I ACa 48-06

Judgment of the Court of Appeal in Białystok 2006-03-15, I ACa 48/06
Opubl: Jurisprudence of the Courts of Appeal years 2008, No. 6, Item. 22, st. 23

Argument:
1. Reference to national law as contained in Article. 29 paragraph. 1 Convention on the Contract of International Carriage of Goods by Road (CMR) of 19.05.1956 r. (Dz.U. of 1962 r. No. 49, Item. 238) must be understood in this way, that the concept of “willful” is tantamount to guilt in the form of gross negligence, referred to in Article. 86 Law – Transport Law.
2. Adoption, that the carrier has been guilty of gross negligence does not allow the use of limitations or exclusions of liability provided for in Chapter IV of the CMR on the carrier's liability.

Grounds:

Department of Electromechanics Automotive Reason sp. z o.o. w E. in the lawsuit is directed against Mariusz I. conducting business under the name of the Freight Transport itinerant trade in industrial goods, ordered to pay the amount demanded 72.230,40 statutory interest from the date of filing a suit zł as compensation for delay in delivery of goods. Claimed amount is the price which the plaintiff paid for the charter plane, to timely deliver the ordered goods to the contractor. He gave, that the delay in delivery was due to gross negligence of the defendant, co w myśl art. 29 CMR load to unlimited liability for damage suffered.

Order for payment in the proceedings of writ 22.2.2005 r. Olsztyn Regional Court upheld the claim in its entirety.

In its objection to the order of the defendant requested the dismissal, stating that it did not connect him with the reason that no legal relationship. In addition, a precaution, lifted, that in order, received from the shipping company, there were no indications as to the specific contents of the cargo, and as to the negative effects of a possible delay in the delivery of the consignment. He also pointed, that the invoices submitted by the plaintiff is not clear, that the plane carried only cargo, who was required to transport the defendant, a place on the invoice was the target route. Raised an objection to improper preparation of the consignment by the plaintiff – lack of appropriate documents to enable the employee to cross the border by the defendant and the failure to pay fees associated with the crossing, and the shipper or the plaintiff's burden.

Judgment of 18.10.2005 r. Olsztyn Regional Court dismissed the suit and ordered the plaintiff to costs. This decision based on the following findings of fact.

On 22.4.2004 r. plaintiff entered into the shipping company “P.” sp. z o.o. in W. contract for the carriage of goods from Elk – Bad Rodach (Germany) – Donchery (France) – Colmar (France). Then “P.” defendant ordered the execution of the transport on the international route – under the conditions specified in the order for shipping and packing slips (CMR Nr 891301, 891302, 891303 i 891304). Goods were to be loaded on 23.4.2004 r. and reach the first point of landing on 26.4.2004 r., and the next day for the next two towns, overdue and for access to the place of unloading, Contractor has to bear the costs of 300 Euro for each day.

Respondent after loading the goods on 23.4.2004 r. Bad Rodach reached the day 27.4.2004 r., one day later to Colmar, and finally 29.4.2004r. do Donchery. Also on 29.4.2004 r. reason in the company charter a M.W.F. Poland sp. z o.o. plane to France.

In such established facts the District Court found, that the plaintiff's claim must be rejected.

The court pointed out, that the defendant was connected with the reason the contract of carriage of goods on the international route, and therefore, in this case, the provisions of the Convention on the Contract for the International Transport of Goods by Road signed at Geneva on 19.5.1956 r. (CMR Convention), according to which the evidence of the contract of carriage is to print the bill of lading (art. 4).

According to the District Court, although it is obvious, that the defendant has not delivered the goods on the delivery date specified in the contract, However, the CMR Convention provides no sanctions for the mere fact of delay in the carriage of the shipment and the carrier is obliged to pay compensation only, when the damage is due to the delay (art. 17 CMR). Premises of the carrier's liability for damage is his fault, the fact of injury and causal link.

Therefore, the – the Court considers – plaintiff should have to demonstrate, that because the carrier has suffered the loss and how much. According to the Court of first instance has failed to fulfill this obligation, and did not show either the amount of damages, the need to charter an aircraft and also what exactly the goods have been transported by air, because of the texture of the charter is not due.

