę.Otrzymałam transport order from spedycji.Transport in “circle” from the UK to ES and the powrotem.Dodam,the sender and the receiver of the goods in the UK by the same company, and ES receiver and sender of the goods is also one firma.W orders ,I have received the product weight max. 24 CMR tony.W list of PL ES quantity 27 palet/24 tonnes and the CMR of the ES to EN 1 palette and attached document ALBARAN confirming the quantity and weight 110 kg. From shipping otrzymałm debit note due niezaładowania all goods from ES to EN, the amount of charge in the amount of freight netto.Odbiorca UK accepted the goods without objection and comments in a letter CMR.
@ Mariola
Unfortunately, without seeing the documents it is difficult to say anything. Please contact us by email.
Hello
I have a strange question, unfortunately, in the comments on the CMR are small. Whether the move will be applicable provisions of the Convention and transport law? and that, if during transport my stuff was destroyed and it was caused by the fault of another cargo carried on behalf of another sender, the carrier will not be liable to me? So far, invoking the provisions of cmr and notes, that such liability can not be held….
@ Carriage of the household
On the move Convention does not apply. Therefore applies the law applicable to the contract of carriage – may not always be the Polish law. If it was the Polish law, the carrier's argument would – in principle, because they do not know the circumstances of the case – unfounded. Similarly on the basis of the CMR Convention – the carrier is not liable for defects in their product, which has been damaged, but corresponds, if the goods have destroyed other commodity.
Hello.
I have a question, for national transport.
Is the situation is allowed, national transport to take place on the basis of the letter CMR?
If so, which is then subject to the provisions of the traffic service? Transport Law and the CMR Convention?
@ Jurek
Waybill and CMR can be, but if the national carrier is still valid Polish transport law, not a CMR Convention.
Hello.
Is there any legal basis, which imposes an obligation on the recipient / sender / carrier to store the original bill of lading?
Thank you in advance for your answer.
@ Marta
There are no regulations in this regard. If waybills are the basis for such. invoices if they need to be stored in accordance with the rules on tax documents.
Hello, if it is required, in the course of international transport for furniture removal(removal) CMR document (transport do 3,5 DMC)? Unless, I understand that such services as police, Customs Service, itp. not have the right to request such a document during the inspection. Am I wrong?
Hello. As if it could look good in practice shippers, that they were the broadcasters by the orders and bills of lading? Assuming, that loading is away from their offices and such. in another country, if you send it to the shipper a bill of lading where the model is appropriate, that the sender will remover, to co z tym stemplem i podpisem? In practice, it is impossible to provide shippers with the original bill of lading signed before loading.
If, however, somehow it or is it better to the shipper as the sender give his principal (which is neither a shipper, years rozładowcą), which in practice often he wants decide everything?
@ ŁukaszW
Stamp and signature does not matter. It is because, that people are not loading doing it in the name and on behalf of the sender. Waybill as the sender has so data forwarder, and in place of the stamp and signature of the shipper data. Moreover, there are no obstacles, that the pattern of the bill of lading expressly pointed out and used the concept of such. “Signature and stamp of a person acting on behalf of the consignor” instead “Signature and stamp of the sender”.
Hello!
I wonder about the issue of transport of refrigerated goods. If the loading is part of the letter sender CMR cargo temperature different from that specified in the order is that instruction is binding? Say, that the driver does not report this to your employer, and he decides to adjust the temperature according to the order despite the explicit instructions of the sender. When it comes to transportation damage – which instruction was more important in this situation and to which carrier should follow?
@ Urszula
The person issuing the shipment is considered to be a person having the right to modify the terms of the order, because they are binding on its instructions. But the best contact with the client and explain the issue.
Hello, I have a question about the national transport. My company as Sender Carrier shipment sent by national bill of lading (it was not concluded any agreement). If I claim (on account of mutual settlements) will apply Transportation Act or any other act?
Thank you for your answer
@ Anna
The agreement was signed just probably not in writing – otherwise it would not have been transport. Will apply transportation law, and in matters not regulated by the Civil Code.
