Preface
The terms and conditions are recommended for use, starting January 1st, 2003, by the Federal Association of German Industry, the Federal Association of German Wholesalers and Exporters, the Federal Association of German Freight Forwarders and Logistics Operators, the Association of German Chambers of Industrie and Commerce, and the German Association of Retailers. This recommendation is not obligatory. Contract parties can formulate different agreements.
1. Interest of the principal and due care
The freight forwarder shall act in the interest of his principal and
fulfil his duties with due care.
2. Area of application
2.1 The ADSp apply to all
contracts for the transportation of goods, irrespective of whether they concern
freight forwarding, carriage, warehousing or other services common to the
forwarding trade; these also include logistical services commonly provided by
freight forwarders in connection with the carriage or storage of
goods.
2.2 In the case of forwarding services regulated by sections 453
to 466 of the German Commercial Law (HGB), the freight forwarder is only
responsible for arranging the necessary contracts required for the performance
of these services, unless other legal provisions take precedence.
2.3
The ADSp are not applicable for contracts that deal exclusively with
- packaging,
- the carriage of removal goods and their storage,
- crane lifting, assembly jobs or heavy lift and high volume transports, except for normal transhipment services of the freight forwarder.
- the carriage and storage of goods to be towed or salvaged.
2.5 If trade customs or legal provisions differ from the ADSp, the ADSp take precedence unless these legal provisions are mandatory. For contracts of carriage by air, sea, inland waterways or for multi-modal transports different contractual arrangements may be made in accordance with the terms of carriage devised for these transports.
2.6 The freight forwarder is authorised to agree to normal standard terms and conditions of third parties.
2.7 In the relationship between a principal freight forwarder and an intermediate freight forwarder, the ADSp are deemed to be the general terms and conditions of the intermediate freight forwarder.
3. Instructions, transmission errors, contents,
special type of goods
3.1 Forwarding instructions, other instructions,
directives and communications are valid even if given informally. Subsequent
modifications must be specifically identifiable as being amendments. The burden
of proof for the correct and complete transmission lies with the party
referring to it.
3.2 If statements must be made in writing, they are
deemed to having been made in writing when using electronic data communication
or any other machine readable form for as long as the originator of the message
is identifiable.
3.3 The principal must inform the freight forwarder, at
the time of giving the instructions, that the transport contract concerns:
- dangerous goods
- live animals and plants
- perishables
- valuable goods and goods with an inherent risk of theft
3.4 The principal must specify in his
instructions addresses, marks, numbers, quantity, nature and contents of the
packages as well as declaring the properties of the goods, as required by
section 3.3, the goods value for insurance purposes and any other information
relevant for the proper execution of the forwarding instructions.
3.5 In
the case of dangerous goods, the principal must inform the freight forwarder in
writing - at the time of giving the instructions - of the exact nature of the
hazard and, if appropriate, about precautionary measures. In the case of
dangerous goods subject to the law for the carriage of dangerous goods or other
goods, the carriage of which is subject to specific regulations regarding
dangerous goods, their handling or their disposal, the principal has to make
the necessary declarations required for the proper execution of the forwarding
instruction, especially the classification in accordance with the regulations
for dangerous goods.
3.6 The principal must inform the freight forwarder
about particularly valuable goods or goods with an inherent risk of theft
(e.g., cash, precious metals, jewellery, clocks and watches, precious stones,
works of art, antiquities, bank or credit cards, valid telephone cards or other
means of payment, bonds, shares and similar, foreign currencies, documents,
spirits, tobacco, entertainment electronics, telecommunications devices and
accessories) and goods with an actual value of € 50 per kg or more well in
advance to allow the freight forwarder to decide about acceptance of the goods
and to take measures for a safe and secure execution of the forwarding job.
3.7 If a forwarding instruction does not comply with the terms stated
in sections 3.3 to 3.6, the freight forwarder has the option to
- refuse acceptance of the goods
- return goods already accepted or to make them available for collection
- ship, transport or store them without the need to notify the principal and to charge an extra, appropriate fee, if the safe and secure execution of the instruction causes extra costs.