In addition, the District Court gave, that the provisions of the CMR Convention preclude the possibility of using the carrier of provisions exempting or limiting its liability in situations, When damage is caused by the carrier in circumstances indicating the intent of the action (evil intention) or high, serious degree of negligence (which, according to the law of the place of a court case, is considered as equivalent to willful misconduct).

However, according to the Court of first instance the plaintiff has not demonstrated, that the delay in delivery was due to defendant's negligence, as the amount of the damage and its relationship with the defendant's behavior.

The costs of trial, the court ruled on the basis of Article. 98 KPC.

From that judgment, plaintiff filed an appeal, which he accused the court of first instance:
– erroneous interpretation of Article. 17 paragraph. 1 i 2 i art. 18 paragraph. 1, art. 23 ust.5 i art. 29 paragraph. 1 CMR to exclude liability by the defendant and the adoption, the floods that show evidence of pregnancy, that the delay in delivery was caused by circumstances existing after the defendant;
– make findings contrary to the content of the collected evidence by taking, that the delay in delivery is caused by negligence of the defendant, and the acceptance of not guilty the defendant and a causal link between the conduct of the defendant and the injury suffered by the plaintiff.
On this basis, requested the change of the judgment in its entirety and take into account the action or to set aside the judgment under appeal and refer the case to the court of first instance for reconsideration.

The Court of Appeals determined and weighed, The following.

Appeal upheld.

Must agree with the applicant, that the district court, contrary to the evidence gathered in the adopted, that the defendant is not liable for improper performance of the contract for the international carriage of goods by road.

The agreement was concluded under the provisions of the Convention on the Contract of International Carriage of Goods by Road (CMR) of 19.5.1956 r. (Dz.U. No. 49 of 1962 r. Item. 238). From the content of bills of lading showed, that the defendant was a party to the contract, because it was on them as a carrier. In accordance with the order and shipping instructions exit the defendant has been loaded on to supply 23.4.2004 r. goods to customers in three different places in the order indicated: on 26.4 2004 r. Bad Rodach (Germany), on 27.4.2004 r. – Rano do Donchery (France) and on 27/28.4.2004 r. do Colmar (France). In fact, the goods have been delivered to the Bad Rodach on 27.4.2004 r., to Donchery on 29.4.2004 r., and to Colmar on 28.4.2004 r. (waybills k. 85-87). From the testimony of witnesses: J.O., It. In. i J. G. the result, that the delay was longer for the Polish – German, for because of the long lines crossed the defendant's employee on 26.4.2004 r. at 16 o'clock. Then the driver to command the defendant changed the order of delivery specified in the order for shipping and Bad Rodach, arriving on 27.42004 r. at 8 o'clock, he went to Colmar instead of Donchery (testimony of the driver J.G.). Thus proved to be inaccurate translation of the defendant in the letter of May 2004 r. that the cause of failure within the product to Donchery driver was fainting after delivery to Colmar (k. 29). No doubt the lack of raises and telephone contact with the driver starting at 18 o'clock on 28.4.2004 r. until 16 o'clock the next day (letter of the defendant – k. 29, witness E.W.). There have been at this list of circumstances raised in objection to the precept that the delay in delivery was due to improper preparation of the consignment by the consignor. Respondent did not explain what this would involve failure, limited to vague statements about “lack of appropriate documents and fees charged to shipper or carrier.” In its letter of May 2004 r. defendant did not cite this fact to justify the delay in delivery, and the testimony of J.G. showed that they were not paid for the shipping company three previous delivery and the defendant sent him money to pay their. The evidence is not clear so, to the fact that burdened the sender.

