The German Freight Forwarders’ Standard Terms and Conditions 2017 (ADSp 2017) are recommended for use as of January 1, 2017 by the Federation of German Industries (BDI), the Federation of German Wholesale, Foreign Trade and Services (BGA), the Federal Association of Road Haulage, Logistics and Disposal (BGL), the Federal Association of Furniture Forwarding and Logistics (AMÖ), the Federal Association of Economics, Transport and Logistics (BWVL), the Association of German Chambers of Industry and Commerce (DIHK), the German Freight Forwarding and Logistics Association (DSLV) and the German Retail Federation (HDE). This recommendation is non-binding. The contracting parties are at liberty to reach agreements that deviate from the content of this recommendation.
Definitions
1.1 Delivery
The term “delivery” also includes delivery in the case of stock transactions.
1.2 Customer
The legal entity concluding a transport contract with the Freight Forwarder.
1.3 Goods at risk of theft
Goods that are exposed to an increased risk of robbery and theft, such as money, precious metals, jewelry, watches, precious stones, works of art, antiques, check cards, credit cards or other means of payment, securities, foreign currencies, documents, spirits, tobacco products, consumer electronics, telecommunications equipment, IT equipment and accessories, and chip cards.
1.4 Consignee
The legal entity to which the goods are to be delivered according to the transport contract or on the basis of effective instructions of the principal or other person authorized to dispose of the goods.
1.5 Vehicle
A means of transport used for transporting goods on traffic routes.
1.6 Dangerous goods
Goods which, even in the course of normal transport, storage or other activities, may pose an immediate danger to persons, vehicles and legal interests of third parties. Dangerous goods are, in particular, those goods which fall within the scope of application of relevant dangerous goods laws and regulations as well as hazardous materials, water or waste regulations.
1.7 Loading equipment
Means of combining packages and forming loading units, e.g. pallets, containers, swap bodies, containers.
1.8 Loading/unloading point
The postal address, unless the parties have agreed on a more precise location.
1.9 Time of performance
The time (date, time) at which a specific service is to be provided, e.g. a time window or point in time. 1.10 Packages Individual items or units formed by the Principal for the purpose of handling the order, with or without loading equipment, which the Freight Forwarder must treat as a whole (packages within the meaning of Sections 409, 431, 504 of the German Commercial Code).
1.11 Event of damage / loss event
A claim event occurs when, due to an external event, an injured party asserts a claim arising from a transport contract or in lieu of a transport contract claim; a claim event occurs when, due to an external event, several injured parties assert claims arising from several transport contracts.
1.12 Interface
After taking over and before delivery of the goods by the Freight Forwarder, any transfer of the goods from one legal entity to another, any transhipment from one vehicle to another, any (intermediate) storage.
1.13 Freight Forwarder
The legal entity concluding a transport contract with the Customer. Freight forwarders in this sense are in particular carriers within the meaning of § 407 of the Commercial Code, forwarders within the meaning of § 453 of the Commercial Code, warehouse keepers within the meaning of § 467 of the Commercial Code and carriers within the meaning of §§ 481, 527 of the Commercial Code.
1.14 Transport contracts
Contracts of the Freight Forwarder concerning all kinds of activities, no matter whether they concern forwarding, freight, sea freight, warehousing or any other business usually belonging to the forwarding trade (e.g. customs clearance, tracking and tracing, transshipment). These also include logistical services customary in forwarding if these are connected with the transport or storage of goods, in particular activities such as the formation of loading units, commissioning, labeling and weighing of goods and returns processing. Contracts of carriage shall also be deemed to be contracts of subcontracting for the provision of manned motor vehicles for use as instructed by the Principal.
1.15 Shipper
The legal entity which hands over the goods for carriage in accordance with the transport contract or on the basis of effective instructions.
1.16 Material contractual obligations
Duties the fulfillment of which is a prerequisite for the proper performance of the transportation contract (Section 1.14) and compliance with which the contractual partner may regularly rely on.
1.17 Valuable goods
Goods with an actual value at the place and time of takeover of at least 100 euros/kg.
1.18 Time window
Agreed service period for the arrival of the Freight Forwarder at the place of loading or the place of unloading.
1.19 Time
Agreed time of performance for the arrival of the Freight Forwarder at the place of loading or the place of unloading.
Scope of Application
2.1 The ADSp apply to all transport contracts of the Freight Forwarder as contractor.
2.2 Legal provisions, which may not be deviated from by means of pre-formulated contract terms, take precedence over the ADSp.
2.3 The ADSp do not apply to transactions which exclusively concern
2.3.1 packaging work,
2.3.2 the carriage and storage of goods to be towed or salvaged,
2.3.3 the carriage and storage of removal goods within the meaning of Section 451 of the German Commercial Code (HGB),
2.3.4 storage and digitization of files; files are all types of embodied and digitized business papers, documents, data carriers and similar items used for the collection of information,
2.3.5 Heavy or large-volume transports, the performance of which requires a transport permit or special permit under traffic law, crane services and related assembly work.
