The ADSp have Its validity is exclusively for national transport among business people. These are transports that start in Germany, continue in Germany and end in Germany. For international transports that cross at least one national border, there are the so-called CMR .
You are reading the ADSp 2016 . We also have a general Overview of the ADSp created and own pages for the ADSp 2003 and ADSp 2017 .
The latest version of the ADSp is of 2017 !
preamble
The German Freight Forwarders' General Terms and Conditions 2016 (ADSp 2016) are recommended for use by the German Freight Forwarders' and Logistics Association (DSLV) from 1 January 2016. This recommendation is non-binding. The contracting parties are free to make agreements that deviate from the content of this recommendation.
Validity of ADSp 2016, priority of mandatory law
1.1 The ADSp 2016 apply to all contracts and services of the freight forwarder, unless the exceptions defined in sections 2.3 and 2.4 apply. General terms and conditions or other pre-formulated contractual conditions of the client do not apply, even if they only contain supplementary provisions to the ADSp 2016.
1.2 Only statutory provisions from which no deviation is permitted by means of pre-formulated contractual terms take precedence over the ADSp 2016.
scope of application
2.1 The ADSp 2016 apply to all transport contracts of the freight forwarder as contractor for all types of activities, regardless of whether they concern forwarding, (sea) freight, warehousing or other business normally associated with the freight forwarding industry (e.g. customs clearance, shipment tracking, transshipment).
2.2 The ADSp 2016 also apply to standard logistical services provided by forwarding companies if these are related to the transport or storage of goods, in particular for activities such as the formation of loading units, order picking, labelling and weighing of goods and returns processing.
2.3 The ADSp 2016 does not apply to transactions that exclusively concern
- 2.3.1 Packaging work
- 2.3.2 the transport and storage of goods to be towed or recovered
- 2.3.3 the transport of removal goods
- 2.3.4 the storage of removal goods, if the General Storage Conditions of the German Furniture Transport Association (ALB) have been agreed,
- 2.3.5 Crane work, heavy or large-volume transport and related assembly work, if the General Terms and Conditions of the Federal Specialist Group for Heavy Transport and Crane Work (AGB-BSK Crane and Transport) have been agreed.
2.4 The ADSp 2016 does not apply to transport contracts with consumers within the meaning of Section 13 of the German Civil Code (BGB).
Placing orders, information obligations, special types of goods
3.1 The Client is obliged to inform the Freight Forwarder in good time before placing the order about all significant circumstances affecting the execution of the order.
3.1.1 This includes all data relevant to the provision of services, such as addresses, symbols, numbers, number of packages or other specified quantities, type, quality and properties of the goods (such as live animals and plants, perishability), gross weight (including packaging and loading equipment), delivery times and the value of the goods (e.g. for customs purposes or insurance of the goods in accordance with Section 21).
3.1.2 In particular, the Client must inform the Freight Forwarder of
- a. all public law obligations, e.g. customs law, foreign trade law (in particular embargoes on goods, persons or countries) and security law obligations,
- b. in the case of maritime transport, all data required under maritime safety regulations (e.g. SOLAS),
- c. existing industrial property rights against third parties, e.g. trademark and licensing restrictions associated with the possession of the goods as well as legal or official obstacles that prevent the processing of the order,
- d. special technical requirements for the means of transport and special load securing equipment which the freight forwarder must provide.
3.2 In the case of dangerous goods, the client must inform the freight forwarder in writing of the quantity, the exact nature of the danger and – if necessary – the precautionary measures to be taken. The client must also inform the freight forwarder of the classification according to the relevant dangerous goods law and hand over the necessary documents at the latest when the goods are handed over. Dangerous goods are goods that can pose an immediate danger to persons, vehicles and the legal interests of third parties even in the course of normal transport, storage or other activities. Dangerous goods are in particular goods that fall within the scope of the relevant dangerous goods laws and regulations as well as regulations on hazardous substances, water or waste.