3.8 The freight forwarder is not obliged to
check or supplement the statements made regarding sections 3.3 to 3.6.
3.9 The freight forwarder is not obliged to check the authenticity of
signatures on any messages or documents relating to goods, nor to check the
authority of the signatories, unless there exist reasonable doubts concerning
the authenticity or authority.
4. Packaging, provision of loading and
packaging aids, weighing and checking
4.1 Unless specifically stated,
the forwarding instruction does not cover
4.1.1 the packaging of the
goods,
4.1.2 the weighing, checking, measures to preserve or enhance
the goods and its packaging, unless this is customary for this kind of
transaction,
4.1.3 the provision or exchange of pallets or other
loading or packaging aids. If they are not swapped one-for-one, they are only
picked up as part of a new forwarding instruction. This does not apply if the
exchange is intentionally not carried out by the freight forwarder.
4.2
The services under section 4.1 are charged for separately.
5. Customs clearance
5.1 The instruction
for shipment to a destination in another country includes instructions for
customs clearance, if this is necessary for arranging the transport to the
place of destination.
5.2 The freight forwarder is entitled to an extra
fee for the customs clearance, over and above the actual costs incurred.
5.3 The instruction to forward bonded goods or to deliver them free
house, authorises the freight forwarder to effect the customs clearance and to
advance customs and excise duties and fees.
6. Packaging and marking obligation of the
principal
6.1 The packages have to be clearly and durably marked by the
principal to facilitate their proper handling, e.g. addresses, marks, numbers,
symbols for handling and properties; old marks must be removed or made
illegible.
6.2 In addition, the principal is under obligation:
6.2.1 to mark all packages belonging to the same consignment in such a
way that they are easily recognised as forming one consignment,
6.2.2
to prepare packages in such a way that they may not be accessed without leaving
visible trace (adhesive tape, bands, etc. are only permissible when they are
individually designed or otherwise difficult to imitate; foil wrapping must be
thermally sealed);
6.2.3 in case of a consignment being part of a
forwarders consolidation, to group the individual packages or units of this
consignment into larger units if their strap length (largest circumference plus
longest side) is less than 1 metre;
6.2.4 to combine a consignment of
hanging garments consisting of several individual units into wrapped units for
easier handling;
6.2.5 to mark packing units with a gross weight of at
least 1,000 kilograms with the weight specification as prescribed for heavy
loads to be transported by ship.
6.3 Packages are single packages or
units of packages, formed by the principal for the purpose of being carried
according to the forwarding instruction, e.g., boxes, wireboxes, pallets,
handling units, enclosed loading units such as covered wagons, wagons with
tarpaulin covers, semi-trailers, swap bodies, containers or igloos.
6.4
If the packages do not comply with the terms under 6.1 and 6.2, section 3.7
shall apply.
7. Supervisory duties of the freight
forwarder
7.1 At specific interfaces the freight forwarder is under the
obligation to:
7.1.1 check packages regarding their quantity, identity
and apparent good order and whether seals and fastenings are intact;
7.1.2 document irregularities (e.g. in the accompanying document or by
special notification
7.2 An interface is any point at which the
responsibility for the packages is passed on to another operator/agent or the
handing over point at the end of each stage of the transportation process.
8. Receipt
8.1 Upon request by the
principal, the freight forwarder shall issue a certificate of receipt. With
this certificate the freight forwarder confirms the quantity and type of
packages, but not their contents, value or weight. In the case of bulk goods,
full loads and such like the certificate of receipt does not state the gross
weight or any other description of the quantity of the goods.
8.2 As
proof of delivery the freight forwarder requests from the consignee a receipt
of the packages as named in the forwarding instruction or other accompanying
transport documents. Should the consignee refuse to sign for the receipt of the
goods, the freight forwarder must request further instructions. If the goods
have already been unloaded at the consignee, the freight forwarder is entitled
to regain possession.