2.4 The ADSp shall not apply to transport contracts with consumers within the meaning of Section 13 BGB.
Duties of the Principal when placing the order; duties to inform, special types of goods.
3.1 The Customer shall inform the Freight Forwarder in due time about all known, significant factors affecting the execution of the order. These include
3.1.1 addresses, type and nature of the goods, gross weight (including packaging and loading equipment provided by the principal) or otherwise stated quantity, marks, numbers, number and kind of packages, special characteristics of the goods (such as live animals, plants, perishability), value of goods (e.g. for customs purposes or insurance of the goods according to section 21), and delivery times,
3.1.2 all obligations under public law, e.g. customs law, foreign trade law (in particular embargoes on goods, persons or countries) and security law,
3.1.3 in the case of maritime transport, all data required under maritime safety regulations (e.g. SOLAS) in the prescribed form,
3.1.4 industrial property rights existing vis-à-vis third parties, e.g. trademark and licensing restrictions associated with the possession of the goods, as well as legal or official obstacles preventing the execution of the order,
3.1.5 special technical requirements for the means of transport and special load securing equipment to be provided by the Freight Forwarder.
3.2 In the case of dangerous goods, the Principal must inform the Freight Forwarder in good time in text form of the quantity, the exact nature of the danger and – if necessary – the precautionary measures to be taken. If the goods are dangerous goods according to the law on the transport of dangerous goods or other goods for the transport or storage of which special dangerous goods or waste regulations exist, the Principal shall provide the information required for the proper execution of the forwarding instruction, in particular the classification according to the relevant dangerous goods law, and hand over the necessary documents at the latest upon delivery of the goods.
3.3 In the case of valuable goods or goods at risk of theft, the Customer shall inform the Freight Forwarder in text form about the nature and value of the goods and the existing risk in the order, so that the Freight Forwarder can decide whether to accept the order or take appropriate measures for a safe and damage-free execution of the order. If he accepts this order, the Freight Forwarder is obliged to take appropriate security measures to protect the goods.
3.4 The Customer shall provide the Freight Forwarder with all documents and other information (e.g., tariff classification) necessary for the proper customs or other legally prescribed handling of the goods, including security checks, e.g., for airfreight shipments.
Rights and duties of the Freight Forwarder
4.1 The Freight Forwarder must safeguard the interests of the Customer. He must check the order placed with him for obvious deficiencies and notify the principal without delay of all dangerous circumstances known to him concerning the execution of the order. If necessary, he shall obtain instructions.
4.2 The Freight Forwarder shall ensure that the vehicles, load securing equipment and, if the provision of loading equipment has been agreed, the loading equipment used by him for the transport are in technically perfect condition, comply with the legal regulations and the requirements for the goods set out in the transport contract. Vehicles and loading equipment shall be equipped with the usual devices, equipment or procedures to protect against hazards to the goods, in particular load securing devices. Vehicles shall be low-emission, low-noise and energy-saving.
4.3 The Freight Forwarder shall employ reliable and, in accordance with the activity, professionally trained, suitable and properly employed driving personnel and, if necessary, with driver’s certificate.
4.4 The Freight Forwarder shall comply with any house, plant or building site rules applicable on a third party’s premises and made known to him. § Section 419 HGB remains unaffected. 4.5 The Freight Forwarder is entitled to make customs clearance dependent on the granting of a written power of attorney enabling him to act as a direct representative.
4.6 If the Freight Forwarder is instructed with the cross-border transportation of the goods or the import or export clearance, this instruction shall, in case of doubt, also include the customs clearance or other legally required handling of the goods, if without it the cross-border transportation to the destination is not feasible. In doing so he may
4.6.1 open packages if this is necessary for the purpose of carrying out a legally prescribed inspection (e.g. freight forwarder as regulated agent) and then take all measures necessary for the execution of the order, e.g. repackage the goods,
4.6.2 lay out the duties determined by customs.
4.7 In case of damage to goods or delay, the Freight Forwarder shall, upon request of the Principal or Consignee, immediately provide the latter with all information necessary and known to him to secure claims for damages.
4.8 In the absence of an express agreement, the instruction given to the freight forwarder does not include
4.8.1 the provision and exchange of pallets or other loading equipment,
4.8.2 the loading and unloading of the goods, unless the circumstances or the custom of the trade indicate otherwise,
4.8.3 a prohibition of transhipment (§ 486 HGB shall not apply),
4.8.4 the provision of a shipment tracking system, unless this is customary in the industry, whereby section 14 shall remain unaffected,
4.8.5 returns, transshipments and concealed consignments; if, in deviation from the order, one or more additional packages are handed over by the Customer for transport and the Freight Forwarder accepts this or these packages for transport, the Freight Forwarder and the Customer shall conclude a new transport contract for these goods. In the case of returns or concealed consignments, the provisions of the original contract of carriage shall apply in the absence of any agreement to the contrary. Section 5.2 remains unaffected.
