General Austrian Forwarders‘ Terms and Conditions
The freight forwarder („forwarder“) will execute his commercial activities with the due care and diligence of a prudent businessman, safeguarding the interests of the principal. Section 2
- The General Austrian Forwarders‘ Terms and Conditions apply to all activities performed by the forwarder in the course of commercial transactions with businessmen and companies under Section 1 Para. 2 of the Consumer Protection Act, irrespective of whether it concerns forwarding, freight, warehousing, commission or any other business related to or connected with the forwarding industry.
- The General Austrian Forwarders‘ Terms and Conditions do not apply
- if the forwarder is acting solely as vicarious agent of a transport company in accordance with special conditions, or as surface transport entrepreneur on the basis of a surface transport contract of the Austrian Federal Railways;
- to the transportation of removal goods using a removal van (trailer, swap-body, container, lift-van), as well as warehousing of removal goods; transportation of removal goods for principals in the sense of Para. (a) above, either domestic or to and from foreign countries, is subject to the General Austrian Forwarders‘ Terms and Conditions, provided that the forwarding activities are covered under Section 407 of the Austrian Commercial Code.
- The General Austrian Forwarders‘ Terms and Conditions take precedence over local and municipal commercial practice. Mandatory provisions limit the effective scope of the General Austrian Forwarders‘ Terms and Conditions accordingly. In the case of ocean and inland waterway transportation, deviating arrangements may be concluded in compliance with special shipping terms and conditions of the forwarder.
- Furthermore, the terms and conditions stipulated by third parties involved in the execution apply.
The rights of the principal may only be assigned to third parties, and claims against the forwarder in the name or for the account of third parties (cf. Section 67 of the Insurance Contract Act) may only be asserted to the extent that such rights or claims against the forwarder are based on these terms and conditions.
All quotations made by the forwarder are only valid subject to prompt acceptance for immediate execution of the order concerned, unless stipulated otherwise in the quotation, and only to the extent that the quotation is referenced in the confirmation of the order.
II. Unacceptable Goods
- Unless expressly agreed upon in writing, all goods that could be detrimental to individuals, animals, goods or other objects, or that are liable to rapid spoiling or decay, will not be accepted.
- If these goods are handed to the forwarder without special notification or identification, the principal will be liable for any resulting damages, even if he was not responsible for the damage.
- To the extent justified by such circumstances, the forwarder may sell the goods either publicly or privately, without resort to legal process. If possible, the principal should be notified of any such intended sale. In cases of imminent danger, the forwarder may also destroy such goods, even if prior notification to the principal has not been made.
III.Orders, Communication, Instructions and forwarder’s Discretion
The forwarder assumes no liability for the compliance with orders placed either verbally, by telephone or telegraph, or by any other form of notification, which have not been confirmed in writing by either party, including compliance with any communication made to drivers or accompanying personnel. All goods and documents of any type whatsoever will be released to the forwarder’s employees at the sole risk of the principal, unless expressly or implicitly otherwise agreed in advance with the forwarder or one of his authorized employees.
- All orders placed with the forwarder must contain marking, number, type and content of the consignments, as well as any other information necessary for the proper execution of the orders. The principal will be liable for any consequences of incorrect or incomplete information (even if he was not responsible for the release), unless the forwarder had prior knowledge of the incorrectness or incompleteness of the information. The forwarder is only be obliged to review and supplement such information without being requested to do so if this accords with general business practice. Furthermore, the principal will be liable for any damage caused by the forwarder or third parties due to the absence of weight specifications on freight with a minimum gross weight of 1,000 kg.
- The forwarder is obliged to weigh the goods only upon special written request to do so.
- A receipt issued by the forwarder will, in case of doubt, not include a guarantee as to the type, content, value, weight or packaging of the goods.
- The goods receipt will not include confirmation of quantity, if this is not usual in the forwarding industry (such as bulk goods, lorry-loads, and the like).
Should manufacturers or dealers of specific products release a consignment without statement of contents to the forwarder for dispatch, it will be assumed in case of doubt that the consignment contains the products of the dispatcher. The terms and conditions set out in Section 7 remain unaffected.
The principal will notify the forwarder without delay of his address and any change of address. Otherwise, the last address known to the forwarder will apply. Section 10
- Unless specifically requested in writing, the forwarder is not obliged to send notifications by registered mail, or to insure documents of any type whatsoever prior to dispatch.
- The forwarder is not obliged to verify the authenticity of either the signatures on any communication or other documents concerning the goods, or the authority of the signing officer, unless otherwise agreed upon with the principal in writing, or unless the lack of authenticity or authorization is obvious.
- The forwarder is entitled, but not obliged, to consider a notification (advice) sent by him to be sufficient evidence of dispatch. He is entitled, but not obliged, to verify the authorization of any party presenting documents to him.
- Any instructions made with respect to the goods will be decisive for the forwarder pending the principal’s revocation of it.
- An instruction to hold goods at the disposal of third parties cannot be revoked once the forwarder has received these instructions.
An instruction by the principal to carry out an order on account of a third party will not affect the principal’s obligation towards the forwarder.
In case of insufficient or impractical instructions, the forwarder is entitled to act at his own discretion in the interest of the principal, and in particular to choose the type, route or means of transportation.
The forwarder may dispatch the goods together with those of other consignors in consolidated shipments or on a general bill of lading, unless he has been expressly ordered in writing to proceed otherwise. The acceptance of a package cargo bill of lading will not be deemed to be a contrary order.
If the forwarder accepts the goods together with a bill of lading or any other freight document (waybill/consignment note) given to him by the principal, the forwarder is entitled to convey the goods with a new bill of lading bearing his trade name and the name of the principal, unless the latter has stipulated otherwise.
IV.Inspection, Maintenance and Packing of Goods
- In the absence of a written agreement, the forwarder is only be obliged to inspect, maintain and rectify any damage to the goods and their packaging within the scope of general business practices. Section 388 Para. 1 of the Austrian Commercial Code remains unaffected.
In the absence of instructions to the contrary, the forwarder is entitled to make all declarations required by the Austrian Federal Railways concerning lacking or deficient packaging.
V.Time Periods and Deadlines
No guarantee will be granted for loading times or a specific sequence of goods handling to be transported in the same manner unless specifically agreed. In the absence of such an agreement, goods marked as trade or fair goods will not receive preferential handling.
VI. Force Majeure
Circumstances (including strikes and lock-outs) for which the forwarder is not responsible, but which prevent him in whole or in part from fulfilling his obligations, will release him from his obligations in connection with the orders affected by such circumstances, as long as such circumstances continue. In such cases the forwarder will be entitled but not obliged (even if a fixed date for acceptance of the goods has been agreed) to withdraw from the contract, even if the order has already been partially carried out. In such cases the principal is entitled to the same rights, provided that he cannot be reasonably expected to execute the contract. Should the forwarder or the principal withdraw from the contract in accordance with the provisions set out above, the forwarder must be recompensed for all resulting costs. Section 19
Within the scope of his duty to be diligent, the forwarder must check whether legal or official impediments exist concerning forwarding, and must inform the principal accordingly.
VII. Forwarder’s Services, Remuneration and Expenses
Offers by the forwarder and agreements with him regarding price and services always refer to his own services or those of third parties, and to goods of normal size, weight and characteristics. The following presumptions are made: Normal unfettered transport, unimpeded access and the possibility of immediate on-shipment Furthermore it is assumed that freight rates, exchange rates and tariffs upon which the quotation was based remain valid. The forwarder may charge the usual supplements and surcharges, provided that he has drawn the principal’s attention to them. The note „plus the usual ancillary charges“ is sufficient for this purpose.
Should an order be withdrawn, the forwarder is entitled at his own discretion to demand either payment of the agreed remuneration (minus expenditures not incurred), or of a reasonable commission fee.
Should a consignee refuse acceptance of a consignment dispatched to him, the forwarder is entitled to reasonable remuneration for the return transport of such a consignment. Should the forwarder incur expenses due to delayed acceptance of delivery, such expenses will be borne by the principal.
The commission will also be collected if a C.O.D. or other collection order has been withdrawn retroactively, or if payment for an order has not been received. Section 24
If the forwarder has arranged for the shipment of goods to a foreign country up to the recipient’s door at a fixed percentage of the invoice value (including customs charges), the principal is obliged to declare the total invoice value irrespective of any cash discounts granted (including customs, freight and packing charges).
- The instruction for shipment to a destination in another country includes instructions for customs clearance, if this is necessary for arranging the transport to the place of destination.
- The forwarder is entitled to an extra fee for customs clearance, over and above the actual costs incurred.
- The instruction to forward bonded goods or to deliver them free house, authorizes the forwarder at the same time to effect customs clearance at his own discretion (Section 13) and to advance the applicable customs and excise duties and fees.
- Should the principal give the forwarder instructions concerning the handling of customs formalities, these must be strictly complied with. Should the handling of customs formalities according to the principal’s instructions not be possible, the forwarder must inform him accordingly without delay.
The order to receive incoming goods authorizes (but does not oblige) the forwarder to pre-pay all charges imposed on the goods concerning freight, collection fees, customs duties and expenses incurred.
The forwarder is entitled at his own discretion to demand payment from foreign consignees and principals either in the currency of their country or that of Austria, under observance of existing foreign currency regulations.
If the forwarder owes foreign currency amounts, or if he advances sums in foreign currencies, he can demand (unless stipulated otherwise by provisions under public law) at his discretion either payment in foreign or Austrian currency. If he demands payment in Austrian currency, the current exchange applicable on the day the order was commissioned will be used, unless he can prove to have paid a higher rate of exchange rate.
All the forwarder’s invoices must be paid promptly. Payments will be deemed in arrears by no later than a period of five days following their due date, with no reminders or other requirements (unless delay in payment according to law has already occurred at an earlier date). In case of default the forwarder is be entitled to charge local interest and expenses. Any further claims under law remain unaffected.
- At the request of the forwarder, the principal will immediately indemnify him against any claims concerning freight, contributions and settlements of average, customs duties, taxes and other levies made against the forwarder, especially in his capacity of authorized agent or owner of third-party goods. Otherwise the forwarder is entitled to take all measures he deems appropriate for his security or indemnification, even including (if justified by the facts and circumstances) the destruction of the goods themselves.
- The principal must inform the forwarder in an appropriate manner about all public law obligations arising from the possession of the goods. e.g. regarding customs regulations or trademark obligations.
Seizure of goods or any other legal action taken by public authorities does not affect the forwarder’s rights concerning the principal. The principal remains the forwarder’s contractual partner and is liable to the forwarder for any resulting consequences, even if he was not responsible for them. Any claims of the forwarder concerning the State or any other third party whatsoever remain unaffected.
Claims arising out of the forwarding contract and other related claims may only be set off against counter claims, if these are undisputed.
- Delivery of goods with discharging effect takes place when the goods are handed over to any adult person belonging to and present at the business or household premises of the recipient.
- In the absence of an agreement, the forwarder will place the goods in or on the conveyance (e.g. truck, loading ramp) in front of or, if possible, on the consignee’s property for the latter’s acceptance.
- The consignee may request that the goods are unloaded in a courtyard, onto ramps, into rooms, onto shelves and the like at his own risk and expense. This does not apply for goods weighing more than 50 kg apiece, or for goods which, due to their bulk, cannot be carried by one person alone.
- Upon acceptance of the goods, the consignee is obliged to immediately pay all costs concerning to the goods, including C.O.D. charges. Should payment not be effected, the driver and accompanying personnel are entitled to re-appropriate the goods.
- If payment of the costs upon delivery (including C.O.D. charges) is omitted inadvertently or not effected for any other reasons whatsoever, the consignee is obliged (should he fail to pay the required amount despite a reminder) to return the goods immediately and unconditionally to the forwarder, or if he is unable to do so, to pay damages to the forwarder. Assertion of counterclaims, rights of retention or disposition of the goods are not allowed.
- Insurance of Goods
(Transportation, Fire Insurance, etc.)
- The forwarder is not obliged to insure the goods unless an express written order (including the value to be insured and risks to be covered) has been concluded. In case of not unclear or unfeasible insurance cover, the forwarder is entitled to determine the type and scope of such insurance at his own discretion. Insurance policies will not enter into force until the forwarder, in the ordinary course of business, has been able to take out such policies.
- The forwarder is not entitled to consider the mere statement of value as an order to take out an insurance policy.
- The acceptance of an insurance policy certificate by the forwarder does not mean that he assumes the obligations concerning the insured party. However, the forwarder must take all reasonable measures to ensure the maintenance and support of all insurance claims.
In the absence of a written agreement to the contrary, the forwarder is only obliged to have insurance coverage in accordance with the usual terms and conditions relevant to his place of performance, but not including breakage risk. The forwarder will always be considered to have fulfilled his mandatory obligation to take out insurance, if coverage under an open-cargo policy has been provided.
- Should coverage be provided under an insurance policy, the principal is only entitled to such compensation as the forwarder has received from the insurer subject to the terms and conditions of such a policy.
- The forwarder has fulfilled his obligations upon assigning his claims against the insurer to the principal at the latter’s request. The forwarder is only obliged to pursue claims on the basis of special written agreements and at the principal’s risk and expense.
- The forwarder is not liable for damages covered under an insurance policy concluded by him in the name of the principal.
- Should the principal take out the insurance himself, any claims against the forwarder for damages concerning the risks covered under such insurance will be excluded (i.e. they cannot be assigned to the insurer).
The forwarder is entitled to special remuneration for obtaining insurance, collecting damages, compensation and other efforts involved in the handling of insurance cases and sea damage.
