General terms and conditions
Loading and transport conditions
(bill of lading conditions as of 2010)
1. We process the transport orders accepted by us exclusively on the basis of the following loading and transport conditions, which correspond to the international loading and transport conditions for inland shipping of the Association for European Inland Shipping and Waterways.
2. Remork orders are carried out by us on the basis of the European push conditions (as of May 1997).
3. In addition, the Budapest Convention on the Contract for the Carriage of Goods by Inland Waterways (CMNI) applies.
International Conditions of Loading and Transport (IVTB)
in the 2010 version
§ 1 Definitions
1. “Freight contract” means any contract, regardless of how it is called, in which a carrier undertakes to transport goods on inland waterways in return for payment of the freight.
2. “Carrier” means any person by whom or on whose behalf a contract of carriage has been concluded with a consignor.
3. “Executing carrier” means any carrier who actually carries out the transport of goods in whole or in part independently.
4. “Consignor” means a person by whom or on whose behalf a contract of carriage has been concluded with a carrier.
5. “Consignee” means the person authorized to receive the goods.
6. “Involved in the cargo” means sender and recipient.
7. “Shipping document” means a document proving a contract of carriage and the acceptance or loading of the goods by a carrier and which is made out in the form of a bill of lading or a bill of lading or any other commercial document.
8. “Goods” do not include towed or pushed ships and do not include baggage and vehicles of the persons carried; If the goods are loaded in a container, on a pallet or in or on a similar transport device, or if they are packed, the term “goods” also includes this transport device or the packaging, if provided by the sender.
9. “In writing”, unless otherwise agreed by the parties concerned, includes the case that the information is contained in electronic, optical or similar means of communication, including, but not limited to, telegram, facsimile, telex, electronic mail or Electronic Data Interchange (EDI), provided the information is available in such a way that it can be used for future reference.
10. “Dangerous goods” are goods that are described and / or designated as dangerous substances in accordance with ADN / ADNR and / or other nationally or internationally applicable and coming into force conditions, as well as all goods of which due to their properties or their condition This could pose a risk to the environment, people, the ship and / or the cargo.
11. “CMNI”: The Budapest Convention on the Contract for the Carriage of Goods by Inland Waterway.
§ 2 Legal basis
1. All inland waterway transports accepted by the carrier are based on the following conditions.
2. All provisions are also declared to be an integral part of the bill of lading or the waybill.
§ 3 Bill of lading and bill of lading
1. The carrier is only obliged to issue a bill of lading and / or a bill of lading and / or a bill of lading if this was agreed upon when the contract of carriage was concluded.
Waybills are not securities. They cannot be transferred or pledged. In this case, the carrier is entitled to deliver the goods to the recipient named in the consignment note.
Bills of lading are securities made out to names or orders. The goods are only delivered against the return of the properly transferred original bill of lading to the carrier or his authorized representative. An original bill of lading and copies of the bill of lading will be issued. If, as an exception, several original bills of lading are issued, the return of only one original to the carrier or his authorized representative will render the remaining originals null and void.
In the case of a bill of lading issued to order, the carrier can request that a registration address be given.
2. The carrier is entitled to make reservations in the freight document
a) with regard to the size, number or weight of the goods, if he has reason to believe that the information provided by the sender is incorrect or if he does not have sufficient opportunity to verify this information, in particular because the goods have not been counted, measured or weighed or because, without express agreement, the size or weight has been determined by means of calibration;
b) with regard to marks that are not clearly and durably affixed to the goods themselves or, in the case of packaging, to the containers or packaging;
c) regarding the external condition of the goods.
3. If the clause “type, number, size or weight unknown” or an equivalent note has been included in the freight document, the information about the goods contained in the freight document does not bind the carrier unless it is proven that he knew or should have known the type, number, size or weight of the goods.
4. If the carrier fails to note the external condition of the goods or
to make reservations in this regard, it is assumed that he noted in the shipping document that the goods were in good external condition.
5. Has the goods been stowed in a container or in the cargo hold of the ship as specified in the shipping document, which has been sealed by a person other than the carrier, his servants or agents, and neither the container nor the seal are until the Port of discharge or place of delivery is damaged, there is a presumption that loss of or damage to the goods did not occur during the transport.
§ 4 Loading point, loading and stowage, deck load
1. The sender determines the loading point. If the loading point can be moored at the loading point for reasons for which the ship is not responsible or only at special expense, or if the ship has to leave the loading point for these reasons, the carrier can request a different loading point and a different type of loading. The resulting costs and other additional expenses for ship and cargo are borne by those involved in the cargo, who are jointly and severally liable for this. The right to demurrage remains unaffected. If the sender does not meet his obligation to determine a suitable loading point, the carrier can terminate the freight contract and demand full freight and reimbursement of the additional costs, including any demurrage.
2. The sender is obliged to ensure that the ship can arrive safely at the place he has designated for loading, lie there, load and depart safely from there.
3. The carrier is obliged to present the ship ready for loading at the loading point.
4. The sender is obliged to load the goods on board the ship, to stow them safely for transport, to trim and secure them. The carrier is entitled to issue instructions for the traffic safety of the ship or to avoid damage. The sender is obliged to follow this instruction.
5. In accordance with the customs in inland shipping, the carrier has the right to load the goods in whole or in part on the deck of the ship or in open ships.
6. The sender is liable for damage to the ship caused by the loading work, unless the damage is due to the fault of the carrier
§ 5 Labeling and delivery of the goods
1. When placing the order, at the latest before the start of the loading of the means of transport, the sender must provide all information necessary for the transport, the goods and the packaging, type, condition and quality in the customary manner and to hand over all necessary accompanying documents, in particular due to port, customs, health or other regulations, with the goods.
2. In the case of the transport of dangerous goods (§ 1 Clause 10), the sender is obliged to clearly indicate the type of danger and the precautionary measures to be taken for each individual case when placing the order. When the goods are taken over, the carrier and his agents are to be given the written instructions and other documents in accordance with the applicable regulations. Customary names for such substances or other information are not sufficient.
3. The sender guarantees the correctness of the description of the goods in accordance with Paragraphs 2 and 3 as well as the information on characters, number, quantity, weight and / or volume in accordance with Paragraph 1 at the time of acceptance. He is responsible for all direct and indirect losses, damage and other disadvantages resulting from inaccuracy as well as for all costs arising from this. In the case of dangerous goods, the carrier can, at the expense of those involved in the cargo, delete the goods that are the subject of the complaint, put them on land, transport them back or, in urgent cases, even destroy them without being liable for any damages.
4. The carrier is not obliged, but is entitled to check whether the information given to him is correct and complete
5. If the ship is
stopped or prevented from entering or leaving a port due to the lack, inaccuracy or incorrectness of the information or accompanying documents or due to disregard of any regulations on the part of those involved in the cargo, or if the goods are confiscated, the parties involved in the cargo are liable to the carrier for all resulting delays, damage, costs, fines and disadvantages as well as for demurrage.
6. If the carrier has to
make declarations to authorities, customs offices, public employees, railway administrations, public or private companies with regard to the cargo, to issue, treat or sign documents, he shall only act in the name and for the account and risk of those involved in the cargo.
He is also liable for omissions, loss or non-delivery, only in the case of gross negligence. If third-party companies, e.g. frontier freight forwarders, are involved, liability is only assumed for their selection.
§ 6 Choice of vehicles and transport routes, reloading and lighter law
1. The transport is carried out with vehicles determined by the carrier. The carrier can commission other carriers to carry out the transport.
2. The carrier assumes no obligation to transport the goods in a specific order, on a specific route or with a specific ship. The goods are to be transported within the period that is reasonable to allow a careful carrier, taking into account the circumstances of the voyage and unhindered shipping.
3. The carrier is entitled to load, lighten or unload the goods in whole or in part, and / or to store them in warehouses or on land, if the circumstances or the interests of the ship or the cargo make it necessary . The parties involved in the load are jointly and severally liable to the carrier for the additional costs incurred as a result, unless the measures taken were necessary through the fault of the carrier.