4.9 Further performance and information obligations, e.g. regarding quality management measures and their compliance (audits) as well as monitoring and evaluation systems and key performance indicators, shall require express agreement.
Contact person, electronic communication and documents
5.1 At the request of a contracting party, each contracting party shall designate one or more contact persons for the receipt of information, declarations and inquiries for the execution of the contract and shall communicate the names and contact addresses of the other party. This information shall be updated as changes occur. If a party does not designate a contact person, the person who concluded the transport contract for the party shall be deemed to be the contact person. Information obligations going beyond the law, e.g. concerning measures to be taken by the Freight Forwarder in case of disruptions, in particular an impending delay in takeover or delivery, in case of obstacles to carriage or delivery, damage to the goods or other disruptions (emergency concept) shall require express agreement.
5.2 In the absence of an express agreement, contractual declarations by the warehouse and transport personnel require the approval of the respective contracting party in order to be effective.
5.3 The Principal shall ensure that the Shipper or Consignee makes the declarations required at the loading or unloading point for the execution of the transport contract on behalf of the Principal and performs actual actions, such as handing over or taking over the goods.
5.4 If agreed between the Principal and the Freight Forwarder, the parties shall transmit or receive shipment data including invoicing via EDI (Electronic Data Interchange)/DFÜ (remote data transmission). The transmitting party shall bear the risk for the loss, completeness and correctness of the transmitted data.
5.5 In the event of an agreement pursuant to Section 5.4, the parties shall ensure that their own IT system is operational and that the usual security and control measures are implemented to protect the electronic data exchange from access by third parties and to prevent the modification, loss or destruction of electronically transmitted data. Each party shall be obligated to notify the other party in a timely manner of any changes to its IT system that may have an impact on the electronic data exchange.
5.6 Electronically or digitally created documents, in particular proofs of delivery, shall be deemed equivalent to written documents. In addition, each party shall be entitled to archive written documents only electronically or digitally and to destroy the originals in compliance with the statutory provisions.
Packaging and labeling obligations of the Principal
6.1 The goods shall be packaged by the Principal and, to the extent necessary, marked with clearly and durably affixed marks for their treatment in accordance with the order. Old markings shall be removed or rendered unrecognizable. The same shall apply to packages.
6.2 In addition, the principal shall be obligated
6.2.1 to mark packages belonging to one consignment as belonging together,
6.2.2 to prepare packages – if necessary – in such a way that access to the contents is not possible without leaving externally visible traces.
Load securing and inspection duties of the freight forwarder
7.1 If loading or unloading takes place at more than one loading or unloading point, the Freight Forwarder shall, upon completion of the safe and secure loading of goods, ensure that the load is secured throughout to the last unloading point.
7.2 The Freight Forwarder is obliged to carry out checks at each interface. He shall check the goods for completeness and identity as well as externally visible damage and integrity of labels, seals and closures and document any irregularities.
Receipt
8.1 The Freight Forwarder shall issue a receipt for the taking over of the goods – if necessary with reservations. With the take-over receipt the Freight Forwarder confirms in case of doubt only the number and type of packages, but not their contents, value, weight or otherwise stated quantity.
8.2 In the case of pre-loaded or closed loading units such as containers or swap bodies and data provided in advance by the Customer, the correctness of a take-over receipt concerning the number and type of loaded packages shall be deemed to be refuted if the Freight Forwarder reports (quantity) differences and damage to the Customer immediately after he has unloaded the loading unit.
8.3 As proof of delivery, the Freight Forwarder shall request from the consignee a delivery receipt for the packages specified in the order or in other accompanying documents. If the consignee refuses to provide the delivery receipt, the Freight Forwarder must request instructions. The Customer may demand the delivery receipt within one year after delivery of the goods.
8.4 All signed documents evidencing the execution of the order, such as delivery bills, freight forwarder’s take-over bills, waybills and sea waybills, bills of lading or bills of lading, serve as take-over or delivery receipts.
8.5 The takeover or delivery receipt can also be created electronically or digitally, unless the Customer requires the issuance of a waybill, sea waybill, consignment bill or bill of lading.
Instructions
The Freight Forwarder is obliged to comply with any instruction given to him after the conclusion of the contract concerning the goods, unless the execution of the instruction threatens to cause disadvantages for the operation of his business or damage to the principals or consignees of other consignments. If the forwarder intends not to follow an instruction given to him, he shall immediately notify the person who gave the instruction.
