A transport order is both an operational and a legal document. In transport practice, it is of fundamental importance—it specifies who is to transport what and under what conditions. A well-drafted transport order leaves no room for speculation: it allocates responsibilities, identifies risks and sets out procedures for dealing with crisis situations.

What Must Be Included in a Transport Order?

A transport order is generally divided into two parts: an editable section containing the details of the specific transport service and the so-called general terms and conditions, which set out the detailed legal, financial and operational terms.

As regards the first part, it is important to specify the so-called essentialia negotii (essential terms) of the contract of carriage:

• the route (place of loading and unloading, and often also the deadlines within which the transport must be completed);
• the characteristics of the cargo (number of tonnes or number of units, such as pallets);
• the amount of remuneration (usually stated in EUR or PLN).

It is worth ensuring that the description of the cargo is complete and provides the carrier with all information necessary to perform the service, such as the type of goods, number of loading units, gross and net weight, dimensions, palletisation method, type of packaging and any characteristics requiring special handling (fragility, temperature-controlled transport, ADR).

It is equally important to specify precisely what type of vehicle the carrier is required to use and what additional equipment or means, if any, must be used to perform the contract.

General Terms and Conditions of the Transport Order

In addition to the descriptive section, which is unique to each service, transport orders often include so-called general terms and conditions—permanent, usually non-negotiable provisions characteristic of the ordering company. They may be short and concise, but sometimes consist of dozens of provisions, including numerous clauses concerning contractual penalties. Some ordering parties incorporate these provisions into separate general terms and conditions, most often published on their website.

What Should Be Regulated in the Transport Order?

Transport documentation is, in practice, at the core of the order. This section should clearly specify which documents are necessary to perform and settle the service—typically a clean CMR consignment note (without reservations), original invoices, customs documents (EUR.1, T1/T2) and ADR documents where required.

It is equally important to regulate inspection procedures. The order should specify how and when the completeness of documents is to be verified at loading, as well as the procedure to be followed in the event of discrepancies or visible damage, including the requirement to enter reservations in Box 18 of the consignment note. It is also worth specifying the deadlines for sending scans and originals and the method of delivery of accounting documents, bearing in mind that the method of delivery affects when the payment period begins to run.

Insurance should not be treated as an optional element. A transport order will usually require the carrier to hold an OCP insurance policy with a sum insured appropriate to the declared value of the goods or at least equal to the upper limit of the carrier’s liability under applicable law. In practice, this gives the ordering party the right to request documentation confirming that the insurance has been taken out. The absence of such protection creates a real operational and financial risk for the ordering party if the matter has not been regulated in advance.

Technical parameters and measures for securing the cargo should be stated explicitly and in operational terms. The order may contain requirements concerning the vehicle’s emission standard, bodywork specifications and direct-vision standards where relevant, as well as the minimum set of securing equipment—straps, anti-slip mats, wheel chocks and tarpaulins.

At the same time, the contract will usually specify that the driver must be present during loading and unloading and must check the condition of the packaging and the completeness of the documentation. These activities are crucial when it comes to entering reservations and subsequently pursuing a claim.

The procedure for accepting the order and the rules of communication should be simple but precise. The order should specify acceptable forms of acceptance—email, messenger or signature—and provide guidelines concerning implied acceptance of the offer or the so-called “30-minute clause”, usually limiting their application to established and routine business relationships.

The order should also set out reporting obligations: who is responsible for notifying the relevant party, in what form and within what period, of delays, breakdowns or damage. Where monitoring is required, it should also specify how telematics data are to be accessed and how reporting is to be carried out.

Settlement and payment terms should be formulated clearly and unambiguously. The order will usually specify the freight rate or the method of determining it, the settlement currency, the exchange-rate mechanism and the payment deadline, calculated from receipt of a correctly issued invoice together with the complete set of transport documents.

It is equally important to specify the method by which accounting documents are effectively delivered and the rules governing the assignment of receivables, eliminating uncertainty in the event of a change of creditor.

Claims and deadlines are another area that should be described in detail. The order should specify the procedure for submitting reservations, the required form (usually in writing) and applicable deadlines—for international transport, for example, the standard may include a 21-day period for certain reservations, while different rules apply to domestic transport.

It is important to identify the evidence required to document damage and to establish the formula for calculating contractual penalties while observing the principle of proportionality.

Finally, there are clauses governing the legal relationship: applicable law, jurisdiction and the relationship with the general terms and conditions of the ordering party. Such general terms and conditions may form part of the contract, but only if their content is accessible and does not conflict with the provisions of the transport order or mandatory statutory provisions. This approach makes it possible to strike a balance between the need for standardisation and the necessity of complying with transport-law regulations.

A Transport Order as a Contract of Carriage – When Does an Order Constitute a Contract of Carriage?

A transport order may serve as a contract of carriage. The legal framework governing such a relationship is primarily established by the Polish Civil Code, the CMR Convention (for international carriage) and the Polish Transport Law Act (for domestic carriage). These instruments determine the rules of liability, compensation limits and grounds for exemption from liability.

The distinction between a forwarding order and an order that constitutes a contract of carriage is of practical importance. If the contractor undertakes to perform the transport using its own means, issues a consignment note and assumes liability for the cargo, the relationship constitutes a contract of carriage.

Where the document merely commissions the organisation of transport and the contractor acts as an intermediary, being responsible for properly organising and supervising the transport rather than for the actual carriage, the relationship constitutes a forwarding contract.

In practice, the decisive factors are the contractual provisions and the actual allocation of risks; the title of the document itself (e.g. “forwarding order”) does not determine its legal classification.

Risky Clauses in a Transport Order

In practice, certain provisions and clauses frequently give rise to disputes. Particular attention should be paid to the following:

First: the “30-minute clause”. This most commonly involves forcing automatic acceptance of a transport order after a short period of time, particularly when applied to one-off carriers. Such a provision should be reserved for established partners.

Second: document neutralisation and “duplicate” consignment notes. Provisions requiring the concealment of data in a CMR consignment note or practices involving duplicate documentation expose the parties to administrative sanctions and may result in liability for transport-related offences.

Third: excessive penalties and double sanctions. Contractual penalties equal to the freight charge, or the accumulation of several penalties for the same event, may be subject to reduction by a court. Such provisions should be avoided or their proportionality should be justified, for example by reference to the risk or damage involved.

Fourth: penalties for late submission of documents and unilateral extensions of payment deadlines. Such solutions may conflict with legislation on payment deadlines as well as the rules of the CMR Convention and may be challenged in court proceedings.

Fifth: attempts to waive statutory rights, such as the “EUR 40 clause”. Provisions attempting to restrict a creditor’s statutory rights or exclude statutory remedies will most often be invalid.

A Few Practical Tips to Finish

A transport order should be an operational tool while also complying with legal requirements. Obligations should therefore be formulated in such a way that compliance with applicable regulations can be easily verified.

Avoid long and complex sentences that can be interpreted in multiple ways. Ultimately, it is worth consulting a lawyer on the wording of a proposed transport order. A lawyer can assess its provisions based on professional experience and current judicial practice.

Author: Ewa Sławińska-Ziaja
Attorney-at-Law at Trans Lawyers

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