IV CK 264/02

 

Supreme Court – Civil Chamber of the 2003-12-05, IV CK 264/02

Argument:
If the letter sender, or other authorized person, seeks compensation for damage suffered as a result of damage to goods in transport, This letter constitutes a complaint, as referred to in Article. 32 paragraph. 2 CMR. No provision of the Convention does not make right from pursuing a claim before a court complaint to the prior exhaustion of pre mode. It is therefore necessary to bring, that the bringing of a complaint under the Convention is not mandatory, and the lack of use by the proprietor of this course will not close the road to pursue a claim for damages by the court.

Grounds:
Judgment of 6 July 2001 r. The District Court ordered the Bialystok “J.”, limited liability company in N. (Belarus) Association for Insurance and Reinsurance “W.”, Joint Stock Company in W., Branch B. amount 101.829,71 zł with an interest rate 5% from 2 December 2000 r., dismissed the remainder of the costs and found the process. The decision was based on the following findings and legal assessments. On 17 December 1999 r. defendant was adopted by Vladimir N., conducting business under the name of Company Economics “F.” w B., road transport based on CMR No. 279 449, charge in the form of lighting equipment, intended for the recipient in Moscow. On 18 December 1999 r., in transit through the Republic of Belarus, some goods burned. The surviving portion of the goods the next day asked the shipper. Broadcaster received compensation for loss of charge in the amount of 101.829,71 powodowego zł from the insurance company, which was connected to the property insurance policy in international transport. Plaintiff subsequently sent to the defendant carrier's request for payment, within 14 days, compensation in the amount paid to the consignor the amount, corresponding value of 24.937,48 U.S. dollars. The call was based on Article. 17 paragraph. 1 CMR, and with it the file was sent to the injury, containing the full documentation of reported claims. The carrier refused to pay.

According to the Court of First Instance, the defendant's responsibility should be evaluated on the basis of Article. 17 paragraph. 1 i 2 Convention on the Contract for International Carriage of Goods (CMR). These regulations implement the principle of presumption of carrier liability for damage, regardless of his guilt. The carrier could escape liability if it is shown, that the injury was the result of circumstances, could not have been foreseen or avoided. Existence of such circumstances, the defendant has not demonstrated. The District Court did not consider the defendant's plea raised by the limitation, has held, that the limitation period was suspended for the duration of complaint handling.
Judgment of 25 October 2001 r. Court of Appeal dismissed an appeal by the defendant Bialystok, sharing the underlying decision of the facts and legal assessment.

This judgment the defendant appealed deletion, alleging violation of the substantive law, This is art. 32 paragraph. 1and the Convention on the Contract for International Carriage of Goods (CMR) dismissing the plea of ​​limitation claim, requested to set aside the judgment and refer the case back to.

The Supreme Court weighed the, The following:
Raised in the cassation complaint boils down to the assertion, that there were grounds to consider the plea of ​​limitation claim, because “request for payment”, made by the plaintiff to the defendant, was not “complaint”, as referred to in Article. 32 paragraph. 2 Convention of 19 May 1956 r. Contract for International Carriage of goods (CMR), published in the Journal of Law. of 1995 r., No. 69, Item. 352 (hereinafter referred to as the CMR Convention). The applicant submitted, Polish law that a demand for payment and complaint are two distinct forms przedsądowych contacts page. Thus, if the plaintiff chose a form of request for payment, it could not claim, that he has a claim, which brings an effect of suspending the limitation of the claim.

This view can not be divided. It is not the question, that the contract of carriage, concluded between the shipper and the carrier of the goods under the international bill of lading, be assessed in light of the provisions of the CMR. These provisions take precedence over national law, which is only applicable when, when the Convention refers to it, or if certain issues are not regulated at all.
In accordance with Article. 32 paragraph. 2 Convention, Limitation of actions, which may arise from operations under its regulations, interrupts the written complaint until, the carrier rejects the claim in writing and return the documents attached to it. The Convention does not define 'complaint, limited to regulating the form (in writing under pain of legal effects) and the effects of bringing (suspension of limitation periods). Does not regulate the mode of payment of claims, manner and date of the settlement, does not specify a, what documents should be attached to the statement of claim. The obligation to attach the documents can be derived only from the wording set out in Article. 32 paragraph. 2 zd. first “and returns the documents attached to it”. Undoubtedly, these documents should specify the desired amount of the claim and confirm its validity. CMR Convention also does not set any requirements relating to the name of the letter, containing a complaint. This letter may therefore be called “complaint”, but also “demand for payment”, “request for payment”, or in any other way, may also contain the name does not. Materials it is not the name of the letter, but its content, which in no uncertain terms should follow the title of the asserted claims. Thus, if the sender of the letter, or other authorized person, seeks compensation for damage suffered as a result of damage to goods in transport, This letter constitutes a complaint, as referred to in Article. 32 paragraph. 2 CMR. No provision of the Convention does not make it right from pursuing a claim before a court complaint to the prior exhaustion of pre mode. It is therefore necessary to bring, that the bringing of a complaint under the Convention is not mandatory, and the lack of use by the proprietor of this course will not close the road to pursue a claim for damages by the court.

