If a truck cannot be used to fulfill a follow-up order due to delays at the loading or unloading point, the transport company involved suffers considerable economic damage. The claim to demurrage is not regulated in the CMR Convention.
Regulation under German law
If the forwarder and the carrier have not reached an agreement on demurrage, Section 412, Paragraph 3 of the German Commercial Code is applicable if the transport contract is governed by the law of the Federal Republic of Germany. Section 412, paragraph 3 of the HGB stipulates that a carrier is entitled to a reasonable compensation payment in the event of an excessively long demurrage period if the delay in loading or unloading is not attributable to his sphere of risk.
This claim, which is regulated by law, may not be excluded by the freight carrier’s client in its general terms and conditions. This was decided by the Federal Court of Justice in its judgment of May 12, 2010 (Case No. I ZR 37/09).
When does demurrage become payable?
The condition for a demurrage payment is an excess of the time window for loading and unloading, for which the carrier is not responsible. If a specific time for making the truck available has been agreed in the transport contract, the carrier can assume that the goods have been made available for loading at the loading point at that time and that the forwarder is ready to load.
According to a decision of the Mannheim Local Court, this also applies if no fixed time is specified for the takeover of the goods, but a time window (Mannheim Local Court, ruling of 29.02.2015, ref. 10 C 460/13). If the transport contract does not contain a regulation on when the carrier can demand demurrage, the waiting time begins at the earliest with the arrival at the loading or unloading point and the notification of readiness for loading or unloading.
Furthermore, it depends on whether the forwarder and the carrier have made deviating agreements, such as that no demurrage is to be paid for waiting times of up to one hour. In court proceedings, the carrier must prove the beginning and duration of the waiting time for which he claims demurrage.
How much demurrage is the carrier entitled to?
First of all, it depends on whether the contracting parties have agreed on the amount of the demurrage in the transport contract. If there is no contractual agreement, the carrier is entitled to a reasonable demurrage charge in accordance with Section 412, Paragraph 3 of the German Commercial Code (HGB). The appropriateness of the remuneration shall be determined according to the remuneration usually paid in the course of business at the time of the conclusion of the contract for the provision of the vehicle in the period after the end of the loading and unloading time. The carrier cannot unilaterally determine the amount of demurrage. The assessment is up to the judge in each individual case. German courts have set demurrage charges between EUR 50.00 and EUR 70.00 as reasonable demurrage.
Grau Rechtsanwälte PartGmbB offers legal support in day-to-day business, especially for foreign companies operating in Germany or suppliers of German companies – the whole spectrum of German business law, starting with corporate and commercial law, distribution law, labor law, insolvency law and debt management.
If you have any further questions, please contact our office at +49 (0) 40 180 364 020 or office@graulaw.eu.
