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7th Symposium of Lawyers - Judit Somlo
“Diversity of controls and sanctions in goods road transport: helping your hauliers through the maze of unharmonised applications” The Consignor’s Responsibility in the Framework of the Instructions given to the Transport Operator Dr Judit SOMLÓ, lawyer, Legal Advisor of MKFE, Hungary Anybody volunteering as a transport operator in Hungary today is balancing at the edge of a cliff. He or she will face unexpected obstacles when carrying out transport operations and should often suffer from penalties even if not due to his/her own fault. Therefore, this profession is recommended only to the most undertaking persons. I could not tell how many pieces of legislation should be well known by a transport operator as a minimum requirement in other countries. Their number is almost 60 laws and other regulations in force in Hungary. Their changes should be regularly followed up, all their provisions are strictly imposed on operators by the authorities and infringements are severely sanctioned. Ideally, the responsibility for observing the rules should be shared with the consignor, but the application of the co-responsibility principle is rare in Hungary. Looking at the consignor’s responsibility, we should distinguish two types of responsibilities: on the one hand, there is the contractual responsibility in the relations between the contracting parties, on the other hand there is the responsibility enforced by authorities in administrative and penal processes. The legal situation should be investigated in this double context of responsibilities in Hungary despite the fact that it is often difficult to make a clear distinction in legal practice. Contractual conditions agreed upon may lead to responsibilities of administrative or even penal character and, vice versa, administrative and penal legal provisions may impact on the implementation of contractual responsibilities. 1. CONTRACTUAL RESPONSIBILITY The Civil Code disposes of contractual responsibilities. It splits the tasks between the consignor and the transport operator and the parties are responsible to fulfil their own tasks and obligations. These provisions of the Civil Code are however not obligatory, the parties can agree on differing terms. One general contractual condition is valid for all contracts without exception that says that parties are obliged to co-operate with and consider justified interests of the other party when negotiating a contract. Before concluding a contract they must inform each other about all important circumstances of their future business relations. Negligence in this respect falls under the responsibility of the party failing to meet this requirement and it can lead to the obligation to compensate the other party suffering from such a carelessness. 1.1 The Consignor’s Contractual Responsibility In accordance with the special provisions of the Civil Code on the transport contract, the consignor is responsible for activities listed in the law as its obligations. These are the following:
It is also the consignor’s obligation to fulfil special conditions of the transport operation required by-laws or orders issued by the authorities. 1.2 Shared Contractual Responsibility A failure committed when packaging the cargo [1.1a)] may involve consequences of administrative or penal nature; for example this is the case if the consignor hides in the packed cargo smuggled goods or drugs or if as a result of qualitative packing faults, pollutants damaging nature or human environment are emitted into the air, on the soil or in natural waters. If this happens, a process is introduced against the driver in any case and it is the task of the investigating agency to clarify who has committed the penal offence. In such a process, there is a chance to prove that neither the driver, nor the transport operator has had the opportunity to verify the contents of closed packages. Thus they will be freed from the responsibility and the process will be re-conducted against the consignor. If however the packaging does not meet the requirements mentioned in point 1.1.a) above and this is visible by observation, a careful transport operator will undertake the transport order only if instructed so in writing by the consignor and at the latter’s risk but it should by all means refuse the transport order if defective packaging endangers third persons and / or their property. Transmitting the necessary documents [(1.1b)] falls also into the sphere of responsibility of the consignor who must register in the documents the correct cargo denomination and weight. In case of a false cargo weight indication, the transport operator may over-load the vehicle and untrue information in respect of the nature of goods carried may cause the infringement of rules governing the transport of special goods (e.g. dangerous goods or waste materials). In such cases, authorities impose penalties on the transport operator who then should claim compensation for the paid fines from the consignor in the framework of a separate civil lawsuit whereby the operator should prove that the false information was not recognisable at the moment of starting the transport operation. Loading the vehicle [(1.1c)] is the obligation of the consignor but securing the load is already the obligation of the driver and he should face any possible responsibility of penal nature if incorrect load securing leads to an accident. Instructions [(1.1d]) given by the consignor are obligatory for the transport operator. But instructions which can be implemented only by law infringement must not reasonably be accepted and observed. In the opposite case, the responsibility falls on the transport operator. If the instruction received endangers a quick, efficient and safe conduct of the transport operation, but this instruction is repeatedly provided by the consignor, the operator is obliged to comply except if this puts third parties or their property at risk. What is the situation if the consignor defines such transport schedules which can be followed only by violating speed limitations considering the transport distance to be covered? It is clear that such an instruction can be observed only by breaking the rules which are there to be observed by all means by the operator and the driver, thus putting third parties and their property at risk. Therefore, the