This issue is regulated differently in Polish law, As is apparent from Article. 75 paragraph. 1 Act of 15 November 1984 r. – Transport Law (consolidated text. Dz.U. 2000 r., No. 50, Item. 601 they zm.), condition for pursuing a claim for damages by the owner is ineffective depletion of the complaints procedure. Because of the diversity of the regulation contained in the Convention, limited use in cases decided under it is art. 479[12] § 2 KPC, cited by the applicant, and according to which the proceedings in commercial cases plaintiff shall attach to the application a copy of the complaint or request to voluntarily comply with the request and a statement as to the defendant's position on the matter and information or copies of documents attesting to attempt to clarify the disputed issues by negotiation. The applicant attaches importance to distinguish between the concepts “request for payment” i “complaint”, used in Article. 479[12] § 2 KPC, trying to prove, that since the letter sent by the plaintiff to the defendant named was the order for payment, it was not a complaint, impressive result of the suspension of the limitation period. Referring to this matter should be noted, that the distinction between these concepts, also in the Polish law, not lead to a share made by the complainant requests. Attention must be drawn, Articles that cited. 75 paragraph. 1 Transport law uses both of these concepts, states because, the right to assert a claim under the contract of carriage the carrier shall have the ineffective demand of the debtor, a sender – Having unsuccessfully exhausted the complaints procedure. That provision concerns the determination of claims, which are parties to the contract of carriage. If the sender is a claim for damages for non-performance or improper performance of obligations, in the case of an – claim for payment for services rendered. The nature of the request determines, as is commonly adopted, not the letter name, but its content. On the basis of Polish civil law for the complaint shall be deemed to refer to the person providing the service requests to meet these obligations, that it should meet in relation to the failure or improper performance of obligations. Consequently, even if the sender of the letter name, in which he requested payment for the damage caused by faulty execution of the contract of carriage “demand for payment”, not “complaint”, This letter is to be treated as a request to initiate the complaint procedure. Arguments presented in the appeal, based on the distinction between the concepts “complaint” i “request for payment” It is therefore misconceived as to national law. The more it can not be divided with respect to regulation of the CMR Convention, which does not oppose the institution “complaint” i “request for payment”.

As established in the, plaintiff sent the defendant a letter carrier, entitled “request for payment”. The contents of the letter shows, concerns that demand for payment of transport damage arising on 18 December 1999 r. in the goods transported by land from CMR. The reference to the provision of Article. 17 paragraph. 1 Convention clearly indicates, that the request is for compensation for damage to cargo. The letter is accompanied by documentation regarding the calculation of the damage and pay compensation to the sender under a contract of insurance of goods in transport. Without a doubt, therefore, a complaint letter, as referred to in Article. 32 paragraph. 2 Convention.

The applicant is a letter from insurance company is entitled to claim against the carrier. The Convention does not define “the person entitled”. It may be the recipient or shipper, but also other persons, to which, by legal action over the right to assert such a claim. These issues are thus governed by national law. The right of the plaintiff is clear from Article. 828 § 1 KC, according to which, unless otherwise agreed, the date of payment of compensation by the insurance, policyholder claim against a third party responsible for the damage passes by operation of law on the establishment, to the amount of compensation paid. The fact that payment of compensation by the plaintiff was not on the disputed.

In accordance with Article. 32 paragraph. 1 Convention, limitation period for claims, which may arise from operations under its, is one year, and the period shall begin, in the case of partial loss, damage or delay in delivery, from the date of issue. It was established, edition of the product was intact on 19 December 1999 r. The findings further, that the complaint together with the documents sent by post the reason on 11 July 2000 r., and the defendant turned it on 27 November 2000 r. Thus the period from the date of 11 July 2000 r. by 27 November 2000 r., accordance with Article. 32 paragraph. 2 Convention, limitation was subject to suspension. Effect of suspension of limitation, as follows from Article. 32 paragraph. 3 Convention is governed by the law of the court seised. Should therefore be, that by the time the suspension of limitation does not run, and start continue from the date of termination of the obstacles. By the time of filing a suit, which took place on 21 December 2000 r., claim is not barred, Indeed, taking into account the period of suspension has not expired year term, as provided for in Article. 32 paragraph. 1 Convention.
Therefore, the, adjudicated as in the sentence pursuant. 393[12] KPC and Articles. 98 KPC.