4. The reloading, lightening or unloading in ships or warehouses as well as storage are done in the name, for the account and at the risk of those involved in the cargo.
5. In the cases according to Paragraphs 3 and 4, it is the responsibility of the parties involved in the cargo to maintain continuous insurance cover.
§ 7 Unloading point, unloading
1. The parties involved in the cargo determine the appropriate unloading point. The provisions contained in § 4 Paragraph 1 and Paragraph 2 for the change and security of the loading point apply accordingly to the change and security of the discharge point.
2. The parties involved in the cargo are obliged to give the carrier instructions for unloading and customs clearance before the ship arrives at the port of discharge; Otherwise, the carrier has the right to take all measures that appear necessary in the name and at the expense and risk of those involved in the cargo.
3. In the case of optional shipments, the port of destination must be notified in writing to the carrier or the skipper at least twelve hours before the ship arrives at the first optional port. The sender and recipient are jointly and severally liable to the carrier for additional costs that arise due to the late notification of the port of option.
4. The ship’s readiness to extinguish can be reported to the extinguishing office at any time.
5. The parties involved in the cargo are obliged to unload the goods from the ship.
6. The
parties involved in the cargo are jointly and severally liable for damage to the ship caused by the fire-fighting work . If the damage is due to the fault of the carrier, the parties involved in the load are not liable.
7. The ship is to be unloaded free of any cargo residues. If the unloading point does not comply with this obligation, the carrier is entitled, upon request, to remove the remains of the cargo or have it removed at the expense of those involved in the cargo.
§ 8 Loading and unloading times and demurrage
1. Unless otherwise agreed, the respective regulations at the loading or unloading location on loading and unloading times apply.
2. If the agreed loading and unloading times or those applicable at the loading or unloading location are not adhered to, the carrier is entitled to claim demurrage or lost profit.
Further claims for damages remain unaffected.
§ 9 Termination of the contract of carriage, delay in loading
1. Before goods have been loaded on the ship or made available to the carrier, the sender is entitled to terminate the contract of carriage.
2. If after the expiry of the time within which the goods must be loaded onto the ship by the sender or made available to the carrier, for whatever reason, no goods have been loaded onto the ship or made available to the carrier, the carrier is the carrier without the need for a reminder, is entitled to terminate the freight contract.
3. If after the expiry of the time specified in paragraph 2, for whatever reason, the agreed goods have only been partially loaded onto the ship or made available to the carrier, then the carrier is entitled to cancel the contract without the need for a reminder cancel or start the trip. In the event of termination, the sender is obliged, at the carrier’s request, to unload the goods that have already been loaded or, if the voyage is commenced and it is not possible to leave the ship without stowing the goods already stowed again, to stow them again.
4. The terminations mentioned in paragraphs 2 and 3 are declared by means of an oral or written notification or another message, the receipt of which can be clearly proven. The contract ends when the notice of termination is received, but not before the goods are deleted.
5. If the sender pays the freight forwarder the full freight before the end of the time specified in paragraph 2, the freight forwarder is obliged to begin the journey with some of the agreed goods upon request. The carrier is entitled to accept other goods instead of the missing goods, without being obliged to offset the freight he receives for the transport of these goods against the freight to be paid by the sender. If the start of the journey is not possible without renewed stowage of the already stowed goods and the additional cargo, the sender is obliged to stow again at the request of the carrier.
6. This paragraph does not apply in the case of time chartering.
§ 10 Obstacles to delivery, deposit and emergency sale
1. If the delivery of the goods is refused by the intended recipient or the payment of the claims on the goods or if there is any other
obstacle to delivery or if the recipient does not report, the carrier must inform the sender and obtain his instruction. If this is not feasible under the given circumstances or if the sender is in default of giving the instructions or if it is unreasonable for the carrier to carry out the instructions, he is authorized to store the goods in a public or private warehouse in the name of, for the account and at the risk of those involved in the cargo , to be laid in a barge or on land or to be handed over to a forwarding agent.
2. If the agreed unloading time or, in the absence of such an agreement, the provisions on the unloading time applicable at the place of unloading are not adhered to, the carrier is entitled to delete the goods himself or to have them deleted or to deposit them in accordance with paragraph 1 at the expense or risk of the parties involved in the cargo leave or hand over, without prejudice to demurrage claims. The freight carrier reserves the right to make further claims for damages that arise as a result of deletion not being carried out on time.
3. Depositing the goods in a barge or on land or handing them over to a forwarding agent is deemed to be proper delivery. The carrier reserves the right of retention or lien.
4. If the goods are not accepted within two months of being deposited, the carrier is entitled, without prior notification or threat, and without official / judicial authorization, to sell the goods privately or to have them publicly sold or auctioned. If the goods are subject to rapid spoilage or if they are subject to maintenance or considerable storage costs or if their value does not cover the costs incurred by the carrier, the carrier is entitled to an immediate sale or auction without observing the two-month period.
§ 11 Freight
1. Unless otherwise agreed, the freight includes transport from the free stowed barge (loading port) to the free arrival barge (port of discharge). It is calculated at least according to the gross weights, quantities or dimensions of the goods declared in the ship’s documents. If higher weights or quantities are shown in other papers or if these are determined by weight or control tests, these are decisive for the freight calculation.
The freight is due for payment upon delivery of the goods.
2. The loading, stowing, fastening and unloading costs as well as all other costs, expenses and expenses are to be reimbursed in addition to the freight, unless they are expressly included in the agreed freight or transfer rate.
3. The freight agreement requires open and unimpeded shipping. All additional costs and expenses incurred compared to the normal course of a ship journey are to be borne by the parties involved in the cargo, unless they are due to the fault of the carrier.
4. The freight rates are based on the operating costs, exchange rates and public charges existing at the time of the conclusion. Any extraordinary increase, in particular in fuel costs, on-board wages and public charges during the execution of the freight contract, entitles the carrier to adjust the freight rate to the changed conditions or to withdraw from the contract in the case of batches that have not yet been loaded.
5. The sender is liable to the carrier for the freight, missing freight, freight surcharges, costs, expenses, fees and other claims on the goods as well as for demurrage or lost profit. The sender is not released from this liability by delivering the goods without payment or by not exercising an existing lien. The recipient assumes the total liability by requesting delivery of the goods or otherwise disposing of them. If a bill of lading is issued with a “freight prepaid” clause or a similar clause, the recipient is not liable for the freight.
§ 12 Full Freight, Missing Freight
1. The carrier is entitled to full freight if:
a) the load is only partially delivered;
b) The sender or recipient
request that the goods be unloaded in the port of loading or in an intermediate port ;
c) the continuation of the journey is permanently or temporarily prevented for reasons for which the carrier is not responsible, or the journey is only partially carried out, or
d) the goods have been destroyed, perished, confiscated, confiscated, damaged, reduced or otherwise worthless.
2. After the start of the journey, the sender and recipient cannot withdraw from the contract. However, in return for payment of the full freight and all costs and additional expenses associated with unloading on the part of those involved in the load, the freight forwarder is obliged to unload the goods in the port of loading or in another port along the route.
3. The carrier is also entitled to half of the freight if a) the sender cancels the contract of carriage in the case of Section 9 paragraph 1) or b) the carrier cancels the contract of carriage in the case of clause 9 paragraph 2).
4. In addition to the full freight or half of the freight, the freight carrier is to be reimbursed for demurrage fees and the damage suffered as a result of the terminations, as well as general average contributions ”.