In assessing the above, the law must be broken allegation of material breach of the right to appeal – Art.17 ust. 1 i 2, art. 18 paragraph. 1, art. 23 paragraph. 5 i art. 29 paragraph. 1 Convention on the Contract of International Carriage of Goods by Road (CMR). These regulations lay down the liability of the carrier m.in. in the case of late delivery. The carrier's liability is based on the principle of risk (by. judgment of the Court of Appeal in Warsaw of 7.11.1995 r. I ACR 606/95, PART 1997/7-8/45). The provision of Article. 17 paragraph. 2 i 4 these are the reasons for not exonerate itself from liability of the carrier. Proof of the existence of charged carriers (art. 18 paragraph. 1). Finding of negligence of the carrier at least a small degree, excludes the possibility of reference to the cause. W art. 23 paragraph. 5 compensation for delay in delivery of goods is limited by the amount of transportable. All the exclusion or limitation of carrier's liability provided for in Chapter IV of the carrier's liability shall not apply, if the damage was caused by willful negligence of the carrier or its, which, according to the law of the place of a court case is considered as equivalent to willful misconduct (art. 29 paragraph. 1). The Court of Appeals agrees with the legal reasoning of the District Court on the interpretation of the references included in the quoted provision of the rules of national law, leading to the conclusion, that the fault is equated willful gross negligence of the carrier, referred to in Article. 86 Transport Law (so. K. Wesolowski “Commentary on the Convention on the Contract of International Carriage of Goods by Road – CMR” Zielona Gora 1996). This means that, that where the damage resulted from the willful misconduct or gross negligence will return to the principles laid down in Article. 361 § 2 KC, payment of full compensation. The blame should be intentional if the carrier covered his intention of causing harm, agreeing at least on the rise, and gross negligence occurs, the level of objectionable conduct of the carrier is particularly high and drastically different from the model due diligence, although it may do well.

In light of the findings in this case must be regarded, that the behavior of the carrier was grossly negligent. In terms of free, without the consent of the sender or forwarder, he changed the route and order supplies, although the order shipping route was described in detail. Undoubtedly, these are not the circumstances, which the carrier could not avoid, on the contrary caused them in a conscious. There were no obstacles, after finding that the defendant delayed in crossing the border contacted to determine the cause of, or re-routing, is relevant to it. Moreover, despite the defendant guilty of the contents of the forwarding service to a loss of telephone contact with the driver, which did not allow to determine its location and time possibly make the expected delivery. The result was a two-day delay in delivery of goods to Donchery, and the plaintiff was forced to deliver the ordered automobile parts by air. You can not share it with the defendant's statements, that the importance of the adoption of its liability or the amount of the damage was undeclared goods value or special interest in delivery (art. 24 i 26 CMR). These allow them to obtain higher compensation than those provided for in Article. 23, 24 i 25, but are not relevant to the rules of carrier liability in case of gross negligence (art. 29 paragraph. 1).

In the opinion of the Court of Appeal that the injury and its value has been demonstrated by the applicant duly. Plaintiff submitted the translated copies of electronic correspondence with his counterpart from Delphi Donchery, which concluded, that failure to harness electronic installation at the agreed time, could result in downtime of the production line of Renault's customer and load providers that downtime costs. Delphi has requested in connection with the situation immediate delivery of goods by air. No contact with the driver, the defendant was not allowed to determine its current location, and thus the time in which the goods are actually delivered. From the testimony J.O. – the plaintiff employee, the result, The atmosphere in the company was already very nervous. Finally merchandise overland shipment arrived later than the air, though the same day. There is no reason, to challenge this evidence and take, as argued by the defendant, that “were obtained for the process”. The defendant did not indicate a rational reason for the plaintiff would have to send goods by air, exposing themselves to bear the cost of air freight and its repayment in a lawsuit. The price of this freight was demonstrated in the submitted by the plaintiff's invoice by the carrier performing carriage by air. Since the plaintiff was obligated to pay this amount, is irrelevant, or as part of the freight transported another load. If the defendant claims, that the plaintiff suffered an advantage being in the causal relationship with the event causing the injury, should it prove. For the determination, that the plaintiff suffered injury and is entitled to seek redress it does not matter that the payment of invoices, because its liabilities increased uległyby. In the opinion of the Court of Appeal there is an adequate causal connection between the injury and the event causing it (art. 361 § 1 KC) Statements made in opposition that the there was no need to send the goods by air, because it was obvious, that some goods have already arrived at its destination and the lack of telephone contact with the driver, the defendant was a temporary, are contrary made by the Court of Appeals agreed and have no confirmation on any of the evidence gathered on.

For these reasons, pursuant to Article. 386 § 1 KPC Court of Appeal has ruled as in the sentence.