X. Forwarder’s Risk and Cartage (Haulage) Insurance Policies
- The forwarder will conclude, unless expressly forbidden by the principal in writing, a policy with the insurer of his choice and at the principal’s expense, covering all damage, which could be caused by the principal in the course of the order’s execution by the forwarder. Such an insurance policy must at least meet the requirements of the
Forwarder’s Risk and Cartage Insurance Policy (“Speditions- und
Rollfuhrversicherungsschein”, “SVS/RVS”), particularly concerning the scope of the policy’s coverage. The forwarder will make a record of premiums paid for each individual transport agreement under every order, and remit them in full to the insurer concerned in the form of expenditures incurred by the principal exclusively for payment of the forwarding insurance. The forwarder undertakes to report to the principal, at the latter’s request, the name of the company from whom he has taken out the forwarding insurance.
- To the extent provided for in the Forwarder’s Risk Insurance Policy (“Speditionsversicherungsschein”, “SVS”), all damage, which could be caused by those persons entitled to claim coverage at the time when the event causing the damage occurred, will also be insured.
- It is most strongly emphasized that, according to Section 5 Para. 1 of the Forwarder’s Risk Insurance Policy, all damage covered by transport or warehousing insurance, or otherwise usually covered under such insurance, is excluded from the scope of the forwarder’s insurance. On the other hand, the principal will be insured against socalled cartage damage in accordance with the Cartage Insurance Policy unless he has explicitly refused such additional insurance in writing.
- If the principal provides forwarding insurance himself, any claims for damages against the forwarder concerning risks covered by such an insurance policy will be excluded and may not transferred to the forwarder’s insurer.
The principal, as well as all those persons in whose interest or for whose account he acts, will be subject to all terms and conditions of the Forwarder’s Risk and Cartage Insurance Policies. In particular, the principal must ensure that all damage is reported promptly (Section 10 of the Forwarder’s Risk Policy).
- If the forwarder has provided coverage under the Forwarder’s Risk Policy in compliance with an explicit or assumed order (Section 39), he will be released from liability for any damage covered under such a policy. This also applies in particular if the insured sum falls short of the actual value or damage claim due to lacking or insufficient statement of value by the principal.
- In case of dispute, the competent court will exclusively resolve the issue of whether damage is covered by the Forwarder’s Risk Policy.
- Should the forwarder not have concluded a Forwarder’s Risk Policy in accordance with Section 39, he may not invoke the General Austrian Forwarders‘ Terms and Conditions concerning the principal.
- (a) through (c) apply analogously to the insurance covered under the Cartage Risk Policy.
The second and third sentences of Section 35 Para. (a), apply analogously to the Forwarder’s Risk and Cartage Insurance Policies.
- Warehousing will be carried out at the warehouse keeper’s discretion, either in his own warehouse or that of a third party (private or public). Should the warehouse keeper store goods in a third party’s warehouse, he has to inform the depositor in writing of the location of the warehouse and the name of its keeper or, in case of a warehouse warrant, to mark these on the warrant. This provision does not apply in cases of warehousing abroad or warehousing connected with the transportation of the goods.
- If the warehouse keeper has stored the goods in a third party’s warehouse, the relationship between the principal and himself according to Section 2 Para. (c) will be subject to the same terms and conditions, which apply to the relationship between the warehouse keeper and the third party concerned. If requested to do so, the warehouse keeper must supply the principal with details of such terms and conditions. However, the terms and conditions of the third-party warehouse keeper will not apply to the relationship between the principal and the warehouse keeper, to the extent that they include a right of lien exceeding the scope of the lien set out in Section 50 of these terms and conditions.
- The warehouse keeper is only liable for the security and surveillance of the warehouse to the extent that he himself is the proprietor and the security and surveillance of the warehouse is deemed reasonable and usual under consideration of all circumstances concerning the warehouse location. The warehouse keeper is deemed to have fulfilled his surveillance duty, provided that he has applied due and proper diligence upon recruiting and hiring security personnel.
- The depositor is entitled to inspect the warehouse or have it inspected. Objections or complaints about the storage of the goods or the choice of warehouse must be made without delay. If he does not exercise the right of inspection, he waves all rights to objections against the storage and warehousing, as long as the choice and type of storage complies with the due and proper diligence of a prudent warehouse keeper.
- The depositor can only access the warehouse if accompanied by the warehouse keeper or an employee duly authorized by him.
- Access to the warehouse may only be granted during the warehouse keeper’s normal business hours, and only if the work can be conducted during daylight.
- Should the depositor handle the goods in any way whatsoever (e.g. taking samples), he will return them to the warehouse keeper in a manner appropriate under the circumstances and complying with customary business practice, and, if necessary, inspect and record the quantity, weight and state of the goods together with the warehouse keeper. Otherwise, the warehouse keeper is released from any liability for damages, which are subsequently discovered.
- The warehouse keeper reserves the right of handling the stored goods by his own employees in the manner requested by the depositor.
- The depositor is liable for all damage to the warehouse keeper, other depositors or the property owner, caused by his employees or agents upon entering or driving into the warehouse or warehouse property, unless he, his employees or agents are not responsible for the damage. Agents of the depositor include also third parties visiting the warehouse or the warehouse property on the depositor’s authority.
- The warehouse keeper may not assign the rights to third parties, which he is entitled according to Para. (a), provided that such rights exceed the scope stipulated by law.
- Unless otherwise agreed in writing, the warehouse keeper is entitled to terminate the warehouse contract by giving one month’s advance notice by means of registered letter to the address last known to him.
- Termination without advance notice is allowed in particular if the goods concerned constitute a hazard to other goods stored.
- If the warehouse keeper has reasonable doubt that the security of his claim is covered by the value of the goods, he is entitled to set a reasonable time limit for the depositor to either secure the claims of the warehouse keeper or to make alternative provisions for the storage of the goods. If the depositor does not comply with this, the warehouse keeper is entitled to terminate the contract without further notice.
- As soon as the goods have been duly and properly stored, either a warehouse warrant or a warehouse warrant made out to a named person is to be issued upon request. In case of doubt, the certificate issued by the warehouse keeper will be considered to be merely a warehouse warrant.
- The warehouse warrant constitutes merely a certificate of goods received by the warehouse keeper, who is not obliged to release the goods to any party presenting the warrant.
- The warehouse keeper is entitled, but not obliged, to check the identity of the party presenting the warrant. Accordingly, the warehouse keeper may release the goods immediately to any party presenting him with the receipt.
- Any assignment or pledging of the depositor’s rights arising from the warehouse contract is not binding on the warehouse keeper until the depositor has informed him about it in writing. In such a case only the person who has been assigned or pledged the depositor’s rights concerning the warehouse keeper, is entitled to deal with the stored goods.
- If a warehouse warrant to a named person has been issued, the warehouse keeper is only authorized to release the goods against presentation of the warrant, and not against a delivery note, delivery order or the like. In case of assignment, the goods may only be released to the holder of a warehousing warrant whose authority can be traced back on the basis of the assignments listed in uninterrupted sequence on such a receipt.
- The warehouse keeper is not obliged to verify
- the authenticity of the signatures appearing on the declarations of assignment;
- the authenticity of the signatures appearing on the delivery order or the like;
- the authority of the signatories under Clauses (1) and (2) above, unless otherwise agreed with the principal, or if a lack of authenticity or authority is obvious.
- Any assignment or pledging of the depositor’s rights arising from the warehousing contract will not be binding on the warehouse keeper, unless confirmed on the warehouse receipt in writing and, in the case of a pledging, also reported to the warehouse keeper.
- In accordance with the terms and conditions set out above, the warehouse keeper may only dispute the depositor’s authorized legal successor on the basis of the validity of the issuance of the warehousing warrant, or objections concerning the warrant itself, or with other objections to which the warehouse keeper is directly entitled concerning the legal successor concerned. The warehouse keeper’s right of lien or retention as stipulated by law remains unaffected.
The provisions of this section also apply to temporary storage of goods, e.g. for purposes of shipment (unless stipulated otherwise in Section 43).
XII. Right of Lien
- The forwarder has a right of lien and retention on all goods or other valuables in his possession to cover any accounts receivable, whether due or not due, to which he is entitled concerning the principal on the basis of his activities as set out in Section 2 Para. (a). To the extent that such right of lien or retention, in the sense of the preceding sentence, is used to secure accounts receivable not secured under legally stipulated rights of lien or retention, only those goods and valuables belonging to the principal will be covered.
- To the extent that the right of lien or retention as set out in Para. (a) above should exceed the legally stipulated rights of lien or retention, it covers, in the case of orders placed by one forwarder with another, only those goods and other valuables, which belong to the principal forwarder or which the commissioned forwarder possesses or is entitled to possess in the name of the principal forwarder (e.g. removal van, blankets).
- The 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 forwarder at risk.
- In connection with an order, the forwarder is not entitled to keep the goods at a third party’s disposal or to release them to a third party, or to exercise his right of lien or retention with respect to accounts receivable from a third party, which are not connected with the goods concerned, to the extent that and as long as the exercise of such right could be in contradiction to the instructions and the legitimate interests of the original principal.
- The provisions set out above do not affect any of the forwarder’s further legal rights of lien or retention.
- If a threat of forced sale arises, the debtor will be granted a period of one week to settle the matter. The debtor must be notified of any sale of the goods.
- For sales under lien or upon resale of goods without recourse to legal process, the forwarder may charge in any case a sales commission on the gross proceeds in an amount conforming to local rates.
XIII. Forwarder’s Liability
- As a rule, the forwarder is only liable for all his activities (Section 2 Para. [a]) to the extent that he is at fault. The forwarder carries the burden of proof. However, if no damage to the goods was externally recognizable, or if it cannot be reasonably expected of the forwarder under the circumstances to have clarified the cause of such damage, the principal must prove that the forwarder was responsible for the damage.
- Furthermore, the forwarder’s liability is limited or not applicable, subject to the provisions set out above and below, except in the case of intent or gross negligence.
- The principal is free to arrange for liability coverage with the forwarder beyond the scope of these terms and conditions against special compensation, apart from the insurance mentioned above (Sections 35 and Section 39). Such an agreement must be in writing.
- Should damage have been caused to a third party, i.e. a freight carrier, warehouse keeper, shipping company, interim or sub-forwarder, insurer, a railway or freight collection point, banks or other enterprises involved in the execution of the order, the forwarder will assign any of his claims concerning the third party to the principal at the latter’s request, unless the forwarder, on the basis of a special agreement, pursues the claim on the account and risk of the principal. The third parties mentioned above will not be considered to be vicarious agents of the forwarder.
- Any further obligation or liability of the forwarder only exists if he is in culpable violation of his obligations as set out in Section 408 Para. 1 of the Austrian Commercial Code.
- The forwarder is also liable subject to these terms and conditions in cases concerning Sections 412 and 413 of the Austrian Commercial Code.
The forwarder’s liability ends as soon as the goods have been made available for acceptance by the consignee (Section 33 Para. [b]) and have been accepted by him. Section 54
- To the extent that the forwarder is actually liable, his liability is limited to:
- € 7.267,28 for each damage claim resulting from misappropriation or embezzlement by the forwarder’s employees. This does not include legal agents, holder of a statutory authority, whose actions are not subject to limited liability. A case of damage in the sense of this provision is defined as any damage caused by an employee of the forwarder through misappropriation or embezzlement, irrespective of whether other employees of the forwarder are involved in the damage concerned, and whether the damage affects one sole principal or several independent principals of the forwarder. The forwarder is obliged upon request to inform his principal whether he has covered this liability risk and, if so, with which insurance company.
- € 1,09 per kg of gross weight of each damaged or lost package, however not to exceed € 1.090,09 per damage claim.
- € 2.180,18 maximum liability per damage claim other than that set out in Clause 1.
- Should the stated value of the goods be lower than that set out in Para. (a) above, the stated value forms the basis for assessment.
- Should the relevant value in the sense of Para. (b) above be higher than the common market value or, in its absence, higher than that common value, which is applicable to goods of the same type and character at the time and place of their release to the forwarder, said common market value or other common value supersedes the stated value.
- In case of discrepant values, the lower value applies in each case.
In case of material damage to goods having an independent value (e.g. machine parts), or damage to any of several objects belonging together (e.g. household furniture), any eventual decrease in value of the rest of the object, or the remaining objects or parts, will not be taken into consideration.
- In the case of goods worth more than € 29,06 per kg of gross weight, and with respect to money, documents and official stamps and coupons, the forwarder is only liable for damage of whatever kind, if he has received a written statement of value from the principal in sufficient time for him to have been able to conclusively decide about the acceptance or rejection of the order, as well as precautionary measures to be taken with respect to the acceptance, custody and dispatch of the goods.
- A statement of value given to drivers and accompanying personnel has no legal effect unless it has been received by the forwarder or one of his commercial employees authorized to do so, or unless otherwise agreed.
- (a) above is applicable if the principal can prove that damage has been caused by circumstances other than the omission of a statement of value, or that it would also have been incurred if a statement of value had in fact been made.
- The provisions of the other Sections remain unaffected, in so far as they limit liability or render it inapplicable beyond the scope of the provisions of this Section.
Section 57 The forwarder will not be liable for:
- (1) damage (including in particular damage caused by theft) to unpacked or inadequately packed goods, unless a special written agreement concerning such liability has been concluded in advance;
- goods which are deemed to be unpacked or inadequately packed in accordance withapplicable terms and conditions of conveyance; such goods will also be deemed unpacked or inadequately packed by the forwarder;
- externally recognizable damage to packaging appearing at once or at a later time;the forwarder may remedy such damage at the principal’s expense, but does not assume any liability extending beyond the liability set out in the preceding paragraphs.
- damage caused by outdoor storage, if such storage was agreed upon, or if another type of storage was inappropriate according to normal business operations or under the circumstances prevailing at the time;
- damage caused by theft in the sense of Sections 127 of the Austrian Penal Code, or through blackmail or robbery in the sense of Sections 144 and 142 of the Austrian Penal Code;
- the direct or indirect consequences of any other occurrence, which cannot be attributed to the forwarder (e.g. acts of God, weather conditions, defective equipment or cables, impact of other goods, damage caused by animals or natural change in the goods themselves);
- damage and loss caused during inland waterway shipping (including pre-carriage and on-carriage transportation via land vehicles, as well as preliminary, interim and oncarrying storage) which is covered under transport or warehouse insurance, or which could have been covered by transport or warehouse insurance policies of the usual kind, or which can be covered applying the usual principles of diligent business practice above and beyond the scope of transport or warehouse policies of the usual sort, unless any duly concluded insurance policy is rendered ineffective due to improper action on the part of the forwarder.