5. For the assertion of these claims it is neither a prerequisite that the sender or recipient is responsible for the inadequate fulfillment of the contract, nor that the vehicle intended for the transport is presented ready for loading. These claims also exist if the obstacle arose as a result of one of the causes named in Section 13 (1). “
§ 13 Expiry of the takeover and transport obligation
1. The takeover and transport obligation expires without further ado on any waterway, regardless of whether the goods have already been taken over or loaded, or whether the voyage has already started or not, if general or only with reference The following events or circumstances occur or exist on the ship that loaded the goods:
a) Force majeure, war, civil war, mobilization, military ventures, riot, sabotage, strike, lockout, blockade, internal unrest;
b) Official measures and interventions, import, export and transit restrictions or bans, confiscations or requisitions, unless the carrier has culpably caused these circumstances.
c) Shipping closures of any kind or shipping accidents, disruptions or operational shutdowns in locks, canals, ports or other shipping facilities, traffic disruptions, obstructions to traffic in seaports or closure of shipping, unless the carrier is at fault for causing these circumstances;
d) Natural events, floods, floods, ice and the risk of ice.
2. For the entire duration of one of these cases and a maximum of 14 days after that, the carrier is entitled to charge compensation for the loss of use plus costs for additional expenses for all delays in the ship’s circulation, as well as at his option:
a) either to carry out the transport and to charge a freight surcharge for the entire agreed transport route and to charge the goods for all additional expenses incurred by the carrier compared to normal processing of the order, whereby the sender and recipient are jointly and severally liable for the additional expenses,
b) or in full to withdraw from the contract and to charge incorrect freight in accordance with § 12 and to delete or have deleted and to store goods or to forward them by other means at the place that appears suitable to him at the point of his name, at the expense and risk of the sender and recipient. All
additional costs, additional freight and
expenses resulting from the unloading in the interim port , storage or further transport are at the expense of those involved in the cargo.
The carrier also has the aforementioned rights if he should fail to notify the sender and recipient of the occurrence of the event.
3. If the start of the journey is permanently prevented by chance or by a circumstance for which the carrier is not responsible according to these loading and transport conditions, the freight contract shall cease to be in force without one party being obliged to compensate the other. The sender bears the costs of reloading goods that have already been loaded.
It is to be regarded as permanent hindrance in particular,
– if the ship with which the transport is to be carried out is lost or damaged in such a way that the voyage cannot be started without a comprehensive repair of the ship. A repair of this kind is considered to be one that requires the complete unloading of the cargo;
– if the goods to be transported are lost, provided that they are not only specified in terms of type and type, but specifically in the freight contract, or have already been loaded or have been taken over by the carrier.
4. If, after the start of the journey, the continuation of the same is prevented by chance or by circumstances for which the carrier is not responsible according to these loading and transport conditions, the freight contract shall become invalid. The sender bears the costs of reloading and the freight for the part of the journey (distance freight).
5. The sender and recipient are jointly and severally liable to the carrier for all additional daily freight charges, freight surcharges, loss of use and other additional expenses.
§ 14 Right of retention and lien of the carrier
1. The carrier has a right of retention or a right of lien on the goods due to all claims based on the freight contract as well as undisputed claims from other freight, forwarding or storage contracts concluded with the sender. The right of retention or lien also extends to the accompanying documents.
2. The right of retention or lien exists as long as the carrier has the goods in his possession, in particular as long as he can dispose of them by means of a bill of lading or warehouse receipt.
3. In exercising the right of retention or lien, the carrier is entitled to delete goods in the name of, at the expense and risk of the sender and recipient, and to one of them
to store suitable places or to demand security for his claims.
4. Third parties who make claims on the goods on the basis of the bill of lading or the bill of lading acknowledge the carrier’s right of retention or lien only in relation to all claims based on the contract of carriage by receiving the bill of lading or bill of lading or by disposing of such papers.
5. The sale of the goods due to the right of retention or lien is permitted after
one week.
6. For the sale of the goods on the basis of a right of retention or lien, the carrier can in all cases charge a sales commission from the gross proceeds in the amount of the local rates.
§ 15 Liability of the carrier according to CMNI
1. For the transports to be carried out by the carrier that are subject to the CMNI, the liability rules of the CMNI apply.
2. The carrier or the executing carrier are not liable for damage
a) caused by an act or omission of the skipper, pilot or other person in the service of the ship or a push or tug boat during nautical guidance or the assembly or disbandment of a push or tug convoy, provided that the carrier fulfills his duty Article 3 (3) of the CMNI with regard to the crew is fulfilled, unless the act or omission is committed with the intention of causing the damage or recklessly and with the knowledge that such damage is likely to occur;
b) caused by fire or explosion on board the ship without it being proven that the fire or explosion was caused by the fault of the carrier, the executing carrier or their employees or agents or by a defect in the ship;
c) are due to defects in his or a rented or
chartered ship that existed before the start of the trip , if he proves that the defects
could not be discovered before the start of the trip despite exercising due care.
§ 16 Liability of the carrier outside the scope of the CMNI
1. If the CMNI is not applicable, the liability regulations of the applicable national law in accordance with § 27 of these conditions apply.
2. The carrier is not liable
a) as long as the goods to be transported have not yet been loaded into the ship and / or stowed;
b) for damage of any kind that occurs during loading or unloading of the goods;
c) for damage of any kind that occurs after deletion;
d) for consequential damage, including damage caused by delay, regardless of the cause of its
occurrence.
3. Furthermore, the carrier is not liable for damage which can be traced back to one of the following circumstances or one of the following dangers:
a) acts or omissions of the sender, recipient or person authorized to dispose of them;
b) handling, loading, stowing or unloading the goods;
c) Carriage of the goods on deck or in open ships, if this type of transport was agreed with the sender or was in accordance with the customs of the relevant trade stand or was required due to applicable regulations;
d) the natural nature of the goods, as a result of which they are subject to total or partial loss or damage, in particular due to breakage, rust, internal spoilage, drying out, leakage, normal loss of volume or weight or to vermin or rodents;
e) the effects of heat, cold or melting, ignition or corrosion of the goods;
f) fire or explosion;
g)
Missing or defective packaging , if the goods are exposed to loss or damage due to their natural properties in the event of missing or inadequate packaging;
h) insufficient or inadequate labeling of the goods;
i) Provided or attempted assistance or rescue in navigable waters;
j) Carriage of live animals, unless the carrier has
disregarded the measures or refusals agreed in the freight contract;
k) Fault in the management or other operation of the ship, including errors caused in the assembly of a tow or push convoy.
l) conduct of a compulsory pilot;
m) delays or delays.
If damage has occurred which, according to the circumstances of the case, could result from one of the aforementioned circumstances or one of the aforementioned dangers, it is assumed that the damage originated from this circumstance or this danger and a careful carrier was unable to avoid the damage can.
4. As far as the applicable national law contains more extensive liability exclusions than those listed in paragraphs 2 and 3, the carrier can also invoke these additional liability exclusions.
§ 17 Extent of liability
1. Unless the CMNI is applicable, the carrier’s compensation for loss of or damage to the goods as well as for damage caused by delay or financial loss is determined by the international or national law applicable to the freight contract, unless otherwise agreed in the framework the legally permissible disposition authority.
2. If a lower limitation of liability does not apply under national law, the compensation to be paid by the carrier for loss of or damage to the goods is limited to two units of account per kg. The unit of account per kilogram is from
Special Drawing Right established by the International Monetary Fund. If the delivery period is exceeded, the carrier’s liability is limited to three times the amount of the freight.
3. We are not
liable for deficiencies, shortages in weight or shortages which do not exceed 2% of the total weight or size of the lot in question, subject to deviating commercial customs.
4. If loose goods of the same type are loaded together in the same ship or hold, the individual cargo owners, senders or consignees have to share any possible shortage, damage or average, as well as excess weight or excess.
5. The provisions on the exclusion, limitation and limitation of the carrier’s liability extend to all contractual and non-contractual claims regardless of the legal basis.
6. All of the exemption and limitation of liability provided for in these terms and conditions as well as the applicable statutory provisions in favor of the carrier apply equally to his people and all other auxiliary persons.
7. If the carrier’s liability is excluded or limited on the basis of these conditions, the sender is obliged to indemnify him against third-party claims.
§ 18 Liability of the sender for damage to the carrier
The sender is obliged to compensate the carrier for damage caused by the material made available by the sender or by the cargo handed over for transport. The sender’s liability to pay compensation is excluded if the carrier culpably caused the damage. If the damage was caused by the fault of the sender as well as the fault of the carrier, both are liable according to their share of the fault.
