MARTA K. KOŁACZ PhD Candidate Erasmus University Rotterdam kolacz@law.eur.nl COUNTRY REPORT ON ART. 17.2 CMR POLAND Contents 1. Introduction... 1 2. Regulations applicable to the international carriage of goods by road... 2 3. Domestic concepts of force majeure and due diligence... 2 4. Circumstances which the carrier could not avoid and the consequences of which he was unable to prevent... 3 4.1. Art. 17.2 CMR in case law... 4 5. Conclusion... 5 1. Introduction The ratio behind the Geneva Convention s on the Contract for the International Carriage of Goods by Road (CMR) mandatory nature is to unify law. The unified law should stay away from national legal systems as far as interpretation is concerned. However, if the CMR does not cover the matter at hand and solution cannot be found in the convention itself 1, the judge supports it by domestic regulations. This remark is especially important in the light of very general concepts existing in the CMR which are not defined in the convention s text. This report focuses on the art. 17.2 CMR and investigates in particular how Polish courts interpret circumstances which the carrier could not avoid and the consequences of which he was unable to prevent. The judgments of the Polish Supreme Court and lower courts are taken into consideration to see whether there is consistency in interpretation. All the judgments are selected from the Polish public judgment databases 2 and the legal information service Legalis.pl according to the key phrase: art. 17.2 CMR. 1 The art 31 of the Vienna Convention on the Law of the Treaties from 1969 serves here as a departing point. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. This means that even in case a certain issue is not directly addressed in the conventions, the aim of uniform law still requires that the consideration is not given to national rules on interpretation, but the conventions need firstly to be interpreted in the context of the conventions themselves. 2 Orzeczenia Sadow Powszechnych: http://orzeczenia.ms.gov.pl; Sad Najwyższy: http://sn.pl/orzecznictwo/sitepages/baza%20orzeczeń.aspx 1
The analysis of interpretation of the art. 17.2 CMR starts with the overview of regulations which Polish judge can apply to international carriage of goods. That is because courts tend to refer to similar concepts existing in other regulations (2.). For the same reason also the concepts of force majeure and due diligence present in the Polish legal doctrine are briefly introduced (3.). These are followed by understanding of the concept circumstances which the carrier could not avoid and the consequences of which he was unable to prevent with examples of cases decided under 17.2 CMR. The analysis finishes with conclusions (5.). 2. Regulations applicable to the international carriage of goods by road The CMR Convention is the source of universally binding law, shall be applied directly and takes precedence over the national statutes. That is not exactly the same with the SDR Protocol. The precedence of the SDR Protocol might be questioned as a result of the process of its ratification. It was decided that the SDR Protocol does not meet the prerequisites for the ratification with prior consent granted by statute. 3 In consequence, it should not have precedence over national acts with which it may contradict. 4 Even though the CMR constitutes a mandatory framework for the international carriage of goods by road, which should have autonomous position towards the national law, the Polish courts tend to overuse the domestic regulation - that is the Transport Law Act. 5 They apply it by default to international carriage of goods by road unless in principle the literal meaning of the convention provides a solution to the issue at hand. 6 If the matter is not covered by the Transport Law Act, the judge takes recourse to the Polish Civil Code 7 (PCC). 3. Domestic concepts of force majeure and due diligence The Polish courts while considering the art. 17.2 CMR tend to compare circumstances which the carrier could not avoid and the consequences of which he was unable to prevent with the domestic concepts of force majeure contained in the art. 65 2 of the Transport Law Act and due diligence expressed in art. 355 PCC 8. The art. 65 2 of the Transport Law Act states that the carrier shall be relieved of liability for the loss or damage to the goods or delay in delivery if the loss, damage or delay result from the causes attributable to the sender, recipient or characteristics of the goods; are not subject to carrier s fault; or are the reason of force majeure. The doctrine distinguishes three basic categories of force majeure. The natural disasters like earthquakes, floods, volcanic eruptions, catastrophic storms, heavy snow, hurricanes, tornadoes, etc are the first category. The second 3 The procedure is subject to the provisions of the art. 89 of the Constitution of the Republic of Poland from 2 April 1997 (Dz.U. Nr 78, poz. 483). 