Freight transfer, cash on delivery
Notification by the principal that the order is to be executed freight collect or, e.g., in accordance with Incoterms, for the account of the consignee or a third party, does not affect the principal’s obligation towards the freight forwarder to pay the remuneration and other expenses (freight, customs duties and other charges). Instructions to collect e.g. according to § 422 HGB, Art. 21 CMR remain unaffected.
Non-compliance with loading and unloading times, demurrage charges
11.1 If the principal has to load or unload the goods, he shall be obliged to observe the agreed loading or unloading time, otherwise an appropriate time.
11.2 If, in the case of road haulage, a time or time slot is agreed for the provision of a vehicle or notified by the Freight Forwarder without the Principal, Shipper or Consignee objecting, the loading or unloading time for full loads (but not for bulk goods) shall be a maximum of 2 hours for loading or unloading, irrespective of the number of consignments per loading or unloading point for vehicles with a maximum permissible weight of 40 tonnes. In the case of vehicles with a lower gross weight, these times shall be reduced to a reasonable extent on a case-by-case basis.
11.3 The loading or unloading time begins with the arrival of the road vehicle at the loading or unloading point (e.g. notification to the gatekeeper) and ends when the Principal or Consignee has fully complied with its obligations. If a specific performance time has been agreed for the provision of the road vehicle at the loading or unloading point, the loading or unloading time shall not begin before the time agreed for the provision.
11.4 If the loading or unloading time is exceeded due to contractual agreement or due to reasons beyond the Freight Forwarder’s control, the Principal shall pay the Freight Forwarder the agreed demurrage, otherwise an appropriate demurrage.
11.5 The above provisions apply accordingly if the Freight Forwarder is obliged to load or unload the goods and the Principal is exclusively obliged to make the goods available for loading or to accept them after unloading.
Impediments to Performance, Force Majeure
12.1 If the Freight Forwarder cannot take over the goods or cannot take them over in time, he must inform the Principal or the Shipper immediately and obtain appropriate instructions. § Section 419 of the German Commercial Code (HGB) shall apply accordingly. The Principal remains entitled to terminate the Freight Forwarding Contract without the Freight Forwarder being entitled to assert claims according to § 415 section 2 HGB.
12.2 Impediments to performance, which are not attributable to the sphere of risk of a contracting party, release the contracting parties from their performance obligations for the duration of the disruption and the scope of its effect. Such obstacles to performance shall be force majeure, riots, acts of war or terrorism, strikes and lockouts, blockage of transport routes and other unforeseeable, unavoidable and serious events. In the event of an impediment to performance, each contracting party shall be obliged to inform the other party without delay; the Freight Forwarder shall also be obliged to obtain instructions from the Customer.
Delivery
13.1 If, after arrival at the unloading point, it becomes apparent that unloading cannot be carried out within the unloading time, the Freight Forwarder must inform the Principal immediately and obtain appropriate instructions. § Section 419 of the German Commercial Code (HGB) shall apply.
13.2 If the Freight Forwarder cannot meet the agreed time for performance or – in the absence of an agreement – a reasonable time for delivery of the goods, he must obtain instructions from his Principal or the consignee. 13.3 If the consignee cannot be found in his home, in the business premises or in a communal facility where the consignee lives, the goods may be delivered, unless there are obvious doubts about their entitlement to receive the goods 13.3.1 in the home to an adult family member, a person employed in the family or an adult permanent resident,
13.3.2 on business premises to a person employed thereon,
13.3.3 in common facilities, to the manager of the facility or an authorized representative.
13.4 If the Freight Forwarder has made an agreement with the Principal or Consignee that delivery shall take place without physical handover to the Consignee (e.g. overnight, garage or belt delivery), delivery shall take place when the goods are actually made available at the agreed location.
13.5 Delivery may only take place under the supervision of the Principal, Consignee or a third party authorized to receive the goods. Clauses 13.3 and 13.4 shall remain unaffected.
Information and disclosure obligations of the Freight Forwarder
14.1 The Freight Forwarder is obliged to give the Principal the necessary information, to provide information about the status of the transaction upon request and to render account after its execution; however, he is only obliged to disclose costs if he acts on behalf of the Principal.
14.2 The Freight Forwarder is obliged to hand over to the Principal everything he receives for the execution of the transaction and everything he obtains from the business.
Storage
15.1 The principal has to pack and mark the goods, if necessary, and to provide documents as well as all information required by the freight forwarder for proper storage.
15.2 The goods are stored at the Freight Forwarder’s own warehouse or, if not contractually excluded, at third party warehouses, at the Freight Forwarder’s discretion. If the Freight Forwarder stores goods at a third party warehouse, he must immediately inform the Principal in writing of the name and location of the third party warehouse or, if a warehouse warrant has been issued, make a bill of it.