§ 19 Insurance
Without an express written order, the carrier is not obliged to insure the goods against any dangers and risks.
§ 20
General average The IVR general average rules apply in their latest valid version (published in www.ivr.nl). The text is available on request.
The parties involved in the cargo are obliged to pay the contributions and / or advances immediately, irrespective of and without prejudice to their possible rights under the freight contract to reclaim the contributions to be made. You are jointly and severally liable to the carrier for all general average contributions due to your goods due to an adjustment. The carrier is entitled to demand a lapel for these contributions and to demand an advance payment. A right of retention on contributions to the general average is excluded.
The right to reclaim general average contributions made is excluded in cases in which, when the CMNI applies, the large average case as a result of nautical fault i. S. d. Article 25 (2) a) CMNI, caused by fire or explosion or by a defect in the ship that was not apparent at the start of the voyage. The right to reclaim general average contributions in the aforementioned cases does not apply if the carrier is at fault either in the case of nautical negligence or in the event of a fire or explosion or a defect in the ship at the start of the voyage.
§ 21 Offsetting / prohibition of assignment The
sender and recipient are not entitled to offset claims disputed by the carrier, regardless of the legal reason, against claims of the carrier and / or to assert a right of retention on claims of the carrier.
The sender and recipient are not entitled to assign claims from the freight contract against the freight carrier, his auxiliary persons or vicarious agents within the meaning of Section 2 (2) to third parties – with the exception of transport insurers – without the freight carrier’s written consent.
§ 22 Limitation
All claims against the carrier or the executing carrier, their auxiliaries and vicarious agents expire after one year from the day on which the goods were or should have been delivered to the recipient. The day on which the period begins is not taken into account when calculating the period.
§ 23 Liability regulations in favor of the carrier
The carrier can also fully claim exclusions or limitations of liability, shortening of deadlines or waivers of recourse that are made between the sender and recipient.
§ 24 Place of jurisdiction The place of
jurisdiction for all disputes arising from or in connection with the freight contract is the carrier’s place of business. This place of jurisdiction is exclusive for lawsuits against the carrier. The carrier is entitled to appeal to another court which is competent according to the statutory provisions.
§ 25 Severability Clause
Should one of the above provisions be ineffective, this shall not affect the validity of the remaining provisions.
The parties are obliged to replace the ineffective provision with an effective provision that comes as close as possible to the economic result of the ineffective provision.
§ 26 Exceptions to the application of certain national rights
If the freight contract is subject to German law, the following provisions are not applicable or only apply with the reservation described:
§ 12 No. 1.) is subject to the condition that the carrier is not responsible for the listed constellations are. According to section 2), withdrawal from the contract is possible under the conditions specified in this section.
The carrier’s rights listed in Section 13 (2.) are subject to the proviso that the carrier is not responsible for the events listed in 1.). The limitations of liability according to § 16 No. 3) lit. k) and m) do not apply.
§ 27 Applicable law
The contract is subject to the law chosen by the parties. If the parties have not stipulated a contractual statute, the law of the country in which the carrier has his place of business applies, including the applicable international conventions applicable there, in particular the CMNI.
*. *. *. *. *
The above-mentioned conditions were drawn up in joint cooperation between the Inland Navigation Law Committee of the Association for European Inland Navigation and Waterways eV (VBW) and the IVR Legal Commission.
ADSp – German Freight Forwarders’ Standard Terms and Conditions 2017
Preamble
The General German Forwarding Conditions 2017 (ADSp 2017) are recommended for application from January 1, 2017 by the Federal Association of German Industry (BDI), Federal Association of Wholesale, Foreign Trade, Services (BGA), Federal Association of Goods Transport, Logistics and Disposal (BGL), Federal Association of Furniture Freighters and Logistics (AMÖ), undesverband Wirtschaft, Verkehr und Logistik (BWVL), German Chamber of Industry and Commerce (DIHK), German forwarding and logistics association (DSLV) and German trade association (HDE). This recommendation is not binding. The contracting parties are free to make agreements that deviate from the content of this recommendation.
1. Definitions
1.1 Delivery
The term delivery also includes delivery in warehouse transactions.
1.2 Client
The legal entity who enters into a transport contract with the freight forwarder.
1.3 Goods at risk of theft
Goods that are exposed to an increased risk of robbery and theft, such as money, precious metals, jewelry, watches, precious stones, works of art, antiques, check cards, credit cards or other means of payment, securities, valuables, documents, spirits, tobacco products, consumer electronics, telecommunications equipment, IT Devices and accessories as well as chip cards.
1.4 Recipients
The legal entity to whom the goods are to be delivered in accordance with the transport contract or on the basis of effective instructions from the client or another person authorized to dispose of them.
1.5 vehicle
A means of transport used to transport goods on traffic routes.
1.6 Dangerous goods
Goods which, even in the course of normal transport, storage or other activity, can pose an immediate danger to people, vehicles and third-party legal interests. Dangerous goods are, in particular, those goods that fall within the scope of relevant dangerous goods laws and regulations as well as regulations governing hazardous substances, water or waste.
1.7 Loading equipment
Means for combining packages and for forming loading units, e.g. B. pallets, containers, swap bodies, containers.
1.8 Loading point / unloading point
The postal address, unless the parties have determined the location more precisely.
1.9 Time of performance
The time (date, time) at which a certain service is to be provided, e.g. B. a time window or a point in time.
1.10 packages
Individual items or units formed by the client to process the order with and without loading equipment, which the freight forwarder has to handle as a whole (freight items within the meaning of Sections 409, 431, 504 of the German Commercial Code).
1.11 Loss / loss event
A claim exists when an injured party asserts a claim from a transport contract or instead of a transport contract claim due to an external incident; A damaging event occurs when several injured parties from several transport contracts assert claims due to an external incident.
1.12 interface
After acceptance and before delivery of the goods by the freight forwarder, every transfer of the goods from one legal entity to another, every reloading from one vehicle to another, every (temporary) storage.
1.13 Freight Forwarder
The legal person who concludes a transport contract with the client. Freight forwarders in this sense are in particular carriers within the meaning of § 407 HGB, freight forwarders within the meaning of § 453 HGB, warehouse keepers within the meaning of § 467 HGB and carriers within the meaning of §§ 481, 527 HGB.
1.14 transport contracts
Contracts of the freight forwarder for all types of activities, regardless of whether they relate to forwarding, freight, sea freight, storage or other business usually belonging to the forwarding business (e.g. customs clearance, shipment tracking, transshipment). These also include the logistical services customary for a forwarding company if these are related to the transport or storage of goods, in particular activities such as the formation of loading units, order picking, labeling and weighing of goods and returns processing. Contracts for the provision of manned vehicles for use according to the instructions of the client also count as freight contracts.
1.15 Shippers
The legal person who hands over the goods for transport in accordance with the transport contract or on the basis of effective instructions.
1.16 Essential contractual obligations
Obligations, the fulfillment of which enables the proper execution of the transport contract (Section 1.14) and on which the contractual partner can regularly rely.
1.17 Valuable good
Good with an actual value on site and at the time of acceptance of at least 100 euros / kg.
1.18 time window
Agreed service period for the arrival of the freight forwarder at the loading or unloading point.
1.19 point in time
Agreed time of service for the arrival of the freight forwarder at the loading or unloading point.
2. Scope of application
2.1 The ADSp apply to all transport contracts of the freight forwarder as the contractor.
2.2 Statutory provisions, which cannot be deviated from by way of pre-formulated contractual conditions, take precedence over the ADSp.
2.3 The ADSp do not apply to transactions that exclusively concern the subject
2.3.1 Packaging work,
2.3.2 the transport and storage of goods to be towed or salvaged,
2.3.3 the transport and storage of removal goods within the meaning of Section 451 of the German Commercial Code (HGB),
2.3.4 Storage and digitization of files; Files are all types of embodied and digitized business papers, documents, data carriers and similar items used to collect information,
2.3.5 Heavy or large-volume transports, the implementation of which requires a transport permit or special permit under traffic law, crane services and associated assembly work.