- If damage could have arisen as a result of one of the risks defined in Section 57, it will be assumed that it actually arose in this way. In such cases, the forwarder will only be liable to the extent that it can be proved that he caused the damage.
- The provisions of the other Sections remain unaffected, provided that that they limit liability or render it inapplicable beyond the scope of the provisions of Sections 57 and 58 Para. (a).
The forwarder will be exempted from any liability if he is able to prove that he delivered the goods in the same external condition in which he had received them. The forwarder’s obligations as set out in Section 388 of the Austrian Commercial Code remain unaffected.
- All damage, even if not externally recognizable, must be reported to the forwarder in writing without delay. If the goods have been delivered by a forwarding agent, the forwarder delivering the goods must be in possession of the damage report by no later than the sixth day following that of delivery.
- In cases of non-compliance with this provision, damage will be deemed to have occurred subsequent to their delivery.
- Should the forwarder receive a damage report at a time when it is no longer possible for him to safeguard rights against third parties, the forwarder will not be responsible for the consequences.
In all cases, in which the damage amount to be paid or voluntarily offered by the forwarder covers the full value of the goods, he will only be obliged to effect payment subject to backto-back transfer of the goods, and against assignment of all claims to which the principal or payee is entitled concerning third parties with respect to the goods. Section 62
Unless limited in its meaning by preceding clauses, damage as used in these terms and conditions is to be understood in the broadest sense of the term (cf. Section 1295 of the Austrian Civil Code), thus including in particular total or partial loss, diminution, decrease in value, breakage, damage through theft as well as consequential damages.
- Should the forwarder claim one of the liability restrictions or exemptions set out in these terms and conditions, no objection may be raised asserting a case of unlawful action.
- Should a third party directly or indirectly interested in the subject or execution of the order placed with the forwarder assert claims against the forwarder for reasons of allegedly committed unlawful action which, according to Para. (a), may not be asserted against the forwarder, the principal will indemnify the forwarder against any such claims without delay.
XIV. Statute of Limitations
All claims asserted against the forwarder, irrespective of their legal basis and the degree of fault, are subject to the Statute of Limitations following the expiration of a period of six months. The limitation period begins upon the beneficiary’s awareness of his claim, however, no later than upon delivery of the goods.
- Place of Performance, Jurisdiction and Applicable Law
- The place of performance is where the forwarder receiving the order has his commercial head office.
- The place of jurisdiction for all matters of legal dispute arising from the contractual relationship or in connection therewith will be the place of performance where the forwarder receiving the order has his commercial head office. This jurisdiction will have exclusive competence in all matters concerning claims against the forwarder.
- Austrian law applies to all legal relations between the forwarder and the principal, and the latter’s legal successors.
Annex 1 to Sections 39 – 42 of the Austrian Forwarders‘ Terms and Conditions
Forwarder’s Risk Insurance Certificate
The insurance is concluded on account of a third party. The owner of the goods is insured as principal or the party, who has an insured interest at the time when the circumstances led to the damage.
General Third Party Liability Issues
- The insurers are liable for all damages suffered by the insured party under a transportation contract, for which the forwarder can be legally held responsible.
- A transportation contract under this Forwarder’s Risk Insurance Certificate is to be understood as:
Any forwarding, freight or warehouse contract within Austria, including any subsidiary contracts, even if these are independent contracts, such as collections, weighing, other quantity determination, packing, sampling, loading, unloading, customs, mediation of transport, fire and housebreaking insurance, but excluding any other insurance proposal of any kind (cf. Section 9).
General Insurance Coverage
- The insurers will compensate any mandatory damage concerning the liability of the insured party under a transportation contract. They waive any objections that the forwarder could claim under the General Austrian Forwarders‘ Terms and Conditions or any other agreement, trade or transportation practice regulations concerning exclusion or limitation of mandatory liability.
- The insurance also covers claims of the insured party not based on the transportation contracts, but on property, illegal behaviour or unjustified enrichment, as long as these claims are connected to a transportation contract concluded with the forwarder.
- The insurance also covers claims resulting from failure to seek recourse, if it can be established that the insured party suffered damage.
- Intentional damage caused by the forwarder, his legal agents, employees or vicarious agents, is also covered.
- The insurer covers damage to goods and property damage (loss of earnings) as long as these claims are directly connected to a transportation contract concluded with the forwarder.
The insurance also covers the following claims of the insured party against the forwarder:
- Claims concerning the negligent choice of intermediate forwarder or warehouse keeper.
- Claims concerning damage, including wilful damage (cf. Section 5 Para. 6), for which an intermediate forwarder, whether from Austria from Europe (including Turkey), can be legally held responsible; the insurer has to approve in advance any extension of the intermediate forwarder’s liability outside of Europe.
Limitation of Liability
The following claims are not covered by the insurance policy:
- All damages covered by another insurance policy, in particular transportation, warehouse keeping (e.g. housebreaking, water and storm) or the Forwarder’s Risk Insurance Certificate, unless such a properly concluded insurance policy is invalidated by default of the forwarder;
- Damage to goods caused abroad by foreign intermediate forwarders or other
companies in the execution of a transportation contract;
- Damage to goods forwarded by sea or inland waterway;
- All damages that basically fall within the responsibility of a long-distance traffic forwarder;
- Claims between the insured party and the forwarder that are not common to the forwarding industry trade (e.g. penalties, guaranteed delivery deadlines), and all other claims based on agreements between the forwarder and the insured party, which are not based on activities covered by Section 2 Para. 2, or that exceed the mandatory third party liability of the forwarder;
- All damages resulting from embezzlement or speculation;
- Damage to goods during storage, if these damages resulted after being stored for 15 days (Sundays and holidays not included) under a warehousing contract;
- Personal injury;
- In the event that the insured party at the time of the carrier order has sold the goods he/she shall receive, as amaximum, the sales price, taking into account any actual or saved cash expenses (freight rates, costums duties, etc.), unless it has been possible to suply the damaged or lost goods from the seller entitled to the claims. In the latter case the insurers shall only pay the original costs of the damaged goods.
- Damages directly or indirectly caused by war, public disorder, looting, strikes or civil unrest;
- Damages caused by nuclear energy and radioactivity.
Insurance Proposal, Sum, Value and Notification
- Every transportation contract including warehousing covered by these provisions is insured.
- The following applies in general to transportation contracts:
- The principal is entitled to refuse insurance coverage. The refusal has to be communicated in writing to the authorized broker by the forwarder or the principal of the insured party. It can only be withdrawn by written notice, and, if need be, sent immediately to the authorized broker.
- Insurance value and sum
- The insurance value is the selling price, or lacking that the common market value or market value that the goods have upon issuance of the transportation contract at the place of taking over the goods, including transportation and forwarding costs as well as customs fees and duties. If the principal or other insured party under Section 1 want to insure the transportation contract for more than € 1.453,46, then they have to advise the forwarder in writing immediately upon notification, but latest before completion of the contract.
- The forwarder is entitled to estimate the value, even if he has not been asked to do so. In this case he should do it upon acceptance of the contract, but latest before completion, based on proper documentation.
- If the forwarder has been given no instructions under Clause (a), or not asked to estimate under Clause (b) above, then every transport contract under Section 2 for the insured party under Section 1, is to be insured up to a maximum of € 1.453,46 (cf. Section 8 Para. 3).
- If the forwarder mistakenly fails to notify the insurance contract, an insurance value exceeding € 1.453,46 under Para. (a), pay the premium or completely omits to insure the goods, then this should not be to the detriment of the insured party. In the case of failure to notify a value above € 1.453,46, then this is only valid if the principal or any other insured party under Section 1 has fulfilled Para. (a).
- The maximum insurance coverage for a single transportation contract is € 1,090.092,51. The insured party can not claim underinsurance for a contract exceeding this value, which has been valued at this sum.
- The forwarder is obliged to notify the insurers‘ authorized broker about all transportation contracts and pay the premiums at the end of every calendar month, but latest on the 10th day of the following month. The forwarder is obliged to notify the insurers‘ authorized broker about transportation contracts with a value above € 1.453,46 at the end of every calendar month, but latest on the 10th day of the following month, stating the insurance value, marking, contents and number of packages, on the corresponding specifications form.
Insurers‘ Right of Inspection
The insurers are entitled to check the notification of the forwarders by examining the company books and other documents, insofar as they concern the insurance. The insured parties have the same right.
Compensation for Damages
- In all circumstances the insured sum shall, as defined in § 6 para B.2 a), constitute the maximum limit of the damages to be paid. In the event of underinsurance the companies shall only be liable for the respective percentage. For pure damages to property the insurance sum shall be increased by 100%.
- Otherwise the insured party receives at most the common market value or market value of the goods at the place of delivery, upon issuance of the transportation contract, taking in to account any expenses or savings.
- Damages occasioned directly by the use, forward, or re-payment of advances, reimbursements, etc. not according to purpose. Any further damage occasioned in the process shall not be affected thereby.
- The insurers are also liable to the insured parties for circumstances covered by Section 12 Para. 2, Section 15 and 16, in particular about termination of the insurance policy without notice for any transportation contracts up to the effectiveness of the termination.
- The insurers are liable to the extent of their participation (Section 19) for all damages arising and claimed under this contract up to a sum of € 1,090.092,51, even if a number of insured parties of the same forwarder have been affected by the damage concerned.
- In the case of storage under a transportation contract, whether prior to, intermediate or afterwards, the maximum liability for fire damage caused by the forwarder is € 1,090.092,51.
- The forwarder’s liability for damages due to faulty mediation or complete omission to notify a transport, fire and housebreaking insurance is € 181.682,08 per damage claim.
Damage Claims, Obligations of the Insured Parties and of the Forwarder, Time of Limitation
The insured party has to report any damage immediately in writing, but latest within a month of knowing about it, to the insurers‘ authorized broker or via the forwarder. The grace period is maintained if the notification has been sent in time. If the forwarder is negligent in reporting the damage within the grace period the insurers are released from their duty to provide insurance coverage.
The insured party is obliged to prevent or minimize any damage, taking into account any instructions of the insurers. He is also obliged to give the insurers any information or documents requested. He is effectively obliged to do everything to help clarify the damage that will be and can be justly requested by the insurers. If he breaches these obligations in a gross negligent or wilful manner, then the insurers are released from their duty to provide insurance coverage.
The forwarder is obliged in the same manner to prevent or minimize any damage, taking into account any instructions of the insurers. He is also obliged to give the insurers any information or documents requested. He is effectively obliged to do everything to help clarify the damage that will be and can be justly requested by the insurers. If the forwarder, his legal representative, proxy or an independent manager of a branch office, breaches these obligations in a gross negligent or wilful manner, then the forwarder is liable to the insurers for full reimbursement of the resulting damages.
Payment of the damage claim is made to the insured party or his delegate.
If the damage is caused by defective loading under a transportation contract or defective storage of insured goods, the insurers will compensate the forwarder for any supplementary costs, including any telegram, telephone and postal fees, which were incurred or had to be incurred to avoid any further damage, if a mandatory claim could be made against him by the principal or any other insured party under Section 1 (see however Section 14). The forwarder is obliged to report the defective loading immediately to the authorized broker after he has knows it, and to give all relevant information. If the case of gross negligent or intentional breach of these responsibilities, the insurers are released from their duty towards the forwarder. The claims of the principal remain unaffected.
Assignment and Devolution of Rights
- Once a damage claim has been made the insured party’s rights under this contract cannot be assigned against the insurers to someone other than the forwarder.
- Claims by other insured parties in the case of a mandatory devolution are excluded from this insurance contract.
- The forwarder’s rights can not be assigned to other persons that the insurers.
Right of Recourse of the Insurers
- The insurers waive their right of recourse against the forwarder, his employees or any intermediate forwarders, who have signed the Forwarder’s Risk Insurance Policy.
- However the insurer has the right of full recourse against anybody who caused a damage intentionally.
- Premiums have to be paid for every transportation contract with any principal. If the transportation contract includes dispositions to a number of recipients, then each disposition is a contract subject to a premium, unless it concerns collection by the customer. In this case there is an insured transportation contract not subject to a premium.
- The premium rates for each transportation contract (including insurance premium tax) are detailed in the premium schedule.
- The respective premium will be charged for any temporary warehousing up to a period of 15 days (Sunday and holiday not included) directly connected to a forwarding and freight contract. In the case of any temporary warehousing made in connection with a
warehousing contract for the same period, the premium will be charged from the beginning of the storage. The premium for warehousing contracts will be charged from the beginning of each month. If the warehousing contract includes further services, such as commissioning, packing, pricing or the like, then the premium is doubled from the beginning of storage.
Damage Contribution by the Forwarder
- The forwarder has to immediately reimburse the insurers‘ authorized broker 10% of any sum per damage claim paid by the insurers, but at least € 10,90, up to a maximum of € 181,68. The first forwarder is entitled to claim his risk contribution from the party who caused damage resulting in a claim satisfied by the insurers.
- The contribution of the forwarder towards the damage increases from 10% to 20% if a legal representative, proxy or independent manager of a branch office has caused the damage intentionally or criminally, and if the forwarder has breached the supervision obligation of a prudent businessman. The maximum contribution in such a case is € 726,73. Section 12 Para. 2 remains unaffected.
Compensation of the Forwarder
The forwarder is liable for full compensation towards the insurers in the following cases (with the exception of those covered by Section 10 Para. 3 and Section 12 Para. 2):
- If he intentionally breached his notification responsibility under Section 6 Para. 2 Clause (b) (the burden of proof is on the insurers).