15.3 The Freight Forwarder is responsible for the proper maintenance and care of warehouses and other storage areas, the access roads to the premises and the securing of the goods, in particular against theft. Further security measures, e.g. going beyond the statutory fire protection regulations, shall require express agreement.
15.4 In the absence of any other agreement
15.4.1 the taking over of the goods for storage starts with the beginning of the unloading of the vehicle by the Freight Forwarder and the delivery of the goods ends with the completion of the loading by the Freight Forwarder,
15.4.2 inventory is managed by the Freight Forwarder’s warehouse management system
15.4.3 one physical inventory per year is carried out. Upon instruction of the Customer, the Freight Forwarder shall carry out further physical inventories against reimbursement of expenses.
15.5 The Freight Forwarder undertakes to carry out an incoming goods inspection according to type, quantity and nature of the goods, marks, numbers, number of packages as well as externally visible damages according to § 438 HGB (German Commercial Code) upon taking over the goods, if he has adequate means for inspection.
15.6 In order to secure the goods, regular checks shall be carried out by suitable staff of the Freight Forwarder.
15.7 The Freight Forwarder shall inform the Customer immediately of any shortages or changes in the goods that are to be feared and shall request instructions. § Section 471, paragraph 2 of the German Commercial Code (HGB) remains unaffected.
15.8 Further duties of performance and information require express agreement.
Remuneration
The agreed remuneration, which includes the costs of carriage and storage, covers all services to be rendered under the transport contract. Additional claims for costs incurred in the regular course of carriage or storage and foreseeable at the time the offer was made cannot be made separately, unless otherwise agreed. Costing errors shall be borne by the costing party. §§ Sections 412, 418, 419, 491, 492, 588 to 595 of the German Commercial Code (HGB) and comparable regulations from international agreements shall remain unaffected.
Claims for Expenditure and Indemnification
17.1 The Freight Forwarder is entitled to claim reimbursement of expenses which he deemed necessary under the circumstances and for which he is not responsible, in particular contributions to average procedures, detention or demurrage costs, repackaging for the protection of the goods.
17.2 If the Principal instructs the Freight Forwarder to take delivery of the goods and, upon delivery to the Freight Forwarder, freight, COD, customs duties, taxes or other duties or charges are demanded, the Freight Forwarder is entitled, but not obliged, to charge these – to the extent he could reasonably be expected to consider them necessary – and to claim reimbursement from the Principal, unless otherwise agreed.
17.3 The Principal must, upon request, relieve the Freight Forwarder from expenses such as freight claims, contributions to average procedures, customs duties, taxes and other dues imposed on the Freight Forwarder, in particular as the party entitled to dispose of or as the owner of third party goods, if the Freight Forwarder is not responsible for them.
Invoices, foreign currencies
18.1 Claims for remuneration of the Freight Forwarder require the receipt of an invoice or payment schedule meeting the legal requirements. In the absence of an agreement to the contrary, the due date for undisputed delivery does not require the submission of a proof of delivery.
18.2 The Freight Forwarder is entitled to demand payment from foreign principals or consignees in their national currency or in Euro at his discretion.
18.3 If the Freight Forwarder owes foreign currency or interprets foreign currency, he is entitled to demand payment either in the foreign currency or in Euro. If he demands payment in Euro, the conversion will be made at the official exchange rate on the day of the Freight Forwarder’s payment, which the Freight Forwarder has to prove.
18.4 Payment processing by credit note procedure must be expressly agreed. In case of doubt, the Principal shall issue credit notes immediately after performance of the services. Clause 18.1 sentence 1 shall not apply to the credit note procedure.
Offsetting, retention
With respect to claims arising from the transportation contract and related non-contractual claims, set-off or retention shall only be permissible if the counterclaim is due, undisputed, ready for decision or has been finally determined by a court of law.
Right of lien and retention
20.1 In order to secure his claims arising from services under the Freight Forwarding Contract, the Freight Forwarder may invoke his statutory rights of lien and retention.
20.2 The lien will be realised in accordance with the statutory provisions with the proviso that
20.2.1 in case of the exercise of the legal lien of the freight forwarder or carrier, the threat of lien sale and the necessary notifications are to be sent to the consignee
20.2.2 the period of one month specified in Section 1234 of the German Civil Code shall be replaced by one week.
20.3 The Customer is entitled to prohibit the exercise of the lien if he grants the Freight Forwarder an equivalent means of security with regard to his claims (e.g. directly enforceable bank guarantee).
Insurance of the goods
21.1 The Freight Forwarder arranges the insurance of the goods (e.g., transport or warehousing insurance) with an insurer of his choice, if the Principal instructs him to do so prior to handing over the goods.
