10th symposium of lawyers

10th Symposium of Lawyers

Friday, 21 February 2014

“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 GermanyDetlef NeufangFachanwalt für Transport- und SpeditionsrechtLengsdorfer Hauptstr. 75D-53127 [email protected]. 0228-9 25 35 34Fax: 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 1072/2009Anybody 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 & schoolor3-years study (at a cooperative state university that integrates academic studies and work experience)= Bachelor of Arts. (Forwarding, transport & logistics)orNothing

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 servicesResponsibility 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 ForwarderGermany has quite detailed regulations in the

Commercial Code(Extract from Book Four – Commercial Contracts)

Fifth ChapterForwarding 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 ForwarderSection 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, and3. 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 ForwarderSection 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, or3. 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 ForwarderSection 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 ForwarderThe 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 ForwarderExample: 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 theretooccurring 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 weightIf 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 ForwarderAs 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 ForwarderADSp

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.


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

ADSp22. 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.


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


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 ForwarderLogistic 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 ForwarderLogistic 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!

10th symposium of lawyers

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