I have always a problem with that question. I would like to give a sure and firm answer that Polish jurisprudence is pro carriers or pro cargo interests but I can’t. For the last couple of years my answer has been that Polish jurisprudence in relation to the CMR convention was rather balanced. It was a little easier to answer before the year 2011 because until the year 2011 the calculation of limit of carrier’s liability was based on the gold franc value. This was surely more favourable for carriers than the SDR system we’ve been having since the year 2011. The SDR system is let me say more expensive. It means that the limit is now higher. Something around 15%. I’m mentioning it because there are still cases concerning the damage which happened before or in the year 2011.
In my opinion in relation to the CMR Convention Polish jurisprudence is favourable neither for carriers nor for cargo interests. There are two reasons. One is that there is still a “discussion” in Polish jurisprudence and between scholars what are the principles of carriers liability according to article 17 of the CMR Convention. According to some court’s decisions it is a principle of risk limited by a force majeure. It is called an objective liability of the carrier. This point of view is of course less favourable for a carrier. Mainly because of a classic definition of force majeure in Polish jurisprudence. This definition contains inter alia the assumption that the force majeure event must have external character. It means that it originates outside the equipment with the operation of which the liability is connected. However the most classical or let’s say conservative part of this definition is that the force majeure event cannot be caused by a human being. So for example a robbery act is not the force majeure event.
The other group of Polish lawyers is claiming that liability of the carrier stipulated in the CMR Convention is based on a principle of guilt. The alleged guilt of the carrier to be precise. It is called a subjective liability of the carrier. This point of view is giving a carrier many more possibilities to be relieved of liability. Even in spite of a preliminary allegation of the carrier’s fault. I would risk a statement that a theory of alleged guilt is a little more popular than a principle of risk limited by a force majeure. However even the supporters of a reasonably liberal treatment of the carriers’ liability do not claim for example that each robbery or each theft should exonerate the carrier from the lost cargo. Truly speaking, both groups agree that circumstances of the event are decisive. Such circumstances would include the carrier’s behaviour, the type of cargo and its attractiveness, as well as the place where the transport takes place.
The second reason why I said that Polish jurisprudence is favourable neither for carriers nor for cargo interests is that it is still not defined according to what level of diligence the carrier should act. This problem is probably the most important when the matter of gross negligence is discussed. So when I am asked if Polish courts are easily finding gross negligence of the carrier (in order to break the limit of the liability) the answer again is that it is neither easy nor especially difficult. All of that is because, again, there are two counter theories. For one group of Polish lawyers the carrier should act according to the highest level of diligence. Their opinion is based on the interpretation of the CMR Convention’s provisions. However the other group is claiming that a domestic law should be used in such circumstances. The civil code states that The debtor’s due diligence within the scope of his economic activity shall be specified while taking into account the professional character of that activity. These last words “the professional character of that activity” could mean for some judges the highest level of diligence but for others just high but not necessarily the highest.
The real problem is that there are no real milestones judgments of the Polish Supreme Court in relation to the issues described above. So courts of lower ranks are trying to solve these problems themselves. Sometimes it leads to the counter results. For example in relation to a robbery act committed by a forged policeman I found one judgment where a judge ruled that this is not a fault of a driver ( so a carrier ) and the carrier should be released from any responsibility related to the loss. On the other hand I found a judgment where a judge ruled that a robbery even if committed by a false policeman doesn’t relieve carrier automatically of liability. The circumstances of a robbery act should be at first examined. The behaviour of the carrier should be checked too because in some circumstances a driver should be more suspicious. The judge used an example that in the territory of Russia a driver should at least try to verify the ID of a forged policeman before leaving a cabin of the truck.
Maybe less controversial are judgments related to the matter of gross negligence. I dare say it because when I analysed the judgments of lower ranks courts I realised that it is not so important whether a judge thinks that the carrier should act according to the highest standard or just high/professional standards of diligence. The difference is slight or none. At the end of the day the circumstances of the event are the most important. However the circumstances must prove gross negligence not just negligence. We deal with gross negligence when the carrier may be found guilty of a breach of fundamental principles of prudence, which is a kind of a qualified unintentional fault.
Publisher: Kański Kapczuk Kniat-Borsut