Supreme Court – Civil Chamber of 7 October 2011 r.
II CSK 723/2010
Mass media
LexisNexis nr 3876663
Argument
Conditions of carriage for the carriage of recognition successive within the meaning of Chapter VI of the CMR is therefore mere adoption by successive road carriers (the second and optionally subsequent) the same product and the same bill of lading, exposed to the whole itinerary, where carriers are to perform transport. The Convention does not require, to successive carriers, acceding to the agreement, filed a declaration of intent sender of the item in this area. What is more, transportation provided sukcesywności not even know the sender shipment of fact entrusted by the first carrier shipment and bill of lading to the next carrier. The very fact of adoption by another carrier of the same product and the bill of lading will ex lege (by virtue of Article. 34 CMR) debenture bond formation between the sender and the successive carriers.
The decision is final
Additional Information:
SSN Marian Kocon (chairman, Rapporteur)
SSN Marta Romańska
SSA Agnieszka Piotrowska
The Supreme Court in a case brought by "O" Limited Liability Company in the. against Henry P. and Eve Alice P. for payment, after diagnosis in closed session in the Chamber on Civil 7 October 2011 r., cassation appeal against the judgment of the respondent Court of Appeals in P. of 16 September 2010 r. (…),
repealed the contested judgment in points 1,4 (first, fourth) and in this case the Court of Appeal shall in P. to be re-examined and a decision on the costs of cassation proceedings.
Grounds
The Court of Appeal in P. judgment of 16 September 2010 r. changed the verdict of the District Court in P. of 28 January 2010 r. so, that awarded the plaintiff from the defendant the amount 238080 zł with interest by way of the right of recourse.
The court determined, the plaintiff on the basis of an agreement concluded with "L." Material Handling Ltd.. z o.o. undertook to transport from Germany to Polish a certain amount of lift trucks. Then the plaintiff carriage of that cargo "commissioned" Wieslaw K., the civil-law Marian S., Jana S. and Leonard ¯., carriers and those defendants, indicated as the carrier in the CMR consignment note, exposed to the whole itinerary. During the transport of cargo theft occurred, the vehicle, the load of the defendants left the place unguarded. The resulting damage made the German insurer, that occurred before a German court or indemnity against the plaintiff. On the basis of the plaintiff entered into a settlement agreement, under which the insurer agreed to pay the amount 70000 euro, in more specific installments. The plaintiff "brought a" defendant, and informed them of the intention to enter into an agreement.
In considering the plaintiff's claim (regresowe), to the plea of limitation raised by the respondent Court of Appeal, że art. 39 CMR defines the limitation period in the relationship between the carriers is not applicable, because transport was realized through subcontracting. He pointed out, as a basis for determining Articles. 441 § 3 k.c.
The annulment of respondent Court of Appeals – based on both the basics of art. 398[3] k.p.c. – includes an infringement of Article. 417[12] § 1, 2 k.p.c., art. 227, 232, 316 k.p.c., 386 § 1 k.p.c., and Articles. 32 paragraph. 2 CMR, art. 441 § 3 k.c., and seeks to set aside the judgment and refer the matter back to the.
The Supreme Court weighed the, The following:
The essence of cassation complaints boils down to the claim, that the Court of Appeal in breach of Article. 32 paragraph. 2 CMR found, that the plaintiff's claim is not time-barred.
The Court of Appeal proceeded on the basis, that the provisions of the CMR Convention on the carriage by successive carriers are not applicable in a situation, when the "first carrier", tj. direct contractor sender alone do not make the shipment and shipment to another carrier has an agreement covering the whole transport operation. Such was the situation on the.
The position of the Court of Appeal can not be justified by the provisions of the CMR. The essence and the conditions under which successive transport for freight on the basis of the Convention defines the art. 34. According to this article, If carriage is performed pursuant to a contract by successive road carriers, each of them takes responsibility for the execution of the whole operation, the second carrier and each succeeding carrier becoming a commodity and by adopting a bill of lading party to the contract under the conditions specified in the consignment. So the rest of art. 34 CMR results, that adoption by successive road carriers of goods and the bill of lading has the effect of recognition of new carriers for the site originally contained the contract of carriage between the shipper and the first carrier. Conditions of carriage for the carriage of recognition successive within the meaning of Chapter VI of the CMR is therefore mere adoption by successive road carriers (the second and optionally subsequent) the same product and the same bill of lading, exposed to the whole itinerary, where carriers are to perform transport. The Convention does not require, and in fact founded the Court of Appeal, to successive carriers, acceding to the agreement, filed a declaration of intent sender of the item in this area. The doctrine rightly noted, that such a requirement would result in, that the institution is not playing a successive transport no practical role. Situations, in which the sender is dating several carriers in such a way, that each of them was responsible for the entire carriage, in practice are substantially. What is more, as it highlights, transportation provided sukcesywności not even know the sender shipment of fact entrusted by the first carrier shipment and bill of lading to the next carrier. The very fact of adoption by another carrier of the same product and the bill of lading will ex lege (by virtue of Article. 34 CMR) debenture bond formation between the sender and the successive carriers.
Starting from the false premise, that the defendant did not comply with the conditions under Articles. 34 CMR, tj., it is not a successive carrier within the meaning of that provision, The Court of Appeal wrongly disregarded Article. 37 CMR, as the legal basis for the plaintiff's claims, and Articles. 39 CMR determining the period of limitation claims, which is applicable to successive carriers.
For these reasons, the Supreme Court ruled, as in the judgment.