3.3 In the case of valuable goods or goods at risk of theft, the client must inform the freight forwarder in writing about the type and value of the goods and the existing risk so that the freight forwarder can decide whether to accept the order or take appropriate measures to ensure that the order is processed safely and without damage. Valuable goods are goods with an actual value at the place and time of receipt of at least 50 euros/kg or 10,000 euros/package. Goods at risk of theft are 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, valuables, documents, spirits, tobacco products, entertainment electronics, telecommunications equipment, IT equipment and accessories.
3.4 If an order given to the freight forwarder does not comply with the requirements set out in the ADSp 2016, the freight forwarder is free to
- 3.4.1 to refuse acceptance of the goods,
- 3.4.2 to return goods already taken over or to hold them ready for collection or
- 3.4.3 to execute the order without notifying the client and to demand additional, reasonable remuneration if a safe and damage-free execution of the order would entail increased costs.
3.5 The freight forwarder is not obliged to check or supplement the information provided by the client.
3.6 The terms contained in the order such as “trade fair goods” or references such as “urgent” do not oblige the freight forwarder to ensure expedited execution of the order (e.g. as an express shipment) or preferential handling.
Assumption of further performance obligations by the freight forwarder
4.1 Unless expressly agreed otherwise, the order given to the freight forwarder does not include
4.1.1 the packaging of the goods,
4.1.2 weighing, examination, measures to preserve or improve the goods and their packaging, unless this is customary in the business,
Customs clearance and other legally required treatment of the goods
5.1 The freight forwarder is entitled to make customs clearance dependent on the issuance of a written power of attorney enabling him to represent the freight forwarder directly.
5.2 The Client must provide the Freight Forwarder with all documents and other papers and provide information (e.g. tariff classification) that are necessary for the proper customs or other legally prescribed treatment of the goods - this also includes security checks, e.g. for air freight shipments.
5.3 If the order given to the freight forwarder concerns the transport of a consignment to a destination abroad, the freight forwarder is entitled to carry out customs, security or other legally prescribed treatment of the goods if the transport to the destination cannot be carried out without this treatment. In doing so, the freight forwarder may
5.3.1 act on behalf of the Client if he is authorised to do so.
5.3.2 Open packaging if this is necessary for the purpose of carrying out a legally required inspection (e.g. freight forwarder as regulated agent) and then take all measures necessary to process the order, e.g. repack the goods.
5.4 If the order given to the freight forwarder concerns a consignment under customs supervision, the freight forwarder is entitled to complete the necessary customs formalities and to pay the customs duties imposed if the execution of the order, in particular the delivery to the consignee, cannot be carried out without them .
5.5 If the freight forwarder carries out the transactions described in clauses 5.3 and 5.4 or provides these services in the interest of the client, he shall be entitled to a locally customary, otherwise reasonable remuneration even without an agreement.
Packaging and labelling obligations of the client
6.1 The packages must be clearly and durably marked by the customer with the markings required for their proper handling, such as addresses, marks, numbers, symbols for handling and properties; old markings must be removed or made illegible.
6.2 In addition, the Client is obliged
- 6.2.1 packages belonging to a consignment must be marked in an easily recognizable manner as belonging together,
- 6.2.2 Prepare packages in such a way that access to the contents is not possible without leaving externally visible traces (adhesive tape, strapping or similar are only sufficient if they are individually designed or otherwise difficult to imitate; wrapping with film only if it is firmly welded),
- 6.2.3 in the case of a consignment to be handled in groupage transport which consists of several pieces or units with a girth (largest circumference plus longest edge) of less than 1m, to combine these into larger packages,
- 6.2.4 in the case of a consignment to be dispatched by hanging mail and consisting of several items, these are to be grouped into handle units in closed envelopes,
- 6.2.5 to mark packages with a gross weight of at least 1,000 kg with the weight marking prescribed by the law on the marking of weight on heavy freight items carried on ships,
- 6.2.6 Valuable goods or goods at risk of theft must be packaged neutrally.
6.3 Packages are individual items or units formed by the client to process the order, e.g. boxes, lattice boxes, pallets, handle units, closed loading containers, such as covered or tarpaulin-covered wagons, trailers or swap bodies, containers, igloos, which the freight forwarder must treat as a whole (freight item within the meaning of Sections 409, 431, 504 of the German Commercial Code).
