THE RISK OF ACCIDENTAL LOSS OF OR DAMAGE TO MERCHANDISE SHIPPED BY SEA

A substantial period of time often passes between entering into a sales agreement and its execution. During this period goods can be shipped, stored or be under other circumstances that render impossible proper control over them by both vendor and buyer and at the same time increase the risk of accidental loss of or damage to the goods. The risk of accidental loss or damage entails encumbering one of the parties to the agreement with negative consequences of such events. From the standpoint of the buyer, such ramifications amount to the obligation to pay, whether or not the goods have been damaged or lost and the possibility of demanding the fulfillment of mutual obligations from the vendor could not be exercised. The determination of share in the risk of accidental loss or damage of goods is a difficult task due to conflict of interest existing between the parties. The objective of the vendor is to transfer the risk as soon as possible while the buyer is eager to accept the risk as late as possible. This issue becomes crucial for goods that are shipped by sea (the so-called „goods at sea” since sea shipment in most cases takes place over long distances. The traditional stance says that the transfer of risk occurs at the moment of entering into an agreement, transfer of ownership, transfer of physical control over merchandise and also at the point when the vendor has fulfilled all contractual obligations. In terms of „goods at sea”, new solutions are being explored, guided by the rule that the party that can obtain cheaper insurance against loss or damage of merchandise and is able to be paid effectively and without unnecessary delay for the loss or damage by the insurer and shipping company as well as wield better control over the merchandise during shipment, should be obliged to be encumbered with the risk. Article 68 of CISG provides for special rules on the transfer of risk of loss or damage of the goods during shipment. The lack of a corresponding regulation in the Polish law should be compensated for by an appropriate interpretation of Articles 544 and 548 of the Civil Code