4 The CMR Convention was also ratified without prior consent granted by the statute however this was not required at that moment under the existing law and according to the article 241 of the present Constitution from 1997 the conventions ratified before are considered equal to the one ratified with prior consent. For more on the ratification issue of the CMR Convention and SDR Protocol see: Krzysztof Wesołowski, Umowa międzynarodowego przewozu drogowego towarów na podstawie CMR, Wolters Kluwer Polska (2013), pp. 47-50. However, it seems that the courts apply the SDR Protocol without questioning its precedence. See e.g. the judgment of a District Court in Szczecin from 14 November 2015 (VIII GC 162/14). 5 Ustawa Prawo Przewozowe z dnia 15.11.1984 (Dz.U.Nr 53, poz. 272) ze zmianami. 6 Especially due to the art. 1 3 of the Polish Transport Law which states: The provisions of this Act shall apply to international transport, unless an international agreement provides otherwise. 7 Ustawa Kodeks Cywilny z dnia 23 kwietnia 1964 r. (Dz.U. Nr 16, poz. 93) ze zmianami. 8 In conjunction with art. 472 of the Polish Civil Code. 2
relates to the final acts and decisions of the competent public authority the example of which are decisions about quarantine or liquidation of the consignment because of environmental protection or decisions to close the borders for certain types of goods. The last considers disturbances of public life manifested in hostilities, actions against public order, riots, strikes or lock-outs. 9 In the resolution from 13 December 2007 10 the Supreme Court underlined the objective character of the force majeure concept. What follows is that events considered as force majeure should be inevitable, extraordinary, unpredictable and external in relation to the company (carrier) whose activity is considered as the cause of damage. At the same time force majeure cannot constitute the exoneration ground if it is preceded by the act of a carrier contributing to the damage. 11 In order to assess whether in fact the carrier contributed to the damage the judge has to refer to the rules regarding performance of legal obligations. Here the art. 355 PCC has the decisive importance. The due diligence of the debtor within the scope of his economic activity shall be assessed with the consideration of the professional nature of that activity. If nothing else follows from a special provision of statutory law or the act in law, the debtor shall be liable for the nonobservance of due diligence. This requires the carrier to take precautions among the others while choosing parking places or dealing with third parties. 4. Circumstances which the carrier could not avoid and the consequences of which he was unable to prevent In the landmark case from 17 November 1998 12 the Supreme Court underlined that the exoneration grounds under 17.2 CMR are regulated differently than in the Transport Law Act. The wording: circumstances which the carrier could not avoid and the consequences of which he was unable to prevent is broader than the presented in the preceding section concept of force majeure. 13 The CMR beyond doubt allows to exonerate the carrier from the liability for loss or damage to goods and delay in delivery in case of circumstances which the carrier could not avoid and consequences of which he could not prevent and these do not need to have the character of force majeure. The specification of these circumstances should stay open. In addition these circumstances are not required to be external in relation to the company (carrier) whose activity is considered as the cause of damage but need to be both unavoidable and irresistible. However, it was underlined that since the CMR does not contain the specification of circumstances which can constitute the exoneration ground, the judge is supposed to assess any potential event in the light of national rules regarding performance of obligations and due diligence. 14 The objective understanding of this exoneration ground was supported in further 9 See e.g.: the judgment of the Court of Appeal in Warsaw from 23 February 2013 (VI ACa 1057/12). 10 (III CZP 100/07). 11 For example if the carrier continue with transportation despite the weather alerts regarding hurricane which eventually destroys the car and cargo. 12 (III CKN 23/98). 13 Differently the Court of Appeal in Kraków in the judgment from 27 September 2012 (I Aca 854/12). 14 Even though the courts relate to the standard of due diligence which in principle implies fault based liability of the carrier, there is no consensus as to whether carrier s liability under art. 17 is fault or risk based liability. Compare for example the judgment of the Court of Appeal in Kraków from 4 March 2014 (IACa 1631/13) where the court supports fault based liability and the judgment of the Court of Appeal in Warsaw from 7 November 1995 (I ACr 606/95) supporting risk based liability. 3
