Friday, 21 February 2014
10th Symposium of Lawyers
“Actors in the global logistics chain and road
transport operators: their roles, interactions
and interdependence”
The intermediaries: various legal situations
(conditions of access to the profession / contractual relationships)
The situation in Germany
Detlef Neufang
Fachanwalt für Transport- und Speditionsrecht
Lengsdorfer Hauptstr. 75
D-53127 Bonn
neufang@ra-neufang.de
Tel. 0228-9 25 35 34
Fax: 0228-25 08 35
BWVL
Freight Forwarder
- Spediteur Access to the market: Free
In contrary to the road transport, the access to the freight forwarding market in
Germany is not subject to any regulations and reglementations.
For forwarders there are – on national or EC-level – no regulations like in EC
1071/2009 or 1072/2009
Anybody who wants to run a freight forwarding enterprise needs to be recorded in
the commercial register
Access to the profession: Free
3-years apprenticeship in a forwarding enterprise & school
or
3-years study (at a cooperative state university that integrates academic studies and
work experience)= Bachelor of Arts. (Forwarding, transport & logistics)
or
Nothing
Freight Forwarder
- Spediteur The majority of carriers in Germany operate under the name „Spedition XY“
(=freight forwarder), even if they do not organise transports but just act as a
sub-contractor and carry goods with a truck from A to B
A majority of carriers refers on business letters etc to the
German Freight Forwarders' Standard Terms and Conditions
- Allgemeine Deutsche Spediteurbedingungen ADSp -
Contractual relationship
Freight Forwarder: „the architect of the transport“
The legal nature of the forwarding contract =
contract of agency
Responsibility for the organisation of the transport
The legal nature of a contract of carriage =
contract for work and services
Responsibility for the performance of the transport and the
delivery of the goods to the consignee at the right time, the
right place, without damage or loss
Freight Forwarder
Germany has quite detailed regulations in the
Commercial Code
(Extract from Book Four – Commercial Contracts)
Fifth Chapter
Forwarding Business
Section 453. Forwarding contract
(1) By virtue of the forwarding contract the forwarder is obliged to
arrange for the dispatch of the goods.
(2) The sender is obliged to pay the agreed renumeration.
(3) The provisions of this chapter only apply if dispatching goods is part
of the operation of a commercial enterprise. …
All translations of the sections of the German Commercial code were made by the German Association for Transport Law
(www.transportrecht.org)
Freight Forwarder
Section 454. Arranging for the dispatch of the goods
(1) The duty to arrange for the dispatch of the goods includes organisation of the carriage,
in particular
1. determination of the means and route of transort,
2. choice of performing enterprises, conclusion of carriage, warehousing and
forwarding contracts required for the dispatch, as well as providing information
and giving instructions to the performing enterprises, and
3. securing the sender‘s claim to compensation.
(2) The duties of the forwarder also include the provision of other agreed services relating
to the carriage such as insuring and packaging the goods, labelling them and clearing
them through customs. However, it is only if the agreement calls for it that the
forwarder shall be obliged to arrange for the conclusion of contracts for these services.
(3) The forwarder concludes the required contracts in his own name or, if he is authorised
to do so, in the name of the sender.
(4) In fulfilling his obligations the forwarder shall act in the interest of the sender and carry
out his instructions.
Freight Forwarder
Section 455.
Handling of the goods. Accompanying documents. Duties
to report and provide information
(1)
The sender is obliged to package and label the goods as far as neccessary and to make
available documents as well as provide all the information the forwarder needs to fulfil his
duties. If dangerous goods are dispatched, the sender shall, in good time and in form of a
text, inform the forwarder of the precise nature of the danger and, as far as neccessary, of
the precautionary measures to be taken.
(2)
The sender shall, even if he is not at fault, compensate the forwarder for demage and outlays
caused by
1. insufficient packaging or labelling,
2. failure to disclose the dangerous nature of goods, or
3. absence, incompleteness or incorrectness of the documents or the information required
for the official processing of the goods.
…
…
If the sender is a consumer, he is liable only in so far as he had acted culpably.