9. Instructions
9.1 An instruction
remains valid for the freight forwarder until revoked by the principal.
9.2 In the case of insufficient or impractical instructions the freight
forwarder may use his professional judgement.
9.3 An instruction to
hold goods at the disposal of a third party can no longer be revoked after
instructions from the third party have been received by the freight
forwarder.
10. Freight payment, cash on
delivery
10.1 The statement by the principal that the instruction is to
be executed freight unpaid or that the costs are to be paid by the consignee or
a third party does not affect his liability for payment of all charges.
10.2 The statement in section 10.1 does not concern cash on delivery
instructions.
11. Deadlines
11.1 In the absence of
specific agreements, neither loading or delivery deadlines are guaranteed, nor
the sequence of the handling of goods of the same means of transport.
11.2 This does not affect the freight forwarder's statutory liability
with regard to missing deadlines.
12. Obstacles
12.1 Obstacles beyond the
freight forwarder's control relieve him, for their duration, from the duties
that are affected by these obstacles. In the case of such obstacles, the
freight forwarder or the principal have the right to withdraw from the contract
even if it has already been partially performed. If the freight forwarder or
the principal withdraws from the contract, the freight forwarder is entitled to
the costs which he deemed to be necessary to be incurred or which were incurred
in the interest of the principal.
12.2 The freight forwarder is only
obliged within the framework of his ordinary professional care to advise the
principal about legal or official restrictions concerning the shipment (e.g.,
import/export restrictions). If, however, the freight forwarder, through public
statements or in the course of negotiations, created the impression that he has
expert knowledge about specific circumstances, he has to act appropriately to
this knowledge and expertise.
12.3 Governmental and/or official acts
beyond the freight forwarder's control do not affect the rights of the freight
forwarder towards his principal; the principal is liable towards the freight
forwarder for all claims arising out of such acts. Claims of the freight
forwarder against the state or third parties are not affected.
13. Delivery
Delivery is deemed to have
been affected when the goods are handed over to any person present on the
premises of the consignee, unless there are apparent reasonable doubts about
their authority to receive goods on behalf of the consignee.
14. Right to information
14.1 The
freight forwarder is obliged to provide the principal with all necessary
information, to inform him, upon request, about the status of the transaction
and to provide information about all transactions so far, however, he is only
obliged to reveal the costs incurred if he acted in the name of the principal.
14.2 The freight forwarder is obliged to pass everything he
receives/obtains while acting for him to the principal.
15. Warehousing
15.1 The choice of
warehousing location (own or third party) lies with the freight forwarder. In
case of a third party warehouse the freight forwarder must notify the principal
in writing and immediately of the warehouse company and its address, or, in
case of a warehouse warrant, to mark these on the warrant.
15.2 The
principal is at liberty to inspect the warehouse. Objections or complaints
about the storage of the goods must be made immediately. If he does not
exercise the right of inspection, he waves all rights to objections against the
storage and warehousing, for as long as the choice and type of storage complies
with the usual professional care of a freight forwarder.
15.3 Access to
the warehouse is only granted to the principal during the normal working hours
of the freight forwarder and in his company.
15.4 If the principal
handles the goods (e.g. sample taking) the freight forwarder may demand that
the number, the weight and the status of the goods be inspected together with
the principal. If the principal does not agree to this, the freight forwarder
is not liable for damage discovered later, unless the damage was clearly not
caused by such handling of the goods.
15.5 The principal is liable for
all damage caused by him or his staff or agents to the freight forwarder, other
warehouse clients or third parties whilst on the premises of the warehouse,
unless he, his staff or agents are not responsible for such damage.
15.6 In case of inventory discrepancies, the freight forwarder is
entitled to balance shortages and surpluses of the same principal.
15.7
If the freight forwarder has reasonable doubt about the security of his claim
upon the value of the goods he is entitled to set a reasonable time limit for
the principal to either secure the claims of the freight forwarder or to make
alternative provisions for the storage of the goods. If the principal does not
comply with this, the freight forwarder is entitled to terminate the contract
without further notice.
