Damage to the consignment in connection with the execution of the contract of carriage of goods. Selected issues

It happens in everyday life that during the execution of a transport contract a consignment is lost or damaged in part or in full. In the event of such an event, it is essential to determine who is responsible for the damage, such as whether the consignment has been incorrectly secured or whether the carrier has caused any damage to the consignment because of its fault or gross negligence.

It is also worth considering whether the damage under the Civil Code will always correspond to damage to transport and whether there are regulations limiting or excluding carrier liability.

The provisions of the Civil Code, the Act of 15 November 1984 traffic law (hereinafter: traffic law) and the Convention on the Agreement on the International Carriage of Goods by Road from 19 May 1956 (hereinafter: CMR Convention). For the purposes of this Article, we shall draw close to the rules on damage to the consignment of goods, taking into account the provisions of transport law and the provisions of the CMR Convention.

Damage in civil law and damage within the meaning of the Transport Law

There is no precise definition of injury in the Polish legal order. However, in civil law, as damage, we understand the damage affecting both property and intangible damage. We mean, among other things, damage related to mental or physical health resulting from external events, e.g.

as a result of a communication accident or damage related to a breach of personal property of the injured person. On how the damage was understood as a compensation claim, the Constitutional Court commented In one of its judgments, explaining that: “...

The concept of "damages" used in the Constitution should be understood in a manner adopted under civil law as the form of law in which there are provisions specific to the mechanism for the functioning of compensation liability.

The scope of compensation and, in particular, the elements of damage to be compensated should be determined on the basis of the relevant provisions of the Civil Code, in particular Article 361(2).

Consequently, it should be assumed that any damage to the legitimate property of an entity, whether of a property or of a non-material nature (...)’ [1] .

The liability of the entity responsible for repairing the damage derives from the Civil Code, but the Polish legislature introduced the Law on Transport Law, in which the legal act more precisely defines what is the damage under the said law, who is responsible for it and at which point of implementation of the contract of carriage of goods [2] .

It should be pointed out that the transport law contains a clarification of what is the damage under that law, how the amount of the damage can be determined and who is responsible and at what point. In principle, the carrier is responsible for the consignment, but there are certain exceptions which allow him to be released from responsibility in part or in full.

Damage to transport law

Transport law has developed a separate definition of the damage and the conditions which must exist in order to be able to speak of damage under the provisions of traffic law. Article 80 Laws of transport shall provide for compensation in the event of loss or loss of the consignment. The text of the provision provides:

• The amount of compensation for loss or loss of consignment shall not exceed the value to be determined on the basis and in the following order:

• 1) the price indicated in the supplier's or seller's account, or
• 2) the price resulting from the price list in force on the date of dispatch of the consignment or
• 3) the value of things of the same kind and species at the place and time of their transmission.
• • If the amount of compensation cannot be determined in a certain way Under section 1, This figure shall be determined by the valuer.

• In the event of the loss of a consignment with the declared value, compensation shall be payable in the amount declared, and in the event of a defect, in the appropriate part, unless the carrier proves that the declared value exceeds the value determined in a specified way Under section 1.

This provision defines the criterion of the normal value of the consignment. Value of consignment First, it must be established on the basis of the account submitted to the carrier. There is no reason to submit to the carrier another document such as an invoice or a load note. In any other case, other applications will be found section 80 traffic rights.

Since there may be a dispute between the parties on how to determine the value of the consignment, in practice an expert is appointed to determine the value of the consignment on the date of transmission.

The literature points out: “In literature one can see that it is possible to appoint an expert on the value of the consignment not only if this value cannot be determined on the basis of the criteria set out in the provision Article 80 but also in other cases where this leads to the conclusion of a dispute over the amount of compensation.

This position is acceptable when both parties agree" [3] . It is important that the parties to the transport contract agree to the actions of the person third, in any event, where the parties do not wish to cooperate in this respect, the solution to the problem may only take place in judicial proceedings.

The carrier shall be liable for failure or improper performance of the contract of carriage from its acceptance to its issue and for delay in the carriage of the consignment. [4] . Damage to the consignment in part or in whole also means failure to perform or incorrect performance of the contract.

In Content Article 66 the traffic rights have shown that the carrier is not responsible for the loss of the consignment, the weight and number of which has not been checked at the time of the shipment, if it delivers it without a trace of the infringement, and in the case of transport in a closed means of transport, also with intact seals of the consignor, unless the person entitled proves that the damage has occurred during the period from the receipt of the consignment until its delivery.