- If he is delayed by more than 2 weeks after receiving a reminder concerning an overdue premium. The reminder must be sent by registered letter.
- If the forwarder does not or refuses to remedy a defect causing damages due to substantial defects in his operation, which the insurers justly requested him to do on the basis of a previous damage occurrence, and if they had given him a grace period to remedy the defect, stating the legal consequences resulting from expiry of the grace period.
The insurers have the right of terminate the Forwarder’s Risk Insurance Certificate after approval of the Trade Association of Forwarders. This approval is deemed effective if it is not refused in writing within 4 weeks after receipt of the written notification of the insurers.
(1) Termination without notice
The insurers can terminate a contract without notice under the following circumstances:
- In cases under Section 12 Para. 2 and Section 15;
- If the forwarder has delayed payment of a sum due after receiving a reminder for any sum due under Section 14, or sum specifically known to him, or any sum under final judgement of an ordinary court. The reminder must be sent by registered letter, stating the legal consequences resulting from expiry of the grace period;
- Under any other mandatory requirements, in particular concerning a material matter. Insofar as a right to termination is covered by these provision, the contractual provision takes precedence over the law;
- The effectiveness of the termination without notice begins at the end of 5th day after the day, when the termination notice was handed over to the postal authorities.
- Particular right of termination
If the services of the insurer over a calendar year exceed the gross payments (minus insurance premium tax) made by the forwarder in the same period, the insurers are entitled to insist on specific reorganization measures by the forwarder during the following year. If no agreement is reached within a reasonable grace period, then the insurers are entitled to terminate the contract with a month’s notice.
- If the Trade Association of Forwarders and the insurers can not reach agreement, then an arbitration court will make the decision. Each party elects one arbitrator, who then elect the chairman. If the arbitrators can not agree on the chairman within 2 weeks, then he will be appointed on the suggestion of one of both parties by the President of the Federal Chamber of Trade and Industry, or if he is not available, by his deputy.
- The termination has to be sent by registered mail to the forwarder and the Trade Association of Forwarders.
Terms of Insurance
- This contract is valid from 1 January 1989 to 31 December 1989. It is extended annually, unless terminated with 3 month’s notice prior to the end of the calendar year. The termination has to be sent to the insurers‘ authorized broker.
If any amendments to this contract are made between the insurance companies participating in this insurance policy and the Trade Association of Forwarders, then these amendments take precedence over previous terms.
- The place of jurisdiction is Vienna for claims by the insurers against the forwarders concerning the payment of premiums or contributory damages under Section 14.
The leading insurer is authorized by the participating insurers to deal with all legal disputes, including their participation quotas as plaintiff or correspondent. The other insurers will recognize any court decision against the leading insurer as binding.
The authorized broker is entitled to assert the rights of the insurers under this contract in his own name.
Leadership Clause and Shareholder List
All the following insurance companies participate with their respective quotas in the Forwarder’s Risk Insurance Certificate, and to the exclusion of joint liability. The Wiener Allianz Versicherungs AG is responsible for management of the Forwarder’s Risk Insurance Certificate.
|Wiener Allianz Versicherungs AG (Leader)||14%|
|Anglo Elementar Versicherungs AG||11.6%|
|Erste Allegemeine Unfall- und Schadensversicherung Ges.||11.6%|
|Donau Allgemeine Versicherungs AG||9.3%|
|RAS-Österreich Adriatische Versicherungs AG||9.3%|
|Versicherungs Anstalt der österreichischen Bundesländer||9.3%|
|Winthethur Versicherungs AG||8.8%|
|Wiener Städtische Wechselseitige Versicherung||7%|
|Basler Versicherungs Gesellschaft||3.7%|
|Helvetia Schweizerische Feuerversicherung Ges.||3.7%|
|Nordstern Allegemeine Versicherungs AG||2.9%|
|Mannheimer Versicherungs Ges.||2%|
|Internationale Unfall- und Schadensversicherung AG||1.8%|
|Colonia Versicherungs AG||1%|
|Grazer Wechselseitige Versicherung||1% 100%|
|Substitute participant: Hannover International AG||1%|
Annex 2 to Sections 39 to 42 of the General Austrian Forwarders‘ Terms mad Conditions
Cartage Risk Certificate
Concerning Damage to Goods from Cartage Agreements in Local and
Scope of the Insurance and Instance Proposal
- On the basis of the following provisions the participating insurance companies named in the Forwarder’s Risk Insurance Certificate are liable for damages caused to goods during local or short-distance traffic haulage within Austria, if the forwarder or his agent are held responsible, and a legal claim can be made against them. Damages to goods stored up to 15 days (Sundays and holidays not included) directly connected to a haulage contract, are also covered.
Every haulage contract is covered, unless the principal has specifically excluded insurance in writing.
The haulage contract covers incoming and outgoing traffic, goods being taken to a warehouse and the transhipment involved. Any haulage contract directly connected to a transportation contract is also insured.
Limitation of Third Party Liability
The following is not covered by the insurance:
- All damages covered by transportation or warehousing contracts, unless a properly concluded insurance is invalidated by default of the forwarder;
Cases covered under Section 5 Para. 1 Clauses 5, 8, 9, 10 and 11of the Forwarder’s Risk Insurance Certificate under;
All other insurance cases covered by the Forwarder’s Risk Insurance Certificate.
Insurance coverage and Notification
- Every Haulage contract under Section 1 is covered to the insured value. The provisions of Section 8 of the Cartage Risk Certificate apply analogously.
The forwarder is obliged notify the insurers‘ authorized broker of all insurance cases concerning this insurance certificate at the end of every calendar month, but latest on the 10th day of the following month, on the corresponding form.
The premium rates for each transportation contract (including insurance premium tax) are detailed in the premium schedule.
Reference to the Forwarder’s Risk Insurance policy
Unless otherwise stated, the provisions of the Forwarder’s Risk Insurance Certificate apply.
 The above list and quotas are not up-to-date as many of the insurance companies have amalgamated, changed their legal identity or name. For up-to-date information, contact the Trade Association of Forwarders, Tel.: (++ 43 1) 50105-ext. 3240/3758
Dutch forwarding Conditions
In these Conditions, the following terms shall have the following meanings:
- Third party/parties: all of those persons, who are not employees, with whom the Freight Forwarder has an undertaking on behalf of the Client, irrespective of whether the Freight Forwarder has the undertaking in its own name or in the name of the Client;
- Services: all activities and work, in any form and by whatever name, including those performed by the Freight Forwarder for or on behalf of the Client;
- Freight Forwarder: the natural or legal person who performs Services on behalf of the Client and who uses these Conditions; this person is not
exclusively understood to be the Freight Forwarder referred to in Book 8 of the Dutch Civil Code;
- Client: every natural or legal person who provides the Freight Forwarder with an order to perform Services and concludes to that effect the Agreement,
rrespective of the agreed method of payment;
- Agreement: the agreement entered into by the Freight Forwarder and Client in respect of the Services to be performed by the Freight Forwarder, of which these Conditions form part;
- Force majeure: all circumstances that the Freight Forwarder has reasonably been unable to avoid and in respect of which the Freight Forwarder has reasonably been unable to prevent the consequences.;
- Conditions: these Dutch Forwarding Conditions.
- Good/Goods: the goods to be made available or made available to the Freight Forwarder, its agent or Third Parties by or on behalf of the Client, for the purpose of executing the Agreement.
- These Conditions govern all offers, agreements, legal acts and actual acts relating to Services to be performed by the Freight Forwarder, insofar as these are not subject to imperative law. These Conditions apply to the legal relationship between the parties, including once the Agreement has ended.
- Insofar as any provision in these Conditions is void or otherwise unenforceable, this does not affect the validity of the other provisions in these Conditions. Furthermore, considered to be applicable is such a stipulation (legally permissible) that is the closest to the purport of the void or voided stipulation.
- In case the English translation differs from the Dutch text, the latter will prevail.
The Client gives the Freight Forwarder free rein to engage the services of Third Parties to execute the Agreement, and to accept the (general) terms and conditions of those Third Parties at the Client’s expense and risk, unless agreed otherwise with the Client. At the Client’s request, the Freight Forwarder is obliged to provide (a copy of) the (general) terms and conditions under which it has entered into a contract with those Third Parties.
Conclusion of the Agreement
- All offers made by the Freight Forwarder are non-binding.
- Agreements, as well as amendments of and additions to these agreements, shall only become effective if and insofar as the Freight Forwarder has confirmed these in writing or the Freight Forwarder has started to perform the Services.
- The provision of information to the Freight Forwarder, that is reasonably provided to enable customs formalities to be carried out, shall imply an order, unless otherwise agreed in writing.
- This order is accepted by the Freight Forwarder by means of an explicit written confirmation or by the Freight Forwarder starting to carry out the customs formalities. The Freight Forwarder is never obliged to accept an order to carry out customs formalities.
- If the Freight Forwarder becomes familiar with information or conditions which would indicate that the Client has not complied with article 9 paragraph 3 of these Conditions (has provided incorrect and/or incomplete information and/or documents) and on the basis of which the Freight Forwarder has not accepted the order to carry out customs formalities, the Freight Forwarder is at all times entitled to end this order and not carry this out (any further), which may or may not be set out in an additional agreement and/or authorisation, without any obligation to pay damages.
Remunerations and other costs
- All prices quoted shall be based on the prices that apply at the time of the offer (quotation). If between the time of the offer and the time of execution of the Agreement, one or more of the cost factors (including fees, wages, the cost of social measures and/or laws, freight prices and exchange rates, etc.) increase, the Freight Forwarder is entitled to pass on this increase to the Client. The Freight Forwarder must be able to prove the changes.
- If the Freight Forwarder charges all-in or fixed rates, these rates shall be deemed to include all costs that, in the normal process of handling the order, are for the account of the Freight Forwarder.
- Unless provided otherwise, all-in or fixed rates shall not include at any rate: duties, taxes and levies, consular and attestation fees, costs of preparing bank guarantees and insurance premiums.
- In the event of circumstances that are of such a nature that when concluding the Agreement it was not deemed necessary to take into account the risk that they could occur, that cannot be attributed to the Freight Forwarder and that significantly increase the costs of the Services being performed, the Freight Forwarder is entitled to an additional payment. Where possible, the Freight Forwarder shall consult in advance with the Client. In such a case, the additional payment shall consist of the additional costs that the Freight Forwarder has had to incur in order to perform the Services, plus an additional payment – deemed fair and equitable – for the services to be performed by the Freight Forwarder.
- Expenses of an exceptional nature and higher wages arising whenever Third Parties, by virtue of any provision in the relevant agreements between the Freight Forwarder and Third Parties, load or unload goods in the evening, at night, on Saturdays or on Sundays or public holidays in the country where the Service is being carried out, shall not be included in the agreed prices, unless specifically stated. Any such costs shall therefore be remunerated by the Client to the Freight Forwarder.
- Other than in cases of intent or deliberate recklessness on the part of the Freight Forwarder, in the event of the loading and/or unloading time being inadequate, all costs resulting therefrom, such as demurrage, waiting times, etc. shall be borne by the Client, even when the Freight Forwarder has accepted the bill of lading and/or the charter party from which the additional costs arise without protestation. The Freight Forwarder must make every effort to avoid these costs.
- Insurance of any kind shall only be arranged at the Client’s expense and risk following acceptance by the Freight Forwarder of the Client’s explicit written order, in which the Client clearly specifies the goods to be insured and the value to be insured. A mere statement of the value or the interest is not enough.
- The Freight Forwarder will take out the insurance (or arrange for this to be taken out) through an insurer / insurance broker / insurance intermediary. The Freight Forwarder is neither responsible nor liable for the solvency of the insurer / insurance broker / insurance intermediary.
- When the Freight Forwarder uses equipment, such as derricks, cranes, fork-lift trucks and other machines to perform the Services that do not form part of its usual equipment, the Freight Forwarder shall be entitled to take out insurance at the Client’s expense to cover the
Freight Forwarder’s risks arising from the use of such equipment. Where possible, the Freight Forwarder shall consult in advance with the Client about the use of such equipment. If no timely prior consultation is possible, the Freight Forwarder will take the measures that seem to it to be in the best interests of the Client and shall inform the Client of that.
Execution of the Agreement
Delivery date, method of delivery and route
- The mere statement by the Client of a time for delivery shall not legally bind the Freight Forwarder. Arrival times are not strict deadlines and are not guaranteed by the Freight Forwarder, unless agreed otherwise in writing.
- If the Client has not given any specific instructions about this with its order, the method of delivery and route shall be at the Freight Forwarder’s discretion and the Freight Forwarder may at all times accept the documents customarily used by the firms it contracts for the purpose of carrying out its orders.
Commencement of the Services
- The Client is obliged to deliver the Goods to the Freight Forwarder or a Third Party in suitable packaging to the agreed location, at the agreed time and in the manner agreed.
- In respect of the Goods, as well as in respect of the handling thereof, the Client is obliged to supply the Freight Forwarder in good time with any details and documents that it knows or ought to know, are of importance to the Freight Forwarder. If the Goods and/or activities are subject to governmental provisions, including customs and excise regulations and tax rules, the Client must provide all information and documents, in good time, that are required by the Freight Forwarder in order to comply with those provisions.
- The Client guarantees that the information and documents that it provides are correct and complete and that all instructions and Goods that are made available comply with current legislation. The Freight Forwarder shall not be obliged but shall be entitled to investigate whether the information provided is correct and complete.
- All operations such as inspecting, sampling, taring, tallying, weighing, measuring, etc. and receiving goods subject to appraisal by a court-appointed expert, shall take place only on the Client’s specific instructions and upon remuneration of the costs thereof.