operator and the driver must reject such instructions. But if they still obey, the driver will be responsible for speeding, furthermore the operator and/or the holder of the vehicle will also be included in this responsibility according to new regulations in force since 1 January 2008. In Hungary, the consignor has no responsibility whatsoever of penal or administrative character for the infraction of the traffic code! What is to be considered if fulfilling an instruction did not lead to exceeding speed limits but „only” to breaking rules regulating obligatory driving and rest time rules for drivers? Due to the fact that infringing these rules might endanger third persons’ life and property (e.g. as a possible consequence of driver fatigue), the transport operator must reject such an instruction. Even if no accident is caused, the holder of the vehicle and the driver may be subject to severe penalties. If the operator accepts such an instruction, it either automatically agrees to the risk of the serious consequences of an accident or it employs two drivers for the given task (while of course increasing the freight rate offered to the consignor). If it is mentioned by the parties in the contract that the transport should be carried out by two drivers, this frees the consignor from its responsibility. If however the contract keeps silent about this matter, the consignor’s responsibility is at stake in the context of Regulation 561/2006/EC but so far there has been no precedent for its application in Hungarian court practice. Penalty is always imposed by the authorities on the vehicle holder or the driver. The holder of the vehicle may claim the paid penalty in a separate civil law suit as a reimbursement whereby the question of proof will be the contents of the contract. If it can be proven that the parties have agreed on the use of two drivers, the consignor is not responsible for possible infractions since there was a chance and even a contractual obligation for the operator to carry out the transport task in full compliance with the law. If in the course of a law suit it is proven that the parties agreed to carry out the operation with one driver thus infringing the driving and rest time rules, the responsibility of the operator and the consignor will be applied. The latter is the case only in theory however as explained above. 2. ADMINISTRATIVE AND PENAL RESPONSIBILITY In this category we should consider the following areas of regulation: 2.1. Traffic code Most of the related obligations are binding for the transport operator and just some regulations put the burden on the consignor: e.g. in case of bulk cargo or dangerous goods transport. In general, for the same infringement, the authorities may make the driver responsible in the penal case or that of an offence and the transport operator in the administrative sense. In case of infringements of the penal responsibility, it belongs to the Court, in case of offences of general nature to the Notary of the local Government and the Police and in administrative penalty cases to the Traffic Authority, the Customs Administration, the Police, the Catastrophe Prevention and Protection Agency or the Employment Office to evaluate the case and impose sanctions if need be. Putting other people’s life or corporal integrity at risk or causing serious injury or even death by breaking the rules of the Traffic Code have obvious penal implications and the driver must face full responsibility since he/she is directly summoned to observe the law. If the danger situation and the death or injury of a person is the result of an action by the consignor, it will have to face its share of the penal responsibility as a co-responsible person, for example in case of environmental pollution or poisoning due to using inappropriate packaging material for dangerous goods or in case of an accident caused by an overweight vehicle resulting from providing incorrect cargo weight information given by the consignor In case of smaller traffic offences, a procedure will usually be started against the driver and there is no question to raise the consignor’s responsibility. As from 1 January 2008, according to a new regulation , the holder of the vehicle or under certain conditions the driver may be imposed by a special administrative penalty in case of the infringement of certain traffic rules listed in the regulation beyond the possible consequences of offences or penal acts. For the infringements of the listed traffic rules, the responsibility of the consignor can never be identified (e.g. for speeding, crossing an intersection at red lights, driving in the wrong/opposite direction, etc.). Whether or not there is an accident or a dangerous situation in such cases, the authority may impose an administrative penalty of between HUF 30’000-300’000 (Euro 120-1’200). There is also a so called „objective responsibility” of the holder of the vehicle, heavily debated by lawyers in Hungary, which has been introduced by the new regulation. If the vehicle holder can successfully refuse this responsibility under certain conditions, the penalty will be imposed on the person driving the vehicle. But if the driver is well identified but he/she is unable to pay the penalty, it is still the holder of the vehicle who will be forced to pay. Once more, the consignor has no responsibility in such cases. A number of organisations, among them the Hungarian association MKFE, contest this new regulation on the „objective responsibility” of the holder of the vehicle and have proposed to the Constitutional Court to declare this rule unconstitutional. 