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In our industry we often hear that drivers are asked to help with unloading or to do it by his own, without prior agreement with the carrier that such a situation might take place. But what about the responsibility in the event of damage to the goods during such loading/unloading?
Responsibility in domestic transport in Poland
Domestic transports operated by transport company are first and foremost subjected to specific provisions Transport Act „Prawo Przewozowe (PP)”.
According to art. 43 of that Transport Act, if agreement or specific provisions does not provide otherwise „cargo operations belong to the sender or recipient’s duties”. So if driver is involved in loading or unloading, he does it outside the scope of their professional duties.
Which means that employer of the driver does not bear the responsibility specified in art. 120 §1 Labor Code („If the employee causes damage to a third party in the performance of his duties, only the employer is obliged to repair the damage”) or in Civil Code, art. 430 („Who, on his own responsibility entrust the performance of activities to the person who is obliged to follow his instructions is responsible for the damage caused by that person during that activity”).
However, carrier is liable for loss or damage of the shipment starting from loading to the moment of delivery. (art. 65.1 Transport Act), which is during the time of transport service. It is assumed that goods are released when receipt is given the documents and the shipment is available for unloading.
Responsibility in international transport
International transport is regulated by the Convention on the Contract for the International Carriage of Goods by Road (CMR).
CMR says similar: „(…) the carrier shall be responsible for the acts and 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.”(art.3 of CMR).
What about carrier’s liability when he explicitly agreed for loading/unloading done by the driver?
Then he bears responsibility for damage of the goods. However he should have insurance which includes loading/unloading. Most of the carriers’ liability insurance does not cover such liability. So before the client ask for that kind of service he should verify if his carrier owe that kind of insurance.