1 September, 2022 |

CAN THE DRIVER LOAD / UNLOAD THE GOODS?

In our industry, we very often encounter the practice of asking the driver for help with unloading or unloading himself, without prior agreement with the carrier that such a situation will take place. But what about the liability in the event of damage to the goods during such loading / unloading?

Responsibility in domestic transport in Poland

Domestic transports performed by a transport company are primarily subject to the detailed provisions of the Transport Law (PP).

Pursuant to Art. 43 of this Act, unless the contract or a specific provision stipulate otherwise, “loading activities are respectively the responsibility of the sender or recipient”, so if such a driver performs loading / unloading activities, he acts only privately, outside the scope of his professional duties.

This involves the exclusion of the liability of the company employing such, and hence, the driver’s employer is not liable under Art. 120 §1 of the Labor Code (“If an employee causes damage to a third person while performing his / her work duties, only the employer is obliged to repair the damage.”) Or the provisions of the Civil Code, Art. 430 (“Whoever, on his own account, entrusts the performance of an activity to a person who, in the performance of this activity, is subject to his management and is obliged to follow his instructions, is liable for damage caused through the fault of that person in the performance of the activity entrusted to him.”).

The carrier, on the other hand, is of course responsible for the loss, defect or damage to the shipment arising from its acceptance until its delivery. (Article 65.1 of the PP Act), i.e. during transport. It is assumed that the goods are released at the time the documents are handed over to the recipient and the shipment is made 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).

The CMR Convention is similar: “(…) the carrier is responsible, as for its own acts and omissions, for the acts and omissions of its employees and all other persons, when these employees or persons act in the performance of their functions” (Article 3 of the Convention). Therefore, if the contract of carriage does not include loading / unloading by the driver, he goes beyond his functions while excluding the carrier’s liability.

What about the carrier’s liability when he expressly agrees to be loaded / unloaded by the driver?

Then he is responsible for damage to the goods. However, it should be clearly stated that he should have insurance that covers loading / unloading. Most carrier liability insurance (OCP) does not cover such liability. Therefore, before such an activity is ordered, the owner of the goods should verify such liability by reviewing the OCP agreement.