6.4 If the packages do not comply with the conditions set out in clauses 6.1 and 6.2, clause 3.4 shall apply accordingly.
Cargo securing and inspection obligations of the freight forwarder
7.1 If loading or unloading takes place at more than one location, the freight forwarder must ensure that the load is secured at all times with regard to the goods already on the vehicle or remaining there.
7.2 The freight forwarder is obliged, after taking over the goods at interfaces
- 7.2.1 to check the packages for completeness and identity as well as for externally visible damage and the integrity of seals and closures and
- 7.2.2 Irregularities must be documented (e.g. in the accompanying documents or by special notification).
7.3 Interface is any transfer of packages from one legal entity to another or from one liability regime to another.
Receipt
8.1 The freight forwarder is obliged to issue a receipt for receipt of the goods – if necessary with reservations – at the request of the client. With the receipt of receipt, the freight forwarder only confirms the number and type of packages, but not their contents, value, weight or other stated quantity.
- 8.1.1 In the case of pre-loaded or closed loading units such as containers or swap bodies and data transmitted in advance by the client (clause 4a), the accuracy of a receipt for receipt of the number and type of packages loaded is deemed to be refuted if the freight forwarder immediately reports (quantity) differences and damage to the client after unloading the loading unit.
- 8.1.2 In the case of bulk goods, wagon loads, containers or other pre-loaded loading units, the receipt shall, in case of doubt, not contain any confirmation of the gross weight or otherwise stated quantity of the goods.
8.2 As proof of delivery, the freight forwarder must request a delivery receipt from the consignee 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 obtain instructions. If the goods have already been unloaded at the consignee's, the freight forwarder is entitled to take them back. The client can only request the delivery receipt within six months of delivery of the goods.
8.3 If a waybill, sea waybill, consignment note or bill of lading is used, these shall be deemed to be receipt of acceptance or delivery. Clauses 8.1 and 8.2 shall apply accordingly.
8.4 The receipt of receipt or delivery may also be issued electronically or digitally, unless the Client requests the issuance of a consignment note, sea waybill, loading note or bill of lading.
Instructions
The freight forwarder is obliged to comply with any instructions concerning the goods given to him after the conclusion of the contract, unless the execution of the instructions threatens to cause disadvantages for the operation of his company or damage to the clients or recipients of other consignments.
Freight transfer, cash on delivery
10.1 The client's notification that the order is to be dispatched carriage forward or that the order is to be carried out for the account of the recipient or a third party, e.g. in accordance with the Incoterms, does not affect the client's obligation to the freight forwarder to bear the remuneration and other expenses (freight, customs duties and other charges).
10.2 The notification pursuant to clause 10.1 does not contain any cash on delivery instructions.
Failure to comply with loading and unloading times, demurrage
11.1 If the Client has to load or unload the vehicle, he is obliged to comply with the agreed or otherwise a reasonable loading or unloading time.
11.2 In the absence of an agreement, the loading or unloading time for road vehicles shall be, regardless of the number of consignments per loading or unloading point,
11.2.1 Goods loaded on pallets of all kinds
- a. up to ten Euro pallet spaces maximum 30 minutes,
- b. up to twenty Euro pallet spaces, maximum 60 minutes,
- c. over twenty Euro pallet spaces, a maximum of 90 minutes;
11.2.2 in all other cases for goods (but not for bulk goods) with a weight to be handled
- a. up to three tonnes maximum 30 minutes,
- b. up to seven tonnes, maximum 60 minutes,
- c. over seven tonnes, a maximum of 120 minutes.
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 client has fully fulfilled his obligations and has authorized the departure of the road vehicle. However, if the use of a time slot management system has been agreed for the arrival of the road vehicle at the loading or unloading point, the loading or unloading time does not begin before the time agreed for the provision.
11.4 If the loading or unloading time is exceeded due to a contractual agreement or for reasons which are not attributable to the freight forwarder’s sphere of risk, the client shall pay the freight forwarder the agreed demurrage or, if not, an appropriate demurrage fee as compensation.