- Notwithstanding the provisions in paragraph 1, the Freight Forwarder shall be entitled, but not obliged, on its own authority and at the Client’s expense and risk, to take all such actions as it deems necessary in the Client’s interest. Where possible, the Freight Forwarder shall consult in advance with the Client. If this is not possible, the Freight Forwarder shall take the measures that seem to it to be in the best interests of the Client and shall inform the Client of the measures taken and the associated costs, as soon as this is reasonably possible.
- The Freight Forwarder is not an expert with respect to the Goods. The Freight Forwarder shall therefore in no way be liable for any damage that arises from or that is related to any notification by the Freight Forwarder with regard to the state, nature or quality of the Goods; nor shall the Freight Forwarder be under any obligation to ensure that the shipped Goods correspond with the samples.
- All Services shall be at the Client’s expense and risk.
- Without prejudice to the provisions in Article 17, the Freight Forwarder shall not be liable for any damage whatsoever, unless the Client can prove that the damage has been caused by fault of negligence on the part of the Freight Forwarder or the latter’s employees.
- The Freight Forwarder’s liability shall in all cases be limited to 10,000 SDR per occurrence or series of occurrences with one and the same cause of damage. Taking into account the aforementioned limit, in the event of damage, loss of value or loss of the Goods in the Agreement, the liability shall be limited to 4 SDR per kilogram of damaged or devalued Goods or lost gross weight.
- The loss to be indemnified by the Freight Forwarder shall never exceed the invoice value of the Goods, to be proved by the Client, in default whereof the market value, to be proved by the Client, at the time when the damage occurred, shall apply.
- The Freight Forwarder shall never be liable for lost profit, consequential loss and immaterial damage, however that occurred.
- If during the execution of the Agreement damage occurs for which the Freight Forwarder is not liable, taking into account the provisions in Article 19 of these Conditions, the Freight Forwarder shall make efforts to recover the Client’s damage from the party that is liable for the damage. The Freight Forwarder shall be entitled to charge to the Client the costs incidental thereto. If so requested, the Freight Forwarder shall waive in the Client’s favour its claims against Third Parties whose services it engaged for the purpose of executing the Agreement.
- The Client shall be liable vis-a-vis the Freight Forwarder for any damage – including but not limited to material and immaterial damage, consequential damage, fines, interest, as well as penalties and confiscation, including damage on account of non-clearance or tardy clearance of customs documents and claims due to product liability and/or intellectual property rights – suffered directly or indirectly by the Freight Forwarder as a result of (amongst other things) the non-compliance by the Client of any obligation pursuant to the Agreement or pursuant to applicable national and/or international legislation, as a result of any incident that is within the control of the Client, as well as a result of the fault or negligence in general of the Client and/or its employees and/or Third Parties whose services the Client engages and/or Third Parties that work on behalf of the Client.
- The Client shall indemnify the Freight Forwarder at all times against third-party claims, including employees of both the Freight Forwarder and the Client, connected with or ensuing from the damage referred to in the previous paragraph.
- Even where all-in or fixed rates, as the case may be, have been agreed, the Freight Forwarder that is not a carrier but always a party that arranges transportation in accordance with title 2, section 3 of Book 8 of the Dutch Civil Code, shall be liable, whereby the liability is governed by these Conditions.
- If a claim is made against the Freight Forwarder by the Client outside of the Agreement in respect of the damage that occurs during the execution of the Services, then the Freight Forwarder’s liability shall be limited to the liability under the Agreement.
- If to defend its liability for conduct of a Third Party or employee the Freight Forwarder derives a defence from the Agreement vis-a-vis the Client, then if it is held liable by the Client under this defence, a Third Party or employee can invoke this defence as if the Third Party or employee were also party to the Agreement.
- In the event a Freight Forwarder is held liable outside of the Agreement with regard to damage to or loss of a Good or delay in delivery by someone who is not party to the Agreement or a transport agreement entered into by or on behalf of the Freight Forwarder, then the Freight Forwarder has no further liability than it would have under the Agreement.
- In the event of Force Majeure, the Agreement shall remain in force; the Freight Forwarder’s obligations shall, however, be suspended for the duration of the Force Majeure.
- All additional costs caused by Force Majeure, such as transport and storage charges, warehouse or yard rental, demurrage and standing fees, insurance, removal, etc., shall be borne by the Client and shall be paid to the Freight Forwarder at the latter’s first request.
Refusal of carriers
If the carriers refuse to sign for quantity, weight, etc., the Freight Forwarder shall not be liable for the consequences thereof.
The Agreement to organise transportation of goods
These Conditions shall not affect articles 8:61 paragraph 1, 8:62 paragraphs 1 and 2 and 8:63 paragraphs 1,2 and 3 of the Dutch Civil Code.
- The Client shall pay to the Freight Forwarder the agreed remunerations and other costs, freights, duties, etc. ensuing from the Agreement upon commencement of the Services, unless agreed otherwise.
- The risk of exchange rate fluctuations shall be borne by the Client.
- The amounts referred to in paragraph 1 shall also be due if damage has occurred during the execution of the Agreement.
- If, in contravention of paragraph 1 of this article, the Freight Forwarder allows deferred payment, the Freight Forwarder shall be entitled to make a credit limit charge.
- In the event of termination or dissolution of the Agreement, all claims of the Freight Forwarder – including future claims – shall be due and payable forthwith and in full. All claims shall be due and payable forthwith and in full in any case, if:
- the bankruptcy of the Client is announced, the Client applies for suspension of payment or otherwise loses the unrestricted disposition over a significant part of its assets;
- the Client offers a settlement to his creditors, is in default of fulfilling any financial obligation owed to the Freight Forwarder, ceases to trade or – where the Client is a legal entity or corporate body – if the legal entity or the corporate body is dissolved.
- Upon first demand by the Freight Forwarder, the Client must provide security for the amount owed or that shall be owed by the Client to the Freight Forwarder. This obligation remains if the Client also has to provide or has provided security in relation to the amount owed.
- The Freight Forwarder shall not be obliged, from its own means, to provide security for the payment of freight, duties, levies, taxes and/or other costs should the same be demanded. All the consequences of non-compliance or of failure to comply forthwith with a demand from the Freight Forwarder to provide security shall be borne by the Client.
If the Freight Forwarder has provided security from of its own means, it may demand that the Client immediately pays the amount for which security has been provided.
Where possible, the Freight Forwarder shall consult in advance with the Client. If no timely prior consultation is possible, the Freight Forwarder will take the measures that seem to it to be in the best interests of the Client and shall inform the Client of that.
- (8) The Client shall at all times be obliged to indemnify the Freight Forwarder for any amounts to be levied or additionally demanded by any authority in connection with the Agreement, as well as any related fines imposed upon the Freight Forwarder.
The Client shall also reimburse the said amounts to the Freight Forwarder if a Third Party brought in by the Freight Forwarder demands payment for the said amounts within the framework of the Agreement.
- (9) The Client shall at all times indemnify the Freight Forwarder for any amounts, as well as for all additional costs that may be claimed or additionally claimed from the Freight Forwarder in connection with the order, as a result of incorrectly levied freight and costs.
- (10) It shall not be permissible for claims receivable to be set off against payment of remunerations arising from the Agreement on any other account in respect of the Services owed by the Client or of other costs chargeable against the Goods with claims of the Client or suspension of the aforementioned claims by the Client.
Allocation of payments and judicial and extrajudicial costs
- Cash payments shall be deemed in the first place to have been made on account of nonpreferential debts.
- The Freight Forwarder shall be entitled to charge to the Client extrajudicial and judicial costs for collection of the claim. The extrajudicial collection costs are owed as from the time at which the Client is in default and these amount to 10% of the claim, with a minimum of € 100.00.
- The Freight Forwarder has the right to refuse the delivery of Goods, documents and monies, that the Freight Forwarder has or will obtain, for whatever reason and with whatever destination, in respect of another party.
- The Freight Forwarder has a right of retention in respect of all Goods, documents and monies that the Freight Forwarder holds or will hold for whatever reason and with whatever destination, for all claims the Freight Forwarder has or might have in future on the Client and/or the owner of the Goods, including in respect of all claims which do not relate to those Goods.
- The Freight Forwarder has a right of lien in respect of all Goods, documents and monies that the Freight Forwarder holds or will hold for whatever reason and with whatever destination, for all claims the Freight Forwarder has or might have in future on the Client and/or the owner of the Goods.
- The Freight Forwarder shall regard anyone who, on behalf of the Client, entrusts Goods to the Freight Forwarder for performing Services, as the Client’s agent for creating a lien on those Goods.
- If when settling the invoice a dispute arises over the amount due or if there is need for a calculation to be made for the determination of what is due that cannot be made quickly, then at the discretion of the Freight Forwarder, the Client or the party that demands delivery at the request of the Freight Forwarder is obliged to pay forthwith the part which the parties agree is due and to furnish security for the part in dispute or for the part for which the amount has not yet been established.
- The Freight Forwarder can also exercise the rights outlined in this article (right of lien, right of retention and right to refuse delivery) for what is still owed to it by the Client in relation to previous orders and for any amounts payable by way of delivery C.O.D. in respect of the Goods.
- The sale of any security shall take place at the account of the Client in the manner prescribed by law or – if there is consensus thereon – privately.
- At the Freight Forwarder’s first request, the Client shall furnish security for costs paid or to be paid by the Freight Forwarder to Third Parties or government authorities and other costs that the Freight Forwarder incurs or anticipates incurring, on behalf of the Client, including freight, port costs, duties, taxes, levies and premiums.
- In the absence of documents, the Freight Forwarder is not obliged to give indemnities or furnish securities. If the Freight Forwarder has given indemnification or furnished security, the Client is obliged to indemnify the Freight Forwarder from all consequences thereof.
Termination of the Agreement
- The Freight Forwarder can terminate the Agreement with immediate effect in the event the Client:
- discontinues its profession or business largely or in full;
- loses the power to dispose of its assets or a substantial part thereof;
- loses its legal personality, is dissolved or effectively liquidated;
- is declared bankrupt
- offers an agreement excluded from the bankruptcy proceedings;
- applies for moratorium on payment;
- loses the power to dispose of its goods or a substantial part thereof as a result of seizure.
- If the Freight Forwarder consistently imputably fails to fulfil one or more of its obligations under the Agreement, without prejudice to its right to compensation for any damage that may have been suffered in accordance with article 11, the Client can dissolve the Agreement with immediate effect in full or in part after:
- it has notified the Freight Forwarder by registered letter with reasons how the Freight Forwarder has failed to comply, stipulating a period of time of at least thirty days for fulfilment of the obligations, and;
- on expiry of that deadline, the Freight Forwarder has not yet fulfilled the obligations.
3. If the Client consistently imputably fails to fulfil one or more of its obligations under the Agreement, without prejudice to its right to compensation for any damage that may have been suffered, the Freight Forwarder can dissolve the Agreement with immediate effect in full or in part after, by registered letter, it has stipulated a deadline to the Client of at least fourteen days for fulfilment of the obligations and upon expiry of that deadline, the Client has not yet fulfilled its obligations. If, by stipulating such a period, the Freight Forwarder’s interests in the undisturbed conduct of its business would be impaired disproportionately, the Freight Forwarder may dissolve the Agreement without observing a time limit.
4. Neither of the Parties may dissolve the Agreement if, considering its special nature or limited significant, the failure does not justify dissolution with all implications thereof.
Proceedings against Third Parties
Legal and arbitration proceedings against Third Parties shall not be conducted by the Freight Forwarder unless it agrees to do so at the Client’s request and at the latter’s expense and risk.
Prescription and limitation
- Notwithstanding the provisions in paragraph 5 of this article, every claim is subject to prescription by the expiry of a period of nine months.
- Every claim vis-a-vis the Freight Forwarder shall be time-barred by the mere expiry of a period of 18 months.
- The periods of time stated in paragraphs 1 and 2 commence on the day following the day on which the claim has become due and payable, or the day following the day on which the prejudiced party had the knowledge of the loss. Notwithstanding the foregoing provisions, the aforementioned periods of time for claims with regard to damage, value depreciation or loss of the Goods, commence on the day following the day on which the Goods are delivered by the Freight Forwarder or should have been delivered.
- In the event that the Freight Forwarder is held liable by Third Parties, including any public authority, for damages, the periods of time stated in paragraphs 1 and 2 commence as from the first of the following days:
- the day following the day on which the Third Parties have brought action against the Freight Forwarder;
- the day following the day on which the Freight Forwarder has settled the claim brought against it.
If the Freight Forwarder or the Third Party whose services it has engaged objects and/or appeals, the periods of time stated in paragraphs 1 and 2 commence on the day following the day on which a final ruling has been given on the objections and/or appeal.
- Unless the situation referred to in paragraph 4 of this article occurs, if following the term of prescription a claim is brought against one of the parties for that payable by that party to a Third Party, a new term of prescription of three months commences.
Choice of law
- All Agreements to which these Conditions apply are governed by Dutch law.
- The place of payment and settlement of claims shall be the Freight Forwarder’s place of business.
These general terms and conditions can be cited as „Dutch Forwarding Conditions“.
- All disputes which may arise between the Freight Forwarder and its Other Party shall be decided by three arbitrators to the exclusion of the ordinary courts of law, in accordance with the FENEX Rules of Arbitration. The FENEX Rules of Arbitration and the current fees for the arbitration process can be read and downloaded from the FENEX website. A dispute shall exist whenever either of the parties declares that this will be so.
Without prejudice to the provisions of the preceding paragraph, the Freight Forwarder shall be at liberty to bring before the competent Dutch court in the Freight Forwarder’s place of business, claims for sums of money due and payable, the indebtedness of which has not been disputed in writing by the Other Party within four weeks after the invoice date. The Freight Forwarder is also at liberty to institute interim relief proceedings for claims of an urgent nature at the competent Dutch court in the Freight Forwarder’s place of business.