2.4 The ADSp do not apply to transport contracts with consumers within the meaning of Section 13 of the German Civil Code (BGB).
3. Obligations of the client when placing the order; Information requirements , special types of goods
3.1 The client informs the freight forwarder in good time about all essential factors known to him that influence the execution of the order. Which includes
3.1.1 Addresses, type and quality of the goods, the gross weight (including packaging and loading equipment provided by the client) or the otherwise specified quantity, marks, numbers, number and type of packages, special properties of the goods (such as live animals, plants, perishability ), the value of the goods (e.g. for customs purposes or insurance of the goods in accordance with Section 21), and delivery times,
3.1.2 all public law, e.g. B. customs law, foreign trade law (in particular goods, person or country-related embargoes) and security obligations,
3.1.3 in the case of sea transport, all data required by maritime safety regulations (e.g. SOLAS) in the prescribed form,
3.1.4 Existing industrial property rights vis-à-vis third parties, e.g. B. trademark and licensing restrictions associated with the possession of the goods, as well as legal or official obstacles that prevent the order processing,
3.1.5 special technical requirements for the means of transport and special load securing equipment that the freight forwarder should provide.
3.2 In the case of dangerous goods, the client must inform the freight forwarder in writing of the quantity, the exact type of risk and – if necessary – the precautionary measures to be taken. If it concerns dangerous goods within the meaning of the law on the transport of dangerous goods or other goods for the transport or storage of which there are special regulations under dangerous goods or waste law, the client has the information required for the proper execution of the order, in particular the classification according to the relevant dangerous goods law and to hand over the necessary documents at the latest when the goods are handed over.
3.3 In the case of valuable goods or goods at risk of theft, the customer has to inform the freight forwarder in text form about the type and value of the goods and the existing risk, so that the freight forwarder can decide whether to accept the order or take appropriate measures for a safe and damage-free processing of the order can. If he accepts this order, the freight forwarder is obliged to take suitable security measures to protect the goods.
3.4 The client must provide the freight forwarder with all documents and other documents and provide information (e.g. tariff classification) that is particularly necessary for proper customs or other legally prescribed treatment – this also includes security checks, e.g. B. for air freight shipments – of the goods are necessary.
4. Freight Forwarder’s Rights and Obligations
4.1 The freight forwarder has to safeguard the client’s interests. He has to check the order placed with him for obvious defects and immediately notify the client of any dangerous circumstances known to him for the execution of the order. If necessary, he must obtain instructions.
4.2 The freight forwarder must ensure that the vehicles, load securing equipment and, if the provision of loading equipment has been agreed, are in a technically perfect condition, comply with the statutory provisions and the requirements for the goods in the transport contract. Vehicles and loading equipment must be equipped with the usual devices, equipment or procedures to protect against hazards to the goods, in particular load securing equipment. Vehicles should be low in pollutants, noise-reduced and energy-saving.
4.3 The freight forwarder has to deploy reliable and appropriately trained, suitable and properly employed drivers and, if necessary, with driver certification.
4.4 The freight forwarder must follow house, operating or construction site rules that are valid there and are made known to him on a third-party company site. Section 419 of the German Commercial Code (HGB) remains unaffected.
4.5 The freight forwarder is entitled to make customs clearance dependent on the issuance of a written power of attorney that enables him to represent himself directly.
4.6 If the freight forwarder is commissioned with the cross-border transport of the goods or the import or export clearance, this order also includes the customs or other legally prescribed treatment of the goods if without this the cross-border transport to the destination cannot be carried out. He is allowed to do this
4.6.1 Open the packaging if this is necessary for the purpose of carrying out a legally required control (e.g. freight forwarder as regulated agent) and then take all measures necessary to process the order, e.g. B. repackage the goods,
4.6.2 interpret the duties determined by the customs authorities.
4.7 In the event of damage to goods or delay, the freight forwarder must, at the request of the customer or recipient, immediately provide the customer with all the information that is necessary and known to him to secure claims for damages.
4.8 In the absence of an express agreement, the order placed with the freight forwarder does not include
4.8.1 the provision and exchange of pallets or other loading equipment,
4.8.2 the loading and unloading of the goods, unless the circumstances or custom stipulate otherwise,
4.8.3 a transhipment ban (§ 486 HGB does not apply),
4.8.4 the provision of a shipment tracking system, unless this is customary in the industry, whereby section 14 remains unaffected,
4.8.5 Returns, transfers and concealed additional loads; If, in deviation from the order, one or more other packages are handed over for transport by the customer and the freight forwarder accepts this or these packages for transport, the freight forwarder and the customer conclude a new transport contract for these goods. In the case of returns or concealed additional loads, unless otherwise agreed, the provisions of the original transport contract apply. Section 5.2 remains unaffected.
4.9 Further performance and information obligations, e.g. B. on quality management measures and compliance with them (audits) as well as monitoring and evaluation systems and performance indicators, require an express agreement.
5. Contact person, electronic communication and documents
5.1 At the request of a contracting party, each contracting party shall designate one or more contact persons to receive information, explanations and inquiries for the execution of the contract and provide the other party with names and contact addresses. This information must be updated in the event of changes. If a party does not designate a contact person, the person who has concluded the transport contract for the party is deemed to be the contact person. Information requirements going beyond the law, e.g. B. on measures of the freight forwarder in the event of disruptions, in particular an impending delay in the acceptance or delivery, in the case of transport or delivery obstacles, in the event of damage to the goods or other disruptions (emergency concept) require an express agreement.
5.2 In the absence of an express agreement, contractual declarations by the warehouse and transport personnel require the approval of the respective contracting party to be effective.
5.3 The client must ensure that the shipper or recipient submits the declarations required at the loading or unloading point for the execution of the transport contract for the client and takes actual actions such as handing over or taking over the goods.
5.4 If this has been agreed between the client and the freight forwarder, the parties will transmit or receive shipment data including the creation of an invoice by EDI (Electronic Data Interchange) / DFÜ (remote data transmission). The transmitting party bears the risk of loss, completeness and correctness of the transmitted data.
5.5 In the case of an agreement in accordance with Section 5.4, the parties ensure that their own IT system is operational and that the usual security and control measures are carried out to protect the electronic data exchange from being accessed by third parties and from being changed, lost or destroyed electronically to prevent transmitted data. Each party is obliged to notify the other party in good time of any changes to their IT system that could affect the electronic data exchange.
5.6 Documents created electronically or digitally, in particular proof of delivery, are equivalent to written documents.
In addition, each party is entitled to archive written documents only electronically or digitally and to destroy the originals in compliance with the statutory provisions.
6. Packaging and labeling obligations of the client
6.1 The goods are to be packed by the client and, if necessary, to be provided with clearly and permanently affixed labels for their treatment in accordance with the order. Old license plates are to be removed or made illegible. The same applies to packages.
6.2 In addition, the client is obliged to
6.2.1 to mark packages belonging to a shipment as identifiable as belonging together,
6.2.2 To prepare packages – if necessary – in such a way that access to the contents is not possible without leaving externally visible traces.
7. Cargo securing and control obligations of the freight forwarder
7.1 If loading or unloading takes place at more than one loading or unloading point, the freight forwarder will ensure that the goods are safely secured to the last unloading point once the goods have been safely loaded.
7.2 The freight forwarder is obliged to carry out checks at every interface. He has to check the goods for completeness and identity as well as externally recognizable damage and intactness of the label, seals and closures and to document any irregularities.
8. Receipt
8.1 The freight forwarder has to acknowledge the acceptance of the goods – possibly with reservation.
With the acceptance receipt, the freight forwarder only confirms the number and type of packages, but not their content, value, weight or any other specified quantity.
8.2 In the case of pre-loaded or closed loading units such as containers or swap bodies and data transmitted in advance by the client, the correctness of a receipt for the number and type of loaded packages is deemed to be refuted if the freight forwarder reports (quantity) differences and damage to the client immediately after he has received the loading unit has discharged.