11.5 The above provisions shall apply accordingly,
- 11.5.1 if the client is obliged to make the goods available for loading or to accept them after unloading,
- 11.5.2 in the event of interruptions in transport which are not attributable to the freight forwarder's area of risk, provided that, in derogation from clause 11.2, in the absence of an agreement, a waiting period of 30 minutes shall be deemed to have been agreed.
Impediments to performance, force majeure
12.1 If the freight forwarder is unable to take over the goods or cannot do so on time, he must notify the client immediately and obtain appropriate instructions. Section 419 of the German Commercial Code (HGB) applies accordingly.
12.2 Obstacles to performance that are not attributable to the risk area of one of the contracting parties release the contracting parties from their performance obligations for the duration of the disruption and the extent of its effect. Section 412 Paragraph 3 of the German Commercial Code remains unaffected. Such obstacles to performance include force majeure, unrest, acts of war or terrorism, strikes and lockouts, official measures, blockades of transport routes and other unforeseeable, unavoidable and serious events. In the event of an obstacle to performance, each contracting party is obliged to inform the other party immediately.
delivery
13.1 If unloading is not started within the unloading time (clause 11), the freight forwarder is entitled to regard this as an obstacle to delivery. In this case, the freight forwarder must notify the client immediately and obtain appropriate instructions. Section 419 of the German Commercial Code (HGB) applies accordingly.
13.2 If the recipient is not found at his home, business premises or a community facility where the recipient lives, the goods may be delivered
- a. in the home to an adult family member, a person employed by the family or an adult permanent roommate,
- b. in business premises to a person employed there,
- (c) in community establishments, to the head of the establishment or an authorised representative, unless there are obvious doubts as to their entitlement to receive the documents.
13.3 If the freight forwarder has made an agreement with the client or consignee that delivery is to take place without physical handover to the consignee (e.g. night delivery, garage delivery or conveyor delivery), delivery shall take place when the goods are actually made available at the agreed location.
The freight forwarder’s obligation to provide information and release
14.1 The freight forwarder is obliged to give the client the necessary information, to provide information on the status of the transaction upon request and to render an account after its execution; however, he is only obliged to disclose costs if he acts on behalf of the client.
14.2 The Freight Forwarder is obliged to return to the Principal everything that he receives for the execution of the contract and everything that he obtains from the management of the contract.
storage
15.1 Storage shall take place at the discretion of the freight forwarder in his own or third-party warehouses. If the freight forwarder stores goods with a third-party warehouse keeper, he must immediately inform the client of the name and storage location of the third-party warehouse keeper in writing or, if a warehouse receipt has been issued, note this on the receipt.
15.2 The client who inspects the storage rooms or has them inspected must immediately raise any objections or complaints about the storage of the goods or the choice of storage room. If he does not make use of the right to inspect, he waives the right to raise objections about the type and manner of storage that would have been ascertainable during the inspection if and to the extent that the choice of storage room and the storage were carried out with the care of a proper freight forwarder.
15.3 The Client who inspects stored goods or has them inspected must observe the Freight Forwarder’s business hours and, at the Freight Forwarder’s request, accept that the inspection takes place only in the Freight Forwarder’s accompaniment.
15.4 The principal who carries out any action with the goods (e.g. taking samples) must, at the request of the freight forwarder, determine the quantity, weight and condition of the goods together with him. If the principal does not comply with this request, the freight forwarder's liability for damage discovered later is excluded, unless the damage is not attributable to the actions carried out with the goods.
15.5 The Client shall be liable for all damages caused by him, his employees or agents to the freight forwarder, other depositors or other third parties when entering the warehouse or when entering or driving onto the warehouse premises, unless the Client, his employees or agents are not at fault.
15.6 Unless otherwise agreed
- 15.6.1 Acceptance for storage begins with the unloading of the delivering vehicle and delivery ends with the loading of the collecting vehicle,
- 15.6.2 Inventory management is carried out by the freight forwarder’s warehouse accounting department,
- 15.6.3 A physical inventory is taken once a year.
