Safe inclusion of general forwarder’s terms and conditions in transport sector
Terms and conditions
There are many general terms and conditions in the transport, forwarding and logistics sector. The following are some of the better known and common sets of conditions for the general sector:
- ADSp 2003/2016/2017;
- General Conditions for logistical services (Logistics GTC 2019 or Logistik-AGB 2019);
- German Transport and Storage Conditions (DTLB 2015); and
- Contractual conditions for the road haulage, forwarding and logistics contractor 2015 (VBGL 2015)
There are also special sets of rules such as the:
- General Storage Conditions of German Furniture Transport for Storage Contracts with Entrepreneurs 2022 (ALB 2022); and
- General Terms and Conditions of the Federal Heavy Transport and Crane Work Group 2020 (AGB BSK Kran & Transport 2020).
In addition to selecting the appropriate general terms and conditions, the second step is to incorporate them into the customer relationship in as legally secure a manner as possible. In the commercial sector, it is much easier to include them than in the relationship with consumers, but here too, care must be taken.
Correct references
The German Freight Forwarders’ Standard Terms and Conditions (the ADSp) show that previously common references are no longer sufficient today. It was common for those in the sector to simply state that they work exclusively on the basis of the latest version of the ADSp. However, this is not sufficient to effectively refer to the liability exemptions and limitations of the actual version of the ADSp 2017. The following has in the meantime become obsolete:
We work exclusively on the basis of the ADSp, latest version. These limit in section 23 ADSp the legal liability for damage to
goods according to § 431 HGB (German Commercial Code) for damage in the forwarder’s custody to Euro 5 per kg, in case of multimodal transports including sea transport to 2 SDR/kg and furthermore per damage or event to Euro 1 Mio. or Euro 2 Mio. Or 2 SDR/kg, whichever is higher. In addition, it is agreed that (1) section 27 ADSp does not extend the liability of the freight forwarder or the attribution of fault to persons and other third parties in deviation from legal regulations such as § 507 HGB, Art.
25 MÜ, Art. 36 CIM, Art. 20, 21 CMNI in favor of the principal, (2) the freight forwarder as carrier in the cases listed in § 512 para.
2 No. HGB, the forwarder as carrier is only liable for his own fault in the cases of nautical fault or fire on board, and (3) the forwarder as carrier in the sense of the CMNI is not liable for nautical fault, fire on board or defects of the ship under the conditions specified in Art. 25 Para. 2 CMNI.
The ADSp 2016 and the ADSp 2017 each contain higher liability amounts. Therefore, a more detailed referral is recommended, such as the following:
We work exclusively on the basis of the ADSp 2017. Please note that the ADSp 2017 contain liability provisions that deviate from the respective standard legal provisions. We refer in particular to clauses 22 – 25 ADSp 2017. The ADSp 2017 together with supplements thereto are available for download on our homepage and will also be sent to you on request.
Comment
Should those in the sector wish to use only a part of the ADSp 2017 or use the ADSp 2017 in conjunction with other sets of conditions (eg, the Logistics GTC 2019), a bespoke solution is also possible.
For further information on this topic please contact Carsten Vyvers.
Click here for the International Law Office original article in English (for Lexology subscribers).