- The arbitration shall be settled by three arbitrators, unless neither of the parties has submitted a request for arbitrators to be appointed and the parties have jointly informed the FENEX secretariat in writing that they wish to have the arbitration settled by an arbitrator who they have appointed jointly, appending the written declaration of the arbitrator who they have appointed jointly containing his/her acceptance of the appointment and the force and validity of the FENEX Arbitration Rules.
- One arbitrator shall be appointed by the Chairman or the Vice-Chairman of the FENEX; the second shall be appointed by the Dean of the Bar Association of the district in which the aforesaid Freight Forwarder has its registered office; the third shall be appointed by mutual agreement between the two arbitrators so appointed.
- The Chairman of the FENEX shall appoint an expert on forwarding and logistics; the Dean of the Bar Association shall be asked to appoint a specialised lawyer in forwarding and logistics; the third arbitrator shall preferably be an expert on the trade and trade and industry in which the Freight Forwarder’s Other Party is engaged.
- Where applicable, arbitrators shall apply the provisions of international transport conventions, including the Convention on the Contract for the International Carriage of Goods by Road (CMR).
FENEX: Netherlands Association for Forwarding and Logistics
PortcityII, Waalhaven Z.z. 19, 3rd floor, Havennummer 2235, 3089 JH Rotterdam P.O. Box 54200, 3008 JE Rotterdam
Polish Forwarding Conditions
(translation only – without prejudice)
1.1. The following terms used in this text denote:
1.1.1. Freight Forwarder – a subject who professionally, against remuneration, in his own name but on the account of Customer, or in the name and on account of Customer, covenants to forward or receive goods, to organize partly or wholly the process of translocation of goods, or to render other services related to handling and translocation of goods.
1.1.2. Contractual Carrier – a subject who enters a contract of carriage with the intention to sub-contract the actual carriage to another carrier (actual carrier).
1.1.3. Customer – a person who enters into a contract with Freight Forwarder, or – in case of a successive Freight Forwarder – the Customer of the person who contracts a successive Freight Forwarder.
1.1.4. Written form/in writing – in the understanding of the Polish General Forwarding Rules 2010 is complied with when:
220.127.116.11. a document containing a statement of will is hand-signed by the person making the statement,
18.104.22.168. statement of will in electronic form is affixed with electronic signature, verifiable by means of a valid, qualified certificate,
22.214.171.124. the document referred to in point 1. above is sent by fax or by electronic post (e-mail),
126.96.36.199. statement of will, unsigned by hand, is sent by e-mail from the electronic post address of the person making the statement.
1.2. Whenever the Polish General Forwarding Rules 2010 refer to:
1.2.1. Sender – it also means consignor, shipper, charterer.
1.2.2. Freight Forwarder – it also means a successive forwarder and a subforwarder.
188.8.131.52. Successive Freight Forwarder – subject, to whom principal Freight Forwarder sub-contracts execution of the whole of his tasks as ordered by the Customer.
184.108.40.206. Sub-Forwarder – subject, to whom principal Freight Forwarder subcontracts partial execution of his tasks ordered by the Customer.
2.1. Polish General Freight Forwarding Rules 2010 (hereinafter referred to as PGFR) apply to the relationship between the Freight Forwarder and his Customer, and in the case of successive Freight Forwarder also between him and the Customer – if at least one of the parties is a member of the Polish International Freight ForwardersAssociation.
2.2. PGFR also apply in each case when Freight Forwarder’s liability is engaged, including liability in tort, as far as it does not contradict the Mandatory Law.
3.1. Other services that the Freight Forwarder can perform in connection with carriage may consist in: advisory services, insurance, transshipment, storage, packing, consolidation, distribution, customs handling, logistics and the like.
3.2. With regard to the forwarding contract concluded by the Freight Forwarder, general conditions or rules of services will also apply if and when their application is widely recognized or when, subcontracting services, the Freight Forwarder has to accept the inclusion of sub-contractor’s standard contract pattern into his subcontract.
4.1. The Freight Forwarder can perform the carriage himself. In such case he has, simultaneously, the rights and obligations of a Carrier.
4.2. When entering a contract of carriage, the Freight Forwarder becomes a contractual carrier if he does not apply transport means of his own.
4.3. The Freight Forwarder, who by himself performs the services referred to in point 3.1 above, in his relations with the Customer bears responsibility on the grounds of Statutory Law applicable to the respective services, with liability limitations as per § 22 and § 23 of these PGFR.
The provisions of these PGFR do not apply to the forwarding of money, art works and human remains.
6.1. The Freight Forwarder’s offer covers only the services explicitly listed therein and is valid for the period specified therein.
6.2. The Freight Forwarder’s offer and agreements concerning the rates and services (his own or third parties‘) cover only the goods specified in the order and assume typical conditions of the performance of such offer or agreement.
6.3. Unless validity period is stipulated, each offer or quotation remains valid only when immediately confirmed by the Customer’s forwarding order due to be executed forthwith, unless otherwise agreed by both parties.
6.4. In case any component of the offer changes due to circumstances beyond the control of the Freight Forwarder, the prices quoted or agreed upon will be corrected accordingly with effect from the moment the change of circumstances occurred. Any correction of offer made due to circumstances dependent on the Freight Forwarder, needs prior acceptance from the Customer.
6.5. Unless agreed otherwise, the Freight Forwarder’s offer contains all costs normally borne by the Forwarder during undisturbed execution of the order, except for any demurrage which, if not caused by the Forwarder, the Customer is obliged to pay separately in the amount charged to the Forwarder by the third parties.
The Forwarding Contract
7.1. By a contract of forwarding the Freight Forwarder covenants, against remuneration, within the scope of his commercial activity, to forward or to receive a consignment, or to render other services related to its transportation.
7.2. The forwarding contract is considered to be entered into upon the receipt of the Customer’s Forwarding Order by the Freight Forwarder, if its stipulations, together with the previously accepted, valid offer, contain all data essential for the execution of the order. Otherwise the forwarding contract is valid upon settling of all essential conditions by both parties.
7.3. If the Freight Forwarder does not intend to execute the forwarding order, he should immediately inform the Customer.
8.1. The Freight Forwarder performs his activities on the basis of the Customer’s order.
8.2. The order, for its validity, does not require to be in a written form, however, to avoid any errors or misunderstandings in its execution it is recommended to be issued or confirmed in writing.
8.2.1. The Freight Forwarder is not responsible for the consequences of errors and misunderstanding resulting from orders received verbally or by telephone.
8.2.2. The Freight Forwarder is not responsible for the consequences of supplementary instructions provided by the Customer directly to the third parties engaged in the performance of the forwarding process.
8.3. The order should contain all essential information about the consignment and its properties, and in particular marks and numbers of collies (packages), number of pieces, weights, dimensions, cubic measurements, quantity and number of containers, and also indicate whether the goods are listed as strategic, military or dual-use items, indicate the scope of services ordered and any other data and documents necessary for proper execution of the order.
8.4. The Customer is obliged to ensure that the order is complete and correct. The Customer is responsible towards the Freight Forwarder and third parties for any consequences resulting from inaccurate, incomplete or incorrect data, also with regard to the particulars contained in documents, correspondence or marked on the consignment, such as quantity, weight, dimensions and properties, as well as from defective packing of the goods etc., even if the inaccuracy, incompleteness or incorrectness occurred without his fault.
8.5. The Freight Forwarder is entitled to verify information given in the order for correctness and completeness and to verify the authenticity of signatures and the competence of the persons who sign the orders and other documents.
8.6. In case of dangerous goods, the Customer delivering the order should indicate the exact nature of danger and inform of the necessary precautions. In case of dangerous goods within the meaning of special regulations covering transport of dangerous goods or other goods, to which special regulations apply with regard to their handling during transportation and storage, the Customer is obliged to indicate all particulars indispensable for proper performance of the forwarding order, and in particular their classification in accordance with the regulations concerning such goods.
8.7. The Freight Forwarder may entrust the received order to third parties for execution in whole or in part. In such case, any stipulations in these PGFR concerning liability limitations of the Freight Forwarder, also apply to subforwarders and successive forwarders.
Execution of the order
9.1. The Freight Forwarder is obliged to perform his services in accordance with the accepted order. In case of necessity to act out of the scope of the order, the Freight Forwarder should protect the interest of the goods, execute due diligence and keep his actions within the law.
9.2. In the absence of explicit, sufficient and feasible instructions or special agreements in the order, the Freight Forwarder has a free choice of the timing, mode of dispatch and tariffs. In each case the Freight Forwarder, protecting the interest of the goods, acts at the risk and expense of the Customer.
9.3. If the Freight Forwarder is obliged to dispatch documentation against confirmation of receipt, then obtaining a confirmation of dispatch renders him free from responsibility for non-delivery or late delivery of such documentation. The Freight Forwarder is not obliged to arrange insurance of documents in transit without Customer’s written order.
9.4. Upon taking receipt of a consignment, the Freight Forwarder or a person authorized by him is obliged to ascertain whether the consignment has been delivered intact, without shortages or visible damage and in conformity with the covering documents (Bill of Lading, Waybill etc.).
9.5. If the consignment is stored into a warehouse owned by third parties, the verification of its condition and conformity with the documents of conveyance is made by the warehouse keeper.
9.6. In case of ascertained shortage or damage to the consignment, lack or inadequacy of seals or other protective devices, the Freight Forwarder informs the Customer and secures the rights of the Customer against third parties responsible for such shortage, damage or fault.
9.7. Certificate of receipt of the consignment issued by the Freight Forwarder constitutes a presumption that the goods have been received by the Freight Forwarder in such condition as indicated in the Certificate.
9.8. Executing an order concerning dispatch of a consignment, the Freight Forwarder is obliged to keep the terms of the delivery contract (Letter of Credit validity etc.) indicated in the order, unless it proves impossible due to reasons beyond Freight Forwarder’s control. In such case the Customer should be duly notified or informed.
10.1. The Freight Forwarder shall arrange for „cargo insurance” only upon receipt of an explicit order in writing. Unless otherwise agreed in writing the Freight Forwarder is not obliged to arrange a separate insurance for each consignment. Indication of the value of consignment in the forwarding order is not considered an order for the Freight Forwarder to arrange “cargo insurance”.
10.2. Offering “cargo insurance” to the Customer or arranging it in his name and at his expense, the Freight Forwarder is obliged to submit insurance conditions to the Customer:
10.2.1.in case of general insurance cover of a consignment – prior to conclusion of forwarding contract ;
10.2.2.in other cases – prior to conclusion of insurance contract.
Obstacles in performance of forwarding activities
11.1. Circumstances beyond the control of the Freight Forwarder or other person acting upon his order (e.g. force majeure) which make it impossible in part or fully to perform his forwarding duties, exempt him, for the time of their duration, from responsibility for timely execution of forwarding order. The Freight Forwarder should notify the Customer of such circumstances immediately after they arise. When the duration of such circumstances becomes excessive, the Freight Forwarder may withdraw from the contract, even when the order has been partly executed. Prior to the withdrawal the Freight Forwarder is obliged to secure the consignment and Customer’s interests in consultation with the Customer. In case of withdrawal from the contract due to aforesaid reasons, the Freight Forwarder is entitled to reimbursement of expenses incurred in execution of the order, together with an appropriate part of his remuneration for the operations already completed.
11.2. Force Majeure is understood as acts of Nature of a catastrophic character, also extraordinary and external occurrences of a general character, such as war, martial law restrictions, riots, revolution, commotions etc. that cannot be prevented, where inability to prevent such occurrences or their consequences is of external character, independent from taking of or refraining from any preventive action.
Remuneration of the Freight Forwarder, reimbursement of expenses incurred
12.1. The Freight Forwarder is entitled to the remuneration from the Customer in accordance with the provisions of the forwarding contract.
12.2. For services not stipulated in the Contract, but duly performed after consultation with the Customer, as well as for services performed without consultation in order to execute the Contract properly, the Freight Forwarder is entitled to an appropriate remuneration as well as to a reimbursement of expenses incurred.
12.3. If there is no separate agreement, the Freight Forwarder’s remuneration is defined by the Freight Forwarder’s Tariff.
The Freight Forwarder may subject the execution of the order to advance payment on account of future expenditures necessary for its execution (e.g. freight charges, port dues, customs dues etc.). He may also demand immediate reimbursement of expenses already incurred before proceeding with further execution of the order. In case of consecutive deliveries the Freight Forwarder is entitled to partial, consecutive settlements of his remuneration.
Seizure, damage, loss or partial loss of consignment not caused by the Freight Forwarder or caused by force majeure, confiscation or other act of government authority shall not affect Freight Forwarder’s claims towards his Customer, especially the claims for the agreed remuneration or reimbursement of his expenditures.
Placing an order with the Freight Forwarder on account of a third party or indicating a third party as payer of the Freight Forwarder’s dues does not exempt the Customer from the obligation of payment.
The Freight Forwarder is obliged to verify the correctness of charges of his subcontractors. In case of incorrect charges, the Freight Forwarder is obliged to immediately claim them. The Customer is obliged to reimburse Freight Forwarder’s expenditures in connection with the claim.
17.1. The Customer is obliged to reimburse the Freight Forwarder with any and all expenditures in connection with the execution of his order, including the costs of detention, demurrage and freight paid by the Freight Forwarder in consequence of indicating him, by the Customer or his partner, as the consignee in a Master Bill of Lading orAir Waybill.
17.2. If the Freight Forwarder, upon the order of his Customer, acts as a shipper or a consignee, and claims are lodged against him for which he is liable by law as shipper or consignee (e.g. by way of General Average or by other titles), the Customer is obliged to indemnify and protect him against any consequences resulting thereof.
If the Freight Forwarder outlays his own funds when executing an order, he has the right to charge outlay commission to the Customer. If the amount of the commission is not determined by his tariff or agreed with the Customer, the commission shall be equal to the official rate of interest.
Liability of the Freight Forwarder
The Freight Forwarder’s liability depends on the scope of forwarding contract concluded.