15.7 If, after conclusion of the contract, the freight forwarder has reasonable doubts as to whether his claims are secured by the value of the goods, he is entitled to set a reasonable deadline for the client to either secure the freight forwarder's claims or to arrange for the goods to be stored elsewhere. If the client does not comply with this request, the freight forwarder is entitled to terminate the contract without notice.
Offers and remuneration
16.1 Offers from the freight forwarder and agreements with him regarding prices and services always refer only to the services listed by name, goods of normal size, weight and quality and an essentially unchanged volume of goods, orders or quantity structure. They assume normal, unchanged transport conditions, unhindered connections, the possibility of immediate onward dispatch, continued validity of the previous freight rates, exchange rates and tariffs on which the agreement is based, unchanged data processing requirements, quality agreements and procedural instructions as well as unchanged public charges, energy and personnel costs, unless the changes were foreseeable taking into account the circumstances at the time the contract was concluded.
16.2 If a cash on delivery or other collection order is withdrawn after the start of carriage, or if the amount to be collected is not received from the recipient, the freight forwarder may still charge commission.
Expenses of the freight forwarder, right to exemption
17.1 The freight forwarder is entitled to reimbursement of expenses which he reasonably considered necessary under the circumstances, in particular contributions to average proceedings, detention or demurrage costs, repackaging to protect the goods.
17.2 If the principal instructs the freight forwarder to receive goods and freight, cash on delivery, customs duties, taxes or other charges or expenses are demanded upon delivery to the freight forwarder, the freight forwarder is entitled, but not obliged, to pay these - insofar as he considered them necessary under the circumstances - and to demand reimbursement from the principal.
17.3 The principal shall, upon request, immediately release the freight forwarder from expenses such as freight claims, contributions to general average proceedings, customs duties, taxes and other charges imposed on the freight forwarder, in particular as the person entitled to dispose of or as the owner of third-party goods, unless the freight forwarder is responsible for them due to breach of duty.
17.4 The Client shall also indemnify the Freight Forwarder and his vicarious agents against all claims of third parties if and to the extent that these claims are attributable to the Client or his vicarious agents.
Invoices, foreign currencies
18.1 Invoices from the freight forwarder for outstanding amounts must be paid immediately. The due date of payment does not depend on the presentation of proof of delivery.
18.2 The freight forwarder is entitled to demand payment from foreign clients or consignees in their national currency or in German currency, at his discretion.
18.3 If the freight forwarder owes foreign currency or pays foreign currency, he is entitled to demand payment either in the foreign currency or in German currency. If he demands German currency, the conversion will be made at the officially fixed rate on the day of payment, unless it can be proven that a different rate is to be paid or has been paid.
18.4 Payment processing by credit note procedure must be expressly agreed. Irrespective of this, credit notes must be issued and paid immediately after the service has been provided.
Set-off, retention
Set-off or retention against claims arising from the transport contract and related non-contractual claims is only permissible if the counterclaim due is undisputed, ready for decision or has been legally established.
Lien and retention rights
20.1 To secure his claims arising from services provided under the transport contract, the freight forwarder may invoke the statutory lien and retention rights to which he is entitled.
20.2 The pledge shall be realized in accordance with the statutory provisions, provided that
- 20.2.1 when the carrier or shipper exercises his statutory lien, the threat of sale of the pledge and the necessary notifications must be addressed to the consignee,
- 20.2.2 the period of one month specified in Section 1234 of the German Civil Code (BGB) shall be replaced by a period of one week.
20.3 The Client is entitled to prohibit the exercise of the lien if he grants the Freight Forwarder a security equivalent to his claims (e.g. a personal bank guarantee).
Insurance of the goods
21.1 The freight forwarder will arrange insurance for the goods (e.g. transport or storage insurance) with an insurer of his choice if the principal instructs him to do so before the goods are handed over. If the freight forwarder is unable to obtain insurance cover due to the nature of the goods to be insured or for any other reason, the freight forwarder must inform the principal of this immediately.
21.2 The freight forwarder is entitled, but not obliged, to arrange insurance for the goods if this is in the interest of the principal. The freight forwarder may assume that taking out insurance is in the interest of the principal, in particular if
- a. the freight forwarder has taken out insurance under a previous transport contract,
- b. the client has specified a value for the goods in the order for insurance of the goods. The presumption of interest in insurance coverage does not exist in particular if
- a. the client prohibits the covering in writing,
- b. the client is a freight forwarder, carrier or warehouse keeper.
