Polish civil code like many other legal systems contains two separate kinds of agreements connected with logistics services. By a carriage contract, the carrier commits, within the scope of operations of its enterprise, to carry persons or goods against remuneration. By a forwarding contract, the forwarding agent commits to send or collect a shipment against remuneration within the scope of operations of its enterprise.
In practice, the problem often arises whether the concluded contract is a carriage contract or a forwarding contract. Both above-mentioned named agreements have very close construction which causes a strong need to distinguish components defined as essential for each of them. The main issue is that both types of contacts differs significantly in terms of the contractor’s liability.
It’s crucial for this distinction, as the doctrine states, that only the content of the agreement determines the type of it – the contract’s designation is just a non-binding clue. Very often during court proceedings it turns out that contracts called forwarding contracts are in fact contracts of carriage. Distinction between forwarding and carriage contract is also important due to the fact that carriage may be performed by the forwarding agent who has then the rights and duties of the carrier. Moreover, subcontracting the carriage to another entity does not determine whether the concluded contract is a contract of forwarding or carriage, because cooperation with a subcontractor is often a part of the performance of both discussed contracts.
The issue described above, has been also a subject of jurisprudence in Poland. It has been indicated that it is necessary to clarify whether contractor’s obligations includes activities related to the organisation of transport, classified as forwarding activities. Accepting an order and subcontracting its performance to another entity – if it is not accompanied by additional activities – can not be treated as the organisation of transport (forwarding). For a carriage contract, it is irrelevant whether the contractor performs the carriage itself or uses a third party (subcontractor) for that purpose. (Judgment of the Court of Appeal in Szczecin 23.12.2014, I ACa 461/14).
The carrier’s own truck fleet is also not necessary to conclude an effective contract of carriage, because carrier may perform the carriage using vehicles that do not belong to him. The essence of the contract of carriage of goods is their relocation from one place to another, and this action should be the main subject of the contract (Judgement of Supreme Court 31.03.2005, V CK 510/04 ).
Forwarding has an auxiliary role in the transport of consignments, covering both factual and legal actions necessary for the proper performance of transport. The forwarder’s services consist of giving advice, preparing transport documents, collecting a consignment from a sender or a carrier, handing over the consignment to the consignee, as well as organisational and legal activities connected with transport, such as finding the carrier, preparing waybills or concluding the transport contract of the carriage on behalf of the customer, as well as paying the remuneration for the transport to the carrier (Judgement of Supreme Court 23.05.2018 IV CSK 425/17 and 6.10.2004 I CK 199/04).
On the basis of Polish civil law concerning carriage contract, as well as Convention on the Contract for the International Carriage of Goods by Road (CMR) carrier shall be responsible for the acts of omissions of his agents and servants and of any other persons of whose services he makes use for the performance of the carriage, when such agents, servants or other persons are acting within the scope of their employment, as if such acts or omissions were his own. In case of forwarding contract, the forwarding agent is liable for the carriers and other forwarding agents which he uses to perform the order unless he is not at fault in choosing them.
Taking above-mentioned into account, in case of a forwarding contract, we can imagine many more scenarios to avoid liability for damage or loss of goods. Forwarding agent has to prove his due diligence understood as choosing professional subcontractor with good reputation and taking actions such as verification of his insurance, licence, permits etc.
Mentioned aspects can cause a significant consequences for logistics operators and their business partners. It is highly recommended to consider it before concluding an agreement which is based on Polish law.
Bartosz Majerski – attorney at law