If the consignment has arrived. If the damage is only partly due to the circumstances for which the carrier is responsible, its liability shall be limited to the extent to which those circumstances contributed to the injury.

The carrier may be released from liability for damage where the consignor or the consignee have been responsible for the damage caused by the whole or part of the consignment. However, it is necessary for him to demonstrate that this is the cause not blamed by the carrier because it is the carrier's responsibility to show that he has no fault in his actions.

Examples of reasons attributable to the sender or recipient [5] :

• • the placing on the transport of the consignment without appropriate packaging;
• • the choice of the inappropriate means of transport, the loading of the consignment into a means of transport not suitable for the transport of consignments of a given type;
• • incorrect loading and securing of the consignment;
• • incorrect declaration of the value of the consignment and of other properties;
• • incorrect completion of transport documents;
• • issuing incorrect recommendations to the carrier

Transport law distinguishes the reasons for exempting the carrier from general and specific liability. In order to exempt the carrier from liability for the damage in the consignment, the following cause should be fulfilled, inter alia, by the consignor or the consignee, not caused by the carrier's fault.

The literature states: ‘(... )The reasons for the exonerative condition in question may exist at the time of transport, but also before the carrier accepts the consignment, and thus when the consignor and the consignee were not yet entitled.

However, there is an exception to the principle set out here where the cause of the damage referred to by the carrier is the same as the handling of the consignment.

The carrier may be exempted from liability for the condition of the consignment or delay in transport by proving that the damage was caused by the order of the consignor or consignee only if he was required to comply with such declaration, i.e. when it came from one of those persons at the time when she was entitled to deposit it’ [6] .

A professional carrier is required to be more careful and to prevent damage.

‘For example, if the carrier during the transport reveals that the consignment has been placed on the means of transport incorrectly by the consignor or that it has been insufficiently secured for the time of carriage, it should discontinue the transport and carry out operations to prevent damage.

Failure to do so when it was possible to do so with due diligence would render the carrier unable to rely effectively on the exemption. The fact that the consignment has been incorrectly loaded or secured by the consignor is, at most, a condition limiting the carrier’s liability under the order Article 68 ” [7] .

It will be the carrier's responsibility to demonstrate that he has taken all measures to cause damage, possibly to reduce its amount.

How can we show that any action has been taken to prevent or limit the damage? In fact, there is no book position on the Polish publishing market, which answers this question in a way understandable to the average reader. Given that this situation would certainly have found its finale in the general court, i.e.

A district court or district court, or court of First Instance, is worth preparing for such a possibility even before entering a court dispute. This means that the carrier should have a personal evidence source, evidence in the form of recordings or documents from loading and unloading operations.

Personal sources are witnesses who would be able to testify about, for example, a vehicle driver. Evidence may also be taken from the above activities or a document containing information on the means of transport.

As a general rule, the carrier’s comments and reservations should be reflected in the transport note: ‘If the carrier accepts the consignment for unreserved transport, its evidentiary situation in demonstrating that the consignment was not properly packaged is much more difficult. For the presumption of Article 781(2) k.c. (i.e.

that the consignment, including packaging, as an integral part thereof, was in proper condition). Overcoming this presumption under specific circumstances may create difficulties.

There is another question here, namely whether the carrier who accepted the consignment without reservation, even though due care could have identified deficiencies in the packaging, perhaps, based on its beneficial exonerative cause from Article 65(3)(2) , completely free from responsibility" [8] .

Why should adequate evidence be considered before a possible judicial procedure? The case would be examined in economic proceedings, which are formalised proceedings and possible procedural negligence on the part of the parties to the proceedings may have the effect of dismissing or considering the action.

The dismissed action merely means that the court did not divide the arguments put forward by the plaintiff and that taking into account the action means dividing the arguments and judging, for example, the amount sought by the claimant.

In court practice, judges exceptionally often write in the reasonings of the judgments the following statements: ‘... the reason as a professional economic operator should have the appropriate financial means to pay all the costs of legal proceedings, including the conduct of evidence’, ‘...

although it can be concluded that any damage has occurred but the plaintiff has failed to meet the burden of proof... ’. It would be a kind of Truism to believe that a court examining a case on its own initiative would allow evidence not filed in a lawsuit or in response to a lawsuit.