8.3 As proof of delivery, the freight forwarder must request a delivery receipt from the recipient for the packages specified in the order or in other accompanying documents. If the recipient refuses to issue the delivery receipt, the freight forwarder must obtain instructions.
The client can request the delivery receipt within one year of delivery of the goods.
8.4 All signed documents that prove the execution of the order, such as delivery notes, forwarder acceptance notes, waybills and sea waybills, loading notes or bills of lading, serve as acceptance or delivery receipts.
8.5 The receipt or delivery receipt can also be created electronically or digitally, unless the client requests that a freight or sea waybill, bill of lading or bill of lading be issued.
9. Instructions
The freight forwarder is obliged to observe every instruction given to him after the conclusion of the contract regarding the goods, unless the execution of the instruction threatens to result in disadvantages for the operation of his company or damage to the client or recipient of other shipments. If the freight forwarder intends not to follow an instruction given to him, he must notify the person who gave the instruction immediately.
10. Freight transfer, cash on delivery
The notification of the client that the order is to be processed freight collect or z. B. in accordance with the Incoterms for the account of the recipient or a third party, does not affect the obligation of the client to the freight forwarder to bear the remuneration and other expenses (freight, customs and other charges). Cash on delivery instructions z. B. according to § 422 HGB, Art. 21 CMR remain unaffected.
11. Non-compliance with loading and unloading times, demurrage
11.1 If the client has to load or unload the goods, he is obliged to adhere to the agreed, otherwise reasonable loading or unloading time.
11.2 If a point in time or a time slot for the provision of a vehicle is agreed in road freight transport or if the freight forwarder advises this without the client, shipper or recipient objecting, the loading or unloading time for full loads (but not for bulk goods) is independent of the number of Shipments per loading or unloading point for vehicles with a gross vehicle weight of 40 tonnes, a flat rate of a maximum of 2 hours for loading or unloading. In the case of vehicles with a lower total weight, these times are reduced to an appropriate extent on a case-by-case basis.
11.3 The loading or unloading time begins with the arrival of the road vehicle at the loading or unloading point (e.g. notification to the porter) and ends when the client or recipient has fully met his obligations.
If a specific service time has been agreed for the provision of the road vehicle at the loading or unloading point, the loading or unloading time does not begin before the time agreed for the provision.
11.4 If the loading or unloading time is exceeded due to a contractual agreement or for reasons that are not attributable to the risk area of the freight forwarder, the customer must pay the freight forwarder the agreed, otherwise reasonable demurrage as compensation.
11.5 The above provisions apply accordingly if the freight forwarder is obliged to load or unload the goods and the customer is only obliged to prepare the goods for loading or to accept them after unloading.
12. Obstacles to performance, force majeure
12.1 If the freight forwarder is unable to take over the goods or not in good time, he must notify the client or shipper of this immediately and obtain appropriate instructions. Section 419 of the German Commercial Code (HGB) applies accordingly. The client remains entitled to terminate the transport contract without the freight forwarder being entitled to assert claims under Section 415 (2) of the German Commercial Code (HGB).
12.2 Obstacles to performance that are not attributable to the risk area of a contracting party release the contracting parties from their performance obligations for the duration of the disruption and the extent of its effect.
Such obstacles to performance include force majeure, unrest, acts of war or terrorism, strikes and lockouts, blockade of transport routes and other unforeseeable, inevitable and serious events.
In the event of an impediment to performance, each contracting party is obliged to inform the other party immediately; the freight forwarder is also obliged to obtain instructions from the principal.
13. Delivery
13.1 If, after arrival at the unloading point, it becomes apparent that unloading cannot be carried out within the unloading time, the freight forwarder must notify the customer immediately and obtain appropriate instructions. Section 419 of the German Commercial Code (HGB) applies.
13.2 If the freight forwarder is unable to meet the agreed performance time or – in the absence of an agreement – a reasonable time for the delivery of the goods, he must obtain instructions from his client or the recipient.
13.3 If the recipient is not found in his apartment, in the business premises or in a communal facility in which the recipient lives, the goods can be delivered, unless there are obvious doubts about their entitlement to receive
13.3.1 in the apartment to an adult family member, a person employed in the family or an adult permanent roommate,
13.3.2 in business premises to a person employed there,
13.3.3 in communal facilities, the head of the facility or an authorized representative.
13.4 If the freight forwarder has made an agreement with the client or recipient, according to which the delivery should take place without physical handover to the recipient (e.g. overnight, garage or belt delivery), the delivery takes place with the actual provision of the goods on the agreed Location.
13.5 Delivery may only take place under the supervision of the client, recipient or a third party authorized to receive. Numbers 13.3 and 13.4 remain unaffected.
14. Freight forwarder’s duty to provide information and surrender
14.1 The freight forwarder is obliged to provide the customer with the necessary information, to provide information on the status of the transaction upon request and to render an account after it has been carried out; However, he is only obliged to disclose the costs if he is acting on behalf of the client.
14.2 The freight forwarder is obliged to surrender to the principal everything he receives for the execution of the business and what he obtains from the management.
15. Storage
15.1 If necessary, the client must pack and label the goods and provide documents and provide all information that the freight forwarder needs for proper storage.
15.2 Storage takes place at the choice of the freight forwarder in his own or, if this is not contractually excluded, in third-party storage rooms. If the freight forwarder stores with a third-party warehouse keeper, he must immediately inform the customer of the name and the storage location in writing or, if a warehouse receipt has been issued, note this on it.
15.3 The freight forwarder must ensure the proper maintenance and care of warehouses and other storage areas, the entrances to the operating areas and the securing of the goods, in particular against theft. Further security measures, e.g. B. go beyond the statutory fire protection regulations, require an express agreement.
15.4 Unless otherwise agreed
15.4.1 acceptance of the goods for storage begins when the freight forwarder starts unloading the vehicle and delivery of the goods ends when the freight forwarder has completed loading,
15.4.2 the inventory is managed by the warehouse management system of the freight forwarder,
15.4.3 there is a physical inventory per year. On the instructions of the client, the freight forwarder carries out further physical inventories against reimbursement of expenses.
15.5 When accepting the goods, the freight forwarder undertakes to carry out an incoming inspection according to the type, quantity and quality of the goods, marks, numbers, number of packages and externally recognizable damage in accordance with Section 438 of the German Commercial Code (HGB), if adequate means are available for inspection.
15.6 To secure the goods, regular checks are to be carried out by suitable personnel of the freight forwarder.
15.7 In the event of shortages or changes to the goods that are to be feared, the freight forwarder must inform the customer immediately and obtain instructions. Section 471 (2) of the German Commercial Code (HGB) remains unaffected.
15.8 Further performance and information obligations require an express agreement.
16. Compensation
The agreed remuneration, which includes the costs of transport and storage, covers all services to be provided under the transport contract. Additional claims for costs incurred in the regular course of transport or storage and foreseeable at the time of the offer can not be asserted separately, unless otherwise agreed. Calculation errors are at the expense of the calculator. Sections 412, 418, 419, 491, 492 588 to 595 HGB and comparable regulations from international conventions remain unaffected.
17. Expense and indemnification claims
17.1 The freight forwarder is entitled to reimbursement of expenses which he was entitled to consider necessary under the circumstances and which he is not responsible for, in particular contributions to general average proceedings, detention or demurrage costs, repackaging to protect the goods.
17.2 If the client instructs the freight forwarder to take delivery of the goods and freight, cash on delivery, customs duties, taxes or other charges or expenses are demanded upon delivery to the freight forwarder, the freight forwarder is entitled, but not obliged, to do so – insofar as he does Circumstances according to necessary
was allowed to hold – to be interpreted and to demand reimbursement from the client, unless something else has been agreed.
17.3 Upon request, the customer must release the freight forwarder from expenses such as freight claims, contributions to general average proceedings, customs duties, taxes and other charges that are charged to the freight forwarder, in particular as the person entitled to dispose or as the owner of third-party goods, if the freight forwarder is not responsible for them Has.