Welcome. As you wrote in the introduction article, contract of carriage is often concluded with a freight exchange. Meilowo later sent the order and conditions of execution. What if the contractor returned the signed order and conditions of realization, and then by the negligent failure to comply with the order ? Can you blame him relying on the provisions of the conditions of implementation ? I would add, that is under recording, that in case of the failure within 30 minutes. pisemnnych comments to the order shall be deemed to have been approved. Please reply.
@ Justin
It depends, whether the stock market came to the contract of carriage, ie. all the necessary conditions were agreed as the place of loading, unloading and carriage. If so, This agreement came into effect and the carrier should be completed by. If this did not happen, and only talked about the possibility of a pre-carriage, then detailed the conditions were not accepted by the carrier, the contract has not been, and he does not need her to do.
In both cases, there is no reason to invoke the provisions of the order, because they were not any accepted. Writing about 30 minutes. may be effective only with respect to a fixed partner.
In contrast, if one does not accept the formal conditions, but will launch orders – it shall adopt a, agreed to the terms that implicitly.
Hello
I have the following problem, relating to the subject of the blog entry:
1. International carriage. First time for this client.
2. Pages in skype messenger talked about conditions of carriage, pointed client requirement +8 degrees Celsius.
2. Then Principal sent a transport order where there was no temperature records. Transport order signed by the parties.
3. On the CMR is no objection to the temperature regime and any reference in this regard. The broadcaster has not provided any guidance the driver.
4. On arrival, found a temperature lower than +8 and found that the damage occurred.
and now the question is whether these findings apply to the communicator, when, in order to transport and the CMR no records in this area ?
Please Opinion
Regards
Galaxy
@ Galaxy
A lot of this depends on the nature of, I had a conversation on IM – whether the conditions of the contract is sent to supplement the arrangements taken communicator, or completely new content, that the previous has nothing to do. In the first case, the earlier findings are also a component of the contract, in the latter can be assumed, definitive findings that all the parties is in the contents of the order. By the way, it is worth noting, that the same lower temperature than expected is not equivalent to the damage occurred – is the fact of its occurrence and prove sizes.
Hello.
Please, opinions. The case looks like this. Cabotage transport in germany. In order shipper entered “Conquer and provide lieferscheiny – condition of payment” for loading the driver received only frachtbrief which to discharge was signed by its recipient, additionally also signed CMR. Is the client may refuse to pay for transport due to the lack lieferscheinu?
Regards
Jerzy
@ George
In my opinion, these provisions are ineffective and the courts usually stand in such a position. The carrier has to prove, that performed the carriage and can do any available evidence.
I'm a carrier, osobiście wykonuję transport. Tydzień temu zawarłem z Firmą A umowę przewozu towaru z pewnej firmy X w Kwidzyniu do Firmy Y w Holandii. Po przyjeździe na załadunek do firmy X okazało się , że towar ma wagę o 25% większą a do podpisu przedstawiono mi CMR wg którego towar nadaje firma X (rubryka 1) , miejsce przeznaczenia ładunku rubryka jest w tej samej firmie X (rubryka 3), a odbiorcą (rubryka 2) jest firma B z Niemiec. In the box 16 cmr pisze “odbiór własny” , rubryka 17 pusta, a 18 moje numery rejestracyjne i numer ładunku. Wobec oczywistego absurdu dla mnie, powiadomiłem telefonicznie firmę A , o sytuacji i po chwili dostałem smsem informację , that ” ONI zawsze tak piszą cmr. Jedziemy zgodnie z umową”. Odmówiłem podpisania listu cmr, zadzwoniłem jeszcze raz do firmy A i pokierowałem rozmową tak aby z ust firmy A wyszlo zerwanie umowy. Po prostu domagałem się zwiększenia opłaty za fracht w związku z większą masą ładunku. Poszlo jak przewidywałem, firma A polecila mi się rozładować. Teraz firma A wypiera się tego polecenia i chce mnie obciążyć wysokością frachtu , za niewykonanie umowy przewozu i innymi kosztami jakie stąd winikną. Zanim oddalem w Kwidzyniu przedstawiony mi do podpisu cmr, zrobiłem sobie jego fotokopię telefonem . Mam też fotokopię karty zgłoszenia na załadunek. Po rozładowaniu towaru na bramie wyjazdowej ochrona pozbawiła mnie wszelkich dokumentów świadczących o tym ze w ogóle tam się zgłosiłem i odmówila skopiowania karty zgłoszenia dla celów dowodowych. Kiedy powiedziałem , że poradzę sobie bo mam fotokopie , prawie siłą próbowali wymusić na mnie zniszczenie zdjęć i odpuścili mi kiedy im powiedziałem , że i tak im to nic nie da bo przeslalem gdzie trzeba internetem. I , ze otarłem się o gang zajmujący się wyłudzeniami i oszustwami. Mam zamiar obiążyć firmę A za nie wywiązanie się z umowy przewozu wysokością frachtu na podstawie kodeksu cywilnego oraz już poniesionymi nakładami na wykonanie umowy. Argumentem jest wg mnie chociażby dostarczenie ładunku o 25% cięższego niż w umowie, ale nie tylko. In fact, I also done the job from the bill of lading even though I did not sign it because 🙂 was loading and unloading of company X or company X , what owners did 🙂 , a ładunku do Holadii nie było.