The consignment of goods may relate to goods with a different state of focus and a different reaction to the chemical composition of the goods transported.

A part of the economic operators ordering the carriage require the carrier, for example, to provide a cleanliness certificate and documents certifying that the transport previously carried out will not have adverse effects on the ordered carriage of the goods. It is easy to imagine the transport of food in bulk (e.g.

seeds, cereals) and the situation where the carrier previously carried out an order to transport the materials used for heating furnaces. As a result of food contamination, its market value would be significantly reduced or would not even be suitable for commercial use.

Moreover, the recipient would not have to accept the goods at all – he could refuse to accept them. This would mean no more, and no less, that the contract of carriage was not properly executed and that on the part of the consignor there was a material damage which had its basis in an unfulfilled order.

one from the so-called privileged conditions is a condition relating to the assignment of a consignment incompatible with the reality, incorrectly located catalogue of circumstances on the part of the consignor or the consignee and not caused by the carrier's fault.

"There is no doubt about the need for the carrier to be released from responsibility under these circumstances. He is obliged to care for the consignment, which corresponds to its characteristics.

The exercise of care according to the measure resulting from the endorsements contained by the consignor in the shipping note is in many cases insufficient.

The liability of the carrier would not have been justified, except in exceptional circumstances.’ [9] The carrier should not be liable for damage where the consignor ordering the service has misled him as to the possibility of carrying the goods in a certain manner and with certain safeguards.

It is for the consignor as the operator concerned to carry out the carriage correctly and should therefore cooperate with the carrier by giving appropriate instructions and endorsements as to how the goods are transported.

‘It is only possible to refer to this reason of dismissal if the consignor has, in a way incompatible with reality, determined the contents of the consignment excluded from or admitted to the transport under special conditions (or has not retained those special conditions) in respect of the consignment which has suffered damage.

Where the consignor provides false information on other consignments, the carrier may rely only on a generally formulated exemption condition Article 65(2) , “ The circumstances on the part of the broadcaster... not caused by the carrier...

However, this condition requires the carrier to prove (and not merely to demonstrate) that the damage is due to false data provided by the broadcaster (so rightly M. Stec, Contract of Carriage... p. 269)” [10] .

The proof of non-guilty will come down to providing adequate evidence to the carrier. A private opinion of a road transport specialist may also be such evidence outside the previously described evidence. The opinion may also be used in the course of judicial proceedings.

Another condition is the damage to loading and placing the goods on the vehicle. ‘This may in particular be the case where the carrier is required to carry out the cargo operations, however they are carried out by the consignor or the consignee of the consignment.

The carrier may then rely on the condition that the Article 65(3)(4) , provided that the fact that the consignor or the consignee of the consignment has participated in these activities is not due to faulty omissions by the carrier, and at the same time the failure to perform them is not due to faulty operations by the carrier, e.g.

to provide incorrect indications, to provide defective loading facilities or to fail to pay attention to the failure of the loading, despite the possibility of doing so with due diligence." [11] .

The loading operations take place with the consignor of the goods, which in turn means that the carrier must rely on the knowledge and experience of the consignor's employees and the appropriate technical loading equipment.

In the event of any deficiencies, the carrier will have the burden of proving that the damage has occurred during the loading of the goods, since at the time of acceptance of the goods without reservation, the carrier is responsible for any damage related to the transport of the goods.

There are certain circumstances which may limit or exclude the carrier's liability, but these are circumstances requiring proper organisation of its activities and the implementation of preventive procedures.

The liability of the carrier shall in no way be limited or excluded in situations where, as a result of its fault or gross negligence, damage has been caused. The above can be fulfilled when a transport vehicle and its contents are parked in an unguarded parking lot, e.g. in French Calais or in the south of that country.

The behaviour of the carrier should then be classified as gross negligence. In turn, leaving the vehicle in an unguarded parking lot in Poland, in principle it should not be eligible for gross negligence. Of course, each case must be dealt with individually in full accompanying circumstances.