21.3 The Freight Forwarder shall decide on the type and extent of insurance at his own discretion and shall take out insurance at customary market conditions, unless the Client gives the Freight Forwarder other instructions in writing, specifying the sum insured and the risks to be covered.
21.4 If the freight forwarder arranges insurance, collects compensation or undertakes other activities in the interest of the client in connection with insurance claims and averages, the freight forwarder shall be entitled, even without an agreement, to a locally customary, otherwise reasonable remuneration in addition to reimbursement of his expenses.
Liability of Freight forwarder , assignment of claims for compensation
22.1 The freight forwarder is liable for damages in accordance with the statutory provisions. However, the following regulations apply unless mandatory legal provisions or those contained in the general terms and conditions stipulate otherwise.
22.2 In all cases in which the freight forwarder is liable for loss of or damage to the goods (damage to goods) according to clauses 23.3 and 24, depending on fault, he shall, instead of compensation, pay compensation for the value and costs in accordance with sections 429, 430 and 432 sentence 1 of the German Commercial Code (HGB).
22.3 In the event of inventory discrepancies and simultaneous shortages and surpluses of the same client, the freight forwarder may balance the inventory in value terms in order to determine the replacement value in the cases covered by clause 24.
22.4 Sections 425 to 439 of the German Commercial Code (HGB) shall always apply to a transport contract for carriage using various means of transport, including sea transport, regardless of the part of the journey on which damage occurs.
22.5 If the freight forwarder has claims against a third party arising from a loss for which he is not liable, or if the freight forwarder has claims for compensation against a third party which exceed his own liability, he shall assign these claims to the principal at the principal's request, unless the freight forwarder has agreed to pursue the claims at the principal's expense and risk by special agreement.
Limitations of Liability
23.1 The liability of the freight forwarder for damage to goods pursuant to Section 431 paragraphs 1, 2 and 4 of the German Commercial Code (HGB), with the exception of damage resulting from pure sea transport and ordered storage, is limited as follows:
- 23.1.1 to 8.33 Special Drawing Rights per kilogram if the freight forwarder
- a. Carrier within the meaning of Section 407 of the German Commercial Code (HGB),
- b. Freight forwarder acting as self-employed forwarder, fixed-cost or consolidated freight forwarder within the meaning of Sections 458 to 460 of the German Commercial Code (HGB) or
- c. is a custodial freight forwarder within the meaning of Section 461 Paragraph 1 of the German Commercial Code (HGB);
- 23.1.2 to 2 instead of 8.33 Special Drawing Rights for each kilogram if the Client has concluded a transport contract with the Freight Forwarder for carriage by various means of transport including sea carriage in accordance with clause 22.4.
- 23.1.3 If the liability of the freight forwarder under clause 23.1.1 exceeds an amount of 1 million Euro per claim, his liability shall further be limited to a maximum of 1 million Euro or 2 Special Drawing Rights per kilogram, whichever is higher, for each claim.
- 23.2 In the case of a transport contract for pure maritime carriage and in the case of cross-border carriage, the freight forwarder's liability for damage to goods is limited to the maximum amount of liability laid down by law for this carriage.
23.3 In cases not covered by clauses 23.1 and 23.2 (such as Section 461 Para. 2 HGB, Sections 280 ff BGB), the freight forwarder's liability for damage to goods is limited in accordance with Section 431 Para. 1, 2 and 4 HGB.
- 23.3.1 in the case of a transport contract for pure maritime carriage or carriage by a combination of means of transport including maritime carriage, 2 Special Drawing Rights per kilogram,
- 23.3.2 for all other transport contracts, 8.33 Special Drawing Rights per kilogram.
- 23.3.3 Furthermore, the liability of the freight forwarder for any one claim shall be limited to a maximum amount of EUR 1 million.