Powiedzcie mi proszę, ” co oni mi mogą ” a ” co ja im mogę ” :). Zastanawiam się czy nie pogadać o tym z policją , bo może oni mogliby dopasować to również do jakiejś już prowadzonej przez siebie sprawy.
@ Eugeniusz
W przypadku gdy masa ładunku była różna od deklarowanej w zleceniu, miał Pan prawo odmówić przewozu, a jeśli druga strona zerwała umowę, może Pan domagać się odszkodowania. Z Policją można spróbować, ale raczej nie zainteresuje się sprawą.
Sir Paul, dziękuję za skomentowanie mojego przypadku, mam w związku z tym pytanie. Czy samo wystawienie sprzecznego z umową listu przewozowego, w którym miejsce przeznaczenia ładunku, recipient, czas dostawy ( nawiasem mówiąc nierealny ) i większa masa ładunku są inne niż w umowie, będzie dowodem wystarczającym na niewywiązanie się z umowy przez nadawcę? Czy będę musiał przeprowadzać dowód dodatkowymi środkami na to że firma A odstąpiła od umowy, np. bilingi rozmów telefonicznych, zarejestrowane rozmowy? I'm afraid , że użycie zarejestrowanej rozmowy bez zgody rozmawiającego może być dla mnie kłopotliwe , albo odrzucą zdobyty tak dowód.
@ Eugeniusz
You can always call witnesses, a billingi będą wspierać ich zeznania.
Hello
I have a question about domestic transport. Transportation was organized directly from the sender X to the end user With, passing the warehouses which Y broker in the sale agreement payer liable for the payment for the goods. Consignor X addicted unloading cargo from receipt of Y confirmation of payment for the goods, immediately after checking the goods in final recipient. In order to transport explicitly stated, that the driver can not unload the goods without the consent of the sender, who will inform you about the influence of money on the account and give the same permission to land. The driver contrary to the recommendations on discharge, alone took the decision to discharge him on presentation of the confirmation of the transfer by Z to A (entity who took from nowhere, not being a party to the contract of sale, there is no question about it also in the contract of carriage).
Payment for the goods he bought the Y from X never implemented.
Is it possible to liability carrier, due to the failure by him to relevant instructions from the consignor, contained in the contract of carriage ?
@ Mariusz
In my opinion, in such a situation there to deliver the consignment to an unauthorized person, and the carrier is liable for loss of shipment.
…a ja mam pewną wątpliwość czy przewoźnik jeżeli już dojechał do odbiorcy czy może nie wydać towaru, skoro nie było w liście przewozowym żadnej wzmianki o pobraniu zaliczenia ani żadne koszty nie wynikały z listu przewozowego.
Pragnę zwrócić uwagę na art.13 Konwencji CMR:
Article 13
1. After the arrival of goods at the place designated for delivery, odbiorca ma prawo żądać od przewoźnika wydania, for receipt, drugiego egzemplarza listu przewozowego oraz towaru. (…)
2. Recipient, who enjoy the rights, granted to him under paragraph 1 this article, shall pay the amount due on the consignment note. W przypadku sporu w tym przedmiocie przewoźnik obowiązany jest dostarczyć towar tylko wówczas gdy odbiorca udzieli mu zabezpieczenia.