Carriage of goods at the CMR Convention

In the case of commercial contact and the implementation of the contract of carriage, where the consignor is an economic operator from Poland and a foreign entity, the provisions of the Convention on the Agreement on the International Carriage of Goods by Road with 19 May 1956 (in the following part of the article called the CMR Convention. The CMR Convention was ratified by: Albania, Armenia, Austria, Azerbaijan, Belarus, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iran, Ireland, Italy, Israel, Kazakhstan, Kyrgyzstan, Latvia, Lebanon, Lithuania, Luxembourg, Malta, Mongolia, Montenegro, Morocco, Netherlands, Norway, Poland, Portugal, Moldova, Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Syria, Tajikistan, Macedonia, Tunisia, Turkey, Turkmenistan, Ukraine, Great Britain and Northern Ireland, Uzbekistan. The provisions of the CMR Convention, including those relating to compensation for loss or destruction of the consignment (goods), will apply to transport contracts in those States. The provisions of the Convention shall not apply to:

• • postal service;
• • for the carriage of carcases;
• • for the transport of resettlement goods.

First, Note that Article 9(2) Convention on the Agreement on the International Carriage of Goods by Road from 19 May 1956 (hereinafter: CMR Convention) provides:

„in the absence of reasoned objections by the carrier included in the consignment note, there is a presumption that the goods and their packaging were visible in good condition at the time of acceptance by the carrier and that the number of pieces, as well as their characteristics and numbers, were in conformity with the declarations in the consignment note.’ The content of the bill of lading is important for the parties to the contract, including the carrier's liability for damage to the goods being transferred to it, which in turn constitutes Article 17(1) CMR Convention i.e.: „The carrier shall be liable for the total or partial loss of the goods or damage to them, which will occur between the receipt of the goods and the issue thereof, as well as for the delay in delivery.’

Next, CMR Convention under Article 3 reads: ‘In applying this Convention, the carrier shall be liable, as for its own negligence, for the acts and omissions of its staff and of all other persons to whom the services are referred for the purpose of carrying out the carriage, when these workers or those persons are acting in the performance of their duties.’

The carrier may be released from liability where the damage (goods) has been caused by the fault of the rightholder, his or her order not attributable to the carrier's fault, a defect of his or her own goods or circumstances which the carrier could not avoid and the consequences of which could not be prevented (video: Article 17(2) CMR Convention).

In writing: “The establishment of compensation for damage to the consignment requires several treatments. The starting point is to determine the initial value of the goods. This should be done on the basis of the criteria in question under Article 23(1) and 2 CMR.

It is therefore the value of the goods from the place and the time it is accepted for transport, determined at or in the absence of the stock exchange price at the current market price, and in the absence of both - the normal value of the goods of the same type and quality.’ [12]

While the initial value of the goods may result from the invoice, it may be problematic to show the value after the damage to the goods, as the value of the goods is determined by the exchange price or, in the absence of it, by the current market price and, in the absence of both – in the normal value of goods of the same kind and quality [13] .

one of the parties to the contract may indicate the need to calculate prices at the current market price, which is clearly justified, but there is a view in European case law that compensation for damage to goods is calculated on the basis of prices from the place of delivery.

Important: the amount of damage can be demonstrated by any evidence, but it is necessary to demonstrate that the damaged goods have less market value than before the damage/destruction.

CMR Convention in Content Article 29 states: ‘The carrier shall not benefit from the provisions of this Chapter which exclude or restrict its liability or which transfer to the other party to the burden of proof if the damage was caused by the wrong intention or negligence of the carrier, which under the law in force at the place where the proceedings are conducted, is considered to be equivalent to the wrong intention.

(section 1) and the same provision shall apply if the workers of the carrier or any other person to whom he refers for the purpose of carrying out the carriage do not intend or neglect to perform their duties.

In such a case, those workers and those other persons shall not be entitled to exercise their personal responsibility under the provisions of this Chapter. Under section 1. (section 2)”.

These regulations exclude the institutions mentioned in point (a) and relating to the exclusion or limitation of liability of the carrier for the damage suffered, but oblige the party entitled to demonstrate the gross negligence of the carrier or its fault.

In conclusion, it should be pointed out that the transport law contains a clarification of what is the damage under this law, how the damage can be determined and who is responsible and at what point. In principle, the carrier is responsible for the consignment, but there are certain exceptions which allow him to be released from responsibility in part or in full.

Summary

In the study, the author draws attention to the liability of the parties to the contract in connection with carrying out the carriage of goods and the possibility to exclude liability of the carrier for damage to the consignment.

[1] Judgment of the Constitutional Court 4 December 2001, SK signature 18/00

[2] Article 80 Law on 15 November 1984 traffic law