The most common and costly error in the transport chain occurs before the vehicle even sets off: on the side of the party placing the order. It is the ordering party that determines what goes on the consignment note and what information is provided to the driver, the planning system and the insurer. When the description of the cargo, the loading or unloading location, deadlines or technical requirements are incomplete, contradictory or misleading, the consequences are not borne solely by the carrier.

These errors are most often associated with the “telephone game” effect. Given the involvement of multiple entities in the transport chain, a given cargo frequently passes through many hands before reaching the actual carrier. As a result, the key elements of the original consignor’s instructions may become distorted.

Let us start with a simple scenario: the ordering party states in the transport order that the goods are not subject to ADR regulations, while in fact the shipment contains a hazardous substance. The carrier loads the goods and sets off in accordance with the instructions, without the required markings, safety measures or documentation. In such a situation, financial liability for the resulting damage, delays and administrative penalties will generally fall on the party that accepted the cargo and on whom the applicable local administrative law imposes the relevant operational obligations—in other words, the carrier. However, the ordering party remains the original source of the risk: its incorrect declaration (false information) provides the carrier with grounds for a recourse claim. In practice, this means that the carrier may compensate the recipient for the damage and subsequently seek reimbursement from the ordering party. Such proceedings are costly and time-consuming and can often also damage commercial relationships.

A similar logic applies in cases involving incorrect descriptions of dimensions, weight or palletisation. A carrier arriving for loading with a vehicle that cannot accommodate the cargo or whose body does not provide the required load capacity may incur the costs of arranging another vehicle, delays, and even damage resulting from overloading. If the ordering party incorrectly declared the dimensions or weight, this is generally its risk, provided that the carrier was unaware of these circumstances. If, however, the carrier accepted the order despite an obvious discrepancy, the financial and legal burden may be allocated differently.

Another area of risk concerns loading and unloading locations and deadlines. Imprecise addresses, a lack of information about loading hours, or failure to specify access conditions at the loading site—such as weight restrictions, time windows or health and safety requirements—can result in delays, route changes and additional costs. Where the ordering party has failed to provide complete information, the carrier may seek additional remuneration for unplanned activities or charge the ordering party for the costs incurred, including recourse claims relating to administrative or contractual penalties imposed by other customers, as well as lost profits.

The requirements imposed on the carrier are no less important. The ordering party should formulate its expectations regarding equipment, additional equipment or additional activities, such as loading operations, with equal precision. Such obligations should be clearly specified in the transport order, together with mechanisms for confirming their performance and sanctions for failure to perform them. The absence of appropriate provisions can lead to disputes over the scope of the parties’ obligations and responsibility for the resulting costs.

General terms and conditions of the transport order and the applicable terms and conditions of business (OWU) are another practical and frequently overlooked source of problems. Imprecisely worded clauses, particularly those concerning contractual penalties, may undermine the effectiveness of a given sanction and make it impossible to pursue a claim on that basis. One example is the frequently misused “range-based” contractual penalties, which are clearly inconsistent with the institution of a contractual penalty as defined under the provisions of the Polish Civil Code—a position that is also supported by numerous court judgments. It can be equally problematic when only contractual penalties are stipulated, without the possibility of pursuing additional damages exceeding the amount of the penalty.

Moreover, formal deficiencies in a transport order also matter. Failure to specify the currency of the contract, the applicable law or the competent court may, theoretically, appear to be minor errors, but they can turn a substantive dispute into a procedural one. Particularly problematic are situations where general terms and conditions are incorporated by reference but have not been effectively made available to the counterparty, or where the transport order conflicts with the applicable general terms and conditions. In such circumstances, interpretation may tend towards protecting the weaker party or towards an interpretation favourable to the party performing the service, which usually ultimately affects the ordering party financially.

The legal consequences of errors made by ordering parties can be considered across several dimensions: financial (costs of corrections, penalties and damages), administrative (fines and penalties imposed by authorities), contractual (set-offs, termination of contracts and loss of trust) and reputational. In addition, an incorrect transport order may result in damage and subsequently trigger recourse liability between the various entities in the transport chain. At the same time, ordering parties should remember that their subcontractors may also bring claims for damages if they suffer losses as a result of errors in the transport order.

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

www.translawyers.eu