Could the DCFR be an answer to
the lack of harmonization in the
field of forwarding law?
Part II
Contract interpretation (& Liability)
dr. Wouter Verheyen
Erasmus University
HUB
outline
• Problem statement:
– National courts apply different interpretation rules
– National laws apply different liability rules
– Mainly (but not only) difference between commissionaire de
transport and freight forwarder.
– Attempts to create uniform forwarding law unsuccessful.
• Research question: Can a contractual incorporation of
harmonisation instrument (DCFR) take away existing divergences?
– Is contractual incorporation useful?
• Interpretation?
• Liability?
– Is contractual incorporation sufficient?
• Mandatory national rules?
Problem overview
Bel
Fault based
FF
limited
Ger+
Ned
Uniform
Ger
Contract
A
carrier.
mandatory
presumed
Fr.
CDT
Different interpretations: Status
questionis
• Extensive catalogue (+15) of elements relevant for
qualification & no hierarchy between different elements
• Developments in national (case) law give more/decisive
weight to specific elements BUT in different countries
– Different elements are taken into account
– Different weight is given
– the same element might have opposed consequences
• Consequence: diverging qualifications
Example: Parcel distribution companies: generally
qualified as carrier in “freight forwarder-countries” as
commissionaire de transport in France.
Reasons underlying the different qualification of
the parcel distribution companies
• Wordings of the contract: often very vague: FF-countries: “soft”
information duty: in case of doubt, qualification as carrier  in
France: no presumption
• Cargo consolidation: in Germany automatically liable as carrier
(Sammelladungsspediteur), in Belgium also element pro qualification as
carrier  in France activity typically performed by Commissionaire.
• Billing a lump sum: in Germany automatically liable as a carrier
(fixkostenspediteur), in other countries relevant element (sometimes
with only limited weight (f.ex. Belgium))  in France: argument pro
qualification as commissionaire de transport.
• “subcontracting the carriage”: Lack of material carriage is not taken
into account as a relevant element in FF-coutries, while it always played
a big role in France pro qualification as commissionaire de transport
(even more since CTF)
Can DCFR create uniformity in
interpretations?
• Only possible insofar DCFR can limit the discretionary
power of the national judge to this extend that contrary
interpretations are impossible.
• This condition is not fulfilled:
– Interpretation is in DCFR, just like in existing qualification case
law, based on two factors:
• wordings of the contract
• Broader context
– DCFR is not succesfull in eliminating the existing differences
(one exception: contra proferentem).
wordings of the contract
• similar to the rules existing today
– Art. 8:101 (1): common intention of the parties (art. 4.1.1 UNIDROIT &
5:101 (1) PECL)
– Art. 8:101 (3): in a way a reasonable person would interpret
wordings (art. 4.1.2 UNIDROIT & & 5:101 (3) PECL)
– Art. 8:102 (2): according to the particular meaning if the other party
was aware. (art. 4.2 UNIDROIT& 5:101 (2) PECL)
– Art. 8:105: terms should be interpreted in their context (art. 4.4
UNIDROIT & 5:105 PECL)
– Art. 8:104: precedence of individually negotiated terms (art. 5:104
PECL)
– Art. 8:106: interpretation in such a way that gives effect to the terms
(art. 4.5 UNIDROIT & 5:106 PECL)
– Art. 8:101 (1): Literal meaning is not decisive (art. 5:101 (1) PECL)
• Due to the practise of operating vague/ ambiguous
wordings not very useful
contra proferentem rule
• Can limit the divergence between France and other countries on this point
 can create “soft” information duty in all countries, also in France.
• However, only useful insofar as there is doubt => when a judge can
establish the qualification based upon the broader context, he will not
apply contra proferentem rule.
See also art. 5:103 PECL; and art. 4.6 UNIDROIT
Broader context
See also art. 5:102 PECL & 4.3 UNIDROIT
Broader context: observations
• Still extensive catalogue
• not binding
• No hierarchy
• Very open formulation
 Allows national judges to continue current practise.
 Example: parcel distribution:
French judge can still take into account consolidation, lump sum
and subcontracting as argument pro commissionaire  FF
countries will still take these elements into account as arguments
pro a qualification as carrier…
Conclusion: harmonization instruments
can’t change forwarding law
• DCFR not fit for uniform interpretation
• soft law unable to create uniformity
• What is the way forward in forwarding law?
DCFR not fit for uniform interpretation
• Contractual incorporation of DCFR does not create
uniformity in interpretation. (PECL and unidroit principles of
international commercial contracts have very similar rules
 same deficiencies)
• Uniformity seems to be only possible if:
– Interpretation is limited to the wordings of the contract/ if there is
as strict hierarchy (HOWEVER: problem: possible evasion
mandatory carriage law) OR
– In case the rules are more specific  not possible under general
harmonisation instruments.
soft law unable to create uniformity
• Even if a soft law instruments would exist that fulfil all
conditions to create uniformity in case law, then still
there is a strong hindrance to uniformity in practise:
– Choice of law for soft law instrument is not a choice of law
envisaged by Rome I-Regulation  possibility to refer to soft
law depend on the question whether national law allows this.
– Contractually incorporated soft law is superseded by
mandatory national law.
– Even though forwarding-law is to a large extend nonmandatory, in some situations the freight forwarder is held
mandatory liable as carrier (see supra: fixkostenspediteur,
Sammelladungsspediteur).
What is the way forward in
forwarding law?
• Sector conditions?
• Interpretation rules in sector conditions?
• See for example art. 3 Belgian forwarding
conditions: limited list of situations that cause the
forwarder to be qualified as carrier
• vicious circle?  interpretation clause in sector
conditions as hidden qualification clause? => In
how far is the judge bound?
• A new attempt to create uniform law?
Difficult to achieve, but maybe the only real way forward….
Common core, PECL and DCFR:
could they change shipping law?
Not on this point…