16. Offers and Payment
16.1 Offers from
the freight forwarder and agreements with him regarding price and services
always refer to specified own services or those of third parties, and to goods
of normal size, weight and nature; they presume normal unfettered transport
situations, unimpeded access, the possibility of immediate on-shipment and that
freight rates, exchange rates and tariffs upon which the quotation was based
remain valid, unless changes could be foreseen under the current circumstances.
The note "plus the usual ancillary charges" entitles the freight forwarder to
charge for supplements and surcharges.
16.2 All quotations made by the
freight forwarder are valid only for immediate acceptance and immediate
execution of the relevant task, unless otherwise specified in the quotation,
and when the instructions refer to the quotation.
16.3 In case of a
cancellation of or withdrawal from the instruction the freight forwarder is
entitled to the claims in accordance with §§ 415, 417 of the German
Commercial Law (HGB).
16.4 In case of a COD- or other collection
instruction being withdrawn retrospectively or if the money is not paid, the
forwarder is still entitled to his collection fee.
16.5 If the
consignee refuses to accept a consignment destined for him or, if the delivery
is impossible for reasons beyond the control of the freight forwarder, the
freight forwarder is entitled to the cartage charges for the return of the
consignment.
17. Disbursements of the freight forwarder,
exemption from third party claims
17.1 The freight forwarder is entitled
to reimbursement for outlays which he could reasonably consider appropriate.
17.2 The instruction to accept incoming consignments entitles the
freight forwarder - but does not oblige him – to advance freight,
COD-sums, duties, taxes and other dues in connection with such consignments.
17.3 The principal has to relieve the freight forwarder immediately of
demands regarding freight, average demands, customs duties, taxes or other dues
directed against the freight forwarder as being agent for or possessor of the
goods owned by third parties, when the freight forwarder is not responsible for
such payments. The freight forwarder is entitled to take reasonable measures
appropriate to protect himself. If the circumstances do not require immediate
action, the freight forwarder must request instructions from his
principal.
17.4 The principal must inform the freight forwarder in an
appropriate way about all public/legal obligations, e.g. regarding customs
regulations or trademark obligations, arising from the possession of the goods,
unless it may reasonably be deduced from the quotation of the freight forwarder
that he is aware of such obligations.
18. Invoices, foreign currencies
18.1
Freight forwarders' invoices are due immediately.
18.2 The freight
forwarder can demand from his foreign principals payment either in local or
German currency.
18.3 If the freight forwarder owes foreign currency
amounts, or if he advances sums in foreign currencies, he can demand payment
either in German or in foreign currency. If he demands payment in German
currency, the current exchange rate will be used, unless it can be proven that
a different rate of exchange must be used or was used.
19. Settlement
Claims arising out of the
forwarding contract and other related claims may only be set off against
counter claims, if these are undisputed.
20. Lien and retention
20.1 The freight
forwarder has a lien on all goods in his possession or other valuables in
connection with any claim, whether due or not for any services for his
principal in accordance with section
2.1. This lien does not exceed the
general legal lien which applies.
20.2 The freight forwarder may
exercise his lien for claims arising out of other contracts with the principal
only if they are undisputed or if the financial situation of the debtor puts
the claims of the freight forwarder at risk.
20.3 The time limit of one
month as specified in section 1234 of the German commercial Law is superseded
in all cases by a time limit of two weeks.
20.4 If the principal is in
arrears, the freight forwarder is entitled, after due notice, to sell such a
portion of the principal's goods in his possession as is necessary, after
appropriate consideration, to meet his claims.
20.5 The freight
forwarder is entitled to the usual sales commission on the net proceeds of the
sale when exercising his lien.
21. Insurance of the goods
21.1 The
freight forwarder arranges for the insurance of the goods (e.g., transit or
warehousing insurance) with an insurer of his choice if instructed to do so by
the principal before the goods are handed over. If the freight forwarder cannot
effect insurance cover, either due to the nature of the goods or for any other
reason, he must inform the principal without delay.
