Relations freight transport is one of the most difficult issues of transport law, and this has a huge weight species, because the differences between the extent of liability of the carrier and the shipper can often pre-empt the further fate of the entrepreneur. Therefore, I very pleased to present the excellent analysis of this subject presented in a scientific article Thomas Szanciło (author comment on transport law), which appeared in the December issue of Court Review com. “The legal status of the forwarder as a carrier of freight shipments by road transport "
What is the article
This paper addresses the two main issues. First of all - how to distinguish a forwarding contract from the contract of carriage, Second - the right freight forwarder to execute the transport and the effects of exercise that power.
The carrier and shipper
By concurring with the decision, to assess the nature of the contract crucial to analyze the content of the contract and the intention of the parties, that accompanied its conclusion, agreement and the name has no special meaning. If the subject of the agreement is to take action related to organizing the transport, You can talk about shipping contract. If, however, the main emphasis has been placed on the same transport of the consignment, contract qualifies more as a contract of carriage. Author brings with it a number of judgments of foreign courts, and key Supreme Court ruling 06.10.2004 r., which also evoked in the entry As distinguished from the carrier, freight forwarder.
Freight forwarder as carrier
About this, that the shipper is entitled to independently perform transport, Article is clearly. 800 k.c. However, by considering the nature of the provision. Is because the parties may exclude the application of the agreement and decide, that the forwarder has the right person to take on consignment? The article cites the position of Professor. Leszek Ogiegło, that in the commentary to the Civil Code of 2009 pod network. Christopher Pietrzykowski expressed the view, iż art. 800 k.c. is strictly applicable standard, and therefore that the contract freight forwarder may not prohibit the carriage of personal performance. The author does not share this view, Recognizing the, that there is no evidence that, that in this case, the legislature has used the provision of a juris cogentis.
Another important issue raised in the article is to determine, what rules apply to the shipper, who decided to independently perform transport. Draw are two concepts. The first assumes, that forwarding contract, adjusting all the rights and responsibilities associated with the transport of the consignment, Transportation of the contract somehow absorbsyou. The second considers, that at the time when the shipper undertakes to complete the carriage, shipping agreement is complemented by a contract of carriage, to which the provisions applicable to the legal relationship. Author argues forcefully for the latter view, paying attention, therefore, that in the event of damage in shipment should be tested each, whether the injury arose in the course of preliminary forwarding, or at the stage of the carriage, because it will be important from the point of view of the regime of.
My assessment
I have to admit, I agree with the vast majority of views expressed in the article. My only reservation's claim raises, that in practice it is difficult to effectively raise an objection to the improper selection of the carrier shipper. My experience is in fact, that in recent years the courts much more rigorous approach to the issue of guilt in choosing, increasingly recognizing not only, that this wine had a place, but even the shipper has committed in this area to gross negligence.
This notice does not change the very positive assessment of the article, therefore I strongly urge you to read his 🙂
PS. So many clicks to website Review of Court, that I should probably delete LexisNexis for advertising 🙂
Injury, that you can not buy just this one article 😐
Well shame. So far, Beck probably only allows you to purchase the electronic version of the article for a really small amount of money. And, unfortunately, publish it on the site I'm not allowed 😐
Witam Pana
My question is about the shipping contract. How do I recognize it is not asking for a forwarder, and entered into an agreement with the carrier on behalf of my own or ?
@ Martin
To enter into a contract on behalf of the client, it would have to have the appropriate authorization. If the client did not give, it must be assumed, the freight forwarder contracted in his own name.
@UP
So, if the principal and forwarder was the deal without giving authorization shipping and forwarding agent commissioned by the transport carrier, This will automatically forwarding the sender and he (and not the principal) will be responsible, eg. for the faulty condition of the consignment, lack of or improper packaging or improper performance of the operations of loading (art. 72 paragraph. 1 Item 2 pr. carriage.)?
@ Matti
And what was written in the order for delivery to the carrier? Probably occurred as a principal freight forwarder, and not his client. Thus, a party to the contract of carriage was the shipper and he is the sender will incur liability under the laws of lading.
@ Paul
I acted as principal client. Freight himself not entered in the CMR.
@ Matti
If the contract was not written quote, that the shipper may only enter into a contract in its own name, could be considered, that contract with the carrier on behalf of the shipper signed client. In accordance with Article. 796 k.c. the forwarding contract not covered by the provisions of the order, while those in the art. 734 by. 2 pointing, that the order includes the authority to act on behalf of the client. Cargo could therefore be entitled by contract alone to conclude an agreement with the carrier on behalf of the client. If the principal in the contract of carriage was a customer delivery, certainly no agreement has been concluded with a shipper. Even if the shipper does not have a mandate to conclude the agreement on behalf of his client, This agreement is without confirmation by the customer will void. Freight does not become a party to it for sure.