23.4 The liability of the Freight Forwarder for damages other than damage to goods, with the exception of damages during ordered storage, personal injuries and damage to third-party goods, is limited to three times the amount that would be payable in the event of loss of the goods under clauses 23.3.1 or 23.3.2.
- 23.4.1 Furthermore, the liability of the freight forwarder is limited to a maximum amount of EUR 100,000 in any one case of damage.
- 23.4.2 Sections 413 (2), 418 (6), 422 (3), 431 (3), 433, 466, 487 (2), 491 (5), 520 (2), 521 (4), 523 of the German Commercial Code (HGB) as well as corresponding liability provisions in international agreements, from which no deviation may be made by means of pre-formulated contractual terms, remain unaffected.
23.5 If the liability of the freight forwarder under clauses 23.1 to 23.4 exceeds an amount of EUR 2 million per loss event, his liability, regardless of how many claims are made in connection with one loss event, shall in addition be limited to a maximum of EUR 2 million per loss event or 2 Special Drawing Rights for each kilogram of lost or damaged goods, whichever is higher; if there are several injured parties, the freight forwarder shall be liable in proportion to their claims.
Limitations of liability for ordered storage, inventories and value declaration
24.1 The liability of the freight forwarder for damage to goods is limited in the case of ordered storage
- 24.1.1 in accordance with Section 431 (1), (2) and (4) of the German Commercial Code (HGB) to 8.33 Special Drawing Rights per kilogram,
- 24.1.2 a maximum of EUR 25,000 per claim.
- 24.1.3 If the loss suffered by a client consists in a difference between the target and actual inventory levels, the freight forwarder's liability shall, in derogation from clause 24.1.2, be limited to EUR 50,000 per year, regardless of the number and form of inventories carried out and the number of claims causing the inventory discrepancy.
24.2 The Client may, against payment of a surcharge to be agreed, specify in writing before storage a value to increase the liability that exceeds the maximum amounts specified in clause 24.1. In this case, the value specified in each case shall replace the relevant maximum amount.
24.3 The liability of the freight forwarder for damages other than to goods, with the exception of personal injury and material damage to third-party goods, is limited to EUR 25,000 per claim in the case of ordered storage.
24.4 The liability of the freight forwarder - with the exception of personal injury and damage to third-party goods - is in any case limited to 2 million euros per damage event, regardless of how many claims are made from one damage event, in the case of ordered storage; in the case of several injured parties, the freight forwarder is liable in proportion to their claims. Clause 24.2 remains unaffected.
Disclaimer of liability for sea and inland waterway transport
25.1 According to Section 512 Paragraph 2 No. 1 of the German Commercial Code (HGB), it is agreed that the freight forwarder, in his capacity as carrier, is not liable for any negligence on the part of his employees and the ship's crew if the damage was caused by conduct during the navigation or other operation of the ship, but not during the implementation of measures taken primarily in the interest of the cargo, or by fire or explosion on board a ship.
25.2 According to Article 25 paragraph 2 CMNI it is agreed that the Freight Forwarder in his capacity as carrier or actual carrier shall not be liable for damages which
- 25.2.1 caused by an act or omission of the master, pilot or other persons employed by the vessel or a pusher or tug in the navigation or in the formation or dissolution of a pusher or tug convoy, provided that the freight forwarder has fulfilled his obligations under Article 3 paragraph 3 CMNI with regard to the crew, unless the act or omission is committed with intent to cause the damage or recklessly and with knowledge that such damage would probably result,
- 25.2.2 caused by fire or explosion on board the vessel without it being proven 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 in his vessel or in a rented or chartered vessel which existed before the start of the voyage, if he proves that the defects could not have been discovered before the start of the voyage despite the exercise of due care.
Non-contractual claims
The above exclusions and limitations of liability also apply to non-contractual claims in accordance with Sections 434 and 436 of the German Commercial Code (HGB).
Sections 413 (2), 418 (6), 422 (3), 431 (3), 433, 466, 487 (2), 491 (5), 520 (2), 521 (4), 523 of the German Commercial Code (HGB) as well as corresponding liability provisions in international agreements, from which no deviation is permitted by means of pre-formulated contractual terms, remain unaffected.
