Numéro de la fiche : 42801
Pays : Pologne
Thèmes : CMR (Transport routier international)
Responsabilité du transporteur
Dol ou faute équivalente (art. 29)
Date de la décision : 08/10/2020
Carriage of valuable goods from Belgium to Poland - Instructions to park in designated parking areas - Failure to comply with instructions to park in designated parking areas - Theft of part of the goods while the lorry is parked at an unguarded parking place in Poland - Carrier's liability - Compensation of damage - Limitation of liability - Equivalent default (no) - Article 29.1. of the CMR – There is no case of default equivalent to wilful misconduct excluding the carrier’s possibility of availing of the provisions of the CMR which limit his liability
Art. 29.1 of the CMR contains an interpretation directive concerning the notion of "default" indicating that it should be understood as "wilful misconduct" in accordance with the law of the court or tribunal seized of the case. In the absence of such a notion in the Polish legal system, it is assumed that it is the same as the notion of "gross negligence" used in Article 86 of the Polish Transport Law 1984 and Article 788 § 1 and § 3 of the Polish Civil Code concerning the contract of carriage, which contain similar normative content. The consequence of referring to the quantifier ("gross") is the acknowledgement that it refers to a qualified kind of fault resulting in aggravated liability of the party. Gross negligence should be regarded as such a form of lack of care in predicting the consequences of actions, which violates elementary rules of conduct and duties incumbent on a party, bordering on intentionality. The breach must concern the basic, elementary rules of diligence and must be assessed in the individual situation. There is no gross negligence if there are no sufficient grounds to assume that the omitted actions would have prevented the damage.
the Supreme Court - Civil Division
Case n° II CSK 773/18
S. Sp. z o.o. c/a A. Sp. z o.o.
The Supreme Court held that the carrier was not grossly negligent even though the carrier disobeyed an instruction to park in a guarded parking lot, arbitrarily changed the transportation route, and parked in an unguarded parking lot.
Authors : Dr Dorota Ambrożuk, Dr Daniel Dąbrowski, Prof. Krzysztof Wesołowski, University of Szczecin, Faculty of Law and Administration, Poland