20.1. The Freight Forwarder is liable for damages resulting from nonperformance or improper performance of his duties arising from the forwarding contract, unless he proves that he could not prevent the damage in spite of exercising due diligence.
20.2. The Freight Forwarder is liable for carriers and sub-forwarders, subcontracted by him for the execution of order, unless he is not at fault in choosing them.
20.3. The Freight Forwarder is obliged to take all necessary steps to enable the Customer to pursue his claims against the parties participating in the execution of the order, even if the Freight Forwarder is not liable for their acts or omissions. The Freight Forwarder can pursue the claims himself by virtue of a separate agreement, at the risk and expense of the Customer.
Acting as a multimodal transport operator, the Freight Forwarder accepts liability according to the conditions of the document of conveyance applicable to the particular transport mode.
Limitations and exclusions of the Freight Forwarder’s liability
22.1. The Freight Forwarder is not liable for :
22.1.1.valuables or dangerous goods, unless declared as such and accepted by the Freight Forwarder in the forwarding contract ;
22.1.2.damage caused by a delay in delivery, unless the Freight Forwarder takes obligation to deliver the consignment within agreed time;
22.1.3.damage other than actual damage;
22.1.4.loss of weight of bulk cargoes resulting from their properties, not exceeding the limits set in appropriate regulations, and in the absence of such regulations – not exceeding customary limits;
22.1.5.damage resulting from acts or omissions of persons not being in contractual relationship with the Freight Forwarder.
23.1. Indemnity paid by the Freight Forwarder, due to the person authorized through the forwarding contract, shall be limited by the commodity value as per relevant commercial invoice. When no such invoice is available, it shall be based on the commodity exchange price, market price or normal value of commodity of the same kind and quality. In no case shall the indemnity exceed the amount of 2 SDR per 1 kilogram gross weight of the lost or damaged consignment or the total amount of 50,000 SDR per each occurrence, unless a higher amount is recovered from the person for whom the Freight Forwarder is responsible.
23.2. Indemnity paid by the Freight Forwarder as per point 23.1. shall not exceed the indemnity that can be lawfully obtained from the person liable for the damage.
23.3. SDR value is based on the current exchange rate established and published by the National Bank of Poland.
23.4. Provisions of § 23 apply also in case of Freight Forwarder’s liability engagement for reasons other than contractual.
24.1. Customer’s claims should be submitted to the Freight Forwarder in writing within 6 days from the date the Customer learned or should have learned about the damage. Within 14 days of the submission of the claim the Freight Forwarder is obliged to confirm its receipt and inform the claimant of the manner and date of its investigation.
24.2. Claims should be supported by documents providing evidence of the condition of consignment and of the circumstances in which the damage/loss occurred.
24.3. When the Freight Forwarder acts as contractual carrier, the claim procedure is ruled by relevant regulations.
Lien on the goods and retention
25.1. In order to secure receivables due from the Customer, the Freight Forwarder has the right to retain the consignment and/or the relevant documents until his dues are paid.
25.2. The Freight Forwarder can also execute his rights as per point 25.1. with regard to unpaid receivables concerning past orders.
25.3. If, according to the forwarding order, the consignment is to be delivered or placed at the disposal of a third party, the Freight Forwarder may also execute the right of lien upon such consignment.
25.4. All costs connected with lien on a consignment and/or documents are on account of the goods.
25.5. In case of third parties laying claims against the Freight Forwarder in connection with his execution of lien on a consignment, the Customer is obliged to immediately relieve him from any liabilities resulting thereof and to indemnify his damages.
26.1. Claims under the forwarding contract are subject to time bar of one year.
26.2. The prescription period commences:
26.2.1.in case of claims for damage to or shortage of a consignment – from the date of its delivery;
26.2.2.in case of total loss of the consignment or late delivery – from the date when the consignment should have been delivered;
26.2.3 in all other cases – from the date of the completion of the order.
In case when the Freight Forwarder, as per § 3 of these PGFR, acquires the status of a carrier, any claims under the contract of carriage expire in accordance with domestic and international regulations governing the subject of carriage.
Settlement of disputes and applicable law
The contracting parties may agree that disputes arising from the legal relationship between them, to which these PGFR are applicable, will be settled by the Court of Arbitration accredited with the Polish International Freight ForwardersAssociation in Gdynia.
In the absence of a different agreement between the Parties, disputes arising from the legal relationship between them, to which these PGFR are applicable, shall be settled:
29.1. in case when both Parties have their place of business /domicile/ in Poland by a common court competent with respect to the Freight Forwarder’s registered office;
29.2. if one of the Parties has his place of business or domicile abroad – by a common court, domestic or foreign, selected by the Freight Forwarder (if the lawsuit is brought by the Freight Forwarder) or a common court competent with respect to the Freight Forwarder’s registered office (if the lawsuit is brought against the Freight Forwarder).
Invalidity or unenforceability of one or more provisions of these PGFR shall not affect any other provision of these PGFR.
In the absence of a different agreement between the Parties, the Polish law shall apply.
PIFFA-PolishInternationalFreightForwardersAssociation, is a voluntary self – governing organization associating the entrepreneurs who run economic activity in the scope of services in international and domestic freight forwarding, logistics, transport, customs agencies as well as other services related with the goods turnover.
The Association acts within the territory of the Republic of Poland. PIFFA is a National Member of the International Federation of Freight Forwarders Associations “FIATA” and Member of the European Association for Forwarding, Transport, Logistics and Customs Services “CLECAT”.
Protection of rights and representation of interests of the Association Members before governmental bodies and local authorities and other organizations associating shippers, carriers and their agents and brokers;
Representation of the Association Members’ interests before international organizations of forwarders, shippers, carriers, etc., if their activity touches upon professional interests of PIFFAMembers;
Supporting high quality services rendered by the members according to internationally recognized standards;
Enhancement of professional ethics in the international freight forwarding industry;
Rendering consultative and advisory support to Members on professional matters;
Initiating and consulting on legislative activities in the field of freight forwarding, transport, logistics, customs procedures and related matters; Publishing of professional literature on freight forwarding and related matters; Creation and periodic revision/update of Polish General Forwarding Rules.
These Conditions will enter into effect as of January 1st, 2016 and are the result of negotiations between the Nordic Association of Freight Forwarders and the following organisations:
The Danish Chamber of Commerce ICC Finland and Finnish Shippers’ Council ( Dansk Erhverv)
Confederation of Norwegian Enterprise (NHO) and The Confederation of Swedish Enterprise Federation of Norwegian Industries (Norsk Industri)
These General Conditions of the Nordic Association of Freight Forwarders set forth the freight forwarder’s and the customer’s rights and obligations towards each other, including the freight forwarder’s liability under various applicable transport law conventions valid from time to time, such as CIM, CMR, the Hague-Visby Rules and the Montreal Convention, or any amendments, annexes or protocols of any such transport law convention.
Special Regulations and / or Provisions may apply in the applicable member countries of the Nordic Association of Freight Forwarders Association due to national legislation.
These conditions shall only and exclusively apply to members of the Nordic Association of Freight Forwarders.
However, upon explicit notice given by a member association of the Nordic Association of Freight Forwarders with effect for the concrete member associations’ country, these provisions may also be used by non-member companies.
If a certain mode of transport has been expressly agreed upon, or if it is proved that loss, depreciation, damage or delay has occurred whilst the goods were being carried by a particular means of transport, the freight forwarder shall be liable in accordance with the law applicable to such mode of transport and commonly used conditions of carriage, to the extent that these deviate from what is laid down in § 6, section 2 and 3 or §§ 15 – 21.
THE FREIGHT FORWARDERS CONTRACT
The freight forwarders contract may include: – carriage of goods, agency services and intermediary services,
– logistic services, supply chain services and advisory services,
– storage of goods and warehousing services,
– stevedoring services and ship brokering,
– other services, such as – but not limited to – customs clearance, other customs and VAT-related services, co-operation in the performance of the customers obligations under public law, assistance in handling insurance-related issues and assistance in relation to export and import documents.
- The freight forwarder as contracting party 1) In accordance with §§ 2 and 15-21, the freight forwarder will be responsible as a contracting party for all services undertaken by the freight forwarder excluding instances under section 3 C below. The freight forwarder is furthermore responsible for other contracting parties that the freight forwarder has engaged to perform or carry the contract on behalf of the freight forwarder.
2) These conditions apply equally to the persons that provide services for the freight forwarder in order to perform the contract as to the freight forwarder himself, irrespective of the grounds for the customer’s claims against the freight forwarder and such other persons. The aggregate liability of the freight forwarder and such other persons is limited to the amount that applies to the freight forwarder’s liability under these conditions.
- The freight forwarder as intermediary Notwithstanding article 3 B.1 above, the freight forwarder can in accordance with §§ 22 – 24 below, undertake services – or parts of services – as intermediary, if the freight forwarder does not undertake such services in his own name or on his own account and on the condition that the freight forwarder specifies to the customer that the services are undertaken solely as intermediary. As intermediary, the freight forwarder is not responsible for parties other than his own employees.
The responsibility of the freight forwarder with regards to warehousing or storing is governed by and in accordance with § 25 below.
- General practice etc.
In addition to what has been expressly agreed upon, general practice and commonly used terms shall be applicable in so far as they do not deviate from these conditions.
Under the present conditions, the customer is the party that has concluded a contract with the freight forwarder, or that has acquired the rights of that party. The liability of the customer is governed by § 26 of these conditions.
THE PERFORMANCE OF THE CONTRACT
The parties recognize the importance of and shall provide each other with information necessary for the performance or fulfilment of the contract. The freight forwarder undertakes to perform services, to pick up, take care of or procure the handling of the goods in accordance with the contract terms and in a suitable way for the customer with generally used means and routes of transport.
A contract between the freight forwarder and the customer (for carriage or other services) evidenced by electronic transport documents shall be deemed to have been concluded only when the freight forwarder issues an electronic receipt which includes an acceptance thereof.
Instructions to the freight forwarder concerning the scope of the contract shall be given directly to him. Information contained in the invoice stating that goods have been sold cash on delivery or against a declaration of value specified in the dispatch instructions does not therefore mean that the freight forwarder has undertaken to collect the invoice amount or to take out an insurance.
Unless otherwise agreed it is the customer’s obligation to arrange for loading and unloading of the goods and it is the freight forwarder’s obligation to arrange for stowing and securing of the goods.
It is the duty of the freight forwarder to prove that, according to the contract, he has protected the customer’s interests in a diligent manner.
The freight forwarder may not invoke the rules in these conditions which exonerate him from or limit his liability, or alter the burden of proof, if it is proven that the freight forwarder’s subcontractor has wilfully, or the freight forwarder himself or his own employees have wilfully or grossly negligent, caused the damage, delay or other loss, unless otherwise stated in § 2.
If the exact circumstances that resulted in loss, depreciation of, damage to or delay of goods which occurred when the goods was in the custody of the freight forwarder cannot be demonstrated, this shall not in itself be considered as gross negligence on part of the freight forwarder.
The freight forwarder shall be responsible for ensuring that the goods are picked up, carried and delivered within a reasonable time (without a time guarantee). When assessing such reasonable time, information as to the expected time of pick up, carriage and arrival stated by the freight forwarder in his marketing or in connection with the signing of the contract, shall be taken into account.
The freight forwarder is responsible (with a time guarantee) for the goods being picked up, carried and delivered within the time that:
– has been agreed upon in writing as a special, timeguaranteed transport, or
– has been submitted in writing as a condition of an offer expressly accepted by the freight forwarder, or
– has been presented by the freight forwarder in a written quotation that was accepted by the customer.
If it becomes necessary for the freight forwarder in the performance of the contract to act before seeking instructions, he does so at the customer’s risk and for his account
If the risk of depreciation of goods already taken over arises or, if by reason of the nature of the goods, there is a danger to persons, property or to the environment, and the customer cannot be reached, or should he not, upon being requested to remove the goods, arrange to do so, the freight forwarder may take appropriate measures in respect of the goods, and, if necessary, sell the goods in an appropriate manner. The freight forwarder may, depending on the circumstances and without notice, sell on behalf of the customer, render harmless or destroy goods which are in danger of becoming worthless or extensively depreciated, or which give rise to imminent danger.
After deduction of reasonable expenses connected with the sale, the sum received from the sale shall be immediately reported to the customer.
The freight forwarder shall notify the customer as soon as possible of measures that have been taken, and, upon request, supply evidence of any expenses in connection herewith, as well as prove that he has exercised due diligence in limiting costs and risks.
For such expenses the freight forwarder may debit a special expense charge.
The freight forwarder has a duty to promptly inform the customer and notify a claim against a third party, where goods have been damaged, delayed or when some other loss has occurred due to that party’s acts or omissions, but only if the freight forwarder or his own employees have – or ought to have had – knowledge of such damage, delay or loss. The freight forwarder shall in such case inform the customer and consult with him in order to take such steps as are necessary to secure the customer’s claim to compensation from the party who has caused the damage or loss, or who is responsible therefore, and shall, when requested to do so, assist the customer in his relation to the third party.
If so requested, the freight forwarder shall transfer to the customer all rights and claims that the freight forwarder may have under his agreement with a third party.
The offer made by the freight forwarder is based on information relevant to the contract supplied to the freight forwarder by the customer, or otherwise as the case may be, on circumstances that the freight forwarder may assume as being normal for the intended contract.
Notwithstanding the customer’s obligation as to payment under contracts of sale or freight agreements with parties other than the freight forwarder, he has a duty upon request, subject to terms being agreed upon, to pay the freight forwarder what is due as per the contract (remuneration, advanced payment, refund of outlays) including advance payment to the freight forwarder for such expenditures, against appropriate documentation.