2.2 Split of Responsibility in respect of Special Cargo The European Agreement on the International Transport of Dangerous Goods by Road is in force in Hungary for domestic and international road transport and it defines the tasks and responsibilities of the consignor and the transport operator. Obligations of the persons packing the cargo and loading the vehicle are also determined. The transport operator must not start the transport operations so long as the requirements have not been met. If irregularities cannot be eliminated, authorities should normally support the operator in its conduct with their own means. If the consignor did not inform the operator about the goods’ danger class, in accordance with legal provisions governing the transport contract, the cargo should be unloaded, destroyed or neutralised. All related costs should be covered by the consignor as well as the penal and administrative consequences if any irregularity is not recognisable for the transport operator when taking over the cargo. There is no way to deviate from the rule in case of dangerous goods transport which targets the protection of public interests. In case of an irregular transport of dangerous goods, both the consignor and the transport operator can be penalised in accordance with the regulation on offences up to HUF 100’000 (Euro 400). In addition, an administrative penalty may also be imposed for the same irregularity. This penalty falls in-between HUF 50’000-800’000 (Euro 200-3’200) based on a specific list. Authorities may fine the transport operator and/or the consignor in function of who has committed the infringement of the provisions of the ADR Convention. When transporting cargo in bulk either the consignor or the person loading the vehicle is obliged to prepare a special vehicle volume certificate or a declaration containing the information on the place of loading. These documents, established by using certified weigh bridges for vehicle and axle weight as well as cargo weight measurements, should be handed over to the driver. If when checking, the competent authority finds that there is an overload contrary to information contained in the transport documents, the transport operator is obliged to inform about this fact the person in charge of preparing the documents in order to prevent overloading in the future. If the operation is carried out without a vehicle volume certificate or the corresponding declaration, a penalty for the offence may be imposed on the driver up to HUF 100’000 (Euro 400), while the violation of rules with regard to documentation may be penalised as an offence also up to HUF 100’000 which is imposed on the consignor. The non-observance of weight restrictions or traffic bans on HGV traffic may lead to an imposition up to HUF 100’000 against the driver. In case of the lack of licence for the movement of an overweight vehicle, an administrative penalty should be paid by the transport operator. The vehicle holder, i.e. the transport company is in charge of observing the administrative rules of transporting perishable foodstuffs and live animals. In the contrary case, a penalty between HUF 50’000 and 800’000 (Euro 200-3’200) may be imposed. The rule is that if several persons are responsible for the offence, the penalty should be divided according to their shares of responsibility. In this context therefore, in theory it is possible to define the responsibility of the consignor but so far in practice there has not been any Court decision on such responsibility sharing in Hungary. It falls under penal responsibility to transport waste without an appropriate licence. Legal consequences are to be shouldered by the driver as the person who has committed the infraction as well as the transport operator, as instigator, and in function of the legal situation even the consignor who may have acted also as an instigator. 2.3 Observance of Rules Governing Drivers’ Rest and Driving Time It is the task of the transport operator to organise the transport activity in such a way as to observe these rules. In case of exceeding driving time, either both the driver and his/her company or only the company is penalised subject to the situation. The present Hungarian regulation contains the principle of responsibility sharing in case there are several responsible persons but it does not explicitly define the consignor’s responsibility despite the fact that Article 10 Paragraph 4 of Regulation 561/2006/EC obliges also the consignors, the shippers and the forwarders to apply contractual conditions allowing compliance with driving and rest time rules. The present regulation is uncertain whether to fine the transport operator or the driver in case of infringing rest and driving time rules therefore there is no consistent Court practice in Hungary. 2.4. Regulations on the vehicles It is the responsibility of the transport operator to keep the vehicle in good technical conditions allowing the required transport operation. The responsibility of the consignor is excluded. 2.5. Obligations regarding licences and documentation Most of these rules oblige the transport operator whose responsibility is to obtain the documents needed for the transport operation, for the driver identification and for the use of the vehicle and it is obliged to present these to the controlling authorities upon demand. In this respect the responsibility of the consignor may be involved only if documents provided by the consignor (e.g. for transporting special cargo or customs treatment) contain incorrect information or if they have been forged. Missing documents and licences or their invalidity involve the holder’s or the driver’s responsibility. *** In conclusion, we can say that based on practical experience it is easier for authorities to sanction the transport operator even if the fact of shared responsibilities can be established between the operator and the consignor. Retaining a vehicle as a tool to force the payment of the penalty is much easier than to define the appropriate shares of responsibility and decide accordingly. The result is the generalised sanctioning of transport companies. In the present transport market situation characterised by an important capacity over-supply, the possibility for transport operators to file a civil lawsuit against the consignor for the reimbursement of penalties paid as a consequence of faults by the consignor is not an ideal solution in particular if difficulties of presenting convincing proofs or the lengthy Court procedures are considered inhibiting even justified claims to triumph. In Hungary, the draft new Civil Code has been discussed with civil society groups and it will be submitted to the Parliament in the near future. In this draft, there are new distinctive provisions on the responsibility of the consignor and the transport operator as well as on splitting the responsibility between the two. This new law will expectedly ease the position of the transport operator by confirming the consignors’ obligations which sooner or later may result in better delimiting the individual responsibilities identified in sanctioning procedures conducted by authorities. ***** |
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