21.2 The freight
forwarder is entitled, but not obliged, to effect the insurance of the goods if
this is in the interest of the principal. The freight forwarder may assume that
the insurance cover is in the interest of the principal, especially when,
- the freight forwarder effected insurance cover for previous freight forwarding instructions
- the principal declared the value of the goods in his freight forwarding instructions (3.4). This assumption for the arrangement of insurance cover may not be made if
- the principal expressly forbids such insurance cover
- the principal is a freight forwarder, carrier or warehousing company.
21.3 The freight forwarder, after due
consideration decides the type and scope of the insurance and arranges the
cover at the usual market rates, unless the principal instructs the freight
forwarder differently, specifying the insured sum and the risks to be covered,
in writing..
21.4 If the freight forwarder is himself the insurance
policy holder and if he acted for the account of the principal he is obliged,
if requested to do so, he is obliged to provide information about this in
accordance with 14.1. In such a case the freight forwarder is obliged to
invoice the premium for each freight forwarding instruction individually, to
document it and to pay it to the insurer exclusively for this insurance cover.
21.5 The freight forwarder is entitled to a spezial fee, apart from his
reimbursements, for arranging the insurance, handling claims and other
administrative tasks in connection with claims and averages.
22. Liability of the freight forwarder, cession
of claims
22.1 The freight forwarder bears liability for all his
services (section 2.1) according to legal regulations. Unless specified
otherwise, however, the following shall apply..
22.2 If the freight
forwarder is only responsible for arranging the contracts required for the
services requested, his responsibility is limited to the careful choice of such
third party service providers.
22.3 In all cases where the freight
forwarder is liable for loss of or damage to goods, his liability will be in
accordance with §§ 429, 430 of the German Commercial Law.
22.4 If §§ 425 pp and 461, section 1 of the German Commercial
Law are not applicable, the freight forwarder is liable for damage resulting
from:
22.4.1- insufficient packaging or marking by the principal or
third parties
22.4.2 - agreed or customary outdoor storage
22.4.3 - theft or robbery (§§ 243, 244, 249 German Penal
Code)
22.4.4 - Acts of God, weather conditions, failure of appliances
or wiring, influence of other goods, damage by animals, inherent vice Only, if
there is evidence of the freight forwarder being at fault. If the damage could
have arisen from one of the above circumstances it shall be deemed to have
arisen from it.
22.5 If the freight forwarder has a claim against a
third party for damage for which he is not liable, or if the freight forwarder
has claims in excess of the sum for which he is liable, he must, on request,
cede such claim to his principal, unless the freight forwarder, by special
agreement, had undertaken to pursue such claims at the cost and risk of his
principal. The principal may also demand that the freight forwarder cedes all
claims against third parties to him. § 437 of the German Commercial Law
remains unaffected. If the claims of the principal have been met by the freight
forwarder or by the forwarders' insurance, the claim to be ceded is limited to
that portion which exceeds that already paid by the freight forwarder or his
insurance.
23. Limitation of liability
23.1 The
liability of the freight forwarder for loss of or damage to goods, with the
exception of warehousing on request, is limited:
23.1.2 in case of
damage occurring to goods whilst being carried, the damage is limited -
contrary to section 23.1.1 - to the legally limited maximum amount specified
for this type of carriage; 23.1.1 to € 5 per kilogram of gross weight of
the consignment;
23.1.3 in case of a contract of multi-modal carriage -
including sea transport - to 2 SDR per kg;
23.1.4 to € 1 million
or 2 SDR per kg per claim, whichever is the higher.
23.2 If only
individual packages or parts of the consignment were damaged or lost, the
maximum liability is calculated on the basis of the gross weight
- of the whole consignment if it is rendered valueless
- of that part of the consignment that is rendered valueless
23.3 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 three
times the amount payable for the loss of the goods, but not more than €
100,000 per event. §§ 431 section 3 and 433 HGB (German Commercial
Code) remain unaffected.
