Freight forwarding contract. Legal classification, distinction from other contract types and liability issues

Given the complexity of logistics services, the international scope of many transactions and the risks associated with the transportation of goods, freight forwarders must take care to formulate their contracts precisely in order to avoid legal disputes and ensure that their operations run flawlessly.

Legal bases

1. the German Commercial Code (Handelsgesetzbuch, hereinafter: HGB)
2. the Convention on the Contract for the International Carriage of Goods by Road (CMR)
3. the German Freight Forwarders’ Standard Terms and Conditions (Allgemeine Deutsche Spediteurbedingungen, ADSp)

Forwarding contract

The forwarding contract is legally defined in § 453 HGB, according to which the contract obliges the freight forwarder to arrange for the shipment of goods. According to § 454 HGB, this includes the organization of the entire transport chain, i.e. in particular the determination of the means of transport and the transport route (§ 454 sec. 1 no. 1 HGB), the selection of executing contractors, the conclusion of the freight, storage and forwarding contracts required for the shipment as well as the provision of information and instructions to the executing contractors (§ 454 sec. 1 no. 2 HGB) but also the securing of claims for damages (§ 454 sec. 1 no. 3 HGB). The freight forwarder has the option of carrying out the transport himself and with his own transport equipment (§ 458 HGB). If he makes use of this possibility, he has the same rights and obligations as a carrier.

Contract of carriage

The contract of carriage is thus legally defined in § 407 HGB:

“Under the contract of carriage, the carrier is obliged to carry the goods to the place of destination and to deliver them there to the consignee.”

The main obligation of the carrier is the obligation to transport the goods, i.e. the obligation to transport the goods to the place of destination and to deliver them to the consignee there intact and on time. In return, the sender must pay the remuneration, i.e. the freight.

The regulations of the CMR Convention apply to the cross-border transport of goods between two contracting states.

Distinction between the above-mentioned types of contract

The main difference is that the freight forwarder is obliged to organize the transport by means of suitable execution transactions and not, like the carrier, for the actual change of location. The following circumstances speak in favor of a forwarding contract:

• The use of the term ” freight forwarding contract”
• Typically: Inclusion of the German Freight Forwarders’ Standard Terms and Conditions (ADSp)
• Absence of a consignment note
• Assumption of loading and unloading

Since the liability of the freight forwarder and the carrier has been aligned, the distinction will become less important in the future.

Typical contract contents

An effective contract in the freight forwarding industry should contain clearly defined terms and conditions for transportation, delivery and any additional services. Important elements here are the definition of the roles and responsibilities of the parties involved (e.g. shipper, consignee, forwarder), the precise description of the goods to be transported, delivery deadlines, payment terms and liability regulations. In addition, any special agreements, such as for the transport of dangerous goods or special safety requirements, must be clearly defined.

Liability issues

Liability in freight forwarding contracts depends on many factors. Typically, freight forwarders seek to limit their liability for damages, losses or delays in delivery that are beyond their control. Often, liability is limited to a certain maximum amount, in accordance with the provisions of the ADSp, exclusion of liability of auxiliary persons, contractual penalties or by taking out various types of insurance. When agreeing limitations of liability, it should be noted that these are generally only permissible by means of an individual agreement and taking into account the restrictions of § 466 HGB. This also applies if the agreements are made for a number of contracts with the same contractual partner.

Adaptability and compliance

The dynamic nature of global trade relations and the constant change in legal regulations require flexible contract structures that can be easily adapted to new conditions. This is particularly relevant in times of geopolitical change, such as Brexit, or when new environmental regulations are introduced. Compliance with local and international laws, such as basic data protection regulations or customs regulations, must be taken into account in the contracts and regularly reviewed.

Conclusion

The drafting of contracts in the freight forwarding industry is a challenging but decisive factor for the success and legal protection of logistics companies.