Complaints about delays in the delivery of goods are undoubtedly the most common reason for disputes in transport. In order to be able to appeal effectively against a debit note for the delay, it is essential to know the limits of the carrier’s liability in respect of the direction in which the transport is carried out. Such limitations may be introduced in any country. Due to the fact that the largest percentage of international transport is carried out from Poland to Germany and from Germany to France, let’s take a look at what it looks like in these countries and compare it with the regulations of the CMR Convention.
There is no doubt that the CMR Convention will apply to international transport, e.g. from Poland to Germany or from Germany to France. These regulations do not provide for any sanctions for the mere fact of delay in the carriage. The possibility of pursuing claims for delay depends, pursuant to Article 23(5) of the CMR Convention, on the demonstration of the amount of damage by the injured party. Furthermore, a delay in delivery can only give rise to compensation if the reservation is made in writing within 21 days of the date on which the goods were placed at the disposal of the recipient.
The provisions also stipulate that the compensation may not exceed one time the carriage amount. The same limit of liability has been set by France, where a maximum of one times the amount for freight can also be claimed.
However, the Convention allows the sender to include in the consignment note, in agreement with the carrier and for an additional fee agreed with him, the so-called amount of special interest in the delivery of the consignment. This shall be done in the event of loss or damage to the goods or if the agreed delivery time is exceeded. In such a case, the limit on the amount of compensation shall be the declared amount of special interest.
Can a contractual penalty be established for failure to deliver goods on time?
In transport orders we often encounter clauses such as: “for every hour of delay for unloading the carrier will be charged a contractual penalty of €50” or “in the event of delay in delivery of goods, the carrier will be charged a contractual penalty of €200, without the need to prove any damage”.
According to settled case-law, such penalties cannot be effectively enforced. Liability for the delay in delivery from the carrier can only be invoked if the damage suffered by the recipient or sender has been proved, with the immediate result that it cannot be foreseen in advance in the form of a contractual penalty. Any clause that would directly or indirectly violate the provisions of the CMR Convention, as well as the provision on contractual penalties for delay in the delivery of goods, will be null and void.
When carrying out transport operations in a given country, i. e. cabotage, we must remember that the law of that country will apply. For example, if Ikea commissioned transport from Warsaw to Poznań, it could pursue claims against the carrier under the Polish Transport Law.
This law stipulates that the carrier is responsible for the delay in delivery. However, it does not define what is meant by this term. A delay can generally be considered as exceeding the carriage completion date by the carrier. The carrier may be exempted from such liability if he proves that the delay in the carriage of the consignment was caused by reasons beyond the control of the sender or the recipient and not attributable to the carrier, by the nature of the goods or by force majeure.
The amount of compensation for such damage shall be limited to twice the carriage charge (Article 83(1) of the Transport Law). There is no general rule that in any case of delay in the carriage the carrier must pay twice the amount of the carriage charge. First, it must be proven that the delay in the carriage has caused damage for which the carrier is liable and the amount of the damage must be proved. If the consignment is delivered untimely but no damage is caused, there will be no grounds for claiming damages.
The highest limit of liability for delayed delivery has been introduced by the German Commercial Companies Code (HGB). According to these regulations, the carrier is liable up to three times the amount of freight. In addition, claims for the delay must be made within 21 days of delivery of the goods.
German transport law also provides a number of advantages for the carrier. For example, in the event of a delay in loading for reasons attributable to the sender, the carrier may give the sender an appropriate period of time with a declaration that he will no longer wait if, by the expiry of that period, the sender has not loaded the cargo or made it available. If the cargo is not loaded or made available by the expiry of the prescribed period, the carrier is entitled to terminate the contract and claim ‘dead freight’, i.e. one-third of the freight amount.
In summary, it is worth remembering the limits of liability in each country, as shown in the table below:
|Regulations||Limit of liability of the for the delay in delivery of goods|
|CMR Convention (international transport)||one times the freight|
|France||one times the freight|
|Poland||two times the freight|
|Germany||three times the freight|
Photo: Bartosz Wawryszuk