Qualified negligence
27.1 The exclusions and limitations of liability set out in clauses 22.2, 22.3, 23.3, 23.4 and 24 do not apply if the damage was caused
- 27.1.1 through intent or gross negligence of the freight forwarder or his executive employees or
- 27.1.2 through breach of essential contractual obligations, whereby claims for compensation in the latter case are limited to the foreseeable, typical damage. Essential contractual obligations are obligations whose fulfilment makes the proper execution of the transport contract possible in the first place and on whose compliance the contractual partner can regularly rely.
- 27.1.3 Notwithstanding clause 27.1.2, the liability limitations in clauses 24.1 and 24.2 shall only apply in the event of a grossly negligent or intentional breach of essential contractual obligations
27.2 Section 435 of the German Commercial Code (HGB) remains applicable in the cases covered by paragraph 23.1 and Section 507 of the German Commercial Code (HGB) in the case of a transport contract for pure maritime carriage in the cases covered by paragraph 23.2.
27.3 Clause 27.1 shall not apply to legal provisions such as Article 25 MC, Article 36 CIM or Article 21 CMNI which extend the liability of the freight forwarder or extend the attribution of fault to servants or other third parties.
Freight forwarder’s liability insurance
28.1 The freight forwarder is obliged to take out and maintain liability insurance with an insurer of his choice which covers his liability under the transport contract in accordance with the ADSp and the law at least to the extent of the standard liability amounts.
28.2 The agreement of a maximum compensation payment per claim, loss event and year is permissible; likewise the agreement of an appropriate excess on the part of the freight forwarder.
28.3 The freight forwarder must, upon request, provide proof to the client of the existence of valid liability insurance cover. For this purpose, it is sufficient to present a certificate of insurance. If the freight forwarder does not provide this proof within a reasonable period of time and does not have valid insurance cover, the freight forwarder may not invoke the liability provisions of the ADSp towards the client.
Confidentiality, Compliance
29.1 The parties are obliged to treat all information that becomes known to them during the execution of the transport contract and is marked as confidential as confidential. The information may only be used for the purpose of providing the service. This does not include information that is publicly accessible or, from an objective point of view, does not require protection for the other contracting party.
29.2 When carrying out the contractual obligations, both parties undertake to comply with the legal provisions applicable to their company and support and respect the principles of the “Global Compact” (“UNGC”), the United Nations Universal Declaration of Human Rights and the International Labor Organization’s 1998 Declaration on Fundamental Principles and Rights at Work in accordance with national laws and customs. In particular, both parties will
- a. do not employ children or use forced labour,
- b. comply with the respective national laws and regulations on working hours, wages and salaries, in particular the payment of the statutory minimum wage, and other employer obligations,
- c. comply with applicable occupational health and safety regulations and ensure a safe and healthy working environment in order to maintain the health of employees and prevent accidents, injuries and work-related diseases,
- d. refrain from any discrimination based on race, religion, disability, age, sexual orientation or gender,
- e. comply with international anti-corruption standards as set out in the UNGC and local anti-corruption and bribery laws,
- f. comply with all applicable environmental laws and regulations.
Place of performance, place of jurisdiction, applicable law
30.1 The legal relationship between the freight forwarder and the client is governed by German law.
30.2 The place of performance for all parties is the location of the Freight Forwarder’s branch to which the order or enquiry is addressed.
30.3 The place of jurisdiction for all legal disputes arising from the transport contract, its attempted initiation or in connection with it, for all parties involved, provided they are merchants, is the location of the branch of the freight forwarder to which the order or inquiry is addressed; for claims against the freight forwarder, this place of jurisdiction is the exclusive place of jurisdiction. The above exclusive jurisdiction provision applies as an additional jurisdiction provision in the case of Art. 31 CMR and 46 § 1 CIM, but not in the case of Art. 39 CMR, 33 MÜ, 28 WA.
Publisher: German Freight Forwarders and Logistics Association (DSLV) | Responsible for content: Frank Huster (CEO) Headquarters: Weberstraße 77, 53113 Bonn | Berlin office: Platz vor dem Neues Tor 5, 10115 Berlin | www.dslv.org