21.2 The Freight Forwarder must arrange for the insurance of the goods, if this is in the interest of the Principal. In particular, the freight forwarder may assume this, if
21.2.1 the freight forwarder has arranged insurance for an earlier freight forwarding contract within the scope of an ongoing business relationship,
21.2.2 the principal has stated in the forwarding instruction a “value of goods for insurance of the goods”.
21.3 The presumption of interest in obtaining insurance in accordance with section 21.2 shall in particular not apply if
21.3.1 the principal prohibits the insurance,
21.3.2 the principal is a freight forwarder, carrier or warehouse keeper.
21.4 The Freight Forwarder must follow the instructions of the Principal when arranging insurance, in particular with regard to the sum insured and the risks to be covered. If he does not receive any instructions, the Freight Forwarder has to decide on the type and scope of the insurance according to his best judgement and to take out the insurance at market conditions.
21.5 If the Freight Forwarder cannot arrange insurance cover due to the nature of the goods to be insured or for any other reason, the Freight Forwarder must inform the Principal immediately.
21.6 If, after conclusion of the contract, the Freight Forwarder arranges insurance cover on the instructions of the Principal, if he takes over the collection of an indemnity or other activities in the handling of insurance claims and averages, he is entitled, even without agreement, to a remuneration customary in the locality, otherwise reasonable, in addition to the reimbursement of his expenses.
Liability of the Freight Forwarder, Assignment of Claims for Compensation
22.1 The freight forwarder is liable for damage in accordance with the statutory provisions. However, the following provisions shall apply, unless mandatory or GTC regulations stipulate otherwise.
22.2 In all cases where the freight forwarder is liable for loss of or damage to goods (damage to goods) according to sections 23.3 and 24, he is obliged to pay compensation for value and costs in accordance with sections 429, 430 and 432 of the German Commercial Law instead of compensation for damages.
22.3 In case of inventory discrepancies, the Freight Forwarder is entitled to balance the value of the stock in case of simultaneous shortages and surpluses of the same Customer in order to determine the compensation for value in the cases covered by section 24.
22.4 If the freight forwarder has a claim against a third party arising out of damage for which he is not liable, or if the freight forwarder has a claim against a third party exceeding his own liability, he must, at the request of the principal, cede such claim to the principal, unless the freight forwarder, by special agreement, takes over the prosecution of the claim for the account and at the risk of the principal. §§ Sections 437, 509 HGB remain unaffected.
Limitations of Liability
23.1 The liability of the freight forwarder for damage to goods in his custody according to section 431 paragraphs 1, 2 and 4 of the German Commercial Law is, with the exception of damage arising out of carriage by sea and warehousing upon instruction, limited as follows:
23.1.1 to 8.33 special drawing rights for each kilogram, if the freight forwarder is
carrier in the sense of § 407 HGB,
a self-employed freight forwarder, fixed cost forwarder or consolidated freight forwarder as defined in §§ 458 to 460 HGB or
is a custody forwarder within the meaning of section 461 sub-section 1 HGB;
23.1.2 to 2 instead of 8.33 special drawing rights for each kilogram, if the principal has concluded a contract of carriage with the freight forwarder for carriage by different means of transport including carriage by sea and the place of damage is unknown. If the place of damage is known, liability shall be determined in accordance with Section 452a of the German Commercial Code (HGB), taking into account the exclusions and limitations of liability of the ADSp.
23.1.3 If the liability of the freight forwarder arising from section 23.1.1 exceeds an amount of 1.25 million Euros per event, his liability is further limited to an amount of 1.25 million Euros or 2 special drawing rights for each kilogram, whichever is the greater.
23.2 The liability of the Freight Forwarder for damage to goods in his care is limited, in the case of a contract of carriage by sea and in the case of cross-border carriage, to the maximum amount of liability laid down by law for such carriage. Section 25 remains unaffected.
23.3 In cases not covered by sections 23.1 and 23.2 (e.g. section 461 paragraph 2 German Commercial Code (HGB), sections 280 ff German Civil Code (BGB)) the freight forwarder’s liability for damage to goods is limited in accordance with section 431 paragraphs 1, 2 and 4 HGB as follows
23.3.1 in the case of a contract of carriage by sea or by different means of transport including carriage by sea, to 2 special drawing rights per kilogram,
23.3.2 for all other contracts of carriage, 8.33 special drawing rights for each kilogram.
23.3.3 Furthermore, the liability of the Freight Forwarder arising from any damage event shall be limited to a maximum amount of 1.25 million Euros.