Freight Forwarder
Section 456. Due date for payment of renumeration
The renumeration is payable once the goods have been handed
over to the carrier
Freight Forwarder
• Section 458. Forwarder acting as carrier (Selbsteintritt)
• The forwarder is entitled to perform the carriage of the goods himself. If
he exercises this right he has, as far as the carriage is concerned, the rights
and duties of a carrier. In this case, he may charge the usual freight in
addition to the renumeration for his services as a forwarder.
Freight Forwarder
Section 459. Forwarding at fixed costs
If a fixed sum is agreed as renumneration which includes the costs of carriage,
the forwarder has, as far as the carriage is concerned, the rights and the duties
of a carrier or sea carrier. In this case, he may claim compensation for his
outlays only to the extend that this is customary.
Freight Forwarder
Section 460. Collective Consignment (Sammelladung)
(1) The forwarder is entitled to arrange for the dispatch of the goods together
those of another sender on the basis of a contract for a collective
consignment concluded for his own account.
(2) If the forwarder exercises this right he has, as far as the carriage as a
collective consignment is concerned, the rights and the duties of a carrier
or sea carrier. In this case, the forwarder may claim such renumeration as
is appropriate in the circumstances, not exceeding however the freight
usually payable for carriage of the goods if separate.
Freight Forwarder
The 3 cases explained above
- Forwarder acting as carrier (Selbsteintritt)
- Forwarding at fixed costs
- Collective Consignment (Sammelladung)
cover 99 % of all forwarding contracts
The freight forwarder, as far as the carriage is concerned, has the rights and duties of a carrier
- in cases of national transport according to the Commercial Code (HGB), Section 407 ff
- in cases of international road transport according to CMR
„As far as the carriage is concerned“,
= goods are damaged or lost while the physical movement of the goods (not while handling the
cargo!)
= the liability of the forwarder = liability of the carrier
Freight Forwarder
Example:
Freight forwarder agrees to organise a transort of goods from Bonn, Germany to
Palermo, Italy for a fixed prize of 1000 €. The forwarder choses a well-known
carrier with good repute; this carrier hands the goods over to a sub-carrier. Later
on, the goods are stolen from the truck of a sub-sub-carrier while the driver is
taking a rest-time on an unguarded parking place along the highway in southern
Italy.
Because the contracting parties had agreed on a fixed prize, the forwarder has, as
far as the carriage is concerned, the rights and the duties of a carrier. He is liable
for the loss of the goods according to Art. 17, 23, 29 CMR:
The carrier/forwarder shall be liable for the total or partial loss of the goods and for damage thereto
occurring between the time when he takes over the goods and the time of delivery, as well as for any
delay in delivery.
Limitation: 8.33 units of account per kilogram of gross weight
If the damage was caused by wilful misconduct of the forwarder (or his agents or servants or by any
other persons of whose services he makes use for the performance of the carriage), he shall not be
entitled to avail himself of the provisions which exclude or limit his liability or which shift the burden of
proof: Unlimited liability of the forwarder
Therefore, in Germany the distinction between a contract of carriage and a forwarding contract is less
important than in other countries.
Freight Forwarder
As far as legally possible, carriers/freight forwarders try to limit their liability
with general conditions.
German Freight Forwarders' Standard Terms and Conditions
- Allgemeine Deutsche Spediteurbedingungen ADSp –
- 1.Jan. 2003 –
The terms and conditions are recommended for use, starting January 1st, 2003, by the Federal Association of
German Industry, the Federal Association of German Wholesalers and Exporters, the Federal Association of
German Freight Forwarders and Logistics Operators, the Association of German Chambers of Industrie and
Commerce, and the German Association of Retailers. This recommendation is not obligatory.
ADSp are for more than 80 years THE Standard Terms and Conditions of the transport and logistic scene in
Germany.