judgments 15, where the Supreme Court remained of the opinion that even though the notion of circumstances which the carrier could not avoid and the consequences of which he was unable to prevent covers a relatively wide range of events, this exception cannot be applicable if the acts of a carrier could, even slightly, contribute to damage, loss or delay. Besides, in the judgment of a District Court in Szczecin from 14 November 2014 16 it was additionally underlined that the carrier may be relieved from liability on the ground the art. 17.2. CMR only if there is a positive proof indicating the specific cause of the damage and adoption by the carrier of measures aimed at preventing it. These measures should exercise the highest degree of care. 4.1. Art. 17.2 CMR in case law a) Armed robbery In the case mentioned in the preceding part from 17 November 1998 17 the Polish Supreme Court held that the armed robbery can be considered as falling under exoneration grounds expressed in art. 17.2 CMR in particular the circumstances which the carrier could not avoid and the consequences of which he was unable to prevent. The facts of the case may be summarized as follows. The claimant (the sender) entered in the agreement with the respondent (the carrier) for the shipment of goods from Poland to Russia. The goods never arrived at their destination as a result of armed robbery that happened in transit. The Supreme Court decided that there are no grounds to imply the existence of the obligation to prevent the consequences of armed robbery with the threat or use of weapons in the international transportation because this would indicate the absolute character of carrier s liability. b) Defective tire Interestingly though, the Supreme Court took a more comparative approach when it comes to the relation between art. 17.2 and 17.3 as far as the defective condition of a vehicle is concerned. In the judgment from 22 November 2007 18 the Court concurred with the Austrian and German opinions and held that tires defects fall in principle under art. 17.3 CMR. The Court stated that unless it can be proven that the tire is damaged due to the circumstances falling out of the scope of acts of a carrier, the art. 17.2 cannot be applicable. c) Goods stolen by the subcontractor In several judgments 19 courts discussed whether the goods stolen by the agent of a carrier can constitute an exoneration ground of the art. 17.2 CMR. It is generally found that the theft committed by an agent of a carrier or subcarrier does not fall within the circumstances which the carrier could not avoid and the consequences of which he was unable to prevent. This position is a consequence of the analysis of the art. 3 CMR, according to which the carrier is responsible for the acts and omissions of his employees and all other persons of whose services he makes use 15 The resolution of a Supreme Court from 13 December 2007 (III CZP 100/07); the judgment of the Supreme Court from 22 November 2007 (III CSK 150/07) 16 (VIII GC 162/14). 17 (III CKN 23/98). 18 (III CSK 150/07). 19 e.g. the judgment of a District Court in Szczecin from 14 November 2014 (VIII GC 162/14); the judgment of the Court of Appeal in Lublin from 26 September 2013 (I ACa 351/13); the judgment of the Court of Appeal in Kraków from 4 March 2014 I ACa 1631/13. 4
for the performance of the carriage when such agents, servants or other persons are acting within the scope of their employment. d) Insufficient mean of transportation In the judgment from 9 May 2013 20 the Court of Appeal in Szczecin found that the choice of not the most suitable mean of transportation precludes the applicability of the exoneration clause under the art. 17.2 CMR. It was held that a diligent professional carrier aware of the possibility that illegal immigrants may enter the truck should choose the mean of transportation that can prevent it. Otherwise he actually contributes to the occurrence of the damage. For the transportation of biscuits from Poland to the United Kingdom the carrier used a trailer with tarpaulin. The driver made three stops. On each of them he did not lose the truck out of the sight as he was aware of the possibility that illegal immigrants can enter it. During the last part of the journey the truck was placed on a ferry where the driver due to safety regulations of the ferry operator was supposed to leave the truck. After arriving at the destination point it turned out that the tarpaulin is damaged. The guards on the monitoring devices noticed how two people cut through the tarpaulin and escaped from the trailer. The court assessed the performance of the contract according to art. 355 PCC focusing in particular on the professional nature of the business and connected with it due diligence. The usage of not the safest mean of transportation in the circumstances of a presented cases resulted in considering carrier as not due diligent. The court underlined that the carrier aware of the illegal immigrants could have chosen more durable mean of transport (e.g. a container trailer) or at least provide a constant monitoring inside of the trailer. 5. Conclusion It follows from the above that the Polish case law represents a concurring opinion with regard to the application of the circumstances which the carrier could not avoid and the consequences of which he was unable to prevent as contained in the art. 17.2 CMR. The threshold to invoke this exoneration clause is relatively high though. In spite of a fact that circumstances which the carrier could not avoid and the consequences of which he was unable to prevent are considered to be broader than events falling under force majeure, the carrier may rely on them only if he holds himself to the standards of due diligence. These must be the highest possible but still achievable. 20 (I ACa 111/13). 5