23.4 The liability of the freight forwarder for damage other than to goods, excepting damage in case of warehousing upon instruction, personal injury and damage to goods that are not subject of the contract of transportation, is limited to three times the amount payable for the loss of the goods according to section 23.3.1 or 23.3.2. Furthermore, the Freight Forwarder’s liability is limited from each claim to a maximum amount of 125,000 Euros. 23.4.1 Sections 413, paragraph 2, 418, paragraph 6, 422, paragraph 3, 431, paragraph 3, 433, 445, paragraph 3, 446, paragraph 2, 487, paragraph 2, 491, paragraph 5, 520, paragraph 2, 521, paragraph 4, 523 of the German Commercial Code (HGB) as well as corresponding liability provisions in international conventions, which may not be deviated from by means of pre-formulated contract terms, remain unaffected. 23.4.2 Section 23.4 does not apply to legal provisions such as Art. 25 MÜ, Art. 5 CIM or Art. 20 CMNI, which extend or allow to extend the liability of the freight forwarder.
23.5 If the liability of the freight forwarder arising from sections 23.1, 23.3 and 23.4 exceeds an amount of 2.5 million Euros per event of damage, his liability is also limited to a maximum of 2.5 million Euros per event of damage or 2 special drawing rights for each kilogram of lost and damaged goods, whichever is the greater; in the case of more than one claimant the freight forwarder’s liability is proportionate to their claims.
Limitations of liability in case of warehousing upon instruction, inventories and value declaration
24.1 The liability of the freight forwarder for damage to goods in the case of warehousing upon instruction is limited to
24.1.1 in accordance with section 431 paragraphs 1, 2 and 4 of the German Commercial Law to 8.33 special drawing rights per kilogram,
24.1.2 to a maximum of 35,000 euros per claim.
24.1.3 If the damage suffered by a Customer consists of a difference between the nominal and actual stock level, the Freight Forwarder’s liability is limited to 70,000 Euros per year, notwithstanding section 24.1.2, irrespective of the number and type of stocktaking carried out and of the number of damage events causing the inventory difference. 24.2 The Customer may, against payment of a surcharge to be agreed upon, specify in text form prior to storage a value for increasing the liability which exceeds the maximum amounts determined in clause 24.1. In this case the respective specified value shall take the place of the relevant maximum amount.
24.3 The liability of the Freight Forwarder for damage other than to goods, excepting personal injury and damage to goods that are not subject of the contract of transportation, is limited to 35,000 Euros per claim.
24.4 The liability of the freight forwarder – except for damage to goods and goods that are not subject of the contract of transportation – is in any case, irrespective of the number of claims per event, limited to 2.5 million Euros per event; in case of more than one claimant the freight forwarder’s liability is proportionate to their individual claims. Section 24.2 remains unaffected. 25 Exclusion of liability for carriage by sea and inland waterways
25.1 Pursuant to Art. 512, Para. 2, No. 1 of the German Commercial Code (HGB), it is agreed that the freight forwarder, in his position as carrier, is not responsible for the fault of his staff and the ship’s crew, if the damage was caused by conduct during the navigation or other operation of the vessel, but not during the execution of measures predominantly taken in the interest of the cargo, or by fire or explosion on board a vessel.
25.2 According to article 25 paragraph 2 CMNI it is agreed that the Freight Forwarder in his position as carrier or performing carrier shall not be liable for damage caused by
25.2.1 caused by an act or omission of the skipper, pilot or other legal person in the service of the vessel or a push or tow boat in the nautical management or the formation or breaking up of a push or tow convoy, provided that the Freight Forwarder has fulfilled his obligations according to Art. 3 paragraph 3 CMNI with regard to the crew, unless the act or omission is committed with the intent to cause the damage or recklessly and with the knowledge that such damage would probably result,
25.2.2 caused by fire or explosion on board the vessel, without it being proved that the fire or explosion was caused by the fault of the Freight Forwarder, the actual carrier or their servants or agents or by a defect in the vessel,
25.2.3 are due to defects of his or a hired or chartered vessel existing before the beginning of the voyage, if he proves that the defects could not have been discovered before the beginning of the voyage despite the exercise of due diligence.
25.3 Clause 22.4 remains unaffected.
Non-contractual claims
The above exclusions and limitations of liability shall also apply to non-contractual claims in accordance with Sections 434, 436 HGB. Clause 23.4.1 shall apply accordingly.
Qualified fault
27.1 The exclusions and limitations of liability set forth in clauses 22.2, 22.3, 23.3 and 23.4 in conjunction with 23.5, 24 as well as 26 shall not apply if the damage was caused
27.1.1 by intent or gross negligence of the freight forwarder or his agents or
27.1.2 due to a breach of fundamental contractual duties, whereby in the latter case claims for compensation are limited to the foreseeable, typical damage.
27.2 Notwithstanding Section 27.1.2, the limitations of liability in Sections 24.1 and 24.2 shall only apply in the event of a grossly negligent or intentional breach of material contractual obligations. 27.3 Sections 435, 507 of the German Commercial Code (HGB) shall remain unaffected in their respective scope of application. 27.4 Section 27.1 does not apply to legal provisions such as Art. 25 MÜ, Art. 36 CIM or Art. 20, 21 CMNI, which extend or allow to extend the liability of the freight forwarder or the attribution of fault to persons or other third parties.