Wg mnie nie było wydania towaru osobie nieuprawnionej.
@ Andrzej Sikorski
W sytuacji gdy jest wyraźne polecenie niewydawania towaru odbiorcy nie można moim zdaniem uważać takiego podmiotu za uprawnionego odbiorcę w rozumieniu art. 13 paragraph. 1.
Podobnie uważa w swojej monografii Wesołowski: “Zagadnieniem wymagającym dodatkowych uwag jest problem wygaśnięcia prawa do rozporządzania towarem po stronie nadawcy i powstanie tego prawa po stronie odbiorcy w sytuacji, gdy nadawca zastrzegł w umowie wydanie towaru tylko w przypadku spełnienia przez odbiorcę dodatkowych warunków, a w szczególności zapłacenia za towar lub przedstawienia dowodu zapłaty (so. polecenie pobrania zaliczenia – art. 21 CMR). W takim przypadku uzasadniony jest pogląd, że odbiorca nie uzyskuje prawa do rozporządzania towarem, o ile nie spełnił dodatkowych warunków, od których uzależniono wydanie mu towaru, choćby żądał wydania mu listu przewozowego i towaru. Należy konsekwentnie przyjąć, że żądanie takie w opisanej sytuacji nie powoduje wygaśnięcia prawa do rozporządzania towarem po stronie nadawcy.”
The customer does not communicate the temperature in the confirmation. The commission marks a temperature, then RMC there is a different temperature…..and at the end, litigation Product (instead of +7, he was transported between +2/+4) : as the confirmation of the commission. The driver did not report the difference between the temperature on the CMR and recue the orders of his boss. Who is responsible?
Dear Counselor,
I have a question about:
“Unfortunately this is a fairly typical attitude that insurance, and said record is about to serve ago. Currently I represent a number of entities, have decided to fight in court the record, but no decision has not been made. Personally, I think, that the chances are, But to get favorable judgments”.
Do these sentences have already sunk ? I have a similar problem and I am looking for inspiration to fight. I found actually only one favorable ruling, several medium favorable and some unfavorable.
@ Michal Stepien
I have two favorable judgments in such cases, an adverse. A lot depends on the attitude of a particular judge.
I will not hide, that much I need inspiration, So that would be very inappropriate, if I ask for a signature or justification of those judgments?
Hello, taka sytuacja, farm out transport cargo in Russia relationship – Polska przez Białoruś (clenie). Przewoźnik otrzymał zlecenie transportowe z poprawnie wskazanymi adresami lecz kierowca błędnie wypisał CMR i w polu 2 i 3 wpisał adres clenia. Auto zostało zatrzymane i aresztowane na podstawie wykonania nie legalnie kabotażu – mandate 150000 tys rubli. Kto ponosi odpowiedzialność za błędnie wypisany list. Przewoźnik w żaden sposób nie zweryfikował danych w CMR oraz ja nie miałem takiej możliwości ponieważ przewoźnik celowo podał błędny nr telefonu.
@ Michal Stepien
Wyrok Sądu Apelacyjnego w Poznaniu z dnia 16 April 2014 r. ref. VI Aca 222/07 i wyrok Sądu Okręgowego w Gdańsku z dnia 3 August 2015 r. ref. XII Ga 319/15.
@ Luke
W relacjach z przewoźnikiem odpowiedzialność ponosi zleceniodawca, gdyż to on odpowiada za błędne wystawienie listu przewozowego. Jednocześnie można twierdzić, that the carrier, nie sprawdzając treści listu przewozowego, przyczynił się do powstania szkody, więc odszkodowanie powinno być zmniejszone.
Hello, I am a courier in medical transport.
The training mentioned that the recipient can open the package only after signing the bill of lading.
I can't find any information on this topic if it really is?
In response I will ask art if it is possible.
Thanks and regards
Interesting in terms of transport law (including CMR) there is also a recent ruling regarding liability for damages – judgment of the Supreme Court of 26.11.2019 r., IV CSK 415/18.