Unless otherwise agreed upon the freight forwarder is entitled to – when the goods have not been delivered for transport under the terms of the contract and the contract therefore cannot be executed, wholly or partially, as agreed upon, and further in the event the contract is interrupted and cannot be executed as agreed upon due to circumstances beyond the control of the freight forwarder or his subcontractors – receive the agreed charges for freight and other remuneration subject to deductions for what the freight forwarder has saved, or could reasonably have saved, by not having to execute the contract.
The above should also apply in the event the freight forwarder agreed to allow the customer to defer payment until the arrival of the goods at the place of destination.
For services which are clearly necessary in addition to what has been explicitly agreed upon or normally follows from the freight forwarder’s contract, including additional expenses for services rendered by the freight forwarder but under the scope of the agreement and contract, the freight forwarder is entitled to additional compensation. Such compensation shall be subject to the same principles as compensation for services agreed upon under the scope of the agreement.
CONFIDENTIALITY AND INFORMATION
The parties undertake to treat all material information received from the other party as confidential.
Each party is responsible for that its employees and advisers comply with the obligations of the party as set forth in the freight forwarding contract.
The parties shall take appropriate technical and organizational measures to safeguard the information security of its services and the storage and use of information processed in its information system having regard to the security of the functions, telecommunication, hardware and software as well as the confidentiality and integrity of the data content.
All access to the information systems of the freight forwarder or the customer must be conducted in a manner which safeguards the security of the accessed information system.
The parties shall exercise reasonable care in observing the obligations above taking into account technology available and the risks and costs involved.
The obligations set forth above in this § 13 shall survive termination of the contract between the freight forwarder and the customer.
RIGHT OF RETENTION AND LIEN
The freight forwarder has a right of retention and a lien on the goods under his control, for fees and expenses in respect of such goods – remuneration and warehousing charges included – as well as for all other amounts due from the customer under contracts according to § 3 above.
Should the goods be lost or destroyed, the freight forwarder has similar rights in respect of compensation payable by insurance companies, carriers or others.
Should the amount due to the freight forwarder not be paid, he has the right to arrange the sale, in a satisfactory manner, of as much of the goods as is required to cover the total amount due to him, including expenses incurred. The freight forwarder shall, if possible, inform the customer well in advance what he intends to do with regard to the sale of the goods.
THE FREIGHT FORWARDER’S LIABILITY AS
A CONTRACTING PARTY
The freight forwarder is liable as contracting party in accordance with §§ 2 and 16 – 21 for loss, depreciation of or damage to goods, occurring between the moment when the goods have been taken over until the moment the goods have been delivered, as well as for delay in pick-up or delivery.
If for any reason outside the control of the freight forwarder it is or becomes impossible for the freight forwarder to carry out the contract in accordance with the terms agreed, or where circumstances prevent the freight forwarder from making delivery of the goods after their arrival at the place designated for delivery, then the freight forwarder has a liability for the goods in accordance with § 6, section 1, unless other agreement is entered into with the customer.
There is no liability if loss, depreciation, damage or delay is caused by:
- a) fault or neglect of the customer;
- b) handling, loading, stowage, securing or unloading of the goods by the customer or anyone acting on his behalf;
- c) the inherent nature of the goods to be easily damaged, i.e. by breakage, leakage, spontaneous combustion, rotting, rust, fermentation, evaporation or being susceptible to cold, heat or moisture;
- d) lack of or insufficient packing;
- e) faulty or insufficient address or marking of the goods;
- f) faulty or insufficient information about the goods;
- g) the use of open transport equipment, where this is usual or has been agreed;
- h) circumstances which the freight forwarder could not avoid and the consequences of which he was unable to prevent.
Unless specifically agreed, the freight forwarder is not liable for money, securities and other valuables.
Compensation for loss or depreciation of goods shall be calculated on the basis of their invoice value, unless it is proved that their market value, or the current value of goods of the same kind and nature at the time and place the freight forwarder took over the goods was different from the invoice value taking into account that the customer must demonstrate that there is no residual value of the goods. Compensation will not be paid for antique value, sentimental value or other special value.
Freight charges, customs charges and other outlays connected with the transport of the goods lost will also be compensated. Apart from that, the freight forwarder is not obliged to pay any compensation, i.e. for loss of profit, loss of market or other loss of any kind whatsoever.
Compensation for damaged goods shall be paid to an amount equivalent to the extent of depreciation in value. The amount is arrived at by using the percentage of depreciation in value consequent upon damage to the goods, in relation to the value of the goods, as laid down in § 17, section 1. Expenses referred to in § 17, section 2, first sentence, will also be paid to the same extent, but apart from this, the freight forwarder is not obliged to pay any further compensation.
- If the goods are picked up, carried or delivered too late under § 7, section 1, the freight forwarder shall compensate the customer for such direct and reasonable expenses as could have been foreseen as a probable consequence
of the delay at the time of the conclusion of the contract, although with an amount not exceeding a sum equivalent to the freight or other compensation agreed upon in the contract.
- When a time guarantee has been agreed, according to § 7, section 2, and the agreed time of transport has been exceeded, the freight forwarder shall, unless otherwise agreed, credit the customer for the freight or any other compensation agreed upon for the transport. This does not apply if the delay was caused by circumstances beyond the freight forwarder’s own control, except that with regard to carriage of goods by road within Europe the freight forwarder is liable also for circumstances within the control of persons engaged by him for the performance of the contract. The customer shall be considered to have suffered a loss equivalent to the amount of the freight, as long as it cannot be shown that the amount of the loss is less In the latter case only the amount equivalent to the loss shall be credited.
Delay and total loss
- The customer has the right to compensation as if the goods had been lost if no delivery has been made
– with regard to international road transports, within 30 days after the expiry of the agreed period of time, or, if no particular period of time has been agreed upon, within 60 days from the moment the goods were accepted for transport
– for other modes of transport, within 60 days from the time when the goods should have arrived.
The customer has no right to compensation as if for total loss if the freight forwarder can prove within the above mentioned time limits that the goods have not been lost and that they can be delivered within a reasonable period of time.
- In case of cross-labelling or delivery to wrong destination, the freight forwarder shall use his best reasonable efforts to transport the cargo to its original destination using same or similar means of transportation as originally agreed upon or used by the freight forwarder. If the freight forwarder fails for reasons within the freight forwarder’s control to redeliver the goods to the agreed destination, the freight forwarder shall compensate the customer with the full value in accordance with §§ 17 and 18 of the goods at the time and place of the destination originally agreed upon, but shall be under no further liability or bear any further costs related to the goods regardless of the circumstances.
- For loss, depreciation of or damage to goods the freight forwarder’s liability is limited to SDR 8.33 per kg (gross) of the part of the goods which has been lost, depreciated or damaged.
- For delay in pick up, carriage or delivery the freight forwarder’s liability is limited to the amount of the freight.
- For all other loss the freight forwarder’s liability is limited to SDR 100,000 in respect of each assignment.
- If a declaration of a special interest in delivery has been agreed upon, compensation for the additional loss or damage proved may be claimed, up to the total amount of the interest declared, independently of the compensation provided for in sections A-C above.
- In calculating the extent of compensation for loss, depreciation, damage and delay, and all other loss, the principles of §§ 17-20, shall apply correspondingly. The freight forwarder is not obliged to pay any compensation i.e. for loss of profit, loss of market or other loss of any kind whatsoever.
THE FREIGHT FORWARDER’S LIABILITY AS
The freight forwarder is liable for damage resulting from his lack of due diligence in the performance of the contract. The freight forwarder is not liable for acts or omissions of third parties in performing the transport, loading, unloading, delivery, clearance, storage, collection or other services rendered by the freight forwarder. When assessing whether the freight forwarder has acted with due diligence it shall be taken into consideration what the freight forwarder knew or should have known regarding the third party as well as which information was given by the customer regarding the character of the task as well as other information with relevance to the selection of a suitable third party.
Unless specifically agreed, the freight forwarder is not liable for money, securities and other valuables.
In calculating the extent of compensation for loss, depreciation, damage and delay, and all other loss, the principles of §§ 17-21, shall apply correspondingly.
The freight forwarder’s liability for services mentioned in § 3 C is limited to SDR 50,000 in respect of each assignment, and totally in the event of any one occurrence SDR 500,000.
However, in any event compensation shall not exceed:
- a) for delay a sum equivalent to the agreed payment in relation to the individual assignment,
- b) for loss, depreciation of or damage to goods, SDR 8,33 per kg (gross) of the part of the goods which has been lost, depreciated or damaged,
- c) for all other loss five (5) times the agreed payment in relation to the assignment.
- Responsibility for tasks performed by the freight forwarder as contracting party, cf. § 3 B:
Unless otherwise instructed in writing by the customer, the freight forwarder shall take out insurance for the risks of fire, water and burglary in his own name and for account of the customer based upon the invoice value at the time of storage + 10 %. Unless the customer has informed the freight forwarder of the value of the goods, the freight forwarder may asses the value. The customer bears the risk of errors in such assessment of the freight forwarder.
For loss, depreciation of or damage to the goods not covered by insurance in accordance with the above, or when no insurance has been taken out by the freight forwarder, the freight forwarder is liable for negligent acts or omissions with the determination and limitation of liability specified in §§ 17-18 and 21.
The freight forwarder’s liability in relation to all customers is limited to SDR 500,000 with regard to damages occurring on one and the same occasion.
The freight forwarder is liable for delay according to §§ 19 – 20 and 21B.
- Furthermore, the following applies:
- The freight forwarder shall check and issue receipts for whole packages of goods received, without any liability, however, for the content of the packages and invisible damage. At the request of the customer the freight forwarder shall make an inventory of the stock.
The freight forwarder shall, upon opening the packages, immediately notify the customer of any defect or damage that he has observed or should have observed.
The freight forwarder shall take care of the necessary delivery control.
- If the customer has not left any special instructions with regard to the storage of the goods, the freight forwarder may freely choose between various storage possibilities, provided that he exercises due diligence in so doing.
- If goods in store, by reason of their nature, are deemed to be a danger to property or persons, the customer has a duty to remove the goods immediately.
- The customer shall inform the freight forwarder at the latest at the time of delivery of the address to which notice concerning the goods shall be sent and at which instructions shall be received, and inform the freight forwarder immediately of any changes thereof.
- This provision does not apply for any storage of goods cf. § 15, section 2.
THE CUSTOMER’S LIABILITY
The customer shall indemnify and hold the freight forwarder free and harmless for damage, loss or liability incurred by the freight forwarder owing to the fact that:
- a) the particulars concerning the goods, information and documents relating to the assignment are incorrect, unclear or incomplete,
- b) the goods are incorrectly packed, marked or declared, or incorrectly loaded, stowed or secured by the customer or another party acting on his behalf,
- c) the goods have such harmful properties as could not have reasonably been foreseen by the freight forwarder,
- d) the freight forwarder is obliged to pay customs duty or other official fees or provide a security, unless such obligation is caused by the freight forwarder’s negligence,
- e) the goods are illegal, defective, deficient or noncompliant with applicable rules or regulations, are suspected of being or is shown to be in violation of intellectual or industrial property rights of a third party; or the necessary official permits are not in place for the import, export, handling, storage or transport of the goods,
- f) the freight forwarder suffers a direct financial loss, fines or penalties, incurs administrative charges, incurs loss or damage related to the freight forwarder’s authorizations or licenses.
In assessing the customer’s responsibility in accordance with a) and b) regard shall be made to whether the freight forwarder, despite his knowledge of the circumstances, has accepted or failed to make an objection to the measures taken by the customer in respect of the goods.
Should the freight forwarder, in his capacity as charterer or shipper become liable in connection with carriage of the customer’s goods by sea, to pay general average contribution to the shipowner or the carrier, or become exposed to claims from third parties for reasons stated above, the customer shall hold the freight forwarder harmless.
NOTICE OF CLAIM AND DISPUTES
NOTICE OF CLAIM
Notice of claim shall be given to the freight forwarder without undue delay.
In case of apparent loss, depreciation of or damage to the goods, notice shall be given immediately upon receipt of the goods, and in case of non-apparent loss, depreciation of or damage to the goods no later than seven (7) calendar days from the date of delivery.
If notice is not given as described above, the burden of proving that the loss, depreciation of or damage to the goods has occurred while the goods was in the custody of the freight forwarder rests on the customer.
Notice of claim concerning matters other than damage to, or depreciation or loss of the goods shall be given within fourteen (14) days from the day on which the customer knew or ought to have known about the circumstances forming the basis of the freight forwarder’s liability. If such notice of claim has not been given, the customer has lost his right of claim.
If a certain mode of transport has been expressly agreed upon, or if it is proved that loss, depreciation, damage or delay has occurred whilst the goods were being carried by a particular means of transport, the law applicable to such mode of transport and commonly used conditions of carriage shall apply instead, to the extent that they deviate from what is laid down in this § 27.
TIME-BAR (DENMARK, FINLAND AND
Legal proceedings against the freight forwarder shall be commenced within a period of one (1) year; otherwise the right of claim will have become lost.
The time limit period runs:
- a) upon depreciation of or damage to goods from the day upon which the goods were delivered to the consignee,
- b) upon delay, loss of the whole consignment or other kind of loss from the time at which the delay, total loss or other loss could at the earliest have been noticed,
- c) in all other cases from the time at which the cause on which the claim is based could at the earliest have been noticed.
This time-bar shall apply when the freight forwarder’s principal place of business is located in Denmark, Finland or Sweden.
If a certain mode of transport has been expressly agreed upon, or if it is proved that loss, depreciation, damage or delay has occurred whilst the goods were being carried by a particular means of transport, the law applicable to such mode of transport and commonly used conditions of carriage shall apply instead, to the extent that they deviate from what is laid down in this § 28.
In the event of a dispute between the freight forwarder and the customer, the parties shall in the first instance attempt to find a solution through negotiation. If the parties are unable to reach a solution via negotiation, the dispute shall be decided in the general courts in the freight forwarder’s principal place of business. Legal proceedings shall be subject to the law of the freight forwarder’s principal place of business.