Cross-border transport contract

What is a contract of carriage under Polish law? What are the types of contract of carriage?

A contract of carriage (commonly referred to as a transport order) is one of the legal institutions contained in Book Three of the Obligations of the Act of 23 April 1964. - Civil Code (Journal of Laws 1964 no. 16 item 93).

In principle, there are two types of carriage contracts:

  • Passenger transport contract - The basic element of this type of contract of carriage is the carrier's obligation to provide the travellers (passengers) with the appropriate mode of transport, safety and hygiene, and such comforts as are considered necessary in view of the type of transport (Article 776 of the Civil Code). Claims under a contract of carriage of passengers are time-barred one year from the date of performance of the carriage, or, if the carriage has not been performed, from the date when the carriage was to be performed (Article 778 of the Civil Code).
  • Contract for the carriage of goods - Within the framework of this type of contract of carriage, the carrier should be adequately informed, among other things, as to the address of collection of the consignment from the ordering party, the destination, i.e. the place of destination, the marking of the consignment, the manner of packaging. Furthermore, the sender is obliged to provide all necessary documents due to customs, tax or administrative regulations (art. 782 KC). It is also worth mentioning that the carrier should immediately notify the consignee of the arrival of the consignment at the destination. On the other hand, the statute of limitations for claims under the contract of carriage of goods is one year from the date of delivery of the consignment, and in the case of total loss of the consignment or its late delivery - from the date when the consignment should have been delivered (art. 792 of the Civil Code).

Article 774 of the Civil Code defines a contract of carriage as a contract in which ".a carrier undertakes, within the scope of his undertaking, to carry persons or goods for remuneration".

A fundamental feature of the contract is the obligation of the carrier to deliver the goods or persons from a given place to the destination.

EU regulations on the contract of carriage

Parties entering into a contract who are citizens of different EU Member States are entitled to exercise the so-called freedom of choice of law (Article 3 of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations, so-called Rome I. This means that the contract is governed by the law that the parties choose. For example, a French citizen with a Polish citizen may stipulate in a contract concluded with each other the jurisdiction of Polish law as the law applicable to the contract.

The choice of law may be made expressly or be apparent from the entirety of the contract or the circumstances of the case. The parties also have the option to choose the law applicable to the entire contract or only to a part of it.

What is the applicable law in the absence of a choice by the parties as to the law applicable to a cross-border passenger transport contract?

If the parties do not make a choice of law in the cross-border passenger transport contract, the applicable law shall be the law of the country in which travel has a habitual residence. This is the place where a person usually resides and has his or her centre of interests in life, and, importantly, this centre is based on factual and not legal circumstances.

A condition for the recognition, for a given legal relationship of passenger transport, of the law of the place of habitual residence of the traveller is that the origin or destination of the journey is situated in the same country. If this condition is not met, the law of the country of habitual residence shall apply. carriers.

It should be noted that for a passenger transport contract, the parties may choose as the applicable law only the law of the country in which:

  1. the traveller has his habitual residence or
  2. the carrier has his habitual residence or
  3. the head office of the carrier's management body is located, or
  4. the place of departure is located or
  5. the destination (final destination of the journey) is located.

What is the applicable law in the absence of a choice by the parties of the law applicable to a cross-border freight transport contract?

If the parties to a contract of carriage of goods originating in different countries of the European Union have not specified which country's legal standards will apply to the contract of carriage of goods concluded between them, the law applicable to such a contract shall be the law of the country in which the carrier has his habitual residenceprovided, however, that the place of receipt of the goods for carriage or the place of delivery or the habitual residence of the consignor is located in the same country. If these conditions are not met, the law of the country in which the place of delivery agreed upon by the parties is situated shall apply.

Regulations of non-EU countries on the contract of carriage.

Naturally, the parties to a contract of carriage may also include nationals of countries outside the European Union and companies based outside the European Union. Which country's law should be applied to such contracts if the parties have not agreed on this issue between themselves?

The contracts or legal acts signed at national level between the countries of habitual residence or domicile of the counterparties will be applied in the first instance to the interpretation of contractual provisions in such a situation.

It is also worth pointing out that if one of the parties to a contract of carriage comes from a country belonging to the European Union (e.g. Poland), then when determining the law applicable to the interpretation of a given contract between counterparties, one should also take into account agreements or regulations pertaining to civil law relations signed with a given non-EU country by the European Union itself, and not necessarily only, for example, by Poland.

If even this does not provide an answer, it is necessary to consult the Act of 4 February 2011. - Private International Law (OJ No. 80, item 432), which contains general provisions on cross-border matters and guidelines on what to do when the laws of one counterparty's country conflict with the laws of the other party's country.

Legal form of the contract of carriage

A contract of carriage may be concluded in various forms, which differ, among other things, in the manner in which the statements are made, the place or the medium. Each form is binding on both parties, regardless of whether it is made remotely or in the office of one of the counterparties. However, a person who is concerned about safeguarding his or her interests should insist on concluding a contract by formal means, as this will identify both the parties and the content of the contract between the parties. The choice is usually between a document, which is simply a written contract, or a so-called documentary form, which can be, for example, an e-mail correspondence with a scan of the contract, but bearing the signatures of both parties!

Possibility for a foreign state to hold a party to a contract liable.

According to Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012, a person who is domiciled in the territory of a Member State of the European Union may be sued in another Member State in matters, inter alia, relating to a contract (e.g. carriage) before the court of the place of performance of the obligation in question, and if the place of performance of the obligation in the case of a contract of carriage has not been determined, the place of performance will be the place in the Member State where the services under the contract were provided or should have been provided.

Summary

The contract of carriage between the contracting parties of the EU Member States is a rather broad subject, which is regulated by legal acts issued by the authorities of the European Union. When drawing up the aforementioned contract, it is worth paying attention to a few important issues, such as the conditions of carriage contained in the content of the document, provisions concerning the carrier and the principal. It is also important to ensure that the contract is concluded in an appropriate form, in order to safeguard your interests. One of the pillars of our law firm is legal assistance and advice in the case of cross-border contracts, including contracts of carriage. If you need advice in this area, you have come to the right place. Call us, write us, contact us!

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