Liability insurance of the freight forwarder
28.1 The Freight Forwarder is obliged to take out and maintain a liability insurance with an insurer of his choice at usual market conditions, covering at least the standard liability sums of his transport contract liability according to the ADSp and the law. The agreement of a maximum compensation per claim, event and year is permissible, as well as the agreement of an appropriate deductible of the Freight Forwarder.
28.2 Upon request, the Freight Forwarder must prove to the Principal the existence of a valid liability insurance by submitting a confirmation of insurance. If he fails to provide such evidence within a reasonable period of time, the Principal may terminate the Freight Forwarding Contract extraordinarily.
28.3 The Freight Forwarder may only invoke the liability provisions of the ADSp towards the Principal if he maintains sufficient insurance cover at the time of placing the order.
Principal’s liability
29.1 The liability of the Principal under §§ 414, 455, 468 and 488 of the German Commercial Code (HGB) shall be limited to 200,000 euros per damage event.
29.2 The above limitation of liability shall not apply in the case of personal injury, i.e. injury to life, body or health, or if the damage has been caused by intent or gross negligence on the part of the Principal or its vicarious agents or by breach of material contractual obligations, whereby claims for compensation in the latter case shall be limited to the foreseeable, typical damage.
Applicable law, place of performance, place of jurisdiction
30.1 The legal relationship between the Freight Forwarder and the Customer is governed by German law.
30.2 The place of fulfilment for all parties involved is the location of that branch office of the Freight Forwarder to which the order or inquiry is addressed.
30.3 The place of jurisdiction for all disputes arising out of the Freight Forwarding Contract, its initiation or in connection therewith, for all parties involved, as far as they are merchants, is either the place of the Principal’s branch office or that of the Freight Forwarder’s branch office to which the order or request is directed. The above agreement on the place of jurisdiction shall apply as an additional agreement on the place of jurisdiction in the case of Art. 31 CMR and 46 § 1 CIM, but not in the case of Art. 39 CMR, 33 MÜ, 28 WA. 31 Confidentiality The parties are obliged to treat as confidential all information of which they become aware during the performance of the contract of carriage and which is not in the public domain. The information may be used exclusively for the purpose of providing the service. The parties shall impose this confidentiality obligation on other legal entities they use in the performance of their transport contract obligations.
Compliance
32.1 The Freight Forwarder undertakes to comply with minimum wage regulations and regulations concerning minimum conditions at the workplace and confirms this in text form upon request of the Principal. The Freight Forwarder shall indemnify the Principal against liability for the minimum wage if the Freight Forwarder or a subcontractor or hirer used within the scope of the transport contract with the Principal does not pay employees the statutory minimum wage and a claim is made against the Principal.
32.2 In the case of carriage, the Freight Forwarder shall ensure that he or the contractor performing the carriage
32.2.1 within the scope of application of the GüKG, the Freight Forwarder is the holder of a permit in accordance with Section 3 GüKG or an authorization in accordance with Section 6 GüKG or a Community license or does not use such a permit, authorization or license in an unauthorized manner,
32.2.2 within the scope of application of the GüKG, employs driving personnel during transport who meet the requirements of § 7b Para. 1 Sentence 1 GüKG,
32.2.3 presents, upon request, all documents required by law to be carried during carriage, insofar as the Principal or third parties are required to comply with statutory inspection obligations.
32.3 The Freight Forwarder or the Contractor performing the carriage is obliged to organize the activities of its driving personnel in such a way that the prescribed working, driving and rest times can be observed. There is a general prohibition of alcohol and drugs while driving the vehicle.
32.4 Both parties undertake to comply with the legal regulations applicable to their company. They support and respect the principles of the “Global Compact” (“UNGC”), the Universal Declaration of Human Rights of the United Nations and the Declaration on Fundamental Principles and Rights at Work of the International Labor Organization of 1998 (“Declaration”) in accordance with national laws and customs. In particular, both parties shall in their companies
32.4.1 not employ children or use forced labor,
32.4.2 comply with the respective national laws and regulations on working hours, wages and other employer obligations,
32.4.3 comply with applicable labor and health regulations and provide a safe and healthful work environment to maintain the health of employees and prevent accidents, injuries and work-related illnesses,
32.4.4 refrain from any discrimination based on race, religion, disability, age, sexual orientation or gender,
32.4.5 comply with international anti-corruption standards as set forth in the UNGC and local anti-corruption and bribery laws,
32.4.6 comply with all applicable environmental laws and regulations,
32.4.7 request their business partners and subcontractors to base their actions on the aforementioned principles as well.