Also on the market: General Conditions for Road Carriers, Forwarders and Logistic Enterprises
Vertragsbedingungen für den Güterkraftverkehrs-,
Speditions- und Logistikunternehmer - (VBGL) -13. June 2013 –
recommended by BGL
Freight Forwarder
ADSp
Area of application
2.1
The ADSp apply to all contracts for the transportation of goods, irrespective of
whether they concern freight forwarding, carriage, warehousing or other services common
to the forwarding trade; these also include logistical services commonly provided by freight
forwarders in connection with the carriage or storage of goods.
2.2
In the case of forwarding services regulated by sections 453 to 466 of the German
Commercial Law (HGB), the freight forwarder is only responsible for arranging the necessary
contracts required for the performance of these services, unless other legal provisions take
precedence
2.3
The ADSp are not applicable for contracts that deal exclusively with
- packaging,
- the carriage of removal goods and their storage,
- crane lifting, assembly jobs or heavy lift and high volume transports, except for normal
transhipment services of the freight forwarder.
- the carriage and storage of goods to be towed or salvaged.
2.4
The ADSp are not applicable for transport contracts with consumers.
Freight Forwarder
ADSp
2.7
In the relationship between a principal freight forwarder and an
intermediate freight forwarder, the ADSp are deemed to be the general terms and
conditions of the intermediate freight forwarder.
19.
Settlement
Claims arising out of the forwarding contract and other related claims may only be
set off against counter claims, if these are undisputed.
20.
Lien and retention
20.1
The freight forwarder has a lien on all goods in his possession or other
valuables in connection with any claim, whether due or not for any services for his
principal in accordance with section 2.1. This lien does not exceed the general legal
lien which applies.
20.2
The freight forwarder may exercise his lien for claims arising out of other
contracts with the principal only if they are undisputed or if the financial situation
of the debtor puts the claims of the freight forwarder at risk.
Freight Forwarder
ADSp
22.
Liability of the freight forwarder, cession of claims
22.1
The freight forwarder bears liability for all his services (section 2.1)
according to legal regulations. Unless specified otherwise, however, the
following shall apply.
22.2
If the freight forwarder is only responsible for arranging the contracts
required for the services requested, his responsibility is limited to the careful
choice of such third party service providers.
22.3
In all cases where the freight forwarder is liable for loss of or damage
to goods, his liability will be in accordance with §§ 429, 430 of the German
Commercial Law.
Freight Forwarder
ADSp
23.
Limitation of liability
23.1
The liability of the freight forwarder for loss of or damage to goods, with the exception of
warehousing on request, is limited:
23.1.1
to € 5 per kilogram of gross weight of the consignment;
23.1.2
in case of damage occurring to goods whilst being carried, the damage is limited - contrary to
section 23.1.1 - to the legally limited maximum amount specified for this type of carriage;
23.1.3
in case of a contract of multi-modal carriage - including sea transport - to 2 SDR per kg;
23.1.4
to € 1 million or 2 SDR per kg per claim, whichever is the higher.
23.2
If only individual packages or parts of the consignment were damaged or lost, the maximum liability
is calculated on the basis of the gross weight
- of the whole consignment if it is rendered valueless
- of that part of the consignment that is rendered valueless
23.3
The liability of the freight forwarder for damage other than to goods, excepting personal injury and
damage to goods that are not subject of the contract of transportation, is limited to three times the amount
payable for the loss of the goods, but not more than € 100,000 per event. §§ 431 section 3
Freight Forwarder
ADSp
25.
Burden of proof
25.1
The principal must provide evidence that goods of a specified quantity
and state were handed to the freight forwarder in apparent good order (§ 438
German Commercial Law). The freight forwarder must provide evidence that he
delivered the goods as he received them.
25.2
The burden of proof that goods were damaged whilst being transported
(Section 23.1.2) in the means of transport lies with the party claiming such
damage. If the place where the damage occurred is unknown, the freight forwarder
must specify the sequence of transportation by documenting the interfaces
(Section 7) if requested by the principal or the consignee. It is to be assumed that
the damage occurred during that stage of the transportation for which the freight
forwarder cannot provide a clean receipt.
25.3
The freight forwarder is obliged to ascertain, through appropriate
enquiries and obtaining evidence, where the damage occurred.