23.4 The liability of the freight forwarder,
irrespective of the number of claims per event is limited to € 2 Millions
per event or 2 SDR per kg of lost or damaged goods, whichever is the greater;
in the case of more than one claimant the freight forwarder's liability is
proportionate to their individual claims
23.5 The SDR is calculated
in accordance with § 431, section 4 of the German Commercial Law.
24. Liability limitations in the case of
warehousing upon instruction
24.1 The liability of the freight forwarder
for loss of or damage to goods in the case of warehousing upon instruction is
limited to € 5 for each kg gross weight of the consignment, to a maximum
of € 5,000 per claim; if the claim of a principal is based upon the
difference between the nominal and actual inventory (section 15.6) the
liability is limited to € 25,000, irrespective of the number of events
causing the inventory discrepancy. Section 24.1.1 is not affected.
24.2
Section 23.2 applies accordingly.
24.3 In the case of warehousing upon
instruction the liability of the freight forwarder for claims other than for
damage to goods, excepting personal injury and damage to goods that are not
subject of the contract of transportation, is limited to € 5,000 per
claim.
24.4 Irrespective of the number of claims arising from an event, the
liability of a freight forwarder is limited to € 2 Millions per event; in
the case of more than one claimant the freight forwarder's liability is
distributed amongst them in proportion to their individual claims.
25. Burden of proof
25.1 The principal
must provide evidence that goods of a specified quantity and state were handed
to the freight forwarder in apparent good order (§ 438 German Commercial
Law). The freight forwarder must provide evidence that he delivered the goods
as he received them.
25.2 The burden of proof that goods were damaged
whilst being transported (Section 23.1.2) in the means of transport lies with
the party claiming such damage. If the place where the damage occurred is
unknown, the freight forwarder must specify the sequence of transportation by
documenting the interfaces (Section 7) if requested by the principal or the
consignee. It is to be assumed that the damage occurred during that stage of
the transportation for which the freight forwarder cannot provide a clean
receipt.
25.3 The freight forwarder is obliged to ascertain, through
appropriate enquiries and obtaining evidence, where the damage occurred.
26. Non-contractual claims
The
aforementioned releases from and limitations of liability apply also, in
accordance with §§ 434, 436 of the German Commercial Law, to claims
not arising out of freight forwarding contracts.
27. Specific responsibility
The
aforementioned releases from and limitations of liability do not apply, if the
damage was caused:
27.1 By intent or gross negligence of the freight
forwarder or his management staff or by violation of fundamental duties of the
contract in which case damage claims shall be limited to foreseeable, typical
damage;
27.2 by the freight forwarder in cases covered by §§
425 pp, 461 Abs. 1 of the German Commercial Law or by persons specified in
§§ 428, 462 of the German Commercial Law acting intentionally or
recklessly, knowing that damage to the goods would be probable.
28. Notification of a claim
Claims have
to be made in accordance with § 438 of the German Commercial Law.
29. Freight forwarding insurance
29.1
The freight forwarder is obliged to cover, at going market rates, his
transport-related liability according to ADSp and as legally required to cover
standard liabilities with an insurer of his choice.
29.2 Agreements for
maximum compensation per claim, event and year are permitted; also
contributions from the freight forwarder.
29.3 The freight forwarder
may only refer to the ADSp towards his principal if he has arranged sufficient
insurance cover at the time of the forwarding instructions are issued.
29.4 If requested by the principal, the freight forwarder has to
provide proof of this liability insurance cover
30. Place of fulfilment, place of jurisdiction,
applicable law
30.1 The place of fulfilment for all parties to the
contract is the location of that branch office of the freight forwarder at
which the instructions are directed.
30.2 The place of jurisdiction for
all disputes arising out the instruction is for all participants, so far as
they are business people, the location of that branch office of the freight
forwarder at which the instructions are directed.
30.3 The legal
relationship between the freight forwarder and the principal or his legal
successors is governed by the law of the Federal Republic of Germany.