18. Invoices, foreign currencies
18.1 The freight forwarder’s claims for remuneration require the receipt of an invoice or a payment statement that meets the legal requirements. Unless otherwise agreed, the due date for undisputed delivery does not require the submission of proof of delivery.
18.2 The freight forwarder is entitled to request payment in their local currency or in euros from foreign clients or consignees.
18.3 If the freight forwarder owes a foreign currency or if he interprets a foreign currency, he is entitled to demand either payment in the foreign currency or in euros. If he requests payment in euros, the conversion takes place at the rate officially set by the freight forwarder on the day of payment, which the freight forwarder has to prove.
18.4 Payment processing using the credit note procedure must be expressly agreed. In case of doubt, the client must issue credits immediately after the service has been provided. Item 18.1 sentence 1 does not apply to the credit memo procedure.
19. Offsetting, retention
Compared to claims from the transport contract and related non-contractual claims, offsetting or retention is only permitted if the counterclaim is due, undisputed, ready for a decision or has been legally established.
20. Right of lien and retention
20.1 The freight forwarder may invoke the statutory rights of lien and retention to which he is entitled to secure his claims from contractual services.
20.2 The realization of the pledge takes place in accordance with the statutory provisions with the proviso that
20.2.1 when exercising the carrier’s or carrier’s statutory right of lien, the threat of the pledge sale and the necessary notifications are to be sent to the recipient,
20.2.2 instead of the one month period specified in Section 1234 of the German Civil Code (BGB), the one week period.
20.3 The client is entitled to prohibit the exercise of the lien if he grants the freight forwarder a means of security that is equivalent to his claims (e.g. absolute bank guarantee).
21. Insurance of the goods
21.1 The freight forwarder arranges for the goods to be insured (e.g. transport or storage insurance) with an insurer of his choice if the client instructs him to do so before the goods are handed over.
21.2 The freight forwarder must arrange for the goods to be insured if this is in the interests of the principal. The freight forwarder may in particular assume this if
21.2.1 the freight forwarder has obtained insurance for an earlier transport contract as part of an ongoing business relationship,
21.2.2 the client has specified a “value of goods for an insurance of the goods” in the order.
21.3 In particular, there is no presumption of interest in the coverage of an insurance under Section 21.2 if
21.3.1 the client prohibits the replacement,
21.3.2 the client is a freight forwarder, carrier or warehouse keeper.
21.4 When procuring insurance, the freight forwarder must follow the client’s instructions, in particular with regard to the sum insured and the risks to be covered. If he does not receive any instructions, the freight forwarder has to decide on the type and scope of the insurance according to his due discretion and to conclude it under normal market conditions.
21.5 If the freight forwarder is unable to obtain insurance cover due to the type of goods to be insured or for any other reason, the freight forwarder must notify the customer immediately.
21.6 If the freight forwarder procures insurance after the conclusion of the contract on the instructions of the client, if he takes on the collection of a compensation amount or other activities in the settlement of insured events and average, then he is entitled to a customary, otherwise reasonable remuneration in addition to reimbursement of his expenses, even without an agreement.
22. Liability of the freight forwarder, assignment of claims for compensation
22.1 The freight forwarder is liable for damage in accordance with the statutory provisions. However, the following regulations apply, unless mandatory legal provisions or general terms and conditions (AGB) stipulate otherwise.
22.2 In all cases in which the freight forwarder is liable for loss of or damage to the goods (goods damage) according to clauses 23.3 and 24, he has to pay compensation instead of compensation in accordance with Sections 429, 430, 432 of the German Commercial Code (HGB).
22.3 In the event of inventory differences, the freight forwarder can offset the inventory in terms of value in the cases covered by Section 24 in the event of simultaneous shortfalls and excess stocks from the same customer to determine the compensation.
22.4 If the freight forwarder has claims against a third party in the event of damage for which he is not liable, or if the freight forwarder has claims for compensation against a third party that exceeds his own liability, he must assign these claims to the customer upon request, unless the freight forwarder takes on the pursuit of claims for the account and risk of the client based on a special agreement. Sections 437, 509 of the German Commercial Code (HGB) remain unaffected.
23. Limitations of Liability
23.1 The liability of the freight forwarder for damage to goods in his care in accordance with Section 431 Paragraphs 1, 2 and 4 of the German Commercial Code (HGB) is limited as follows, with the exception of damage from sea transport and warehousing orders:
23.1.1 to 8.33 special drawing rights for each kilogram if the freight forwarder
– carrier within the meaning of § 407 HGB,
– Freight forwarder in the self-entry, fixed-cost or groupage forwarder in the sense
from §§ 458 to 460 HGB
or
– is a custody freight forwarder within the meaning of Section 461 Paragraph 1 of the German Commercial Code (HGB);
23.1.2 to 2 instead of 8.33 special drawing rights for each kilogram, if the client has concluded a transport contract with the freight forwarder for transport by various means of transport including sea transport and the location of the damage is unknown.
If the place of damage is known, liability is determined in accordance with Section 452a of the German Commercial Code (HGB), taking into account the exclusions and limitations of liability of the ADSp.
23.1.3 If the freight forwarder’s liability under section 23.1.1. an amount of 1.25 million euros per claim, his liability for each claim is limited to a maximum of 1.25 million euros or 2 special drawing rights for each kilogram, whichever is higher.
23.2 The liability of the freight forwarder in the event of damage to goods in his care is limited to the maximum amount of liability stipulated by law for a transport contract for sea transport and for cross-border transports. Item 25 remains unaffected.
23.3 In the cases not covered by Sections 23.1 and 23.2 (such as Section 461 Paragraph 2 HGB, Sections 280 ff BGB), the freight forwarder’s liability for damage to goods is limited in accordance with Section 431 Paragraph 1, 2 and 4 HGB
23.3.1 in the case of a transport contract for sea transport or transport with different types of transport including sea transport to 2 special drawing rights for each kilogram,
23.3.2 for all other transport contracts to 8.33 special drawing rights for each kilogram.
23.3.3 In addition, the liability of the freight forwarder for each damage event is limited to a maximum of 1.25 million euros.
23.4 The liability of the freight forwarder for damage other than goods with the exception of damage to storage, personal injury and property damage to third-party goods is limited to three times the amount to be paid in the event of loss of the goods in accordance with Section 23.3.1 or 23.3.2 were. In addition, the liability of the freight forwarder is limited to a maximum of 125,000 euros for each case of damage.
23.4.1 Sections 413 Paragraph 2, 418 Paragraph 6, 422 Paragraph 3, 431 Paragraph 3, 433, 445 Paragraph 3, 446 Paragraph 2, 487 Paragraph 2, 491 Paragraph 5, 520 Paragraph 2, 521 Paragraph 4, 523 HGB as well as corresponding liability provisions in international agreements, from which it is not permitted to deviate by means of pre-formulated contractual conditions, remain unaffected.
23.4.2 Number 23.4 does not apply to statutory provisions such as Art. 25 MT, Art. 5 CIM or Art. 20 CMNI, which extend the liability of the freight forwarder or allow them to be extended.
23.5 If the freight forwarder’s liability under clauses 23.1, 23.3 and 23.4 exceeds an amount of 2.5 million euros per damaging event, his liability is also limited to a maximum of 2.5 million euros each, regardless of how many claims are made from a damaging event Damage event or 2 special drawing rights for every kilogram of lost and damaged goods, whichever is higher; If there are several injured parties, the freight forwarder is liable proportionally in proportion to their claims.
24. Limitations of liability for storage, inventories and declaration of value
24.1 The liability of the freight forwarder in the event of damage to the goods is limited in terms of the amount if storage is ordered
24.1.1 in accordance with Section 431 (1), (2) and (4) HGB to 8.33 special drawing rights for each kilogram,
24.1.2 a maximum of 35,000 euros per claim.