ADSp
If the sender cannot proof that the
goods were lost or damaged whilst
being transported, the freight
forwarder/carrier pays only 5 € per
kilo (about ½ of 8,33 SDR)
Freight Forwarder
Logistic Services
Forwarders, being an important part of the supply chain, more
and more leave their traditional fields of activities and perform
services – up to now – not common to the forwarding trade:
“Such logistics services may be activities for the principal or third
parties named by the principal, like, for example, order acceptance (Call
Center), treatment of goods, country- or customer-specific adaptation
of goods, assembly, repair, quality control, price labelling, shelf service,
installation or implementation of goods and commodities or activities in
connection with the planning, implementation, control or monitoring of
the management of orders, processes, sales, returns, disposals,
recycling and information technology. “
(From : General terms and conditions of logistics-services providers )
Freight Forwarder
Logistic Services
To these activities of the forwarders, the sections 453 ff of the German
Commercial Code and the ADSp do not apply.
The forwarders are subject to the BGB – German Civil Code – that generally
does not limit the liability of the contracting parties. If the forwarder causes a
damage and he had acted negligent he is not entitled to avail himself of the
provisions in CMR, HGB or ADSp which exclude or limit his liability or which
shift the burden of proof: Unlimited liability of the forwarder
Therefore, the Federal Association of German Freight Forwarders and Logistics
Operators tried to establish
General terms and conditions of logistics-services providers
Freight Forwarder
Logistic Services
14. Liability of the service provider
14.1 The service provider is only liable if he is responsible for the damage caused by him. The resulting legal and
contractual liability is limited to the forseeable, typical damage and
14.1.1 to 20,000 Euro per claim,
14.1.2 in the case of more than four claims with the same cause (e.g., assembly mistake) or production/delivery of goods
with identical deficiencies to Euro 100,000 independent of the actually number of claims.
This limitation of liability applies also to discrepancies between standard- and actual quantities delivered to the service
provider; such discrepancies are to be set off against each other in the case of both shortages and surpluses.
14.1.3 for all claims within a year to 500,000 Euro.
14.2 The above exemptions and limitations of liability also apply to extra-contractual claims against the service provider,
his employees and other parties assisting him in his work.
14.3 The above exemptions and limitations of liability do not apply to
14.3.1 fatal injuries, personal injuries and damage to health
14.3.2 as well as to binding legal stipulations regarding liability, e.g., the law on product liability.
14.4 The parties may agree to replace the above maximum sums with others against payment of a liability surcharge.
15 Qualified responsibility
The above mentioned exemptions from and limitations of liability do not apply to
15.1 violation with intent or gross negligence
> of significant contractual duties by the service provider, his managerial staff or any other person acting on his behalf,
> of other duties of the service provider or his managerial staff
15.2 If the service provider maliciously withheld information about the damage/deficiency or guaranteed the quality of
the logistics service
Freight Forwarder
Logistic Services
Shippers refused to accept the limitations of liability of the logistic service
provider. In contrary to the ADSp, the German market did not accept the
General terms and conditions of logistics-services providers
Internet Platforms: New players, new risks:
freight and vehicle exchanges in the www.
• TimoCom/Truck&Cargo, Transporeon etc.
• Truck&Cargo:
• Up to 450.000 freight and vehicle offers daily updated
• 100.000 Users from 44 European countries
• More than 516 million tons of freight per annum
• No specific regulation by law in Germany
• Service contract between Internet platform and user?
Internet Platforms: New players, new risks:
freight and vehicle exchanges in the www.
Security?
TimoCom: “Many companies are left with insufficient financial reserves.
Consequently it is no wonder that "black sheep" are to be found in this
industry, too. To counteract this situation, online platforms in particular
should be operated along the lines of: "Trust is good, control is better!"
We go even further. That means we do not only check new and existing
customers, but we also offer you a comprehensive security package. Find out
here about our security package TimoCom Secure which includes the following
modules: Access check | TimoCom Identify”
If goods are stolen by a “black sheep” that had been
checked and was found “good” before by Timocom (or
another truck&vehicle exchange), the sender can claim
his losses from TimoCom etc
Thank you
for your
Attention!