Troublesome amendment to the Carriage Law

On the January 1st, 2012, pursuant to the Act of September 16th, 2011 amending the Law on road transport and other acts (Journal of Laws No. 244, pos. 1454), an amendment to the Carriage Law (hereinafter: the "Act") came into force. A particularly noteworthy regulation introduced by the said amendment constitutes art. 55a par. 5 of the Act, under which it shall be prohibited that the sender makes the level of the freight dependent on the mass or volume of the transported goods - in the case of road transport of timber, loose cargo or other mass cargoes. This limitation shall apply mutatis mutandis to the shipper, the consignee, the transport organizer, or other party ordering the transport (par. 2).

The change of the Act introduced by the amendment, in particular its art. 55a, may be regarded as an extremely unfortunate regulation. Apart from the possible to indicate shortcomings in the wording of the amendment and the way of its introduction, it creates a number of doubts as to the interpretation, including its conformity with the Constitution, and entails many practical problems.

Possible interpretations

First of all, on the basis of the wording of the Act it is not possible to determine unambiguously whether the analyzed art. 55a par. 5: (i) contains an absolute prohibition to correlate the value of the freight either with the mass or the volume of the indicated transported types of goods, or (ii) only introduces the prohibition to enforce by the sender - as an entity that in the legislator’s opinion disposes with a greater negotiation force – determination of the freight in such way. As according to art. 55a par. 5 of the Act, it shall be prohibited that the sender makes the level of the freight dependent on the mass or volume of the transported goods - in the case of road transport of timber, loose cargo or other mass cargoes. This limitation shall apply mutatis mutandis to the shipper, the consignee, the transport organizer, or other party ordering the transport.

The second of the indicated interpretations is supported in particular by the analysis of the content of the legal justification of the draft Act which states that “The indicated (...) prohibitions, addressed to the sender, receiver, transport organizer and the entity intermediating in the organization of the transport of goods, in conjunction with the administrative responsibility of the entities referred to in the amended provisions of the Road Transport Act, will allow to change the current situation in which the carrier which is financially the weakest link in the transportation and logistics chain is being forced by those entities to violate the law". What is however important – pt. 5 relating to depending the amount of freight on the mass or volume of the goods, as a provision added in the course of legislative work, was not covered by this justification. However, in our opinion, taking into account the system interpretation and the presumption of legislator’s rationality, extension of the above thesis of the justification to the pt. 5 seems to be appropriate and acceptable. It is however not possible to exclude an adoption of the first - in our view groundless - of the indicated interpretations.

Temporal scope of application

Moreover, the amendment does not contain transitional provisions, and therefore it must be assumed that it applies (including the provision of art. 55 a) to transportation services performed starting from January 1st, 2012.

Due to the above, taking an - in our opinion erroneous - assumption that art. 55 par. 5 creates an absolute prohibition to make the freight dependent on the weight or volume of the transported goods, one would conclude that the legislator did not create the entities commissioning transport a possibility to adapt to the rigors imposed in this regard in relation to the already negotiated and executed contracts. Such action of the legislator may, in our view, constitute an important argument for the legitimacy of the thesis that such an absolute prohibition has not been introduced by the amendment.

Legal sanctions

Assuming that art. 55a par. 5 of the Act establishes the prohibition of making the freight dependable on the mass or volume of the transported goods, it should be noted that - at the moment - neither the Act nor the Law on road transport, to which the paragraph 3 of the commented provision refers, does not provide for sanctions in the form of fines for its violation. With the above assumption, an agreement’s provision making the amount of freight dependent on weight or volume of the goods (with the assumption of its illegality) would involve certain consequences from the area of the civil law in the form of invalidity of such provision.

For this reason - taking into account the potential risk of taking an adverse interpretation for the entity ordering the transportation, the only completely safe way of adapting a business practice to the eventual requirements imposed by the Act would be changing the transportation agreements regarding the method of remuneration’s calculation. In the absence of such a possibility, it could be possible to rely on the first of the indicated alternative interpretations of the art. 55a par. 5 of the Act. It seems to be possible to adopt a standpoint based on an assumption that the rates for transportation were determined by the carrier and not by the sender. With such an interpretation one could not state that the sender makes the level of freight dependent on the mass (volume) of goods, and therefore a thesis on breach of the prohibition established in the commented provision of law would be groundless. Nevertheless, the possibility of adopting such an argument must be examined in each individual case.

With regard to the transportation contracts concluded in the future, for reasons of caution, until formation of a well-established practice and proven interpretation, it would be recommended to resign from determining the freight depending on the weight or volume of the goods. Another question remains how – in the light of the restrictions imposed under art. 55a par. 5 of the Act - such remuneration shall be reasonably and in an economically justified way established.

Karolina Klehr, aplikantka radcowska
Piotr Jurczak, radca prawny