24.1.3 If the damage suffered by a customer consists of a difference between the target and actual stock levels, the liability of the freight forwarder is limited to 70,000 euros per year, in deviation from Section 24.1.2, regardless of the number and form of the inventories carried out and on the number of claims causing the inventory difference.
24.2 In return for payment of a surcharge to be agreed, the client can state in text form a value to increase liability that exceeds the maximum amounts specified in Section 24.1. In this case, the specified value takes the place of the relevant maximum amount.
24.3 The liability of the freight forwarder for damage other than goods, with the exception of personal injury and property damage to third-party goods, is limited to 35,000 euros per case of damage if storage is ordered.
24.4 The liability of the freight forwarder – with the exception of personal injury and property damage to third-party goods – is in any case, regardless of how many claims are made from a damaging event, in the case of ordered storage
2.5 million euros per loss event limited; If there are several injured parties, the freight forwarder is liable proportionally in proportion to their claims. Section 24.2 remains unaffected.
25. Exclusion of liability for sea and inland waterway transport
25.1 Pursuant to Section 512, Paragraph 2, No. 1 of the German Commercial Code, it is agreed that the freight forwarder, in his position as a carrier, is not responsible for any negligence on the part of his people or the ship’s crew if the damage was caused by conduct in the management or other operation of the ship, but not when carrying out measures that were primarily taken in the interest of the cargo or that resulted from fire or explosion on board a ship.
25.2 According to Art. 25 Para. 2 CMNI, it is agreed that the freight forwarder, in his position as carrier or executing carrier, is not liable for damage that
25.2.1 are caused by an act or omission of the skipper, pilot or other legal person in the service of the ship or a push or tug boat in the nautical operation or the formation or dissolution of a push or tug convoy, provided that the freight forwarder fulfills his obligations Art. 3 Para. 3 CMNI with regard to the crew is fulfilled, unless the act or omission is committed with the intention of causing the damage or recklessly and with the knowledge that such damage is likely to occur,
25.2.2 caused by fire or explosion on board the ship without it being proven that the fire or explosion was caused by the fault of the freight forwarder, the executing carrier or their employees or agents or by a defect in the ship,
25.2.3 are due to defects in his or a rented or chartered ship prior to the start of the trip, if he proves that the defects could not be discovered before the start of the trip despite exercising due care.
25.3 Section 22.4 remains unaffected.
26. Non-contractual claims
The above exclusions and limitations of liability also apply to non-contractual claims in accordance with §§ 434, 436 HGB. Section 23.4.1 applies accordingly.
27. Qualified Fault
27.1 The exclusions and limitations of liability mentioned in clauses 22.2, 22.3, 23.3 and 23.4 in conjunction with 23.5, 24 and 26 do not apply if the damage has been caused
27.1.1 through intent or gross negligence on the part of the freight forwarder or his vicarious agents or
27.1.2 through breach of essential contractual obligations, whereby claims for compensation in the latter case are limited to the foreseeable, typical damage.
27.2 Notwithstanding Section 27.1.2, the limitations of liability in Sections 24.1 and 24.2 only apply in the event of a grossly negligent or willful breach of essential contractual obligations.
27.3 Sections 435, 507 HGB remain unaffected in their respective area of application.
27.4 Clause 27.1 does not apply to statutory provisions such as Art. 25 MÜ, Art. 36 CIM or Art. 20, 21 CMNI, which extend the freight forwarder’s liability or allow it to be extended, or the attribution of the fault of people or other third parties expand.
28. Freight Forwarder’s Liability Insurance
28.1 The freight forwarder is obliged to take out and maintain liability insurance with an insurer of his choice at customary market conditions, which at least covers his contractual liability according to the ADSp and the law to the extent of the standard liability sums. The agreement of a maximum compensation per claim, loss event and year is permissible; likewise the agreement of an appropriate deductible from the freight forwarder.
28.2 Upon request, the freight forwarder must provide the principal with evidence of the existence of a valid liability insurance cover by submitting an insurance confirmation. If he does not provide this evidence within a reasonable period of time, the client can extraordinarily terminate the transport contract.
28.3 The freight forwarder may only invoke the ADSp liability provisions vis-à-vis the customer if he has sufficient insurance cover available when placing the order.
29. Client liability
29.1 The liability of the client from §§ 414, 455, 468 and 488 HGB is limited to 200,000 euros per damaging event.
29.2 The above limitation of liability does not apply to personal injury, i.e. injury to life, limb or health, or if the damage was caused by intent or gross negligence on the part of the client or his vicarious agents or by breach of essential contractual obligations, whereby claims for compensation are limited in the latter case are based on the foreseeable, typical damage.
30. Applicable law, place of performance, place of jurisdiction
30.1 German law applies to the legal relationship between the freight forwarder and the client.
30.2 For all parties involved, the place of performance is the location of the freight forwarder’s branch to which the order or inquiry is directed.
30.3 The place of jurisdiction for all legal disputes arising from the transport contract, its initiation or in connection with it, is either the place of the client’s branch or that of the freight forwarder’s branch to which the order or the inquiry is addressed is directed. The above agreement on the place of jurisdiction applies in the case of Art. 31 CMR and 46 § 1 CIM as an additional jurisdiction agreement, in the case of Art. 39 CMR, 33 MÜ, 28 WA not.
31. Confidentiality
The parties are obliged to treat as confidential all information that becomes known to them during the execution of the transport contract and is not publicly available. The information may only be used for the purpose of providing the service. The parties have other legal entities that they use when fulfilling their contractual obligations to impose this confidentiality obligation.
32. Compliance
32.1 The freight forwarder undertakes to comply with minimum wage regulations and regulations on minimum conditions at the workplace and confirms this in writing at the customer’s request. The freight forwarder releases the client from his liability for the minimum wage if the freight forwarder or a subcontractor or hirer employed within the framework of the transport contract with the client does not pay the statutory minimum wage and claims are made against the client.
32.2 In the case of transportations, the freight forwarder must ensure that he or the company performing the transport
32.2.1 is the holder of a permit under Section 3 GüKG or an authorization under Section 6 GüKG or a community license within the scope of the GüKG or does not use such a permit, authorization or license inappropriately,
32.2.2 in the scope of application of the GüKG uses driving personnel who meet the requirements of Section 7b (1) sentence 1 GüKG,
32.2.3 submits, upon request, all documents to be carried by law during the transport, insofar as the client or third parties have to comply with statutory control obligations.
32.3 The freight forwarder or the company carrying out the transport is obliged to organize the activities of his driving staff in such a way that the prescribed working, driving and rest times can be adhered to. There is a general ban on alcohol and drugs while driving the vehicle.
32.4 Both parties undertake to comply with the statutory provisions applicable to their company. They support and respect the principles of the “Global Compact” (“UNGC”), the Universal Declaration of Human Rights of the United Nations and the Declaration on Fundamental Principles and Rights of the International Labor Organization of 1998 (“Declaration on Fundamental Principles and Rights at Work “) in accordance with national laws and customs. In particular, both parties are in their company
32.4.1 do not employ children or use forced labor,
32.4.2 comply with the respective national laws and regulations on working hours, wages and salaries and other employer obligations,
32.4.3 comply with the applicable work and health regulations and ensure a safe and health-promoting work environment in order to maintain the health of employees and to avoid accidents, injuries and work-related illnesses,
32.4.4 refrain from any discrimination based on race, religion, disability, age, sexual orientation or gender,
32.4.5 observe the international anti-corruption standards as set out in the UNGC and local anti-corruption and bribery laws,
32.4.6 comply with all applicable environmental laws and regulations,
32.4.7 request their business partners and subcontractors to also base their actions on the aforementioned principles.
Get in touch with us
If you have any questions or would like information material, please contact us. You can fill out the contact form below or contact us by phone or email. You can find all information on how to contact us here:
Contact
BAYERISCHER LLOYD
Prinz-Ludwig-Straße 9
93055 Regensburg
ContaCt:
Phone: +49 (0) 941 646406-0
Fax: +49 (0) 941 646406-10
E-Mail: info@bayerischer-lloyd.de